Tuesday, August 28, 2007

Let's make a deal: man haggles for hot dogs and more in negotiation experiment

One journalist haggles for hot dogs in negotiation experimentIn impressing on their students the importance of acquiring negotiation skills, trainers will often say, "You may not realize it, but you're always negotiating. It doesn't matter whether you're asking your boss for a raise or figuring out where to have dinner with your spouse. You're negotiating, my friend."

I know--I've said this to rooms full of people myself. Judging from the numerous heads nodding in agreement, many people accept this as true. However, I don't think anyone ever acts as if they really believe it.

But what if in fact that were the case? What if you truly believed that everything--and I do mean everything-- is open to negotiation?

Author Tom Chiarella decided to test this premise during the course of a three-month experiment. He writes about his experience in "Haggling for Hot Dogs", an article that appears in Esquire. Lessons learned include "Never let them know how much you have to spend. Draw people into your life. Show your personality. Learn people's names. Work your way up to the person who has a stake in the sale and the power to make a deal." Also, don't "think of money as the only thing...to offer. I found that trading favors proved relatively easy."

World Directory of ADR Blogs adds a negotiation podcast to its inventory

Negotiation podcast added to World Directory of ADR BlogsThe World Directory of Alternative Dispute Resolution Blogs added a negotiation podcast this week to its growing catalogue.

PONcast is produced by the Harvard Program on Negotiation. Posts include "First You Have to Ask", on the impact of gender on negotiation.

Do you publish a blog on negotiation or dispute resolution? Let me know, and I'll add it to the World Directory of ADR Blogs. (Please review these painless submission guidelines first.)

Inter-religious conflict finds forum for no-holds-barred dialogue in Bangalore

Meta-CultureEvery once in awhile, if we are fortunate, we meet an individual that intuition tells us is destined for great things.

My friend Ashok Panikkar is one of those individuals. Ashok, who left Boston and returned to his native Bangalore two years ago, founded Meta-Culture, Bangalore's first center for dialogue and conflict transformation. When I interviewed Ashok in July 2005, he described his goals for Meta-Culture:
Meta-Culture is in the process of creating India’s first integrated conflict management group. The vision is to help people develop skills of discourse that are non-adversarial and built around the principles of dialogue rather than debate (even though there are situations where, for instance, Socratic debate can play a very useful part in helping to clarify ideas and challenge the mind). In doing so we can change the climate and culture of discourse so that individuals, organizations and societies can respond to differences with understanding and skill instead of doing so from anger, ignorance, fear, animosity or misplaced righteousness.

Our mission is to engage in or promote activities that can help advance this vision. To this end we are engaged in consulting, research and education in the areas of ADR, especially mediation; facilitation; coaching; design of conflict and dispute management systems; and consensus building. Right now our focus is to establish Meta-Culture as a sustainable consulting practice. Very soon we will be setting up a separate division that will service the NGO and governmental sectors.
Unsurprisingly, Meta-Culture today is thriving, keeping Ashok and his staff busy. One of its projects, Meta-Culture Dialogics, a non-profit trust, recently attracted the attention of India media.

The purpose of this project has been to promote dialogue among Hindu, Muslim, Christian and Buddhist groups to discuss matters of importance over the course of 10 sessions. These sessions were not designed to get people "holding hands and singing Kumbaya" in the hopes of simply sweeping differences under the rug, as Ashok told me in a recent phone call.

According to Ashok, who was interviewed by The Hindu, "We are not into preaching peace, tolerance and harmony. Instead, we provide a platform for communities to talk about what is bothering them the most about the other community" and to ask each other the hard questions to give issues the healthy airing that honest dialogue can produce.

You can read more about this "Inter-faith dialogue for conflict resolution" as reported in an online edition of The Hindu.

News roundup for mediators

News this week for the ADR professionalFor your reading pleasure, some links to news stories especially for mediators:

Can a surfeit of choices be too much of a good thing as far as effective decision making goes? That may just be the case, according to "Just Choose It!" from The Situationist.

They say that absolute power corrupts absolutely, but even smaller doses can be fatal. Bob Sutton offers "More Evidence that Getting a Little Power Turns You into a Self-Centered Jerk".

When you say "I'm sorry", surprisingly enough it may not matter if you don't really mean it. collision detection discusses the results of a recent study that shows that "Fake apologies are as good as sincere ones".

Finally, Law.com's Inhouse Counsel considers "Arbitration's Costs and Dangers" and explains that "in many respects, mediation offers all the benefits of arbitration -- lower costs, faster results -- without the limitations."

(Photo by Sanja Gjenero.)

Read Blawg Review to stay informed (and entertained)

603997_wanna_take_a_ride Charles S. Rhyne, who served as president of the American Bar Association during 1957-58, once observed, "Law offers the best hope for order in a disordered world."

Given how integral the law is to our political, commercial, and social institutions, remaining informed about its influence on our lives is important.

And one of my favorite ways to stay informed about the law is by reading Blawg Review, the weekly review of legal blogging. Presented each week by a different host, Blawg Review shows readers the many faces of the law--sometimes serious, sometimes humorous, sometimes provocative.

And don't forget fun.

Consider some recent hosts:

Blawg Review #123, presented by the Texas Appellate Law Blog in the form of a decision issued by the Supreme Court of the Blawgosphere. (Links include coverage of the shenanigans that followed when one law firm commissioned a really bad theme song--and word leaked out about it.)

Blawg Review #122, presented by David Gulbransen as a law school course catalog (which includes a post that asks "What's Your Favorite Bad Legal Argument?")

Blawg Review #121, hosted by The Inspired Solo which opted to forgo a theme for a plain vanilla (albeit very tasty) presentation. Worthwhile links include two posts on listening as life skills - here and here, along with Stephanie West Allen's reflections on the Summer of Love)

Whatever you do, be sure to catch next week's Blawg Review. This is the second time for host George Lenard of Employment Blawg, who burned up the charts when he hosted Blawg Review #15, the sixties rock 'n' roll edition (although if you remember it, you weren't there).

(Photo by Ronald Schuster.)

Monday, August 27, 2007

In celebration of women who blog

in celebration of women bloggersA persistent myth about the internet is that it is dominated largely by male voices.

In truth the internet echoes as well with the voices of women--strong voices worth listening to. These voices are being collected now in the steadily growing W Magical List of Women Bloggers which celebrates women who blog.

I was delighted to see familiar names of women who not only blog but who also mediate. They include Stephanie West Allen, Tammy Lenski, Victoria Pynchon, Kristina Haymes, and Dina Beach Lynch. I feel very honored that Online Guide to Mediation made the list as well.

Some names I'd like to see added are Diana Skaggs, Gini Nelson and Monica Bay. And I was going to also suggest the inclusion of Carolyn Elefant, a role model for many of us, but I see that someone beat me to it and her name is already listed.

What women bloggers inspire you?

World's simplest dispute resolution tool

Declaration of Ownership labelsGetting ready to head back to college? Moving into a new apartment on September 1? Prevent roommate disputes with these Declaration of Ownership labels.

Alternatively you could try the Fair Division Calculator, "a java applet for interactive decision making" which uses algorithms to achieve "envy-free divisions of goods, burdens, or rent".

Since when is mediation "pork"?

Mediation program is political porkIllinois governor Rod Blagojevich has cut almost $500 million of "'pork' and non-essential spending" from the state's Fiscal Year 2008 budget.

Unfortunately these cuts included funding for a gang mediation program aimed at reducing conflicts and violence in the city's neighborhoods.

Some day, some day, political leaders will view conflict resolution as an essential service. Hey, a mediator can dream...

(Photo by Clarissa Rossarola.)

Sunday, August 19, 2007

Won't get fooled again: negotiating with liars

Negotiating with liarsWhen it comes to negotiating, be trustworthy, not trusting--advice that many negotiation trainers give their students. Since lying may be endemic to the human condition, this is undoubtedly good advice.

But what can a negotiator do to counter deception at the bargaining table?

In "The fine art of negotiating (with liars)", an article in today's Boston Globe proffers some advice from the experts, including:

Ask negotiating partners upfront to disclose their credentials, credit record, or personal history as a way of establishing trust.

Set ground rules, requesting that bargaining be "good faith" rather than "arm's length." In the former, the parties agree to reveal everything they know to help reach a better deal for both sides. In the latter, they disclose only what's required and can mislead through omission.

Frame questions more narrowly or broadly, or make statements that will invite telling responses, if you feel your negotiating partner is providing vague, general, or yes-and-no answers.
I agree that asking questions is important. In Bargaining for Advantage, scholar and negotiation expert G. Richard Shell points to the results of a study that demonstrates something fascinating about the behavior of skilled negotiators: they ask twice the number of questions that average negotiators do. In fact, Shell reports that "skilled negotiators spend 38.5 percent of their time acquiring and clarifying information--as compared with just under 18 percent for these activities by average negotiators." Shell's advice is simple: "probe first, disclose later".

Another expert interviewed for the Globe article had other recommendations: Begin on the presumption that the person on the other side of the table is honest unless the evidence suggests otherwise. Then, "take precautions -- that includes jotting down notes during talks, putting the other person's claims in writing, and incorporating contingency clauses into agreements."

My own advice? Do like the Boy Scouts: Be prepared. Identify your goals for the negotiation, not just your bottom line, research your walk-away alternatives in advance to create leverage, and collect data that will support the dollar figures or outcomes you're seeking. And don't forget to follow Shell's advice--ask questions and listen.

By the way, don't be tempted to resort to bluffing yourself in an effort to come out ahead. It could end up costing you. According to Shell, "Bluffing distorts the information flow in negotiation in ways that can be costly. In one study, for example, 20 percent of the subjects, including some experienced professionals, ended up agreeing to options that neither side wanted due to bluffs that backfired."

Looks like in negotiating honesty may be the best policy after all--or at least the most profitable one.

Tuesday, August 07, 2007

The Lawyer as Problem Solver Award: A healthy pandemic of fair and creative solutions

Lawyer as Problem SolverHere in the U.S. this summer's cable TV lineup includes "Damages", a new series about, surprise surprise, lawyers. Already viewers have seen one of the principal characters, a scheming and ambitious plaintiff's lawyer (played by bunny-killing star of "Fatal Attraction" Glenn Close), use deception to trick her opponent into settling a personal injury suit on the courthouse steps, bully her associates, manipulate clients, and arrange to have a witness's dog killed. And that was just the first two episodes.

Meanwhile, quietly and without fanfare, a portrait of a different kind of lawyer will be revealed--a portrait that comes closer to depicting the work that many lawyers perform, far from the attention of the media and the public's eye.

On Friday, August 10, 2007, the ABA Section of Dispute Resolution will be honoring The Innocence Project and internationally respected scholar and ADR professional David Sandborg with Lawyer as Problem Solver Awards. This Award, created in 2002, recognizes attorneys for their ability to use their legal skills in creative ways that benefit clients and communities.

This Award reminds all of us of the important contributions that attorneys can make. In fact, the Award honors not only the recipients but "all lawyers who use their legal skills creatively to build positive solutions for their clients and the community as a whole."

I was struck by the words of last year's honoree, David Plant. (To read his full remarks, click here and scroll down to the section captioned "More About Us"). He made these observations about the lawyer's role as problem solver:

...David Berg, in his recent book "The Trial Lawyer - What It Takes To Win", confesses his fear that the "great war stories" of future generations of trial lawyers will begin, "And then, I looked that mediator in the eyes and I said ... ." Tongue in cheek or not, David's fear is unjustified. Trials will always be necessary. Great trial lawyers will always have great war stories of real trials. Trying lawsuits with uncommon skill will always be a valued calling. But that is not all the profession is about.

From my vantage point, each of us is practicing in order to assist individuals and institutions, in all shapes and sizes, in all colors and hues, in all moods and on all missions, to find workable solutions to vexing problems. To the extent those problems entail conflicts and disputes, the vast majority can best be solved, and will best be solved, by face to face negotiation, candid discussion, and good faith, collaborative and creative exploration of options. In assisting parties in those discussions, and in facilitating those negotiations, lawyers will continue to serve the profession's highest purpose. The client will rise to the surface as the person or institution of paramount importance...

To insure that we practice the problem-solving aspects of our profession at the highest level, I invite each of us to study Malcolm Gladwell's book "The Tipping Point". Then, I invite each of us to commit ourselves to becoming a virus, a virus whose mission is to beget and to propagate an epidemic - better still, a pandemic. We'll be good viruses. We'll inspire a healthy pandemic.

We'll each empower each client -

to take control of that client's own destiny,
to assess candidly each dispute the client has with another,
to identify honestly the client's real interests and real needs,
to respect genuinely the other party's real interests and needs,
to work empathetically with all others concerned to explore options, and to attempt authentically to find a fair and durable solution.

If we dare to practice, to learn and to implement this notion, we each shall have done a good piece of professional work. And our clients will have realized marvelous - even mysterious - benefits.

What can you do to become contagious?

Monday, August 06, 2007

Trouble in paradise: new ways of managing marital disputes

Trouble in paradiseIt looks like the digital age has spawned a whole new range of problems that can mar marital bliss, according to "'Til Tech Do Us Part", a recent article in the Wall Street Journal. Blogging, email, and mix-ups involving Amazon.com accounts are among the perils that lie in wait for newlyweds.

Whether couples are faced with 21st century troubles or more traditional challenges like money or differences in parenting styles, there's no doubt that marriage is not always a bed of roses--and even if it is, coping with the thorns isn't easy.

According to this post by Dave Hoffman at Concurring Opinions, one entrepreneur has a novel solution: financial incentive in the form of marriage insurance with "a guaranteed, high return payout for achieving such a milestone as a 25th (Silver) wedding anniversary".

Meanwhile, in the event that a marriage fails and divorce looms on the horizon, there's divorce software designed to help couples negotiate the division of the marital estate, as Stephanie West Allen at Idealawg describes. Unfortunately, with the focus of the divorce software on compromise rather than collaboration, couples may miss more creative and mutually profitable ways of dividing assets, according to Stephanie's analysis. A human actor assisting in the negotiations can stimulate a three-dimensional consideration of all the factors involved.

This means of course that mediators are by no means obsolete. If the question is, "Do you want to work it out?" mediators can still help people get to "I do".

(Hat tips to Slash Dot for the link on tech troubles for the married, and to Blawg Review for the link to the post on divorce insurance.)

This week's Blawg Review inspires trust in its readers

Blawg Review is A-OKThe tireless editor of Blawg Review, the weekly review of legal blogging, is hosting both Blawg Review #120 and the 3rd Carnival of Trust.

The Carnival of Trust is a monthly blog carnival featuring ten posts related to trust--a subject near and dear to the hearts of lawyers and mediators alike. Among the posts featured in the 3rd Carnival of Trust are "Creating a Foundation of Trust" and the sobering "Workplace Violence: Be Careful Out There".

You don't want to miss either of these special editions of Blawg Review--trust me on that.

Friday, August 03, 2007

Let's kill all the lawyers: web-based negotiation platform seeks to revolutionize the creation of contracts

Tractis provides a new web-based platform for contract negotiationNegonation, a Spanish start-up, has launched Tractis, a web-based platform to revolutionize the negotiation, management, and execution of contracts in e-commerce.

But it's not just about helping business get done. Negonation's goal for Tractis is far more ambitious:
Our goal is to provide a way to make online borderless justice possible. Yeah, you heard us right. We want to develop a new legal system that overcomes the inefficiencies, complexities, injustices and sluggishness of traditional legal systems. We want justice for, from and by the Internet nation. Tractis is only the beginning.
Tractis is designed to manage what Negonation's founders call "the whole life cycle of contracts". Users can select from a library of templates to create a contract, invite others to participate, and develop a single text to produce contracts guaranteed to be legally binding. Prior versions of contracts, comments, and attachments are archived and readily accessible. Negonation plans to add an online dispute resolution mechanism for addressing the inevitable disagreements that can arise from contract negotiations.

You can take an online tour of Tractis to gain a sense of its interface or review its FAQs.

O brave new world...

(Hat tip to Law.com Inside Opinions.)

Mediator nominated for Congressional Order of Merit by National Republican Congressional Committee

Congressional Order of MeritCan you smell the desperation in the air? That's a sure sign that a major election year is rapidly approaching and at least one political party is getting nervous. Consider the following.

Recently I received a voice mail from the office of U.S. Congressman Tom Cole and the National Republican Congressional Committee. The message informed me that the NRCC wished to "recognize [you] with our highest honor, the Congressional Order of Merit" and asked me to call.

A Congressional Order of Merit? For me? How could I refuse?

The staff person who answered the phone told me that as part of being singled out for this honor, I'd also been invited to serve on a business advisory council, and she asked me to listen first to a recorded message from Congressman Cole before she provided me with further details.

The message was most instructive. I learned that small businesses like mine "are the backbone of our community". I learned that Democrats think I'm "rich and don't pay [my] fair share of taxes", and that I could play an important role in combating their "anti-business agenda". I also learned that small business owners like me are "the last line of defense against the liberal agenda". Finally, I learned that Tom Cole and the National Republican Congressional Committee needed my help.

At the end of the message, the staff person asked me if I had any questions. I asked her how much it would cost to take part. She told me that there was no cost--only my participation on the advisory council.

As tempting as the opportunity was, I had to come clean. I confessed that by no stretch of the imagination could I be characterized as a supporter of Republican political causes. I asked how they selected my name in the first place. She sidestepped that last question but hastily reassured me that Democrats and Independents could serve on the council as well.

I regretfully declined the honor.

Which meant, alas, no Congressional Order of Merit for me.

(Just for fun, try googling the phrase "Congressional Order of Merit". I did. It yielded the news that the NRCC has extended this prestigious-sounding but meaningless honor to numerous others, including a former Democratic congresswoman and National Public Radio science correspondent Ira Flatow. I wait breathlessly to see what honor the Democrats next have planned for me.)

New blog posts notes from the conflict trenches

passiveaggressivenotes.comAs I've discussed here before, the conflict-averse among us (which, I suspect, is actually most of us) go to great lengths to avoid confrontation.

But even among those who are willing to tackle conflict, no one seems to want to do it face to face--which may explain the popularity of leaving notes for roommates, co-workers, neighbors, and others which detail grievances and make demands for behavioral change.

A blog, passiveaggressivenotes.com, collects these messages and displays them for the enjoyment of its readers. A fascinating foray into the stuff that drives people nuts and the way they deal with it.

Thank you for reaching out

Thank you for connectingThank you to those of you who either posted comments or emailed me following "Requiem for a friend", in which I wrote about loss, friendship, and the importance of staying connected with the people who touch our lives. This post evidently touched a responsive chord in many of you.

I am so grateful to you for reaching out.

Best wishes to you all--with deepest appreciation--

Wednesday, August 01, 2007

Requiem for a friend

Requiem for a friendLegendary film star Marlene Dietrich once said, "It's the friends you can call up at 4 a.m. that matter."

Phil was that kind of friend.

Any time of the day or night, he'd be there. He was there during life's bleakest moments -- through devastating illness, the end of my first marriage. And he shared the joy of important milestones--two weddings, the birth of my son, law school graduation, the launch of a new business. He was generous, dependable, and unfailingly kind. He was also a tough pragmatist who wasn't afraid to give honest advice. And he was one of the funniest people I've ever met, a skilled storyteller whose jokes would leave me doubled over with helpless laughter, slapping my knees and gasping for breath.

Somehow, over the last few years, we got together less frequently. Work and family bring their own demands, and friendship went on hold. And his own life took a dark detour, leading him to places that those who loved him could not follow.

But almost three decades of friendship exert a powerful pull. Over the last few months I thought of him often and resolved to call him--always tomorrow, always tomorrow.

But I waited too long.

Last Friday I got the call. Three words changed everything: "Phil is dead."

So please don't wait until tomorrow to say, "I'm sorry".

Or "Thanks for everything."

Or "I love you."

Unless you want to say those words, as I did last night, in a eulogy for the dead.