Thank you to Mediate.com for this great compilation of online mediating resources!
Here are some recommended resources on video conferencing and ADR:
Teaching and Presenting:
(by Micky ScottBey Jones)
Together we will create brave space
Because there is no such thing as a “safe space”
We exist in the real world
We all carry scars and we have all caused wounds.
In this space
We seek to turn down the volume of the outside world,
We amplify voices that fight to be heard elsewhere,
We call each other to more truth and love
We have the right to start somewhere and continue to grow.
We have the responsibility to examine what we think we know.
We will not be perfect.
This space will not be perfect.
It will not always be what we wish it to be
It will be our brave space together,
We will work on it side by side.
I have had several readers ask me to keep posting updates about my van. The build is coming along very slowly, but I thought I would share some pictures, including both successes and failures to date.
Almost two months into quarantines, stay-home orders, business shutdowns, and remote work, many of us have adjusted – with varying levels of discomfort and anxiety – to a “new normal”.
A Constant State of Anxiety
A recent Forbes article provides some insight into our current psychological reality: “Psychologically, we can attribute this discomfort to anxiety. However, it’s not a run-of-the-mill anxiety, the type that’s normal and even healthy. Instead, it’s a constant state of incertitude, a miasma of apprehension that’s all the more draining because there’s no clear end-date. Our brain craves certainty, but with nothing except vastness in sight, there’s precious little certainty to go around these days.”
Accounting for Our Psychological Reality
As I participate in various virtual professional roundtable conversations and read articles related to legal proceedings, it strikes me that our legal system is woefully unprepared – and quite possibly unwilling – to account for the fact that we are currently experiencing a collective worldwide trauma.
It is well known that, even under normal circumstances, mental illness and suicide rates are among the highest for members of the legal profession. And while many professional organizations such as bar associations provide some support, the profession as a whole has never been equipped to do so.
This is only aggravated by the fact that most lawyers are perfectionists who have a tendency to hold fast to tradition and precedent, making us anything but nimble in the face of sudden and drastic change.
Self-Care is Not Weakness
The teaching profession has long emphasized self-care as a necessary component of serving others. By contrast, many years ago, I asked a partner I admired at the small law firm in which I spent the majority of my litigation career if they had any suggestions on how to maintain “work-life balance”. The response was derisive laughter.
Almost 20 years later, I am encouraged to find that self-care has been a topic of discussion during weekly roundtable meetings of solo and small practice attorneys (thanks to Jordan L. Couch and Ann Guinn) and similar meetings of mediators (thanks to Mediate BC’s Sharon Sutherland) that I have been attending for the past few weeks. Suggestions range from meditation and yoga practice to finding a way to bring levity into each day, and from more sleep and later morning start times to creating and maintaining routines.
Nonetheless, this clearly remains an uncomfortable topic for most attorneys.
Signs of (Dis)Respect?
I recently came across this article about a federal judge who shut down a remote hearing after interruptions by audience members, as well as this one, dealing with lawyers dressing too casually for online court hearings.
There is no doubt that it is important to dress appropriately for any meeting, and especially for court proceedings, in order to be fully present and to demonstrate respect. It should go without saying that wearing pajamas or participating in a hearing from your bed are inappropriate (though it is sadly not unheard of for an attorney to call into a meeting from a hospital bed…). I also agree that common courtesy demands eliminating interruptions to the extent possible.
Or Merely a Collective Juggling Act?
On the other hand, let us keep in mind that everyone is juggling: working from home, sharing internet bandwidth with other household members, parenting children who have not seen their friends for weeks, dealing with adorable but sometimes unruly dogs and cats, and addressing countless other possible disruptions.
So if an attorney who is also a young parent does not have the ability to look perfect for a video-conference, that may not be a sign of disrespect; it may simply be a sign that they are unable to fully satisfy all the demands on their time despite their best efforts. If a client or other meeting attendee seems gruff or distracted, keep in mind that they may be panicking about how to pay the rent and put food on the table.
If participants or audience members in a video-conference fail to mute themselves, or attorneys forget to make eye contact (do you look at the screen? or the camera?), remember that some participants may not be technologically sophisticated, and that we are all adjusting to a new mode of conducting business.
Let’s Try Some Empathy
At this moment in history, perhaps we can lead with empathy, by assuming good intentions.
Instead of labeling self-care as weakness and an occasional failure to precisely follow “the rules” as a sign of deliberate disrespect, perhaps we can make room for the fact that we are all mired in “a miasma of apprehension” – and that we must all support each other to make it through this.
I led a tutorial/discussion on the use of Zoom for my colleagues at the ADR Roundtable last Wednesday. In the interest of making the information widely available, I included a link to my PowerPoint slide deck - which includes links to Zoom Help Center articles, as well as links to various ODR organizations and other resources - in my April newsletter. I am also posting them here in case they are useful to any of my lawyer, mediator, and arbitrator colleagues.
Our world has been turned upside down.
Streets and freeways are empty. Businesses are shuttered; parks are closed. A staggering number of hospitality workers are unemployed. As our front-line workers, medical professionals, grocery store clerks, and delivery drivers face a constant threat of exposure to Covid-19. Extroverts are sheltering in place without social interaction; introverts are sheltering in place with more social interaction with partners and kids than they ever expected.
Video-conferences – for work, for wellness checks, for virtual happy hours, for virtual holiday gatherings with distant family – have taken over our lives. This can be a strain on both mind and body, as the difference between work meetings and social “gatherings” is sometimes imperceptible. Ironically, however, it has also created opportunities for greater connection.
Virtual Dispute Resolution
Last month, I wrote about the use of Zoom in mediation generally. And while video-conferencing technology has been used by mediators for many years – and indeed Zoom was specifically built with mediation in mind – suddenly everybody is using it, for everything from team meetings to virtual happy hours and holiday gatherings.
As a result, the technology platform has come under enormous scrutiny. We see daily news reports of various security issues (“Zoom-bombing”, the lack of end-to-end encryption, selling user data), while the platform’s daily active users ballooned from 10 million to 200 million seemingly overnight.
Is it Safe?
So instead of simply talking about whether Zoom is useful or convenient, the conversation – especially among lawyers, mediators, and arbitrators – must necessarily shift to whether it is safe. Does it adequately protect client confidentiality? Can uninvited third parties gain access to a mediation session? Does Zoom sell user information? What about encryption?
There are many things you can and should do to protect your meetings. And there are a number of excellent (and secure if used correctly) built-in mediation tools.
In-Meeting Security Settings
ODR is Not New
Keep in mind that the origins of ODR can be traced back to the early 1990s and the beginnings of the internet. As a result, there are a number of organizations that provide excellent guidance on best practices and ethical considerations for online dispute resolution. Here are a few:
A healthy mistrust of technology is wise, especially in light of the sudden upsurge in users and the resulting opportunities for bad actors to take advantage of the unwary.
Due diligence is absolutely critical when dealing with confidential information; and both attorneys and neutrals have an ethical duty of competence, which extends to the tools we use in our practice. We certainly should not jump on the ODR bandwagon merely because it is convenient. But we should also be careful not to reject it wholesale, thereby missing the possibilities it opens up.
While I for one wish that ODR had been embraced sooner and under far less tragic circumstances, I am delighted that it is now becoming an accepted option, which is likely to serve our clients well even after this pandemic has passed.
[Disclaimer: I am not endorsing any specific technology. There are numerous other platforms – such as Skype, WebEx, Microsoft Teams, Google Meet, Crek ODR, Legaler, and the very exciting new Modron Spaces – that provide video-conferencing capabilities, and which may be more or less secure, user-friendly, and/or appropriate to dispute resolution.]
Philip Mediation is committed to continuing to provide excellent dispute resolution services while protecting the health and safety of my clients.
I am happy to accommodate participation via telephone or video-conferencing, or to postpone previously scheduled mediations and arbitrations as needed.
Please stay safe, and do not attend in-person events if you are feeling unwell.
Gov. Inslee has announced mandatory "social distancing" measures for the State of Washington; K-12 schools are closed until late April; universities have transitioned to distance learning; conferences have been cancelled; hand sanitizer is sold out in stores and online. The novel Coronoavirus (Covid-19) – recently classified as a pandemic by the World Health Organization – has captured our attention and our fears, overshadowing everything else. Several people have died in our state, and many more fatalities are reported all over the world. My heart goes out to all who have been affected by such losses.
Yet despite tragedy and uncertainty, life and work continue.
Impact on the Legal Community
Just this morning, someone posted a question on one of my lawyer listservs asking how members of the legal community are dealing with the pandemic. Are lawyers working from home, or meeting with clients in their offices? How are lawyers protecting themselves, their staff, and their clients? How are lawyers managing their work and client load, especially if they have children at home for whom school has been cancelled?
Use of Technology
We are fortunate to live in an era in which technology is readily available, and I am yet more fortunate in that I work from a home office that is set up to take full advantage of such technology.
In the past, I have used video-conferences for occasional calls and presentations, and have conducted a handful of mediations by phone, shuttle-style.
I am currently in the midst of three larger mediation projects, ranging from 10 to 35 participants. For all three mediations, we made the decision that I would speak to each participant individually as the first step in the process, in order to learn perspectives and establish trust. And because all three sets of clients are based in Eastern Washington, we decided to schedule all individual contacts via video-conferencing technology.
Video-Conferencing Technology in Mediation
I use Zoom, and I suspect that there are other providers that offer the same or similar capabilities.
Zoom provides multiple options for one-on-one calls using a phone or computer audio, multi-party conference calls, and video-conferencing with one or more parties across platforms (phones, tablets, PCs, etc.). Especially relevant to mediation, it provides an option for "breakout rooms" to engage in private conversations with individuals or groups of participants while the meeting is ongoing. And it allows for in-meeting file transfers, screen sharing, and real-time annotations.
In mediation, this means that my clients and I can effectively accomplish many of the same things that would occur in a physical conference room. We can engage in private and confidential conversations, and bring participants together in the same room if necessary. Clients can show me relevant documents, and share documents with other participants. Attorneys can collaboratively create a settlement agreement by annotating draft language in real time.
Imperfect but Essential
As we all know, the vast majority of communication is non-verbal, occurring through facial expressions, eye contact, and body language. As such, I remain convinced that in-person interaction is generally far superior to any technology that is currently available.
However, solutions such as Zoom enable "social distancing" in order to protect ourselves and others, while also allowing us to provide continued excellent service to our clients.
And once we have defeated this pandemic, as we surely will, technology remains a viable option for clients who for whatever reason cannot be in the same location at the same time.
In the meantime, stay safe and healthy!
Just last week, an attorney told me that their litigation strategy is to “lead with trust and see what happens”.
I watched this strategy play out in a hearing over which I was to preside as the arbitrator. When opposing counsel arrived, the attorney asked to meet with their counterpart while I waited for a few minutes. The two attorneys had a private conversation, then reentered the room after clearly having had a productive and collegial conversation. They stipulated to a delay of the proceedings until they could gather further information and properly prepare their respective cases for arbitration.
In an era in which civil dialogue seems to be increasingly difficult to find anywhere, this was a remarkably refreshing experience. Although the two attorneys’ perspective on both the facts and the law may differ, that did not preclude them from acting like the colleagues they are.
Those of you who read my newsletter or follow my blog know that I have written about the “Prisoner’s Dilemma” and its corollary winning strategy of “Generous Tit for Tat” previously. Here it is in action: Lead with trust and see what happens.
If trust is reciprocated, our own experience of – and more importantly, our clients’ faith in – the legal system as a robust and functional dispute resolution mechanism is strengthened. As an added benefit, attorneys may enjoy their interactions with their colleagues, rather than dreading them as adversaries, and can focus on the singular pleasure of debating the law.
Although I am no longer a practicing litigator, I remain a member of an ancient and noble profession. Interactions such as the one I observed in this arbitration hearing make me proud to be an attorney. More importantly, they give me hope that our professional spirit of collegiality and collaboration will always prevail.
With Thanksgiving just around the corner, I am once again reminded that I have much for which to be grateful. I am blessed to have a loving family, kind and caring friends, and the luxuries of health and economic security.
The Stress of Holiday Dinners
For many, however, the holiday season is daunting, and the prospect of forced conversations with “difficult” family members can be a source of anxiety.
For several years, I have led a class on skillful engagement in conflict for the City of Seattle’s “People’s Academy for Community Engagement” (PACE). I have also held pre-holiday workshops in my community to try to ease the apprehension surrounding difficult conversations during the holidays.
A Handful of Tools
There are a multitude of ways in which to analyze, assess, and address conflict. Here are a few practical skills that you can put to use immediately.
1. What are Your “Triggers”?
It is nearly impossible to have a civil conversation when someone feels backed into a corner. In my PACE classes, I ask my students to identify their personal triggers. These can range widely, from feeling dismissed to outright slurs. What they all have in common is that they result in a physical and/or emotional response that makes further dialogue difficult.
So what are the kinds of behaviors or comments that make you angry, drive you to tears, make the blood rush to your head, or make you want to run away or scream? Becoming aware of what sets you off is the first step in developing a strategy to mitigate your fight or flight instincts.
2. Active Listening
I have written about active listening before; it is one of the most powerful tools at our disposal when navigating conflict. Instead of thinking about how to respond or how to frame your argument, take a moment to truly listen. The goal is not necessarily agreement, but rather understanding.
Do the words you hear mean the same thing to you as to the other person? What is going on beneath the express meaning of those words? Can you identify the other person’s underlying emotions, needs, and interests? Name them out loud – it is astonishing how quickly anger and frustration dissipate when someone feels that they have been heard.
3. Open-Ended Questions
Lawyers are well-versed in the art of cross-examination. Closed or leading questions that demand a “yes” or “no” answer are our forte. There is good reason for this: In questioning an opposing party or hostile witness, our goal is to box them in and shape the story to persuade a judge or jury that our clients should win.
But is it your goal to box in your conversation partner at the dinner table? Winning the argument may make you feel good in the moment – and it may lead to further resentment, making the next conversation even more challenging.
Open-ended questions invite a longer answer and create an opportunity to expand the narrative, reach greater levels of understanding, and find potential common ground. A simple trick is to use “W” questions: “What?”, “When?”, “Where?”, “Who?”, and “How?”, as opposed to “Didn’t you…? “Have you …?” etc.
Be Kind to Yourself
Full disclosure: It is far easier for me to help others navigate conflict than it is for me to address conflict in my own life. Much of the training I have received and provided as a student of psychology, as a mediator, arbitrator, and facilitator, and as a trainer and teacher seemingly evaporates when I find myself in conflict. (My husband can attest to this.)
So above else, be kind to yourself this holiday season. Practice these skills – they do improve with practice! – but remember to take the time to enjoy yourself, whatever that may mean for you.
Wait... what? Quantum physics?! Stay calm and read on – I promise that this is (whimsically) related to mediation.
Frontiers of Physics
I attended a "Frontiers of Physics" lecture at the University of Washington a week ago, presented by CalTech's Prof. Sean Carroll. Besides being a leader in his field, Prof. Carroll is also a very engaging speaker, who makes his subject extremely approachable for curious non-scientists such as myself. Indeed, if you are interested in the lecture, you can watch it in its entirety on YouTube.
You may be familiar with the thought experiment known as "Schrödinger's Cat": A cat, a flask of poison, and a radioactive source are placed in a sealed box. If an internal monitor detects radioactivity, the flask is shattered, releasing the poison, which kills the cat. Quantum mechanics implies that after a while, the cat is in a "superposition" of being alive and dead simultaneously. Yet, when one looks in the box, one sees the cat either alive or dead, not both alive and dead.
One theory posits that the observer becomes entangled with the observation. While this leads to fascinating scientific interpretations, those are not relevant to this article. Instead, what stuck with me is the concept of observer entanglement in the context of mediation.
Mediators are charged with facilitating dialogue between parties in conflict. Mediator neutrality/impartiality is one of the highest guiding principles of this work, as is party self-determination.
And while a good mediator employs excellent listening skills and empathy in drawing out each participant's narrative, what if our own stories, perspectives, and biases get in the way? In other words, what if our own narrative as the neutral "observer" of the conflict becomes entangled with that of the parties?
Curiosity and Empathy
Attorneys are cautioned not to become personally invested in their clients' cases, as this may lead to a loss of perspective. However, both professional pride and sympathy towards a client can make this very challenging in practice. Similarly, a mediator may find herself sympathizing rather than empathizing with a party's narrative.
Whether as attorneys or mediators, it is always a good idea to refresh our understanding of our respective professional codes of conduct and to to approach our clients' narratives with genuine curiosity, all while checking our own egos and biases.
After all, we can only be effective practitioners if we can remain mindful of our obligations to our clients. This includes preventing entanglement, quantum or otherwise.
Please join us for the Seattle Chapter Relaunch of the Chartered Institute of Arbitrators on October 22, 2019!
I hope everyone has had a wonderful summer, enjoyed the long Labor Day weekend, and – for those of you who have school-age children – survived the first day of school.
I find myself writing this newsletter on Labor Day, which "honors the American Labor movement and the power of collective action by laborers, who are essential for the workings of society.” (Wikipedia)
“A World of Three Zeros”
Somewhat apropos, I am reading a fascinating book by 2006 Nobel Peace Prize winner Muhammad Yunus, titled “A World of Three Zeros – The Economics of Zero Poverty, Zero Unemployment, and Zero Net Carbon Emissions”. When I picked up the book at the library a few days ago, I did not realize that Prof. Yunus is the father of microfinance; he has also started numerous other businesses all over the world in the past four decades.
An early paragraph resonated with me: “The zero-sum assumption built into our economic theory encourages people to look for ways to become “winners” in the economic battle – which requires turning everyone else into “losers.” One result has been an alarming result in nationalism, xenophobia, mistrust, and fear.”
[If you are interested, but do not want to read the entire book, Prof. Yunus gave a Talk at Google in which he explains his projects and the philosophy driving them.]
The Myth of the Fixed Pie
I have written about the problem of the “fixed pie” or “zero-sum game” in mediation before. A good mediator will always look for ways to expand that pie, by seeking out the underlying interests and emotions driving the parties’ positions.
Of course, we are all pragmatic enough to recognize that some negotiations are, in fact, distributive (i.e., “zero-sum”) in nature.
But more often than not, reframing a negotiation based on underlying interests and goals, rather than on pre-conceived assumptions and positions, inspires new creative solutions that can benefit all participants.
A New Hope
In his “World of Three Zeros”, Prof. Yunus demonstrates that this reframe is possible not only in the case of an individual dispute, but on a global and scalable level. And that is certainly reason for optimism.
There were several very exciting finishes in sporting events over the past two weeks, all of them in sports that I follow to some extent. The U.S. Women’s National Team won the Soccer World Cup in an amazing show of strength, endurance, and physical prowess. England won the Cricket World Cup for the first time since its inception in 1975, due to a slightly bizarre twist at the end of regulation time. And Novak Djokovic won the Wimbledon Men’s Singles Final, in an impossibly close match against Roger Federer that ended in the first ever fifth set tiebreak and the longest final in Wimbledon history.
Those of you who know me know that I do not usually follow professional sports. However, growing up in Germany as the daughter of Indian immigrants, I played soccer during lunch breaks at school and was exposed to cricket on extended trips to visit family in India. I am now married to a cricket-mad Englishman, so I can hardly avoid the game. My own sport was tennis, which I played competitively for many years, including on my college’s varsity team.
Many of my readers will have followed the journey of the U.S. Women’s soccer team. Their training, planning, and team work paid off with a second consecutive (and fourth overall) World Cup victory.
Few, if any, of you will have paid attention to the Cricket World Cup; suffice it to say that excellent playing, combined with a bit of good luck and interpretation of an arcane rule, won the day.
And some of you may have watched the Wimbledon Men’s Final, between two of the game's all-time greats, who have been rivals for more than a decade and who demonstrate incredible grace, humility, and sportsmanship even under immense pressure.
Lessons for Mere Mortals
We may not all be world-class athletes, but we can all benefit from the strategies on display.
If you are part of a negotiation team – whether as attorney and client negotiating a settlement, or as spouses or partners negotiating the price of a house – plan your strategy, assess your goals, priorities, and alternatives, and be clear about each person’s role. Your game plan and its execution are usually well within your control; and on occasion, a bit of good fortune may help you along.
And always remember that grace, professionalism, and civility go a long way towards ensuring a “win” for a competitive home team.
I recently started taking agility classes with my dog. She loves it, as do I – and I am discovering that it is a humbling experience. Language is a wonderful thing, but a large portion of communication occurs through body language. And dogs are masters at reading body language. So, much of our training consists not of Mocha learning how to do agility, but rather of me learning how to communicate effectively.
I am writing this the day before Thanksgiving, which also happens to be my birthday.
I have much for which to be grateful, including family, friends, and you, my readers and clients. I also realize that Thanksgiving can be a source of stress for many, especially in a time when opinions seem to differ more than ever and dialogue can be challenging.
Last Friday and Saturday, I participated in a training on peacemaking circles in the Tlingit (First Nations) tradition. I went into it with a healthy dose of skepticism, and emerged with gratitude for being exposed to a very different way of communicating, which can be and is used for anything from dialogue and celebration to restorative justice.
So instead of writing an article, I thought I would share some thoughts from Friday's closing. (These are quotes from Margaret J. Wheatley's “Turning to One Another: Simple Conversations to Restore Hope to the Future”.)
I have written about the “Prisoner’s Dilemma” before, because variations of it arise regularly in mediation and negotiation.
So how do you win the game? It turns out that the most successful strategy is one of “Generous Tit for Tat”.
A Quick Refresher
[Please feel free to skip this section if you are familiar with the setup of the Prisoner’s Dilemma.]
In case you need a refresher, the classic setup of the Prisoner’s Dilemma is this:
Two co-conspirators (A and B) are arrested and held in separate cells with no means of communication. The prosecutor has insufficient evidence to convict either of them on the principal charge, so she offers each prisoner a deal: Betray the other in exchange for a lesser sentence.
Because this is true for both parties, the most likely outcome is that the two prisoners will betray each other, resulting in each receiving a five-year sentence. The best mutual outcome (a six-month sentence) is achieved if the parties cooperate with each other and both remain silent.
Background: The Cuban Missile Crisis
At the time of the Cuban Missile Crisis in 1962, Robert Axelrod – now a professor of political science at the University of Michigan – set up a computer program to run a sequence of successive simulations of the Prisoner’s Dilemma. He then invited leading game theory experts to compete in a tournament using a program that embodied the strategy the expert thought most likely to win.
The goal was to answer the question of how to deescalate the crisis, by cooperating without sustaining significant losses.
If “Tester” plays “Massive Retaliatory Strike”, both do badly. If “Lucifer” plays “Jesus”, evil prevails.
“Tit for Tat” cooperates with “Jesus” for the entire game, while defending itself well against “Lucifer”. However, the problem with a pure “Tit for Tat” strategy is that it always retaliates against an aggressive strategy such as “Lucifer”, thereby resulting in mutually assured destruction.
And the Winner Is…
A slight modification of “Tit for Tat” optimizes the long-term success of the strategy: Instead of always retaliating against an attack, “Generous Tit for Tat”, retaliates only nine times out of ten.
When the program responds with cooperation instead of retaliation, this gives the other player an opportunity to reciprocate, thereby resetting the game and maximizing success for both players.
For one-shot players in negotiation, the classic Prisoner’s Dilemma setup would apply – but for the facts that 1) the players can communicate with each other, and 2) a negotiation always consists of several rounds.
In any series of negotiations, which includes preliminary issues such as the selection of the mediator, and the location and timing of the mediation, you can choose your strategy. You can attack, or you can make a cooperative move.
If annihilation is your goal, keep in mind that your negotiating partner may respond in kind. If, however, your goal is to arrive at a mutually beneficial solution, you may want to consider adopting a "Generous Tit for Tat" strategy.
As most attorneys practicing in Washington State will know by now, the Mandatory Arbitration Rules are changing effective September 1, 2018. Some of the changes are minor, while others – such as a substantial increase in the jurisdictional amount – are significant.
The Washington State Bar Association recently hosted a seminar on Arbitrator Ethics for current and aspiring arbitrators, at which my co-presenters and I discussed these imminent changes.
"Civil" Arbitration Rules (RCW 7.06.010)
The new rules remove any reference to the word "mandatory", instead renaming them "Civil Arbitration Rules". It is somewhat unclear why this change was made, except perhaps to distinguish these rules from binding (private) arbitration clauses in consumer contracts, which have received a fair amount of negative press coverage in recent years.
Increase in Jurisdictional Limit (RCW 7.06.020)
Until September 1, 2018, cases were subject to mandatory arbitration only if the amount of monetary relief claimed did not exceed $50,000. The jurisdictional limit will be increased to $100,000. This is a significant change, and one that is viewed very differently by plaintiffs and defense attorneys.
Plaintiffs' attorneys have been advocating for an increase in jurisdictional limits for years, as arbitration provides a mechanism for fast relief and avoids the lengthy delays and significant expenses associated with a full trial. In short, the plaintiffs' bar believes that this change will provide greater access to justice.
Defense attorneys, on the other hand, believe that this increase will allow plaintiffs to force more cases into arbitration while severely limiting defendants' ability to defend against these claims, due to short time windows for hearings and limits on discovery.
Qualifications of Arbitrators (RCW 7.06.04)
In a change that is significant primarily to arbitrators, the new rules require that nobody may be appointed as an arbitrator unless they have completed three hours of legal education credits on the professional and ethical considerations of serving as an arbitrator. There are some exceptions, which will depend on the specific county.
Unfortunately, seminars focused on this topic are currently scarce. The WSBA program referenced above is expected to be available online prior to September 1, 2018.
Date of Hearing (RCW 7.06.043)
While some counties had implemented a timeframe during which the arbitration hearing was required to occur prior to the current rule change, the new rules create a state-wide requirement. Hearings shall be scheduled to take place no sooner than 21 days and no later than 75 days after appointment of the arbitrator. In effect, this means that a decision can be obtained on a case within three months of appointment.
Parties may stipulate to a different timeline, but should be aware of any applicable local rules that may impact the ability to enter into such stipulations.
Discovery (RCW 7.06.047)
This is another new state-wide rule, which limits discovery after assignment to arbitration. Parties may request medical examinations under CR 35, request admissions under CR 36, and take the depositions of parties. No other discovery is permitted except by order of the arbitrator.
While this streamlines cases for speediness and efficiency, there is an argument to be made that it will impact the ability to fully prepare a case. As such, it has the potential to result in an increased number of appeals.
Appeals (RCW 7.06.050)
The significant change to this section of the rules is the requirement that any notice of appeal must be signed by the party.
This appears to be quite straightforward, and is certainly in keeping with an attorney's obligation to keep their client advised of all developments and to act at the behest of the client. However, there are circumstances in which a client cannot be located in time or is uncooperative, which may leave that client with no recourse.
I do not know how these changes will affect the litigation and appeals of cases subject to the new Civil Arbitration Rules. I would love to hear from you if you have thoughts about this topic.
This month's issue of my newsletter was supposed to discuss the changes to Washington's Mandatory Arbitration Rules, which go into effect on September 1, 2018. However, I beg your indulgence as I delay that article for a week and send you this urgent plea for help instead.
For those unaware, there has been massive flooding in my family's home state of Kerala, India. Neither the U.S. media nor the Indian national media (which is focused on former Prime Minister Vajpayee's death) had been giving this much attention until this morning. I urge you to spread the word and contribute to disaster relief efforts.
According to this morning's New York Times, at least 220,000 people have been displaced. My aunt, uncle, and 80+ year old great aunt are among those who have had to evacuate their homes - my uncle paddled a kayak into my great aunt's living room to help her leave her home two days ago. The Indian government has declared a state of emergency; Army and Navy forces have been dispatched to assist.
My uncle and cousin are conducting ongoing rescue operations in their kayak; my uncle's factory grounds are being used as a staging point for distribution of food and supplies; and my 80+ year old great aunt is feeding people. Friends and distant relatives are stranded in their homes with no way to leave and no way to get to them. Please help if you can!
Here are some options for donations:
1. Chief Minister's Distress Relief Fund
This fund can accept international donations. It may not be able to get resources onto the ground quickly enough for immediate assistance, but will be useful for rebuilding efforts once the food water recede.
2. Round Table India Trust
Name of Bank: Indian Overseas Bank
Address of Bank: No:109 Utthamar Gandhi Salai, Nungambakkam, Chennai-600 034
Account No. 018301000021223
Bank Swift Code: IOBAINBB001
RTGS/NEFT Code (IFSC): IOBA0000183
MICR Code: 6000 20007
My cousin Suraj George Verghese is an Ex-Area Chairman of this organization, which is set up to accept international relief funds.
Thanks to my spouse, I recently discovered the excellent podcast “Philosophize This!” The episodes are easy to follow, informative, and humorous – and they remind me of my college political science classes, which I loved. (I attended my 20th Vassar College reunion in early July, so I am admittedly a bit nostalgic.)
Today, I was listening to Episode 4, on Plato, his ideal republic ruled by a philosopher king, and the theory of forms as described in the Allegory of the Cave.
Plato’s Allegory of the Cave
Imagine that you have lived all your life as a prisoner in a dark cave, and are able to look only at the back wall of that cave. At the mouth of the cave – behind you – is a source of light. Occasionally, someone holds up an everyday object (a tree, a dog, etc.) between the light and you. Because you are facing the wall, all you have ever seen are the shadows cast by these objects, rather than the objects themselves.
If you were able to turn around, your eyes would strain at the light, the object would make no sense to you, and you would likely turn back to the wall to look at what is familiar, i.e., the shadow.
Now imagine that one day you were able to escape the cave and see the objects for what they actually are. You could only do so by thought and reason, as the objects themselves would hold no meaning. Plato believed that the entire world consists of “shadows”, and that philosophy and the quest for knowledge are an attempt to see things for what they really are.
An Allegory for Conflict
This seems a fitting allegory for conflict as well.
More often than not, conflict arises when trust has been eroded between the disputants. Each may accuse the other of lying and twisting the facts. Each party to the conflict focuses on the familiar, which may prevent them from finding a path forward. Each participant’s truth and narrative of the dispute is different.
As a third-party neutral I am in the unique position of hearing all the narratives, often including information that one party has not shared with the other. A successful mediation is one in which all participants feel heard, allowing them to share information, use thought and reason to begin to see the bigger picture, and realistically consider their alternatives. Occasionally, mediation may even lead to better understanding between the participants.
Perhaps, then, mediation can be described as a tool to guide the parties to see beyond the shadows and discern the possibilities for resolution.
Studies show that the aggravation we experience in response to a loss tends to be greater than the pleasure associated with a gain in the same amount.
A classic thought experiment
The eminent psychologist and Nobel prize winner Daniel Kahneman and his late colleague Amos Tversky devised the following thought experiment to demonstrate the phenomenon of loss aversion (Kahneman, D. & Tversky, A. (1984). “Choices, Values, and Frames”, American Psychologist, 39(4): 341–350):
Imagine the outbreak of a disease that is expected to kill 600 people. You must choose between two public health programs to combat the disease. Program A will save 200 lives. Program B has a 33% chance of saving 600 lives, and a 66% chance of saving zero lives.
Given these two choices, most of us will choose Program A.
Now assume that Program A will result in 400 deaths. Program B has a 33% chance of zero deaths, and a 66% chance of 600 deaths.
Given these two choices, most of us will choose Program B.
Note, however, that the choices in the two scenarios are mathematically identical: 200 out of 600 lives saved is the same as 400 out of 600 lives lost. The simple act of presenting the programs in terms of number of lives saved versus number of deaths changes our perception of which is the better option.
Shall we toss a coin?
Daniel Kahneman simplifies loss aversion this way:
“In my classes, I say: ‘I’m going to toss a coin, and if it’s tails, you lose $10. How much would you have to gain in winning in order for this gamble to be acceptable to you? People want more than $20 before it is acceptable.’”
Carl Richards, Overcoming an Aversion to Loss (New York Times, December 9, 2013).
In other words, a 50% chance of a $10 gain is insufficient to offset the 50% chance of losing $10.
Practical implications for negotiators
As a practical matter, this means that we are willing to leave a lot of money on the table to avoid the possibility of losing. Indeed, we seem to experience loss as twice as significant as an equivalent gain.
This becomes problematic in the litigation context. Negotiation requires each party to take risks and to make concessions. Parties balance their gains against their losses – and tend to be very attentive to the other side’s losses and gains. This is true for distributive assets, such as money, as well as for intangible items such as the need for responsibility-taking, reputational concerns, and apologies.
If we perceive a “loss” as twice as significant as a “gain”, this means that each party must feel that they have gained twice as much as they have lost in order to believe that the outcome is fair.
As is so often the case, the key is framing. (I have discussed the concept of framing before, most recently in my February 2016 and January 2018 articles). A skilled negotiator mediator will frame options as positive ones – as “lives saved” as opposed to “deaths” – even if an offer or demand is not originally conceived as such.
When done well, the old axiom that “a good mediation is one in which neither side is happy” fails. If both sides believe that their negotiated gains are sufficient to offset their losses, it is possible for both to walk away satisfied.
I just received a copy of a draft proposal to create a new civil rule requiring early mandatory mediation, based on the recommendations of the Escalating Costs of Civil Litigation (ECCL) Taskforce.
I am linking the WSBA cover letter and the WSBA Civil Litigation Rules Drafting Taskforce's Proposed Mediation Rules. Comments can be submitted to Sherry Lindner at CLTF@wsba.org by May 21, 2018.
Some of you may have noticed that there was no March 2018 edition of the Philip Mediation newsletter. It was an exciting and eventful month: Aside from my usual mediation and arbitration caseload, I was wrapping up a project with the City of Seattle, which had invited me to facilitate a series of rulemaking meetings on the new Hotel Employees' Health and Safety Act; planning and co-chairing the 24th Annual Northwest Dispute Resolution Conference, where I was delighted to see some of you; and beginning my role as a visiting lecturer at UW School of Law, where I am currently teaching an ADR survey course to 2L, 3L, and LLM students.