COMMERCIAL MEDIATION & LAW / Perspectives on Dispute Resolution

WINTER

PERSPECTIVES on Dispute Resolution—

2013

Commercial Mediation & Law

FOCUS

4

Corporate Mergers & Acquisitions Provide an Opportunity for Mediation

by J. Carlton Sims

Commercial Litigation Requires an Evaluative Approach

by Bruce Friedman 6

Great Expectations

by Terri Lubaroff 8

Using Technology to Overcome Impasse

by Suzanne Nusbaum 10

DISCOVER

Film: Face to Face One Mediator’s Perspective

by Christopher Welch 18

ON THE EDGE

Difficult People

by David C. Peterson 22

20

Responding to Hostile Emails

by Bill Eddy

14

Streamline Settle: Cutting Costs in Court Will Mediation & ADR Save the Day?

COMMENTARY 24

Listen to Me! Litigation’s Modern Failure

by Mikita Weaver

FEATURED CONTRIBUTORS ALSO IN THIS ISSUE Message from the Editor 3 Upcoming Events 3 J. Carlton Sims

Bruce Friedman

Terri Lubaroff

Suzanne Nusbaum

Christopher Welch

Bill Eddy

MESSAGE FROM THE EDITOR Greetings!

With a focus on commercial mediation, this edition offers a wide variety of perspectives on the resolution of commercial disputes. Experienced Mediator and Arbitrator, Bruce Friedman discusses his insights into the type of mediation approach most effective when resolving commercial disputes. Agency for Dispute Resolution’s Vice President of Strategic Business Development, Carlton Sims, Esq. outlines how corporate mergers and acquisitions offers a unique opportunity for mediators. Hon. Suzanne Nusbaum (Ret.) shares her insights into how technology can help overcome impasse, particularly in commercial disputes. Terri Lubaroff shares a case study of one of her mediations and the emotion and ethical issues at play.

This edition also highlights how mediation is becoming more mainstream.

Chris Welch, Director of the Center for Conflict Resolution (CCR), provides a review of an international independent film, Face-to-Face, which illustrates how mediation can be used as a form of restorative justice in a community when a crime has been committed. Also, with the recent cuts in court budgets, we’ve highlighted Streamline Settle as one of the ways that companies are employing ADR to reduce costs and more effectively resolve disputes.

You’ll also hear from Central Coast Mediator, David C. Peterson, about how to deal with difficult people. Along these lines, Bill Eddy, LCSW, Esq. from the High Conflict Institute provides helpful tips on how to respond to “hostile emails” to help resolve and prevent future conflict.

We thank you for your continued interest in our work and welcome constructive comments! z For more information or to submit an article please contact: Mikita Weaver / Editor-in-Chief editor@adrtimes.com For more information on advertising opportunities, please email ads@adrtimes.com (800) 616.1202

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Publisher Mark Fotohabadi & W. Timothy Pownall Design / Production www.vueladesign.com The content of this publication is subject to Copyright by ADR Times, Inc. 2011-13.

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Upcoming Events - East Coast Professinal Skills Program Straus Institute for Dispute Resolution Baltimore, Maryland / March 14-16, 2013 - Harnessing the Power of the Master Mediator American Institute of Mediation (AIM) Los Angeles, CA / March 20-23, 2013 - A Conversation about Forgiveness, Reconciliation, and Healing: Lessons from South Africa Straus Institute for Dispute Resolution Malibu, CA / March 21, 2013 - 15th Annual Spring Conference American Bar Association, Section on Dispute Resolution Chicago, IL / Apr 3-6, 2013

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Mikita Weaver, Esq. Editor-in-Chief

ADR Times explores mediation, arbitration, negotiation, diplomacy & peace.

Scott Van Soye, Esq., LL.M. Managing Editor

- Mediating the Litigated Case Straus Institute for Dispute Resolution Washington, DC / Apr 8-13, 2013 - 6th Annual Mediators Beyond Borders Congress Istanbul, Turkey / Apr 26-28, 2013 - IAM 2013 Spring Conference International Academy of Mediators Yorkville, ON, Canada / May 9-11, 2013 - Center for Alternative Dispute Resolution 2013 Annual Conference Greenbelt, MD / Jun 13-14, 2013 - Annual Summer Professional Skills Program Straus Institute for Dispute Resolution Malibu, CA / June 20-22, 2013

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MERGERS & ACQUISITIONS PROVIDE AN OPPORTUNITY FOR MEDIATION

by J. Carlton Sims

Management studies suggest that only one out of six mergers, acquisitions, or spin offs fulfill their purpose.

More often than not, the resulting company experiences organizational failures after the merger. The participant companies simply do not get along. Management theorists believe mergers that are successful are generally the product of interactive planning by the stakeholders.

Mediator Participation during Interactive Planning Interactive planning is a management tool where an organization envisions an idealized design for the future and devises actions to approach that idealized design. Integrated bargaining — a technique familiar to mediators — is needed during the ideal design phase of interactive planning. Integrated bargaining is a negotiation method used to resolve conflict or reach an agreement based on the stakeholders’ underlying interests instead of their relative positions on the issue.

The group’s goal is to produce a design of desired organizational detail. For example, the design team proposes details such as the products to be produced, where they will be produced, which plants will be closed or opened, which distributors or wholesalers will be eliminated or retained, where the entity will incorporate, and what the trade name will be. The “idealized design” concept embodies the question, “What would you get if you could get anything that you wanted?”

During a merger, acquisition, or a spin-off, the companies using the best managerial practices typically form a management team to plan the resulting entity. The team is charged with producing an “idealized design” of the future entity. The idealized design is used to design the merged company before the merger takes effect. Essentially, the idealized design project is a mediation of stakeholders and an opportunity for a neutral to assist and ply their trade. All the stakeholders or representatives that they select, who are principally affected by the design, are included in the design team.

A mediator is appropriate and best suited to moderate such a diverse group.

Mediation with the third party neutral is the best setting for idealized design. An offsite setting provides an uninterrupted and moderated process with focus. The mediator can regulate cell phones and/or outside communication if needed. Some design teams prefer a location where the people have to stay overnight. This allows people to interact socially after-hours, which fosters good communication as the participants get acquainted with one other. On average, the entire process takes six months. Meetings take place every two months and each last about a week.

Mediators Help Cure Organizational Weaknesses It should be cautioned that an idealized design group only works well if all the stakeholders are present and participate fully in the process.

All the stakeholders are essential. Cooperation and full participation in the process is critical. Again this is a component that the mediator can moderate. The stakeholders will not implement an ideal design in which they did not participate. The stakeholders discover what they want during the process of design. The ideal design will fail when put into action if it is sabotaged by those who are forced to implement a design they did not participate in or do not understand. Therefore, participation by all the stakeholders in the ideal design helps remove constraints an excluded stakeholder might otherwise impose.

Mediators Foster Creative Thinking: Alternatives, Concepts, and Perceptions Creativity is the recognition of constraining assumptions and removing them. When the stakeholders have identified and revealed their underlying interests to each other, then a process of developing the ideas and fashioning creative options can take place. When each side’s interests are determined, the mediator facilitates the synthesis of these interests into the ideal design. The overall goal of brainstorming is to gain insight in the interrelation of the parties interests and discover solutions that are not readily apparent to the stakeholders.

The mediator can assist the stakeholders to raise all options without evaluation. The mediator will direct the evaluation stage later after the stakeholders have exhausted their creative suggestions and after as many solutions as possible are presented. Premature evaluation of suggestions presented during brainstorming sessions might stifle the communications and short circuit the process. When a suggestion is disregarded too soon, the suggesting stakeholder may become hesitant to speak again and become withdrawn from the process. The brainstorming stage should place as many solutions in play as possible.

Using integrated bargaining techniques, a mediator is best suited to facilitate creative thinking, producing alternative concepts and perceptions. Mediation facilitates the optimal performance of the design because the mediator is able to help the participants look beyond their constraints, preconceived notions, and beliefs. For example, the mediator could suggest transfers of ownership interests as an alternative to cash payments. A mediator can provide benefit and value when the team is deciding how to consolidate systems. In the case of international mergers and acquisitions, the choice of an accounting system that satisfies the national requirements of the participant countries as

J. Carlton Sims

well as the financial and managerial reporting needs of the company itself is an example of the organizational structural details to which a mediated design would be appropriate.

Mediators Provide Value and Benefit The stakeholders begin the integrative bargaining process by identifying their individual interests. Often, the stakeholders have numerous interests underlying a single position. The interests are what they need or what they fear or what they are concerned with. The stakeholders’ interests are formed by their individual perceptions, beliefs, needs, and aspirations. The stakeholders may be splitting over a position on a single issue, even though each party has a separate and distinct reason for such a position. The stakeholders should determine why they hold certain positions and the reason behind the issues.

A mediator can help the stakeholders focus on satisfying their individual interests instead of their positions. Questioning their motivations, a mediator can help reveal the stakeholders’ underlying desires and needs that are relative to their positions. With the assistance of a mediator, the group may reach agreement on an ideal design that is mutually beneficial and durable because it is the best system as a whole.

Conclusion With only one of six mergers, acquisitions, or spin offs truly succeeding, companies should consider employing a mediator to assist in the development of the idealized design for merging organizational structures. Mediators help cure organizational weaknesses by getting all stakeholders to become proponents of the design they helped create and will ultimately have to implement. Mediators help foster creative thinking by employing techniques to help the stakeholders explore alternate concepts and perceptions. Mediators also provide value and benefit by helping the stakeholders understand positions versus interests to help find common ground. By employing an interactive planning model, with an effective mediator, the chance of a successful merger is significantly increased.

The ideas expressed in this article are based on the work of Russell Ackoff. Russell Ackoff (1919 – 2009) was an American organizational theorist, consultant, and Anheuser-Busch Professor Emeritus of Management Science at the Wharton School, University of Pennsylvania. He authored Ackoff’s Best: His Classic Writing on Management published by John Wiley & Sons, Inc. in 1999. Ackoff was a pioneer in the field of operations research, systems thinking and management science. z

J. Carlton Sims is associated with the Agency for Dispute Resolution as VP of Strategic Business Development and a registered mediator on the Alabama State Court Mediator Roster administered by the Alabama Center for Dispute Resolution. Carlton is an Of Counsel environmental attorney with Beasley, Allen, Crow, Methvin, Portis & Miles, P.C. working in the BP litigation arising from the April 20, 2010, Deepwater Horizon explosion and subsequent oil spill in the Gulf of Mexico. Prior to attending law school at Faulkner University’s Thomas Goode Jones School of Law, Carlton earned an M.B.A. from the University of Alabama and a B.A. in Economics from The University of the South. Before becoming a lawyer, Carlton was an executive in the construction industry for twenty-three years as a licensed general contractor in Alabama, Florida, Louisiana, and Mississippi.

Read more articles by J. Calton Sims at: www.adrtimes.com/articles/author/jcarltonsims

Winter 2013 | 5

COMMERCIAL LITIGATION REQUIRES AN EVALUATIVE APPROACH

by Bruce Friedman

In my experience, in the mediation of commercial cases, the parties and their counsel want an evaluative mediation approach. I have found that even if a mediation is unsuccessful, the parties and counsel seem satisfied if they have received an honest appraisal of the strengths and weaknesses of their case.

TYPES OF MEDIATION

WHICH TYPE TO USE IN COMMERCIAL MEDIATIONS

As any experienced neutral knows, there are several different approaches to mediation: facilitative, evaluative and transformative.

While each approach has its merits and may be useful depending on the circumstances of a given mediation, I have found that the facilitative process is not as useful in the business litigation context. For the most part, the parties are not interested in directly engaging one another during the mediation process. Instead, they are looking for a rational analysis of the factual and legal issues of their case.

Evaluative mediation is a process modeled on settlement conferences held by judges, where the goal is often to address the legal rights of the parties, as opposed to their needs and interests. An evaluative mediator assists the parties in reaching resolution by pointing out the weaknesses of their cases and predicting the conclusion a judge or jury might come to. Next, an evaluative mediator might make formal or informal recommendations to the parties as to the outcome of the issues. An evaluative mediator structures the mediation process and directly influences the outcome of mediation.

Facilitative mediation is a process where the neutral creates a process designed to assist the parties in reaching a mutually agreeable resolution. The mediator asks questions, validates, and normalizes parties’ points of view. The mediator helps the parties search for interests underneath the positions taken by the parties, and assists the parties in finding and analyzing options for resolution. However, the facilitative mediator does not make recommendations to the parties, give his or her advice or opinion as to the outcome of the case, or predict what a court would do in the case. The neutral’s goal in facilitative mediation is to have the parties make the decisions.

Transformative mediation is the newest mediation type, and most “liberal.” Based on the goal of establishing the parties’ individual empowerment, this type of mediation allows each party to recognize the other party’s needs, interests, values, and points of view. Transformative mediators hope to allow and support the parties in mediation in determining the direction of their own process. In transformative mediation, the parties structure both the process and the outcome of mediation and the mediator follows their lead.

6 | ADR Times Perspectives

I refer to this evaluative approach as a principled negotiation. By “Principled Negotiation,” I mean a negotiation where the settlement figure is based on provable damages, reflecting the strengths and weaknesses of the case and the risks presented by the facts, law, and legal process. A principled negotiation is not a discussion based on what the plaintiff wants and what the defendant will pay.

A few examples of the application of evaluative mediation to commercial cases may be helpful: - In an insurance coverage mediation, there is no substitute for a substantive discussion of the policy provisions at issue, the cases interpreting them, and the underlying pleadings and facts in a third party case or the facts in a first party dispute.

- The same is true for a professional liability case. An evaluation of the professional standard, its breach, causation, and recoverable damages is necessary to successful resolution of the case.

- Class Actions present a plethora of issues to address as the class issues of the adequacy of the class representative and whether the claim is appropriate for class treatment sit on top of the substantive allegations of the case itself. There is also the important element of what the court will approve. Even when the evaluation of class and substantive issues are resolved, a case is not settled until the issue of class counsel’s attorney’s fees is negotiated and resolved.

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PREPARING FOR AN EVALUATIVE MEDIATION The mediator needs to provide a rational argument of the issues to each party in an effort to allow the party and counsel to reach a settlement figure that reflects the strengths and weaknesses of the case and the risks of litigation. This evaluative approach requires careful preparation by the mediator. It is not enough to simply read the briefs and show up at the mediation. The mediator must also read the statutory and case law that is critical to the case and develop a list of questions, both factual and legal, to address to the parties. In my experience, pre-mediation telephone conversations and/or meetings with counsel are very helpful in understanding the dynamics of a case – elements or intricacies that may not jump off the pages of a mediation brief.

As any trial lawyer would do, I have found that it is important to research the judge in the case. Understanding the judge and reviewing his or her profile has enabled me to speak intelligently about the chance of a successful pre-trial motion; such as a motion for summary judgment, motion in limine, or Daubert motion regarding the qualifications of an expert witness. In that same vein, knowledge of the forum, state or federal, and the jury pool also provide useful tools in a discussion of litigation risks. Federal judges are more likely to dispose of a case on a motion for summary judgment than a state court judge. The federal jury pool may be more conservative than the state court pool. Federal juries are smaller and require a unanimous verdict

Bruce Friedman

even in civil cases. A state jury may decide a case on less than a unanimous verdict. All of these court and process related issues are very helpful in a discussion of the risks inherent in the judicial process.

Of course, evaluative mediation has its limits. A mediator should not succumb to answering counsel’s inevitable question: who will win the case? or what is the case worth? Answering either question does not promote a settlement. After all, why should a party settle, offer more, or accept less, if the mediator has told them that they are going to win? As far as the question regarding settlement value is concerned, a mediator can never know enough about the case and / or motivations of the parties to place an accurate value on the settlement. The settlement value of the case is the amount the parties agree upon in a settlement agreement, not the mediator’s number arrived at without review of the documentary evidence and an assessment of the credibility of the witnesses.

I am not suggesting that successful mediation of a business case can only be accomplished based on a purely evaluative approach. There are times when elements of a facilitative approach are useful in promoting a resolution. In the vast majority of commercial cases, however, the evaluative approach is necessary to the successful resolution of the case. The lawyers demand this type of approach to mediation, and are reluctant to return if they don’t get it. z

Bruce Friedman is an experienced mediator and arbitrator with over 35 years of complex litigation experience in the areas of insurance, financial services, professional liability, business, real estate, entertainment and consumer and securities class actions. His mediation philosophy is to provide an evaluative analysis within the context of a facilitative process. Bruce’s approach to arbitration is to make the process as efficient as possible resulting in a principled decision based on the facts and law. www.friedmanmediation.com Read more articles by Bruce Friedman at: www.adrtimes.com/articles/author/brucefriedman

Winter 2013 | 7

Donald ambled into the conference room with difficulty. He looked like a nice, working class man in his retirement years, but the gray pall he carried indicated his health wasn’t going to let him do a whole lot of fishing on his beloved Lake Havasu any time soon.

GREAT EXPECTATIONS

by Terri Lubaroff

Donald slipped in a puddle of water at the hospital where he was receiving therapy for an unrelated condition. The fall was horrendous... so bad that he heard his hip and shoulder snap. His hip required immediate surgery. The shoulder would be an ongoing problem. Although the hospital admitted that Donald fell in their hallway, their staff was adamant that large “Caution, Wet Floor” signs were present. They refused to pay for his medical bills and he sued.

The first mediation ended with both parties agreeing that further discovery and an independent medical examination were needed to determine the nature and extent of Donald’s injuries. The second mediation happened several months later, when both parties were finally ready to negotiate.

One of my biggest hurdles as a mediator is to overcome each party’s expectations about what might happen in mediation. The types of expectations that a mediator must overcome include issues of liability, causation and damages, as well as possible defenses and possible accusations; however, the most interesting and challenging mediations come with a set of expectations based on history.

And Donald came with a lot of history.

In the 1980’s, Donald was injured in an accident and sued a wellknown manufacturer for product liability. The product defect had injured over 65 people, and the first case that went to trial resulted in a six-figure verdict for the plaintiff. Donald’s case was in trial at the time, and the manufacturer settled with him before the jury came back from deliberations for a low six-figure sum. That case set his expectations for future litigation. Donald believed that if he got low six-figures for an injury that wasn’t very severe and healed quickly, he should get a lot more for this current injury, which was much worse and would never fully heal. With pure optimism, he told me he wanted enough settlement money to take care of his kids when he died and to buy a new truck and a cabin in the mountains.

The lawyers for the hospital had a “history” they wanted me to know about, too. Not only was the hospital denying full liability because their witnesses testified that warning signs were present, they had an entire file of Donald’s history that reflected negatively on his case.

This file included a doctor’s recommendation for a surgery Donald was trying to attribute to the fall a full six months prior to the accident.

The file also contained a history of Donald’s other falls. In fact, he had fallen on 13 separate occasions prior to this one, including one the day before at the same facility. Finally, Donald was in the facility because of a prescription drug dependency. The hospital was prepared to negotiate, but at a small fraction of the level that Donald and his lawyer were hoping for.

I quickly discovered that Donald was not being honest with his lawyers about his history and the reason for his high expectations. It was time for an intervention. I spoke to Donald’s lawyer privately. I explained the defense’s position. I asked the lawyer what her expectations were.

She privately informed me that she was concerned about Donald’s expectations to begin with and the new information provided by the defense just solidified her resolve to settle the case in mediation. She said that it was going to be my job to educate her client about his case in the “real world.” She was concerned that his expectations would be the obstacle to resolution.

who hired the mediator or the attorney’s client?” These are valid ethical questions that should be addressed. After all, a mediator must be careful not to brow-beat a client into accepting an unsatisfactory settlement offer. The client must feel comfortable with whatever decision they make, even a decision with which their own lawyer disagrees.

The next six hours were spent talking to Donald and negotiating within the framework of his expectations as we slowly adjusted them downward. His lawyer knew that Donald wanted to feel like he got a “fair” deal, and that he needed to fight for it, so every 30 minutes or so I would ask him for a demand and would communicate that to the defense, knowing that until we got below a certain number, the defense was just being patiently compliant with my request that they stay and negotiate in good faith to allow me to do as much as I could with the plaintiff before they gave up.

In commercial mediation, especially when a plaintiff’s lawyer works on contingency (as in this case), the mediator’s job is to help facilitate both the lawyer’s and the client’s positions, their mutual understanding of the strengths and weaknesses of their case and their individual underlying interests. In this example, the lawyer had spent a considerable amount of time and money on the case; however, upon learning that opposing counsel had a strong defense, her interests switched from wanting to obtain a huge settlement or jury verdict for her client to a desire to recoup her costs and time, and hopefully still turn a profit.

The client’s interests were more complicated and revolved around his history and expectations (as discussed above). We discussed these interests together so both the client and the lawyer could have a mutual understanding of their needs and desires.

We discussed Donald’s family, his hobbies, and his injuries. We built a rapport and established a high level of trust. We spoke about his hopes and dreams for the money. We discussed the idea of “fair” and what that meant to him and what that might mean to someone coming from a different perspective. We quantified how much a new truck would cost, and how much a cabin in the mountains would cost.

We analyzed how much Donald’s medical bills were in comparison, discussed what that means in the context of general damages, and Donald slowly began to realize that his expectations were not in line with reality.

Finally, after many hours, Donald understood the hospital wasn’t trying to bankroll his lifestyle, just compensate him for the injuries he legitimately received from the fall. The settlement he agreed upon was six-figures less than he originally expected, but Donald still left feeling like he got a fair deal.

Before mediation, it is important to understand your client’s expectations because those expectations can often be the one and only obstacle to resolution. A neutral mediator can help a client work through their expectations so all parties can determine whether those expectations are in line with the legal case or outside the scope of the injuries claimed.

The biggest challenge for the mediator in this context is that he or she must remain neutral throughout this process, taking great care to ensure that each party’s interests and positions are fully examined and addressed.

In this mediation, the plaintiff’s lawyer gave the mediator strict marching orders that the mediator was to help adjust her client’s expectations. Mediators might rightly ask, “Whose interests must the mediator serve? Which party is the mediator’s client: the attorney

Terri Lubaroff

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From an ethical perspective, there are many ways to arrive at the “right” outcome. One mediator might practice simple shuttle diplomacy and communicate demands and offers until both parties reach impasse or settlement. Another mediator might be more evaluative, discussing only the strengths and weaknesses of each element of the case. Yet another mediator might dig at everyone’s underlying interests, asking all parties to analyze and quantify those interests, literally helping the parties put a price on their own “happiness.” This mediation was complicated enough to require all three methods.

Commercial mediators use finesse, nuanced communication skills and careful attention to process, especially when dealing with high expectations or client control issues. Lawyers and their clients need to come to mediation prepared to discuss the strengths and weaknesses of their case, as well as settlement demands and offers, but they must also be ready and willing to discuss more difficult issues: what is driving them emotionally, personally and financially. Examining these underlying interests helps align expectations, even when expectations at the end of mediation are vastly different from the beginning. A skilled mediator can help all parties understand and overcome great expectations, achieving resolution in cases that might have gone to trial otherwise. z

Terri Lubaroff, Esq. is a conflict resolution specialist, having honed her skills first as a film and television producer and later as a full-time mediator and arbitrator. She specializes in Entertainment, New Media, Employment, Consumer Torts and Business Disputes, and is adept at dealing with difficult personalities. She is a member of the Florida Bar and is a full-time neutral in Southern California with Agency for Dispute Resolution. www.lubaroffmediation.com Read more articles by Terri Lubaroff at: www.adrtimes.com/articles/author/terrilubaroff

Winter 2013 | 9

USING TECHNOLOGY To Overcome Impasse in Commercial Disputes

by Susanne Nusbaum

Technology can be used to overcome impasse in dispute resolution.

Since all dispute resolution is an exercise in communication, I’d like to examine how internet technology either aids or impedes efforts to exchange information and reach understanding.

In traditional ADR, the participants appear in person, where they can communicate both verbally and nonverbally. Impasse may arise when persons look or sound different. The parties interact in real time, synchronously. Parties often heavily rely upon body language to interpret the words being said. The process is customarily confidential, and parties often agree not to share the comments made in the mediation room with persons who are not present or not integral to resolving the dispute. Online, however, there may be no view of the persons who are communicating. The communication may be entirely in written form.

10 | ADR Times Perspectives

The sending party and the receiving party may not be communicating at the same time. There may be no way to know who is reading the messages or how the language that is being used is being received.

The assumptions made about common knowledge may not be correct.

And the written statements may be communicated in a public forum.

In traditional mediation, the mediator will assist the parties to focus on their underlying needs, not just their positions. The online process may use mathematical algorithms to sharpen the parties’ focus or reach a resolution. Traditional mediation has been reliant upon the parties to produce the factual information necessary for understanding, and impasse has been reached due to the unavailability of critical information. Technology now makes access to reference materials instantly available.

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With modern technology, it is possible to reshape the mediation environment to promote the parties’ movement toward resolution. The place to begin is to understand the various types of online communication that are available and then choose which combinations of types of communication will best aid you to resolve your particular type of dispute.

Where Impasse Is Caused by Distance In Certain Static Random Access Memories and Products Containing Same, US International Trade Commission, Order 14, Inv. No. 337TA-792 (November 22, 2011), client representatives were forced over objection to attend a court-connected mediation in person. The judge felt that it was critical to the success of the mediation to have in-person participation of the decision makers in order to not only facilitate com-

munication, but also to identify and overcome issues that may create an impasse to settlement. However, by requiring physical presence rather than using technology to facilitate the communication, the judge may have been creating a new impasse. It may be difficult for parties who are geographically diverse to physically meet together. When parties are forced to travel to engage in mediation, they may arrive aggravated and seeking recovery of the expense involved. Technology combined with sensible attendance requirements provides a solution.

The quality of communication by videoconferencing today is almost as good as that among persons in the same room. Medical doctors are using Cisco’s Telepresence to diagnose patients located far away from them. Certainly then, Telepresence should be adequate for mediation as well. Other videoconferencing products are being used by the

Winter 2013 | 11

U.S. Merit Systems Protection Board and are found to be adequate. I have even used Skype, a virtually free service, to mediate some cases.

To enable the video communication remotely, the parties should have the same attendance requirements as if they were physically in the same geographical location. They need to stay in the line of sight, listen and respond to what is being said. If they do, they can be as fully engaged in the mediation process across the country or the world, as if they were in the same room.

Technology can manage the dispute resolution process and set the agenda for negotiation, guiding the parties toward resolution. Online negotiations can parallel face to face negotiations by putting the parties into an unstructured communication environment, simply using technology as the communication for a traditional mediation process, as I have done by having the parties participate by videoconference.

Technology will allow asynchronous progress in negotiations. Parties can make their moves online, log out and wait for the other party’s response. Online negotiations can change the nature of communications so that a party who would not speak up in a face-to-face session may feel more comfortable providing input in writing.

ODR providers are developing automated dispute resolution procedures, which use algorithms to drive the negotiation process. Online automated processes can create a structure for the negotiation, focus the deliberations on the central issues in dispute, and eliminate posturing and delay tactics.

Overcome Impasse by the Value of Reputation A new online dispute resolution service, Peopleclaim.com, facilitates settlement in cases against product or service providers, professionals,

or anyone else whose reputation is important to them. The company operates as an internet service provider, posting publicly all claims that remain unresolved after 30 days.

This service can be used without a lawyer or mediator. Peopleclaim will help locate the respondent’s email or mailing address where the claimant doesn’t have it. Peopleclaim serves the claim on the responding party.

The respondent may accept the claim terms, reject them, make a counteroffer, or add reasons for rejecting the claim that will be visible on any public posting. In many cases, a claimant will hear back immediately from a respondent with an agreement to his terms, or a counteroffer. The parties can exchange offers and negotiate back and forth as often as they like.

If a claim is ignored or rejected, it will post publicly on the PeopleClaim Registry if the claimant selected the public posting option. Once posted, the claim becomes accessible to others via search engine queries, and visitors can view it along with others filed against the respondent. Public posting of the details and demands provides an ongoing incentive for prompt resolution of valid claims and allows others to comment or suggest resolution options.

If the claim is not resolved, or even responded to, until after the posting date, the claim will post. It will appear in the PeopleClaim Registry with any other claims against the same respondent. In some cases the respondent may choose to settle the claim only after claims from other parties have also been posted. Public posting can provide an ongoing incentive for settlement.

Parties are instructed to notify PeopleClaim if they settle outside of PeopleClaim.com, so that the claim can be removed from the system and not posted.

Overcome Impasse by Focusing the Parties In all the ODR processes discussed herein, the process focuses the parties on possible solutions to the dispute. For example, in the Peopleclaim process, the claimant is asked what he wants for a resolution.

If the proposal is accepted, that resolves the case. If both parties agree to a set of terms by clicking the “Agree” button, the claim is considered resolved. Resolved claims will not post; if they have already posted, they will be removed from the Registry.

As part of PeopleClaim Terms of Use, the claiming party agrees that any settlement between the parties releases the respondent from further obligation without admission of guilt or liability. In settling a claim the parties are agreeing only to its terms and obligations. The mutually accepted terms of agreement can be added by either party.

The negotiation process allows the parties to help shape terms that will be acceptable to them.

An agreement through the PeopleClaim system is generally considered a legally binding and enforceable agreement. In the event that either party breeches the agreement, the other party may be able to enforce the terms of agreement though conventional legal channels.

There is a very high success rate for the PeopleClaim process for small consumer claims against large companies and for small claims against local businesses. The business benefits from the feedback that it receives. It can set up a google alert and know as soon as a claim against it is published. Every level of the corporation can have instant access to this information, so that problems can be addressed early at high levels in the company. Multiple claims involving a particular location or person can be easily spotted. And claims that might otherwise morph into a class action can be addressed in a global fashion by formulating a standard response to a particular problem, which, if accepted, will prevent a class action from later arising.

The following is a short overview of actual technology now being employed to overcome specific types of impasse: - Overcome Impasse by Help from Third Parties. ODR is now incorporating crowd sourcing techniques in its dispute resolution processes. For example, At Peopleclaim.com, a claimant can request third-party (e.g. member of the public, participating lawyers, user with similar claims) help at the time the claim is filed. Similarly, eBay runs a Community Court to resolve disputes over negative feedback by putting issues before a jury of 7 unbiased eBay members. Community court system could be used in any on-line community to resolve disputes, such as standards organizations, licensing organizations, etc.

- Overcome Impasse with Solution Set Databases. When a particular type of dispute is identified, computer programs can display a

Suzanne Nusbaum

common set of resolutions to that type of dispute. This helps to focus the parties on solutions that others have found workable, particularly with consumer disputes. Where the online dispute resolution process permits human intervention, such lists aid communication by focusing the discussion on the types of resolution that are customary in that industry or field. For example, the U.S. Air Force publishes a list of potential solutions to impasse in employment disputes. Online Dispute Resolution Working Group convened by the United Nations Commission on International Trade Law (“UNCITRAL”), is working on reason and resolution codes to describe the exact nature of the dispute and the resolutions preferred by the disputing parties which will greatly facilitate communication between parties who do not speak a common language.

FOCUS

- Overcome Impasse with Blind Bidding or Automated Arbitration. Blind Bidding takes the human emotions out of the dispute resolution process. It eliminates the posturing and strong egotism that can impede the traditional ADR and instead allows parties to focus quickly on the ultimate goal of a reaching a settlement that they find is fair.

- Overcome Impasse by Visible Bidding and Hidden Acceptances.

SmartSettle uses a variation on blind bidding that uses some of the knowledge gained in face-to-face mediation. In the SmartSettle dispute resolution process, the parties must agree upon a Framework for Agreement before undergoing the blind bidding process.

- Overcome Impasse by Expedited Arbitration Processes. The American Arbitration Association Rules provide for an on-line expedited arbitration process. For example, at one company, once online arbitration has been commenced, AAA selects engineers to arbitrate the cases. The arbitrator communicates only online and without a hearing. The arbitrator reviews the documents that were uploaded, determines an award, and informs ICDR, which communicates the award to both sides online - no lawyers, depositions, witnesses or hearing dates.

Conclusion There are increasing opportunities to employ technology in the decision making process, releasing the time and money saved so they can be better used in the client’s business. This short overview does not exhaust the possibilities of what is presently available online to resolve impasse, but is merely an introduction to some options that exist that are worth pursuing. z For more details on the actual technology available to overcome impasse, visit www.adrtimes.com/articles/2012/3/16/using-technology-to-overcome-impasse.html

Suzanne K. Nusbaum brings 25 years of dispute resolution experience to her fulltime neutral ADR practice. A Fellow of the Chartered Institute of Arbitrators and a former judge, she has specialized expertise in resolving employment, entertainment, health care, and intellectual property disputes. She also serves on various ADR panels and volunteers internationally to teach students basic dispute resolution skills. www.suzannenusbaum.agencydr.com Read more articles by Suzanne Nusbaum at: www.adrtimes.com/articles/author/suzannenusbaum

Winter 2013 | 13

DISCOVER

Cutting Costs in Court: Will Mediation & ADR Save the Day?

The justice system in California—the largest in the nation—is among the hardest hit by the latest round of budget cuts. In the fiscal year alone, the judicial branch reports that courts have faced $544 million reduction of funds. Local court funding will be cut by $235 million, affecting courts who have practiced prudent budget management in the past. An additional $150 million of cuts will be applied to all trial courts on a pro rata basis. The remaining $240 million redirects court construction funds which will impact new court construction that support existing court operations.

Notably, the American Tort Reform Association (ATRA) released its annual list of “Judicial Hellholes” with California earning the #1 slot for (among other enumerated reasons) the devastating cuts in the judicial branch, bordering on crisis. As of November 2012, in Los Angeles County alone, there were 329 layoffs, 574 vacant positions, elimination of staffing in 56 courtrooms, elimination of more than 100 management and administrative positions, and a significant reduction in court reporter services.

The significant reduction in funding present huge dilemmas. Civil court services are at the greatest risks for reduction of hours and the closure of many courtrooms. Criminal courts are protected to some degree due to the constitutional protections afforded to those in criminal court such as a speedy trial. Consequently, the impact on public safety and access to justice in civil courts will therefore be the greatest.

Litigation is becoming more costly and timely. Research released by the Straus Institute for Dispute Resolution at the Pepperdine University School of Law shows that 53% of Fortune 1000 companies spent more than $1 million each on litigation in 2011, with the total annual litigation spend of $21.1 billion representing more than half of the overall legal budget. One study conducted by Micronomics estimated that from 2009 through 2013, delays in dispute resolution could cost the United States $52.2 billion in lost economic output.

A spokesperson from a State Bar Association, Bill Weisenberg, said “When the system is not adequately funded it slows down and people literally can’t get their day in court in a timely fashion.” For most people, facing years in court is simply not an option. For businesses in this tight economy, the effects could be detrimental.

How can we solve this problem?

ALTERNATIVE DISPUTE RESOLUTION. Court-offered mediation and settlement programs are falling to the wayside as part of the budgetary funding reduction. However, private organizations are stepping in to offer cost-effective solutions which utilize Alternative Dispute Resolution (“ADR”). Mediation is an affordable alternative. With long lines in the civil justice system, mediation often offers a much quicker resolution. With technology rapidly developing in the field of ADR, new organizational structures are also making mediation and other negotiation tools more accessible now than ever.

Is “Delayed Justice” really justice?

The landscape of ADR in the business world is changing.

As a result of the cuts, it now takes longer to obtain a restraining order in domestic violence cases. Custody hearing cases are being pushed back by months. Homeowners fighting foreclosures are facing significant delays. Self-help or family law facilitator services for the public are being reduced or cut entirely in many courts. The closure of more courtroom, more layoffs, and further reduction of services and hours are inevitable. With the budget cuts, a case that took fifteen months may now take five years to litigate. It now takes months sometimes nearly half a year to get a court date for discovery motions when it used to take only a few weeks.

The International Institute for Conflict Prevention & Resolution (CPR) recently announced its new “pledge” by Fortune 500 elites to commit to sustainable dispute resolution management systems to reduce costs and boost global competitive edge. Hon. William H. Webster, Chair, CPR Board of Directors says “The 21st Century Corporate ADR Pledge ushers in a new era for ADR and revolutionizes the culture of litigation that has hampered Corporate America.” He adds, “If the majority of our businesses and their leaders pledge to pursue the policies and practices we propose and adopt an integrated conflict resolution program, collectively, we can significantly reduce the time

14 | ADR Times Perspectives

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and financial burdens associated with litigation, more effectively bolster our position among the global business elite and, ultimately, evolve to become a culture of conflict prevention and resolution.”

Among the shift in approaches away from litigation, is Streamline Settle. The Agency for Dispute Resolution (the “Agency”) recently launched Streamline Settle, a new litigation management service for businesses. As the economy continues to struggle, many businesses are starting to rethink their litigation budget. The Streamline Settle approach gives corporations a way to effectively manage their legal portfolios, while offering a fixed-fee alternative for mitigating risk and reducing contingent liability. Mark Fotohabadi, Managing Principal of the Agency for Dispute Resolution, stated that, “Streamline Settle helps in-house counsel resolve ‘below the waterline’ cases in a strategic and efficient manner, and our fixed-fee pricing brings certainty to an unpredictable effort.”

Taking advantage of recent advances in cloud-based computing, the Agency bills a flat fee, regardless of how long a case takes to settle.

The Agency has invested well over $1.2 million in sophisticated infrastructure to create the high efficiency needed to offer this alternative fee arrangement.

Streamline Settle quickly and confidentially removes dormant cases from internal dockets, which helps move M&A transactions forward when risk-averse buyers would rather kill the deal entirely than assume the risk of successor liability. Streamline Settle can also help reduce a company’s litigation portfolios, which is otherwise a constant risk. By reducing litigation portfolios, Streamline Settle allows companies to save.

With the current court funding crisis, cases will take longer to resolve as litigation gets stuck in court gridlock, perhaps for years. Technology and increased social connectivity has empowered investors to “read between the lines” and analyze how contingent liabilities buried in annual reports can impact the viability of a company. By unlocking shareholder value, freeing up cash, and bolstering stock price, Fotohabadi said, Streamline Settle is definitely an idea whose time has come. z Check it out at www.StreamlineSettle.com

An international outlook from key positions From Negotiation Skills to Conflict Management and from Mediation to Adjudication we are expert at what we do which is why individuals and organisations, from the United Nations through to small to medium enterprises, call on us at our different locations around the world to help make a difference.

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Film: Face-to-Face

One Mediator’s Perspective

by Christopher M. Welch, Center for Conflict Resolution (CCR) The time has come for a movie to capture the art of being a conflictresolver or mediator. A work that transcends the depictions of the mediation field currently found in the US mainstream media. This a raw, unfiltered look at a mediator engaged in the drama of mediation.

Directed by Michael Rymer, this film is about ten Australians from diverse backgrounds who sit down to determine the fate of a violent young man. The Film Festival Flix provides the following synopsis of this award winning independent film: From Australia’s most acclaimed playwright, David Williamson, a moving and powerful new film about lies, betrayal, sex and bullying in the workplace. A young construction worker rams into the back of his boss’s Jaguar in a fit of anger at being sacked. Rather than fronting court, he’s given the chance to explain his actions in a community conference. This face-to-face confrontation between the young man, his boss, his boss’s wife, coworkers, best mate and mother lifts the lid not only on his dysfunctional life but also on their workplace dirty laundry, turning all of their lives upside down.

Face To Face depicts a restorative justice or victim-offender model of dispute resolution. John Braithwaite, author of Restorative Justice & Responsive Regulation, offers a working definition in his book: “Restorative justice is a process whereby all the parties with a stake in a particular offence come together to resolve collectively how to deal with the aftermath of the offence and its implications for the future.”

The reality of facing the legal justice system becomes a strong motivating factor for parties to remain engaged in the process. The mediator often times uses reality of fear and unknown consequences as an anchor when trying to break impasse and recalibrate the parties effectively. Presenting the best alternative and the worst alternative to a conflict scenario is familiar to any mediator in the field.

Braithwaite highlights the teachings of the Dalai Lama:

Learning to forgive is much more useful than merely picking up a stone and throwing it at the object of one’s anger, the more so when the provocation is extreme. For it is under the greatest adversity that there exists the greatest potential for doing good, both for oneself and for others.

Face to Face depicts a different type of mediation. This is not a commercial mediation of a litigated case. There are no insurance adjusters, no attorneys. Some might not categorize it as a complex case because a dollar amount is not readily attached to it. Dollar signs and zeros are effectively stripped from these types of cases, but the complexities remain. If the offender doesn’t work out his problems or reconcile them in a way deemed proper by the whole, the reality of jail time is imminent. The offender, in this case, even threatens personal harm when faced with those options.

The characters in Face To Face are nuanced such that definitive roles are hard to quantify, all of them layers of the raw onion – not sautéed and approachable; more pungent, tearful, and cleansing. Skillfully and nuanced, the mediator has to peel back the layers, slowly at times, and with swift precision at others. The setting is an open space with no hallways, no caucus rooms, and no corners to hide in. Raw, true to life language is expressed, expletives and all. Jack Manning (Matthew Newton) the conflict manager in the movie, creates an environment of exposure and vulnerability for the parties, and in turn fosters true opportunities for reconciliation and growth through the process. As most conflict managers/mediators can attest, having the ability to seamlessly transition from facilitator, to evaluator, to reality

Christopher M. Welch is the Director of the Center for Conflict Resolution (CCR). Chris earned a Masters in Dispute Resolution degree from Pepperdine University School of Law, Straus Institute of Dispute Resolution with an Bachelors degree in Political Science. Mediating more than 350 cases, he facilitates resolution in various types of cases primarily in the small claims and community arena.

Christopher Welch

Read more articles by Chistopher Welch at: www.adrtimes.com/articles/author/christopherwelch

18 | ADR Times Perspectives

DISCOVER tester, both broad, narrow, and anywhere in between is a vital skill set to possess. All mediator “hats” are worn in this particular conflict scenario.

Not being afraid of emotion and allowing people to express themselves opens up the window for transformation and/or reconciliation to occur. This concept is demonstrated in the film several different times through signs of mutual respect and true apologies. The mediator states in the movie, “Sometimes you have to break up fights; sometimes you have to start them.” Having the boldness to engage all the parties and ruffle the occasional feathers proves effective in this case study. While everything looks out of control, the mediator remains the captain of the ship, guiding the parties through the high-conflict seas. The mediator remains at the helm throughout, never letting go.

Face To Face acts as a wonderful case study to be reviewed by those in the conflict management field. Lessons can be learned from observing someone in a completely open session who allows a lot of the conflict to unfold organically as opposed to a tightly controlled environment found in many caucus-only scenarios. The methodology might not be best for all conflicts, but for the restorative justice scenario it proves a valuable model. z The Center for Conflict Resolution is a premier provider of Alternative Dispute Resolution (ADR) and conflict management resources, attending to the needs of the larger community. Specifically through court-annexed mediation programs, community mediation initiatives, peer mediation programs and Christian faith-based mediation. CCR provides services of the highest professional quality at the lowest possible cost to all that seek assistance in the interest of bringing peace and creating peacemakers.

Winter 2013 | 19

ON THE EDGE

Responding to Hostile Emails

by Bill Eddy, LCSW, Esq.

Hostile mail – especially email – has become much more common over the past decade. Most of this mail is just “venting,” and has little real significance. However, when people are involved in a formal conflict (a divorce, a workplace grievance, a homeowners’ association complaint, etc.) there may be more frequent and intensely hostile mail. There may be more people involved and it may become legally significant. You would be amazed at the embarrassing hostile emails that show up in court cases these days. Therefore, how you handle hostile mail may impact the future of long-term relationships and the outcome of a case. The following are some suggestions based on my experience with high conflict people: 1. Do you need to respond?

Much of the hostile mail today does not need a response. Letters from (ex-) spouses, angry neighbors, irritating co-workers, or attorneys do not usually have legal significance. If someone says nasty things about you or someone else in a letter, the letter has no power, unless you give it power. Often, it is designed to get you engaged in a battle of emotional venting for the sake of relieving the writer’s anxiety.

Generally, responding with similar emotions and hostility will simply escalate things without satisfaction, and you will just get a new piece of hostile mail back in return. In most cases, you are better off not respond-

20 | ADR Times Perspectives

ing. However, some letters and emails develop power when copies are filed in a court or complaint process – or simply get sent to other people. At that time, it may be important to respond to inaccurate statements of fact with accurate statements of fact (leaving out your opinions). Therefore, sometimes you need to respond.

BRIEF

2. Don’t Respond Emotionally

Don’t take their statements personally (even if they were intended as personal attacks) and don’t respond with an item-by-item personal attack. It just escalates the conflict and keeps it going and going and going.

Brain research shows that our ability to think rationally is impaired when we are very upset–and hostile mail can trigger many emotions. Therefore, you do not want to respond until you have recovered from these emotions. This is a common mistake people make in quickly responding to hostile e-mails. Calm yourself down first, either by taking a break, getting some exercise, doing another project, talking to a friend or neutral relative, etc.

3. Determine Your Goal Before You Write Is your goal to get the other person to do something? If so, focus on what you want the person to do – not on what he or she did wrong. For example, if a neighbor has been loud, request that the person try to keep it quiet during specific times that are important to you. Avoid focusing on comments about the person’s character, such as saying he or she is rude, insensitive, or stupid.

These do not motivate high conflict people.

Once you have identified your goal, I recommend writing a B.I.F.F. response: Brief, Informative, Friendly and Firm.

Keep your response brief. This will reduce the chances of a prolonged and angry back and forth. The more you write, the more the other person will be tempted to criticize in your writing. It also signals that you don’t wish to get into a dialogue. Just make your response, then end your letter.

You don’t have to defend yourself to someone you disagree with. If your friends still like you, you don’t have to prove anything to those who don’t.

INFORMATIVE The main reason to respond to hostile mail is to correct inaccurate statements which might be seen by others. “Just the facts” is a good idea. Focus on the accurate statements you want to make, not on the inaccurate statement the other person made. For example: “Just to clear things up, I was out of state on a trip on February 12th, so I would not have been the person who was making loud noises that day.”

Avoid negative comments, like little digs.

Avoid sarcasm. Avoid threats. Especially avoid personal remarks, like those about someone’s intelligence, ethics or moral behavior. If the other person has a “high conflict personality,” you will have no suc-

cess in reducing the conflict with personal attacks. While most people can ignore personal attacks or might think harder about what you are saying, high conflict people feel they have no choice but to respond in anger – and keep the conflict going and going. Personal attacks rarely lead to insight or positive change.

FRIENDLY While you may be tempted to write a response in anger, you are much more likely to reach your goal by writing in a friendly (and brief) manner. Consciously thinking about a friendly response will increase your chances of getting a friendly – or neutral response – in return. If your goal is to end the conflict, then being friendly has the greatest likelihood of success.

This does not mean that you have to be overly friendly. Just make it sound a little relaxed and non-antagonistic. Make it sound like you recognize their concerns. Brief comments that show your Empathy, Attention and Respect (E.A.R.) will generally calm the other person down, even if only for a short time.

and forth. (Avoid comments that leave an opening, such as: “I hope you will agree with me that this does not need further discussion.” This invites the other person to tell you “I don’t agree.”)

Sound confident and don’t ask for more information, if you want to end the back-andforth. A confident-sounding person is less likely to be challenged with further emails.

If you get further emails anyway, you can ignore them, if you have sufficiently addressed the inaccurate information already. If you need to respond again, keep it even briefer and do not emotionally engage. In fact, it often helps to just repeat the key information using the same words. (“As I said in my email of March 6th, that is all I am going to say on this subject.”)

Whether you are at work, at home or elsewhere, a B.I.F.F. response can save you time and emotional anguish. The more that people handle hostile mail in a manner such as this, the less hostile mail there will be. z

Have an article, story, comment, or topic suggestion you would like to share with ADR Times?

Email editor@adrtimes.com or contribute online at: www.adrtimes.com/connect

High Conflict Institute provides training and consultations regarding High Conflict People (HCPs) to individuals and professionals dealing with legal, workplace, educational, and healthcare disputes.

For more information about High Conflict Institute, go to: www.

HighConflictInstitute.com or call 619-221-9108.

For more information on BIFF responses, watch the video at http://www.youtube.com/embed/ tIpfMb7ZRjY?rel=0

FIRM In a non-threatening way, clearly tell the other person your information or position on an issue. (For example: “That’s all I’m going to say on this issue.”) Be careful not to make comments that leave the door open to more discussion, unless you are negotiating an issue or want to keep a dialogue going back

Winter 2013 | 21

Difficult People

Effecting Change in How We Handle This Fact of Life

by David C. Peterson

The American Bar Association this year included a brief article in its October Journal under Law Office Management highlighting a Stanford University study and article

by Professor Robert Sutton concerning the effect of “jerks” in the workplace. One of the conclusions made from various studies outlined in the article was that people identified as “pessimists and angry or nasty people” will reduce overall productivity of the entire department by 30% to 40%.

“Negative workers” bring down enthusiasm and change the mood of a group. This principle is applicable to innumerable settings according to the article.

In her article “The High Art of Handling Problem People” (Psychology Today, June, 2012), Hara Estroff Marano identifies who the troubled and troublemakers are and alerts us that some types seem to be on the rise. They include “the hostile, the neurotic … and those whose egos are too involved in everything.” Individuals with these characteristics bring down those around them and create hostile situations unnecessarily.

Productivity and success are crippled when these behaviors are in play.

The legal arena provides fertile ground for these negative traits. A recent ABA Journal article (November, 2012) discussed a study revealing there are many psychopaths attracted to the legal field. Few other forums produce as many circumstances where the worst in people is exposed. The Judicial System suffers as a result. Clients expecting to be served in a system of justice find themselves in a system fueling the fire of negative

22 | ADR Times Perspectives

emotions and conduct. Whether attorneys or parties being prone to negative traits are drawn to the profession and combative system, or whether dormant negative traits are drawn out because of the setting, there is certainly ample opportunity to learn how to deal with these types of individuals.

The first thing not to do is react in kind. It is the single worst mistake but is normally the first reaction coming to mind. Author Hara Marano reminds us that “It takes a great deal of emotional maturity to interact with someone very intense or angry.” The same is true with the other challenging traits as well. These difficult individuals have gotten used to others reacting in a certain way with them.

Often others either lack emotional intelligence or just don’t care to practice it with a difficult person. They too react in a negative fashion. Because of this, the troublemaker is usually stunned when someone reacts differently or does not seem to react at all. They normally become disarmed as they attempt to understand what is happening. They are

from it.

The key appears to be doing that which is counter-intuitive. In this way, the process that is or would be impaired by negative behavior is not. This, of course, is conditioned upon the interaction continuing. Whether it continues is usually left to the would-be troublemaker. Most often they will go on even if their tactics or tantrums are failing them. In a recent divorce mediation, the husband stood up over his wife and spewed his anger at her. She sat calmly and said, “stop it – please sit down and be civil.” She wasn’t rattled. It was she who was in control rather than the one attempting to intimidate.

The husband’s tactics did not work. The mediation went forward and a settlement was reached.

We also should not assume beforehand that a person will be difficult due to our preconceptions. In mediating a matter with a world champion Ultimate Fighter, I found that he was not at all what I had expected and the matter settled without hostility. We can cause negative behavior by treating some-

Often others either lack emotional intelligence or just don’t care to practice it with a difficult person. not getting the response they expect. They may intensify their rude behavior but eventually realize it will not have the emotional affect they desired or are accustomed to.

Either way, they don’t get what they want

one as if they are being difficult before they actually are.

In addition to not reacting in kind or exhibiting difficult behavior ourselves in response to another’s rude behavior, we can take

EDGE another counter-intuitive approach which is usually quite productive: act positively toward the person. You can actually mean it if you wish (and it’s usually better if you do). Realize that usually a person whose ego is out-of-whack or who is excruciatingly negative or rude cannot be having a great life. I internally express thanks I’m not living in their head; and I certainly don’t want them occupying space in mine. You may not exchange birthday presents or become best friends but in the time you work with each other, you will almost always find the “going is easier” and the prospect of a positive result for your client increases exponentially. This is, after all, the goal.

There is hope and evidence of change in the legal profession. One is the advent of mediation. The other is the result of ongoing efforts to dissuade and eventually eliminate hostility and shameful behavior by lawyers and others in the judicial system.

We are able to change how we do business in the legal profession. Studies and proposals for change of the hostile environment have been underway for some time.

Civility Rules adopted in California clearly recognize the pervasive negative influence difficult people have on the courts and profession.

This has been one means to deter and eliminate it.

Just as studies have shown that getting rid of one or a few of the difficult individuals in an organization or business dramatically increases overall productivity, so does changing the environment in our Judicial System.

As attorneys and others in the system have altered their approaches and become more civil in their interactions, it has become less popular to be an outwardly hostile egomaniac. The most formidable foe it turns out is the one with quiet confidence, who demonstrates his or her abilities through their work. Blowhards seem to be compensating for a lack of skill and ability or for taking an untenable position.

Mediation has also been effective in changing the emotional environment. Success for a client is achieved far more effectively by attorneys who demonstrate social and emotional intelligence and who have the ability to be problem solvers. Surveys demonstrate that parties are overwhelmingly more satisfied by the opportunity to negotiate in a positive setting with lawyers who are civil. The rush of excitement when their lawyer is rude and obnoxious fades into disappointment when nothing positive is achieved.

David C. Peterson is a full-time mediator on the Central Coast beginning in 1995 and mediating over 1,800 cases. After a 20+ year litigation career, he obtained a Master’s degree and then LLM degree in Mediation from Pepperdine University School of Law, Straus Institute for Dispute resolution (rated #1 by U.S. News & World Report) where he has taught Mediation Theory and Practice. He is head of the ADR Sections in Santa Barbara and San Luis Obispo (now co-chair). For comments or information Mr. Peterson can be reached at davidcpeterson@charter.net or (805) 441-5884.

Rules of Civility and mediation, however, have not erased the ubiquitous few difficult persons in the process, whether it’s a lawyer or a party. These individuals are either incapable of recognizing their behavior and the negative impact it has for themselves and their client or they know and don’t care.

Whether ignorance, a sociopathic tendency, or an intention to be difficult is the cause, we are left to deal with the problem. Doing so intelligently is the key. z

Winter 2013 | 23

COMMENTARY

Listen to me!

Litigation’s Modern Failure

by Mikita Weaver

24 | ADR Times Perspectives

W

e live in an increasingly touchy-feely society where we give respect and regard to the therapist, the counselor, and professionals generally whose purpose and process is geared towards the individual’s needs.

lawyers, litigants pick up their swords and their weapon of choice. In the gladiator-like showdown, the litigants fight to their death. After investing time and resources in the “fight,” it becomes even more difficult to cut losses and settle. These sunk costs only drive the parties further from resolution.

It’s not surprising that as society has evolved, and our basic needs are met (e.g. food, shelter, safety), we strive to find belonging, build self-esteem, and achieve self-actualization. Maslow’s Hierarchy of Needs illustrates this simple concept, but it is important to recognize the significant role of our psychological and emotional needs in daily life. Emotional validation is a basic human need. Being heard and understood is essential to growth and development.

Litigation is an archaic way of resolving disputes. Litigation fails to acknowledge modern day’s attempt to value the spiritual, psychological, and emotional needs and wellness of the individual.

For the average individual in modern society, with the typical legal problem, the litigation process is ill-equipped to provide meaningful resolution.

Today, more than ever, our society encourages individual expression and growth. Social media provides the tools and mechanisms to broadcast one’s voice far and wide. The internet, through programs like Skype, provides for face-to-face communication between people across the globe. Technology enables us to communicate with one another and, arguably, allows us to be heard in return.

My alma mater, Berea College, recognized the importance of a holistic approach to learning with its emphasis on “learning, labor, and service.” This tripartite emphasis was echoed again at the law school I attended. Pepperdine’s motto was “Strengthening lives for purpose, service, and leadership.” Institutions of higher education recognize that growth comes from spiritual, educational, and psychological satisfaction.

When it comes to growing and learning and living, our society values the multi-faceted approach of total wellness. “Wellness” itself is all about maximizing an individual’s potential in various areas including mental, emotional, physical, social, environmental, and spiritual wellness. We recognize that to live a balanced and content life, we need emotional, psychological, and spiritual wellbeing.

Yet, somehow, when it comes to solving legal disputes, these tenets or values are significantly underappreciated or, worse, overlooked and discarded entirely.

Instead of valuing the individual and his or her needs, litigation turns a conflict between two people into a battle. Aided and armed by their

The true travesty is that litigants most likely will not really get what they want from the process, even if they do “win” the final monetary judgment. Yes, people want money. But they also want to be respected and acknowledged. How can their voice be heard?

Zealous or hostile litigation quashes the opportunity to be heard. First, litigation does not provide a suitable venue for a party to speak his or her mind. Secondly, even if the litigant is given the opportunity to speak, it is unlikely that they’ll truly be heard given the setting. The cycle perpetuates itself: when you feel like you’ve been dismissed, you come out attacking rather than being conciliatory. When you aggressively attack, you further detract from what could have been a platform of genuine communication.

In representing clients in business litigation, I frequently deal with claims involving breach of contract, construction defect, and complex real estate matters in the areas of acquisition, financing, development, and land use. Despite the complexities of the legal issues in this area of law, I find it rather disappointing when the root of the dispute is simply an interpersonal conflict that for one reason or another has escalated to litigation.

When two neighbors have to go to Court to “talk” to one another, both parties will walk away unsatisfied. When litigation is employed, the battle outcome more often than not is “lose-lose.” After the mental stress and emotional toll of years in litigation, the parties risk walking away empty handed (or worse in debt from a judgment or attorneys’ fees); moreover, the parties have had little or no opportunity for

Winter 2013 | 25

Everything you need to know to be a Successful Mediator

by Victoria

Pynchon

Joe Kraynak, Contributor

Available at Amazon.com “A MUST READ!” “The best book on conflict resolution.”

“One of those Dummies Books that are not really for dummies!”

about.me/vpynchon | @vickiepynchon

meaningful engagement.

Besides providing testimony via deposition—clearly not a dialogue—the parties communicate solely through their attorney. The two neighbors may live next to one another, but the only meaningful opportunity to talk is a few hours in a settlement conference or a mediation.

The arena of litigation has not stayed current with society’s acknowledgment of the individual. Although our culture embraces and values the individual’s psychological, emotional, and spiritual needs, the “go-to” mechanism for resolution (i.e. the courthouse) is no longer equipped to deal with the emotional, spiritual, and psychological principles in the field of human interactions and interpersonal conflict.

As a litigator, I obviously see that there is a “time and place” for litigation. However, I recognize that for certain types of cases, the litigation route will leave parties unsatisfied. Our society has changed, progressed and litigation can no longer provide the emotional aspect that some litigant’s desire. In its present state, litigation is archaic.

In this constantly changing world, mediation offers something more. Particularly enticing is the “win-win” nature of mediated settlements as espoused by mediators and dispute resolution gurus. Most importantly, however, mediation offers the parties an opportunity to communicate their needs, and feel heard in an arena in which they can truly express themselves. z

Mikita Weaver is the Editor-in-Chief of ADR Times, a premier online dispute resolution community. As an associate at Northrup Schlueter APLC, she focuses predominantly on litigation and arbitration in the field of construction insurance defense. She received her Juris Doctorate at Pepperdine University School of Law and received a Masters in Dispute Resolution from the Straus Institute. Mikita has been published on the Pepperdine Dispute Resolution Law Journal and worked at the Centre for Effective Dispute Resolution in London.

As an avid traveler, she continues to explore various dispute resolution issues and how they vary from region to region. She graduated magna cum laude from Berea College with a philosophy degree and her favorite things include yoga, cooking, photography, and singing with the Legal Voices of Los Angeles and Lawyer’s Philharmonic.

Meet Mikita— www.adrtimes.com/editor-in-chief

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