Friday, February 23, 2007

Recent study shows bad workplace apples do indeed spoil the barrel

One bad workplace appleAccording to the results of a study reported in the journal Research in Organizational Behavior, bad apples really do spoil it for their co-workers. This will come as no surprise to anyone who has ever shared a workspace with a negative personality.

The study, conducted by Will Felps, a Ph.D. candidate in management and organizational behavior, Professor Terence R. Mitchell, and graduate student Eliza Byington, all from the University of Washington Business School, examines the ways in which the negative behavior of proverbial "bad apples" can wreak havoc on a workplace. Unsurprisingly, bad apples undermine creativity and problem-solving, stymie learning, escalate conflict, distract co-workers from their tasks, destroy trust, and produce a host of other ill effects that no organization can afford to ignore.

The study was inspired by the experience of Felps's wife with a bad apple in her own workplace:
Felps' wife was unhappy at work and characterized the environment as cold and unfriendly. Then, she said, a funny thing happened. One of her co-workers who was particularly caustic and was always making fun of other people at the office came down with an illness that caused him to be away for several days.

"And when he was gone, my wife said that the atmosphere of the office changed dramatically," Felps said. "People started helping each other, playing classical music on their radios, and going out for drinks after work. But when he returned to the office, things returned to the unpleasant way they were. She hadn't noticed this employee as being a very important person in the office before he came down with this illness but, upon observing the social atmosphere when he was gone, she came to believe that he had a profound and negative impact. He truly was the "bad apple" that spoiled the barrel."
The study, "How, when, and why bad apples spoil the barrel: Negative group members and dysfunctional groups", is available (in PDF) at Will Felps's web page.

How to start (and not start) a mediation practice: a meme for mediators

Starting a Mediation PracticeMemes, for those of you who may be unfamiliar with the word, are ideas or units of cultural information that replicate and are transmitted virally from one human being to the next. In cyberspace, bloggers spread memes by tagging other bloggers and inviting them to amplify or discuss the idea, transmitting it in turn to other bloggers, and enabling the meme to propagate rapidly.

Tammy Lenski has created a meme for mediators, riffing on a post by Vickie Pynchon, on "How to Start a Mediation Practice"--a must-read for anyone interested in becoming a mediator. Tammy recounts her own proven formula for success in launching a practice as a mediator and has "tagged" Mediation Mensch Dina Beach Lynch and me, inviting us to continue the conversation on this theme.

Here goes:

The launch of my own practice began the way every mediator's career begins: with a very lucky win on a Massachusetts State Lottery scratch ticket.

Since memes after all are viral, and viruses are subject to mutation, I'm going to alter the sequence of the DNA of Tammy's meme. Since the launch of my own practice was totally unorthodox (although I did follow many of the action steps Vickie and Tammy took in starting their own careers as mediators), I'm not going to recount the details but instead will share a few thoughts on how to start (or not start) a mediation practice based on my experiences in the mediation career laboratory.


1. Invest in the best training or education possible when you begin.

Never, ever underestimate the importance of getting a great mediation training. It will give you a competitive advantage and a head start along your career path.

The first mediation training I took was taught by a respected professional mediator in a community setting. The problem however was that this was a "stand alone" training, since it was not taught under the aegis of an organization in the business of providing mediation services or mediation training. In fact, the organization which sponsored the training had no existing mediation program at all.

The training faculty also failed to provide any kind of support or advice to help us take the next steps when the training ended. At the end of the training we were all told not to quit our day jobs. That was it. No one told us where we could go to get mediation experience, either volunteer or paid. We were not provided with information about continuing education in the mediation field or about professional associations for mediators, all of which existed at the time, which we might have joined had we been told of them. We were left on our own. Unfortunately this was in the Internet's early days and finding the information that would have led me to a better and more appropriate training was very difficult.

My advice to you would be to select a training program taught by an organization or group of individuals who recognize that their responsibilities to trainees don't end when the training is over. Find out what kind of support, mentoring, advanced mediation training, and opportunities to mediate the training organization offers to trainees who have completed a mediation training. This is not, however, the only criterion to consider in selecting a good mediation training program. For more information, please read my posts on "What to look for in a basic mediation training" and "How to become a mediator".

Be aware as well that your training as a mediator does not end when you've completed a 40-hour basic mediation training. Continuing education is critical to your professional development. I myself have several hundred hours of mediation training under my belt and have also undergone training in other areas as well to expand the range of services I can provide clients. You may also want to invest in your career by obtaining an academic degree, as Tammy did.

2. Build relationships with other mediators.

I've already talked at length in an earlier post about the importance of joining and participating in the community of ADR practitioners, but what I said bears repeating:
"Joining" means to take part in the life of a community. Joining means to show up for professional development workshops, conferences, and roundtables. Joining means getting to know people who have something to teach you. Joining means passing that teaching on to someone else. Joining means to join professional associations, not just for the usual member benefits--the reduced fees at association events, listings on web sites or in print directories, or discounts on malpractice insurance--but the really important stuff: the networking, the schmoozing, the connecting. Joining is the exchange of knowledge, the debate of ideas, the joy of discovery. Joining is about contributing to the conversation, in big ways and small.
Building relationships with other mediators is critical to your development as a professional. Not only are other mediators sources of referrals for clients and work, not only can your ties with them yield fruitful collaborations, but they can serve as wise counselors or advisors when your practice throws an ethical curveball your way. They can guide us in our efforts to become more skillful and self-aware practitioners. And, most rewardingly, our ties with other mediators can lead to deep and lasting friendships.

3. View every interaction with others as an opportunity to advance the field.

The other day I took advantage of mild temperatures and thawing ice to take my dog for a walk. As we turned a corner to head home, we came upon a person tugging at a very stubborn dog on a leash who was determinedly trying to head in the opposite direction. They were clearly angry with the dog. I suddenly recognized the dog as a friend's, although the person with him was not my friend--it was the dog-walker whose services my friend relies on. I said hello to the dog walker and the dog, and the dog began wagging its tail and tried to run toward us to greet us. The dog walker berated the dog and pulled sharply on its leash, scowled at me, and then walked away quickly.

I was struck not only by how unfriendly the dog walker was to me--considering that I could have been a potential client--but also by how much their behavior toward the dog told me everything I needed to know about their skill as a provider of pet care services. This was someone I would never, ever hire based on what I had just observed.

This encounter made me realize the extent to which we are always in the public eye. Whether we like it or not, we are always on. Every interaction we have with others can shape the world's perception of who we are and the work that we do. Although mediators don't generally walk around mediating, the world is filled with opportunities for human interaction--the stuff of which conflict resolution is made. First impressions count for a lot, and we have only moments to make a good one. Remember that every mediator serves as an ambassador for the mediation field--we are all the face of the profession.

In addition, every time we meet someone new, it's a chance for us to educate someone about the work that we do. One of the questions we commonly ask each other on meeting for the first time is, "What do you do?" Have that elevator speech ready. While it may not result in work for you directly, the more we mediators can build public awareness of the value of mediation and create positive associations, the more the field as a whole will benefit.

* * * * * * * *

I now pass the meme baton along to Geoff Sharp and Colin Rule. How did you folks start your own mediation practices?

Sunday, February 18, 2007

Developing cultural awareness in a global business age

Developing cultural awareness in a global business worldFor many of us in the 21st century, the map of our business and social networks has radically changed. Once local or regional, those networks have become global, thanks to digital technology, which has transformed the geography of our professional and personal lives.

With these changes come challenges: what can we do to prepare ourselves to communicate effectively with our international contacts? How can we develop cultural awareness in a global age? From Pamela Slim at Escape from Cubicle Nation (along with comments from her readers) comes invaluable advice on "How not to be a cultural knucklehead in a global business world".

(Now if only someone out there can help me communicate with my British husband.)

(Thanks to Golden Practices for the link.)

Sunshine is the best disinfectant: Bob Sutton's "The No Asshole Rule" gets an age-old workplace problem out into the open

Bob Sutton's The No Asshole RuleImagine for a moment that your house is infested with termites. You are desperate to find someone who can rid your home of these destructive pests once and for all.

Now imagine as you call the pest control services listed in your local phone directory that strong social taboos forbid you from actually using the word "termite" to describe your problem. You have no choice but to resort to awkward euphemisms and embarrassed silences as you attempt to explain to the professionals that your home is infested with, er, you-know-what.

That's pretty much the problem that Bob Sutton confronts in his newly published book, The No Asshole Rule: Building a Civilized Workplace and Surviving One That Isn't.

As a dispute resolution professional with a specialty in workplace consulting, I have read more books and articles than I can possibly count on dealing with difficult people. While many of them are excellent, none of them has fully delivered the goods when it comes to the most toxic workplace problem there is.

That's probably due to the fact that until now nobody has had the guts to name the problem for what it is. Thanks to Sutton, that's all changed.

As Sutton explains in his introduction, no other word quite does the job:

When I encounter a mean-spirited person, the first thing I think is: "Wow, what an asshole!"

I bet you do, too. You might call such people bullies, creeps, jerks, weasels, tormentors, tyrants, serial slammers, despots, or unconstrained egomaniacs, but for me at least, asshole best captures the fear and loathing that I have for these nasty people.
And judging from the overwhelmingly response Sutton's book has received, including the many people who have stepped forward to share stories of their own encounters with assholes (as well as from the excited reactions from the colleagues and friends to whom I introduced the book), Sutton's dead right. "Asshole" taps into associations, memories, and emotions that lesser synonyms simply can't.

(Which is why I have decided to use the word in both the title and body of this post. If I offend any of my readers, I apologize. It's not a failure of either imagination or vocabulary; authenticity demands it. Besides, if I followed the example of other writers and replaced letters in the offending word with asterisks--A******--you and I would both know what I meant, and neither one of us would be fooled. The word is still there, hidden behind its typographical fig leaf.)

Despite being a slim volume (only 210 pages in length), this book is crammed with useful information and ideas, along with numerous real-life anecdotes which bring the text to memorable life. Sutton describes the behavior that sets assholes apart from the rest of us, including one factor that is always present: assholes tend to target those with less power or status, and provides a test to determine whether you might be one, too.

Sutton also provides a list of factors by which readers can gauge the TCA--"Total Cost of Assholes"--in their own companies to reveal the high cost in financial and human capital that assholes pose. And he offers wise counsel for implementing and enforcing a "no asshole" rule, including smart hiring strategies, and has tips on keeping your own inner asshole in check.

Mediators in particular will appreciate Sutton's advice that organizations should "teach people how to fight". He is clear that organizations should not "replace assholes" with "conflict-averse wimps" and emphasizes that friction can be good for organizations--it's not the fact that you fight, it's how you fight that matters. So long as disagreement and argumentation is constructive not demeaning, organizations, people, and ideas can all thrive.

Sutton recounts the experiences of organizations in teaching their members how to fight fairly. And he makes no bones about how difficult an undertaking this can be, demanding constant vigilance and a commitment to rigorous self-reflection. He acknowledges how "messy and difficult it can be to fight with other people over ideas without acting like an asshole".

In fact, it is Sutton's self-honesty that stands among this book's greatest strengths. Throughout, Sutton is candid with readers as he recounts his struggles to confront and neutralize his own tendency to be an asshole--a struggle that any of us who are willing to admit that we can be assholes, too, can relate to.

This book is not without its flaws, although they are minor. The book is weakest when it offers advice to those who are targets of assholes. Victims of bullying behavior probably won't be helped by mantras like "look for small wins" and "hope for the best; expect the worst". And although Sutton does remind readers that quitting is always an option, it may not be possible for people in tough financial circumstances in a tight job market. Documenting the behavior, seeking help from human resources or higher level management, building a coalition with others who are affected to seek change as a group, and getting legal advice from an employment lawyer may be more realistic and productive courses of action for victims to pursue.

It's also disappointing to see an entire chapter devoted to "The Virtues of Assholes"--these schmucks don't need any encouragement. (And I can't help but wonder whether the successful assholes he describes might have achieved even greater success had they used their powers--ambition, determination, vision--for good not evil.)

These minor quibbles aside, this book is an outstanding contribution to the large body of work on building effective workplaces. Its courage and honesty in confronting a problem that no one seems to want to name set it apart. Anyone who cares about building a civilized workplace--human resources professionals, workplace consultants, mediators, and others--will find value in its pages.

Even if they have to hide the cover in a plain brown wrapper.

Thursday, February 15, 2007

Working group in Massachusetts seeks input, help from mediators in states that have adopted Uniform Mediation Act

MassUMA Working Group seeks assistance from mediators in states which have adopted the UMAI am a member of the MassUMA Working Group, a committee which is exploring the possible adoption of the Uniform Mediation Act here in the Commonwealth.

We would be very interested in hearing from mediators in states which have adopted the UMA as to how it has affected your practice (if at all). We are especially interested in learning how it has impacted your description of the process to parties and/or their representatives, including privilege and exceptions to confidentiality. For example, do you hand out a copy of the statute to your clients? Provide a synopsis orally or in writing? Or simply ignore it? Has the UMA affected your practice in any other significant way?

All responses would be warmly received (and, of course, kept confidential!). By the way, you can see what our working group has accomplished so far and where we're headed by visiting our web site at http://www.massuma.com/.

Please feel free of course to pass our request on to colleagues--the more widely we can disseminate this request, the more complete our investigation will be. Please e-mail your information to massuma@adrblogs.com.

Thank you for any assistance you can give us--it will be greatly appreciated by all.

Conflict resolution research blog latest addition to World Directory of ADR Blogs

library booksThe most recent addition to the World Directory of ADR Blogs project is CResearch, the directory's first blog devoted to conflict resolution research, news, and commentary.

Published by John Windmueller, Assistant Professor at the University of Baltimore's Center for Negotiations and Conflict Management, CResearch was created to further discussions and information sharing between conflict resolution researchers and practitioners.

As John explains, "[W]here possible I'd like to see the division between practice and research blurred, with practitioners becoming more empowered and able to integrate research into their everyday work. Toward that, the site will share techniques, tools, and tips for practitioners interested in following their curiosity and bringing more rigorous evaluation and learning into their practice."

I invite you to join me in welcoming John to the ADR blogosphere.

I'm always on the lookout for blogs to add to the World Directory of ADR Blogs' growing catalogue. If you wish to add your blog or someone else's to the Directory, please let me know. It's a commercial-free site, and there is no cost to be listed. The Directory has information on submitting your blog and submission guidelines.

Monday, February 05, 2007

Blawg Review #94

getting to yes with Blawg ReviewWelcome to Blawg Review #94--the "getting to yes" edition!

Many editions of Blawg Review are organized around a central, unifying theme, influenced by the focus of the host's own work or an event or date that edition coincides with.

The theme of this one happens to be negotiation.

Why? I'm a mediator. And as a mediator, I help people negotiate. Consequently I spend a lot of time thinking about negotiation and how people go about it. Negotiation also is something that just about all of us do, every day and sometimes all day long.

Whether you're negotiating on your own behalf or a client's, whether you're working to settle a case or settle a dispute, whether you're buying a car or asking for a raise, or just trying to decide with your significant other what restaurant you want to go to for dinner tonight, you're negotiating. (Some of us, like barrister and mediator Geoff Sharp and his family, even find ourselves negotiating while on vacation. It's an occupational hazard.)

The problem with negotiation is many of us know only two ways to do it--1) the competitive approach where I win and you lose, or 2) compromise where we each give a little and get a little and we both walk away equally unhappy. In both cases, we leave value on the negotiating table when we walk out the door.

There's also an ages-old tension between getting the best deal possible and maintaining a relationship with other side. We often assume we can't have both.

There's a third way to negotiate. It comes from well-known negotiation classic, Getting to Yes by Roger Fisher and William Ury, known for their pioneering work at the Harvard Program on Negotiation. (According to rumor, when the book was first published, thousands of people bought it on the mistaken assumption that it would improve their chances of getting lucky on Friday night.)

As a framework for negotiating, Fisher and Ury's work yields seven elements critical for negotiation success: interests, options, alternatives, objective criteria, relationships, communication, and commitment.

These seven elements will serve as my focal point for this edition of Blawg Review, and the posts I'll be covering are organized around them.

Please join me in getting to yes with Blawg Review.


The Super Bowl

Okay, so technically this is not one of the seven elements of negotiation. I was just seeing if you were paying attention.

Besides, did you really think I was going to forget to mention this most sacred of all American institutions, especially since this edition of Blawg Review was put to bed just hours after the Super Bowl ended? Hey, I may be a mediator, but I like competitive contact sports as much as the next person.

With no further delay (and with congratulations to Indianapolis Colts fans), here are some Super Bowl posts for you American-football-loving lawyers and mediators:

The American Constitution Society Blog examines "Super Bowl XLI, Breaking Down Barriers in the NFL, and the Legacy of Fritz Pollard". The Strategic HR Lawyer muses about workplace absenteeism on the Monday after the Super Bowl (although it's tough making excuses to the boss when you're self-employed like I am). And Overlawyered in "The Big Game" explains why advertisers aren't referring to the Super Bowl directly by name--it's just as you suspected--it's the lawyers' fault.

In addition, Evan Schaeffer's Legal Underground presents The More-Entertaining-Than-The-Super-Bowl Edition of the Weekly LawSchool Roundup. And Marty Schwimmer at The Trademark Blog asks, "Can You Watch The Super Bowl On a 70'' Screen In A Church?"

For my international friends, the Atlantic Review pokes gentle fun at American exceptionalism in sports in "America is expected to win the Super Bowl". (Speaking of which, baseball fans like myself have often wondered why it's called "World Series" when only America and Canada get to compete.) Also included is a link to information on how American football works.

Now let's get serious and take a look at the seven elements of negotiation.


Element 1: Interests

In traditional, hard-bargaining negotiation, we take positions. And positions can only be met in very finite and limited ways. You can accept. You can reject. You can compromise. That's it. There's not a lot of room for creativity.

Fisher and Ury, after studying and participating in thousands of negotiations, realized that there was a way to get around the self-limiting nature of traditional bargaining. By getting people instead to look at interests--the needs underlying their demands--whole new avenues of options for meeting those interests open up.

You need of course to understand your own interests. If you're not clear about what you want, you won't be able to figure out how to get there. You also have to understand the interests of your counterpart on the other side. By understanding their interests, you can figure out how to motivate them to reach a deal with you.

Interests matter in important ways in all our important interpersonal interactions. For example, if you're providing a professional service, understanding your clients' interests will make you better--and more competitive--at providing that service.

Speaking of interests, Carolyn Elefant at MyShingle.com has this advice for lawyers: "What Do You Do If Your Clients Want to Lead A Revolution? Join Them, Of Course!"

Lawyers and other professionals have an interest in being as productive as possible and using tools that can help them get there. George Lenard at Employment Blawg shares his experiences with "My favorite productivity tool: voice recognition software".

Colin Samuels at Infamy or Praise ponders optical illusions--contract terms that are little more than a "fun-house mirror" and asks whether these truly serve a client's interests.

Dan Hull at What About Clients?, the blog that keeps the focus on clients' interests, wonders "Do you run a belief tank?" and points to a post at Spare Room Tycoon that asks the hard questions about what it means to be a lawyer in service to our clients.

In "Chew out your lawyers, get sued for defamation" Overlawyered points to a case that illustrates the misfortune that results when clients fail to get their interests met--and when a firm responds the only way it knows to client frustration.


Element 2: Options

While sometimes we encounter problems that are impossible to resolve (and nailing Jell-O to the wall is apparently one of them), generally speaking by working together we can come up with pretty creative options to solve them.

Whether you're a lawyer or a mediator, chances are you're often on the lookout for options that will meet your digital age needs. Lifehacker has two: "26 tips for optimum computer functionality" and "Download of the Day: Create better passwords with Pwdhash".

From the TechnoLawyer Blog comes Dennis Kennedy's review of Bluebeam Software's Bluebeam PDF Revu, a "complete PDF solution," which allows users to view, create, edit, and comment on PDF files, and also convert any file to TIF, JPG, GIF, BMP, PSD, PNG, EMF, WMF or PCL.


Element 3: Alternatives

Last week my 20-year-old son had the negotiating lesson of a lifetime. He missed a return flight to the U.S. at an airport in Bali. It was almost midnight, and the airport was about to close. He needed to get a cab back to the hotel where he was staying with friends. Only one cab was left, and the airport was starting to look like a pretty lonely place. The cab driver demanded $100 to take him to his hotel. During his conversation with the cabbie, no other cabs appeared. My son was alone in a foreign country and had no way to contact the people he'd been staying with to arrange a ride from them.

My son tried to negotiate with the cabbie and in the end accepted the final demand of $80. Why? He had no other alternatives. In seven more hours, the increased number of cabs arriving with the daylight would have given him plenty of alternatives and he could then have easily walked away from the cabbie's demand. In fact, the existence of other alternatives for my son would have given him leverage and forced the cabbie to come down on his price.

Alternatives are clearly important in any negotiation. They help us decide whether to accept or reject an agreement, giving us power and strengthening our hand. So good negotiators spend time developing or considering their "best alternative to a negotiated agreement"—or BATNA for short.

Sometimes that alternative may be litigation. Let's therefore take a look at some posts this week relating to courts, judges, and trial.

According to Eric Turkewitz, who publishes the New York Personal Injury Law Blog, "mediation may be efficient, but you miss the heart-pumping excitement of trial". You can see for yourself in Eric's post, "Scooter Libby Trial - A Truly Bizarre Trial Experience", in which he recounts how one observer suddenly hears the testimony is about him and it isn't in accord with his recollection.

Meanwhile, Ford Vox, M.D., who blogs at Future Logic Markup Language, attended the ACLU vs. NSA federal appeals hearing in Cincinnati. In "Freedom from Government Surveillance" he reports that the Government's lawyers have evidently been reading too much Franz Kafka.

Glenn Reynolds at Instapundit has some "Good News for the Blogosphere" with an announcement of a California court's ruling protecting online journalists from revealing their confidential sources.

The California Employee Rights Blog tells readers " Why Wal-Mart Employees Should Consider NOT Accepting Settlement".

Just in case you're heading for litigation, Evan Schaeffer helps you get ready to avoid the "Two most common deposition errors" at his Illinois Trial Practice Weblog.

Carolyn Elefant at Law.com Inside Opinions looks at the "The Role of Wikipedia in Judicial Decisions".

Meanwhile, mediator emeritus David Giacalone at shlep: the Self-Help Law ExPress reports on a "Judge recused for dissing pro se gang defendants".

What's the size of your ecological footprint? According to the Legal Writing Prof Blog, an Arkansas Court of Appeals judge may have been pondering that very question: he wants to institute electronic appeal procedures upon calculating that in one appellate case, the case's record and brief consumed 25,399 pieces of paper--the equivalent of three trees.

Concurring Opinions asks, "Where's "Fair & Balanced" When You Need It? Odd News Coverage Gaps at www.scooterlibby.com".

At Opinio Juris, Julian Ku notes the International Criminal Tribunal for Rwanda's mad scramble to clear its caseload before its mandate ends next year in "The ICTR Enters the Fourth Quarter Down by Two Touchdowns."

Diana Skaggs at Divorce Law Journal discusses "Lawsuits Against Airlines: The Latest Effort To Stem International Child Abductions".

Finally, Jonathan D. Frieden explains how even courts rely on mapquest posted at E-Commerce Law.


Element 4: Objective Criteria

How do you know if something's a good deal? Objective criteria provide standards for ensuring fairness at the negotiating table. For example, in salary negotiations between a school committee and a teachers' union, data on what teachers in similar school districts are earning can establish a yardstick for determining a fair increase in compensation.

Speaking of salary, Allison Shields looks at why "Associates Would Give Up High Salaries for Lower Billable Hour Requirements posted at Legal Ease Blog. According to Allison, "It's mind-boggling that so many lawyers, (and many of the consultants who advise them) still assume that in order to be an excellent lawyer, you have to work a ridiculous number of hours. The number of hours you bill doesn't determine how good a lawyer you are, and it certainly doesn't have any direct correlation to whether you provide your clients with excellent service or not."

How much work is simply too much? The HR Lawyer's Blog considers The Culture of Extreme Work and its unsurprisingly negative impact on employees and organizations.

In "200,000 SqFt; Hi Flr; Park Vu", Bruce MacEwen at Adam Smith, Esq., discusses when large, expensive leased offices are appropriate investments for firms.


Element 5: Communication

To say that communication is critical in negotiation is stating the obvious. But no matter how important we know it to be, we still have a tough time getting it right.

With respect to communication, Fisher and Ury observed, "Statements get resistance. Questions get answers."

In other words, talk less, listen more. Inquire into interests. Find out why people want what they want. (Bonus: the more you listen, the less likely you'll say something you'll regret.)

In negotiation it's important to think carefully about what you say and how you say it.

For a great example of why we need to think more carefully about the messages we convey, Jeremy Blachman muses over Joe Biden's ill-considered remarks last week that Barack Obama was "articulate" and "clean".

Robert Hyndman points to some smart advice at "Ask the VC" which can serve anyone well: "The most important part of being a venture capital lawyer is being a good listener with sound judgment and having a good relationship with the entrepreneurs, along with the requisite experience. Make sure with whomever you choose, that you see them as a true partner, not an hourly paid servant." Good idea for anyone, even if you're not a venture capital lawyer.

Tammy Lenski over at Mediator Tech gives her review and a big thumbs up to "Grand Central: A Phone Solution for Small Business" and also has advice for anyone trapped in phone menu hell in "Get Human When You Need Help".

In "Trademark suit threats to shut down free speech? Shocking," Ron Coleman at Likelihood of Confusion clears things up in a dispute over a parody web site.

In "Lawyers as Writers," Ken Adams at AdamsDrafting with honest self-reflection discusses how tenacious is the notion that we, as lawyers, are good writers--a notion that is difficult to move past despite mounting evidence to the contrary. Michelle Golden at Golden Practices, however, comes to the rescue with advice on writing at "Good Writing. Bad Writing."

Language Log looks at "Taboos of the Nation" and the difficulty in discussing taboo words on a radio program without actually being able to say them in the days of tough enforcement by the Federal Communications Commission (caution: post contains sexually and ethnically offensive words).

At Balkinization, Jack Balkin shares his "Interview on Blogging and Legal Scholarship with Yale Law Report" in which he discusses the state of legal writing.

Speaking of blogging, in "John Edwards' blogger-in-chief cleaning up past blog record" Kevin O'Keefe at Real Lawyers Have Blogs reminds bloggers that blogs leave a trail, which is a good thing: "Unlike a seminar, article, or newsletter, your thoughts, insight, and commentary on your niche area of the law are recorded and retrieved by folks looking for relevant information." But bloggers must also be willing to stand behind what they say--or risk losing their credibility.

If all else fails, follow the advice of Gruntled Employees: "What would Jack Bauer do? Use plain English".


Element 6: Relationships

Relationships are important to negotiation. Why? Consider this. After all the energy you've spent negotiating, which would you rather have? An enemy who'll tell the world not to do business with you? Or a repeat customer or client who will send more business your way?

Relationships are also about trust. You don't have to be trusting, you just have to be trustworthy. You need your counterpart on the other side to work with you. And if they trust you, they will talk about their interests. If you know their interests, you can propose options that will get them to yes.

Victoria Pynchon at the Settle It Now Negotiation Blog looks at recent findings by neuroscientists that suggest that engaging in small talk at the commencement of a negotiation is far more important than who makes the first offer. It seems that thinking about money before engaging in any activity tends to make us both selfish and withdrawn--a state of mind antithetical to the kind of collaborative problem solving that creative "pie-expanding" negotiations require.

Stephanie West Allen at Idealawg is someone who really gets the importance of relationship-building. She shares some links with her readers in "Blog Glob: "Meet the clients" & "Who says being a lawyer has to suck?", including this reflection on the shortcomings of contemporary legal education:

One of the biggest problems with the current state of legal education is its emphasis on books rather than people...When they graduate, young lawyers rarely know how to interview clients, advocate for their positions, negotiate a settlement or perform any number of other tasks that lawyers do every day. In short, they are woefully unprepared to be lawyers...
Jamie Spencer at Austin Criminal Defense Lawyer asks, "Are you an aggressive defense lawyer?" and makes the compelling case that good manners can go a long way in negotiating with the other side.

In "Pork, Trademarks, and The Other White Milk" Mommy Blawger recounts the public relations hell the National Pork Board created for itself in sending a cease-and-desist letter to a breastfeeding mother raising money for non-profit milk banks through sales of t-shirts bearing the slogan: "the other white milk".

Networking of course is a great way to build relationships. Duct Tape Marketing Blog Channel announces that today, February 5, kicks off International Networking Week.

David Maister, incidentally, clearly understands the importance of relationship-building with readers. He begins his post on "Business Development in Professional Businesses" with the following warm words of encouragement to his readers: "Here's another email question I received. (By the way, I LOVE receiving them — it ensures that I blog about real-world topics of interest to at least ONE person!!)"

Arnie Herz, who reflects thoughtfully and often on the importance of relationship-building for lawyers, offers discussion and links on "more on mutuality in business relationships" at Legal Sanity.

The big news of the week in antitrust circles was the move of about 20 attorneys from Cadwalader to Skadden, rival firms. Not only is this a major addition to Skadden but it basically leaves Cadwalader with no antitrust practice. Antitrust Review features not just one but two posts on this. Also covering this story were the WSJ Law Blog and Above the Law.

At Trusted Advisor Associates, Charles Green asks, "As more and more distractions vie for the attention of busy legal professionals, who is right about efficiency vs effectiveness: Drucker or Godin?" Using actual quotes from Seth Godin and Peter Drucker, Green envisions a panel discussion between these two business-world thinkers in which they debate multi-tasking. He asks readers, "Think about trust. Do you more trust a multi-tasker, or someone who totally focuses on you? (Right answer: we trust those who multi-task most of their life, except when they're with us—when they pay attention.)"

Many legal bloggers like myself were fortunate to have been befriended by Ian Best, who made blogging and law school history by becoming the first law student to get credit for blogging at 3L Epiphany. His opus included the painstaking development of a comprehensive Taxonomy of Law Blogs. Ian emailed his supporters last week to announce that he has transferred 3L Epiphany to the Law Professor Blogs Network, where it will appear under the new name "Law Blog Metrics." Please join me in wishing Ian all the best (no pun intended there) and congratulate him on his new job.

(Ian, by the way, was an Associate Editor on the Ohio State Journal on Dispute Resolution, so became familiar with mediation and an enthusiastic supporter of ADR.)


Element 7: Commitment

Commitment means the agreement that results from negotiation--the commitments that each participant is willing and able to fulfill. Attention to detail is important--the more contingencies that can be anticipated, the fewer details left to chance, the more enduring the agreement can be.

The devil as they say is in the details. There are several posts that illustrate the truth in this hoary proverb.

In "Beware your employment contracts", Jen Burke at Transcending Gender points to a post at Decision of the Day about a court battle over millions of dollars in contingency fees involving a new lawyer who worked for a personal injury attorney without a written contract with her boss.

And you thought misplaced commas cause problems: wait till you read what Ken Adams has to say about a "New Law Review Article on the Ambiguity of And and Or".

We sign agreements to evidence our intention to be bound by their terms. Acrobat for Legal Professionals Blog has suggestions for "Creating a Transparent Signature Stamp" in Adobe Acrobat using your scanned signature.

In interest-based negotiation, the ultimate objective is a win-win agreement for all parties at the table. Alas, Ted Frank at Point of Law sees a big lose-lose in a senate bill that eliminates punitive damages as a tax deduction for businesses in "That didn't take long: first Democratic earmark for trial lawyers".

Sometimes the toughest negotiation is with yourself. In "Giving New Meaning To 'Careful What You Wish For'" Denise Howell at Bag and Baggage gives us a sobering reminder of the trade-off between professional and personal fulfillment and the perils of the billable hour.


Becoming a Better Negotiator

Want to be an effective negotiator? Come prepared. In fact, it's been said that skilled negotiators spend four hours of preparation for every one hour of negotiation. Before you arrive at the table, take time to identify your own interests and weigh your alternatives (your BATNA) so that you can negotiate from a position of power. Consider the other side's interests and alternatives as well.

Give thought in advance to thinking about options that might satisfy your interests and theirs and that won't leave value on the table. Are there objective criteria to support what you're asking for? Give thought to the relationship you want to have, if any, at least for purposes of the negotiation (remember, don't be trusting, be trustworthy). And think about the messages you want to convey and how you want to convey them (communication).

Finally, be prepared to put in work at the end of the negotiation nailing down the details of agreement (commitment) to make it as enduring as possible.

Let your motto be, no value left behind.

If you want a painless way to learn better negotiation skills, invest three minutes a week at Josh Weiss's podcast, Negotiating Tip of the Week. Josh's most recent podcast looks at "National Negotiation Styles" for the negotiator in international or multicultural settings, including traps to watch out for.

Ellen Freedman at Law Practice Management takes a look at a very different kind of preparation in "Are You Ready for the Pandemic?". How prepared are you?

getting to yes with Blawg Review
Mediation as Assisted Negotiation

Negotiators will sometimes turn to mediation for assistance with negotiations that have derailed or sputtered out.

Although hard-nosed negotiators may view mediation as a sign of weakness, that's not what Blawg IT-Internet Patent, Trademark and Copyright Issues with Attorney Brett Trout has to say, according to this recent post, "Request to Mediate a Patent Case Shows Strength".

(Speaking of patents, don't miss "20 Celebrity Patent Holders Include Only 1 Member of Legal Profession" at the Legal Profession Blog. Can you guess who the lone lawyer patent holder is? Hint: he's honest and he's got a birthday coming up.)

So, do bloggers need mediators or maybe labor negotiators? As reported by the Legal Profession Blog in "Welcome Wagon: Securities Law Prof Blog. Empire Strikes Back", it looks like there's a labor dispute at the Law Professors Blog Network that could get ugly. As Alan Childress told me, "Maybe the law professor blogs should unionize and slow production down, but then there'd be management retaliation--not mediation--and the inevitable outsourcing to India. The end is not pretty." Only bloggers and management know if a win/win is possible.

One of the cornerstones of mediation is confidentiality--which promotes candid dialogue and encourages parties to explore and reach settlement, secure in knowing that communications with the mediator are privileged.

Speaking of confidentiality, although the identity of a number of anonymous law bloggers remains unknown, including the hard-working Editor of Blawg Review (known only as "Ed." even to his own mother), the Wired GC is unmasked in this photo taken last Sunday at a pre-launch party for BlawgWorld 2007 in New York City.

Meanwhile, the Greatest American Lawyer tells readers, "I Have a Secret About Law Firms": "Having seen both sides of the practice, I have to say that one of the most fundamental flaws of hourly billing firms is the propensity to attempt to service more clients than is reasonably possible." The GAL also pauses to ponder "Those Who Came Before Me"--namely, those other great writers, Voltaire and Diderot among them, who produced work anonymously.

And, at Volokh Conspiracy, Orin Kerr looks at the "New Ninth Circuit Decision in Ziegler", a case involving an employee's expectations of privacy in his computer at work, and concludes, "The new opinion gets it right: it concludes that the employee had a reasonable expectation of privacy in the machine, but that the employer had the right to consent to the government's search under third-party consent principles."

Occasionally in mediation parties will reach impasse in their negotiations. One technique that mediators may use to deal with this is to float the "mediator's trial balloon", in which the mediator proposes one possible solution that similarly situated disputants have utilized, and then asks the parties what they like and don't like about the idea. This gets more interests and options on the table and can reboot the negotiations.

Trial balloons prove useful in blogging as well. Bill Sjostrom at Truth on the Market floats a trial balloon to seek reader comment on a piece he's developing on majority voting for the election of directors.


The Bin

People like me who teach trainings in mediation and negotiation rely upon all kinds of strategies to cover the material in the depth it deserves while at the same time honoring the demands of the clock. In any training, questions or issues arise that will either be addressed later in the agenda or the schedule doesn't allow time to address at that very moment. Many mediation trainers use a "bin"--a sheet from an easel pad taped to the wall--to jot down and keep track of questions to return to later on.

Here's the Blawg Review #94 Bin--the good stuff that didn't necessarily fall into any of the categories above but is still deserving of our attention.

If you were one of the many who weren't able to make it to this year's LegalTech New York, an annual event which bills itself as " the largest and most important legal technology event of the year", check out David Snow blogging at Law.com Legal Technology as he describes how LegalTech NY 2007 kicks off and gives us the wrap up at the end, while Common Scold Monica Bay provides her final observations in "WOW! IT'S OVER!"

And if you can't get enough of conferences, geeklawyer.org has information on the UK Legal Blogging Conference.

Who says taxes are boring? Professor James Maule at Mauled Again looks at unusual tax issues in "Taxing Ticket Takers and Rocketship Riders".

Sean Sirrine at Objective Justice shakes his head over U.S. v. Hector: "First it was the knock-and-announce rule, now it is execution of the warrant...Seems to me that you're likely to get into a lot of fights between people and law enforcement if they aren't required to show a warrant. I know I wouldn't let them into my home."

Conspiracy theories abounded at last week's edition of Blawg Review, hosted by Cyber Law Central. Paranoia must be contagious, since Brendan Loy at The Irish Trojan's Blog is convinced that J.K. Rowling wants him to fail the bar: the bar exam and the publication date for the final installment of the Harry Potter series unhappily overlap.

In Florida, they're starting the revolution without us, according to RiskProf in "When Did Florida Elect Hugo Chavez for Governor?", a criticism of a Florida bill recently signed into law that "nationalizes" the Florida insurance industry.

At Inside Opinions, Robert Ambrogi sums up the latest reaction of the legal blogosphere and others over the new advertising rules that went into effect for lawyers in the Empire State in "Controversy Continues Over N.Y. Ad Rules".

J. Craig Williams at May It Please The Court reports on news that should worry anyone who cares about the health of and access to U.S. federal parks in "Yosemite Park Faces Questions Over Public Use And Rehabilitation".

Several posts provide rich discussion of the Mormon Cases and legal education. It began with "Teaching the 'Mormon' Cases" at the PrawfsBlawg, which inspired further discussion at Volokh Conspiracy in "The Mormons and Constitutional Federalism", and most notably by Nate Oman at Concurring Opinions in "Law, Revelation, and the Power of Interpretation". Nate writes eloquently about the power of law to give rise to myths and revelations of its own:

Citizens react to their laws and they tell stories about it to one another. Frequently this extra-legal myth making ends up being more powerful than the legal doctrine that spawns it. Think, for example, of the power that stories about civil rights and judicial desegregation have over our politics, even (and perhaps especially) when those stories wildly exceed the legal doctrine itself. This hermeneutic fecundity is part of the power of the law. In this sense, judicial decisions probably call forth revelation and prophecy more frequently than we suppose.

getting to yes with Blawg Review Good-byes

Check your fluid levels and buckle up for next week's edition of Blawg Review, hosted by AutoMuse (which brought whole new meaning to the phrase "safe driving" in a recent post, "Chastity Belt for Your Car?")

Thanks to everyone for your submissions, as well as to the kindly blawg sherpas who guided me along the way. My deepest appreciation goes to Ed., Blawg Review's dedicated and tireless editor, for trusting me enough to do this a second time, and to all of you for stopping by.

And of course I wish you the best of luck in getting to yes in all your negotiations, both professional and personal.

Blawg Review has information about next week's host, and instructions how to get your blawg posts reviewed in upcoming issues.