Ballroom Dancing for Lawyers

I mediated a couple of cases this week which unfortunately came to me after settlement conversations had begun. In each instance, one side refused to move off their pre-mediation demand by even a dollar. This lead me to the conclusion that lawyers may need legitimate ballroom dancing lessons. During my summer cruise, I actually took ballroom dancing lessons with my 21 year old son, and here are a few tips:
1) It is not good enough to get dressed and show up for the dance. You must get into position by the time the music starts.
2) It is not good enough to get into position and then stand in the same place. You must move your feet.
3) It is not good enough to merely kick or stomp your feet, you must attend to the rhythm of the music and the posture, mood and responses of your dancing partner.
4) It is not good enough to move always in the same direction: ballroom dancing is a give and take, back and forth, sometimes even circular motion--but motion (movement) is critical.
5) It is not your prerogative to dictate the song list: this is done by consensus, or by the band or your host. You've been invited to the dance and accepted the invitation, so be gracious and "go with the flow".
6) Starting the dance but then refusing to finish it if you don't like the tune is unfair. Both your partner and your host will be disappointed and may not invite you to dance again.
7) Ballroom dancing can be a complicated, even unfamiliar and intimidating event, but if you start with a simple box step, you'll be able to work on more complicated steps as the evening wears on. It takes practice, so don't expect mastery in the first lesson!

Okay--you get my point, I hope. Please consider these tips before you get to your next mediation. At the very least, I hope it will cause you to crack a smile when we begin "the dance"!

Good luck!

Settlement is Better than Trial

I read a fascinating article in last week's New York Times about the benefits of settlement over trial in litigated cases. I've re-published the whole thing here for you to read--but basically it suggests that after studying 600 cases where settlement was discussed, but the attorneys or their clients decided to "go for it" in most instances the results were not as good as they would have gotten at the settlements offered. Interestingly, there was a huge disparity between Plaintiff's "getting it wrong" and Defendants. On average, Plaintiff's would have done better by $43,000 per case had they taken the settlement offered, whereas Defendants would have saved $1.1 million on average! It certainly gives both sides a hearty incentive to give serious consideration to letting a good mediator take a crack at settling every case: or at least giving the realtiy test to your clients before proceeding to trial.

P.S.: I'm pleased to inform readers that the author of the study, Randall Kiser will be in Los Angeles at the upcoming Southern California Mediation Association's Annual Conference on The Brain and how Neuroscience affects Conflict Resolution. The conference will be on November 5, 2008 at Pepperdine's Straus Institute's Malibu Campus. If you'd like more information, send me an e-mail and I'll make sure you get an invitation.


By JONATHAN D. GLATER
Published: August 7, 2008/The New York Times
Note to victims of accidents, medical malpractice, broken contracts and the like: When you sue, make a deal. Avoid a trial, Randall Kiser advises.

That is the clear lesson of a soon-to-be-released study of civil lawsuits that has found that most of the plaintiffs who decided to pass up a settlement offer and went to trial ended up getting less money than if they had taken that offer.

“The lesson for plaintiffs is, in the vast majority of cases, they are perceiving the defendant’s offer to be half a loaf when in fact it is an entire loaf or more,” said Randall L. Kiser, a co-author of the study and principal analyst at DecisionSet, a consulting firm that advises clients on litigation decisions.

Defendants made the wrong decision by proceeding to trial far less often, in 24 percent of cases, according to the study; plaintiffs were wrong in 61 percent of cases. In just 15 percent of cases, both sides were right to go to trial — meaning that the defendant paid less than the plaintiff had wanted but the plaintiff got more than the defendant had offered.

The vast majority of cases do settle — from 80 to 92 percent by some estimates, Mr. Kiser said — and there is no way to know whether either side in those cases could have done better at trial. But the findings, based on a study of 2,054 cases that went to trial from 2002 to 2005, raise provocative questions about how lawyers and clients make decisions, the quality of legal advice and lawyers’ motives.

Critics of the profession have long argued that lawyers have an incentive to try to collect fees that are contingent on winning in court or simply to bill for all the hours required to prepare and go to trial.

“What I would want them to look at was whether or not the lawyers had a strong financial incentive to go to trial,” said Cristina C. Arguedas, a criminal defense lawyer in Berkeley, Calif., when told of the study. “I’m not suggesting the answer, because I don’t know, but that would be my question.”

The study, which is to be published in the September issue of the Journal of Empirical Legal Studies, does not directly answer Ms. Arguedas, but it does find that the mistakes were made more often in cases in which lawyers are typically paid a share of whatever is won at trial.

On average, getting it wrong cost plaintiffs at about $43,000; the total could be more because information on legal costs was not available in every case. For defendants, who were less often wrong about going to trial, the cost was much greater: $1.1 million.

“Most of the time, one of the parties has made some kind of miscalculation or mistake,” said Jeffrey J. Rachlinski, a law professor at Cornell who has studied how lawyers and clients decide to go to trial and who is co-editor of the journal. “The interesting thing about it is the errors the defendants make are much more costly.”

The study’s authors have analyzed some data from New York and, after a review of 554 state court trials in 2005, have found parties to lawsuits making the wrong decision at comparable rates.

The findings suggest that lawyers may not be explaining the odds to their clients — or that clients are not listening to their lawyers.

“It’s entirely possible that the attorneys are not giving adequate advice,” said Mr. Kiser, who is also a lawyer but is not practicing. “An attorney could advise a client that they have a strong defense to enforcement of a contract, but that is not the same thing as forecasting what the likely outcome at trial would be.”

As part of the study, which is the biggest of its kind to date, the authors surveyed trial outcomes over 40 years until 2004. They found that over time, poor decisions to go to trial have actually become more frequent.

“It’s peculiar if any field is not improving its performance over a 40-year period,” Mr. Kiser said. “That’s a troubling finding.”

Law schools do not teach how to handicap trials, nor do they help develop the important skill of telling a client that a case is not a winner. Clients do not like to hear such news.

“Most clients think they are completely right,” Michael Shepard, a lawyer at Heller Ehrman in San Francisco. A good lawyer has to be able to tell clients that a judge or jury might see them differently, he continued. “Part of it is judgment and part of it is diplomacy.”

Several lawyers were dismissive of the study, noting that the statistics mean nothing when contemplating a particular case, with its specific facts and legal issues, before a specific judge. They stressed the importance of a lawyer’s experience.

But the study tried to account for that possibility and found that factors like the years of experience, rank of a lawyer’s law school and the size of a law firm were less helpful in predicting the decision to go to trial. More significant was the type of case.

For example, poor decisions by plaintiffs to go to trial “are associated with cases in which contingency fee arrangements are common,” according to the report. “On the defense side, high error rates are noted in cases where insurance coverage is generally unavailable.”

The findings are consistent with research on human behavior and responses to risk, said Martin A. Asher, an economist at the University of Pennsylvania and a co-author. For example, psychologists have found that people are more averse to taking a risk when they are expecting to gain something, and more willing to take a risk when they have something to lose.

“If you approach a class of students and say, I’ll either write you a check for $200, or we can flip a coin and I will pay you nothing or $500,” most students will take the $200 rather than risk getting nothing, Mr. Asher said.

But reverse the situation, so that students have to write the check, and they will choose to flip the coin, risking a bigger loss because they hope to pay nothing at all, he continued. “They’ll take the gamble.”

The third co-author of the study was Blakeley B. McShane, a graduate student at the Wharton School of the University of Pennsylvania

Aggressive Diplomacy in Mediation

Barack Obama used a phrase which I thought curious this morning in response to a journalist's inquiry about nuclear capabilities by Iran. The phrase was: "Aggressive Diplomacy". When I was an undergraduate studying International Relations, such a term would have been considered an oymoron. Good diplomats were never "aggressive". Diplomats were clever, cautious, prudent, facilitative, skilled, smooth, adept--but not "aggressive". To the contrary, they were the folks called in to "mediate" when world leaders became or threatened to become aggressive!

My mediation style has followed that early training. I have always seen myself more of a good diplomat than an aggressive purveyor of peace or conflict resolution. Now that I consider it carefully, I might also reach the conclusion that my early training in "diplomacy" at Pomona College got in the way of being a fully aggressive litigator for the couple of decades I tried that approach.

Just for a challenge, I thought I'd exercise Obama's approach and aggressively pursue diplomatic efforts. Today, I mediated a dispute between a brother and sister who had not had much interaction since their mother died 13 years ago and they inherited the family home jointly. There were many moments when the parties, both unrepresented, nearly gave up. In this instance, I had to be "aggressive" in my pursuit of diplomatic relations to reach a detente between them and help them move on. I found myself consciously taking a proactive role in the way Obama outlined in the Middle East.

Coincidentally, I had the pleasure of running into my first "boss" at the office today (participating in another mediation). A colleague introduced me and said jokingly, "She couldn't have been trained by you, she's too nice." His response was "She was mean when she was litigating with me!". So here's the challenge: for thirty days, I'm going to make an effort to "aggressively" mediate every case. I will be more than a dipolomat. I will do whatever I can to settle every case, even those that are lingering on my credenza. I will consciously observe the effect on the litigants and whether they accept my taking on that role. Who knows? This could portend the new world order!

Independence and Interdependence: The Good Side of Court-ordered Mediations

This week marks the largest settlement I've ever "brokered" and the longest mediation over which I've presided thus far. A month ago, a compelling wrongful death and bad faith case came before me at the strong urgency of the Court. The case had a trial date of June 30, 2008. It was mediated back in 2005 (unsuccessfully and by a different mediator) and then had proceeded to a Motion for Summary Judgment which was granted in favor of the defendant and later reversed on appeal. While the mediation in May got a lot closer, the parties were still millions of dollars apart. Then came the daily phone calls, the true "negotiation", and the framing, re-framing, evaluating, re-evaluating for a full month. After one such conversation, the Defense lawyer advised me that he was instructed to put out his top dollar offer in a statutory offer. The negotiation continued. Last week, on the morning of the Final Status Conference, the Plaintiffs accepted the Statutory Offer which had been submitted 4 days before. While I take some credit for working with both parties to get to a number that would ultimately settle the case, I'm quite clear that the timing created by the Court (through both a trial date and a Statutory Offer) allowed the parties to finally end the negotiation and settle the case.

In another case, I was the presiding Arbitrator. The parties had spent hours and hours disputing and debating the claims, the damages and the discovery in advance. Finally, when they came before me last week, my preliminary ruling was to overrule the Plaintiff's objection to the Statutory Offer being used in an arbitration. Then I simply queried: "Would the parties like to take a few minutes to discuss possible settlement in light of that ruling?" Within 2 hours, that case also settled. It was only the urgency created by the actual "trial" (there were about 6 witnesses and an interpreter in the Office prepared to testify that day), that facilitated that settlement. The Court's process (allowing a Statutory Offer to create the threat that the Defendants may have been able to recover their costs if the Arbitration favored their side) facilitated a serious negotiation which ultimately settled the case without the full evidentiary hearing.

My conclusion is that in both cases, the Court process had the paradoxical effect of urging the "independence" of settling these two cases outside the Courthouse. I thought it fitting, on this week of Independence Day, to draw these analogies. Independence is a prize to be cherished, but our partnership with the institutions and organizations that protect and demand accountability sure help to foster true independence!

Now back to last week's comments. Many of you were confused by the "apology"--so let me explain. After commenting upon the "debate" which was reported by the Daily Journal before the L.A. County Bar Association, I heard privately from Charles Parselle, who demanded a correction and apology. Since I had not correctly or completely reported the event, I simply offered the apology that Charles had asked me to insert. I agree that it should not be a debate, and I had no intention of entering into the debate, but rather commenting upon the sad fact that the matter had to be debated in that way.

I wish you all a Happy Independence Day--but one that is mindful that independence cannot be celebrated without interdependence in its shadows.

Court Ordered Mediations: Is it Time to Be Honest about their Efficacy?

There is an on-going controversy in Los Angeles County about "court ordered" free mediations. On the one hand, the ADR Committee has steadfastly maintained that Los Angeles is under a specific State requirement to make pro bono mediation available in all cases. On the other hand, mediators have experienced frustration in both the challenge of settling these "ordered" cases and the challenge of building a private practice when all cases are afforded an opportunity to mediate in L.A. County for free. This all came to a head this week at a meeting of the Los Angeles County Bar Association.

According to the Los Angeles Daily Journal article which covered the debate: "Though the debate was civil, Bendix lashed out at the two mediators in a hallway after the meeting. She told Parselle she thought he had been "disingenuous" in the debate when he said low-income litigants would still be able to get free mediation through the court's fee-waiver process if the resolution passed. Bendix told him that his position reflected a "profound misunderstanding" of the fee-waiver process. "I don't want to participate in these discussions with you if you're going to be dishonest," Bendix said sharply. "This is so wrong."

*Let me take this opportunity to apologize to Charles Parselle for suggesting or implying that he made any accusatory or
untoward remarks. On the contrary, the Daily Journal article made it very clear that he was quite puzzled by what had just happened. I have had the opportunity to speak with Mr. Parselle, and he confirms the accuracy of the Journal report and add that in response to the judge's remarks to him, he did not make any response other than to express his puzzlement and repeat that the legislative amendment contemplates that free mediation should remain available to indigent litigants who have obtained a fee-waiver from the court."

Although the Southern California Mediation Association officially took no position on the pending legislative changes when President Nikki Tolt was asked by the reporter for the Daily Journal, the position articulated by Mr. Parselle at this meeting was generally supported by the SCMA last year, when I was the organization's President. I was not present for the LACBA presentation, but I am very familiar with this longstanding dispute and agree personally (and as Past President of SCMA) that change is needed and many cases are "ordered" to mediation and offered free services when the litigants could well afford to pay a mediator for her work. What's more, it is my personal opinion that this would result in higher settlement rates and actually be of greater service to both the court and the litigants!

This week I had the opportunity to co-mediate a case with a colleague who has not accepted a "court-ordered/free" case for five years. He began the day with the following reassurance to each side: "I think this is going to be the day we get this done. It really needs to happen today"...(and to one side: "Amazing things happen between 5 and 6 P.M."). Indeed, the case settled, although it was nearly 7:30 P.M. At its conclusion, he felt triumphant, relieved and tired. I felt something different, after the Plaintiff, who had gotten an excellent settlement, would barely shake my hand. I was left wondering whether we had done justice in achieving the litigators' goal of settling the case that day, but left the plaintiff himself extremely unsatisfied. On the following day, my colleague reminded me cheerfully: "Jan, that's why they hire us. They want us to settle every case, and in the main, I do. It's in at 10:00 A.M. and out with a settlement by 6:00 P.M."

It's taken me several days to process this, but I offer this observation. In court-ordered cases, the parties have no expectation that the mediation date is the day they will settle the case. Indeed, I often begin those hearings by inquiring: "Why are you here?" I do this so that both sides "buy in" to the notion that one possible outcome is settlement, but typically, we all know that there are many other possible outcomes--further discovery, further negotiation or a future settlement date. So it is no surprise that the statistics show that private cases are settled at an 80-90% rate, whereas court-ordered ones are barely more than 50/50.

I'm not so sure it's about who pays for the mediation, but if the parties (and their attorneys) are given free choice and mediation is truly voluntary, chances are greatly improved that the date they choose will be the date each party is ready to resolve the case.

Wouldn't that be a better use of resources for all concerned?

Business and Life Lessons from My Father

The tributes to Tim Russert on today's morning television were so moving, I thought I'd take a shot at compiling a short list of my own favorite bits of advice imparted by my Dad. "Little Art", as he was known for many years to distinguish him from his cousin, Art Mac ("Big Art") was an enormously successful business man. He built an empire of discount stores and retired by the age of 60. He's now a healthy, tennis playing, travelling, driving 81 year old with a big heart and love of life. But bigger still is his love and support for his family, his friends, his synagogue and community. A broad-chested baritone, he sang as the Cantor for our local Temple while I was growing up; the same Temple where he served as Building Chairman, Brotherhood Chair and President. I imagine that my older sister and brother got a lot more business advice from my Dad than I did, as my sister was the eldest and my brother went into business with my Dad for many years. Still, it was always clear to all of us that we needed to challenge ourselves to do better than others. (All of us have both College and Graduate Degrees.) It was equally clear that family was critical: so each of us have three children and long marriages--ours for 29 years and my sister and brother each for 39 years and counting. My own parents will celebrate their 63rd this year. A lot of my Father's Advice, I think, not only serves me well, but informs the outcome in my mediation practice in so many ways. So here's my list (with my own interpretations):
1. Forget About it. (There's no point in holding a grudge.)
2. Your Handshake should be better than any written contract. (All of your business dealings should be built on trust and fairness.)
3. Once you're in a position where you need to hire lawyers, you're already in trouble. (Negotiation is always the preferred solution in business disputes.)
4. It's a small world, and people have long memories. (Don't do anything you'd be ashamed of later.)
5. Count your blessings. (Don't let the day to day stuff get you down.)
6. Never count anybody else's money. (Jealousy will get you nowhere.)
7. What difference does it make? (Don't be petty.)
8. You can be successful by being decent, honest and kind. (You don't need fancy degrees and a legacy of power or money to succeed in business.)
9. It pays to treat "your people" as you would family. (Everybody deserves to be treated with respect and dignity.)
10. Humor goes a long way. (When all else fails, crack a smile, or even a bottle of gin if you need to thaw cool relationships.)
11. Hard work pays off. (You can do what you set out to if you believe in yourself and work at it every day.)
12. Don't count on luck to get you out of a jam. (Luck is something you can only look at from hindsight. The rest is fortitude, and perhaps prayer (when it comes to health).)
13. Just show up and be there. (In the end, that is the most pure sign of loyalty and caring).

Happy Father's Day to all of my readers, and to my No. 1 subscriber, my Dad!

Good Advice From the Next Generation

A friend of mine sent me a Commencement address given by Journalist, Samantha Power, this year in Claremont , Ca. (I'm an alumna of Pomona College, although this one was at our sister College, Pitzer). I found it particularly compelling. I attach the website here:
http://www.huffingtonpost.com/samantha-power/message-to-graduates-be-a_b_103886.html

What does this have to do with Mediation? The part I loved was about taking time for silence. It is so true that this generation is more interconnected than any before. They have the capability and technology to be in constant communication with one another. And yet, is anyone giving them the advice of the value of taking a few minutes alone? Do any of them listen to their inner voice? Has the Ipod, the Blackberry, Face Book and text messaging supplanted the need for interaction and introspection?

I attended a funeral today where the Rabbi spoke of a concert where Itzhak Perlman broke a string on his violin. Apparently, rather than struggling with the leg braces and crutches he had just removed in order to walk off stage and replace the string, he performed the entire concert on just 3 strings. When asked how he'd accomplished this, and why, his answer was simple: "I'm a musician", he said, "We make music where nothing was there before". My synthesis of these two stories leads me to the conclusion that both participants and mediators can greatly benefit from taking a few key moments during the course of a difficult hearing to themselves. Some quiet, self reflection can unlock the inner yearnings both driving the conflict and blocking it from being resolved.

Next time you feel stuck, try taking a time out by yourself and see!