If Anyone Needs a Mediator, It’s These People.

Two sides sit across a table.  They are faced with a major problem.  Both are adamant that their position is the strongest.  They’ve bickered and argued for months, creating a stalemate that has caused considerable damage to their business, their reputations, their relationships, as well as their future ability to work together.

Sound familiar?  Sure.  It probably sounds just like many of the cases with which you deal.  If this were a business dispute, someone would probably suggest mediation.  Having a neutral go-between could ease the tensions and sort out the issues, identifying some common ground on which to build.

But it isn’t.

Who needs a mediator more than anyone else in our country right now?  The boobs Solons running our government. Partisanship on both sides of the political aisle has caused a stalemate in the debate over health insurance reform.  It’s a particularly sad day when the putative leader of the Free World utters the phrase, “”I don’t know that those gaps can be bridged.”

Unfortunately, as Sen. Bayh recently pointed out, the deal makers, the moderates, the pragmatic members of our government have abdicated any role to the demagogues on the fringes.It doesn’t matter what side you support.  Both sides need to move from their entrenched positions and discuss real options, not just talking points prepared by pointy headed people in Ivory Towers or tucked inside the Beltway.  Having a mediator involved would be very useful.

Please forgive my foray into politics but the analogy seemed quite obvious to me.

Pawn Stars and Shark Tank – Proof that Americans Have Lost the Art of Negotiation.

As the dog days of summer dwindled, I stumbled upon two new TV programs that I found fascinating on several levels.  The first was Pawn Stars, a “reality” show about a family run pawn shop that mixes a little Antiques Roadshow with the dysfunctional family dynamics of American Chopper.  I admit, I enjoy watching people bring in treasures they found in the attic find out they have an authentic John Hancock of John Hancock or the gullible people learn that the 1675 flintlock pistol they got from a guy at a flea market was a Chinese reproduction.

The second show was Shark Tank, the American version of a British show called Dragon’s Den (also available on BBC America).  Shark Tank gives various Ralph Kramden-types the opportunity to pitch their business ideas to five very successful business-people who then compete for the right to buy a stake in the start-ups.   As an avowed capitalist, I enjoy seeing the ideas that these entrepreneurs cook up and then watching the multi-millionaires fight to see who gets a stake in the business.

But the disappointing, and somewhat shocking, aspect of both shows is the abject inability of most these people to negotiate.

On Pawn Stars, the people are interviewed by the producers before they enter the shop.  They describe the article they are trying to sell and are asked what they would like to get for it.  Some know roughly what the item is worth and this is invariably the exact same amount they tell Rick the pawn shop owner when he asks what they want for the item.  At this point, they’ve lost.  From there, Rick only goes down with this offer and the usually dejected seller reluctantly accepts 30-50% of what they claim they wanted.

Now, they may be savvy and really got more then they expected to get, but something tells me that people who try to sell an authentic Civil War saber worth several thousand dollars to a pawn shop and not a private collector might not be the shrewdest of the shrewd.

Likewise, on Shark Tank, the minnows either think they are setting an anchor point or have no idea how to value their business.  Most massively overvalue their business and offer a minuscule equity stake. A recent example saw a woman ask for a six figure investment in exchange for only 25% of her business.  She therefore “valued” her company at more than $400,000.  In the last two years, however, she had only $18,000 in gross sales.  By standard business models, her business might have been worth $40,000.  The only successful minnows are the ones who realize that having 49% of a successful business is better than 100% of a failing one; or are the ones that put forth a more reasonable number at the start.  The others walk away mumbling, “I’m going to show them…..”

As someone whose job it is to facilitate negotiations, I can’t say that I am surprised.  I run into both sets of bad negotiators all the time.   I guess I should be happy to a certain extent, because if people really understood how to objectively value their claims, express their needs and interests clearly and effectively and negotiate on their own, I’d be out of a job.

Am I THAT Out of Touch?

In the past few weeks, I’ve run into some head scratching cases in the small claims court.  Cases that make me wonder, “Have I completely overestimated what the average lay person understands about the law?”

I’m not talking about the Rule Against Perpetuities, ERISA, or arcane sections of the Tax Code.

I’m talking about one of the most basic aspects of our legal system. A foundation of what used to be our capitalist economy – the corporation.

The first head-scratcher case involved a young man who brought his car to a well known, franchised auto repair shop to have a part replaced.  The part was either incorrect or incorrectly installed and the engine blew. This really isn’t important to the story other than to illustrate that he had a legitimate claim.

Care to take a guess who this guy sued?

“The parent company of the well known, franchised auto repair chain?” Nope.

“The franchisee corporation that owns the local auto repair shop?“  Guess again.

“God?“ Nah.

He sued the Service Manager.  Personally. The hourly employee who stands at the front desk, greets customers, fills out orders and invoices, passes car keys to the grease monkeys and accepts payment.  The guy wasn’t even an owner. To make matters worse, when the case came to trial, the Service Manager was no longer the Service Manager.  He was unemployed.

I called impasse within 5 minutes of being handed the case because I was not going to even suggest that the ex-Service Manager make a settlement offer.  It seemed ridiculous.

I also tried to explain to the aggrieved customer (who looked like he had a case, since the part they installed was for the same make vehicle but apparently a different model) why the case would go back to the judge and what might happen there.  I asked him,. “If you went to Home Depot and bought a drill, and that drill caught fire when you plugged it in, would you sue the cashier?”  All I got in return was a blank stare.

Is the corporation really that difficult a concept for the average person to understand?

What about insurance?  Everyone is supposed to have it.  Shouldn’t everyone have a vague idea how it works?

Yesterday, I was handed another head-scratcher case.  We never even got to the mediation room.  As I walked from the Courtroom to the mediation room, I read the file.  Turns out that the plaintiff’s car was somehow damaged and the plaintiff filed an insurance claim.  The insurance company contracted with an independent adjuster/appraiser to assess the damage.  For whatever reason, the insurer then denied the claim.  That really isn’t relevant to the story.

Care to take a guess who this person sued?

“The person who caused the damage?” Nope.

“The insurance company?” Too easy.

“The U.S. Government, which is well on it’s way to nationalizing the banking and insurance sectors?“  Guess again.

The plaintiff sued the independent adjuster, because, as the plaintiff put it, “He refuses to fix my car.”  Ninety seconds with the adjuster confirmed that he wasn’t in any way responsible for the damage, wasn’t an employee or representative of the insurer and had no settlement authority.   I didn’t even bother trying to explain this to the plaintiff, who kept telling me, in subtle variations,  “That man won’t fix my car.”  I sent them right back to the Court.

Is insurance such a foreign concept?  Is the concept of “independent contractor” that complex?  Didn’t this person speak with an insurance agent or broker?

Am I that out of touch with what the “average” lay person knows and understands?

Positive Economic News Blog

soapbox

As a follow up to my Thanksgiving post, I wanted to give you the link to the source of much of the information I posted: Positive Economic News.

I know this isn’t an economic blog, but one of the major benefits of mediation is the full and free exchange of information necessary for both sides to make informed decisions. The mainstream media is utterly lacking in this regard.

The major US TV networks lack balance and objectivity on most all issues, including the economy, and do not present a full and free exchange of information.  If you really want to know what is going on, if you want to have all the information necessary to make informed decisions, you need more information than what they are feeding you.

/soapbox

Are We a Society of Procrastinators?

Abraham Lincoln once wrote “Leave nothing for tomorrow which can be done today.” But it seems like most of the people with whom I deal follow Mark Twain’s aphorism,”Never put off until tomorrow what you can do the day after tomorrow.”  This applies to both professional and pro se alike.

Despite the fact that the mediation coordinators of the various court-referred programs send out the Order scheduling mediation with a minimum of three weeks notice, I don’t know how many phone calls I get from parties seeking to reschedule or cancel court-referred cases the day/night before the mediation.    That is, if I get a call at all.

The only explanation I can think of is…………………

Eh, I’ll finish this later.

No respect, I tell ya. NO respect.

We are a TV household.  My wife works in television and we both enjoy a wide variety of shows, including 30 Rock, the Emmy-winning TV show about the behind-the-scene action of a fake TV show.

Last night’s episode revolved around dispute resolution, in a roundabout sort of way.  I say that because much like Seinfeld, there is less of a plot than there is a “theme” to each episode.   Jenna , the co-star of the show within the show, was feuding with her co-star Tracy because Tracy refused to pay Jenna for her voice-over work on his pornographic video game.  Yes.  You read that correctly.  The Executive Producer, played by Sarah Palin Tina Fey, orders the stars to mediation.

Of course, the mediator was made out to be spineless, ineffective, poorly dressed, and transgender.

In the end, the dispute was resolved by an irritatingly peppy 12-year old whom Tina Fey believed to be Oprah because she was hopped up on “Comanapracil,” a prescription sleep mediation which warns of side effects like “dizziness, sexual nightmares and sleep crime.”

So, to recap, mediators are ineffective tools in short sleeved dress shirts and any dispute can be resolved be a peppy 12 year-old whose only qualification was middle school Vice President.

No respect, I tell ya.

My $0.02 on the “corruption” of the civil justice system by mediators.

In his most recent post, Geoff Sharp calls for further comment on Prof. Peter Murray’s polemic, The Privatization of Civil Justice, published in the summer edition of the American Judicature Society’s Judicature magazine.  I have not yet had the opportunity to read the entire article, but Geoff quotes liberally here, and Vickie Pynchon discusses it at length here and here.

Based on these excerpts, it appears that Murray claims that private dispute resolution mechanisms such as arbitration and mediation erode the civil justice system because arbitrator and mediators handle cases in a self-serving manner without the benefit (?) of any oversight.

I had written a lengthy piece excoriating Professor Murray’s article (and to an extent, Professor Murray), which I now realize is quite unfair, since I have only read the excerpts published (well within the bounds of Fair Use) by Geoff.  So, I will throw my support behind Vickie, whose thoughtful commentary my own comments echoed.  I will simply say that I am deeply offended by his characterization of mediators as money-grubbing whores who would prostitute their beliefs solely to generate repeat business.

Why bother with mediation when you have the Internets?

Tomorrow, I start scouring the want ads in our local legal daily newspaper because a new website has rendered my mediation skills obsolete.   SideTaker.com is certain to revolutionize dispute resolution in the age of Web 2.0 and the Internets.

Fighting with your significant other? Who’s right and who’s wrong? Air it out anonymously while letting people of the world give you advice and make the decision on who should apologize.

I mean, isn’t dispute resolution all about proving you’re right and they’re an idiot?  And who better than to determine who “should apologize” than random strangers with nothing better to do than eat Cheetos in their underwear and surf the web?  I’m sure they’re even running the website through Google’s useful Klingon translator. Because we know how pesky it is to have read things in English.

And listen to this great advice:

Your girl is a skank. Move on and put this trailer trash skeezer out of your mind.

Stay with each other and never have kids. Remove yourselves from the gene pool.

[That woman] is crazy. Run for the hills, dude.

I can’t compete.  Wish me luck, because the legal job market is terrible.  I wonder if Starbucks is hiring?

Hat tip to Above the Law and Legal Blog Watch (where I saw it first), but also a nod to my friend Diane Levin, who scooped me 3 days ago.

Dyslexic UK MEDICAL student claims multiple answer test unfair.

From Overlawyered.

You know what I think is unfair (at least to you and me)?  DYSLEXIC DOCTORS!  It is bad enough when apparently normal doctors confuse a prescribed 10cc dose of Heparin with a 10,000cc dose.  I’m sorry, but for some reason this one steams me.  This woman may have a 200 IQ for all we know, but I sure as hell don’t want her as my doctor when I come into the ER with massive trauma and the intake chart looks like the eye chart to her.  And the UK medical boards aren’t preventing her from becoming a doctor, they simply aren’t giving her an advantage over the other students who have to take the multiple answer exam.

Why Nobody REALLY Reads Law Review Notes.

About a month ago, Prof. Moffitt of ADR Prof Blog suggested that I read Erica Fox’s Harvard Negotiation Law Review Note “Alone in the Hallway”.   After some serious Googling could not locate the article, one of his kind readers posted a link to a copy (See Comments).

It starts out as an interesting piece.  A lone law student roaming the halls of the landlord-tenant court of a major metropolitan city, privy to otherwise confidential conversations between landlords, their lawyers and the poor tenants being sued for eviction.  High brow discussions of negotiation theory and self-agency and how the process is breaking down.

Then, Ms. Fox wrote, and I quote, because I’m not sure I could make this up:

Agentic legitimacy also helps negotiators to find and use their voices in actual negotiations.

Agentic legitimacy?  I actually let out an audible “HUH?” while, coincidentally, sitting in a hallway waiting to mediate small claims cases.  She actually used this “word” three or four times.   After a long search, it appears that while this word does not appear in any recognized English dictionary, it is used in certain types of social research.  This is not a word.   It is completely fabricated.  Like incentivize or proactive. But worse.

Oh, and to make matters worse, in a parenthetical for a string citation, she wrote:

Claiming ADR preferences harmony over justice . . .

Preferences? Sure.  Its a noun.  It means something preferred over another.   But how can ADR preference something?  Nobody at the prestigious HLS caught this?  It sounds like something Mike Tyson would say.  “I preference the ludicrousity of agentic legitimation.”

Frankly, I couldn’t finish the article.  It seemed like a treatment for an episode of 48 Hours or Dateline NBC, not a scholarly article.  Skimming to the end, I saw that the author concludes:

Tenant negotiators do not exercise self-agency effectively . . . This phenomena occurs generally when disadvantaged people negotiate in formal settings.

Economically disadvantaged, and poorly educated people unfamilair with the legal process fail to assert themselves and get taken advantage of in court?  Next you’ll tell me wrestling is fake.  This is why nobody really reads law review articles.  (No offense, Prof. Moffitt)