Fairness And Charity As Value Propositions

February 5, 2009 · Filed Under Mediation - General · Comment 

 By Dave Finch

Successful negotiators come in various packages, but a nearly common denominator of this species is concern for the appearance in any proposal of fairness, or at least, that any appearance of unfairness be diminished as much as possible.  Fairness or the perception of fair treatment can be hugely important whenever one side to a controversy attempts to sell his proposed resolution to the other.

Exactly why this is so may as well as any other explanation be attibuted to primordial needs resulting in a conditioned response.  Sharing of food and resources by our primitive ancestors made economic sense.  If my cousins are healthy and motivated they will do their share of the hunting and gathering and battling of hostile tribes.  Over time these practices might have developed a moral sensibility.  He who shares, if not exactly equally, at least in a way perceived as sufficiently equitable, is righteous and trustworthy and deserving.  I rarely mediate a case without seeing this heuristic at work.  There is usually an emotional reaction to any proposal that seems not only inadequate to the goal of resolution but “unfair” in concept, and the negotiation is often set back and troubled until the unfairness wrong appears to have been righted.

 Relatedly, the opportunity to be charitable is also a value proposition.  Studies have shown that the brain activity that occurs in relation to  performing a charity is not one whit different from that which occurs when we get paid for completing a task.  Adam Smith put it this way in his The Theory of Moral Sentiments:  “How selfish soever man may be supposed, there are evidently some principles in his nature, which interest him in the fortune of  others, and render their happiness necessary to him, though he derives nothing from it except the pleasure of seeing it”.

This feature of human nature will often have implications in negotiation.  A person being asked to pay or otherwise give up something might be  persuaded to see the proposal not as greedy unfairness on the part of the other, but as an opportunity to do a charity to meet a legitimate need.  To the extent this might be possible it certainly depends upon tactics that include demonstating concern for the other party and his interests, and an earnest search for the fairest outcome.  In other words, the communication process will have to be infused with good will.  Wow!  Has anyone ever seen this happen before, the skeptic oppugns?  The answer is, yes.  Perhaps not frequently, especially when anger and resentment have been provoked in litigation.  But, the negotiator should not rule out the possibility of taking advantage of this humanly natural tendency. 












“Touchy Feely” Mediation Ain’t

December 11, 2008 · Filed Under Mediation - General · 7 Comments 

A number of years ago we often heard mediation described by case hardened negotiators as “touchy feely”.  Over these years a probable majority of those cynics have come around to an appreciation that mediation  need not be anything of the sort, and in fact, as practiced in court connected cases around the country, it nearly never is.  Mediation by trained and experienced litigation resolvers has been widely embraced as second only to direct negotiation in which the disputing sides are willing to communicate in a productive dialogue aimed at finding resolution.  The benefit of mediation is of great value in all situations where the skills of the mediator can help to establish a constructive communication process, and help the parties minimize the effects of those human biases and heuristics that interfere with that process.

Even in community mediation where volunteers work with unrepresented parties to help them understand and find solutions to their conflict, a realistic and businesslike negotiation is generally more effective than merely “making nice”, and court connected mediations are arrayed along a spectral line from friendly to fist in the face toughness, but with the vast majority centered in no nonsense negotiation.

In a well written article published at www.mediation.com titled “Not Even Wrong”, Wayne State ADR teacher and provider, Barry Goldman calls attention to the typical textbook blather about peaceful mediators bringing peace into the room and such nonsense, and suggestions that untrained mediators can be sufficiently effective because there is something about the process, separate from technique or theory, that explains positive results.  His argument is that just because there is value in the process, does not mean that mediators need merely be pure and “at peace”.   He compares we modern mediators with early physicians, some of whom got good results and some not so good,  with hit and miss theories of the science of curing illness.  “All the vast literature on ‘mindfulness’ and ‘presence’ and inner peace, the advice that mediators need to meditate and center themselves before and during their mediations, is deluded in just the way that the physician is deluded who fasts and prays instead of washing his hands.”

Well said, Barry.

Where the Court of Appeal Went Wrong in Thottam Case

September 28, 2008 · Filed Under Mediation - General · Comment 

As preparations are underway on a petition for review to the Supreme Court of California, and having had a chance to read the appellants’ petition draft,  this Nevada County mediator is able to provide a little more insight into what went wrong and why the Supreme Court of California (I never refer to it by the demeaning name favored by cooler cats: “the Supremes”) should review and reverse the 2nd District Court of Appeal in the consolidated matters of In re Estate of Thottam, and Thottam vs Thottam, Case No. B196933, (2008 Daily Journal D.A.R. 10,570)  See earlier blog on Thottam.

During the mediation the parties reached what one of them would claim was an agreement and the others that it was not intended as a final or admissible agreement (a handwritten chart assigning certain assets to each of the parties), but was subject to further consideration and only potential inclusion in a final and formal written agreement.  (It is only a distraction that the party claiming it was a done deal was found to be not believable and dishonest by the trial judge, and that the appellate court thought he had been prejudiced by the exclusion of the chart.)  The trial judge refused admission of the chart into evidence on the grounds that admission was barred by the confidentiality provisions of Evidence Code 1119 and did not meet any of the exceptions of Section 1123.  He refused to regard a pre-mediation agreement that said the proceedings would be confidential except as necessary to enforce an agreement reached in the mediation as sufficient compliance with the statute.  That was a sensible conclusion as you will see.

Subsections (a) and (b) of that statute requires that to be admissible an agreement reached in mediation must contain language to the effect that it is to be binding and/or admissible in evidence.  Such language would make it clear that the parties intended an identifiable document to be free of the confidentiality constraints of Section 1119.  It would not make sense to hold that a pre-mediation agreement could satisfy those two subsections.  However, subsection (c) provides that “the” agreement can be admitted if all parties to it expressly so agree.  The Court of Appeal held that in view of the fact that subsection (c) does not contain a “time requirement”, the pre-mediation language was operative.  Bear in mind that nothing is said in the statute about a pre-mediation agreement clause, nor should it have.  Before the mediation there is little likelihood that the parties will all have agreed on exactly what an “agreement” will look like.  It is only after mediation that the question can be sensibly asked and answered:  “Has an agreement been reached and documented”.  This will be ascertained easily if either subsection (a) or (b) has been invoked by inclusion of the “binding” or “admissible” language.   An alternative way the existence of an agreement can be ascertained is if per subsection (c) “all parties to the agreement expressly agree” to its admissibility in evidence.  The near obvious and only logical interpretation of Section 1123 is that the legislature gave the parties an easy way to make their agreement admissible, but also protected the situation where all parties wanted it to be admissible even though they had failed to invoke (a) and (b).

The Court of Appeal here has read another alternative into the statute, to wit, if the parties agree in the pre-mediation agreement that the agreement reached in mediation shall be enforceable and free of the confidentiality provisions, then it will be admissible.  But, what does “it” refer to?  What is “the” agreement”?  How does the court ascertain whether an agreement was in fact reached?  The inexorable answer to each of these questions is that there is only one way, and that is to violate the very law and rule of confidentiality it is supposed to apply!  How can a court admit testimony of what went on in a mediation, what was intended by a writing created in the course of mediation, or whether all of the parties agreed that in its present form it was to be admitted in evidence and enforced, without violating Section 1119, which states clearly that neither oral communications within a mediation or such documents created in the course of it are admissible.  The California high court has consistently ruled that there are no exceptions that permit delving into the substance of mediation communications for such purposes.  The Court of Appeal in this case not only ignored its superiors, but the rational interpretation of the statute as well.