Happy Halloween!

For this edition, it seemed appropriate to write about two things that can spook mediation participants, namely the specters of early mediation and joint sessions.

Early Mediation

In litigated cases, there is often a fear of scheduling a mediation before all necessary information has been gathered. Practically, this often means that mediation occurs on the "eve of trial", at or near a deadline imposed by the court. 

It is true that preparation is key, and that effective preparation requires the parties and their attorneys to be well informed about their options. However, research shows that positions become entrenched as time passes. This is especially true when individuals– including parties, attorneys, claims professionals, and other stakeholders – are required to repeat and justify their perspectives as the case progresses through depositions, written discovery, and motions practice.

Parties are more likely to be receptive to options for resolution before they spend time and money shaping and defending their positions.

And if an early mediation does not resolve the case, it may yield other benefits, such as providing clarity about strengths and weaknesses of the case, formulating next steps, and setting the stage for further productive negotiations.

Joint Conversations

One of the principal foundations of mediation is party self-determination. As such, I never require joint sessions, because participants have serious concerns about the potential harm they may cause.

However, I conduct separate pre-mediation calls with each party, and always include a discussion of whether the parties would consider a joint conversation at some point during the mediation. Such a joint conversation may include all participants or some subset of participants, such as attorneys or experts.

While I am more than willing to shuttle messages and questions between rooms, a facilitated direct conversation can often save significant time and effort. Consider the opportunity inherent in humanizing yourself, acknowledging the other, and observing body language and tone of voice in a less formal setting than a deposition or a courtroom.

Much information can be gained from such interactions, if they are properly managed by a trusted mediator.

Not so Spooky After All

Don't be spooked by the concept of early mediation or the thought of joint sessions. While neither is appropriate in all cases, both can be powerful tools if used judiciously.

I recently adopted a 10-week old puppy. She has taken over my life, but I don’t regret it for an instant. Well, except perhaps in those instants when I wake up at 4 a.m. because she is on a strict house training schedule and needs to go out in the autumn rain.
 
Fortunately, I have a home office. So for my clients, it is business as usual when it comes to phone calls, e-mails, and meetings. And as I think about the skills needed to raise and train a puppy, it occurs to me that many of them translate to my professional life as well.

Preparation

For the first few days, finding Mocha’s collar, her leash, my shoes, treats, etc., when she needed to go out seemed oddly baffling. I did not yet have designated places for each of these items that made it easy to grab them and go. Now I do, and we have settled into a routine.
 
How does this relate to mediation? Preparation is key. Whether selecting a mediator, scheduling a mediation, or planning and executing your negotiation strategy, it is important to set your goals and consider your alternatives. Make you sure you know that everything you need is readily accessible, both physically and metaphorically. Because as the old saying goes, “to fail to prepare is to prepare to fail”.

Awareness

Young puppies have an attention span of just 20-30 seconds, yet they are constantly learning. The question I must ask myself is what I am conveying to Mocha in those moments when I do not think she is paying attention.

The same is true in mediation. Everything you say or do has an impact, be it a small gesture such as a smile in a hallway, a minor concession regarding the time or location of the mediation, or a large move in dollar amounts. Be aware of what you are conveying even in those moments that you perceive as less than substantive negotiations. Intentionally or not, you may still be sending a message.
 
Timing
 
Sometimes, Mocha is just too excited to listen. At other times, she is too exhausted, or too distracted. And sometimes, when the timing is just right, she amazes me with her willingness and her ability to absorb new information.
 
When thinking about mediation, consider whether the timing is right. Is it so late in the case that the parties are suffering from litigation fatigue? Are there other things going on in the case – or in your or your client’s personal or professional life – that are causing a distraction? If the timing is right, progress in negotiations often readily follows. If it is not, make sure to let your mediator know why. Because in contrast to training a puppy, timing is within your control, and your mediator can assist you in resolving your case even if the timing is imperfect.

Here in the Pacific Northwest, we just experienced the final week of a 56-day record dry spell. A week that was filled with so much smoke from British Columbia wildfires that our air quality was worse than that of Beijing, and Mt. Rainier became invisible.
 
Women in the News
 
On Tuesday of that disquieting week, an excellent New York Times op-ed on the challenges faced by women in the legal profession hit my inbox – multiple times, through different listservs. The statistics are discouraging, but there is a roadmap towards change.
 
On Wednesday, I first heard about the now infamous Google memo that has sparked controversy and dialogue about women in the software industry. We have a long road ahead of us.
 
The Trap of Confirmation Bias
 
But as Christine Emba wrote in an opinion piece about that Google memo in the Washington Post on Friday, “To avoid confirmation bias and be able to make a clear case for your values, you have to be willing to hear the other side.”
 
Understanding = Power
 
As uncomfortable and disagreeable as it may be, understanding the other side ultimately gives us more power. Power to examine our own perspective for flaws. Power to revise our arguments to make them less threatening and more compelling. Power to create a narrative that has the potential to reach those who disagree with us.
 
In mediation, this dynamic is always present. In forging a path toward resolution, we cannot give in to the temptation to blindly paint all members of a group with the same brush. We cannot afford to default to stereotypes based on external characteristics, or to make assumptions about the other side’s abilities, experiences, or motivations. Instead, we must understand the individual. We must understand what motivates them, what will lessen their pain, what they want and what they need in order to put the conflict behind them and “move on”.
 
Saturday’s Humanity
 
On Saturday, the skies finally cleared and everyone breathed a sigh of relief – only to have the wind knocked out of us by the news of white supremacist terrorists in Charlottesville. And yet, the unified outrage at these acts of bigotry and hatred serves as a reminder that our shared humanity far outweighs our differences.

Summer is in full swing, and for a change of pace, I would love to hear from you!

I would be delighted if you would take a moment to e-mail me your answers to one or more of the questions below. I have also created an online survey that you can complete if you prefer.
 
1. What is the most effective strategy you have used (or seen others use) in mediation or other dispute resolution settings?

2. What strategies have you used or witnessed that have been ineffective or counterproductive?

3. What is the greatest challenge you have experienced in mediation or other dispute resolution?

I will be back with dispute resolution articles, tips, news and events in August. In the meantime, I hope you are having a wonderful summer!

“Unskilled and Unaware of It: How Difficulties in Recognizing One’s Own Incompetence Lead to Inflated Self-Assessments” (Dunning, D. and Kruger, J., Journal of Personality and Social Psychology 1999, Vol. 77, No. 6. 1121-1134).

The Dunning-Kruger Effect

In 1999, two Cornell University researchers conducted a series of studies on how people perceive their own level of competence. The results should cause all of us to pause and engage in a bit of self-reflection.

​David Dunning and Justin Kruger concluded that those who are really bad at something tend to believe that they are actually quite good at it. In other words, in order to appropriately assess our own expertise at something, we must already possess a certain amount of expertise.

​Id.
 
It’s Not Just Mr. Wheeler!
 
Since its publication, Dunning and Kruger’s paper has become something of a cult classic. It certainly has far-reaching implications, not least for litigants and others embroiled in disputes.

“The Dunning-Kruger Effect Shows Why Some People Think They're Great Even When Their Work Is Terrible” (Mark Murphy, Forbes, January 24, 2017).
 
The Overconfidence Effect
 
Attorneys, mediators, arbitrators, and judges encounter a corollary to the Dunning-Kruger effect, namely inflated assessments of the strength of any given party’s case. This is also known as the overconfidence effect.
 
My favorite example of this is from my time as a volunteer small claims court mediator. In introducing the option of cost-free pre-trial mediation, the judge routinely asked every litigant in the courtroom “Who here believes that you are going to win?” More often than not, everyone raised their hand. The judge then bluntly stated, “Half of you are wrong.”
 
Similarly, litigants and other parties in mediation can overestimate the strength of their case and their chances of success. Sometimes, this is mere puffery, in order to attempt to achieve the best possible settlement outcome. At other times, however, it is apparent that a party’s assessment of their case may be flawed, and that the party has become anchored to an outcome that is likely unachievable.
 
This is not to say that those who are overconfident about litigation outcomes are unskilled – though sometimes, inexperience and overconfidence are indeed correlated – but rather, that our psychological tendencies can get in the way of good decision-making.
 
At least one study has shown that, when making decisions about whether to settle, Plaintiffs are wrong far more often than Defendants (61% versus 24%). However, when Defendants are wrong, their mistake costs them more (an average of $1.1 million versus $43,000). (“Study Finds Settling is Better Than Going to Trial”, New York Times, August 8, 2008.)
 
So, what can we do to avoid falling prey to our own inflated self-assessments?
 
Check Your Level of Confidence
 
Attorneys must effectively manage their clients’ relatively unskilled expectations by tempering that optimism with the reality of skill and experience. Mediators engage in “reality testing” and other strategies to assist clients in evaluating realistic options.
 
Both attorneys and mediators – of all skill levels – benefit greatly from applying our critical thinking skills to ourselves and everything else. Knowing that we are likely to be victims of overconfidence and the Dunning-Kruger effect, we may be able to guard against them by reviewing old knowledge, pursuing new knowledge, speaking to peers about our strategies, successes, and failures, and actively seeking constructive criticism.
 
Do Not Underestimate Others

Optimism about our skills, our abilities, and our chances of success is not in and of itself a bad thing. However, we all tend to perceive ourselves as above average. We then explain the fact that we cannot all be above average by assuming that others must be worse than us. “Being clueless about your own abilities is one thing. Misjudging others’ abilities is relatively more serious.” (Arstechnica.com)
 
Or, to quote an anonymous author: “When in doubt, ask. When not in doubt, ask. If you are not in doubt, you may be kidding yourself.”

Inventology

I picked up a copy of Pagan Kennedy’s book Inventology from the “staff recommendations” shelf of the library a few weeks ago. Several chapters into the book, these sentences jumped out at me:

(Kennedy, Pagan. Inventology, New York, NY, Houghton Mifflin Harcourt, 2016.)
 
Weaving the Narrative

Substitute the word “lawyer” or “mediator” for “inventor”, and this quote could apply equally well to dispute resolution professionals and to advocates representing clients in legal matters.
 
At the core of our work is listening to someone else’s story. As lawyers, we then construct a narrative that weaves facts and law into a solution that we can present to a judge or jury. As mediators, we try to guide our clients to a resolution that takes two or more often opposing narratives into account in order to help our clients craft a solution that addresses everyone’s problems.
 
Often, we discover a critical piece of information after the narrative has already taken shape. We may find ourselves realizing that the problem we are trying to solve is different than the one our clients need us to address. To serve our clients well, we must be flexible and willing to change course. We must ask open-ended questions and more fully develop our understanding of the problems we are asked to address.

We Have the Advantage!

After all, we have an advantage over inventors: The ideas, problems, and solutions belong not to us, but to our clients. As long as we remember to define success as that which best serves our clients (rather than our own egos), we can retain the flexibility to genuinely ask "why?", instead of simply defending our narrative in the face of criticism.

​This blog entry is copied from an e-mail I received from Maureen Beyers, which she sent on behalf of the ABA Section of Dispute Resolution's Committee on Women in Dispute Resolution (WIDR):

The statistics for women in ADR are profoundly discouraging and show that much effort is needed for women to achieve parity in the profession.

A study published in the ABA Dispute Resolution Magazine found that women served as arbitrators in only 18% of cases overall. The only subject matters that exceed that 18% baseline are family, employment, consumer, and small claims. A recent Law.com article reported that "in business disputes last year, AAA reported that 22 percent of arbitrators selected were either a woman or a minority." The ABA study demonstrated that women mediators do not fare much better: They were mediators in only 25% of cases with more than $100,000 in dispute, and only 23% when more than $1,000,000 was in controversy. According to statistics provided by JAMS and reported by Law.com, only 25 percent of JAMS neutrals are women and only 7 percent are minorities. The issue is more than just gender parity, as important as that is; the imbalance impacts the fairness of the process. As the Law.com article notes, the "lack of diversity alters the dynamics in arbitration, and possibly the outcomes ... There can be a subtle disconnect, an awkward language barrier, lack of trust – even naked biases."

The ABA Section of Dispute Resolution's Committee on Women in Dispute Resolution (WIDR) is working to change these outcomes. We need your help. WIDR has created a WIDR Directory of Neutrals – please pass this along to your friends and colleagues to help us promote diversity in dispute resolution!

Hidden Interests

From intra-family quarrels and disagreements between friends, to business disputes, clashes between employers and employees, deadlocks between members of different political parties, and litigated cases of all kinds, what lies at the heart of conflict is often not that which is expressed or articulated. This may lead individuals, attorneys, parties, and other stakeholders to believe that differences are insurmountable.

To an impartial and objective observer such as a mediator, however, it is often apparent that there may be a significant amount of overlap – or at least no actual conflict – between the parties’ underlying needs, interests and values. What creates the conflict is instead the parties’ implementation of vastly different strategies to achieve those interests. Understanding the underlying values and interests of your negotiating partner, and reframing the argument to appeal to those values and interests, can lay the groundwork for successful bridge-building.

What’s Your Ethical Code?

Social psychologist Matt Feinberg of the University of Toronto and sociologist Robb Willer of Stanford University have conducted studies on how people of differing political persuasions can shift the perspective of their conversation partners.

Feinberg, M. & Willer, R. (2015). From Gulf to Bridge: When Do Moral Arguments Facilitate Political Influence? Personality and Social Psychology Bulletin 41, 1-17.

In other words, “[o]ne reason [converting people from the ‘other side’ to a new way of seeing things] is so hard to do […] is that people tend to present their arguments in a way that appeals to the ethical code of their own side, rather than that of their opponents.” (The Atlantic, “The Simple Psychological Trick to Political Persuasion”, February 1, 2017.)

For instance, when recounting pivotal moments in their lives, liberals rely more on the harm and fairness moral foundations than conservatives, whereas conservatives rely more on the loyalty, authority, and purity foundations (McAdams et al., 2008). Similarly, sermons in liberal church congregations tended to employ more themes around the harm and fairness moral foundations than did sermons in conservative congregations. Conversely, sermons in conservative congregations were grounded in more conservative moral foundations (e.g., authority, purity) than sermons in liberal congregations (Graham et al., 2009). Liberal and conservative political arguments likely reflect these differences in morality as well, with liberals basing their arguments in the more liberal foundations and conservatives basing their arguments in the more conservative foundations.

Reframe!

The study found that “both liberals and conservatives composed persuasive messages that reflected their own moral values, not values unique to those who typically would oppose the political stance.” It has been theorized that this is due to a moral “empathy gap” – the inability to comprehend moral world views different from one’s own. This gap prevents individuals from achieving the perspective needed to craft an argument that appeals to the convictions of those with different moral values.

Perhaps the most interesting finding of the study: The same moral arguments “reframed to appeal to the values of the intended audience (those who typically oppose the political position that the messenger is arguing in favor of)” were typically more effective.

​For example, the researchers posed the question of whether English should be the official language of the United States. The more liberal participants were, the more likely it was that they would be persuaded by a “fairness” argument, which stated that making English the official language would lead to more fair outcomes for immigrants and help them avoid discrimination. The more conservative participants were, the more likely it was that they would be persuaded by a “group loyalty” argument, which stated that the English language is something that unifies Americans and is a fundamental part of a larger cultural assimilation process.

The authors conclude that:

Implications for Negotiation and Mediation

So what is a negotiator to do?

First, listen to understand, rather than to respond. Ask questions that will take you past stated hard-line positions and try to uncover that which may not be articulated.

Second, keep in mind that it is not necessary to agree, or to affirm the “correctness” of your negotiating partner’s underlying interests. What is important is to reach an understanding of those interests.
​
Third, attempt to reframe your argument in such a way that it will satisfy not someone who thinks like you, but instead the identified values, needs or interests of your negotiating partner.
​
For example, the position taken by an injured claimant in a medical malpractice case may be that the claimant be paid a vast sum of money and that the allegedly at-fault physician must be disciplined. Countering with the position that the demand is too high and that the physician made no mistake is not likely to lead to a negotiated settlement. However, if the claimant’s underlying interest is the ability to pay outstanding medical bills and to plan for future bills (financial security), coupled with a desire to have the physician acknowledge her mistake (personal responsibility), both underlying goals may be achieved by other means.

Whether it boils down to a fundamental moral value such as (e.g. loyalty or fairness), a specific need (e.g. recognition), or an underlying interest (e.g. financial security), these are the areas that lend themselves to building bridges and closing the empathy gap.

We could all benefit from a little bit more of that these days.

After months of planning, fundraising, reviewing session proposals, and all the other behind-the-scenes work that goes into creating a great conference, registration for the 2017 Northwest Dispute Resolution Conference is now open. Check out session descriptions and speaker bios, and register by March 10, 2017 for the discounted early bird rate!

Happy New Year!

As many of you know, I have been singing with the Seattle Symphony Chorale for more than 11 years. This season has been one of our busiest to date, with three full weeks of daily rehearsals and performances between December 1 and January 8, culminating in Beethoven's Ninth Symphony and its iconic "Ode to Joy".

I have to admit that "B9", as we affectionately call it, is not my favorite piece of music. For sopranos, in particular, it requires long stretches of sustained singing at the very top of our range, which is vocally taxing. But it is undoubtedly one of the masterworks of the Western classical music repertoire, and is best known as an enduring symbol of human unity.

As with all symbols, of course, context matters. A blog entry in The Guardian points out that:

Given the tumultuous period in history in which we find ourselves – with the U.S. on the cusp of a new presidency, but seemingly more divided than ever; with the UK preparing to leave the European Union; and with nationalism on the rise in India and France, among others – I believe that symbols and expressions of unity are critically important.

And as I was looking out at the audience, on its feet after the last note of our performance, I could not help but marvel at the power of music to bring people of all colors and creeds together, regardless of whatever else may be going on in the world.

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.
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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.