I recently gave a seminar where we were discussing the importance of non-verbal skills. In that study, we talked about the famous Mehrabian study that found that only 6% of communication was the words. One major aspect of non-verbal communication is in the eyes. I recently saw an article on the specific issues related to the eyes written by FBI agent and counterintelligence agent Joe Navarro. Here is a brief excerpt of that article:

Our eyes also are formidable communicators of feelings including comfort and discomfort, which help us decipher others from a very tender age. The eyes reveal excitement at mom walking into the room but also reveal concern when we are troubled. Often what is not spoken out loud is expressed exquisitely in the eyes. In fact I was prompted to write this today as I was visiting a research colleague and her eyes, at a distance, told me something was wrong, her father had passed away.

While a mother’s eyes will reflect the hopelessness she may feel when her baby is hospitalized they conversely reveal the joy having found that the child is healthy and fine. Few things reflect our emotions as well or as rapidly as the eyes. Babies which are just several days old already respond to the eyes of the mother and can tell the difference between a squint and wide opened dilated eyes. Babies can tell the difference between a happy and contented mother and one who is stressed, just form looking at the yes.

The eyes serve as conduits of information we have relied on for thousands of years. We rely on them because of their accuracy. The man who is asked to help someone move will cover his eyes with his fingers rubbing them as he answers, “yes I will help you,” when no doubt this will be an inconvenience. This blocking behavior authentically reveals how he feels even though he will assist.

Eye blocking behaviors such as: covering of the eyes, shielding the eyes, lowering the eyelids for a prolonged period, delays in opening of the eyes is so hard wired in us that children who are born blind, when they hear something they don’t like will also cover their eyes. Obviously this behavior is hard wired, part of our paleo-circuits and represents an adaptation to stress or other negative stimuli which has served us well over millennia.

Eye blocking is just one of the more obvious things that we do. When we are troubled, frustrated, or struggling with something emotionally, our eyelids may also close hard and remain closed or the eyelids may flutter rapidly as an expression of our sentiment. Hugh Grant is famous in the movies for his eyelid flutter whenever he screws something up.

Research also shows that when we are nervous or troubled our blink rate increases, a phenomenon often seen with liars but also frequently seen with people under stress. I would not call anyone a liar just because their blink rate goes up although while studying Richard Nixon I did notice that when he was struggling with facts while talking to the press his blink rate went from about 12 per minute to 68 time per minute. Bill Clinton during his deposition showed a high blink rate at times in excess of 92 per minute, but again these were individuals under a lot of stress.

When interpreting eye behavior, many misconceptions exist. Little or no eye contact is erroneously perceived by some as a classic sign of deception, especially during questioning, while the truthful should “lock eyes.” This is not supported by research or experience and is completely false. In fact, Alder Vrij and others have found that liars tend to engage in greater eye contact because they know we are looking there for signs of deception.

Eye contact is in fact a social/cultural phenomenon that is practiced differently around the world.

To read the rest of the article, click here

From the Mediation Matters Blog of Steve Mehta.

Can fun be an effective motivator at work? It might, according to a recent psychology study reported by David DiSalvo.

In the study, researchers first assessed participants as high or low achievers and then gave them a series of 5 computerized tests. Their computers flashed various achievement-oriented cues for the first 4 tests, and, predictably, the higher achievers performed better.

But, the fifth set of test cues instead addressed having fun, and on that last test alone, the low achievers performed better than the high achievers.

The implication is that some people, completely unmoved by traditional rewards, are motivated to do their best if they think they’ll enjoy doing it.

The conclusions of this study complement other research done on effective motivation. There is a growing body of evidence that extrinsic motivators, whether positive (such as free pizza, bonuses, or a better office space) or negative (such as fear of losing your job) don’t work for very long, even for high achievers. Some writers and researchers believe that only intrinsic motivations are sustainable over a long period of time.

Alexander Kjerulf, author of Happy Hour Is Nine to Five has written about six kinds of intrinsic motivation: challenge for yourself with new tasks, control and choice about how work gets done, cooperation with and helping others, getting recognition for your work, happiness and enjoyment at work, and trust.

The opposite of these intrinsic motivators: boredom, powerlessness, isolation, neglect, misery, and mistrust, are often factors in workplace conflicts at all organizational levels.

I can think of work and school situations where, out of desperate boredom, I created my own challenges and enjoyment. As a college student in a dreadfully dull sociology class, I amused myself by tabulating how frequently the professor used his many favorite clichés.

As a dispirited temp worker, tasked with endlessly checking and replacing files, I cheered up all day after spontaneously imagining myself crouched down near the bottom file drawer, growling and snapping at the legs of all the people walking by.

I believe almost any workplace can be better if we find our own intrinsic motivation, with or without institutional support. And it is definitely time to take fun far more seriously as a source of satisfaction, achievement, and harmony at work.

From Lorraine Segal's Conflict Remedy Blog

     Even before watching the bipartisan healthcare summit on February 25th, I began to think about how I would mediate the divide between the Obama/Reid/Pelosi reform proposal and the position staked out by the Rupublican leadership.  Without knowing it, I was not alone in imagining a mediated solution to this conflict. Mediator Christopher Annunziata wrote in his CKA Mediation and Arbitration Blog that If Anyone Needs a Mediator, It's These People:

"Both sides need to move from their entrenched positions and discuss real options, not just talking points prepared by pointy headed people in Ivory Towers or tucked inside the Beltway.  Having a mediator involved would be very useful."

     A week later, Mediator Lee Jay Berman posted at Eye On Conflict that Real Political Reform Requires Adding a Neutral To the Mix:

"What makes mediation work is the introduction of a neutral third party. Having an unbiased person at the table can bring big picture perspective into the room when all others are mired in the fog of their power games and can't or won't see another approach...A real neutral, who wouldn't be a politician campaigning for reelection, would turn off the cameras, close the door, and encourage everyone to disclose his or her needs, pressures and underlying interests in the privacy and confidentiality of the mediation process."

     Leaving aside all of the ways in which the healthcare reform debate does not resemble the setting required for effective mediation, I began to imagine what I would do if thrust into a room with a commitment from both sides to mediate in good faith.  Having reviewed the parties' respective positions on numerous, individual proposals for reform, I first thought that there must be a way to parse and compromise among these proposals to reach a mutually acceptable outcome. But the more I thought about it, the clearer it became that such an effort would fail. I had an intuitive sense of why it would fail, but I struggled to explain that result in terms familiar to traditional mediation theory. In fact, I started a blog post on this subject, but put it aside, unfinished.

     Shortly after that, I read a description of the Frank Sander Lecture to be given by Professor Lawrence Susskind as the opening plenary of the ABA Dispute Resolution Section's Annual Spring Conference on April 8th: "Values and Identity Conflicts: Proposing a New Dispute Resolution Doctrine." The summary, which appears in the ABA Section of Dispute Resolution's February Just Resolutions Enews (members only), turned on the light bulb in my head.

     As the description of Professor Susskind's lecture puts it:

"Sometimes...disputes are more about values and identities than about interests; when this happens, traditional mediation tactics may not work."

                                                 *  *  *

 "We define values-based disputes as those in which the parties' values and identities are so important to the dispute that they interfere with the parties' ability to settle interest-based issues, or in more severe circumstances, even to proceed with the process of dispute resolution.

                                     *   *  *

Values-based disputes, thus, present special challenges for a mediator.  These include: the usual interest -based techniques may lead to superficial agreements that do not really satisfy the parties' most important concerns (and, thus, may not be durable). This is especially likely when parties conceal their values and identities and initially act as if disputes are really about interests" (emphasis added).

     This is exactly the problem in the healthcare reform debate. For one side, the values associated with providing high quality healthcare insurance coverage to everyone in  America are central to that party's identity, and transcend all of the policy details and budgetary considerations that might be viewed as "interests." For the other side, the values associated with maintaining individual responsibility and promoting smaller government are paramount.

     To really address these differences in values, Democrats would have to acknowledge that, in the end, it doesn't matter how much their healthcare reform will cost, because in their view it assures a fundamental right, and the country will just have to figure out how to pay for it somehow, someday. Not a message suitable for anyone seeking reelection in the current environment. Similarly, Republicans would have to acknowledge that it would not be a bad result if millions of people had no prospect of enjoying high quality healthcare insurance coverage, and instead had to rely on the "safety net" of Medicaid, charity care, and hospital emergency rooms until they could work their way out if it. No great sound bites to campaign on there, either. This is why the proponents on both sides of this public debate speak only in terms of the regulatory nuts and bolts, dollars and cents and parliamentary machinations that continue to make our heads spin.

     I don't know how Professor Susskind's lecture will suggest the mediator should approach this dispute. My guess is that after getting the parties to acknowledge their core values, the mediator would need to facilitate a discussion in which each side accepts those aspects of the other's values that it can agree with, and then builds upon those shared beliefs. Even when values are not shared, each side can be urged to at least respect the other's values, and adopt a willingness to permit the other side to pursue those values in fashioning a mutual resolution to the conflict. I know this probably will not happen in Washington, but the thought process is instructive, and you never know who might be listening to Professor Susskind on April 8th.

From Rich Webb's Healthcare Neutral ADR Blog.

In California, March 14-20 is a momentous occasion for mediators. The California courts, along with the state Judicial Council and the State Bar of California, adopted standing resolutions last March setting aside the third week of March each year to celebrate mediation. How do we celebrate Mediation Week? With good champagne and dancing? Maybe. In this case, however, we will do what courts and bar associations do well – we have events and conferences!

“Mediation programs offer the public an important alternative to resolving disputes outside the traditional adjudication system,” stated Chief Justice Ronald M. George, chair of the Judicial Council. “Mediation Week is an opportune occasion to educate the public about the availability and benefits of mediation programs, and to recognize the people who make those programs successful.”

The reasons mediation should be celebrated are too numerous to mention here, but at events throughout the state this week judges, lawyers, mediators, administrators, businesspeople and the general public are ensuring most of those reasons are acknowledged. Below are two such events at which I will participate:

On Wednesday, March 17, Kern County is launching its new court-annexed mediation program with a day-long conference open to the general public. The Kern County Superior Court, Kern County Bar Association and the county Better Business Bureau have brought in the American Institute of Mediation to coordinate the free public program targeted to the judges, attorneys, business leaders and general public called “Maximize Your Mediations!“. This dynamic and interactive program will feature my keynote speech “Why Mediate,” after which a series of 45-minute panels led by area lawyers and mediators will discuss and explain various mediation aspects such as confidentiality and creative solutions. The audience is encouraged to ask questions. Featured speakers include Santa Barbara Superior Court Judge Frank Ochoa and noted peacemaker Doug Noll. Thanks to Kelly Lazerson, the court’s ADR Coordinator for bringing this program together. The day ends with a mixer at the Bell Tower Club, downtown Bakersfield. Maybe that’s when we’ll have the champagne?

On Friday, March 19, Orange County mediators and the Orange County Bar Association’s Alternative Dispute Resolution Section host “OC Mediators Odyssey 2010“. The event begins with keynote speaker Orange County Superior Court Presiding Judge Kim G. Dunning, who will explain the “State of the Orange County Superior Court and Mediation’s Positive Effect on the Local Court System and our Orange County Community.” I will deliver the luncheon keynote, “The New, Invisible Cross Cultural Conflict,” a commentary about how all disputes are cross-cultural, even when the people may look the same. Other workshop presenters that day include Vickie Pynchon, Jan Schau, Mari Frank, Wendy Kramer, Debra Dupree, Sam Konugres, and Rosemarie McElhaney. This event would not have been possible without Therese Gray’s strong leadership.

For more information about times and locations, click on the links to the events’ web pages. And remember, let’s celebrate mediation all week!

From Lee Jay Bermans'Eye On Conflict Blog

It’s funny how the books we read when we are young stick with us. One such book for me was Robert Heinlein’s Stranger in a Strange Land, a science fiction story about a man, raised by Martians, who returns one day to Earth, and the clash of cultures and values that inevitably results.

What I recall most vividly were the Fair Witnesses, the licensed professionals that Heinlein invents for this book. Fair Witnesses receive extensive training in careful, impartial observation and assiduously avoid assumptions when called upon to provide their services. In one memorable scene, one Fair Witness, Anne, demonstrates her unique skill to two other characters, Jubal and Jill. Jubal asks Anne, “That house on the hilltop — can you see what color they’ve painted it?” Anne replies, “It’s white on this side.”

Jubal explains to Jill,

You see? It doesn’t occur to Anne to infer that the other side is white, too. All the King’s horses couldn’t force her to commit herself…unless she went there and looked–and even then she wouldn’t assume that it stayed white after she left.

I never forgot what the Fair Witness said: “It’s white on this side.” It’s unlikely that any of us is that precise or discerning when called upon to recount an incident or describe an object or problem.

Imagine the house on the hilltop. Now picture two people, each of whom stands facing a different side of the house, one person at the back, one at the front. Based on what they are able to see, front or back, each draws conclusions about the entire house – what color it is painted, what materials it is constructed of, whether repairs may be needed. But until each has left his original position and walked around the house, inspecting it from all sides, those conclusions remain suspect, based on incomplete data.

In teaching negotiation and mediation, I often discuss the scene from Heinlein’s book after administering an uncritical inference test known as “The Cash Register Exercise“. This exercise highlights the very human tendency to quickly fill in the gaps when information is missing and to draw assumptions about what we don’t know from what we do. (Click here to download the exercise and answer key in PDF.)

For those negotiating, information is indeed power. Examining issues from different angles can protect negotiators from bad deals or from missed opportunities.

For new mediators, the exercise and Heinlein’s story serve as a salutary reminder that our own assumptions can limit our effectiveness at the table. Cognitive error may blinker us, hampering us from helping those locked in conflict arrive at a more expansive understanding of the problems they face. The other lesson, too, is an obvious one: mediation offers fresh ways of looking at issues – from all sides, not just one, inviting parties to step away from their side of the house to see it in its entirety.

Seeing the house from all sides allows us to test or transcend our assumptions. Stepping away to gain a different view doesn’t mean giving up what you believe or need. With accurate and complete information, our conclusions can rest on surer ground. And it might even change our minds along with our vantage points.

From Mediation Channel

Yes, Virginia, lawyers do "win" mediated settlement negotiations every work day.  They do so by:

1. their reputation for success at trial;
2. their ability to choose the right moment to first discuss settlement;
3. their ability to "control" their team and their client ("control" being a legal term for good client relations arising from top notch client communication skills);
4. their negotiation skill set - both in terms of long-term strategy and "at the table" tactics;
5. their persuasive skill set - both with opposing counsel and with the mediator;
6. their ability to conduct a risk-benefit analysis that approximates the true likelihood of their probable success at trial;
7. their determination to make aggressive but reasonable first offers;
8. their possession of and willingness to stick to a set of flexible "bottom lines" that give them sufficient room to "horse trade" and "hang the meat low enough for the dog to smell it;
9. their ability to bring the right people to the table at the right time; and,
10. their ability to walk away without dramatics if the other side is unwilling to negotiate in the realm of reality.

Some of these skills are in all litigators' arsenals.  Where most litigators are the weakest is in the negotiation of settlements.  I know it not only because it was my greatest area of weakness ("I'm paid to win not to settle") but because I see it evidenced in mediation when attorneys bargain half the day away in the useless strato- and nano-spheres.

Here are two new resources you should have at hand every working day.  "Having blog resources at hand," by the way, means having a google or other news reader to send you RSS feeds. 

Decision Tree Analysis - the Decision Tree Analysis Blog by PaperChace.  There's a ten-day free trial of PaperChace's decision tree analysis software for mediators, a free trial I'll take advantage of once the $^%@# book is finished (any day now, really).  Laywers love numbers in the way only people who don't understand them can.  I've had cases settle promptly as soon as everyone has put themselves to the task of making numeric estimates of their chances of success on the merits at any given stage of the litigation.  For making the uncertain certain and depressing overly optimistic client expectations there's nothing quite like numbers.  Do check it out.

There's another mediation blog to read as well, but not simply "yet another" blog by yet another mediator.  This is Lee Jay Berman, one of the best and busiest mediators in town, the teacher of thousands in Pepperdine's internationally known and respected "Mediating the Litigated Case" and President of his own mediation think-tank and training station - the American Institute of Mediation.

The blog, Eye on Conflict, will deliver to you free of charge the wisdom, education and training you'd otherwise pay thousands of dollars for.  Listen, I spent two full years at the Straus Institute earning my LL.M in dispute resolution and every time I talk to Lee Jay he tells me something that improves my ability to help lawyers negotiate settlement 100%.  Today Lee Jay mourns the passing of a giant in our field - Richard Millen.  As you read Lee Jay's tribute, you come to understand just how deeply embedded he and his vision are in mediation theory and practice in Southern California.

Put these two dynamite resources in your news reader and be as good a settlement negotiator as you are a litigator and trial attorney.

From Settle It Now Negotiation Blog

One month ago, we started our health care conflict resolution series (see Part I, Part II, Part III, and Part IV) focusing on the Roger Fisher, William Ury Getting to YES principled negotiation method involving:

1. Separating the people from the problem.
2. Focusing on interests, not positions.
3. Generating a variety of possibilities before deciding what to do.
4. Insisting that the result be based on some objective standard.

Our final post in this series focuses on “using objective criteria.” In almost any negotiation, no matter how many options are generated to “split the pie,” there is still going to be a conflict of interests.

As seen in our previous posts, the physician wants to continue his vacation and the nurse on the unit wants him to sign his verbal orders per hospital policy, the radiology director wants to decrease patient complaints and the technician wants to be heard so he can be part of the solution, the physician wants to sell his practice for a high price and the hospital wants to purchase it for a low price, the ED manager wants housekeeping to help with the cleaning and housekeeping wants to work within its budgeted number of staff.

In each situation, there are objective criteria that can be used to decrease the likelihood that the negotiation will become just a contest of wills and the ongoing relationship can be saved. Objective standards allow both parties to commit to reaching a solution based on principle, not pressure.

In our examples, objective criteria could be hospital policy, regulatory standards, industry standards, standards used by local hospitals or physician groups or budgetary constraints. As the parties begin the process of identifying objective criteria, they can:

1. Jointly search for reasonable criteria.
2. Be open to the most appropriate standards and how they can be applied.
3. Never yield to pressure from the other party, but defer to objective standards.

Pressure can take many forms: bribes, threats, manipulative appeals to trust or a simple refusal to back down. The principled response in each of these situations is the same: invite the other party to state their reasoning, suggest objective criteria that may apply and finally, refuse to budge except on the basis of objective criteria.

This is the final post in our series on using the principled negotiation method in health care conflict. Look for future posts on Disputing on utilizing proven conflict resolution techniques specifically in health care.

We invite your comments on this post and any suggestions for upcoming posts.

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

I’ve got four business books on my reading pile for March. Here’s what I’m reading and why:

1. Switch: How to Change Things When Change Is Hardby Chip Heath and Dan Heath. After consuming the Heath brothers’ first endeavor, Made to Stick: Why Some Ideas Survive and Others Die, I’d read anything by them. They have a knack for taking big ideas and making them understandable in bite-sized chunks, and for bridging ideas and implementation. I’m hearing good things about Switch and since the center of a mediator’s universe is helping parties change the conflict they face, I know this one’s going to end up full of sticky notes for later reference.
2. Trust Agents: Using the Web to Build Influence, Improve Reputation, and Earn Trustby Chris Brogan and Julien Smith. This will be a re-read. The first time through was for the sheer pleasure of spending time with a game-changing book by two social media experts I highly respect. I’m using the book as one of the required texts in my spring term ADR marketing course for grad students in Lipscomb University’s Institute for Conflict Management, so the second read will be a careful digestion of the ideas and anticipation of helping ADR professionals bring them to life.
3. Blue Ocean Strategy: How to Create Uncontested Market Space and Make Competition Irrelevant by W. Chan Kim and Renée Mauborgne. The idea behind Blue Ocean Strategy grabbed my attention because it meshes with what I believe about good marketing: Instead of hanging out in the bloody “red ocean” of rivals fighting over market share, companies should create “blue oceans” of uncontested market space ripe for growth.
4. Inbound Marketing: Get Found Using Google, Social Media, and Blogs (The New Rules of Social Media) by Brian Halligan and Dharmesh Shah. This one looks like an online marketing primer and, thumbing through it, I’m guessing it’ll be a good one to recommend to mediators new to social media and online marketing. Halligan and Shah make a similar case about outdated (“outbound”) marketing as I made in my book, so if you’ve read mine, this one looks to be a good follow-up.

What’s on your reading list? Share in the comments section at the foot of this article’s page!

From the Mediator Tech blog of Tammy Lenski.

Although the article may have some contradictions, I suggest that you read "Can our brains help us solve conflicts?" (BBC News Magazine).

An example of a possible contradiction is when Baroness Susan Greenfield is quoted as saying:

Later in the article, her co-speaker lawyer and mediator Jeremy Lack was quoted about the environment in which US and Soviet representatives negotiated.

The woods are not bland. But, if the trees facilitated communication, the walk among them is likely a good example of Attention Restoration Theory (ART). (My past posts on ART: here and here.) One dispute resolution environment is not going to be the best fit for all clients; this is another instance of one size not fitting all.

Before I sign off so you can read the article, let me point out one study that Lady Greenfield mentions, although not specifically. I recognized which research she was describing because I have long thought the study is probably an indication (yes, I know I am extrapolating) that we should be teaching our clients about their brains.

Lady Greenfield says that simply telling children about the brain's plasticity - proving their ability to learn - can drastically improve their educational performance.

I think (and have only my experience to back this up) that telling clients about their brain's (and mind's) ability to resolve conflict, and about the obstacles the brain throws up to resolution, will improve resolution "performance." Here is the study [pdf] to which I believe Lady Greenfield is referring.

From Stephanie West Allen's blog on Neuroscience and conflict resolution.

In a world of alternative fees, law firm convergence, the ACC Value Challenge and more, what does the client really want? Is it lower fees, predictable expenses, more “value” for the company’s legal dollar, or something else? What’s the best way for a law firm to respond? It turns out that clients are eager to share the answers to all these questions — all you have to do is ask.

A few months ago the lawyers at DrinkerBiddle did just that — they asked. The firm invited a few of us with real experience as clients to the firm’s partner retreat to share our perspectives on client service. They got what they asked for.

The Question Outside Counsel Don’t Ask Often Enough

As soon as we began our talk it became clear that I wasn’t the only one who had thought about the law firm/client relationship before we got there. One of my co-panelists, P.H. Glatfelter Company’s GC Thom Jackson, started by sharing a simple question that outside counsel apparently don’t ask him often enough:

What is an acceptable outcome in this matter?

I have shared Thom’s insight with a few lawyers, both in-house and outside, and I’ve only gotten two responses. Outside counsel tell me “I always ask that question,” and their clients tell me “[m]y lawyers rarely ask that question.” Like it or not, there’s a disconnect here. How can we avoid it? As Thom’s question reminds us, and as we discussed in Settlement Advice: Avoid the Assembly Line, the best way to learn what your clients want is to ask.

10 More Questions Outside Counsel Should Ask (But Don’t)

Apparently an overachiever, Thom came to Philadelphia with a written list of 10 more questions outside counsel should ask the GCs they work with. Thom’s questions are quoted below, with his permission:

1. Can you help me better understand your Company’s budgeting process, its timing, and the Legal cost center?
2. Are you a fan of alternative fee arrangements, blended or discounted rates — all of which introduce some degree of expense predictability and risk sharing — or are you more concerned with a lawyer’s demonstrated ability to be efficient and knowledgeable and provide added value?
3. In the case of an RFP, what would cause the Company to solicit an RFP? What value does the Company realize in that process?
4. If the client is a public company, what has the Company reserved for this matter and what is the rationale for that reserve amount? Does the Company reserve for legal fees? For SEC reporting purposes, what amount is considered “material” for the Company?
5. Give me some feedback on whether our firm has done a good job for the Company. Are we thought of as a true business partner to the Company?
6. When was the last time you brought outside counsel in to brief the Board or senior management on a risk management, loss exposure or legal compliance issue? How was that received?
7. In which areas do you expect to spend the greatest portion of your outside legal spend over the next 12 to 18 months?
8. In the case of a litigated matter, on the continuum between winning and losing, what is considered acceptable? Is there a possibility for success short of complete victory? Prevailing without success? Not prevailing but not losing?
9. What can the firm do to help the Company and [its General Counsel] be successful? What are the Company’s and your aspirations?
10. What do you see as the “next big issue” that your industry and your company will face? What risks or opportunities might that create for us both?

To be clear, this blog isn’t necessarily about customer service — Patrick J. Lamb at In Search of Perfect Client Service and Dan Hull at What About Paris? have that more than covered. But when I saw Thom’s questions, I wanted to make sure that more lawyers than just DrinkerBiddle got the opportunity to ask them. While only a few tie directly to the settlement process, don’t discount the rest. They’ll all give you great insight into your client and what it needs — and that can help you in your next negotiation and beyond.

If you’re an outside counsel, ask your next client a few of these questions. You’ll be glad you did.

From John DeGroote's Settlement Perspectives

Pink Floyd is suing its former record label EMI over how royalties are calculated on internet sales. Among other things, the band is contesting whether its 1999 contract allows sales of individual tracks, as EMI contends, or mandates only complete album sales, which is how Pink Floyd interprets the contract. “When Pink Floyd’s latest contract was crafted in 1999, iTunes didn’t even exist,” EMI attorney Elizabeth Jones sums up the label’s argument. “Pink Floyd, EMI Brawl Over iTunes Royalties”.

Almost all contracts are ambiguous, and parties whose incentives cause them to interpret contract terms in their own favor will disagree about almost any contract. Even the greatest transactional attorneys in the world can’t account for every contingency or every evolution of technology, biology or ecology. This is why courts look at the intent of the contract.

Mediators bring disputing parties back to the contract’s original intent. Really good mediators can bring parties all the way back to their relationship at the time of the agreement and the reasons behind their decision to do business together. It’s not unlike reminding a divorcing couple about their courtship and their wedding to allow them to remember they didn’t always feel animosity toward each other.

In 1999, EMI no doubt courted Pink Floyd for its business. Pink Floyd signed with EMI, even though the band likely had its pick of record label suitors. Both of them would do well to remember their original motives and intentions that drove their choices. In that light, they can view the disputed agreement (I find it ironic that people often fight over something called an “agreement”) with a less extreme interpretation, and each other as something less than the devil incarnate.

Ken Cloke wrote in his book Conflict Revolution that most people have to reduce the other to evil to sustain a fight at the high conflict or heavy litigation level. Revisiting intent surrounding the original agreement can be a step toward humanizing the conflict.

In reality, these two entities (they are both businesses, after all) will necessarily have a long-term relationship for as long as EMI owns the Pink Floyd catalog. What that means from a negotiation standpoint is that they can remain in a competitive state, they can settle the lawsuit with a compromise where each walks away still angry because they are anchored to their loss, or they can mediate collaboratively to a satisfactory resolution for both parties, thereby preserving their relationship.

Successful mediation in this case will require three elements:

1.) Good lawyers capable of seeing the lawsuit as more than right or wrong litigation. With all due respect to strict litigators, a creative deal-making lawyer at the mediation table is often helpful because transactional lawyers typically view negotiation very differently than a straight trial lawyer;

2.) The right parties in the room. We mediators are always making noise about why having all decision-makers in the room is important. To have any kind of creative discussions, it’s required.

3.) A mediator who can steer the discussion (often repeatedly) from destruction to a constructive business meeting where the parties explore all options.

For example, options in the Pink Floyd/EMI conflict could include exploring Pink Floyd buying back its catalog or allowing single-sales from all albums except the two top sellers, The Dark Side of the Moon and The Wall. A monetary settlement amount could be funded with something other than cash, such as EMI stock, which would give Pink Floyd a greater stake in the label’s success and direction. These conversations and other brainstorming around these issues can only take place when the table is set in a way that allows them to flourish.

Most settlement discussions in similar cases start with a sky-high demand and a nuisance-value offer, if any. Where it goes from there depends on the lawyers and the mediator. But contract disputes have the potential of becoming much more than just a compromise around the dollars.

Pink Floyd’s lawyer wants a finding determining what the contract says. If every contract in the industry was written the same and a court ruling would set precedent, perhaps litigation is necessary. But in the case of this unique contract, I submit that it’s not a verdict that is needed as much as a few creative minds.

From Lee Jay Bermans'Eye On Conflict Blog

When I posted Negotiating Gender:  Why So Few Women Neutrals? I had not yet found a source for the statistical representation of women neutrals on the American Arbitration Association Panel.  I've now located an article on the AAA website from December 18, 2006  (here) stating that women then made up 13% of AAA's national roster of neutrals. 

As I noted in that post, diversity among private neutrals is extremely important as more and more litigation is being diverted to arbitration, particularly employment litigation in which allegations of gender discrimination are not (I believe) uncommon (I have no statistics on this either and ask that anyone who does to please send them along). 

Neither the public nor the private justice systems can deliver procedural justice in the absence of hearing officers that fairly represent the people and business entities being judged. As of May 2009, 212 full-time federal judges were women, more than a quarter of the federal judiciary.

The state judiciary is more representative of the population on which it sits in judgment.  Nearly a third of all state supreme court justices are women and in 22 out of 53 supreme courts, women make up at least 40% of the bench.   

The state and federal court figures above are all from a 2009 article, Diversity on the Bench (here).Gender diversity in the state trial courts also appears to hover around 20-30% female as revealed by a recent study on Racial and Gender Diversity in State Courts with outliers in the States you'd expect. A list of all 50 states after the jump.

From Settle It Now Negotiation Blog

The Sunday magazine of the February 28, 2010 New York Times contains an interesting article entitled “Depression’s Upside” by Jonah Lehrer. Mr. Lehrer is the author of How We Decide which is a great book and is the subject of my January 15, 2010 blog.

As Mr. Lehrer explains, it seems that depression may be a good thing, after all. While granted, depression has been classified as a mental illness which causes its victim either to stop eating or to start eating too much, lose his/her inclination for sex, have difficulty sleeping and in general be very tired even though he/she is doing less and less, its “rumination” feature is actually beneficial.

According to evolutionary psychiatrist, Andy Thompson (at the University of Virginia) and Paul Andrews, an evolutionary psychologist at Virginia Commonwealth University, the “thought process” of rumination defines this order. Those who are depressed “fixate on their flaws and problems, thus extending their negative moods” or “chew over” (i.e. ruminate) their thoughts continuously. (Id. at 2). Because rumination takes control of a person’s stream of consciousness, that person will perform poorly on “tests for memory and executive function, especially when the task involves lots of information.” (Id. at 3).

But, perhaps there is a purpose to this rumination. This is what Thompson and Andrews wanted to determine. As evolutionary psychiatrists and psychologists, they believed that the mind is actually “a fine-tuned machine that is not prone to pointless programming bugs.” Thus, while rumination is a response to a specific psychological blow, such as a death, a job layoff or a divorce, they thought that perhaps some good comes out of rumination or that there is, indeed, a net mental benefit from rumination. (Id.) What they found is that it “leads to an extremely analytical style of thinking.” (Id. at 4):

“. . .rumination is largely rooted in working memory, a kind of mental scratchpad that allows us to “work” with all the information stuck in consciousness. When people rely on working memory. . . – they tend to think in a more deliberate fashion, breaking down their complex problems into their simpler parts.” (Id.)

Because the deliberative thought process is “slow, tiresome and prone to distraction,” our brains grow tired very quickly, and we give up. But the state of depression with its rumination feature allows us to discard all distractions – like eating, sex and sleep – and focus on solving a difficult, if not mind boggling, problems. In short, “wisdom isn’t cheap, and we pay for it with pain.” (Id.)

As Mr. Lehrer points out, obviously, there are many who disagree with this theory that, from an evolutionary perspective, depression is a good thing because it causes us to avoid distractions and focus on solving complex problems.

But, this theory led me to “ruminate” whether depression is a good or bad thing in the context of resolving disputes. In many of my mediations, I have witnessed parties go through the five stages of grief: denial, bargaining, anger, depression and acceptance (On Death & Dying by Elizabeth Kubler-Ross) and soon realized that the parties will not reach a resolution until they reach “acceptance.” But to arrive at that stage, they must pass through the “depression” stage.

This article on depression or the fourth-stage – explains that there is a lot more to “depression” than the “I don’t care anymore about anything” attitude that is its hallmark. It actually allows a person to focus on the issue, analyze it and come up with a solution that leads her to the next and final stage: acceptance.

So, while superficially, depression seems to militate against resolving disputes, its rumination feature actually enhances the process, if not the outcome. I guess it is somewhat of an oxymoron.

. . .Just something to think about.

From the Blog of Phyllis G. Pollack.

Now you know the disappointing statistics.  As women have populated the Bench, justice has become more privatized, lessening the benefits of diversity to those whose disputes lead them to Court; to arbitration panels and associations; or, to mediation panels.

(make of it what you will, but I was definitely a boy-toy girl, i.e., trucks, cap guns, baseball gear and the like; no dolls - yeeccchhhhhh)

Here's the inside scoop - all of it anonymous - and gathered from people in a position to know, i.e., people who manage ADR panels, both in court-annexed programs and in the private sector.  These are observations from the national scene and no one should conclude that they refer to practice in Southern California or to panels with which I'm affiliated - I know a lot of people around the country because I blog and am pretty deeply wired into ADR practices and procedures both nationally and internationally.

1. even on pro bono panels, particularly in the more commercially oriented federal courts, panel users rarely choose women;
2. women are so seldom chosen as arbitrators that at least one urban arbitration panel stopped putting women on a local roster until the decision to "let the market choose" came to the attention of the organization's higher powers who likely saw this for what it was - intentional gender discrimination;
3. because "women don't refer" cases to private ADR panels, women's legal organizations are often excluded from those panels' marketing efforts; and,
4. women are leaving prestigious ADR panels to commence judicial careers or return to the bench because they cannot make a decent living in the commercial ADR sector.

I'm a Lawyer Who Happens to Also Be a Woman; Not a "Woman Lawyer"

I've avoided this topic because I don't like whining about circumstances that could possibly hinder my own career.  I'm not used to whining.  I'm used to working.  And as I've said many many times before, I did not experience gender discrimination as an inhibition to career advancement in commercial litigation.  During the early years of my practice (say, 1980 to 1985) the response to the flood of women entering the legal market was:  (1) we were explicitly told that we had to prove our mettle by taking the "heat" in litigation's "kitchen" - we accepted this challenge and met it; and, (2) we were supported by our law firms in response to biases in the market. 

(image right:  we were trying to figure out who to be)

How supported? 

Like this.

Client:  I don't want Vickie Pynchon assigned to this case (1983)

Senior Partner:  Why?

Client:  Frankly, I don't want a woman representing my interests in Court or any other venue.  I don't think they're tough enough and I don't think it will give my opponent the right impression of the power I want to project.

Senior Partner:  If you don't want Vickie on the case, you'll have to find another law firm because she's the best associate I've got.

As late as 1987, clients in an antitrust action told the senior partner on a case on which I was the senior associate that they didn't want me to take any of the significant depositions.  At first, the senior partner agreed.  Time passed.  He was a rain maker.  I was a worker.  I knew the facts far, far better than he did.  Critical depositions were scheduled.  The partner continued to assure the clients that he would take those depositions.  Then he "fell ill."  I was pinch hitter

The clients came, suspicious and angry.  They passed notes among themselves and some to me with suggested lines of questioning.  Eventually, the notes got crossed and I received one of the client-only communications. 

It said, "oh my god!! she's great!!"

I'm not blowing my own horn here.  Here's my experience with those few clients (half a dozen in a twenty-five year practice) who affirmatively stated a gender-bias to the "senior" male members of my law firm/s -  they judged my performance as simply brilliant because they had such low expectations.  Most women use this to their advantage, as do most litigators.  There's no better advantage to have in litigation than the low expectations of opposing counsel and there's no better way to impress prejudiced clients than to perform competently in their presence.

So what to do about gender bias in ADR?  Should we "listen to the market" and provide them with what "we" (think) they want?  Or should we respond to implicit bias in the profession by flooding arbitration and mediation panels with competent women (we do exist in sufficient numbers to easily accomplish this goal)?  As I've said to more than one arbitration panel executive "implicit bias will evaporate when the lists of arbitrators sent to the parties by the organization include five women and one man instead of six men or five men and one woman."

From Settle It Now Negotiation Blog

Yesterday I pointed readers to an electrifying series by commercial mediator and arbitrator, Victoria Pynchon, which rips the lid off the ADR profession’s secret and unacknowledged shame: the absence of women and minorities from the prestigious ADR panels:

• “Negotiating Prejudice at U.C. San Diego“
• “Negotiating Gender: Why So Few Women Neutrals?“
• “Update on Gender Diversity in the Judiciary and in ADR“

Not content to merely name the problem, my colleague today proposes solutions in “Combatting Implicit Gender Bias in ADR“.

Turning to Americans for American Values for ideas, Pynchon identifies the cure, a detailed action plan, which you can read in her post. It’s going to take strong medicine to cure what ails us.

It takes guts to do what she Pynchon has done. She warns readers “that the topic of implicit gender bias is ‘toxic’”,with the potential of poisoning her market against her and costing her opportunities. Her post stands as a challenge to other women – and men, too – in ADR to break the silence and speak out. In solidarity, I stand shoulder to shoulder with my colleague on the West Coast. I issue a call to arms of my own:

It’s time for ADR membership organizations to make the vanquishing of implicit bias a local and national priority – and actually do something about it. The ABA Section on Dispute Resolution has a diversity committee, but it has apparently posted nothing new on its site in two years. This is also a committee limited in size with membership by appointment only. How about opening it up to those of us out here hungry for change and ready to act? The Association for Conflict Resolution has a diversity committee as well – what is it doing right now to actively battle implicit bias and improve access to business opportunities for all ADR professionals? What about the numerous regional and state associations for ADR professionals? NE-ACR? SCMA? TAM? This problem affects your membership – what will you do to make a difference? State bar associations with ADR committees, where are you on this? Exert your influence. And let the rest of know what needs to be done so we can roll up our sleeves and get to work.

There’s been time enough to talk. It’s time at last to do.

From Mediation Channel

Conflict in health care differs from conflict in other arenas because it can result in significant negative outcomes – in some cases, life or death.

Part IV in our series on applying conflict resolution skills in the health care setting follows the Principled Negotiation techniques described by Roger Fisher and William Ury in Getting to Yes with a focus on “inventing options for mutual gain”. Part I in the series can be viewed (here), Part II, (here) and Part III (here).

Why do we want to take the time to invent options when we disagree? Often conflict appears to have only one solution – split the pie in half — and people usually believe they know the correct answer – their answer is the right answer.

Four major obstacles typically inhibit the invention of more than one option for consideration in a negotiation:

1. Premature judgment
2. Searching for a single answer
3. The assumption of a fixed pie
4. Thinking that solving the problem is “the other party’s problem”

We can imagine a typical health care conflict between the Emergency Department (ED) Manager and the Manager of Environmental Services (Housekeeping) in a hospital could look like this:

Emergency Department (ED) Manager: I am glad you agreed to talk with me about the housekeeping problem we have had in the ED. I think you know that I am short staffed right now and my staff cannot keep up with the minor cleaning after a patient discharge we have been doing up to now. I need your staff to take over all of the cleaning in the department. We have to take care of the sickest, most urgent patients in the hospital.

Manager of Environmental Services: Well, I understand you are busy, but my department hasn’t added any new staff, why do you think we could pick up the slack for your staff?

ED Manager: Well, let’s just split the jobs then, you do half of the work and we will do our best to do the other half of the cleaning.

Manager of Environmental Services: I guess we can try to make that work.

The managers did not “expand the pie” before dividing it – they did not invent options for mutual gain before reaching a solution. Let’s look at some other approaches where the managers take the time to invent creative options:

1. Separate the act of developing options from the act of judging the options – brainstorming is a fairly common exercise where parties produce as many ideas as possible without considering their merit until a complete list is made.
2. Broaden the options rather than looking for a single answer – one example of this is to invent options of different strengths, some weaker options, some stronger options for consideration; another example is to look through the eyes of someone else, for example, look at the problem through the eyes of the patient or a family member, what options would they suggest?
3. Search for options that present opportunity for mutual gain – the secret here is to look for joint gain rather than a winner and a loser by identifying shared interests or dovetailing differing interests.
4. Invent ways to make decisions easy for the other party – a painless choice for the other side that advances your interests is a win-win for both parties.

Let’s try the conversation with the two department managers applying the techniques above.

Emergency Department (ED) Manager: I am glad you agreed to talk with me about the housekeeping problem we have had in the ED. I think you know that I am short staffed right now and my staff cannot keep up with the minor cleaning after a patient discharge we have been doing up to now. We have to take care of the sickest, most urgent patients in the hospital. What do you suggest?

Manager of Environmental Services: That is a problem. I wonder if our departments could split the cost of a temporary staff member to help in the short-term?

Emergency Department (ED) Manager: That’s a thought. What if we spent some time streamlining the cleaning process to make the best use of the staff’s time. Your department must have a lot of ideas you could share with us.

Manager of Environmental Services: We do have some ideas that have worked in other departments that could be applied here as well. Let’s form a group of your staff and my staff to look at how we can work together to solve the problem.

By working together, the two managers invented options that will likely result in even more options for consideration that will benefit the departments, the hospital and ultimately the patients. The key is taking time to explore those options for mutual gain that advance the interests of both parties.

We welcome your comments and invite you to share other examples of conflict in health care.

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

“He’s acting like a child.”

When I’m leading a mediation training, the frustration of new mediators can be downright palpable during some of the more intense roleplays. When we debrief afterward or when I interrupt to check in with a frustrated mediator and find out what’s going on for him, I hear comments like the one above and like these:

“She needs to stop being so (fill in the blank) because she’s getting in her own way…but I can’t get her to!”

“Well, I guess I can see why they ended up in mediation.”

“If I acted that way in front of other people I’d be mortified. He needs a good kick in the keister.”

“Why are they acting so badly and how can I make them stop?”

I remember wrestling with some of the same behavioral challenges when I was first learning 15 years ago. Fortunately, I had my mother, who died when I was in my mid-20s, whispering gently in my ear in those moments. She whispered, as she had when I was a teenager,

Stop judging. Just look for the equal human in front of you.

If you subscribe to my Conflict Zen blog, then you know I believe strongly that the way we think about conflict has a profound influence on the way we respond to it. So it would come as no surprise that I also believe the way mediators think about about conflict, behavior, and resolution profoundly influences the way we work with clients.

Why harsh judgment from the mediator is a problem

Here’s why the thinking reflected in the new-mediator frustrations above gets in the way:

• Clients don’t want or need to be judged by the mediator too. They’re (usually) judged harshly enough by the other party and the mediator has no business adding to it.
• Judging a party harshly focuses your attention on their behavior instead of your own. Big mistake (I’ll say more about that in a moment).
• Harsh judgment slams your mediator’s toolbox shut and leaves you with the temptation to chide outright or act out your chiding in other ways. No party to a mediation needs or wants their junior high school principal in the room.

What should the mediator do instead?

The trick is in changing your thinking, my friends. In flipping the coin of your thoughts, at first consciously, then later as a natural habit of mind.

Remember, no party who’s acting badly got out of bed that morning and thought to himself, “I want to act badly in front of other people today.” They got out of bed in the morning thinking the same thing you did: “I’m going to try to do my best today.”

The great news is that mediators can let go of playing the Respect Police or Client Wrangler. You can stop playing those roles because they’re no fun, can make things worse, and there’s something so much more elegant you can do instead:

Stop judging. Just look for the equal human in front of you.

When the mediator sees the equal human, you see someone whose gotten hijacked and would be so appreciative of a mediator who helps them find their way back to more graceful behavior. When the mediator sees the equal human, you see someone you can assist instead of feel disdain for. When the mediator sees the equal human, you realize that the mediator’s behavior is what needs to change, in order to help the party back to a place of better balance.

And when the mediator sees the equal human in front of them, you automatically start to wonder instead of judge:

What do you think? Let me know in the comments (if you’re reading this in email, click the article title and you’ll be taken to the web page with the comment form near the bottom).

From the Mediator Tech blog of Tammy Lenski.

And they do so in favor of diversity.  See commercial arbitrator and mediator F. Peter Phillips' November 2006 National Law Journal article:  ADR Continental Drift:  It remains a while, male game.  I promised prescriptions for change and here are a few sent to me by Peter Phillips this morning.  Peter was, as I am now, a member of the CPR Diversity Committee.

Once again, based upon my personal experience and that of tens of thousands of other women in commercial legal practice I continue to believe that until we are fairly represented on commercial ADR panels, both arbitration and mediation, we cannot expect significant change.  This may happen as a matter of the natural "aging" process of the field.  The ADR field looks now exactly like the legal field looked to me when I entered it in 1980.  Not surprising given the fact that ADR is historically a "retirement" field.  That is already changing, to beneficial effect.

For the adventuresome, Peter's pro-active recommendations below. I highly recommend, by the way, that you follow Peter's Business Conflict Blog.  It's one of the best out there.

(screen shot of google search for our local legal rag's "top 50 neutrals)

¦ What if the country’s leading law firms—from which so many of our leading mediators and arbitrators emerge—had an incentive to encourage more diverse members of the firm to enter this field?

¦ What if a benchmark survey were conducted to determine how often law firms suggest mediation to their clients; how often mediation is in fact tried; and how often diverse mediators are proposed to clients by outside lawyers and ADR provider organizations?

¦ What if the property casualty insurance industry, as the largest consumer of legal services and of ADR services, conveyed its expectation that the firms that insurers pay for, when they propose mediators and arbitrators, will be expected to propose diverse individuals?

¦ What if influential national ADR organizations combined forces to better reflect their corporate and legal constituents, and meet their customers’ expectations, by sharing information on excellent women and minorities who are not now on their lists, but should be?

¦ What if initiatives were undertaken to encourage particularly promising women, younger people and minorities from firms to attend ADR colloquia, seminars and other events in order to network, learn and advance their visibility and recognition among the ADR community, as well as to contribute diverse views and perspectives?

¦ What if a mentor program were designed and funded, pursuant to which younger female and minority attorneys could “shadow” established mediators and arbitrators (whether or not they are women or minorities) and establish skills and reputations thereby?

¦ What if corporations and law firms intentionally engaged younger mediators who are women and minorities in smaller matters, so that those professionals would gain experience as neutrals and be better positioned for the larger cases?

¦ What if scholarships were established to enable young people to be trained as mediators and arbitrators, with the expectation that a person thus trained would be skilled not only as a neutral, but more generally as a negotiator and client representative in settlement?

¦ What if a very “early pipeline” were begun, and ADR institutions worked with Street Law Inc. (www.streetlaw.com), a national program that trains high school students in legal issues, or a similar organization to provide materials and information for children to become interested in ADR as a profession?

It is perplexing that this one aspect of the legal profession—a field that is otherwise so robust, so progressive and so creative—lags behind so miserably in satisfying client expectations for diverse practitioners. But there is no indication that it must be so. And with diligence, creativity and practical action, it will not long be so.

Here are more diversity resources from CPR.

From Settle It Now Negotiation Blog

The New York Times posted last week an interview with Dr. Howard Brody (pictured left), professor of family medicine and director of the Institute for the Medical Humanities at the University of Texas Medical Branch in Galveston, discussing a proposal for health care reform involving physicians.

Physicians, Dr. Brody says, are not “innocent bystanders” to increasing health care costs but have made little effort to limit future medical costs. In an editorial in The New England Journal of Medicine, he writes “If physicians seized the moral high ground, we just might astonish enough other people to change the entire reform debate for the better.”

The New York Times spoke with Dr. Brody about his “Top Five” solution:

Q. You write that doctors have an ethical responsibility to advocate health care reform. Why?
A. Doctors have two responsibilities. First, they have a moral duty as an individual advocate. A doctor has a responsibility to his or her individual patients to make them healthier and to help them live longer.

But doctors have a second moral duty: they have an obligation to the general public to be prudent stewards of scarce resources. Doctors only get about 10 percent of health care costs in their pockets, but they control about 80 percent. That isn’t our money — it’s someone else’s — and the public has entrusted us to spend it as wisely as possible.

Q. How does your “Top Five” solution work?
A. The basic idea is that each specialty would decide on the top five procedures or diagnostic studies that are done commonly but only really help a small fraction of patients. These are things like arthroscopy for osteoarthritis of the knee or MRI’s and CAT scans, all of which are massively overused, not because they help but because of our enthusiasm regarding high technology.

Once each specialty has gone through the research evidence and decided on its “Top Five,” the respective professional organizations would take a public stand, issuing guidelines and recommendations against overuse of those “Top Five” procedures or studies.

By taking a public stand and making it harder for individual doctors to say, “Oh, I know better,” we could build real momentum for cost containment. And we would ultimately all benefit because we don’t need all that technology. You can still be as healthy without it.

A physician-led effort to determine guidelines and recommendations against overuse of the “Top Five” procedures or studies could have a tremendous impact on curtailing future medical costs. We suggest that the process outlined by Dr. Brody could benefit from applying conflict resolution techniques. For example, we recently posted a Four-step Approach to Problem-solving used by the program for Health Care Negotiation and Conflict Resolution at Harvard. This approach could be applied to the “Top Five” process:

A Four-step Approach to Problem-solving

Four negotiation steps developed by the Program for Health Care Negotiation and Conflict Resolution guide minor and major negotiations in health care. The structured multidimensional problem-solving process is called “Walk in the Woods,” after a famous story in which international negotiators at loggerheads over a nuclear arms treaty went for a walk in the woods near Geneva and discovered common interests that led to new solutions.

Step one: self interests. Each participant articulates his or her view of key problems, issues, and options. They are encouraged to actively listen, question, and interact with one another.

Step two: enlarged interests. The participants reframe their understanding of current problems and possible options with a wider perspective, based on the integrative listening and confidence-building that occurred in step one.

Step three: enlightened interests. The group is ready to engage in innovative thinking and problem-solving, generating ideas and perspectives that had not previously been considered.

Step four: aligned interests. Participants build common ground perspectives, priorities, action items, agreement, or plans for moving forward. Depending on the scope of the intended objectives, at this point they recognize the tangible contributions and opportunities accomplished through the meeting.

We invite your comments on this topic.

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

As I was getting ready for the start of the mediation training I was teaching, one of the participants, just arrived, approached me to tell me to get him a cup of coffee. Despite my power suit and the flip chart markers in my hand, he had mistaken the lead trainer for a member of the support staff.

If you think that this is an isolated incident in the life of an ADR professional who happens to be a woman, think again. Challenge yourself by reading commercial mediator Victoria Pynchon’s gutsy series on gender, race, and diversity in the ADR profession:

“Negotiating Prejudice at U.C. San Diego”

“Negotiating Gender: Why So Few Women Neutrals?”

“Update on Gender Diversity in the Judiciary and in ADR”

Then do as Vickie suggests and take the awareness-raising tests at Project Implicit, an ongoing research project inquiring into the implicit biases that affect our judgment. What associations do you draw about identity, capability, and role?

From Mediation Channel

I received this from a senior in-house attorney (male) at an international Fortune 500 company in response to my posts on gender bias:

international arbitration . . . tends to be dominated by white males with European surnames.  The closed pool presents something of a problem for parties who are not enamored of a scrub-each-others'-back (consciously or unconsciously) form of decision-making.  One way of injecting energy into the process is to apply diversity to the appointment of neutrals, arbitrators or mediators.  It forces us to actively look for the right skills, talent, [and], reputation for the particular dispute.  [W]ithin [my company], where we seek to measure whether we are hiring diverse outside counsel, my own division has been able to claim some diversity credit by appointing women arbitrators.  (and, between you and me, I have to say that we've never been disappointed - the dancing backwards rule always applies.

I am not advocating here for "special treatment" for women neutrals.  I am advocating for the end (or simply the diminishment) of "special treatment" for male neutrals.  Here, the client speaks.  Hiring with diversity in mind forces clients to find the best and most talented person for the job free of the "quid pro quo" burdens of the old boys' network.  "Sorry, Chuck.  That was a great getaway to your country club and I enjoyed the golf, but we've got these stupid diversity goals to meet so I'm afraid I'm not going to be able to reciprocate your many kindnesses by throwing as many cases your way as I used to." /1

Diversity Makes Good Business Sense

If diversity makes good business sense to the Fortune 500, shouldn't it make good client relations to the AmLaw 200?  Consider the following item from CNN (I'll track down the link again soon).  

On Oct. 1, Indra Nooyi takes the helm at PepsiCo (Charts). And with that, the soda and snacks giant becomes the largest U.S. company by market cap to put a woman in charge. .  .  Since 2001, CEO Steve Reinemund has enforced aggressive hiring and promoting rules. Half of all new hires at Pepsi have to be either women or ethnic minorities. (Half!) And managers now earn their bonuses in part by how well they recruit and retain them. Today 25% of Pepsi's managers are women, up from 22% four years ago. Six of its top 12 execs are now women or minorities.

Is Pepsi simply being a good corporate citizen?  Is it putting social concerns above  profits?  Hardly.

The diversity push is part of Pepsi's game plan to better understand the disparate tastes of new consumers as it continues to expand globally. That's probably the new CEO's biggest challenge. But Nooyi--who as Pepsi's CFO led its successful acquisition of Quaker Oats--should be up to the job. The thing that got her hired, after all, wasn't being a woman. It was being a sharp strategist. /2

Women Improve Performance

A study by Roy Adler, a professor at Pepperdine University in Malibu, California, tracked 215 Fortune 500 companies, comparing their financial performance to industry medians. He found that “companies that smash the glass ceiling also enjoy higher profits.” In a recent Harvard Business Review article presenting his findings, Adler showed that “the companies with the highest percentages of female executives delivered earnings far in excess of the median for other large firms in their industries.” The Canadian Conference Board findings support those of Adler. It tracked the financial well being of firms with two or more women on their boards in 1995 to see where they stood six years later. It found that firms with women board members were much more likely than companies with all-male boards to be leaders when ranked by revenue or profit. .  .

From Women on Corporate Boards Makes Good Business Sense.

What might be the cause of the dramatic differences that women on boards make to corporate bottom lines?  Consider the following:

In May of 2002, The Conference Board of Canada published findings of a major study they did of women and corporate boards. These findings suggest a strong link between female numbers on boards and good-governance credentials. The researchers found that 94% of boards with three or more women (compared to 58% of all-male boards) insist on conflict-of-interest guidelines; that more female than male directors pay attention to audit and risk oversight and control; that women, more than men, tend to consider the needs of more categories of stakeholders and; that women, more than men, tend to examine a wider range of management and organizational performance. The findings reveal that 72% of boards with two or more women conduct formal board performance evaluations, while only 49% of all-male boards do; that companies that provide boards of directors with formal, written limits to authority have a greater percentage of women directors than do organizations with no formal limits to authority and; organizations that provide boards of directors with formal orientation programs have a greater percentage of women directors than do organizations with no such program.

Id.

Gentlemen and ladies, start your engines!  The economy needs all of us and it needs all of us right now!

Update:  concluding the recent American Lawyer lead article on substantial recent declines in law firm diversity are the comments of DuPont's and General Mills' GC's:

"Just listen to Roderick Palmore, general counsel of General Mills, Inc., whose 2004 Call to Action set off a major diversity push by U.S. general counsel. "The challenge is that we cannot look at these statistics and these results and sit still," he says. "We're in a dogfight." Adds DuPont's Sager: "I think [firms] ought to be concerned how [a decline in diversity] is perceived at law schools, in the legal community, and most of all, by their clients."

Diversity Scorecard 2010:  One Step Back

__________________

1/  In the "old days," these "kindnesses" included nights out at strip clubs and the occasional retention of a hooker for foreign clients.  No kidding.  And I was told early in my legal career (the late '80s) that I could, if I wished, accompany the client's CEO and the senior partner to the strip club if I wished to be part of this particular "networking" opportunity but I wouldn't be blamed for foregoing it.  I always forewent strip clubs.  I could drink prodigiously with clients but I could not comfortably stick a hundred dollar bill into a stripper's panties.

2/  Note that no one ever says "[t]he thing that got [him] hired, after all, wasn't being a [man].  It was being a sharp strategist."  This article is from 2007, and the journalist must still make it clear that there are competent women out there to do jobs still seen as the domain of men.

From Settle It Now Negotiation Blog

I’ve been active on social networking site Twitter for about a year now. It’s proven to be a good resource for useful links. Last week one of the folks I follow, workshop facilitator Joe Gerstandt, pointed his readers to an article that appeared last November in the Globe and Mail, “Why smart people do dumb things“.

It’s an article on dysrationalia – how hard it is for us to think rationally, despite the intelligence we possess. Dysrationalia leads us to take shortcuts in solving problems, going for what seems the easy or obvious answer instead of working harder to identify the correct one.

This article poses some puzzles for readers to solve, including this one:

Bob is in a bar, looking at Susan. But she is looking at Pablo. Bob is married. Pablo is not.

Is a married person looking at an unmarried person? The answer could be (a) yes, (b) no or (c) cannot be determined.

The correct answer might surprise you. Click here to test yourself on this and the other brain teasers the article challenges readers to match their wits against.

Photo credit: Artem Chernyshevych.

From Mediation Channel

In my book, 112 ways to Succeed In Any Negotiation, I discuss that negotiations happen every day in every aspect of life. I just saw a video on You Tube from the History channel show Pawn Stars where they provide some basic advice on negotiating.

Here is the video:

As you can see from their advice, one of the best things that you can do in negotiations is to be nice to the other side. Although they don’t discuss why you should be nice, there is a lot of science behind simply being nice.

First, being nice to another person (especially in a tough business like Pawn) is a gift to the other person. That person may like you better simply because of that gift.

Second, being nice invokes the principle of liking identified by social scientist Robert Cialdini. People are more likely to do something for you if they like you.

Third, it is critical to establish a good first impression. Studies show that people are more willing to listen to you and to accept your presentation if you make a good first impression.

To learn more about tips in negotiating, try some of the tips in my book, 112 Ways to Succeed in Any Negotiation or Mediation.

From the Mediation Matters Blog of Steve Mehta.

In this podcast, Josh shares an interview with Professor Robert Mnookin about his new book called "Bargaining with the Devil: When to Negotiate, When to Fight"

MP3 File

From Josh Weiss's blog.

Longtime Settlement Perspectives readers know that I’m a big fan of Chip and Dan Heath. Their first book, Made to Stick, inspired posts back and forth with the authors on why you might not want to send a message in negotiation, and the rest of Made to Stick continues to color my view of message “stickiness” — a term the Heath brothers contributed to today’s communication lexicon.

With advance warning from Mitch Joel, I eagerly awaited my copy of the Heath brothers’ new book, Switch: How to Change Things When Change Is Hard. Like Made to Stick, Switch ostensibly has nothing to do with negotiation, but like its predecessor Switch backs into a settlement insight important to all of us.

The Identity Model of Decision Making

As with most concepts, Switch defines the identity model of decision making early on:

In the identity model of decision making, we essentially ask ourselves three questions when we have a decision to make: Who am I? What kind of situation is this? What would someone like me do in this situation? Notice what’s missing: any calculation of costs and benefits.

According to the Heath brothers, “we adopt identities throughout our lives” that help explain economically irrational behavior — we consider ourselves a patriotic citizen or a devout Catholic or a good mother, and these adopted identities drive decisions beyond superficial self interest. A Silicon Valley millionaire might vote against a Republican who would cut her taxes, or an auto worker might vote against a Democrat who would provide him health insurance.

Identities Drive Settlement Decisions

In our last post we discussed how important kitchen table talking points are to the settlement process, but the identity model insight Chip and Dan Heath provide is just as important. I have had cases that wouldn’t settle despite favorable economic terms because the plaintiff inexplicably wanted her “day in court.” It seemed a bit self-righteous at the time, and I didn’t get why a few more dollars couldn’t get the deal done. But I now see the need that a few more dollars didn’t address; in effect our lawsuit opponents may be asking themselves questions like:

• What would a whistleblower do here?
• How can I help stop lawsuit abuse with this settlement? or
  
• How would Ralph Nader react to the defendant’s proposal?

We often wonder what’s driving the other side to hold out in settlement talks, and we have often known it’s more than money, but Switch puts our finger on it. The ordinary citizen becomes a safety advocate in a rollover lawsuit, or an everyday cardholder becomes a consumer advocate when he realizes everyone’s interest was calculated that way.

What You Can Do

I once had a grizzled old defense lawyer tell me:

They say it’s not about the money. That’s BS — it’s always about the money. Eventually you pay a little more and all of a sudden that other stuff they were talking about goes away.

In some cases he may be right, but in every case your opponent’s conduct is driven at least in part by who they think they are. You can either ignore that fact, and pay more if you’re going to settle at all, or you can approach the settlement talks with the other side’s identity in mind. To take it back to Switch, that auto worker isn’t going to change his vote just to get health insurance, but he might support a Democrat for other reasons. In your settlement talks:

• If the other side thinks she is a whistleblower, put some additional compliance measures in your settlement to satisfy her concerns;
• If the other side considers himself a tough negotiator, plan to endure more $2,000 moves today than usual; or
• If the other side wants to “make sure this never happens again,” consider implementing a reasonable process that will ensure “this” actually won’t happen again — and tell the other side at the mediation you’re willing to do so.

The idea here isn’t to come up with a new set of unnecessary concessions. The point here is to consider who the other side thinks he is, and factor that into your overall settlement approach. You’ll be glad you did.

From John DeGroote's Settlement Perspectives

More on Chuck: Chuck Howard has extensive litigation experience in state and federal court in a wide range of matters, including over seventy appeals. His intellectual property litigation experience encompasses copyright, trademark, trade secret, covenant not to compete and patent litigation, including proceedings before the Trademark Trial and Appeal Board. His business and public sector litigation experience includes representation of the State of Connecticut, quasi-public state agencies, municipalities, and business clients in many diverse matters.

From Jeff Thompson's Enjoy Mediation Blog

The collaborative approach to water resource planning has been growing over the past 15 years, especially where urban, agricultural and environmental needs are straining the local supplies. Like many other public water managers, the Sonoma County (California) Water Agency faced a decline in groundwater supply throughout the Sonoma Valley as pumping steadily increased because of growth.

To come up with a plan to manage the problem, the Agency convened a 20-member collaborative Basin Advisory Panel that reflected the diversity of water interests in the region. A professional facilitator from the Center for Collaborative Policy worked with these stakeholders as they shared ideas and negotiated the Sonoma Valley Groundwater Management Plan. The group adopted the plan 2007 and now helps oversee its implementation.

It’s a good example of collaboration, but such efforts take a lot of planning before any meetings are held. The convening agency needs to consult the stakeholders directly to figure out whether they’d be willing to take part, how they thought about the major issues and how they’d like to see the process work.

In ensure objectivity, the Agency put the independent facilitator in charge of a wide-ranging assessment. She met with 30 leaders of the water-related interests for in-depth interviews and then based a series of process recommendations on this rich source of ideas. The report summarized the key stakeholder concerns, supported the use of a collaborative approach and dealt with the overall structure and product of the meetings, communication with the wider public and many other issues.

Once the group itself came together, the members adopted groundrules and reached procedural agreements to ensure that everyone knew what to expect and what their responsibilities were. In this way, the participating water interests became co-creators of the planning effort rather than members passively responding to an invitation to a government-defined process.

This up-front investment of time and resources seems to have been worth it. After producing the plan, the Basin Advisory Panel has kept on meeting to review ongoing implementation. You can find extensive information, including the assessment report and other key documents at the project website.

From John Folk-Williams's blog Cross Collaborate

Here’s an interesting seven minute video from the Nonviolent Communication Blog illustrating parenting with non-violent or compassionate communication skills.

From Arnold W. Zeman's blog

Dale Carnegie once said “Flattery is telling the other person precisely what he thinks about himself.” This statement is probably very telling about human nature in several ways. One way it reflects on people’s wishes and desires is that people like to hear good things about themselves. Think back towards compliments that have been given to you. How did you feel? Now what about with criticisms? No matter the compliment, people appreciate the compliment being given.

There has been substantial research on the issue of compliments and flattery. Previously, research suggested that even false compliments have a good effect on people receiving the compliment.

Well new research reaffirms that principle by proving that flattery – even insincere – works. Researchers ELAINE CHAN AND JAIDEEP SENGUPTA evaluated the effect of insincere flattery on the recipient. But what happens when the recipient of the flattery realizes the ulterior motive of a person? Chan’s research discussed the fact that when prospective consumers are fully aware of a clear ulterior motive underlying the compliment, recipients will discount the flattering comments and correct their otherwise favorable reactions.

Interesting though are the additional discoveries made by Chan in this field. First, Chan discovered that even when targets correct for insincere flattery, that flattery may still continue to exert subtle, insidious effects on the recipients. In other words, even though the person receiving the compliment realizes that the compliment may be insincere, there still remains a positive effect on the recipient. The research also shows that the positive influence of flattery on the recipient disappears when the recipient’s self-esteem is bolstered before being flattered. This supports the premise that the compliment’s positive reaction is due to a basic need for self-enhancement.

Here’s what the researchers say is the effect of this research in the real world:

In addition to their theoretical value, these findings possess practical applicability. From the marketer’s perspective, the results suggest that insincere flattery can exercise a persuasive influence on consumers’ automatic reactions even when they correct for the underlying ulterior motive in their deliberative judgments. In addition, this implicit reaction may actually be more influential in some ways than the corrected judgment—both with regard to delayed effects and in terms of withstanding an attack—thus offering further room for optimism to marketing agents interested in using flattery as a persuasion device (while simultaneously being a cause for concern from the consumers’ viewpoint). The former result carries particular significance given that marketers are often concerned with the long-term effects of any persuasion tactic. Finally, the boundary condition identified for the discrepancy between flattery-induced implicit and explicit attitudes offers insights into how the insidious influence of this persuasion tactic might be diminished. In particular, prior self-enhancement can greatly reduce the impact of flattery. Viewed in this light, the results offer useful implications both for those interested in combating the effects of flattery and for those interested in using it as an ingratiation tactic.

In negotiations and mediation, I have always advocated the use of compliments as a valuable part of the negotiating process. It is important to note, however, that I always believe that a compliment should be sincere. I do not believe in insincere compliments. But there is no doubting the power of the compliment in negotiations – even if they are insincere.

Compliments and flattery allow you to create a good first impression and to be liked. As discussed previously and as indicated in my book 112 Ways to Succeed In Any Negotiation or Mediation, once other negotiators like you, they are more likely to help you with your situation and are more willing to accede to your requests.

As many a husband will attest to when asked by their wife regarding issues of weight, compliments about those issues will always serve you well compared to accurate and neutral phrases.

Compliments also serve the purpose of showing that you like the other person. They also show that you and the other person share the same taste in the item being complimented. As such, it allows people to develop similarities.

To see a classic compliment, have a look at the scene from the Oscar Winning Movie, “As Good As It Gets.”

The reality is that there is always something that we can make a compliment about. There is no harm in doing so and when done genuinely it can not only help the other person feel good in the negotiation, enhance your relationship, and could possibly open doors in the negotiations.

To read the research on this, click here.

From the Mediation Matters Blog of Steve Mehta.

In my ongoing one-woman effort to contribute to the improvement of public discourse, each month I discuss an example of a Fallacious Argument. In December I chose a particular favorite of mine, the ad hominem.

This month I revisit it. Why? Because accusing someone of committing a fallacy of the argumentum ad hominem can itself be a fallacy. Let us consider it.

As the saying goes, there’s an app for everything. Some enterprising soul, capitalizing on the American fondness for the gratuitous insult, has created the political insult generator app, one for conservatives and one for progressives.

Thanks to these digital innovations, iphone and ipod Touch owners need no longer be at a loss for words in any political debate. Confident that a witty retort is always handy, they can hurl at their opponents ready-made epithets such as “crunchy business-bashing libtards” or “puritanical Bible-banging bullies”. It’s all in har-har good fun.

It’s harder to laugh though when a visit to any online forum or the letters page of your daily paper shows how ready to hand the insult is, like a rock to be hurled. But who’s surprised? Marshaling evidence to demonstrate the flaws in an opponent’s reasoning takes hard mental work. It’s much more fun and requires less effort to simply heap verbal abuse upon your adversary to attack their patriotism, ancestry, food preferences, or taste in ties.

There are of course ways to respond to such tactics. Often, however, in response to the jeering, people mistakenly accuse their opponents of engaging in ad hominem attacks. This is the fallacy of the fallacy of the argumentum ad hominem.

In a true argumentum ad hominem, an individual uses an attack on the speaker to undermine the speaker’s argument. Declaring your opponent a “Nazi”, “socialist”, or other insult du jour doesn’t cut it. It may be childish, uncalled for, and do nothing to further discussion, but it is not an ad hominem. Sorry.

If you’re confused about the difference, one writer, Stephen Bond, offers guidance, parsing numerous examples of correct and incorrect uses of ad hominems (warning: some language not safe for kids). Here’s one :

A: “All politicians are liars, and you’re just another politician. Therefore, you’re a liar and your arguments are not to be trusted.”
B: “Yet another ad hominem argument.”

If you accept the premises, A’s argument is sound; but I think most of us would sympathise with B and class it as fallacious, and ad hominem. This is because we do not accept the premise that all politicians are liars. There is a false premise that lies behind all ad hominem arguments: the notion that all people of type X make bad arguments. A has just made this premise explicit.

When debaters throw mud, everyone gets splattered. Too bad that a good clean fight has never been in fashion.

From Mediation Channel

The particular fact pattern was, in essence, a collection action. A quick reading of it showed that Plaintiff did not have a very good case and would probably lose in small claims court, were the matter actually tried. The issue for the student mediator was how evaluative, if at all, should she be in her discussions with Plaintiff. Should she say anything to Plaintiff to the effect that she faced an uphill battle and if so, how mildly or strongly should such a “ suggestion” be worded.

Each of the student mediators approached the task differently, but, they were all evaluative–telling Plaintiff she did not have much of a case and would lose. They each just conveyed this sentiment differently.

In driving back to my office, I reflected on this in light of a recent mediation. There, the parties reached an agreement that involved the participation of a third party who was neither a party to the lawsuit nor to the mediation. Implementing the settlement was not going smoothly as the third party was not responding in the manner envisioned by the parties. So, much communication was occurring in trying to keep the settlement on track. More and more, our discussions focused on the cultural differences of the parties and the third party. Plaintiff and the third party were Asian while the defendant was “American”, (that is, Anglo-Saxon.)

Suddenly, I had an epiphany or ‘ah-hah” moment. Both the students that day as well as me, must take into the account the cultural background of the participants in deciding whether to be evaluative. Why? Let me explain. In my mediation, the Plaintiff was from a country that followed Dutch law or the civil code tradition in which the judge also investigates, asks questions and prosecutes. That judge has a lot more power and control over the matter than do our American judges under our adversarial system. The system used in this Asian country is not at all adversarial but rather, inquisitorial.

In the later stages of my mediation and with the blessing of her counsel, I became evaluative with the plaintiff advising plaintiff that because her english was very difficult to understand, she might well lose the attention of the jury and thus lose her case. I noted that using an interpreter may also cause her to lose because again, she may well lose the jury’s attention.

Subsequent to the mediation, plaintiff’s attorney advised me that after my discussion with plaintiff, plaintiff used her mobile phone and told the other party that “she had lost” her case. At the time, the attorney did not think much of it, but suddenly, amid all of our discussions about cultural differences, he had his own epiphany or “ah-hah” moment as well, and realizing that given plaintiff’s cultural background, (and even though I told plaintiff that I was neither an arbitrator nor judge and was not deciding anything), she cloaked me with authority, Thus, when I warned her that her inability to speak English could adversely impact her case, she understand that to mean that I was deciding her case and telling her that she had “lost”!

I have taken many training classes focusing on cultural differences. But, the discussions have always been in the abstract. This mediation brought it home; be careful about the cultural differences. What I say as a mediator with the intent that it be received one way may well be taken completely differently by the listener in light of her cultural background. While I wanted my “evaluation” to be taken with a grain of salt, this plaintiff, because of her culture and her country’s legal system, took it as “gospel.”

….. Just something to think about.

From the Blog of Phyllis G. Pollack.

Although most of the major providers of alternative dispute resolution services tout their commitment to diversity in the ranks of their neutrals, the coloration of nearly all ADR panels continues to be white; the nationalities European; and the gender male.  I generally endeavor to steer clear of this topic because I, as a commercial mediator and arbitrator, have a market that is primarily composed of white men between the ages of 40 and 65. And I don't, of course, wish to offend my market.

(my online female ADR posse Stephanie West Allen, Gini Nelson - now practicing and blogging about Bankruptcy Law - and Diane Levin)

Recently, however, my all time favorite "old white man" (my husband) reported back from a training session on an arbitration panel whose name cannot be spoken that of 29 trainees, only two were women - and women of the type who give the old Astaire-Rogers joke "legs" - those who have done   everything Astaire did, but backwards and in heels.

This made me finally take a look at the composition of ADR panels.  What I found, at least in my own back yard, is that women, while under-represented, are likely fairly proportionally representative of the law school class years from which most neutrals are drawn, i.e., 1970 to 1990 with a tilt toward the earlier decades of the 70s and 80s.

Looking at the "Talk" Before We Examine the "Walk"

The American Arbitration Association (whose diversity we can neither assume nor refute given the absence of statistics on their panel membership) has the following to say about its commitment to diversity:

Our Shared Commitment to Diversity

Our integrity demands impartial and fair treatment of all people with whom we come in contact, regardless of gender, race, ethnicity, age, religion, sexual orientation, or other characterization. Our conflict management services put into practice our goal for the resolution of disputes between parties with different perspectives, experiences and backgrounds.

Because of the breadth of the AAA's work and the global reach of its services, we recognize the importance and contribution of a diverse work force, a diverse Roster of Neutrals, a diverse Board, and commit to respect and increase diversity in all our endeavors.

I recall that JAMS once had a diversity initiative, but I now find no mention of diversity in its Mission, Vision and Values Statement.  The JAMS Foundation appears to have funded one project that has diversity as its goal: it awarded $10,000 to Community Mediation Services in Jamaica, New York for its Intercultural Peacemaking Project for Youth "to help fund a program providing communication and conflict resolution training to youth from diverse cultural backgrounds and assisting them in becoming trainers of diversity and conflict resolution education for others."  It does not appear that JAMS has a diversity initiative for placing women, African-American or other under-represented "minorities" on its panel, nor even a statement of non-discrimination on its website.  If I'm wrong about this, I'd love to hear about it from a JAMS representative.

The International Institute for Conflict Prevention and Resolution, of which I am a member, has an active diversity committee, of which I am also a member, and is grappling with ways in which to increase the representation of under-represented "minorities."  We're making a concerted effort to address the problem and I send bouquets of early blooming parentheses )))((( to CPR in recognition of their commitment.

The Statistics Reveal the Problem

Despite the fact that my own law school class of 1980 was 50% women, the general national statistics at the time were that women comprised 33% of all law students graduating that year.  In the  thirty years that have passed since my own law school graduation, the percentage of U.S. women attorneys working remains less than their law school numbers in 1980, i.e., only 30% of the 1,104,766 practicing lawyers in the United States,  Even those numbers are misleading, however, for women neutrals, like me, who work in the commercial field (a field in which I labored as an attorney with hardly a hint of gender-discrimination for nearly a quarter of a century). 

Here's what the National Association of Women Lawyer's Annual 2009 Report on the status of women in the law has to say about women in positions of power at the type of firms that hire commercial mediators and arbitrators.

In 1980, 67% of law school graduates were men and 33% women. A decade later, by 1990, women had progressed to 43% of graduates. And by 2000, that number had increased to 48%.    For nearly two decades, women have started out in about equal numbers to men when they enter law firms as first year associates.

As steady as the increase has been for women entering the profession, that increase has not translated into staying power and advancement – rather there is a steady decrease of women at each higher position in firms. The impact? An ever decreasing source of women for partnership and leadership roles.

In the typical firm, women constitute 48% of first- and second-year associates, a percentage that approximates the law school population. By the seventh year, the ranks of women have dropped slightly to 45%.14  The gradual erosion of women heightens with seniority. On average, women constitute 34% of of-counsels, 27% of non-equity partners, and 16% of equity partners. This trend has not changed dramatically in a number of years despite the very substantial number of women law graduates who entered firms in the last 20 years.

In the typical one tier firm, where equity is the only form of partnership, 18% of equity partners are women. In two tier and mixed tier firms, by year ten, women comprise only 10% of equity partners. By year 15, women make up 17% of the equity partners and by year 25 it is 18%. The data suggest that not only are far fewer women than men achieving equity status, it takes women substantially longer to reach that goal.

Let's Take a Look at the Composition of the Most Successful ADR Panels

My panel, ADR Services, Inc. is owned not only by a woman, but by the hardest working women in ADR rock 'n roll, the indefatigable Lucie Baron.  Lucie does it backwards, in heels, while spinning 20 plates in the air.  It's exhausting just to watch her walk down the corridor!

ADR Services, Inc. has thirteen (rockin') women on its Southern California panel and 62 men -- 20% women.  JAMS has fourteen women to 61 male neutrals on its Los Angeles panel, close to 23% women.  Although both fall far short of the 33% women who occupied law school classes in 1980 when I graduated, no one should be surprised by these percentages given the fact that ADR neutrals are mostly drawn from law school classes between 1970 (when the percentage of women was ten percent and 1990 when the percentage of women was 43%, with most neutrals congregating at the older end of the spectrum).

How Consistently are Women Being Hired as Neutrals outside the "Pink Ghettos" of Family Law, Estates and Employment?

With no disrespect to my sisters laboring in the fields of family law, employment and trusts and estates, these fields have traditionally been associated with women because they are said to involve "a lot of emotion" whereas my field of practice - commercial litigation - has long functioned under the illusion that "reason" prevails over "emotion" (an illusion I've long said arises from the apparent belief that controlled rage is not an emotion).

Everyone who serves on an ADR panel knows that, while valuable, membership does not assure a steady stream of work.  If I had to make an educated guess (based on conversations with neutrals and discounting everyone's inflation of their own success) I'd say that far less than twenty percent of all ADR work was being done by the 20 percent of women on local ADR panels.  I'm not going to suggest that implicit bias or the paucity of women attorneys with power to make ADR decisions in the AmLaw 200 is solely to blame for this state of affairs.  I am, however, going to suggest that it plays a significant role in the choice of neutrals, a role which every male neutral I've spoken with denies and every female neutral I've spoken with confirms.

So Let's Look at Implicit Bias to Negative the Effect it May Be Having.

I'd be more than happy to learn that I'm wrong in this assumption -- lawyers - both men and women - tend to choose male neutrals over women neutrals based upon an implicit bias toward men and a misunderstanding about the power of mediation, i.e., that it's more about power than it is about influence.   I wish I had statistics to provide on this question and I urge any academic looking at ADR to make further study of diversity among the ranks of ADR practitioners -- an issue that should be a priority in the legal academic community as the U.S. justice system becomes more and more privatized.  In the meantime, take a look at mediator and negotiation trainer Diane Levin's posts on gender in ADR, including Disputant Perceptions of Gender: a Challenge for Women Who Mediate; Boys will be boys:  gender still an issue; Eliminating Gender Bias in Mediator Performance Evaluations; and Bias Hard to Detect in Ourselves.

Anecdotally I can tell you that 80 to 90% of the attorneys who hire me to mediate their litigated disputes are male.  I believe this has something to do with the fact that so few women survive the AmLaw200 race to partnership as explored in depth by Lauren Stiller Rikleen in her brilliant and comprehensive Ending the Gauntlet:  Removing Barriers to Women's Success in the Law. (my review of that book here).

Neutralizing My Own Implicit Bias

I've been engaged in a conscious effort to neutralize my own implicit gender bias since I began reading Ms. Magazine in 1972.  Yesterday, while writing the post on racism at my alma mater U.C. San Diego, I linked to the Harvard Implicit Bias Project and suggested that my readers take one or more of the Implicit Association Tests.  I took the Gender - Career Implicit Association Test.  According to Project Implicit, my data "suggest[ed] a moderate association of Male with Career and Female with Family compared to Female with Career and Male with Family."  Here's the chart of all responses to date:

I'm right there in the majority of all association test takers - moderately associating women with family and men with career.  This is my result despite the fact that I never had children; consciously associate myself far more strongly with career than I do with family; and, was actively engaged in the "second wave" women's movement beginning in my early twenties ('73) and ending when I started law school ('77). 

Neutralizing Your Own Implicit Bias to Avoid Conflict and Increase Flexibility

This is the article all test takers are directed to after getting their results (link immediately above) and here's the bottom line from that article:

All of us want to act in an unbiased, inclusive manner. All of us want to do the right thing ethically. All of us want to come to the right position after studying a legal point. None of us wants to be accused of bias, of unethical behavior or of being wrong on a legal point. Once we see that implicit bias and the feeling of certainty we're right are hardwired into our brains, we can laugh at ourselves and not be so defensive anymore. The urge to laugh at a racist or ethnic joke doesn't make us bad people. It is a manifestation of implicit bias we can inhibit. The tightening of our jaw, fists and gut, when another lawyer objects to our position is a manifestation of our mental sensation of certainty.

Maybe we're right and maybe not. Maybe there are a dozen different ways to look at the same problem that could lead to a more peaceful, expeditious and fruitful resolution. We cannot get there unless we recognize that no matter how smart we think we are, we are susceptible at all times of being wrong and of being tricked by our own mental sensation of certainty.

In Twenty-Five Years of Commercial Legal Practice, I Never Hired a Woman Neutral

As Project Implicit points out in referring test takers to Cutting Edge Law:

implicit bias based on racial and other stereotypes is universal. Implicit bias is unconscious. It dwells within the minds of even the most liberal and progressive lawyers. It operates in a subtle and insidious fashion.

I know I'm biased and I work against it all I can.  I was raised in the 1950's and 1960's, before and during the great civil rights movements of the latter half of the twentieth century.  Women were wives and mothers.  Few of them worked.  Dads were fathers, if at all, on special week-end days only.  Dads worked.  Mothers baked.  Blacks (we called them Negroes) lived in another part of town.  I never had a Black classmate until 1966 when I started high school.  Mark, whose last name I forget, became captain of the football team.  His father was a physician.  Mine sold life insurance door to door until he went to night law school after leaving my mom and marrying someone with a University degree.  No one in my family had attended, let alone graduated from, University.

I think of doctors and lawyers as male.  Still.  How frustrating is that?  And yet, I am finally improving.  Among the handful of neutrals I recommend there are now as many women as there are men.  And I have high hopes for the generations that follow mine - generations in which women were in the work force; where dads parented as much as moms; and, where professional accomplishment for women was as expected as it is for men.

The only way in which implicit bias will prevail is if we deny its existence.  By way of this lengthy post, I am suggesting that the paucity of women (to my own surprise) in ADR ranks is more historic artifact than it is the result of implicit bias.  I do, however, believe more women in ADR's ranks would be working more often in the absence of implicit bias.  I urge my readers to go to Project Implicit, take a few of their association tests and judge for yourselves whether unconscious biases are playing a part in driving your decisions.

From Settle It Now Negotiation Blog