We hold these Truths...

 I will for the purpose of maintaining the causes confided to me such means as are consistent with truth and honor, and will never seek to mislead the judge or jury by any artifice or false statement of fact or law. Oath of Admission to The Florida Bar  https://www.floridabar.org/divcom/jn/jnjournal01.nsf/Author/4F51651D215A82C085256ADB005D611F

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Imagine what the law business would be like if we woke up on a Monday morning and went to work in a “post-truth” world. The Oxford Dictionaries declared “post-truth” as its 2016 word of the year; a state “in which objective facts are less influential in shaping public opinion than appeals to emotion and personal belief.” Travelling down this Alice-in-Wonderland rabbit hole is Gerard Baker’s recent editorial in the Wall Street Journal, Trump, ‘lies’ and Honest Journalism, in which he cautions “I’d be careful about using the word ‘lie.’ ‘Lie’ implies much more than just saying something that’s false. It implies a deliberate intent to mislead.” http://www.wsj.com/articles/trump-lies-and-honest-journalism-1483557700.

Fair enough. But here are a couple of dictionary definitions of a lie: an intentionally false statement; to make an untrue statement with intent to deceive; to create a false or misleading impression. The critical word here is “intention” which begs the question; Is it possible to “accurately know the values (or lack thereof) involved when a person speaks?” Probably not.

In his famous little book, On Bullshit, http://press.princeton.edu/titles/7929.htm, Harry Frankfurt makes an important distinction between bullshit and lying that I think is particularly pertinent:  Both the liar and the bullshitter try to get away with something. But ‘lying’ is perceived to be a conscious act of deception, whereas ‘bullshitting’ is unconnected to a concern for truth. Frankfurt regards this ‘indifference to how things really are’, as the essence of bullshit. Furthermore, a lie is necessarily false, but bullshit is not – bullshit may happen to be correct or incorrect. The crux of the matter is that bullshitters hide their lack of commitment to truth. Since bullshitters ignore truth instead of acknowledging and subverting it, bullshit is a greater enemy of truth than lies.

There is, however, no real distinction between a lie and bullshit when it comes to the form or meaning of what is actually said. When a person rejects the very idea of being true to facts and turns, instead, to an ideal based on what they assert to be a sincere belief in their own substantial and determinate nature, then, according to Frankfurt, this sincerity is also bullshit. https://philosophynow.org/issues/53/On_Bullshit_by_Harry_Frankfurt

 “Why don’t you believe him? Why isn’t it taken at face value?” Conway said in exasperation. “You can’t give him the benefit of the doubt on this and he’s telling you what was in his heart? You want to go with what’s come out of his mouth rather than what’s in his heart.” https://twitter.com/NewDay/status/818444732934201344

FIRST YOU WIN THE ARGUMENT…

In this recent political season, it was a binary world with only 2 outcomes – winning or losing. You didn’t find First you win the argument, then you win the vote on a bumper sticker.

Likewise, many people lack a personal philosophy that is grounded in negotiation and compromise – in Getting to Yes. They see every conflict as a zero-sum game. Too many clients are angry and cynical with unrealistic expectations of their lawyer and the legal system. They are ready to blame others for their own unfortunate circumstances. A sense of accomplishment can be elusive for a lawyer.

But there is a bright side to all of this gloom. Trials, which allow only win-lose outcomes, are slowly being supplanted by structured negotiations with judicial oversight. Lawyers seem to me to be getting better at negotiating. Negotiating a deal that ends a challenging and expensive controversy can provide a level of satisfaction and accomplishment that far exceeds winning the jury or judge lottery.

Fierce litigators, long at the top of the lawyer food chain (and grist for bad lawyer jokes), are slowly being replaced by successful negotiators who can craft outcomes grounded in reality. I for one, am optimistic that in time, things will get better.

Why and What Should We Want to Know About Mediation

I think that the field of mediation lacks a serious commitment to any systematic study and rigorous evaluation of what mediators do when they mediate. There is no data to support an assertion that any particular strategy or behavior engaged in by a mediator has any effect on the behavior of the participants or the outcome of their negotiation. Moreover, I am unaware of any set-pieces, akin to plays on a football field, that mediators use again and again that have been tested to determine if they correlate, much less cause, any particular behavior or outcome.

What there is in abundance is a literature filled with stories told by mediators who claim to have found the truth when what they really want is recognition or to gain a competitive advantage in the marketplace; likewise, with workshops and seminars that infer that something a mediator does (or should do) actually causes people to behave differently while participating in a mediation.

We need not stay stuck in this dark cave. A huge volume of mediations happens everyday. These sessions offer sociologists, psychologists, legal scholars and academics and others a laboratory to observe and study mediators’ actions while they work with real people involved in real conflicts.

Mediation confidentiality serves an important purpose but it need not be an iron current. All that typically emerges from a mediation is a written agreement. Lost is the opportunity to work out the conditions under which a particular strategy might actually work and the inferences that might reasonably be reasonably drawn from that analysis. Also lost is the opportunity to examine the inferences people actually have drawn from it under different conditions, what they thought it implied and what it inspired them to do. This process can reveal intriguing intellectual and practical possibilities that mediators might otherwise overlook. Researchers routinely observe, study and gather intimate information from people while successfully guarding their privacy.

The judicial system has a vested interest in understanding and improving the efficacy of the mediation process, inasmuch as judges compel people to participate and pay for it. I think that a carefully drawn provision carving out an exception to confidentiality that allows for the scientific/academic study of mediation would be a great benefit for both mediators and those who participate in the process.

I, for or one, would like to know if what I do really works or not and why.

IT’S DEBATABLE

For those of us employed in the law business, knowing how to argue is an essential skill that is often in short supply. That fact can make a lawyer’s life miserable, both in practicing without adequate skills or dealing with someone else lacking those skills.  “How to argue is something people are taught. You learn it by watching other people, at the breakfast table, or in school, or on TV, or, lately, online. It’s something you can get better at, with practice, or worse at, by imitating people who do it badly.  More formal debate [for instance, presenting reasoned argument to a judge or jury] follows established rules and standards of evidence.” “Debating, like voting, is a way for people to disagree without hitting one another or going to war; it’s the key to every institution that makes civic life possible, from courts to legislatures. Without debate there can be no self-government.” (Lepore, The State of Debate 2016)

It's debatable

It's debatable

On September 26, the first Presidential debate of this election will take place. It won’t be a debate in the sense that the delegates to the Constitutional Convention debated the terms of our Constitution in 1787 or that Lincoln debated Douglas in 1858. It won’t much resemble the Kennedy-Nixon debate that took place 56 years ago. It will follow a format that defies meaningful discourse; questions posed by Lester Holt, despite his best efforts, will reveal little information that can serve as the basis for thoughtfully choosing one candidate’s policies and leadership skills over the other. The debates are, as Walter Cronkite said, “…part of the unconscionable fraud that our political campaigns have become” and they should be a source of deep concern for voters who support our form of government.

 

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Screwed at Mediation...or Not!

I know that many lawyers prepare their clients for mediation by telling them that a good outcome will be one that leaves everyone feeling screwed, in an even-handed sort of way.

I think that there is a better way to help define a successful mediation; We will do the best we can under the circumstances, the circumstances being the facts, the law and available resources. Resources include the time, money and the emotional energy a person is willing to expend to gain any particular result.

This simple formulation acknowledges the importance of how people feel about the controversy - angry, sad, disappointed… and provides a useful context in which they can make sense of how they feel about the outcome.

Facts, alternative facts and mediation

At the beginning of every mediation, I urge the participants to talk to each other about the facts they have relied on in creating their “picture” of the case. I caution them that it is not an invitation to have a debate because debates have winners and losers. Instead, the conversation is designed to create an understanding of the other guy’s point of view. I tell them that the process will reveal to them not only the structural differences but the facts that overlap. It will also reveal the emotional forces that influenced them while they were creating their “picture.” Rather than arguing about who has the prettier picture, they can acknowledge that they have feelings about their differences. The process allows that we all have feelings about facts. With all the parts of their controversy out of the dark and into the light (facts and feelings), they can begin work on an outcome “with benefits.” It is an efficient process that has the best chance of yielding a reasoned and rational outcome; in other words, an outcome that makes sense to them.

The current controversy about facts and “alternative” facts is deeply troubling to me. A reasoned search for the truth is the core of our judicial system. That search is often a profoundly difficult task. I have learned from experience and from study that resolving conflict is one of the greatest challenges any of us confront in life. Without conflict resolution processes and skills that rely on facts, our freedom is at risk.

 

It's a buyers market...

It’s a buyer’s market in mediation. There are thousands of mediators and that number is growing rapidly. The screening process available to you to select a mediator is based almost exclusively on personal experience, word of mouth and website information. There is no Angie’s List.

You use mediation as a method to advance the interests of your clients. Your clients, in turn, evaluate you on the quality of your work and the wisdom of your advice. You want your client to think that the time and expense of the mediation were resources well spent, even if the case doesn’t settle, so selecting an effective mediator is important.

You expect the mediator to employ a variety of skills so that the negotiated outcome resolves the dispute and makes sense to your client. So go beyond settled/not settled in your vetting process; here are three characteristics of an effective mediator worth looking for:

Curious – It’s the difference between claiming to have all the answers and having the right questions. Curiosity leads to revealing new paths and overlooked or under-appreciated opportunities.

Patient – It takes time for people to change the way they feel and to reason their way through problems. Forced decisions encourage the use of shortcuts (heuristics) that often lead to bad decisions and impasse.

Mindful of bias – A biased mediator can undermine the entire process. And a mediator unskilled at dealing with the biases of others, either explicit or implicit, is unlikely to be of any real help. Even worse is the mediator who hasn’t invested the time and energy necessary to acknowledge and deal with their own biases.

Don’t hesitate to call me in advance of selecting your mediator. I would be happy to talk to you (and opposing counsel) to discuss your best path forward.