In his ADR Mosaic column in the Fall 2017 issue of Diversity and the Bar, Theo Cheng and I discuss the stubborn resistance of the ADR world to true diversity and ask you to make concrete suggestions to change the reality now. There are many able and experienced arbitrators and mediators who are not being selected as often as they should be. The world of music changed a similar dynamic by conducting blind auditions. How can we make changes now that will improve ADR today? Please share your thoughts. Visit either Theo or me on LinkedIn
Am I talking to the wrong person?
You do need to know your negotiating partner.
Enjoying a guilty pleasure over this July 4th weekend, I watched a Netflix-delivered DVD of Saving Mr. Banks. It is the 2013 behind-the-scene story of Walt Disney’s effort to get the rights to make a movie of the beloved children’s book, Mary Poppins. Mr. Disney, it seems, had promised his daughters he would make the movie, but the author, P.L. Travers (played by a dour Emma Thompson), resisted Mr. Disney’s chirpy importuning for twenty years. When she found herself in need of money, she accepted a trip to Los Angeles to allow him to try to convince her. He launched a two-week charm offensive with the help of talented songwriters. But Mrs. Travers, as she insisted on being called, would have none of it. She said she did not want her beloved umbrella-toting character Disneyfied. So, essentially, the entire film is about a negotiation.
At the end of the trip, when Mrs. Travers storms off back to England, a key negotiating insight occurs. Mr. Disney is told that she is not English but Australian and that her family name is Goff. Mr. Disney says what I found to be the crucial negotiator’s insight line: “Have I been talking to the wrong person?” By the time he follows Mrs. Travers on the next flight to London and knocks on her door, he not only knows who she is but that her father’s name was Travers Goff and that she has taken his first name as her last name – and he has discerned that Travers Goff is Mr. Banks, the Mary Poppins character whom the author cannot relinquish. We all know that the outcome of the negotiation was a great success for both parties.
Why did I focus on this one line? I think it contains within its short seven words a few overlooked keys to negotiating success. First, it suggests that you do need to know your negotiating partner– that itself is often missed. It is not just how much you want something or the great reasons that you have to support your vision of a deal, your own power, fame, or previously successful charm, you must know the other party and how she might react to your “clear and correct” views. And it implies that you must do even more, you must have enough empathy to perceive another’s world view. In this case, Disney thought it was both the author’s perceptions of him and his background and her strong attachment and the unjustified guilt of a child about her father that made her cling to her creation even against her own financial interest and in the face of losing her home.
Make sure you are never talking to the wrong person when you negotiate, talk to Helen Goff, not Mrs. Travers.
Choosing a bare award can preserve confidential information in arbitration
In choosing between a bare award and a reasoned award in arbitration, drafting or arbitrating counsel often focus on the salutary effect on logic and reasoning that having to write an award may have on the panel. There is no doubt that is an important and legitimate purpose for requiring a reasoned award. As the renowned jurist Frank M. Coffin wrote in The Ways of a Judge 57 (Houghton Mifflin 1980):
[W]e may be in the very middle of an opinion, struggling to reflect the reasoning all judges have agreed on, only to realize that it simply “won’t write.” The act of writing tells us what was wrong with the act of thinking.
But other needs should also be weighed. The desire to assure careful thought in this particular way may be subordinate if the client has an overriding desire to maintain confidentiality. Many clients elect arbitration because it is a private process; they and often their counselors believe that confidentiality follows. However, privacy and confidentiality are not synonyms in the arbitration world. At least in the U.S., seeking judgment on a reasoned arbitral award can expose not only the fact of the dispute and its outcome but underlyingconfidential information. The reason for this exposure is that the needs of the open and publicly funded judicial system require that the judges’ rulings be subject to scrutiny. As one of the few appellate decisions on this topic explains:
the dispositive documents in any litigation enter the public record notwithstanding any earlier agreement. How else are observers to know what the suit is about or assess the judges’ disposition of it? Not only the legislature but also students of the judicial system are entitled to know what the heavy financial subsidy of litigation is producing. These are among the reasons why very few categories of documents are kept confidential once their bearing on the merits of a suit has been revealed. In civil litigation only trade secrets, information covered by a recognized privilege (such as the attorney-client privilege), and information required by statute to be maintained in confidence (such as the name of a minor victim of a sexual assault), is entitled to be kept secret on appeal. . . . [M]any litigants would like to keep confidential the salary they make, the injuries they suffered, or the price they agreed to pay under a contract, but when these things are vital to claims made in litigation they must be revealed.
Baxter Int’l Inc. v. Abbott Labs. 297 F.3d 544, 546-47 (7th Cir. 2002) (Easterbrook, J).
Therefore, if the rationale for the underlying arbitral decision is part of the judicial record, confidentiality is threatened. The Seventh Circuit made that perfectly clear in Gotham Holdings:
one can ‘‘agree’’ with someone else that a stranger’s resort to discovery under the Federal Rules of Civil Procedure will be cut off. . . .. [The parties] were entitled to agree that they would not voluntarilydisclose any information related to the arbitration. . . . Disclosure would be authorized only when a third party had a legal right of access. Gotham Holdings LP v. Health Grades, Inc., 580 F.3d 664, 665-66 (7th Cir. 2009) (citations omitted).
How can the drafter or advocate deal with this? There are multiple precautionary moves, but one of them is to include in the arbitration clause, the terms of reference, or the preliminary hearing order a specific statement that the parties seek a bare or simple award only. Some arbitrators may provide a separate statement of reasons if the parties so desire. But to maximize the potential for maintaining confidences – go bare!
Andre Agassi has something to teach us about improving our judgment – we need to put ourselves in other peoples’ gym shoes.
This was published in the first Law.Com Online Issue March 3, 2014 -and is here by permission:
Improve Your Judgment Like a Star Athlete Does
Andre Agassi was admitted to the Tennis Hall of Fame in 2011. He still has something special to teach lawyers about improving our judgment.
Lawyers are in the business of selling judgment. The focus of our training is the law so that we can understand it and inform our clients on its dictates or consequences for a project or problem that they face. However, we have a broader mission; we have obligations to share the kind of advice and information clients need to make an informed decision about their course of action in their particular circumstances. This often includes economic issues and predictions of outcome. Comment 2 to Rule 2.1 of the ABA Rules of Ethics provides: ”Advice couched in narrow legal terms may be of little value to a client, especially where practical considerations, such as cost or effects on other people, are predominant. Purely technical legal advice, therefore, can sometimes be inadequate.”
Although the science of decision-making has been a focus for Nobel laureates, psychologists and economists and even popular literature (e.g., Kahnemann’s Thinking Fast and Slow), now heightened by the advances in neuroscience, lawyers are seldom aware of the unconscious impediments to good judgment that they face.
Because of the very relationship that gives rise to our work, the client-lawyer relationship, we start with an unconscious cognitive bias that I call client-think. It is a species of groupthink, defined by Irving L. Janis, “Groupthink,” Psychology Today 5:6 43-44, 46; 74-76 (November 1971), after his examination of the Bay of Pigs strategic decision-making failures. Knowing the outcome our clients want and also suffering from a constellation of other particular unconscious influences endemic to our profession (See L.Kaster, Improving Lawyer Judgment by Reducing the Impact of Client-Think, Dispute Resolution Journal, vol. 67, no. 1 (Feb.-April 2012)), we examine evidence looking for supportive information, which leads to inattention blindness made famous by Christopher Chabris and Dan Simons in the Monkey Business Illusion. Inattention blindness causes us to miss evidence and information that may be critical to the ultimate result and that if known would have influenced our approach or strategic thinking and advice.
Andre Agassi knows something, whether intuitively or because of experience. He knows that a key to improved judgment (and performance) is to put yourself in the other person’s shoes. He did it almost literally. On January 16, 2014, New York Times sports reporter Greg Bishop wrote in “Seeking a Bigger Sweet Spot . ..” that Roger Federer was going for a larger tennis racket despite his long commitment to a smaller “magic wand.” But what fascinated me was a paragraph on Agassi, who “took the unusual step of buying rackets used by other top players and practicing with them.” The article notes that he did this not because he was considering a new racket but to “to see how certain rackets worked and ascertain which shots his best opponents could hit easily and which shots they could not. He could essentially scout Federer by using Federer’s racket in practice.” Agassi knew one way to understand the other side was to assume its position.
I asked Gerd Gigerenzer the leading German authority on decision-making if there was a single piece of advice to lawyers who wanted to improve their judgment. He said, tell them to put themselves in their opponents’ position and try to see things through their eyes. Daniel Kahneman recommends a pre-mortem, essentially a mind game in which you envision failure and dissect the reasons that caused that result – again an effort to change perspective. Assigning a member of our legal team, ourselves, or our client to assume the role and perspective of the opposition is one of the best ways to improve our judgment. Mediators too can help serve this perspective shifting function.
Nothing can be more important to our professional skills than learning how to improve the judgment we provide our clients; it is worth study, practice, and a change in perspective.
Preparing for mediation is preparing for a negotiation with your mediation partner. You can prepare not only by understanding what you need but by learning as much about your negotiating partners and what they might want or need and who has influence on them. Check this out:
Progress on the N.J. Mediation Front
MAXIMIZING THE BENEFITS TO THE JUDICIARY, LITIGANTS AND ATTORNEYS
By Laura A. Kaster and N. Janine Dickey
New Jersey Law Journal
March 14, 2013
The Civil Presumptive Mediation Program, part of the New Jersey court-annexed Complementary Dispute Resolution program (CDR), has been the subject of re-examination and rule change and hopefully renewal in 2013. It is still under scrutiny by the Supreme Court, but the CDR Committee of the Administrative Office of the Courts (AOC) obtained an extension of the review through mid-2013, and its prospects are looking up. It is a good time to pause, reflect and plan for an even better future for this important program that has served to change the legal culture, expand alternatives for litigants, and reduce costs to both the parties and the courts during these fiscally challenging times.
The New Jersey program — the envy of many other states — grew out of a prestigious Supreme Court task force led by Justice Marie L. Garibaldi, which held public hearings and issued a final report in 1990.
In evaluating the CDR program today, it is important to keep in mind the goals that gave it life. Among the stated goals was the desire that “litigants should have available at all levels of their court system a full set of options for the resolution of disputes ….” To this end, a CDR program would have to “[e]ncourage the confidence and respect of disputants and the general public in the fairness, integrity, and justness” and “be as efficient as possible in terms of the cost and time required of both the system and the disputants.”
CONCERNS: ADDRESSED AND RESOLVED
Starting in 2010, there was a groundswell of concern among court administrators that the program was an inordinate burden on their and the judges’ time because, among other things, it required periodic reporting, set a very early date for the mediation that sometimes was inappropriate, and allowed the mediators to seek unpaid mediation fees by way of an order to show cause. The CDR Committee addressed these issues and very promptly made changes to Rule 1:40, including: eliminating reporting except at the completion of the mediation; extending the time for mediation; permitting mediators to assist the court in case-management; and eliminating the order to show cause. Extensive FAQs were made available on the judicial website. And the NJSBA Dispute Resolution Section developed checklists correlated to the Amended Rule and FAQs for mediators and advocates. These efforts have been very well-received and seem to have met the articulated concerns.
EVALUATING THE PROGRAM
However, the focus on the burden to the court personnel was, at best, only one side of an equation. To measure the real success of the program, even on a purely monetary basis, we would have to weigh and compare the time and money saved by the court system and the parties who were the focus of the Task Force’s goals.
Those who disfavor the program argue that the vast majority of cases do settle before trial — 97 to 98 percent nationwide — concluding that mediation doesn’t add much. But there is a time value of resolving a case much earlier in the process before the court has to rule on multiple motions and before the parties incur significant expenses on the costliest aspect of litigation — discovery.
Unfortunately, cost has limited the ability to undertake a New Jersey study. But California did fund a very careful study of an early mediation pilot program, very similar to New Jersey’s, that assigned a value to the time saved by the court system by resolving cases early. California found that early mediation programs help courts save judicial time and money. In its Evaluation of the Early Mediation Pilot Programs, AOC (California), Feb. 27, 2004, a scientific study assigned a monetary value to both court time expended and court time saved by the programs. It found that, in San Diego, 479 judge days were saved by the program. That was a monetized savings of $1.4 million per year. In Los Angeles (a more limited program), 132 judge days were saved, equating to $400,000. Litigants’ costs were reduced 61-68 percent, and attorney hours saved were 57-62 percent. The savings continued after mediation because there were fewer post-disposition compliance issues. Mediation increased litigant satisfaction and was important to the ultimate settlement in 74 percent of the cases.
The Department of Justice has also studied the administrative cost to it versus the administrative savings of mediation and found that the savings far outweigh the costs. It found year over year increases in the savings, and also found that the vast majority of cases benefit even when mediation does not result in immediate settlement. www.justice.gov/olp/adr/doj-
These studies confirm the benefits envisioned by the New Jersey Task Force. So how can we help CDR flourish in New Jersey?
EXPANDED RULE CHANGE BENEFITS
Rule 1:40 originally contemplated that all mediations would be conducted within 90 days from the filing of defendant’s answer. Some attorneys objected to being “pushed” into early mediation. The September 2011 rule changes cured this problem, giving mediators greater leeway to schedule the mediation at any point prior to the discovery end date. This scheduling flexibility should permit mediators to tailor mediation schedules.
Permitting later mediation when appropriate also provides greater opportunity for mediators to assist with case management. With judges overburdened, litigants and attorneys can benefit from the assistance of a mediator acting as neutral discovery facilitator, identifying critical discovery to exchange prior to mediation, timing the exchange of documents and expert reports, sequencing depositions, etc. Case-management training is now part of the continuing training requirements under the Sept. 2011 Rule 1:40 amendments.
Trusting the competence of a mediator is an important factor that enables the parties and counsel to use the full range of a mediator’s skills and services. The amended Rule 1:40-6(b) encourages attorneys to “party-select” a roster mediator of within 14 days after entry of the Mediation Referral Order without foregoing entitlement to two free hours of mediation services. The “court designated” mediator becomes the mediator of record only if no “party selected” mediator is named. Given the overburdened judicial calendar and vacancies that significantly delay both disposition of discovery motions and trial dates, mediation may shave months or even years off the time to obtain a final disposition from the court.
EARNING RESPECT: MEDIATOR QUALITY AND PROFESSIONALISM
The legal community’s reaction to the court-sponsored mediation program currently varies from passionate support to push-back at required participation. Why the discrepancy and how can it be addressed?
The key to encouraging confidence and respect in the “fairness, integrity and justness” of the program lies in assuring that roster mediators are committed to treating mediation as a profession. Better experiences and greater respect by disputants, attorneys and the judiciary will, in turn, foster cooperation for creative and expanded uses and benefits of mediation.
New Jersey’s court-mandated mediation program serves as a gateway and an education in mediation for all the parties and counsel that participate. The initial experience with the mediation program — positive or negative — is likely to significantly impact the participants’ respect for the mediation process, and will influence their future voluntary participation in mediation outside the court-ordered program.
So how can we move closer to this goal? The ABA’s Model Standards of Conduct for Mediators, Standard IV, Competence states:
A mediator shall mediate only when the mediator has the necessary competence to satisfy the reasonable expectations of the parties …. A mediator should attend educational programs and related activities to maintain and enhance the mediator’s knowledge and skills related to mediation.
The programs that are most successful in other states impose greater training demands and require practice as a mediator, shadowing other mediators, mediating smaller cases and ongoing work as a mediator. Studies have also shown a direct correlation between a mediator’s actual case experience and higher settlement rates.
The roster mediators often introduce parties and sometimes attorneys to the mediation process. They should be committed and able mediators. Therefore, continued roster membership should require ongoing learning and ongoing practice. But New Jersey’s large pool of 620 roster mediators means each roster mediator may be assigned only one or two cases annually and is unlikely to gain significant actual mediation experience solely from the court program. A commitment to do one or two mediations a year is not sufficient to achieve mastery.
To create and sustain the quality needed to lift the system and allow it to enhance the promise of mediation acceptance, every roster mediator needs to undertake that role as a committed professional. Continual training and practice are critical. Advanced skill training, apprenticeship programs and opportunities to conduct mediations are widely available. Both the Dispute Resolution Section of the NJSBA and the New Jersey Association for Professional Mediators provide collegiality and a wide variety of opportunities to improve and enhance mediation skills.
Perhaps it would change the performance of roster mediators and the perception of lawyers, litigants and judges, if each roster mediator pledged as follows:
Recognizing the duty under the Model Standards of Conduct for Mediators that: “A mediator shall mediate only when the mediator has the necessary competence to satisfy the reasonable expectations of the parties,” I pledge to undertake the ongoing training and practice necessary to assure a professional level of commitment and accomplishment as a mediator.?
It is often assumed that understanding the facts is the easiest part of developing a settlement number, a strategy, or a judgment as a neutral. But in fact, the science of judgment and decision making and studies in neuroscience teach us something else. The shortcuts or heuristics that our unconscious minds have to use to conserve energy — something like the compression necessary to send information through the Internet – may blind us to important information needed to assess our cases. Check out this illusion that occurs because over a lifetime of looking at faces, your mind must “see” things not as they are but as you anticipate. Google the Charlie Chaplin Mask Illusion
In Bangor Gas Company, LLC v. H.Q. Energy Services (U.S.) Inc., __ F.3d __, 2012 WL 4373685 (1st Cir. Sept. 26, 2012), an owner of a pipeline argued that an arbitration award required the parties to violate FERC regulations. Without clarifying its position on manifest disregard, the First Circuit upheld the award but stated that ordering a violation of law likely would lead to vacatur:
“we will assume (arguendo but with some confidence) that an arbitration would be vulnerable to the extent that it directed one or both of the parties clearly to violate” a rule or regulation of an administrative agency.
In this case, the Court found no regulation specifically prohibiting the conduct ordered by the award despite an agency staff opinion to that effect.
If there were a blue book value for cases, it is likely that parties could reach a zone of probable agreement in mediations. One of the impediments that can cause impasse in mediation is the very real differences in assessment that parties have made before they arrive. The question really is why do parties misjudge the value of cases — and we know they do. Randall Kiser has undertaken several important studies of lawyer judgment in his books Beyond Right and Wrong (Springer Verlag 2010), and How Leading Lawyers Think (Springer Verlag 2011), and “Let’s Not Make a Deal: An Emprical Study of Decision Making in Unsuccessful Settlement Negotiations” with Martin A. Asher and Blakely McShane 5 Journal of Empirical Studies, Vol.3, 551-591 (2008).
We know that 60 percent of plaintiffs’ counsel and more than 24 percent of defense counsel turn down settlements only to find at trial that settlement was a better deal. On average over a very wide range of cases, plaintiffs received nearly $50,000 less at trial — not accounting for all the costs and fees it took to get there. And, although defendants made settlement errors in fewer cases, the costs were nearly 20 times greater when they did err. Obviously the cost of misjudgment is substantial. Why are these mistakes made. The answer is cognitive bias and in this case, I have coined the phrase “Clientthink.” This is a variant of Irving Janis’ Groupthink, the problem that creates a kind of tunnel vision in which only light can be seen and information that might be readily visible is blocked by positive thinking. This occurs because both lawyer and client start with a very specific perspective and digest incoming information with their blinders on. A mediator can help by providing a way to take a different view, to assess facts differently and to undertake a case premortem that may lead to a more realistic assessment of the value of the case.
For a more detailed discussion, check out publications on this website.
New Jersey has an important new case that mediators and advocates in mediation should be aware of: Willingboro Mall Ltd. v. 240/242 Franklin Avenue Associates LLC , A-4589-09. The headlines in the news focus on the fact that it held an oral settlement reached in mediation may be enforceable if subsequently memorialized by a writing :”We hesitate to interpret the writing requirement of Rule 1:40-4(i) so rigidly that it becomes an impediment to resolution of a matter through mediation.”
I would like to focus on a different point in the case — the mediator’s privilege not to testify.
New Jersey has adopted a mediation privilege in its rules of evidence:
New Jersey Rule of Evidence 519 entitled “Mediation Privilege” provides that a mediation communication is privileged and shall not be subject to discovery or admissible in evidence in a proceeding unless waived or precluded under limited circumstances. However, the parties to a mediation may expressly waive the privilege, and in the case of the privilege of a mediator, it may be expressly waived by the mediator.
The evidence rule expands New Jersey Court Rule 1:40-4 “Mediation – General Rules” which include a “confidentiality” provision. It mirrors several provisions within the New Jersey Uniform Mediation Act, N.J.S.A. 2A:23C-1 to 13.
In Willingboro the defendant’s counsel sent an email with a draft memorandum of understanding subsequent to the mediation and also undertook to put moneys in escrow — There was no signed writing. But there was a 4-day hearing on a 1-day mediation that resulted in the enforcement of the oral agreement commemorated by an unsigned writing. The court held that all parties and the mediator waived the privilege:
“Here, defendants first breached the confidentiality of the
proceeding by supporting their motion to enforce the settlement
with a certification from the mediator. Thereafter, the
mediator was deposed and testified at trial. The extent of the
waiver was the subject of rulings by Judge Bookbinder during the
deposition of the mediator and at trial by Judge Hogan. We do
not understand any argument advanced by plaintiff to contest
This is not a good outcome for a mediation or for confidentiality. The clear lesson for mediators is make sure there is a signed writing at the close of the successful mediation, consider asking the parties to draft an agreement or key terms in advance (without monetary terms), and enter into a confidentiality agreement with the parties before the mediation providing that they will not call the mediator as a witness.