Persuasive Litigator

Don't Create Your Own Cliff

By Dr. Ken Broda-Bahm: 

As the year winds to an end, all the attention is on the "fiscal cliff" and whether there will be a last-minute save or whether, when we "Ring in the New" on January 1st, we will be ringing in large tax increases and drastic cuts to Federal programs. As of Monday morning and this post's press time, there is a vote to be scheduled on the administration's plan, but still significant distance between house Republicans and the President. Adding to the frustration is the fact that Congress itself loaded the gun and set the trigger, creating this cliff as a consequence of the contentious debt ceiling debates in Summer of 2011. That makes the current countdown a "politically manufactured crisis" in a real sense. Regardless of whether it comes to pass tomorrow, the levels of delay and dysfunction shown by our politicians in creating and addressing the cliff has tried the nation's patience, tanked congressional approval ratings, and jeopardized the confidence in the U.S. and world economies. 

A different way of viewing the current predicament is to see it as a settlement deadline gone awry. Much like the deadlines and sunsets that litigators use when trying to resolve a legal dispute, the idea is to create urgency by manipulating the circumstances. But in some cases, like the fiscal cliff negotiations, the manipulation is artificial and the negative consequences are entirely avoidable. The point? Cliffs have consequences, and manufactured duress may not be all it's cracked up to be. In this last-of-the-year post, I'll take a look at some research and experience on deadlines, as well as the general question of whether deadlines tend to help or hinder settlement.  

Consider the Jury's Political Role

By Dr. Ken Broda-Bahm: 

Those of us who work in the business of preparing for trial and going to trial are used to seeing the jury as a tool of dispute resolution. We're less used to thinking about the jury's broader political role. Apart from the speeches given by judges at the start of voir dire, we don't often think of the jury as that vox populi serving as an essential and constitutional check on the power of government and large corporations. But it is that sweeping vision, and not the more mundane task of providing closure for cases, that serves as the main rationale for the United States being unique among countries in using juries in civil disputes. We defend the right to request a jury in civil contexts because that right seems to be a critical part of our democratic heritage, and indispensable for an active citizenry. 

But does a civil jury continue to serve that vaunted role as a political institution? According to a  recent article appearing in the Emory Law Journal (Solomon, 2012), the answer is, "not so much." William & Mary law professor Jason Solomon takes a hard look at the civil jury's well-worn rationale from the perspective of democratic theory, and concludes that the jury falls short of many of its loftiest ambitions because they're generally focused on private torts and are as likely to be anti-plaintiff as they are to be anti-corporate. In addition, Solomon argues, a reliance on popular judgment undercuts rule of law by providing no record or precedent (since juries give no reasons) and leads to less overall predictability. There are clearly some responses to Solomon's arguments, but I'll leave it to the democratic theorists to carry on that debate. However, the article got me thinking: For those working at the pragmatic end of jury decision making, what would be different if, instead of just seeing juries as tools of formal dispute resolution, we took the jury's political role seriously. Moving from theory to practice, this post looks at that question.

Negotiate, Mediate (and Testify) Eye to Eye

By Dr. Ken Broda-Bahm: 

Have you ever seen an argument get somewhat bitter or personal in an online forum or via electronic communication? That is a little like asking, "have you ever visited an online forum or used electronic communication?" When we're safe behind keyboards, or to a lesser extent, on the telephone, arguments can escalate more than they would in person. For those who study communication, the theory has been that this heightened tendency toward becoming nastier and more aggressive is due to a subjective feeling of anonymity or invisibility when one is arguing without in-person communication. But based on a recent Israeli study, the cause may be something simpler than that: a lack of eye contact. 

Look your audience in the eye: It is one of those staples of public speaking advice, and everyone should know it by now. But if you visit any courtroom and look at how many witnesses are not just glancing but maintaining eye contact with a jury or a judge, then you'll see that this advice is more popular than it is practiced. And if we take a step back in the process and look at the critical discussions that will determine whether a case settles early, late, or not at all, then that opportunity to literally see eye to eye is often displaced by emails, voice mail messages, or letters. The research suggests that we would be more likely to find a favorable and empathetic audience if we seize on in-person meetings whenever possible. This post will take a look at the new study, and discuss how its results should influence the way we talk about cases prior to trial, as well as the way we testify at trial.  

Don't Forget About Happiness: The Settlement Series, Part Four

By Dr. Ken Broda-Bahm: 

If we don't normally think of "happiness" when we think of mediation, it may be because a good settlement is generally not something that makes all the parties happy. Instead, it is more often something that makes the parties equally unhappy. At the same time the notion of happiness, or at least relative satisfaction, has an important role to play in determining when cases settle. In the previous three posts in this series, I've written about the psychological obstacles to settlement, the dangers of brinksmanship, and the role that mediators can play. For this final post, I want to end on a positive note by looking at a few of the ways happiness can impact the process. 

Settlement is above all a negotiation. But apart from the grim calculation of economic value at the end of a legal dispute, there are also the less tangible measures of satisfaction: Do the parties feel validated, respected, and vindicated?  Are they happy? The term itself may seem a little fluffy, I admit. But proving that there is nothing that determined academics can't turn into a discipline, the study of happiness -- the field known as "hedonics" -- is receiving increasing attention. And it is a field that is worth thinking about for litigators who focus on ending their cases well, most often in the form of a mediated solution that the parties can live with. This post takes a look at some of the research on happiness that bears most heavily on civil settlement, pairing that with ideas on some ways litigators can increase their clients' satisfaction with the result. 

Know When to Give Your Mediator a Voice: The Settlement Series, Part Three

By Dr. Ken Broda-Bahm: 

Mediators have a delicate job. They know it isn't their role to praise or blame a party. It isn't their role to take sides. To do so means sacrificing their credibility and their effectiveness along with it. But the tougher question is whether a commitment to stick to facilitation, rather than advocacy, also entails a commitment to avoid a proposal of their own. A "mediator's proposal" is a third option that is sometimes offered by the neutral party in order to break an impasse and facilitate a solution that makes both sides comfortable. But it is a controversial idea. Some say it is never appropriate and the mediator ceases to be a mediator when they begin to argue for their own solution. Others say that it can be a practical aid in bringing parties to a settlement that would otherwise be out of reach. 

Intrigued by this question of whether a mediator should ever advocate, I searched for research or opinion on it and there isn't much. In fact, the best material I found -- with the greatest diversity of perspectives, reasons, and examples -- isn't an article at all, but a very active discussion in a LinkedIn group. At the end of last year, Austin mediator and attorney Ben Cunningham posed a question to the Alternate Dispute Resolution (ADR) Professionals group entitled, "A New Hornets Nest: What Are Your Thoughts on a 'Mediators Proposal' as a Tool to Use When the Parties Have Been Unable to Reach an Agreement?"1 In a total of 41 comments from 35 individuals (so far), the responses to that question have ranged from "yes, often," to "sometimes," to "no" and even "hell, no." Drawing from the ideas shared by the many professionals in this discussion, this post aims to boil down a list of specific conditions that parties could use to determine when their mediator should have a voice in the form of a mediator's proposal.