I know that I am not supposed to mix business and politics. I am going to break that rule today.

November 8, 2016

I am profoundly saddened at what my adopted country wrought on November 8. Not because we elected Donald J. Trump president, but because half the American public heard Mr. Trump paint himself as racist, sexist, misogynistic, and isolationist – and then made the decision to vote for him anyway. My sadness and fear are rooted in the fact that Mr. Trump’s election appears to validate all those hateful sentiments.

"When They Go Low, We Go High"

And yet, I am hopeful. I am hopeful because I know that for most people, hatred is not a position; it is a manifestation of deep-seated fear and insecurity. I am hopeful that this is an opportunity for us to confront the demons of racism, sexism, misogyny, homophobia, and xenophobia that were brought into the light by the Trump campaign, and to begin a dialogue to start healing the rifts that have clearly existed for too long without being openly acknowledged.

It is easy to lecture others when you hold a position of power. We have now discovered exactly where that has led us. It is much more difficult – and requires much more grace and humility – to have difficult conversations when you are on the losing side. But as First Lady Michelle Obama has said repeatedly in her eloquent speeches, “when they go low, we go high”. Grace and humility are precisely what is required when taking the high road.

What Next?

As a mediator, I find that trying to convince others in the face of strongly held beliefs rarely works. Study after study shows that facts don’t convince people to change their beliefs; indeed, facts usually serve only to strengthen those beliefs. What can bridge seemingly insurmountable divides is listening to people’s fears: Listening not with the intent to respond, to argue, or to convince, but simply with the intent to understand what is going on beneath the surface.

Don't get me wrong. I am not suggesting that we rush to reunify the American public. As The Atlantic pointed out just a week before the election, "a rush to reunion can entrench injustice. Instead of papering over differences, Americans need to be smarter about engaging them."

So let’s regroup, support each other, and find strength in our shared values. Let’s not retreat into our echo chambers. Instead, let’s take this opportunity to talk about politics at the dinner table, in schools, in social settings, and in other places where it is too often taboo in American culture. Let's create opportunities to participate in difficult conversations. Let’s continue to fight for the values and ideals that we hold dear, by engaging those who think differently than we do with respect, humility and genuine curiosity.

Not doing so – or worse, engaging in reactive anger and hatred – will not help us achieve our goals; it will only serve to deepen the divide. And that is something none of us can afford to have on our conscience.

I have written about the power of apologies before. And I thought the topic well worth revisiting, especially in our current political climate, which appears to be breeding unprecedented levels of fear, hatred, and vitriol.

Everyone has by now seen or heard the infamous Access Hollywood video of Donald Trump; and everyone has heard or seen his taped apology. Despite the apology, the video has been played, replayed, and discussed in countless hours of analysis, interviews, and comedy sketches – and as of this morning of the third and final debate, Mr. Trump’s campaign appears to be faltering. This is at least in part because the apology that was offered did not feel like a “real” apology.

I have seen a number of apologies in my mediation sessions, and I have witnessed just how powerful they can be. So what constitutes a “real” apology?

Beverly Engel, author of the book “The Power of Apology”, identifies three essential elements of a meaningful apology:

1. The apology must communicate true regret for having caused the other person(s) physical, emotional, or other damage. 
   
   Most of us do not intend to harm others. When we recognize that we have inadvertently caused such harm, we must be willing to communicate our regret for doing so, as well as our empathy for the person we have harmed and for their consequent suffering.
   
   
2. The apology must express that the speaker takes full responsibility for his or her actions. 
   
   Taking responsibility allows for neither excuses nor blame. “I am sorry you feel that way” and “I am sorry, but …” are not sufficient. Instead, a meaningful apology will usually begin with “I am sorry I [did/said] ...”
   
   
3. The apology must convey a willingness to offer a remedy.
   
   We cannot fix the past, but we can do better in the future. As such, a meaningful apology must convey either an offer of a remedy or a promise that the harmful action, words, or behavior will not be repeated in the future. 

If, and only if, all three of these elements are satisfied is an apology perceived as real and meaningful. If any one of them is seen as contrived or otherwise inadequate, the apology is not simply ineffective, but may indeed have the opposite of its intended effect: It may aggravates an already tense and unpleasant situation.
​

“Trust Me”

Listening to a fellow faculty member’s presentation on psychological barriers in negotiation during the recent CLM Mediation Claims College in Baltimore, it once again struck me how very differently various cultures go about establishing trust.

How do we convey “trust me” in our interactions? The default in majority American culture is to smile, make eye contact, and offer a firm handshake. In fact, I distinctly remember a networking event in law school in which we were specifically told that eye contact and a firm handshake are critical components of a good first impression. And having grown up in Germany, which shares many of the values and customs of the U.S., I wholeheartedly accepted this advice.

Really?

But in some cultures, a smile may not be a sign of warmth or even respect. Instead, it may be evidence that you are a fool. (An old Russian proverb roughly translates to “laughing for no reason is a sign of stupidity.")

Similarly, many Asian cultures consider direct eye contact disrespectful, especially when engaging with someone who holds a superior position.

And the handshake? Some cultures do not shake hands at all; some frown on handshakes between persons of opposite genders; in some, a limp hand is a must; and in some, it is a sign of friendship to hold the other person’s hand for a long time.

Cultural Differences in Negotiation

So what is a negotiator to do?

• It always pays to learn as much as you can about your negotiating partner and their stakeholders. This holds true whether you are from overtly different cultures or not.*
• Set aside your assumptions, and ask questions instead.
• Build a relationship with the “other side” that goes beyond the minutiae of the negotiation. (In many cultures, a shared meal lays the foundation for subsequent negotiations.)
• Create a set of shared expectations, to limit the potential for miscommunication.

The more you know about your negotiating partner – and the more you allow them to know about you – the more likely it is that you will be able to discover solutions that achieve both your goals and theirs.
​
(* For an illuminating perspective on cultural differences within the U.S., take a look at this Guardian article, which is primarily about food security, but has much larger implications.)

The “Prison of Fear”

“Although lawyers know that most cases will eventually settle – often only after a process that takes too long and costs too much – they often feel powerless to steer clients towards a more productive path.” (John Lande, Lawyering with Planned Early Negotiation: How You can Get Good Results for Clients and Make Money, American Bar Association, 2011.)

A “Prison of Fear” is created when attorneys worry that suggesting early negotiation will make them look weak; when they are so concerned that the other side will not negotiate in good faith that they shy away from making the first move; when they are worried that an early settlement may leave money on the table; when they begin with extreme and unreasonable positions in order to look tough and show their clients that they will fight for them, which in turn may lead their negotiating partner to doubt that an early settlement is possible – or worse, do long-term damage to their professional relationship.

Get Out of Jail Free?

I have written and spoken about the Washington State Bar Association’s (WSBA) Escalating Cost of Civil Litigation (ECCL) Taskforce before. As of a few days ago, the WSBA Board of Governors approved the Taskforce report, including requiring mediation in superior court cases before completing discovery, and recommending other alternative dispute resolution practices. Next, the Supreme Court will be asked to offer guidance on whether to implement rule changes.

While the practical ramifications of this development are not yet clear, what is apparent is that we are moving towards mandated early dispute resolution. As such, this may be an opportunity to get out of jail free – or at least to break out of the Prison of Fear – while also making clients happier.

​Early Negotiation and Mediation

In negotiation, as in mediation, preparation is the key to success.

Cases should be assessed early and often, to determine whether there are potential openings for negotiation and settlement, while keeping the client fully informed of the risks and benefits of taking advantage of such openings. Attorneys can eliminate protracted, frustrating, and expensive discovery battles by communicating with each other and engaging in a planned exchange of information. If attorneys find themselves deadlocked over discovery or otherwise unable to communicate with each other effectively, a mediator may be able to assist in helping them in formulating a plan that will meet all sides’ discovery needs, without the need for judicial intervention or the expense of appointing a discovery master.

For example, have you considered calling your favorite mediator to assist in streamlining discovery, to help you hash out the contentious details of a confidentiality agreement, or to otherwise simplify a case that is causing you frustration and wasted energy?

Why Wait?

Attorneys have come to view mediation as a settlement conference after informal negotiations have failed. As such, they usually come to the mediation table shortly before trial, with the singular purpose of resolving the case in its entirety. By this time, there is often a complete lack of trust in “the other side” and its motives.

In my conversations with plaintiffs’ attorneys, defense attorneys, and insurance professionals, it is abundantly clear that – more often than not – all of them have similar and mutually compatible interests as the litigation process unfolds. Trained mediators are uniquely positioned to bridge any gaps and help all parties satisfy their interests at all stages of that process.

So next time, consider using your favorite mediator to help you and your negotiating partner earlier in the process. You may be surprised at the results.

​
William Forster Lloyd (1833)
 
The economic theory of the “Tragedy of the Commons” originates in an essay written by Victorian economist and Oxford professor William Forster Lloyd in 1833:
 
In medieval England, each member of a parish community was permitted to graze a prescribed number of cows and sheep on common land. The number of animals was calculated to allow the grass to grow back at a rate that ensured a steady supply. However, if some farmers became greedy and attempted to graze more than their allotted number of animals, the grass was soon depleted; this resulted in short-term gain to the greedy farmers, but in long-term loss to the entire community, including those who had taken more than their allotted share.
 
Trust as a Commons
 
Duke University psychology professor Dan Ariely posits that trust – like land, water, and fossil fuel – is a public good or “commons”.
 
If we start to think about trust as a public good … we can see that we can all benefit from higher levels of trust in terms of communicating with others, making financial transactions smoother, simplifying contracts, and many other business and social activities. Without constant suspicion, we can get more out of our exchanges with others while spending less time making sure that others will fulfill their promises to us. Yet as the tragedy of the commons exemplifies, in the short term it is beneficial for each individual to violate and take advantage of the established trust.
 
[T]rust is an important public resource and … losing it can have long-term negative consequences for everyone involved. It doesn’t take much to violate trust. Just a few bad players in the market can spoil it for everyone else.
 
Ariely, Dan. Predictably Irrational: The Hidden Forces that Shape Our Decisions. New York, NY: Harper Perennial, 2010, at p. 259.
 
The State of Trust
 
Confronted with political situations such as Brexit and the divisiveness of current U.S. politics, and with mounting tragedies such as Paris, Orlando, Dallas, Nice, Baton Rouge, and countless others that receive less media attention, it is easy to lose trust – in government, in communities that look different from our own, and in our negotiating partners. Predatory elements feed on the fear and mistrust generated by such events, thereby further eroding the commons.
 
But we must step back and remember that the depletion of the commons works to everybody’s detriment. Although it may seem rational in the moment to give in to fear and hyperbole, it is in fact quite irrational: The long-term good can only be restored if we engage in dialogue and rebuild trust. We do not have to agree with each other, but it is more critical than ever that we agree to disagree, rather than simply disagreeing (or being disagreeable).
​

I know that I am not supposed to mix business and politics. I am going to break that rule today.

November 8, 2016

I am profoundly saddened at what my adopted country wrought on November 8. Not because we elected Donald J. Trump president, but because half the American public heard Mr. Trump paint himself as racist, sexist, misogynistic, and isolationist – and then made the decision to vote for him anyway. My sadness and fear are rooted in the fact that Mr. Trump’s election appears to validate all those hateful sentiments.

"When They Go Low, We Go High"

And yet, I am hopeful. I am hopeful because I know that for most people, hatred is not a position; it is a manifestation of deep-seated fear and insecurity. I am hopeful that this is an opportunity for us to confront the demons of racism, sexism, misogyny, homophobia, and xenophobia that were brought into the light by the Trump campaign, and to begin a dialogue to start healing the rifts that have clearly existed for too long without being openly acknowledged.

It is easy to lecture others when you hold a position of power. We have now discovered exactly where that has led us. It is much more difficult – and requires much more grace and humility – to have difficult conversations when you are on the losing side. But as First Lady Michelle Obama has said repeatedly in her eloquent speeches, “when they go low, we go high”. Grace and humility are precisely what is required when taking the high road.

What Next?

As a mediator, I find that trying to convince others in the face of strongly held beliefs rarely works. Study after study shows that facts don’t convince people to change their beliefs; indeed, facts usually serve only to strengthen those beliefs. What can bridge seemingly insurmountable divides is listening to people’s fears: Listening not with the intent to respond, to argue, or to convince, but simply with the intent to understand what is going on beneath the surface.

Don't get me wrong. I am not suggesting that we rush to reunify the American public. As The Atlantic pointed out just a week before the election, "a rush to reunion can entrench injustice. Instead of papering over differences, Americans need to be smarter about engaging them."

So let’s regroup, support each other, and find strength in our shared values. Let’s not retreat into our echo chambers. Instead, let’s take this opportunity to talk about politics at the dinner table, in schools, in social settings, and in other places where it is too often taboo in American culture. Let's create opportunities to participate in difficult conversations. Let’s continue to fight for the values and ideals that we hold dear, by engaging those who think differently than we do with respect, humility and genuine curiosity.

Not doing so – or worse, engaging in reactive anger and hatred – will not help us achieve our goals; it will only serve to deepen the divide. And that is something none of us can afford to have on our conscience.

What comes to mind as you read each of the following lines?

​African American female,

          Single mother of two,

                    Highly educated,

                              Chief of cardiac surgery.

Shortcuts and stereotypes 

If you are like most of us, you will have noticed that you had to actively shift gears with each new piece of information.

Our brains are highly evolved to make sense of the world as rapidly as possible. In order to do so, the brain uses shortcuts, including stereotypes, to fit new experiences into existing constructs.

Confirmation Bias

Unfortunately, we are rarely challenged to shift gears, because we tend to disregard information that does not fit with our existing world view. “Confirmation bias” is a well-known phenomenon that causes us to place a greater emphasis on information that confirms our existing beliefs, while ignoring or discounting anything that opposes those beliefs. Thus, the choices we make – with respect to everything from news outlets and social circles to the places we live and the composition of our Facebook feeds – strengthen our beliefs and eliminate or filter out contrary information.

We create a story that is reinforced with each retelling and with each new piece of evidence that confirms it. Ironically, once the story has grown strong enough, it is also strengthened by those few pieces of information that contradict it, as our brains work to defend the narrative. (For an article on the “backfire effect”, take a look at the “Tip of the Day” in my January 2016 newsletter.)

The Power of the Story 

Litigators are trained to create a theme for their case, so that they can weave a convincing narrative for the judge or jury. We write reports to our clients, take depositions, and whittle down the facts to those that most succinctly tell our client’s story. Clients, too, are asked to repeatedly rehearse and refine their stories, from intake interviews to depositions, responses to written discovery, mediation, and trial.

Interestingly, research in the area of trauma debriefing seems to indicate that retelling a story may do more harm than good, by solidifying the narrative and associated emotions, and preventing the trauma victim from forming resilience.

While there is currently no such research in the context of litigation, I would not be surprised to find similar forces at work. Lawyers and mediators know that the longer a dispute drags out, the more entrenched the participants become in their positions. Parties become less able to identify their own underlying interests, and less able to understand or empathize with their “opponent”.

The Case for (Early) Mediation

I am a firm proponent of mediation whenever possible – the earlier, the better. It is generally accepted that early mediation can save parties time, money and emotional energy. But I also believe that it is beneficial on a much more basic psychological level.

When mediation occurs before the parties have rehearsed their narratives, there may still be room for more than one story. Parties are more open to having their perspectives challenged without growing defensive; they still have the ability to shift gears. Confirmation bias and the backfire effect can be minimized, thereby creating an opportunity to expand the narrative, to include multiple points of view, and to achieve sometimes unexpected possibilities for settlement.
​

As you may know if you received my March 2016 newsletter, I recently became a 2016 AAA Higginbotham Fellow. This fellowship is designed “to offer the full breadth of the AAA resources for emerging diverse alternative dispute resolution professionals,” starting with an intensive week of collaboration and networking at AAA headquarters in New York, followed by a year of mentorship, continuing education and networking opportunities.
 
(You can find a photograph of this year’s Higginbotham Fellows here. An inspiring group, they are law firm partners, tenured professors, and VPs at Fortune 500 companies, to name just a few.)
 
What Does “Mentorship” Mean?
 
Wikipedia defines mentorship as “a relationship in which a more experienced or more knowledgeable person helps to guide a less experienced or less knowledgeable person. The mentor may be older or younger, but have a certain area of expertise. […] Mentoring is a process for the informal transmission of knowledge, social capital, and the psychosocial support perceived by the recipient as relevant to work, career, or professional development; mentoring entails informal communication, usually face-to-face and during a sustained period of time.”
 
Mentoring Helps Professionals at All Levels Advance Their Careers
 
As described by Alex Vorro in InsideCounsel.com, “at nearly every stop along the way in attorneys’ careers, opportunities abound for them to engage a wide variety of mentors. And mentoring isn’t just for novice lawyers – even the most experienced attorneys have relationships with peers and even subordinates through which they continue to learn new ideas and improve their practices.”
 
Many law schools, firms and bar associations have formal mentorship programs, and new attorneys frequently seek out their own mentors on a more informal basis. In addition, many attorneys and mediators form peer mentorships and “roundtables”, which allow seasoned professionals to draw on the collective knowledge and experience of a group to improve their own skill set. And some organizations even have reverse mentorship programs, in which a junior employee mentors a more experienced one in order to bring new perspectives to the organization.
 
There is Always More to Learn
 
Having established my full-time ADR practice more than two years ago, after roughly 200 hours of classroom work and practical training, I consider myself a skilled and effective mediator. I train and coach new mediators at the 40-hour Basic Mediation Training, teach Mediation Skills to law students, and have given presentations on mediation to lawyers, managers, and various industry professionals.
 
However, I am very much aware that I belong to a new generation of dispute resolution professionals, and that there is a wealth of experience in the field from which I can learn – and which I in turn hope to impart to those who follow in my footsteps. I am excited to begin this journey.
​

2016 Northwest Dispute Resolution Conference 
 
I am happy to report that last month’s 2016 Northwest Dispute Resolution Conference was a resounding success. 

Personal highlights included an excellent primer on elder mediation featuring Zena Zumeta, an inspiring presentation by representatives of Ireland’s Kennedy Institute Workplace Mediation Research Group, and the always eloquent Nina Meierding.
 
In addition, Randy Kiser led an interactive session on attorney and mediator ethics that I found refreshingly engaging and thought-provoking. One of questions on which Randy invited comment implicated mediation confidentiality. I was struck – not for the first time – at what appears to be a misconception about the applicability of privilege and confidentiality under the Uniform Mediation Act (UMA).
 
The Uniform Mediation Act
 
The UMA was adopted in Washington in 2005, and codified at Chapter 7.07 RCW. It is fundamentally a privilege statute, and was created in order to unify a number of previously existing mediation privilege laws.
 
A quick refresher may be in order here: You will recall that privilege provides protection against the use of documents and communications in judicial proceedings, arbitrations, or legislative hearings. Confidentiality is a much broader concept, which protects against all outside disclosure.
 
Many mediators and attorneys appear to believe that the UMA provides both privilege and confidentiality by default. It does not.
 
Privilege
 
The UMA states that “[e]xcept as otherwise provided in RCW 7.07.050, a mediation communication is privileged as provided in subsection (2) of this section and is not subject to discovery or admissible in evidence in a proceeding unless waived or precluded as provided by RCW 7.07.040.” (RCW 7.07.030.)
 
The UMA goes on to outline the exceptions to privilege, who can assert the privilege, and how privilege can be waived or precluded.
 
In other words, privilege applies automatically to all mediation communications, with limited exceptions.
 
Confidentiality
 
The UMA is largely silent with respect to confidentiality, however. It provides only that, “[u]nless subject to chapter 42.30 RCW [the open public meetings act], mediation communications are confidential to the extent agreed by the parties or provided by other law or rule of this state.” (RCW 7.07.070.)
 
As Prof. Alan Kirtley points out in his User’s Guide to Washington’s Uniform Mediation Act, “[t]he UMA outlines the specific content of the mediation privilege in great detail. In contrast, confidentiality is governed by the agreement of the parties in each mediation.”
 
Unlike privilege, confidentiality is not automatic under the UMA. It applies only by agreement of the parties. The UMA does not prevent parties from shouting from the rooftops everything they learned in mediation.
 
What’s In Your Agreement to Mediate?
 
So how does this affect you? First, rest assured that the mediator is ethically required to maintain confidentiality regardless of the UMA or the specific provisions contained in the Agreement to Mediate.
 
However, not all Agreements to Mediate are created equal. Some contain both privilege and confidentiality clauses. Some speak to privilege, but are silent as to confidentiality. And some simply defer to the UMA – which does not include confidentiality.
 
My standard Agreement to Mediate now specifically spells out privilege as well as confidentiality.  I believe that confidentiality is essential to the parties' ability to be candid with me as their mediator, as well as with each other, especially if there is to be any potential for joint sessions. In addition, depending on the circumstances of the mediation, confidentiality may be mandated by other applicable rules, such as the Washington federal courts' CR 39.1, the state courts' Special Proceedings Rules, and the EEOC's mediation rules.
 
Make an Informed Decision

Whether you are an attorney, a mediator, or a party to a mediation, I encourage you to review any Agreement to Mediate with the specifics of the case in mind, in order to make an informed decision as to whether it provides necessary and/or sufficient safeguards with respect to confidentiality.
​

Last week, I received my acceptance letter to the American Arbitration Association’s (AAA) 2016 Higginbotham Fellows program. This fellowship is designed “to offer the full breadth of the AAA resources for emerging diverse alternative dispute resolution professionals.” As such, I will be spending the first week of May in New York City engaging with leading ADR practitioners, and the program will then offer a year of additional seminar and networking opportunities.

My interest in the fellowship began at the ABA’s 2015 Dispute Resolution Conference in Seattle. Having participated in audience comments at a panel presentation, I found myself having a conversation about diversity and my role in it. This eventually turned into a full-fledged article for the November issue of the ABA’s Just Resolutions newsletter.

I must admit that I do not usually refer to myself as “diverse”. Although I know that many people who look at me see a woman of color, the way I think of myself is far more complicated. As I wrote in November:

Despite all the admonitions to not judge a book by its cover, we generally do just that, and often for very legitimate reasons. My “cover” – at least if you know me only on paper – is that of a U.S.-born Caucasian attorney mediator, gender (based on my name) uncertain. In a historically Caucasian and male-dominated profession, I expect that this has served me rather well.
 
Nonetheless, I am certainly “different” on several levels – and I have always struggled with how much of this is appropriate fodder for marketing, and how much is cheap pandering to the idea that I must utilize my differences to distinguish myself from others. My hope is that the Higginbotham Fellowship will allow me to interact with other ADR professionals who are asking themselves similar questions.

But most importantly, I am simply excited to have been selected for this opportunity to learn from recognized leaders in the field of ADR.
​

Whether you loved him or hated him, agreed with his elegant legal opinions or fervently disagreed with them, it is undeniable that Justice Antonin Scalia was one of the most influential jurists in American legal history. His death on Saturday has sent waves – of shock, dismay, and jubilation – through the country.
 
At a time when political partisanship is at an unprecedented height, what most intrigues me is the much-chronicled friendship between Antonin Scalia and Ruth Bader Ginsburg. Justice Ginsburg is as fiercely liberal as Justice Scalia was conservative, and the two disagreed vehemently about everything from women’s rights and gay marriage to campaign financing and corporate personhood, yet they were also the closest of friends.
 
“If you can’t disagree ardently with your colleagues about some issues of law and yet personally still be friends, get another job, for Pete’s sake,” Scalia has been quoted as saying. These two great legal minds recognized that there is more to life than political ideology. They worked together, traveled together, went to the opera together, and enjoyed each other’s company as human beings. Most importantly, they respected each other despite their ideological differences.
 
In her official statement regarding Justice Scalia’s death, Justice Ginsburg wrote:

​"We disagreed now and then, but when I wrote for the Court and received a Scalia dissent, the opinion ultimately released was notably better than my initial circulation. Justice Scalia nailed all the weak spots – the 'applesauce' and 'argle bargle' – and gave me just what I needed to strengthen the majority opinion."
 
Perhaps we can take this opportunity to remember that our civic discourse can only be strengthened by respectful debate. Disagreement on the issues alone should not negate respect, and indeed may not even preclude friendship.

My January newsletter contains a checklist of tips for an effective mediation, which was inspired by several upcoming speaking engagements. 

This coming Tuesday, January 19, I will be a faculty member at a WSBA New Lawyer seminar on Mediation Basics. In March, I will be a speaker at two sessions of the annual Northwest Dispute Resolution Conference. And I was recently invited to be a returning faculty member at an insurance industry “Mediation Claims College” in Baltimore in September. As such, I have been spending a lot of time thinking about what information will be useful to my audience, and how to convey that information in my presentation materials.

The following article expands on the newsletter, to provide additional background and some of the rationale behind the checklist.

​1.  Be deliberate about the timing of your mediation

Do not schedule a mediation simply because it is required by the case schedule.

Consider the impact of pending dispositive motions, depositions, medical examinations and other discovery activities. Where a summary judgment motion or medical examination is pending, both sides are likely to be aware of their risks, thereby creating opportunities for settlement. However, once a summary judgment motion has been decided or the results of a medical examination are known, those risks are diminished.

Assess whether the case requires a full-day, half-day or shorter mediation. Many mediators will require full-day commitments, while others will offer flexible scheduling options. If the case can be resolved in a couple of hours, your client will not appreciate being forced to pay for more time. However, be realistic about the time required; if the case is complex, involves more than two parties, will impact ongoing relationships between the parties, or involves a plaintiff who has an emotional story to tell, consider scheduling the mediation for a full day. The vast majority of cases are resolved at mediation; however, the reason that many of the remainder fail is because there was insufficient time to allow the process to work.

In rare cases, one or more counsel will assert that there is no possibility of settlement, and that they are simply “checking the box” to satisfy a case scheduling requirement. If this is the case, consider requesting a waiver of the ADR requirement, or locate a mediator who will conduct hourly mediations.

Examples of such situations may include:

• Your client is focused on the principle of the matter, and is not interested in compromise.
• The other side has made a “bottom line” demand or offer that is unacceptable to your client and you believe that the other side is being truthful.

However, be prepared to answer some tough questions from the mediator about the reasons why a settlement is not possible. From a mediator’s perspective, there are always opportunities for negotiations.

2.  Be realistic in your evaluation of the case

Most litigated cases will involve an exchange of some amount of money. As such, it is important to arrive at an estimated monetary value of the case. However, in order to arrive at a realistic settlement amount, you will also have to determine the cost of proceeding to trial, which will include both “hard” costs (such as attorney fees and expert witness fees), “soft” costs (such as the time it will take to get to trial, the emotional impact of litigation on your client, etc.), and the estimated value of any non-monetary needs and interests. Finally, factor in the risk at trial, or the percentage chance of obtaining the desired result.

Be careful not to overestimate your chances of success or underestimate your costs and risks. It becomes far more difficult to resolve a case if you have to justify a negotiation strategy to your client at mediation that differs from your initial evaluation.

3.  Define your goals

Define your mediation goals early, as they will influence timing of mediation, choice of mediator, and negotiation strategy.

Substantive Goals 

​The goal of a mediation is typically resolution of the entire case.  However, there may be other goals that can be achieved in mediation. For example, it may be possible to narrow the case, resolving high risk issues and clarifying the remaining issues for trial. Unnecessary parties may be dismissed by stipulation, thereby distilling the case to its most critical issues.

Procedural Goals 

Setting procedural goals can narrow issues for trial, expose the strengths and weaknesses of each case, identify drivers and impediments to resolution, and clarify what targeted discovery is necessary to the development of the case for trial, as opposed to simply propounded as a matter of course.

A mediation can also help you lay a foundation for how the parties will move forward – you can discuss such items as timelines, the potential for follow-up mediation sessions once certain discovery goals have been achieved, etc. In essence, you may be able to use a mediator as a discovery master, without the cost of protracted discovery motions.

Relational Goals 

​While financial objectives are the most common, there may also be relational goals that should not be ignored, and that may in fact cause a mediation to fail if they are not addressed. Reputation may be the primary the driver in a case of malpractice, defamation, intellectual property infringement, etc. Parties may have an ongoing business relationship, but may be involved in a single issue contract dispute that is negatively impacting the business. Neighbors may see each other regularly and have common acquaintances, but be involved in contentious litigation. 

Employment cases, family disputes and TEDRA matters, in particular, tend to include critical relational components.

4.  Develop a negotiation strategy

Once you have evaluated the case and assessed your goals, you will be in a position to develop a negotiation strategy that will allow you to achieve those goals.

• Would a joint opening session or other joint session work be useful or productive, or is the case better suited to shuttle-style negotiation? Can your mediator accommodate either or both?
• Are there specific issues on which you need the mediator’s assistance? (E.g., managing an unrealistic client, conveying information to the other side without looking weak, etc.)
• Are you more comfortable using a “competitive” (positional) approach or an “integrative” (interest-based) one, given the specific issues presented by your case? The former assumes that each party will compete for the most he or she can get of a limited resource. The latter assumes that if both parties work together, they can maximize available resources so that each gets more of what they want.
• Assess the potential for non-monetary offers or concessions, such as apologies, letters of recommendation, etc. Think outside the box, especially if you are engaging in early mediation and/or there are relational issues at stake!
• Map out your negotiation moves. These can consist of monetary offers or demands, as well as non-monetary ones.
• What are your alternatives to a negotiated settlement? What is your worst alternative (WATNA), your best alternative (BATNA) and your most likely alternative?

5.  Be deliberate in your choice of mediator

There are many different types of mediators, from evaluative to facilitative and even transformative on one axis, and from narrow to broad on the other. Some use a combination of models, while others are most comfortable with one.

A mediator using primarily evaluative strategies will be more likely to provide his or her assessment on the issues, while a mediator using facilitative techniques will encourage the parties to make their own assessments, regardless of whether the mediator agrees with them or not. Similarly, on the narrow versus broad axis, the term “narrow” at its extreme refers to purely positional and distributive (“fixed pie”) negotiations, while “broad” means that the mediator is likely to help the parties assess non-legal arguments in order to achieve a long-term resolution.

Most mediators will tend towards one of these styles, but should be able to tailor their (procedural and substantive) approach to the needs of the specific case.

Where there are ongoing relationships between the parties, facilitative techniques may be better suited to a long-term resolution than an evaluative approach that does not emphasize underlying interests; however, if the case is primarily focused on monetary damages, an evaluative style will allow the parties to weigh the risks and benefits and decide whether to settle or take the case to trial.

If your case involves a highly specialized subject matter, consider a mediator who has a background in that subject matter or is known for handling similar cases.

Schedule a pre-mediation telephone call with your mediator. Some mediators will schedule a conference with each party prior to the mediation in order to gain a deeper understanding the case. This allows you to build a relationship with your mediator, discuss issues that may not be addressed in your mediation brief, and will allow your mediator to build a strategy to help you resolve the case. Use this time to ask any questions you may have about the mediator’s style, experience and mediation model. Get to know your mediator and allow your mediator to get to know you.

If your mediator does not generally conduct pre-mediation conferences, request such a conference – it is time well spent.

6.  Fully prepare yourself and your client for the mediation

Determine who the appropriate stakeholders are and who should attend the mediation (either in person or by telephone). Keep in mind that some courts require decision-makers to be present in person absent exceptional circumstances.

Make a strategic decision about the roles of the attorney, the client and anyone else attending the mediation. Are you comfortable allowing your client to speak to the mediator directly? Either way, make sure to have a conversation with your client about the division of responsibility in the mediation room.
 
Consider mapping out your negotiation moves, so that you are not taken by surprise. You can always alter your strategy to fit the actual negotiations, but knowing how you want to arrive at your goal, as well as what your goal is, can alleviate much of the anxiety that comes with having to make decisions “on the fly”.

7.  Submit an effective mediation brief

Submit your brief in a timely manner. Too often, mediation briefs are submitted the day or even the night before a mediation. The earlier you submit your materials, the more likely it is that your mediator will have had time to read them, to think about them, to do any necessary research, and to make sure that his or her techniques are tailored to your specific case.

Submit a brief that is specific to the mediation. Do not submit your summary judgment motion (which was written for a different audience) or re-purpose a status report (which may focus on aspects of the case that are irrelevant to mediation). The goal is both to educate the mediator and to allow the mediator to gain an understanding of the case that will allow him or her to convey your perspective of the case to the other side. You do not need to convince your mediator - you need to give the mediator the tools and information necessary to help you convince the other side.

Submit only those documents that are relevant to the mediation. While most mediators will try to read everything that is sent to them, cluttering your submission with irrelevant material makes it much more difficult for the mediator to identify the issues that are truly pertinent to resolution. In addition, while mediators generally include “reasonable” review time in their fee, most mediators will add a surcharge for extra time to review voluminous materials.

Here are some examples of documents that you may want to consider eliminating from your mediation submission:

• Medical records that have no relevance to the case.
• Medical bills – they add little to no value for a mediator. (If you are in arbitration, you may need to establish the cost of medical treatment, in which case an arbitrator will thank you if you also submit a concise summary of expenses.)
• Accident reports by the investigating officer. Such reports are hearsay evidence and have no probative value with respect to either fault or damages. (If the report provides information about road conditions, weather, etc., by all means submit it and highlight the pertinent information.)

Consider sharing your mediation brief with the other side. Many attorneys do not send their mediation briefs to opposing counsel, which means that the mediator has to spend valuable time educating the parties about contested facts and legal arguments. There are usually few, if any, facts or arguments that a party wants to keep confidential throughout the mediation.

If there truly are items that you do not want the other side to know prior to the mediation, share your primary brief and submit a separate confidential document to the mediator.

8.  Make sure that someone with full authority will be present at the mediation

Schedule the mediation at a time that takes into account the time constraints of clients and other stakeholders that will have to travel. If your adjuster is on the East Coast and the mediation begins in the afternoon, you are not likely to be able to resolve the case until the adjuster returns to their office in the morning. Similarly, if your client is traveling into town for the mediation, make sure their travel is booked well after the anticipated end of the mediation.

Alert everyone who may need to be consulted regarding a settlement (such as lienholders, Medicare, spouses, etc.) of the mediation, and ensure that they are available for the duration of the mediation

9.  Be prepared to engage in substantive negotiations

Have a candid discussion with your client prior to the mediation.  This will allow you to prepare your client for what is likely to happen at mediation, as well as giving you a more accurate assessment of his or her needs and interests, some of which may be non-monetary. Make sure your client is prepared to listen with an open mind and to consider all aspects of their case.

Objectively evaluate the strengths and weaknesses of your case. This will allow you to prepare for facts and arguments that are likely to be raised by the other side and counter them if necessary. A good mediator will ask tough questions and work with you to craft a settlement, but this is possible only if you have prepared both yourself and your client to deal with any weaknesses in your case and to be correspondingly flexible.

Have a meaningful discussion with opposing counsel before the mediation. When attorneys arrive at a mediation having never spoken to each other about settlement, a significant amount of time may be spent laying the groundwork for substantive settlement negotiations. You can eliminate much of your and your client’s frustration at any perceived lack of progress in mediation if you have had conversations with opposing counsel prior to the mediation.

10.  Do not make unreasonable demands and/or offers

The perceived unreasonableness of a demand or offer often causes the other party to respond in kind. Unreasonable positions are often rooted in a fear that a reasonable position will compromise a party’s bargaining position. But if the first few hours of a mediation are spent with the mediator shuttling unreasonable numbers back and forth, this only leads to frustration and a digging in of heels.

You are almost always better off starting closer to an acceptable outcome and making smaller moves than starting too high or too low and being forced to make larger concessions. Mediators often hear the argument from one side that they have made large concessions while the other side has made only small ones. Most often, this is because the side making large concessions started so high or low that they cannot reach a reasonable middle ground otherwise.

Do not ask your mediator to convey a “bottom line” or “final” demand or offer, unless it really is your best offer. First, you run the risk of ending the mediation if the other party deems your offer or demand to be unacceptable. Second, and perhaps more importantly, if you continue to negotiate after taking a “bottom line” position, you may lose credibility with both the mediator and opposing counsel – not just for this case, but on future cases as well.

I know I am just a tad bit late on this, but did I mention that the 2015 issue of Washington's Super Lawyers Magazine once again named me as the sole "Rising Star" in the practice area of Alternative Dispute Resolution? Thank you to those who nominated me, both in 2015 and in previous years!

My article, "The Thorny Issue of Diversity", was published in the November issue of the American Bar Association's Just Resolutions E-Newsletter today!

As you may know from my August newsletter, I spent almost three weeks in Ireland and England last month. If you have ever driven through the English countryside, you will have encountered roads that seem impossibly narrow for one car – let alone two! And yet, drivers hurtle down these tiny country roads at breakneck speeds, successfully avoiding trees, shrubs, and cars driving in the opposite direction.   

A Real Life "Prisoners’ Dilemma"

(For a description of the "Prisoners' Dilemma", please take a look at my blog entry of April 21, 2015.)

Imagine that you are in a car, navigating a stretch of road that barely accommodates your small vehicle. As you round a bend in the road, an oncoming car appears. What do you do? You could keep driving, in the hopes that the other driver will somehow get out of your way. (Caution: This may turn the exercise into a game of “Chicken”, rather than “Prisoners’ Dilemma”.) You could throw your car into reverse and back up the moment you see the other car. Or you could do what English drivers do, which is to cooperate. Both cars slow down, one driver edges into what barely qualifies as a pull-out, and then one car slowly passes the other, taking care to leave half an inch of clearance between side mirrors.   

What Does This Have To Do With Mediation? 

Although you have no reason to trust the driver of the other car, this process seems to work time and time again. Why? Because the alternatives – continuing to barrel down the road or panicking and backing up – are far less efficient for all involved. 
This every-day occurrence provides another glimpse of the benefits of a cooperative mindset: Even where trust has not been earned or established, a minor concession can result in a relatively large gain to both parties. 


* For an idea of what I mean by “narrow”, have a look at this YouTube video.

Often misunderstood as something akin to “Lord of the Flies” in a psychology lab, Stanford professor Philip Zimbardo's "Stanford Prison Experiment" (a movie version of which is due for release on July 17, 2015) actually contains powerful lessons for negotiation and conflict resolution. 

The Experiment

The 1971 study, which has become one of the most (in)famous in the psychology literature, was designed to understand the development of norms and the effects of roles, labels, and social expectations.

Professor Zimbardo and his colleagues recruited 24 male college students for a two-week study on the “psychology of imprisonment”: 12 to role play prisoners and 12 to role play guards. Assignment to the roles of prisoner or guard was random, and none of the students had any prior record of criminal arrests, medical conditions, or psychological disorders. Within just a few days, the “guards” began to implement authoritarian measures and subjected some of the “prisoners” to psychological abuse. Many of the prisoners passively accepted this abuse and, at the request of the guards, even harassed other prisoners who attempted to prevent it. After only six days, the simulation had become so real, and the guards so abusive, that the experiment had to be terminated.

Expectations Drive Behavior

There are many questions surrounding the validity of the study, which has been interpreted to show that we have a great capacity for evil; a finding that is underlined daily as the news headlines bring us stories of police brutality, violent riots, beheadings, and other horrific events. But more importantly, the Stanford Prison Experiment demonstrates that we tend to conform our behavior to preconceived expectations. All else being equal, we behave the way we believe we are expected to behave, especially if the expectation comes from someone in a position of authority.

Lessons for Mediation

How is this relevant to mediation? As a mediator, if I can create positive expectations – of productive and protected interactions with the mediator, a constructive dialogue with the other side, and a favorable outcome – mediation participants are more likely to conform their behavior to those expectations.

This is one of the reasons why I routinely conduct pre-mediation conferences with each side, either in person or by phone. It is my role as the mediator to listen to and understand the stories of the parties and their attorneys, to reality test in order to allow the parties to determine their best course of action, and ultimately, to help the parties construct mutually beneficial (or at least mutually acceptable) solutions despite multiple versions of the truth and multiple interpretations of the law. Pre-mediation conferences give me an opportunity to build trust and rapport from the very first conversation, thereby shaping the expectations of the participants, their hopes for a good outcome, and thus the extent of their willingness to negotiate in good faith.

Equally importantly, attorneys almost always hold a position of relative authority with respect to their clients. When attorneys take the time to 

• have an in-depth conversation with the client to uncover the client's goals and underlying interests,
• discover the client's concerns and the reasons for those concerns, and
• candidly assess the strengths and weaknesses of the case prior to mediation,

they have the power to define the client's expectations and elicit behavior that will conform to those expectations.

And when those attorneys are then willing to have a candid conversation with me about their case, it allows me to assist them most effectively by constructing a process and engaging in a conversation with all sides that is conducive to the achievement of their goals.

“Getting It Done”

The psychological underpinnings of our behavior are often subconscious. But by knowing the case and approaching the mediation with a firm but collaborative mindset, attorneys, clients and mediators can work together to consciously create a framework for mediation that will ultimately "get the deal done".


(Credits: Thank you to Cristin Fenzel for acting as my editor for this article.)

I am excited to announce that I launched my very own Philip Mediation newsletter on Monday. The inaugural June 2015 issue is now available here, and you can subscribe here.

We are more likely to identify those statements as true that we have heard before, regardless of whether the statement is actually true or not. I.e., we are more likely to believe a familiar statement than an unfamiliar one. So pay attention to why you believe something to be true!

One of the panel presentations at last week’s ABA ADR Conference in Seattle led me to wonder whether attorneys perceive mediation negotiations, especially in joint sessions, as a type of "Prisoners' Dilemma".

You may recall the setup for this classic example of game theory. Two co-conspirators (A and B) are arrested and held in separate cells with no means of contacting the other. The prosecutors do not have sufficient evidence to convict the two on the principal charge, so they offer each prisoner a deal: Betray the other in exchange for a lesser sentence.

• If A and B both remain silent, they will each serve 1 year in prison on a lesser charge.
  
• If A and B betray each other, each of them will serve 2 years in prison 
  
• If A betrays B, but B remains silent, A will be set free while B will serve 3 years (and vice a versa) 

As such, the best available outcome (freedom) can only be achieved if one betrays the other, and only if the other does not do the same. Because this is true for both parties, the most likely outcome is that they will betray each other, resulting in a 2-year sentence for each. The best mutual outcome (a 1-year sentence) is achieved if the parties cooperate with each other and both remain silent.

It is no secret that most mediators are proponents of joint session work, while the majority of litigation attorneys are not. When the initial framework within which attorneys and parties approach negotiations in mediation is mistrust, it may seem more effective to remain in separate rooms, be aggressive, posture and make few or no concessions than to trust your negotiating partner by revealing underlying interests or making a gesture of good will in the hope that the other side reciprocates. This turns mediation into a zero-sum game – one side can win only if the other side loses. 

However, if the mediator uses joint sessions wisely, and properly prepares the parties, there is a high potential for a productive and beneficial exchange of information. The joint session can eliminate the specter of the nameless faceless "other" who can be blamed and vilified. Parties have the opportunity to speak to each other directly across the table, discovering interests that can often be addressed without giving up much or anything of substantive value. If nothing else, this lays a solid foundation for negotiations.

Indeed, mediation practitioners report that over-performance (i.e., making more generous offers than are expected by the other side) is generally reciprocated. In this, mediation is very different from the “Prisoners’ Dilemma”, because there is an opportunity for direct communication. If the parties enter the mediation willing to listen to each other and – at least initially – give each other the benefit of the doubt, they may find that they can achieve more of their goals by working together than each of them could achieve individually.

A couple of days ago, I followed a link on Facebook to a New York Times piece titled "The Importance of Naming Your Emotions", which brought to mind a seemingly minor interaction that occurred many years ago, but has stuck with me.

At the time, I was a relatively new associate at the small law firm in Seattle where I spent the majority of my litigation career. Around mid-day, I ran into one of the more senior attorneys in the file room, and noticed that he looked very tired. "How are you?", I asked.

Now, I must digress briefly to point out that I spent the first 17 years of my life in Germany, where "how are you?" was not used as a cursory greeting to be met with a rote response of "fine". So I was rather taken aback when this attorney - with whom I had an excellent working relationship - looked me straight in the eye and said something along the lines of "you are not really interested in how I am doing". I was not sure how to respond, so I did not pursue the question further at the time. (I did learn later that he was exhausted, overwhelmed and frustrated for a variety of reasons.)

The NYT piece makes the point that "We can't change what we don't notice. Denying or avoiding feelings doesn't make them go away, nor does it lessen their impact on us, even if it's unconscious. Noticing and naming emotions gives us the chance to take a step back and make choices about what to do with them."

The legal profession is not exactly "touchy-feely", and the majority of attorneys I know are even less comfortable around emotion than most non-attorneys. We tend to be linear thinkers, problem-solvers, and Type A personalities. We excel at dealing in cold hard facts.

But humans and human interactions are messy. They are rarely fact-based, but instead are driven by feelings and emotions. Being able to notice those emotions - in ourselves, our family members, our co-workers, our clients, and even in those we perceive to be our adversaries - and allowing them to be named is ultimately the only effective way to deal with them and get to the facts.

As a mediator, I frequently ask my clients how they are feeling. Giving them permission to talk about their feelings, and assuring them that I am listening, can be one of the most effective ways to allow them to move past their emotions and into productive negotiations.

This is not to say that we should wear our emotions on our sleeves at all times. There is, of course, a time and a place to deal with them. What is important is to create such a time and place, so that our unexpressed feelings do not have a negative impact on our work and our lives.

I have not been posting much lately, so I wanted to share a link to a piece that discusses some of the cognitive biases we all tend to experience in our lives. I would love to see/hear your thoughts and comments on this.

This has been a good week: Two mediations, two resolved cases, and satisfied clients all around.

And to top it off, I just received a lovely LinkedIn recommendation from one of my mediation clients, who in turn was great to work with.

Our evaluation of the logical strength of an argument tends to be biased by the believability of the conclusion, rather than how well the argument supports the conclusion. Be careful not to over- or undervalue an argument based on how strongly you may wish to believe the proffered conclusion.