Category: Dispute resolution

How do clients choose what to do?

Jennifer RomigLeave a comment

Getting into the minds of litigants is no easy task. Few lawyers or lawyers-to-be receive any systematic instruction regarding the psychology of clients. Indeed, although lawyers interact with litigants extensively—often about sensitive matters with serious implications— lawyers frequently have little knowledge about what motivates litigants’ decisions about their cases, in part because there is a dearth of empirical research on litigants’ thought processes. Although polls and survey studies attempt to discover how lawyers think, civil litigants are seldom the direct subjects of similar inquiries (citations omitted).

This is from an interesting new paper, Inside the Mind of the Client: An Analysis of Litigants’ Decision Criteria for Choosing Procedures by Donna Shestowsky of UC Davis To help fill this gap, she conducted a longitudinal study about litigants themselves and how they chose procedures in their cases. How did litigants decide whether to mediate, arbitrate, or go to trial? Shestowsky surveyed litigants in California, Oregon, and Utah, all of which have some sort of ADR offered as part of the civil litigation process.

Unsurprisingly, she found that cost is a stable factor before and after, but her study goes much deeper. Here is the article abstract (unfortunately the whole article is behind a Wiley paywall):

This article presents findings from the first longitudinal study to ask civil litigants prospectively what criteria they plan to consider when selecting legal procedures and then retroactively assess the criteria used to make those decisions. The most commonly referenced ex ante criteria are lawyer’s advice, cost, and time. The retrospective reasons also include these factors, but the list is narrower and more practical. Litigants who initially listed a desire to reduce costs or follow their lawyers’ advice were later significantly more likely to report using procedures for these reasons, suggesting the stability of these criteria. However, the same stability did not manifest for other criteria. Implications for improving protocols for counseling litigants about procedure are discussed

She found that litigants considered a wide variety of factors before deciding on procedure, but afterwards in explaining their choices, they were much more prone to rely on practical considerations and highly constrained choices. This finding reinforces earlier findings that “litigants sometimes expect more from the legal system than it can ultimately deliver.” (Here she is referring to Tamara Relis, It’s Not About the Money!: A Theory on Misconceptions of Plaintiffs’ Litigation Aims, 68 U. Pitt. L. Rev. 701 (2007).)

One major factor throughout the process for represented litigants was attorney influence. Shestowsky’s deeper dive into litigants’ own preferences and choices led her to reinforce the value of open-ended conversations with clients:

Given the extent to which litigants are predisposed to following their lawyers’ advice about which procedures to use, lawyers should attempt to understand their clients’ interests, values, and objectives before sharing their personal evaluations of procedures to avoid imposing their own views. When values differ, lawyers should not interfere with the client’s prerogative to work within her own values framework.

Hat tip to John Lande at the Indisputably blog on dispute resolution for sharing this interesting article. As John pointed out, lawyers don’t always know what their clients are thinking, and this study helps to address the disparity:

Donna’s research is particularly important because we know that litigants often have systematically different perspectives than their lawyers.  It’s much harder to study litigants than lawyers and it is easy to assume, incorrectly, that lawyers’ responses in studies accurately reflect their clients’ perspectives.

Silence for lawyers

Jennifer Romig1 Comment

Silence.

That was the heart of Emma González’s speech at March for Our Lives on March 24. After a introductory remarks, she named the 17 dead and the small experiences in life they would never partake of again. Then she stood, silent, for the remainder of six minutes and 20 seconds—the time it took for the gunman to kill and then escape at Marjory Stoneman Douglas High. The Washington Post called it “the wordless act that moved a nation”:

The absence of language, the extended pause for contemplation, remains a rare thing in public discourse, and even rarer onstage. A moment of silence is the ritualized form of respect we employ on many occasions to mark tragedy, but it’s usually only a moment. González’s silence was an act that felt, in its way, radical. It was as if she dropped the mic — yet a mic was still in front of her.

The length of the silence is what made it more than rote. Long silences challenge the senses and the mind, reflected in an art critic’s visual and auditory hallucinations within a “supersilent anechoic chamber” on exhibit at the Guggenheim in New York.

Silence in these political and artistic contexts operates as rhetorical Silence. On a more pragmatic note, addressing silence with a lowercase “s,” Bret Rappaport recently published “Talk Less”: Elloquent Silence in the Rhetoric of Lawyering, 67 J. Legal Ed. 286 (2017). He quotes Che Guevara:

Silence is argument carried out by other means.

When silence is done correctly, it brings a “participatory dynamic between speaker and audience” in which the audience fills in the unspoken premise of an argument. In his article Rappaport goes on to describe background and techniques of silence. He lists three kinds of silence: simple silence as when you stop speaking so someone else can take a turn, silencing another by not allowing them to speak, and the “eloquent silence.” The article focuses on the latter. Silence can be eloquent when it violates expectations, leads the audience to understand a shared meaning, and is understood by the audience as directed at them. (Here he cites Purdue professor Barry Brummett.)

Rappaport goes on to show that silence enhances thinking by moving past quick, intuitive reactions to the world. Awkward silences can also yield better results in negotiations because the counter-party feels compelled to fill the silence, perhaps to their detriment. Silence also functions as flattery and, since by definition it means not talking, it reduces the risk of unintentional revelations.

Rappaport breaks down examples from movies and well-known trials (O.J. Simpson of course). He says early on that his argument for lawyers is remedial: silence as a “lawyer’s tool [is] one too often unappreciated or outright ignored.” For lawyers who wish to become more powerful public speakers or achieve better strategic results by saying less, I recommend Rappaport’s article.

I also recommend closing all other tabs, notifications, and alerts to watch the full-length version of Emma González’s speech at March for Our Lives.

 

 

 

 

Facilitating Dialogue Across Difference

Jennifer RomigLeave a comment

SilversteinMany thanks to Gail Silverstein, Clinical Professor of Law at the UC Hastings College of the
Law, for this guest post about the ABA Section of Dispute Resolution’s recent conference. Gail co-directs and co-teaches an Individual Representation Clinic and a Mediation Clinic at UC Hastings.

 

The 19th Annual Spring Conference of the ABA Section of Dispute Resolution took place in my hometown of San Francisco, California, on April 19-22, 2017. While participants in the March for Science gathered nationally, conference attendees on Saturday morning learned about facilitating dialogue across difference from the team at the Harvard Negotiation and Mediation Clinical Program at Harvard Law School in a session entitled “Dialogue through Difference: Expanding the Legal Skill Set.”

Harvard’s political-dialogue initiative came out of observing both a national need for dialogues across political differences since the 2012 election and a need at the law-school level as students seemed unable to engage politically in the classroom beyond one standard “liberalish” viewpoint. The three goals of the initiative include:

  1. Educating students to skillfully facilitate and participate in dialogues across difference
  2. Serving the community by providing facilitation services
  3. Creating and sharing pedagogy in this area to build the field

The session described how the initiative is faring thus far and also introduced a new educational video, available soon, entitled “Police-Community Dialogue: A Facilitated Conversation Featuring Commentary with Harvard Law School Professor Robert C. Bordone.” (See trailer for this video here.)

Bookmark Side 2

Session speakers described how the skillset needed for facilitating dialogue across difference contrasts with those of the traditional lawyer. Three of these skills include building connection, unlearning control, and creating comfort with discomfort. Despite the contrasts with the traditional lawyer archetype, all of these named skills relate to listening as both a skill and value that is essential for today’s lawyers.

Building connection

In these dialogues, there is often not a particularized set outcome. Rather, facilitators need to help people connect to one another and their different perspectives and to try to understand where people are coming from in their viewpoints. For Tobias Berkman, who facilitated the police-community dialogue featured in the video, the most important questions used in this sensitive dialogue were ones that engaged the participants personally—for instance “How have these issues impacted you personally?” and “What to do you bring to this?”

Even more important than asking the right questions, listening is the key way we help to build connection with others. The kind of listening that these difficult facilitations require is likely the same type of listening that is helpful to lawyers in early client interviews or during emotionally laden conversation with clients: an open-ended, compassionate listening. I often refer to the work of Peter Elbow on “methodological belief” when I teach my students this type of connection-building listening.  To Elbow, methodological belief is the discipline of listening with the intention to believe what the speaker is saying.  This type of listening, Elbow advances and my experience confirms, allows the listener to feel the power of the other person and his or her ideas, which creates the connection and understanding to which we aspire.

Unlearning control

Second, political-dialogue facilitators need to unlearn that they need to control the process to have a smooth external appearance. Tobias Berkman shared that what looks and feels like a safe place to some participants is actually a “delusion” that privileges a certain kind of engagement. While some appreciate calm and rational conduct, anger and hostility are important for others to express, in order to command respect and power. To maintain a composed exterior on the dialogue does not indicate success for a facilitator as it may be clamping down on important emotions and modalities of expression.

Again, listening is a core component of unlearning control as it is the manner by which we allow the outside world to affect us. In comparison to speaking, which is one of the primary tools by which we impose ourselves on the world, when we listen we allow ourselves to be affected by others. As such, listening is a type of ceding control over ideas, emotions, and narratives to others. All lawyers need to find a good balance between speaking and listening to be effective.

Creating Comfort with Discomfort

Third, political-dialogue facilitators need to build their own comfort with discomfort as they work to move toward the disagreements, instead of shying away from conflict and the multiplicity of emotions. Berkman, along with his co-facilitator Danielle Bart, emphasized that being able to maintain and sustain vulnerability while facilitating can be incredibly powerful and can function as a model for participants. At the same time, it can be demanding for a facilitator to show up authentically as a whole person, particularly in high stakes situations. Rachel Viscomi who teaches Harvard’s “Lawyer as Facilitator” class to law students finds instructive Brené Brown’s vulnerability motto in helping others learning to be genuinely present in these situations:

“Don’t shrink. Don’t puff up. Stand your sacred ground.”

One barrier to effective listening can be our discomfort with our own internal emotions or those that others are expressing to us. Instead of being able to focus on the other person, we become distracted internally or shut down. This lesson of leaning in to the discomfort, which I learned in my mediation training years ago, is a key piece in the internal work necessary to be an effective and skillful listener.

To conclude, in this increasingly polarized world, augmenting lawyers’ skillset to both lead and participate in political dialogue is an incredibly important effort. It harkens to Professor Anthony’s Kronman’s “lawyer-statesman ideal”—that he believed to be failing—where the lawyer possesses qualities such a great practical wisdom, sympathy for others, and a devotion to the public good.

Kudos to the Harvard Negotiation and Mediation Clinic for responding to society’s needs and keeping this ideal alive.

Additional resources:

Anthony Kronman, The Lost Lawyer: Failing Ideals of the Legal Profession (Harvard University Press, 1995).

Peter Elbow, “Methodological Doubting and Believing: Contraries in Inquiry,” in Embracing Contraries: Explorations in Learning and Teaching (Oxford: Oxford University Press, 1986).

Harvard Negotiation & Mediation Clinical Program’s Blog

Access to Harvard Law School’s Police-Community Dialogue Case Study (fee based)

Stuck in the Middle with Everyone

Jennifer Romig1 Comment

DSC_0866-Version-2-258x300Thanks to Lainey Feingold for this guest post. Lainey is an author and disability civil rights lawyer. Her book, Structured Negotiation, A Winning Alternative to Lawsuits, was published by the Dispute Resolution Section of the American Bar Association in 2016.  She is the 2017 individual recipient of the Section’s John W. Cooley Lawyer as Problem Solver Award.

Later this week I will be presenting at the annual conference of the Dispute Resolution Section of the ABA. The Section published my book last year and I’m excited to be sharing my ideas and meeting and learning from leaders in the field.

Many of those I’ll meet are professional neutrals—private mediators and arbitrators or court-based neutrals.  Many others are academics, teaching the next generation of lawyers how to be collaborative amidst the conflict-based culture of our profession.

I’m not any of those things.

I’m a disability civil rights lawyer who represents blind people seeking access to technology and information.  Before I became a disability rights lawyer over 25 years ago I represented labor unions and women and minorities in civil rights employment cases.  I’ve never been a neutral.  Never been in the middle.

Or have I?

Advocate as Peacemaker

For the past two decades, my clients, co-counsel, and I have negotiated national accessibility agreements with large organizations like Bank of America, Walmart, Major League Baseball, and the City and County of San Francisco.  Enforcing rights guaranteed by the Americans with Disabilities Act and other laws, we reached these agreements without any lawsuits on file, using a dispute resolution process called Structured Negotiation.

Structured Negotiation, the subject of my book, gives parties the tools to talk—and listen—directly to each other.  Third-party help from a mediator can integrate well with the process, but is not required.  In close to 75 cases I’ve negotiated with Structured Negotiation (and without lawsuits), I’ve called upon a mediator just a handful of times.

In all my cases I was, metaphorically, on one side of the table with my clients.  But over time, I discovered the table was round.

9.28-StructuredNegotiations_CV-200x300In writing my book about Structured Negotiation I was introduced to a book that proved crucial to my thinking about the work my clients and I had done for two decades:  Bringing Peace into the Room: How the Personal Qualities of the Mediator Impact the Process of Conflict Resolution edited by Daniel Bowling and David Hoffman.

The book explores the qualities that allow mediators to “bring peace into the room.” Although I’ve never been a neutral “in the middle,” it struck me that lawyers practicing Structured Negotiation also “bring peace into the room.” Reading the essays in Bowling and Hoffman’s book I realized that “bringing peace” and being a strong advocate are not mutually exclusive.

To the contrary, being a peacemaker can serve the advocate’s goals just as it serves the mediator’s.

Understanding that participants in Structured Negotiation are peacemakers gave me new insight on the process my colleagues and I had nurtured since our first cases on accessible banking services in the 1990s.

And a new understanding of the possibility of the middle.

The middle is not a mythic center, but a place of common ground

Perhaps the “middle” is not only a place for a skilled neutral seeking compromise from reluctant advocates.  Instead, maybe the “middle” is the common ground all parties seek in a dispute.  As an advocate, my role is to help the parties get there, never losing sight of my clients’ goals.

Looked at in this new way, the middle is not a precise center point between two opposing views.  When my blind clients needed ATMs that talk so they could use them independently, the middle had Talking ATMs, although my clients may have compromised on the timing of particular features.

It was the same during Structured Negotiation with the nation’s largest pharmacy chains for prescription labels that talk, so blind people can safely take medication. As an advocate in Structured Negotiation, my job was to convince our negotiating partners in the pharmacy industry that the middle has talking labels.

The elements of Structured Negotiation made that convincing possible.  An opening letter that invites participation instead of demanding.  Collaborative meetings instead of one-sided, often bullying depositions.  Relationships that emphasize trust instead of distrust; patience instead of its opposite.

Of course, sometimes there is no middle, no common ground.  Sometimes collaborative peacemaking must step aside for a judge’s order. In the new political reality of Muslim bans, attacks on public schools, and threats to freedoms of every sort, traditional litigation has already proven an indispensable tool.  And it always has been.  But it is not the only tool in the advocate’s toolbox.  Peacemaking in its various forms is in there too.

Fear keeps people from common ground; listening gets them there

In my years of negotiating without lawsuits, I have seen fear as a key obstacle in an advocate’s ability to be a peacemaker. In my cases about website and mobile app accessibility, fear that the law will change, technology won’t work, or the cost will be too high are common.  In other fields the fears will be different but the tools to dissolve those fears are the same.  Talk openly.  Listen carefully. Don’t make the lawyerly mistake of assuming the ‘other side’ is hiding the ball or withholding the truth.  Provide a forum for clients to get to know each other.  Show don’t tell.

I’ve seen firsthand that helping everyone around the table get past fear is not reserved for a neutral positioned between opposing parties.  It is the job of the peacemaking advocate as well.

All this leads me back to this week’s ABA conference this week.  It reminds me to listen carefully to the words of the traditional peacemakers—the private and court-based neutrals—and to the law professors and clinical directors.  I know they will be helpful to my clients and to me as we continue to be the best advocates we can be, seeking a middle that works for everyone. 

Visit Lainey’s website or follow her on Twitter for more information. The title of this piece came from the theme song of her favorite TV show, Grace and Frankie. The song was written by the Stealers Wheel and covered for the show by Grace Potter.

 

A Winning Approach to Negotiations: Self-Awareness, Flexibility, and Practice

Jennifer Romig1 Comment

lee-headshot-2-1Guest post by Katrina June Lee, Associate Clinical Professor, The Ohio State University Moritz College of Law

On September 21, the Moritz College of Law hosted the incomparable Marya Cody Kolman as its 2016 Lawrence Lecturer, named in honor of lawyer and law school educator James K. L. Lawrence (Moritz ‘65).

A Yale Law grad, Kolman is a long-time adjunct professor of negotiations and coach for The Ohio State University’s ABA mediation advocacy team. For more than 30 years, Kolman has helped train OSU law students to be, in her words, “high-quality ethical representatives.” Kolman’s full-time day job, since 1999, is Director of Mediation Services at Franklin County Domestic Relations Court in Columbus, Ohio.

In giving this year’s Lawrence Lecture, Kolman drew from her deep negotiations experience. The Lecture took place in the law school’s large auditorium and was attended by students, professors, and practitioners.

Kolman’s main theme for aspiring effective negotiators could be summed up as follows: reflect on and identify your own negotiating tendencies, build into your repertoire styles that do not come naturally to you, and practice so that you can adapt to any type of negotiating situation.

She started the lecture with a very telling story that revealed her main theme.  Over the years, as a coach for OSU’s ABA mediation advocacy student team, Kolman noticed that OSU’s team regularly beat teams that had practiced for months and months (sometimes years). Yes, OSU law students were (in Kolman’s words) “simply amazing” and benefited from education in an outstanding law school dispute resolution program. Still, Kolman wondered if there was something about their competition preparation that made OSU law students especially effective.

A winning approach

After some reflection and investigation, Kolman discovered that the OSU teams benefited from not being scripted and not being coached to follow a fixed protocol. Kolman learned that some law schools tried to script the roles for their students or require that they negotiate in a certain way. This approach to preparation differed significantly from Kolman’s approach.

Kolman described the OSU team approach, which emphasized self-awareness and flexibility. Coaches first watched the students and observed their negotiation styles. The coaches noted the students’ strengths and challenges as negotiators. They then helped the students build on their own style and be more effective negotiators using existing strengths. This approach proved to be much more effective than giving students a script or a fixed protocol on how to negotiate.

OSU team coaches had identified a winning approach. The approach focused on developing self-awareness about students’ “natural” negotiation styles and tendencies, and helping students build on their strengths and develop the ability to use other styles when situations called for them.

Raw talent is not enough. Be prepared.

Kolman emphasized that “raw talent” is not enough to be a successful negotiator. Lawyers need to learn about different styles and skills and practice them. Only through that exploration and practice can a lawyer learn what works best for him or her. Kolman coached the audience: Develop strengths and expand on them. Avoid “forcing yourself into a style that does not work for you.”

Even though everyone has negotiated before law school, whether at the grocery store or with family members at home, Kolman cautioned, lawyers should not enter negotiations without training, forethought, and preparation. As I tell my negotiations students, preparation is key.

When Kolman practiced law as a domestic relations attorney, she negotiated with opposing counsel on a daily basis, with 95 percent of cases settling before trial. Most opposing counsel were well-prepared, but some were not. Those who were not would come into the negotiation and start flipping through their files trying to figure out what was going on in the case. Not surprisingly, in those instances, Kolman was usually able to negotiate a very favorable settlement for her client.

Steps to effective negotiating

Kolman offered these steps for any law student or lawyer to become a better negotiator:

Analyze your personal negotiation style and preferences.

One place to start is the Thomas-Kilmann Conflict Mode instrument. For a price, a person can assess which conflict-handling modes he or she is overusing or underusing. The five conflict-handling modes are competing, accommodating, avoiding, compromising, and collaborating. Kolman noted that, without paying for the T-K Conflict Mode Instrument, you can still assess your conflict-mode tendencies through honest hard reflection.

“Think about what’s you” and work on styles that are “not you.”

Once a person has identified personal preferences and tendencies, Kolman urged audience members to “think about what’s you,” maximize your own tendencies, and work on other styles that may not come naturally. Bringing together the strengths of “natural tendencies” and an ability to use other styles as needed will help a lawyer become a well-rounded negotiator. For example, the lawyer who naturally tends to use an accommodating style will find it helpful to learn how to use a competing style so he or she can use it when needed.

Learn about different negotiation styles and practice.

Training and practice help build effective negotiation skills. Kolman commented that “the beauty of a negotiation class” is that “you can try things out.”

Always be willing to learn the interests of your client and the other party.

Kolman emphasized the importance of learning the interests of a client and the other side. This can help with problem-solving and collaborating to find a solution that all parties are happy with. In our negotiations courses at OSU Moritz College of Law, students learn skills that help with exploring interests, including active listening, asking helpful questions, and achieving an optimal balance of empathy and assertiveness in a negotiation.

Kolman encouraged all aspiring negotiators to work on being more self-aware about personal tendencies, understand that raw talent is usually not enough to be an effective negotiator, and to practice styles that do not come naturally.

After reading this post, consider what your personal style is in handling conflict, and try a different one.

 

Sources cited in the 2016 Lawrence Lecture (arranged alphabetically here):

Roger Fisher, William Ury & Bruce Patton, Getting to Yes, 2nd Ed. (Penguin Books 1991).

Gary Goodpaster, A Primer on Competitive Bargaining, 1996 J. Disp. Resol. 325.

Carrie Menkel-Meadow, Toward Another View of Legal Negotiation: The Structure of Problem Solving, 31 UCLA Law Review 754 (1984).

Robert H. Mnookin, et al., Beyond Winning: Negotiating to Create Value in Deals and Disputes (Belknap Press 2000).

Andrea Kupfer Schneider, Shattering Negotiation Myths: Empirical Evidence on the Effectiveness of Negotiation Style, 7 Harv. Negot. L. Rev. 143 (2002).

Richard Shell, Bargaining Styles and Negotiation, 17 Neg. J. 155 (2001).

Listen Like a Lawyer is grateful for this post by Katrina June Lee, Associate Clinical Professor and a member of the Dispute Resolution faculty at The Ohio State University Moritz College of Law, where she teaches Legal Negotiations and Settlements. Moritz’s DR program is No. 1 in the 2017 U.S. News & World Reports ranking of law school DR programs. Professor Lee notes her thanks to Marya Kolman for her insightful Lecture and for sharing her notes and slides for use as background for this post, and to Professor Ellen Deason for her review and comments on this post.