Jump to Navigation
Subscribe to this blog’s feed

LA Alternative Dispute Resolution Law Blog

The Five Stages

In 2000, when I took my first mediation training class, my teacher discussed the five stages of loss and grief first proposed by Elisabeth Kubler-Ross in her 1969 book, On Death and Dying. The particular training course I was attending focused on divorce mediations and so the stages were relevant because of the loss and grief suffered by the parties in a divorce.

The five stages are denial and isolation; anger; bargaining, depression and acceptance.

Denial: Our first reaction to hearing something bad is to "deny the reality of the situation." We try to rationalize the situation away.

Anger: As the reality of the situation slowly sets in, so does the pain. We are not ready to deal with it and become angry over the situation

Bargaining: We all like to be in control and being confronted with a situation over which we have no control upsets us. So, we try to gain control by bargaining, hoping to postpone what we know will surely happen.

Depression: We begin to absorb the reality of the situation and become filled with sadness and regret, preparing ourselves for what we know is soon to occur.

Acceptance: We accept what is occurring and cope with it. We allow ourselves to feel the feelings and the emotions associated with the loss so that we can live through it and perhaps past it and move on.

(http://psychcentral.com/lib/the-5-stages-of-loss-and-grief/000617 )

While the above stages were proposed with "death and dying" in mind, I have found (as a mediator) that not only do they apply to a divorce, but to any sort of litigation. When a dispute arises, at first we deny it is happening, and then we get angry about the situation, trying to bargain our way out of it, eventually getting depressed over it and then accepting the situation and attempting to cope with it by attending mediation, with the hope of settling it.

I mention this topic because it hits home. Last year, we decided to remodel our condo and hired a general contractor to do so. After too many months for it to be completed, the project is essentially done. But, alas- while we have paid him for all of the work, he has failed to pay some of the sub contractors.

When we first learned that some of the sub contractors had not been paid, we did not want to face the reality of the situation. Not that we were in denial that they had not been paid; we just did not want to deal with it and believed that it was simply not "our" problem. We were in denial that it was "our" problem.

Then, anger slowly set in; as lawyers we both soon realized that under the mechanics lien laws in California, even though we have paid the general contractor, we could still be on the hook to the sub-contractors. We could have to pay twice! Boy... were we angry... it is not printable what we were thinking or cursing.

So, next came the bargaining. I called the sub contractors in question in an attempt to work out a deal to get them paid, to prevent them from filing liens against our condo. To some extent, I was successful. But, they still wanted to be paid... and soon. And our contractor was flat broke because he had used our money to pay on another job and that other job now refused to pay him. He could not even cover a check for a few hundred dollars.

So depression set in. We had to cover these debts, and now twice and we had to take action against the contractor. We had every indication that he would not have the money to pay these people anytime soon and so could not simply wait out the situation, hoping and praying for the best ("denial"?).

With sadness and regret, I contacted the contractor's surety company (In California, each general contractor is required to have a surety bond.) and asked for a claim form. I filled it out and with great reluctance and after much discussion with my husband about whether we should do it, I hit the "send" button to e mail the .pdf version into the bonding company. The contractor is a nice guy, but as my husband says, we are not his bank.

I accepted the situation ... we are on the hook for this money and we do not want to pay twice. As much as I do not want to go against the bond, we see no alternative as the sub contractors insist on being paid sooner rather than later and the law says we are- at bottom- responsible.

The five stages... they apply to everyday life.

.... Just something to think about.

If you enjoy this blog, and want to receive it weekly via RSS Feed, click on the "Subscribe" button immediately above the blog!

If you would like to receive this blog automatically by e mail each week, please click on one of the following plugins/services: http://www.shootthebreeze.net/blogalert/index.php or

http://blogtrottr.com/ or

http://beta.peekfeed.com/

and for the URL, type in my blog post address:http://www.pgpmediation.com/blog/atom.xml and then type in your e mail address and click "submit".

"Puffing" and the California State Bar

In 2006, the American Bar Association issued an ethical opinion- ABA Formal Ethics Op. 06-439 entitled A Lawyer's Obligation of Truthfulness When Representing a Client in Negotiation: Application to Caucused Negotiation. At issue was whether an attorney has to be as truthful in a caucused mediation as she is obliged to be during a negotiation in general. The Ethics Committee concluded yes.

The California State Bar now proposes to issue its own ethical opinion on the subject of truthfulness in negotiation. It has proposed Formal Opinion Interim No. 12-0007 which states the issue as follows:

When an attorney is engaged in negotiations on behalf of a client, what conduct constitutes permissible "puffing" and what conduct constitutes improper false statements of material fact?

It summarizes:

Statements made by counsel during the course of negotiations are, generally, subject to those rules prohibiting an attorney from engaging in deceit or collusion. (See Business and Professions Code sections 6068(d) and 6128(a)). Thus, it is improper for an attorney to make false statements of material fact during the course of a negotiation. However, statements about a party's negotiating goals or willingness to compromise may include allowable "puffery" provided those statements do not contain false statements of material fact.

(http://www.calbar.ca.gov/Portals/0/documents/publicComment/2014/2014_PuffinginNegotiations.pdf )

The opinion then provides different factual scenarios (in the context of an automobile accident), occurring at a "settlement conference" (rather than mediation) such that mediation confidentiality does NOT attach.

In the first example, the plaintiff's attorney asserts she has an eyewitness which will testify that defendant was texting while driving and so is totally at fault. In truth, the attorney has no witness. As you might guess, the authors of the proposed opinion state that this constitutes a material misrepresentation, not "puffing", and so is not permissible.

In the second example, again at a settlement conference, the plaintiff attorney asserts that her client's wage loss claim is $25,000 more than the client actually makes. The attorney makes this statement, knowing that the settlement officer will convey it to the other side.

Again, the opinion deems this to be a material misrepresentation, and not permissible.

The third example is seemingly "puffing". In a separate conversation between client and attorney only, they decide what is the "bottom line" that plaintiff will accept. However, they tell the settlement officer a higher number as the "bottom line". To the authors of this proposed opinion, this "overstatement" of the "bottom line" is not an ethical violation: if anything- it would be a breach of the attorney client privilege to reveal it.

In the fourth example, defense counsel represents that the insurance policy is $50,000 when in truth it is $500,000. As you may suspect, the authors view this as an intentional misrepresentation of fact, and thus impermissible.

In the fifth example, defense counsel advises that her client is prepared to litigate, and if she loses, to file bankruptcy. The authors of this proposed opinion waffle on this example, stating that it is all a matter of present intent. If defense counsel made such statements knowing full well that her client does not qualify for bankruptcy protection, then making such a threat to gain a negotiating advantage is impermissible. However, if the defendant is indeed considering the bankruptcy option at the time, then to state so is a permissible negotiating tactic.

The final example is muddled. The matter does not settle at the settlement conference and so the parties decide to continue it for a month to provide time to exchange information regarding plaintiff's medical expenses and wage claim. During that month, plaintiff obtains a new job. Recognizing that this will affect her wage claim, plaintiff instructs her attorney not to tell the other side about it "at the upcoming mediation" (sic?). The plaintiff's attorney pushes to have the settlement conference session occur the day before plaintiff starts her new job so that technically, Plaintiff is still unemployed. The authors of this proposed opinion finds two violations: counsel is suppressing a material fact (that her client has just gained new employment) and the attorney has been asked to take part in a cover-up by not disclosing this fact of new employment. With respect to the latter, the authors state that the attorney must advise her client that the attorney cannot do this.

Thus, the opinion concludes, like the ABA Formal Ethics Opinion, that:

Attorneys are prohibited from making false statements of material fact, including during the course of negotiating with a third-party. However, attorneys may engage in permissible "puffery" during negotiations; "puffery" may include statements regarding a client's negotiation goals or willingness to compromise. Engaging in "puffery" during negotiations does not constitute making a false statement of material fact. (Id.)

To me, the opinion does not really clarify anything. There is a very fine line between "puffing" and "misrepresentation" and to many, the difference lies in the eyes of the beholder.

During mediation, it is often difficult, if not impossible, to tell when a party is merely "exaggerating" versus outright lying. Sometimes the parties, themselves, cannot even tell the difference. Many times, I, as a mediator, cannot tell: I do not know when or where to draw that line.

However, the real issue, is not whether a party is "puffing" but whether I or any other mediator am being given the critical information necessary to assist the parties in meeting their interests and goals and thus to resolve their dispute. A party's failure to be open and candid with me or any other mediator may not only be improper (according to the Ethics Committee), but may lead to the possibility of overturning a settlement because it was based on false facts. Unlike the ABA Formal Opinion which is couched in terms of mediation and thus includes "mediation confidentiality", this California proposed opinion is couched in terms of a "settlement conference" to which "confidentiality "does not attach. Thus, unlike a settlement reached during mediation, a settlement reached during a settlement conference can be overturned; the alleged false facts or intentional mispresentations leading up to it can be admitted into evidence.

I am not sure of the value of this proposed opinion. The state bar is accepting comments through May 19, 2014. (http://www.calbar.ca.gov/AboutUs/PublicComment/201402.aspx)

.... Just something to think about.

If you enjoy this blog, and want to receive it weekly via RSS Feed, click on the "Subscribe" button immediately above the blog!

If you would like to receive this blog automatically by e mail each week, please click on one of the following plugins/services: http://www.shootthebreeze.net/blogalert/index.php or

http://blogtrottr.com/ or

http://beta.peekfeed.com/

and for the URL, type in my blog post address:http://www.pgpmediation.com/blog/atom.xml and then type in your e mail address and click "submit".

Thinking outside the Box

My dog Cookie loves to play catch (or more aptly, I throw the ball and she chases it!). Shortly after we got her, one of my neighbors told us that on one side of the Mormon Church (2 blocks away) was a great grassy side yard, more or less fenced in, that everyone uses to play catch with their dogs. (Unfortunately, the city has not created a decent sized dog park in which to play catch.) So, we started taking Cookie there, and she loved it. We would have her run around for 30 minutes or more chasing up to one hundred pitches. The yard even had a water faucet from which she could take a quick drink when needed. Needless to say, when she got home, she was "dog tired" and so would collapse on the tile floor and go to sleep.

Well, a few weeks ago, the Mormon Church closed the side yard by putting yellow tape across the entrance. I assumed it was so it could plant grass, or to re-seed the yard. (Undoubtedly, the parishioners knew of the ball catching because they would see not only me but others out there with our dogs on Sundays or in the evenings, and so knew why the grass was slowly morphing into dirt and mud.)

So, for a few weeks, we could not play ball. No doubt, Cookie wondered why we stopped going there... but I had no way to explain it to her.

Then, last weekend, the yellow tape was removed. The yard was open again for ball playing!

So, last night, I took Cookie to play ball again. The grass was fresh, and green and new.

I started throwing the ball and she ran after it with glee. She was having a wonderful time.

At one point, I threw the ball and it seemed to careen off of a turtarrier ("The concrete thing that is at the end of a parking spot, sometimes also called a parking block or parking breaker") (and into the shrubbery just above it and along the side of the wall. Cookie- even though as an English springer spaniel- is a hunting dog- could not find the ball. So, I stopped the game and started looking in the shrub for the ball. I spent many, many, minutes looking in that shrub- under it, on top of it, in it, around it, over and over and over again. I even searched in the neighboring shrub- in it, on top of it, under it, over and over again. I kept looking over and over again in the shrubbery, absolutely certain that the ball had careened off of the Turtarrier and into the shrub. This search went on for 30 minutes... and I could not find the ball.

Then, it dawned on me- my "ah-hah" moment- that perhaps my assumption was wrong. Perhaps the ball did not careen off of the turtarrier and into the shrub but took a different path. It struck me, that if I could not find the ball after thirty minutes of detailed searching in the shrubs, I was looking in the wrong place! I have to start thinking outside of the box ... go back to the drawing board... re-analyze my assumptions... and perhaps try an alternative logic.

So... I thought .... suppose the ball, rather than going into the shrub after careening off the turtarrier, shot off in another direction.... perhaps down the parking lot or further along the pavement. I started walking down the parking lot and .... lo and behold, the ball was at the other end. What I thought had occurred (the ball careening into the shrub after hitting the turtarrier) had, indeed not occurred. My assumption was wrong! The ball had, in actuality, hit the turtarrier... and went flying some distance down the parking lot.

I grabbed the ball.... happy that I had solved the mystery and went home. But, it brought home to me what I always tell folks in mediation.... never assume or at least test your assumptions and it pays to think outside of the box. If what you have been doing up to now is not working, perhaps there is a reason for it... and it is time to re-evaluate your actions, to think outside of the box and try a different course of action.

.... Just something to think about!

If you enjoy this blog, and want to receive it weekly via RSS Feed, click on the "Subscribe" button immediately above the blog!

If you would like to receive this blog automatically by e mail each week, please click on one of the following plugins/services: http://www.shootthebreeze.net/blogalert/index.php or

http://blogtrottr.com/ or

http://beta.peekfeed.com/

and for the URL, type in my blog post address:http://www.pgpmediation.com/blog/atom.xml and then type in your e mail address and click "submit".

Seeing Is Better than Hearing (or Listening!)

Last week, I posted a blog about the difference between "hearing" and "listening" and how the latter is intimately connected to "active listening".

Well, it appears that while hearing and listening helps in everyday life, our senses of seeing and touching are more important! A new study reveals that our brain processes what we see and what we touch a lot better than what we hear. The old adage of "in one ear and out the other" may just be true.

Associate professor of psychology and neuroscience Amy Porembra and graduate student James Bigelow at the University of Iowa conducted experiments to study how the brain processes and recalls sounds vis a vis our other senses. What they learned is that "... we don't remember things we hear nearly as well as things we see and touch." (Iowa study at 1.).

To reach this conclusion, they conducted two experiments:

In an experiment testing short-term memory, participants were asked to listen to pure tones they heard through headphones, look at various shades of red squares, and feel low-intensity vibrations by gripping an aluminum bar. Each set of tones, squares and vibrations was separated by time delays ranging from one to 32 seconds.

Although students' memory declined across the board when time delays grew longer, the decline was much greater for sounds, and began as early as four to eight seconds after being exposed to them.

While this seems like a short time span, it's akin to forgetting a phone number that wasn't written down, notes Poremba. "If someone gives you a number, and you dial it right away, you are usually fine. But do anything in between, and the odds are you will have forgotten it," she says.

In a second experiment, Bigelow and Poremba tested participants' memory using things they might encounter on an everyday basis. Students listened to audio recordings of dogs barking, watched silent videos of a basketball game, and touched and held common objects blocked from view, such as a coffee mug. The researchers found that between an hour and a week later, students were worse at remembering the sounds they had heard, but their memory for visual scenes and tactile objects was about the same. (Id. at 2)

From these experiments, the researchers concluded:

Both experiments suggest that the way your mind processes and stores sound may be different from the way it process and stores other types of memories. And that could have big implications for educators, design engineers, and advertisers alike. (Id.)

It can also have BIG implications for conflict resolution. Without doubt, most disputes are created through miscommunication and/or lack of communication. With respect to the former, that communication may be verbal. To the extent it is verbal, we may not remember everything that was said, according to the above experiments. Indeed, think back to any verbal exchange- no doubt, you can't recall one hundred percent of what each participant said. You may not even be able to recall one hundred percent of what you said!

Perhaps this is why the wise person puts everything in writing as she knows her memory is faulty.

Or, to quote an old Chinese proverb: "I hear and I forget; I see, and I remember." (National Geographic at 4)

... Just something to think about.

If you enjoy this blog, and want to receive it weekly via RSS Feed, click on the "Subscribe" button immediately above the blog!

If you would like to receive this blog automatically by e mail each week, please click on one of the following plugins/services: http://www.shootthebreeze.net/blogalert/index.php or

http://blogtrottr.com/ or

http://beta.peekfeed.com/

and for the URL, type in my blog post address:http://www.pgpmediation.com/blog/atom.xml and then type in your e mail address and click "submit".

It Helps to Listen!

It Helps to Listen!

A few weeks ago, a colleague Esther C. Bleuel posted an article about hearing and listening, noting that the only thing these two concepts have in common is our two ears. As we know, "hearing" is not the same as "listening." To quote Ms. Bleuel, "...the purpose of listening is understanding, and active listening requires thoughtful attention to the meaning being conveyed."

Ms. Bleuel then asks the rhetorical question, "Why is listening important?" Her answer is simple: to feel connected and to have "authentic interaction" with others:

"Active listening leads to authentic interaction with others, often inspiring folks to explore their own attitudes and values. The idea is to think with others instead of for or about them in judgmental or critical ways." (Emphasis original) (Id.)

Why don't people listen? According to Ms. Bleuel, it is because of our lack of time and our attention spans. We think much faster than we speak and so become impatient when listening to others. This creates a gap of time allowing us to become distracted. Our brain races ahead to what we want to say in response before hearing everything the other person is saying.

As a result of our "poor" listening, (or responding without first truly listening to what the other person has said!), we will not truly understand the issue because we did not "listen to what they mean". (Id.) As Ms. Bleuel points out, "Conflict and misunderstanding often occur as a result of failure to seek accurate understanding of a situation." (Id.)

Obviously, the remedy is to give full and complete attention to the other person, focusing on what and only on what she is saying, and ignoring all distractions. "Try to understand the speaker's meaning before you think about your own opinions and take note of non-verbal cues like body language and tone... experience the message from the speaker's perspective" (Id.)

I focus on this topic of active listening because I conducted a mediation the other day in which there was no "listening", active or otherwise. Plaintiff made her demand in a separate session with me. When I attempted to discuss the facts and issues with Defendant, she was dismissive- not at all interested in the facts or reasoning behind Plaintiff's demand. Its basis simply did not matter. In response to Plaintiff's monetary demand, defendant advised she was offering a particular amount; that was all she had- there was no more and she would not consult with her client about the possibility of obtaining more. She had absolutely no interest in looking at the issue from plaintiff's perspective.

When I conveyed defendant's offer to plaintiff, she made a good faith attempt to negotiate by lowering her demand. Defendant's response was the same the amount- that was it!

It was a short mediation, and I am not sure why the parties even came to mediate. There was no "active listening" or even "listening" or negotiation. As a result, the next stop will be the courtroom.

One wonders at times, what makes people do what they do!

.... Just something to think about.

If you enjoy this blog, and want to receive it weekly via RSS Feed, click on the "Subscribe" button immediately above the blog!

If you would like to receive this blog automatically by e mail each week, please click on one of the following plugins/services: http://www.shootthebreeze.net/blogalert/index.php or

http://blogtrottr.com/ or

http://beta.peekfeed.com/

and for the URL, type in my blog post address:http://www.pgpmediation.com/blog/atom.xml and then type in your e mail address and click "submit".

"It's All about the Relationship, *&^#@! "

In 2000, I decided to move away from practicing law because I got tired of fighting with opposing counsel and being labeled and treated as the "bad guy" simply because I was representing an allegedly "bad guy". It seemed that civility and professionalism among lawyers no longer existed, and I and my clients were continuously lumped together as "hated and despised" individuals.

I recently conducted a mediation that brought home the value of professionalism and civility among lawyers. Indeed, the case would not have settled without it. The mediation contained two lessons: (1) make certain that what is being offered can be fulfilled; and (2) relationships among lawyers REALLY do matter.

The case was about an automobile which plaintiff  claimed was a "lemon" due to the myriad of times she had brought it in to the dealer for various and sundry repairs. Many of the complaints were resolved after one repair but there were others that were not. Some of them were noise related and others were not. So, plaintiff sued under California's Song Beverly Consumer Warranty Act, California Civil Code section 1790 et seq.

Plaintiff's initial demand was that the defendant manufacturer repurchase the vehicle. The manufacturer responded by offering minimal cash-$5,000 inclusive of attorney fees and costs, with plaintiff keeping the vehicle. Obviously, this did not sit well with plaintiff, and so I figured a joint session among attorneys only was warranted.

After that joint session, the parties traded numerical amounts, a few more times. As the day was progressing, and in an effort to perhaps skip a few steps and settle the matter sooner rather than later, Plaintiff's counsel wondered to me what was Defendant's ultimate authority. As I did not know, I had a candid conversation with the defendant's representative and counsel about how much they thought they could get from "headquarters" to settle the case. Right then, they advised that they had $9,000 but thought that if they made a telephone call they could get as much as $11,000. I asked if that latter amount was what they wanted me to offer and, and they said "yes"; they were confident that the folks back home would approve it.

So, I relayed this to plaintiff's counsel. After a few minutes of discussion with her client, counsel asked me to ask defendant to request $13,000 from "headquarters." I did so.

Defense counsel and the representative made the telephone call requesting the amount. Counsel then advised that the supervisor at "headquarters" would not budge even a penny off of the original authority of $9,000. Even when told that $11,000 would settle the case, (although plaintiff was hoping for $13,000), the supervisor absolutely would not budge.

What a dilemma! Defendant had just made an offer ($11,000) that it could not fulfill. Because of it, plaintiff's expectations had been pegged to this amount. To now tell plaintiff that defendant never really had that authority and had in actuality only $2,000 less- $9,000- would destroy any attempt to settle. Further, plaintiff would accuse defendant of not acting in "good faith", or being "misleading", or not trustworthy or other counterproductive accusations. Psychologically, plaintiff was primed to accept $11,000, and there was no way plaintiff could do a quick mindset change and accept the lower amount. (Thus, the moral here is never to make an offer of which you are not 100% sure; if defendant had offered $9,000 with the comment she would try for an additional $2,000 in authority, plaintiff's hopes would not have been raised and the inability of defendant to obtain that higher amount would not have created the dilemma now confronting the parties.)

The community of plaintiff and defendant attorneys who practice in this field is small; they continuously work with each other on cases day in and day out. Because of this ongoing relationship, they have learned that good working relationships with each other are important because one day defense counsel may be in a bind and need an extension and the next day, it may be plaintiff's counsel who is in the bind, requesting the extension. This community, by and large, has created professional and respectful relationships among each other to the point that after a motion hearing or mediation, they may even have lunch together.

This is where the professionalism and respect kicked in. Plaintiff's counsel, recognizing that the case should settle, but $2,000 short of the goal, approached defense counsel and essentially commented that on a prior case, defense counsel had helped her out and so now it was payback time. She would adjust the amount of her fee so that her client, the plaintiff, would not leave disappointed.

A settlement agreement was quickly prepared and signed by all.

I was greatly taken by the professionalism of counsel, finding it extremely refreshing that these two attorneys (along with others in this community of lawyers) neither take the matters they handle personally, nor are hurling ad hominem attacks on each other simply because of who they represent- the "bad guy". Rather, they separate the person from the issues and remember they are the "hired gun" trying to do the best job they can for their respective clients and that there is nothing wrong with being civil, professional and respectful to opposing counsel in the process of that representation. They are no less an advocate; if anything, they are better advocates!

Relationships do matter and make all the difference in settling cases!

.... Just something to think about!

If you enjoy this blog, and want to receive it weekly via RSS Feed, click on the "Subscribe" button immediately above the blog!

If you would like to receive this blog automatically by e mail each week, please click on one of the following plugins/services: http://www.shootthebreeze.net/blogalert/index.php or

http://blogtrottr.com/ or

http://beta.peekfeed.com/

and for the URL, type in my blog post address:http://www.pgpmediation.com/blog/atom.xml and then type in your e mail address and click "submit".

Pinning the Tail on the Donkey Blindfolded

Not every Plaintiff wants to settle her lawsuit. Some, who are wealthy and have time on their hands, enjoy the "game" for the sake of the game. Some plaintiffs are risk takers who enjoy the "ride."

I learned this once again in a recent mediation, forcing myself to remember that as a mediator, I cannot force people to settle. Self determination is what mediation is all about; one of its core principles.

The case was simple enough; a plaintiff decided to have solar panels installed in her home and later claimed that the panels did not work as advertised, did not reduce energy costs as advertised, burned out and had to be replaced. Consequently, plaintiff sued several defendants whom she claimed were involved in the sale and installation of the solar panels for breach of contract, breach of warranty, fraud et cetera.

At the mediation, I learned that the plaintiff was wealthy and retired and viewed this as sort of a "game"; she was a gambler who really did not care if the matter settled or not and did not really take it all that seriously. She had all of the time in the world to sit in trial for two weeks.

At the end of the mediation, the parties were about $20,000 apart and neither side would move any closer. At that point, the gap could not be bridged.

A few weeks later, defendants called me to ask that I call plaintiff's counsel to find out if her last demand made at mediation was still viable. Defendants appeared ready and able to bridge that $20,000 gap. In essence, defendants wanted me to ask that if defendants came up with the last amount demanded at mediation, would plaintiff accept it. As J. Anderson Little mentions in his book, Making Money Talk ( ABA publishing, 2007), this is a tactic defendants often use to allow defendants to save "face"; they do not want to go to their best number if it will not settle the case. (Id. at 176-7)

So, I called plaintiff's counsel with the hypothetical demand to which plaintiff counsel responded that she refused to deal in hypotheticals. For her client to respond, the offer must be a definite one. When I explained that the use of the hypothetical is a "face saving" device, counsel would have none of it; she would not negotiate this way.

So, I spoke with defense counsel who got quite upset at plaintiff's response as they had previously offered a slightly lesser amount to which plaintiff said no but would not provide a counter proposal. Defendants requested that I call plaintiff's counsel with two simple questions; was her client interested in settling and if so, what was her demand?

I called plaintiff's counsel with these questions. She consulted her client and called me back a few minutes later. Yes, her client was interested in settling, but her client had no demand. Rather, counsel advised that defendants should make a definite offer, and plaintiff would simply state whether she accepted or rejected it, probably without making a counter.

When I tried to discuss with plaintiff's counsel that this style of negotiation would not lead to a settlement; that no defendant was willing to play pin the tail on the donkey blindfolded, counsel was unwilling to engage in this discussion.

I advised defendants of this response; the defendants will move the litigation forward.

I cannot force people to settle. I do not know if the difficulty in reaching a settlement lies with plaintiff, her counsel or both. I strongly suspect that there other motives driving plaintiff and counsel forward. Plaintiff has filed for leave to file an amended pleading to add additional defendants and claims which I suspect is viewed as providing a greater return later on. (Sunk costs?) While defense counsel has discussed the weaknesses of the case with plaintiff's counsel, the latter has given those arguments short shrift (a case of reactive devaluation!).(I, too, tried to discuss the weaknesses of the case with plaintiff and counsel to no avail!) Depositions have not been taken so perhaps plaintiff and her counsel do not know precisely the nature and extent of the "other side" of the story. That is, I suspect that both plaintiff and counsel are still looking at this matter with "rose colored glasses ", ignoring the ole' adage that a "bird in hand is worth two in the bush."

I will keep my eye on this one; it will be interesting to see how it turns out.

....Just something to think about!

If you enjoy this blog, and want to receive it weekly via RSS Feed, click on the "Subscribe" button immediately above the blog!

If you would like to receive this blog automatically by e mail each week, please click on one of the following plugins/services: http://www.shootthebreeze.net/blogalert/index.php or

http://blogtrottr.com/ or

http://beta.peekfeed.com/

and for the URL, type in my blog post address:http://www.pgpmediation.com/blog/atom.xml and then type in your e mail address and click "submit".

Revising Memories

Once again, another study has been published revealing that our memories are not accurate; they rewrite history incorporating present events.

Earlier this month, several different news articles including Northwestern University News and The Times of India reported a study published in the Journal of Neuroscience on February 5, 2014 by lead author Donna Jo Bridge, a postdoctoral fellow in medical social sciences at Northwestern University Feinberg School of Medicine showing that "... the memory rewrites the past with current information, updating your recollections with new experiences...." (Id.) It is "...a wily time traveler, plucking fragments of the present and inserting them into the past." ( Id. at The Times of India)

To conduct her study and thus reach her conclusions, Dr. Bridge had:

     "... 17 men and women stud[y] 168 object locations on a computer screen with varied backgrounds such as an underwater ocean scene or aerial view of Midwest farmland.
     Next, researchers asked participants to try to place the object in the original location but on a new background screen. Participants would always place the objects in an incorrect location.
    
Finally, participants were shown the object in three locations on the original screen and asked to choose the correct location. Their choices were: the location they originally saw the object, the location they placed it in part 2 or a brand new location.
   
"People always chose the location they picked in part 2," Bridge said.
   
"This shows their original memory of the location has changed to reflect the location they recalled on the new background screen. Their memory has updated the information by inserting the new information into the old memory," Bridge said. (Id.)

According to Dr. Bridge, this is the first study that shows specifically "... the exact point in time when ..." incorrect information is imputed into our memories. (Id.)

So, once again, in recalling the facts surrounding a dispute, beware; our memories are not what we think they are, and unknowingly, our memories will revise the history of what happened and/or how it happened. To resolve the dispute, it will help NOT to be adamant about the facts giving rise to it. Rather... focus on the future to get it settled. Our memories, while they may be time travelers to the past, have not yet become time travelers to the future.

.... Just something to think about.

If you enjoy this blog, and want to receive it weekly via RSS Feed, click on the "Subscribe" button immediately above the blog!

If you would like to receive this blog automatically by e mail each week, please click on one of the following plugins/services: http://www.shootthebreeze.net/blogalert/index.php or

http://blogtrottr.com/ or

http://beta.peekfeed.com/

and for the URL, type in my blog post address:http://www.pgpmediation.com/blog/atom.xml and then type in your e mail address and click "submit".

The Subtleties of Memory

All disputes are premised on what occurred in the past with the view of resolving them by looking forward. We are often told not to "dwell on the past" but to "look forward" in trying to figure out how to resolve the issues.

Thus, all disputes involve our memories. And... as much as we would like to think they serve us well, we find that we can't always remember things or that it takes us longer to remember than we would like. Especially, as we get older! But, this does not mean, us baby boomers are "losing it"!

A recent study shows the subtleties of our memories. In the New York Times Science section on January 28, 2014, Benedict Carey discusses the "Older Mind May Just Be a Fuller Mind" or the notion that our minds do not decline with age; it's just that there is more stuff (i.e., increased knowledge) in our memory banks and so it takes longer to process and retrieve the information we seek to recall. Mr. Carey's article is based on a study conducted by Michael Ramscar and several others entitled "The Myth of Cognitive Decline: Non-Linear Dynamics of Lifelong Learning" published January 13, 2014 in Topics in Cognitive Science, Vol 6, issue 1, pages 5-42 (January 2014).

In the study, Mr. Ramscar gives examples of older folks having more information to sift through as the reason it takes them longer to remember. One example is remembering names; as any baby boomer can tell you, it is harder to remember names as you grow older. Indeed, the study showed that on average, it will take someone in their 70's about a half a second longer to remember a name than when she was 20 years old. (Id. at 27.) Why? Because the possibilities of someone's name have grown exponentially over the years. In the 1880's, there were about 100 possibilities of a female name whereas today, that possibility is well over 2,000! As the author notes "... in the 300 years prior to 1750, 50% of men and 50% of women in England were consistently given one of just three highly frequent male or female names...." (Id at 24.)

Another example is more poignant: Suppose someone asks what does "PFC" stand for? A baby boomer with so many years of experience may come up with three alternatives: pre-frontal cortex in neuroscience; post-focus compression in linguistics; or private, first class in the military, or a myriad of other examples depending upon her profession and experience. (Id. at 18) By contrast, a 20 year old may not have any notion of what "PFC" means and so will answer the question very quickly ( "I dunno know!"). The baby boomer, having to sift through memory banks of perhaps 50 years of experience will take a few seconds longer to answer since she knows of at least three possibilities. (Id.)

Finally, the study notes that "...as people age, they encode less contextual information in memory" (Id. at 34) The reason is that the variety of their environments shrink and so reduces the variety of the situations in which they learn new things. For example, one living in an assisted living facility will encounter much less variety than one living at home and going out every day. As a consequence, the former will find it more difficult to retrieve the older memories than the latter. (Id. at 34.) I guess it is akin to the "squeaky wheel gets the grease" notion; with disuse, it is harder to remember a particular piece of information that was used repeatedly years ago.

The conclusion is that when listening to an older person tell her story of what happened, be patient; it is not that she is "losing it"; she simply has more stuff in her memory banks to sift through to come up with the right word or answer. (Yet, another example of where an "assumption" can lead you astray!)

... Just something to think about!

If you enjoy this blog, and want to receive it weekly via RSS Feed, click on the "Subscribe" button immediately above the blog!

If you would like to receive this blog automatically by e mail each week, please click on one of the following plugins/services: http://www.shootthebreeze.net/blogalert/index.php or

http://blogtrottr.com/ or

http://beta.peekfeed.com/

and for the URL, type in my blog post address:http://www.pgpmediation.com/blog/atom.xml and then type in your e mail address and click "submit".

 

The "Paradox of Choice" and the "Sweet Spot"

The other day, I came across an article on the PBS NewsHour website entitled "Is the famous paradox of choice a myth" by Barry Schwartz dated January 29, 2014. Evidently, there is much controversy whether too many choices create a paralysis.

In 2000, Sheena S. Iyengar (Columbia University) and Mark R. Lepper (Stanford University) published a study entitled "When Choice is Demotivating: Can One Desire Too Much of a Good Thing" (Journal of Personality and Social Psychology, Vol, 79, No. 6, 995-1006 (2000)). They start with the premise that the more choices one has, the better-"that the human ability to manage, and the human desire for, choice is infinite." (Id. at 995.). They then discuss two experiments they conducted in grocery stores. They set up displays of jam for a five hour period to see how ordinary shoppers would react in terms of tasting and purchasing. In one display, they set out 24 different exotic flavors of jam (leaving out the ones we all like such as strawberry and raspberry so that predispositions would not affect the results) while in another, they set out only 6 varieties.

What they found in both studies is that the consumers sampled about the same number of varieties of the jams- 1.50 but the "...consumers [who] were initially exposed to limited choices proved considerably more likely to purchase the product than consumers who had initially encountered a much larger set of options." (Id. at 997.) In sum, a limited number of choices increased sales.

Returning to the PBS article, its author Mr. Schwartz, after discussing this jam study, noted that subsequent studies by other researchers seemed to indicate that the results of the jam study were incorrect: whether the number of choices was large or small did not matter; the result would be the same.

But then he cites two real world examples. One was a large retailer of office supplies. To reduce printing costs and postage, the retailer reduced the number of options on many products offered in the catalog. It immediately noticed that its sales increased.

Similarly, a very large home builder started reducing the number of options available to buyers of custom made homes. For example, rather than providing 34 different types of tile for flooring, it reduced it to a few. Not only did the builder save time (The meeting with the buyers to decide on everything went from 20 hours to four hours.), it saved costs. The builder also found that the buyers purchased more upgrades, had less regrets and more satisfaction. (Id.)

But, at the same time, buyers must be given a choice. The Atlantic published an article, "More is More: Why the Paradox of Choice Might Be a Myth" by Derek Thompson (August 2013) noting that if consumers are given only one choice- take it or leave it- ( "single option aversion")- they reject it. He cites a problem encountered by Williams-Sonoma in which it had a bread maker for sale for $279. No one would buy it. So, the store started selling a second model for $429 as well. Suddenly, "...the sales of the cheaper modeled doubled." (Id.) (And, of course, the more expensive model went unsold!) (Id.)

The conclusion to be drawn is that people require choice; not too many, and not only one on a "take it or leave it" basis. As Mr. Schwartz in the PBS article notes:

The trick is to find the middle ground-the "sweet spot"- that enables people to benefit from variety and not be paralyzed by it. Choice is good but there can be too much of a good thing...." (Id.)

Turning to negotiations, to settle a dispute, people need to be able to make choices. This is why to offer a settlement on a "take it or leave it" basis and as the only option will never work. Just as Williams-Sonoma could not sell its expensive bread maker standing alone, people will not settle a dispute when given only one option. Rather, they must do the "negotiation dance"; bargaining back and forth several times so that they have "choices"! There is a "sweet spot" in every settlement- where one is offered not too little but not too much that entices her to accept the terms and settle. The trick is to find it.

.... Just something to think about.

If you enjoy this blog, and want to receive it weekly via RSS Feed, click on the "Subscribe" button immediately above the blog!

If you would like to receive this blog automatically by e mail each week, please click on one of the following plugins/services: http://www.shootthebreeze.net/blogalert/index.php or

http://blogtrottr.com/ or

http://beta.peekfeed.com/

and for the URL, type in my blog post address:http://www.pgpmediation.com/blog/atom.xml and then type in your e mail address and click "submit".

'Phyllis allowed my clients to fully
express their feelings and positions.’

Contact Us

Bold labels are required.

Contact Information
disclaimer.

The use of the Internet or this form for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be sent through this form.

close

Privacy Policy