While none of us ADR Professionals were looking, California enacted a new form of alternative dispute resolution in the form of a summary jury trial. Entitled the “Expedited Jury Trial Act” (Assembly Bill 2284),  this new law (to take effect January 1, 2011) establishes procedures for conducting expedited jury trials in civil cases in which the parties sign a consent order stipulating that such procedures shall apply. These expedited procedures include a jury comprised of 8 or fewer members (of which 6 must agree on a verdict)  with no alternates, a limit of 3 preemptory challenges for each side and a limit of 3 hours for each side to present its case, including cross-examination. Further, voir dire will be limited to approximately one hour with each side and the judicial officer having 15 minutes each, respectively. The goal is to complete the jury trial in one full trial day or less. In sum, it is a “down and dirty” trial.

            According to the Report To The Judicial Council (October 29, 2010);

“The expedited jury trial proposal was developed to address litigants’ lack of access to the courts in smaller civil cases and the high expense of going to trial under current laws and procedures. The expedited jury trial procedures . . . establish an alternative, streamlined method for handling civil actions to promote the speedy and economic resolution of cases and conserve judicial resources.”

           (Id.  at p. 4)

           Consequently, the verdict of the jury is binding, and the parties are quite limited in the post trial motions or motions that they can file. Such motions can only be based on judicial misconduct, juror misconduct, or corruption, fraud or other undue means used at trial that precluded a fair trial. Further, the parties can agree to relax the rules of evidence or use other streamlined procedures for the trial. (See, California Rules of Court, Rule 630.09).

           One very interesting feature is the use of a “high/low agreement” which is defined as:

“. . .a written agreement entered into by the parties that specifies a minimum amount of damages that a plaintiff is guaranteed to receive from a defendant, and a maximum amount of damages that the defendant will be liable for, regardless of the ultimate verdict returned by the jury. Neither the existence of, nor the amounts contained in any high/low agreements may be disclosed to the jury.” (C.C.P. §630.01(b)).

           For example, if the parties agree to a low of $20,000 and a high of $80,000 the following occurs; if the jury returns a verdict for defendant, thereby awarding plaintiff $00.00, under  the agreement, plaintiff receives $20,000. If the jury returns a verdict for plaintiff in any amount more than $80,000 (e.g. $100,000), defendant pays only $80,000 and not the amount returned by the jury. If the jury returns a verdict for plaintiff somewhere between $20,000 and $80,000 (let’s say $60,000), then the defendant pays that amount (i.e. $60,000). This provision harkens back to the “Mary Carter” agreements first discussed in J.D. Booth v. Mary Carter Paint Company, 202 So. 2d. 8, 10-11 (Fla. app. 1967).

            Of note, neither the Judicial Council recommended nor did the legislature adopt any limitations on the type of cases that can take advantage of this new procedure. There is neither a monetary limitation nor a subject matter limitation. A very complex case can utilize this procedure where there is one pivotal issue (e.g. liability) that once it is decided, the remaining issues such as damages are easily resolvable. Or, this procedure can be used where the only issue is the amount of damages (as liability has been conceded) with plaintiff demanding one sum and defendant offering a lot less.

            This new procedure fits in nicely with mediation as the parties can attend mediation to resolve as many of the issues in the case as possible and then use the expedited jury trial procedure to resolve the remaining issue(s). By using a high/low agreement, plaintiff can still have her “day in court” (knowing she will “win” at least a minimal amount of money) while a defendant can limit her risk and exposure.

            Further, through the mediation process, the parties can negotiate the optional content of the proposed consent order, including modifications of the timeliness for pretrial submissions, limitations on the number of witnesses per party, including expert witness information and their presentation of testimony, allocation of the time allotted to each party, and stipulations regarding evidentiary matters or the presentation of evidence or exhibits. (See California Rule of Court, Rule 3.15456(b)).

            Clearly, a new dawn is coming to ADR in California on January 1, 2011. But, unless otherwise changed before then, that day is destined to sunset on January 1, 2016. We shall see what happens. . . .

            . . .Just something to think about!

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In its July 27, 2010 guest blog, Scientific American published an article by R. Douglas Fields entitled, “Of Two Minds: Listener brain patterns mirror those of the speaker.” In it, Mr. Fields discusses a study (published in the July 26, 2010 issue of Proceedings of the National Academy of Sciences) showing that simply by speech, a speaker “. . .can project her own brain activity onto another person” such that the neural activity of the listener will closely mirror that of the speaker. (Id.)

Using functional magnetic resonance imaging or fMRI, the researchers examined both the speaker’s and the listener’s brain activity patterns while they communicated with each other. What they found was that:

“. . . when two people communicate, neural activity over wide regions of their brains becomes almost synchronous, with the listener’s brain activity patterns mirroring those sweeping through the speaker’s brain, . . .with a short lag of about one second. If the listener, however, fails to comprehend what the speaker is trying to communicate, their brain patterns decouple.” (Id.)

The researchers found that “the better matched the listener’s brain patterns were with the speaker’s, the better the listener’s comprehension. . . .” (Id.) Thus, if a listener truly comprehends what the speaker is saying, her brain imaginary will mirror the speaker’s. If, on the other hand, the listener hasn’t a clue about what the speaker is saying, her brain imaginary will show that as well: there will be absolutely no mirroring.

The researchers also found that when a listener is fully comprehending what the speaker is saying, her own neural activity preceded that which was about to occur in the speaker’s brain. That is, she anticipated what the speaker would say next!

As explained by the lead investigator, Uri Hasson, “communication is a joint activity, by which two brains become coupled.” (Id.)

This research intrigues me because one of the basic concepts in mediation is “active listening” (which means to listen carefully to what the speaker is saying and how it is being said and then use various techniques such as paraphrasing or restating the speaker’s remarks to make sure the listener understands what is being said. It is a continuous and interactive process of listening and providing feedback.) This research confirms that there really is an “active” in active listening: when we truly listen to someone and comprehend what she says, our neural activity will closely mirror the speaker’s to the point that our own neural activity may well mirror what is about to occur next in the speaker’s brain. We can anticipate what the speaker will say next.

And, I have learned that mirroring or mimicking is one of those great tools that can lead to agreement. If one mirrors or mimics the body language of another, that other person will tend to become more receptive to you, albeit, subconsciously. That is, the more similar you are to someone, the more agreeable she will become. And the more agreeable a person is, the more likely a resolution will be reached.

So,. . . there really is something to “active” in active listening: it epitomizes a joint activity through which resolutions can be reached.

. . .Just something to think about.

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In August 2008, I posted a blog entitled “Make the Deal: You Are Better Off,” discussing a study which concluded that settling was better than going to trial.

Last week, I came upon another study which indirectly supports this earlier conclusion. Entitled “Insighful or Wishful: Lawyers’ Ability to Predict Case Outcomes,”(study) the researchers concluded that “overall, lawyers were overconfident in their predictions . . .” about success at trial and that the accuracy of their predictions “. . . did not increase with years of legal experience.” (16 Psychology, Public Policy, and Law, pp. 133-157, 133 ((No. 2.) 2010) “Study”).

The researchers were Jane Goodman-Delahunty, Charles Sturt University, Manly, New South Wales, Australia; Pär Anders Granhag, University of Gothenburg, Gothenburg, Sweden; Maria Hartwig, John Jay College of Criminal Justice, New York and Elizabeth F. Loftus, University of California at Irvine,California (“Researchers”).

The goal of the study was to assess “the degree of accuracy in lawyers’ forecasts of case outcomes.” (Id. at p.134). To do this, the Researchers interviewed 481 litigation attorneys including new lawyers and very experienced lawyers, in 44 states across the United States, representing both plaintiffs and defendants in civil and criminal matters. The civil practitioners comprised about 70% of the study while the criminal practitioners represented the remaining 30%. (Id. at pp. 138-140.)

The Researchers interviewed each participant approximately 6 to 12 months prior to the date that a case was expected to go to trial and then interviewed them again after the date that the case was expected to go to trial. The goal was to compare the lawyer’s prediction about the likelihood of success at trial with the actual outcome. (Id.)

Although, at the beginning, the study consisted of 337 civil cases and 144 criminal cases, the Researchers found, not surprisingly, that a large number – 59% – of the cases settled prior to trial (e.g., about  284 cases)  while only 31% were actually tried (e.g., about 149 cases). The remaining 10% were resolved by means of summary judgment, dismissal or some procedure other than trial. (Id. at pp. 139-140).

As might be expected, prior to trial, more than 50% of the lawyers opined that a favorable outcome would be reached. In reality, the outcome matched the expectation in only 32% of the cases. The outcome exceeded the expectation in 24% of the cases. But, in 44% of the cases, the lawyer was overconfident; the outcome did not meet the lawyer’s prediction. (Id. at pp. 140-141).

The Researchers also looked at the lawyers’ predictions in terms of gender: men outnumbered women four to one in the study (361 male attorneys vs. 90 female attorneys). When asked initially to predict the outcome at trial 6-12 months away, the female attorneys were just as optimistic as their male counterparts. (Id. at p. 141-142).

However, when the Researchers compared the prediction with the outcome, they found that more female attorneys achieved their minimum goal than did their male counterpart (64% vs. 55%) (Id. at p. 143). In general, what the Researchers concluded was that female attorneys were overconfident about their chances of winning at trial only when their prediction of success was high overall. Female attorneys had a much better ability (than male attorneys) to discern whether they had a moderate versus a high probability of success in winning at trial. (Id. at pp. 143).

The Researchers also determined that years of experience did not make much of a difference. The range of experience of the lawyers in the study was from 0 to 45 years. Both the less experienced lawyers and the more experienced lawyers were prone to be overconfident about their chances of winning at trial. (Id. at pp. 143-144).

Similarly, the Researchers determined that the confidence of the attorneys did not differ depending on whether  the case was a civil or criminal matter: the prediction of success at trial was about the same for both groups. (Id. at p. 145). However, where the crimes were victimless, that is, against property, the Researchers found that the lawyers were more realistic in estimating their chances of success than lawyers involved in crimes against persons. (Id. at p. 145).

In sum, when a lawyer predicts the outcome of a trial, there is a 44% chance that he is being too optimistic, . . .unless she is a woman – then chances are that she will be less overconfident and more discerning of her likelihood of success at trial.

So. . . when you are at a negotiation and your lawyer tells  you that you have a “great” chance of winning at trial. . .  take it with a grain of salt. According to this study, there is a good chance that the lawyer is being overly optimistic and overconfident!

. . . Just something to think about!

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      Recently, LiveScience.com published an article entitled “Why ‘Sleeping On It’ Helps” by John M. Grohol, PSYD. The thesis of the article is that “the brain makes good unconscious decisions when we let it” (p. 2).

      According to Dr. Grohol:

      “Previous research suggests that sometimes the more consciously we think about a decision, the worse the decision made. Sometimes what’s needed is a period of unconscious thought – equivalent to “sleeping on it” . . . in order to make better decisions” (p. 1).

        To study this phenomenon, researchers conducted experiments. The results led them to believe that unconscious thought is actually an “active, goal-directed thought process.” But unlike conscious thought, the usual biases are absent, so that we weigh the different components more equally; our preconceptions are not considered by our unconscious. That is, “unconscious thinkers seem to be better at using appropriate information to arrive at” (p.2) their decision:

      “The researcher hypothesize that conscious thought can lead to poor weighting in decision-making – the more you think about something, the more your biases interfere with good decision-making” (p. 2).

       A moment’s reflection will reveal how this relates to mediation. “Sleeping on it” is actually counter-intuitive to the mediation process. Typically, the parties attend mediation with the goal of settling or resolving the dispute at the mediation so that the final part of the session is spent drafting and signing the settlement agreement.

      Many parties and mediators are uncomfortable with the prospect of a party walking out of a mediation and taking the final offer home “to sleep on it”. They fear that if a party walks out of a mediation to “mull” it over, the matter will not settle.

      This research though  indicates that “sleeping on it” is not such a bad idea: to the contrary, it may be rather productive. A person’s unconscious is the better decision maker and thus a person will make a good decision, unconsciously. That decision most likely will be one that is much more rational,  much less biased and  much less dependent on preconceived notions than one made consciously at a mediation.

      So, counter-intuitively, perhaps it is not a bad thing to let someone walk out of a mediation with an offer in hand “to sleep on it”. Chances are, the matter will settle once the unconscious decision-maker takes over!

      . . .Just something to think about.

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       On Saturday, November 7, 2009, Dr. Daniel Druckman, Professor of Public and International Affairs at George Mason University in Fairfax, Virginia delivered the 5th Annual L. Randolph Lowry Lecture at Southern California Mediation Association’s 21st Annual Conference.
 

      His lecture was taken from his article Intuition or Counter-Intuition? The Science behind the Art of Negotiation published in the October 2009 issue of the Negotiation Journal (at pp. 431-448). In the limited amount of available time, Dr. Druckman  highlighted the metaphors for negotiation and some counter-intuitive findings regarding negotiation.
 

      First, negotiation can take many forms and is used in varied contexts, be it from our own daily lives, domestically, regionally, internationally, or even globally.
 

      To best describe the different forms of negotiation, Dr. Druckman uses metaphors. For example, some negotiators see negotiation  as a game, while others view it as a discourse.  Still, others,  see negotiation as a tool for managing organizations. (p. 433.)
 

      Some view negotiation as a puzzle to be solved with the familiar example being the ‘prisoner’s dilemma”. Others view negotiation as a bargaining contest such as occurs in haggling in the market place (p. 433).
 In addition, negotiation can be viewed as diplomacy politics in which “negotiation is viewed as a microcosm of the larger game of international politics” (p. 434).
 

      In short, there is not just one facet to negotiation: it has many faces, and how it is used depends heavily on the context in which it is used: the market place, within organizations, between states, between countries, or globally.
 

      Of equal interest are Dr. Druckman’s counter-intuitive findings. Each challenges “. . . the  popular wisdom and illuminate[s] the complexity of negotiating behavior”.(p. 437).

      The first involves the notion, to negotiate or not to negotiate: “A continuous negotiation process can increase the chances of getting a settlement.  It can also serve to perpetuate impasse” (p.437). Thus, it is important to know when to negotiate and when to stop. According to research, negotiations should continue as long as” momentum is building towards an agreement” but should stop” if new incompatibilities are discovered” which will serve only to heighten the conflict. (p. 437.)

       At the same time, “impasse can turn a frozen negotiation around.” It is often a “wake-up call” to negotiators to perhaps take a “time out” to reframe issues or develop new procedures that can lead to progress. (p. 437)

       A second counter-intuitive finding is that some times, “developing negotiating alternatives can have negative effects that outweigh the “good” agreement” (p. 438). That is, generating too many alternatives may produce a less than ideal agreement. Thus, determining the best alternatives to a negotiated agreement  or BATNA may actually be detrimental.

       A third counter-intuitive finding is that “exchanging too much information during negotiation can have the unforeseen consequences of revealing new incompatibilities that can escalate” rather than resolve, the dispute (p. 438).

       Similarly,  “too much flexibility in concession making may have negative implications for group loyalty” (p. 438).  According to Dr. Druckman, research has revealed that “quick concessions, even if mutual, often lead to suboptimal agreements.” Dr. Druckman calls this the “Winner’s Curse” (p. 438).

       The final counter-intuitive finding discussed involves emotional expressions:

      “. . . displays  of anger can be helpful when they reveal strongly felt values or interests and are directed at the task rather than at the other person(s). Strong expressions can serve to define or anchor a bargaining range if they are regarded as authentic signals rather than as distracting “noise” (p. 438).

       Similarly, firm stances can be effective, as well:” Standing firm on principles early in a negotiation but showing flexibility on positions later can elicit more concessions. . . ” (p. 438). (Or, similarly,  as my mediation trainers have often said: “be firm in the position but soft on the people.”)
 

       Dr. Druckman’s  brief discussion of the different metaphors for negotiation and the findings on counter-intuitive negotiation tactics gave me a lot to think about and to incorporate into my mediation practice.

       I hope that they provide food for thought for you as well!

       . . . Just something to think about!

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