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today.

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Welcome to the audio edition of BHBA's Mediation Training.

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In this episode, your host, Sidney Kanazawa of Alternative Resolution Centers, will guide

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you through breaking impasse and bringing closure.

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Let's dive in.

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I'm Sid Kanazawa, and I'm going to share a few thoughts on impasse today.

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First of all, I want to put in context what we're talking about.

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We're talking about mediation where the only outcome that is possible is a voluntary agreement.

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We're not talking about arbitration or trials, judge or jury trials, where an arbitrator

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or a judge or a jury can make a decision for somebody else, can force an agreement.

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Basically in the context of mediation, we're talking about a voluntary agreement, but the

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voluntary agreement is not limited to the narrow question that is being presented to

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the arbitrator or to the court.

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It can be anything.

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The parties can agree to apologize.

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The parties can agree to have payments or retire.

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The parties can agree to cross license.

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The parties can agree to just about anything, even though that remedy is not available in

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the context of an arbitration or a court or jury trial.

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But sometimes when we are negotiating, we get stuck.

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We can't get past a certain issue or we can't get past understanding each other.

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And somehow we get stuck and we call this an impasse when we just don't agree at some

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point in time.

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Why does this happen?

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There's a lot of reasons.

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Sometimes it's because we're not ready.

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We don't have enough information.

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Or sometimes it's because we're not emotionally ready to decide.

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Sometimes it's a lack of understanding, of not understanding what the other side is seeing,

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what they're concerned about, what their interest is, what they're really worried about in terms

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of the resolution of this case or this mediation.

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Sometimes the parties have different visions of what's going to happen in the future.

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And sometimes we have to work out ways in which we can come to an agreement about taking

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into account these different types of perspectives about the future.

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And so we have to be creative in thinking about how we take into account the different

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perspectives about the future so that we can agree today and agree on better terms than

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our expected futures.

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Sometimes it's because we just simply distrust our opponents.

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We don't trust their motivations.

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We don't trust their intentions.

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And we think that they're leading us down the path towards something that we don't want

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to go towards.

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Sometimes it's just plain ego that we want to win or we feel disrespected and we don't

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want to agree because we're not being given the dignity we think we deserve.

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And sometimes it's because of the consequences that we're worried about what our boss is

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going to say, what our family is going to say, what our other relationships, how they

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might be affected by the decisions that we make.

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Sometimes it's because we're just looking at things from our perspective.

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We expect everybody to see the world the way we see it.

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We expect everybody to see the same thing and agree to the same perspective that we

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have.

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Sometimes it's because we're afraid.

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We're fearful of making a mistake or being thought of as a fool or loser in agreeing to

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a particular resolution.

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Sometimes it's because we're afraid of being inconsistent with what we've announced as

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our principles or sometimes it's because we're afraid that we're going to appear to be weak

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or that we're going to encourage bad behavior or sometimes it's because we're afraid that

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we may be not prepared enough for making a not well-wisened judgment about the situation.

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In any of these situations, most of the time we get stuck because we're boxed into the

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trial story.

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We're boxed into that story about that narrow segment of questions that a judge or a jury

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or an arbitrator is deciding, the cause of action.

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Is it liability, no liability and just a dimmer switch as to how much?

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That very narrow question is oftentimes why we get boxed in.

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It's a binary choice.

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Like I said at the very beginning, the voluntary agreement is not limited to the binary choices

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at trial or in arbitration.

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In fact, although we set things up as the plaintive versus defendant, and it's obvious

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that this is why we think in these binary terms and we think about this as a contest

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between us and them.

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We think of it in terms of zero sum kinds of conclusions.

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This story assumes that force and power is what is going to get us to an agreement.

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That we talk about threats and twisting arms and using leverage.

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We use language of war about fighting and attacking and shooting down and beating up

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the other side.

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We're low to talk about compromising or giving up or agreeing with the devil because it is

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in this binary kind of concept, this trial story.

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It's about winning.

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It's about winning and not losing.

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Normally the mediation is set just before trial because we want to get all the discovery

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and do all the pretrial motions and get all the things that we can do before the trial

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done so that we have maximum leverage to force an agreement.

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But like I said at the very beginning, this is not about a forced agreement.

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This is about a voluntary agreement.

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Every party that comes to the mediation has a choice whether they want to agree or not

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agree.

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Whether they want to stay or leave.

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It is only if they want to agree that we have an agreement.

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It's a voluntary agreement.

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And so we have to question whether this trial story, this traditional story of force and

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power really makes sense when we're talking about mediation and coming to a voluntary

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agreement.

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We see it all over the world when Hamas attacks Israel but don't say, oh, okay, you're right.

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We're going to have to give you whatever you want.

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When Russia attacks Ukraine, Ukraine didn't say, okay, come right in.

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You can take whatever you want.

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When people attack, they have three responses.

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The responding party can either freeze, they can flee, run away, or they can fight.

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And almost everybody when they're in this situation where they're trying to get past

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the other side for whatever reason and they are in a conflict where they have litigation

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or some kind of a dispute, both of them are feeling powerless.

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And in this powerless state when one side threatens the other, when one side tries to

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use leverage over the other, the normal reaction of most people is to fight back.

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And so the more we threaten, the more the other side fights back and more it goes back

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and forth and we escalate the dispute rather than de-escalate the dispute.

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Now some would say, well, World War II is a very good example of how we overwhelm the

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enemy and we ultimately won and we brought peace through that win.

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But what was the cost of achieving that win?

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In World War II there's an estimate that there was something like 62 million deaths,

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most from civilians.

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And if you look at where those civilians were, the Allied civilians accounted for 82% of

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the deaths, the side that won.

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82% of the people that died in World War II were on the side that won that war.

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And I know a lot of people would say, well, it ended with Germany and Italy and Japan

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being our allies.

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Some of our closest allies today.

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But really the story of how Germany, Italy and Japan became our allies today and our

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allies then, China and Russia are now our enemies.

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The reason is not so much the overwhelming force that we applied to the Axis forces,

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but rather it's the Marshall Plan.

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It is that plan after the war where we helped to rebuild the economies of Germany and Italy

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and Japan.

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It is that kindness that reciprocated into these countries becoming our allies.

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Again, we're talking about a voluntary agreement.

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We're not talking about a forced agreement.

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And so when we get stuck in this impasse, when we get stuck, oftentimes it's because

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we're thinking in binary terms.

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We're thinking that we have to win or lose on one particular issue.

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And we're thinking only in terms of questions that a court or a jury or arbitrator has to

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decide.

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We forget that no matter what the situation is, there are many perspectives that people

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bring to the problem.

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We all have our own life experiences where we grew up, the kind of circumstances that

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we grew up in, our particular beliefs and experiences as we're going along.

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And as a result, we see the same thing from different perspectives.

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This chair is an example.

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Sometimes you can look at it in their four legs.

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Sometimes you can look at it in their three legs.

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Sometimes you can look at it in those two legs.

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Sometimes you can look at it and there's no legs.

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Our perspective may be very different, but when we try to reach an agreement, part of

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the challenge is to understand that there is no one perspective.

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We can't assume that everybody is going to see the same thing we see.

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Mediation is about a voluntary agreement.

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It's not about winning.

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It's not about defeating the other side and making them, forcing them to see our perspective.

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Now here's the optimistic part of it over.

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Although we are talking about a conflict, a dispute, a situation where the parties do

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not agree, ultimately, most of them agree.

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We only try about 2 to 5% of the cases and 95 to 98% of the cases get settled out on

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a court.

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The green bar that you see on the screen, that's 2% of the black that you see.

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5% is the green and the yellow is what you see on the screen.

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The 95 to 98% of the cases is all the rest of the black on the screen.

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Basically what this means is that 95 to 98% of the cases, we reach an agreement.

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The good news is we normally will reach an agreement at some point in time.

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There's only about 2% of the cases and some jurisdictions, it's as little as 0.5% of the

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cases.

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But overwhelmingly, we will eventually agree.

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When we reach this voluntary agreement, is a situation not of us treating each other

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as enemies, as opponents, that we're going to have to defeat and overwhelm and leverage

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against, but rather it is two different forces that are coming together to become one team.

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And we are agreeing on a path forward.

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So the only question that is presented is when and how we're going to resolve the dispute.

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That whether 95 to 98% of the cases we're going to settle and agree on, it's only question

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of when and how.

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So how do we transform opponents into teammates?

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How do we bring people together?

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Well, there's some people that have thought about this.

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Robert Chaldini wrote a book called Influence.

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And basically he was curious about this question, so how people voluntarily agree to buy certain

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services and products from salespeople.

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And so he signed up for all of the sales courses that he could find, and he followed

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around the best salespersons to try to figure out what is it that they do to get customers

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to buy a product or service.

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And he came up with six principles as to how that happens.

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And another professor in Southern California, William Cranall, he wrote a book called The

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Rules of Influence, Winning When You're in the Minority.

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And he looked at the problem from a different angle.

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He was wondering, why is it that some ideas become majority ideas?

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Every idea starts with one person.

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But why do some minority ideas become majority ideas?

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And why do other minority ideas simply die and never percolate up to become the majority

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idea?

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And so both of them looked at various aspects, and they actually agreed on several of the

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principles as to what it takes to get somebody to agree, to voluntarily agree to either buy

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a product or to adopt a new idea.

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One of the most important things that they found was identification.

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That people buy products from people that they like, people that they can feel that they

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are in the same tribe with, people that they can trust that are just like them.

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And so Robert Chaudini found that a lot of salespeople would go out and they would find

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the things to talk about that would make them identify with their customer.

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They went to the same school.

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They're from the same town.

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They have the same kind of interests and likes.

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And basically, that identification allowed that person to feel that that salesperson

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is not a stranger that's trying to sell me something, but somebody that I can trust.

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It's part of my tribe that I can rely on to steer me straight in terms of whether to

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buy this product or service or not.

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William Crano looked at it from a different perspective, and he looked at it in terms

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of what kind of person, what is the status of the person that has an idea that eventually

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percolates up to become a majority idea.

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And he concluded that one of the most important things is the person that has that idea has

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to be looked upon by the majority group as one of us, not one of them, but one of us.

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And so in a simple example, LeBron James of the Lakers went to an opposing coach and said,

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you know, you should really run this play.

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This is a play that we cannot defend against.

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So you know, you should run this play.

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The opposing coach would think, why should I listen to LeBron James?

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He is a warrior on behalf of a different team.

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Why is he telling me this?

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And the coach would understandably be suspicious as to why the star of the opposing team is

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telling him to run a particular play.

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And so it is unlikely in that circumstance that the coach will adopt a suggestion of

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LeBron James.

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By contrast, if somebody who was on the Lakers, either as a player or as a coach, came over

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to the other team and became an assistant coach.

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And he says, you know, when I was with the Lakers, there was this one play that they

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could be defending against or there was this one play that, you know, would be very effective

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against the Lakers.

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And he would tell the coach that because that person now is part of the opposing team, there

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is a greater likelihood the coach will listen to him and adopt that particular play.

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He's one of us.

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And so one of the fundamental principles of how you get people to agree, to voluntarily

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agree is that you have to figure out how to create a scenario where you're part of the

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team.

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You're one of us, not one of them.

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Another principle that Chaldeany talked about that was very critical in terms of whether

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a person would buy a particular product is this idea of reciprocality that oftentimes

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people will give away something and their kindness and giving away encourages the other

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00:19:01,160 --> 00:19:05,520
people to repay and kind, to be kind in the same way.

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And we see it in Settlement Conferences, you know, that when there's a $100,000 case and

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somebody demands a million dollars, the other side reacts in the opposite direction where

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they offer $5 or something of that nature.

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Both of them understand the cases probably should settle in the $100,000 range, but the

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extreme of one side would invite an extreme response on the other side.

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We're reciprocal in this fashion.

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We react in the way that we're treated.

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And so it also applies to this idea of whether you're in my tribe or not in my tribe.

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If I view you as a friend, I will treat you as a friend and we will reciprocate in that

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fashion.

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But if I view you as an enemy, I will treat you as an enemy.

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If you view me as an enemy, I'll treat you as an enemy.

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And we will reciprocate in that fashion and will not be persuaded.

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The third thing that both of them, both William Carano and Chaldean talked about is this idea

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of consistency, that if you can get people to agree with or to announce their position

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publicly about something, it is very difficult to get them to change your mind.

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In fact, it is much easier to get them to agree to bigger and bigger things once they

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agree to something small.

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So for example, Chaldean looked at people that go to a racetrack and he said, you know,

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and people when they're about to bet on a horse, they think, you know, I'm not sure

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if this horse is going to win and they're trying to bet which horse is going to bet

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on.

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But once they make the bet, immediately thereafter, they're very confident that this is the horse

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that's going to win.

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They're consistent with their bet.

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Their belief system is transformed into being consistent with the bet.

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Even though a few seconds earlier, they were uncertain about whether that horse would

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win.

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Chaldean also talks about a very interesting experiment involving ugly billboards.

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And they went to two different neighborhoods.

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And in one neighborhood, they went to each of these houses and they asked the homeowners

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if they could put up this big billboard in their front lawn that said drive safe here.

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And 80% of the homeowners in one neighborhood said no.

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And so they went to another neighborhood that had the same kind of demographics, same kind

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of layout, same kind of economic and social, economic and social is similar to the other

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neighborhood.

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And they asked the homeowners in that neighborhood if they could put up this big billboard in

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their front yard.

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00:22:00,840 --> 00:22:05,320
And 80% of the people in the second neighborhood said yes.

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And so the question is, how?

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Why?

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Did one neighborhood, 80% said no?

284
00:22:10,720 --> 00:22:13,720
And the second neighborhood, 80% said yes.

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00:22:13,720 --> 00:22:20,760
And the secret was two weeks before they asked about putting up the billboard in the second

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neighborhood.

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00:22:22,080 --> 00:22:27,440
They went to each one of these households and asked those homeowners to put up a small

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sticker in their window that said the same thing as a billboard, drive safely.

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00:22:33,600 --> 00:22:42,000
And it was that agreement to put up those stickers, that commitment to this public safety message

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00:22:42,000 --> 00:22:50,080
that made them more inclined to permit them to put up this ugly billboard in their yard.

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We are people who want to feel consistent with our announced beliefs and get out to vote

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00:22:59,040 --> 00:23:01,280
efforts.

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00:23:01,280 --> 00:23:09,720
People often call up potential voters and to encourage them to vote and to get them to

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00:23:09,720 --> 00:23:14,840
voluntarily commit themselves to voting.

295
00:23:14,840 --> 00:23:18,920
They will ask the voter, you know, when are you going to vote?

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00:23:18,920 --> 00:23:20,000
What time are you going to vote?

297
00:23:20,000 --> 00:23:21,000
How are you going to get there?

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Who's going to watch the kids?

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00:23:22,880 --> 00:23:24,640
What route will you take to get there?

300
00:23:24,640 --> 00:23:31,480
And the more detailed they are about how this person is going to vote, the more committed

301
00:23:31,480 --> 00:23:36,920
that person feels and the more likelihood, likely, that they will follow through and

302
00:23:36,920 --> 00:23:40,760
vote as indicated in that total call.

303
00:23:40,760 --> 00:23:49,040
It is this public announcement of the position that makes people compelled to follow through

304
00:23:49,040 --> 00:23:53,320
and be consistent.

305
00:23:53,320 --> 00:24:03,080
This kind of automatic response to different types of situations and all that was talked

306
00:24:03,080 --> 00:24:05,280
about and developed by Daniel Kenner.

307
00:24:05,280 --> 00:24:12,840
In fact, he won a Nobel Prize for his work in looking at these types of automatic responses

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00:24:12,840 --> 00:24:16,680
that we have, this thinking fast that we have.

309
00:24:16,680 --> 00:24:20,160
And he wrote a book, Thinking Fast and Slow.

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00:24:20,160 --> 00:24:27,760
He won a Nobel Prize in economics because there isn't a Nobel Prize in social psychology

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00:24:27,760 --> 00:24:29,400
or more like that.

312
00:24:29,400 --> 00:24:34,680
But it's appropriate that it's in economics because the story underlying economics is

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00:24:34,680 --> 00:24:41,240
that we are rational beings, that we are maximizing our personal interests.

314
00:24:41,240 --> 00:24:46,520
And what Daniel Kenner tried to show is that we are not as rational as we think we are.

315
00:24:46,520 --> 00:24:49,920
A lot of our thinking is not necessarily rational.

316
00:24:49,920 --> 00:24:56,560
And he showed how people are willing to bet if they have 80% chance of winning.

317
00:24:56,560 --> 00:25:01,280
But they're less inclined to bet if they have a 20% chance of losing.

318
00:25:01,280 --> 00:25:05,040
And so it's not pure rationality that they're acting upon.

319
00:25:05,040 --> 00:25:14,120
It is how the story is told and their emotions, perceptions, fast thinking that dictates

320
00:25:14,120 --> 00:25:18,080
how they respond to a particular situation.

321
00:25:18,080 --> 00:25:25,440
In his Nobel Prize biography, he talks about a situation that he experienced as a young

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00:25:25,440 --> 00:25:29,280
child growing up in Nazi-occupied France.

323
00:25:29,280 --> 00:25:35,480
It sort of illustrates how our thinking, we are assuming oftentimes what other people

324
00:25:35,480 --> 00:25:38,120
are thinking and we may be completely wrong.

325
00:25:38,120 --> 00:25:43,800
But it is our fast thinking that makes us jump to conclusions, jump to assumptions about

326
00:25:43,800 --> 00:25:47,840
what the situation is being presented.

327
00:25:47,840 --> 00:25:53,000
And it is that jumping to conclusions that often leads us astray.

328
00:25:53,000 --> 00:26:01,760
Daniel Kenner grew up in Nazi-occupied France and he was about nine years old at the time

329
00:26:01,760 --> 00:26:05,040
and he was playing with a friend.

330
00:26:05,040 --> 00:26:14,120
And at that time, because Kenner was a Jew, he had to wear a symbol on his clothes in order

331
00:26:14,120 --> 00:26:16,160
to show that he was a Jew.

332
00:26:16,160 --> 00:26:20,040
And so he was playing with a friend who's not Jewish.

333
00:26:20,040 --> 00:26:25,840
And it got a little late and he was past the curfew hour so he had to go home.

334
00:26:25,840 --> 00:26:30,360
But he was worried that he would be stopped because he's a Jew and it's after the curfew

335
00:26:30,360 --> 00:26:31,360
hour.

336
00:26:31,360 --> 00:26:35,600
And so he took his sweater and he turned it inside out so that the symbol would be on

337
00:26:35,600 --> 00:26:39,360
the inside rather than the outside and he started to walk on.

338
00:26:39,360 --> 00:26:45,720
And as he was walking home, he saw a German officer approaching him in the opposite direction.

339
00:26:45,720 --> 00:26:51,800
And as he got closer, he saw that the German officer was wearing a black uniform and he

340
00:26:51,800 --> 00:26:57,360
was warned that you should avoid Nazi officers with black uniforms.

341
00:26:57,360 --> 00:27:00,880
And so as he got closer, he got a little bit more worried.

342
00:27:00,880 --> 00:27:06,040
And as he got closer still, he noticed that the Nazi officer was looking at him and as

343
00:27:06,040 --> 00:27:10,600
he got closer, the Nazi officer waved to him to come to him.

344
00:27:10,600 --> 00:27:16,480
And as he got closer to the officer, the Nazi officer came within arms length and grabbed

345
00:27:16,480 --> 00:27:21,240
him and picked him up and lifted him in the air and he put him back down.

346
00:27:21,240 --> 00:27:26,560
And then the Nazi officer reached into his coat, pulled out his wallet and took out

347
00:27:26,560 --> 00:27:32,280
of his wallet a picture of his grandson and showed it to Daniel.

348
00:27:32,280 --> 00:27:37,440
And he wanted to show that Daniel looks just like his grandson.

349
00:27:37,440 --> 00:27:44,320
And now both the Nazi officer and Daniel Kanahab had completely different pictures in their

350
00:27:44,320 --> 00:27:48,800
mind as to what was happening in that particular scenario.

351
00:27:48,800 --> 00:27:56,400
And it is this fast thinking that often leads us astray and makes us stuck in negotiations

352
00:27:56,400 --> 00:28:00,920
because we are assuming that we know what the other side is thinking.

353
00:28:00,920 --> 00:28:08,080
We're assuming that we know what they want and we're not openly asking and trying to

354
00:28:08,080 --> 00:28:11,720
figure out how we can solve each other's problems.

355
00:28:11,720 --> 00:28:18,160
This idea of understanding the other side and also showing the other side that you can

356
00:28:18,160 --> 00:28:24,440
identify with them and you can see their perspective is talked about in a book called Never Split

357
00:28:24,440 --> 00:28:25,440
the Difference.

358
00:28:25,440 --> 00:28:30,280
It's written by an FBI hostage negotiator, Chris Voss.

359
00:28:30,280 --> 00:28:37,400
And he talks about how you get hostage takers to give up the hostages.

360
00:28:37,400 --> 00:28:43,120
And the Never Split the Difference title is basically when you're negotiating to release

361
00:28:43,120 --> 00:28:49,840
hostages, you can't say, you keep four, I'll give me four and we're good.

362
00:28:49,840 --> 00:28:51,160
You try to get all of them.

363
00:28:51,160 --> 00:28:59,880
And you try to get the hostage to cooperate and agree on a path for it without everybody

364
00:28:59,880 --> 00:29:02,000
getting hurt in the process.

365
00:29:02,000 --> 00:29:08,680
And so Chris Voss talks about how the FBI does this.

366
00:29:08,680 --> 00:29:13,960
And he says that the secret weapon for the FBI is open-ended questions.

367
00:29:13,960 --> 00:29:21,480
It is open-ended questions that allow the hostage taker to tell the negotiator what

368
00:29:21,480 --> 00:29:25,960
they're thinking, not to ask directed questions.

369
00:29:25,960 --> 00:29:26,960
Did you do this?

370
00:29:26,960 --> 00:29:32,520
Or isn't it true that this is what you're trying to achieve or not even saying anything

371
00:29:32,520 --> 00:29:39,680
and assuming that you understand what they're trying to achieve, but instead asking open-ended

372
00:29:39,680 --> 00:29:44,320
questions to try to understand the perspective of the other side.

373
00:29:44,320 --> 00:29:50,840
And Chris Voss says the ultimate goal is to get the hostage taker to say, that's right.

374
00:29:50,840 --> 00:29:55,880
That you ask these questions and you test your understanding to the point where the

375
00:29:55,880 --> 00:29:58,600
hostage taker says, that's right.

376
00:29:58,600 --> 00:29:59,600
Not your right.

377
00:29:59,600 --> 00:30:00,600
Your right means go away.

378
00:30:00,600 --> 00:30:01,840
I don't want to talk to you anymore.

379
00:30:01,840 --> 00:30:03,160
But that's right.

380
00:30:03,160 --> 00:30:09,000
Means that you have shown that you have been able to see the world through the eyes of

381
00:30:09,000 --> 00:30:10,600
the hostage taker.

382
00:30:10,600 --> 00:30:16,240
Not to agree with it, but rather just simply to be able to see it so that we can work together

383
00:30:16,240 --> 00:30:21,520
to try to solve that problem.

384
00:30:21,520 --> 00:30:29,800
Aristotle several thousand years ago analyzes question of how do you persuade, how do we

385
00:30:29,800 --> 00:30:35,360
get people to voluntarily agree to some type of action.

386
00:30:35,360 --> 00:30:43,040
And he understood this or he described this process in three steps, ethos, pathos, and

387
00:30:43,040 --> 00:30:44,040
logos.

388
00:30:44,040 --> 00:30:47,840
Ethos is the credibility and reliability of the speaker.

389
00:30:47,840 --> 00:30:52,960
Ethos is the emotional or moral justification for following the speaker's lead.

390
00:30:52,960 --> 00:30:56,480
And logos is a logic for following the speaker's lead.

391
00:30:56,480 --> 00:31:02,720
And basically what Aristotle said is that in order to persuade, the most important thing

392
00:31:02,720 --> 00:31:07,200
is ethos, the credibility and believability of the speaker.

393
00:31:07,200 --> 00:31:13,560
That if you cannot establish your credibility and believability, then the audience is not

394
00:31:13,560 --> 00:31:14,600
going to listen to you.

395
00:31:14,600 --> 00:31:21,200
And so just as Chris Voss asked open-ended questions to try to understand and connect

396
00:31:21,200 --> 00:31:29,520
with the host taker and be credible and believable, that effectively did two things in Aristotle's

397
00:31:29,520 --> 00:31:30,520
model.

398
00:31:30,520 --> 00:31:40,000
One, it showed that the negotiator is sincerely trying to understand the perspective of the

399
00:31:40,000 --> 00:31:41,000
other person.

400
00:31:41,000 --> 00:31:51,520
And it also emotionally connected the pathos, emotionally connected the hostage taker to

401
00:31:51,520 --> 00:31:58,360
the negotiator to the hostage taker, to show the hostage taker that I am trying to solve

402
00:31:58,360 --> 00:32:00,440
your problem as well as mine.

403
00:32:00,440 --> 00:32:04,520
It's a connection with the audience, the emotional connection with the audience.

404
00:32:04,520 --> 00:32:10,760
Because Aristotle said that ethos and pathos is what persuades.

405
00:32:10,760 --> 00:32:12,640
Pathos does not persuade.

406
00:32:12,640 --> 00:32:14,000
Logic does not persuade.

407
00:32:14,000 --> 00:32:15,280
Logic just fills in the brain.

408
00:32:15,280 --> 00:32:20,880
Once you believe the speaker, once you feel the speaker is right, you will find the logic

409
00:32:20,880 --> 00:32:26,200
to justify the actions that the speaker encourages.

410
00:32:26,200 --> 00:32:28,560
Now here's the problem for us as lawyers.

411
00:32:28,560 --> 00:32:33,400
When we go to law school, we learn to think like lawyers.

412
00:32:33,400 --> 00:32:39,480
And what that means is we turn this model of persuasion, these three steps of persuasion

413
00:32:39,480 --> 00:32:43,520
that Aristotle developed thousands of years ago.

414
00:32:43,520 --> 00:32:45,680
And we turn it upside down.

415
00:32:45,680 --> 00:32:47,800
We assume that logic is most important.

416
00:32:47,800 --> 00:32:54,320
The one thing that does not persuade, we assume that passion shouldn't matter.

417
00:32:54,320 --> 00:32:59,600
The one thing that Aristotle says you have to connect with in order to persuade people.

418
00:32:59,600 --> 00:33:02,680
And we assume that all people are created equal.

419
00:33:02,680 --> 00:33:08,520
And we discount the fact that we have to establish our personal credibility and believability

420
00:33:08,520 --> 00:33:14,800
with the audience in order to get them to believe and to connect emotionally to follow

421
00:33:14,800 --> 00:33:16,800
our lead.

422
00:33:16,800 --> 00:33:20,000
Ultimately, this is about building trust.

423
00:33:20,000 --> 00:33:29,320
It is about finding a way to get, whether it's a customer or whether it's the audience

424
00:33:29,320 --> 00:33:33,920
to trust us, to believe in us, to follow our lead.

425
00:33:33,920 --> 00:33:41,640
And this idea of developing trust was kind of expanded in a book called Positively Connected,

426
00:33:41,640 --> 00:33:51,040
where Sam Adderley, who is a mediator, used David Meister's trust equation and kind of

427
00:33:51,040 --> 00:34:00,120
changed a few of the concepts to make it more understandable to us as mediators.

428
00:34:00,120 --> 00:34:06,160
I said trust is like a fraction equation.

429
00:34:06,160 --> 00:34:12,440
On the top is credibility, reliability, and vulnerability.

430
00:34:12,440 --> 00:34:18,240
The more credible we are, the more likely our audience is going to trust us.

431
00:34:18,240 --> 00:34:23,520
The more reliable we are, the more likely our audience is going to trust us.

432
00:34:23,520 --> 00:34:30,080
And the more vulnerable you are, the more likely the audience is going to trust you.

433
00:34:30,080 --> 00:34:43,720
The vulnerability, the weakness, the authenticity of yourself is actually something that invites

434
00:34:43,720 --> 00:34:46,520
people to trust you.

435
00:34:46,520 --> 00:34:50,680
On the bottom of this equation is self-orientation.

436
00:34:50,680 --> 00:34:55,840
And the more we are self-orienting, the more we are interested in ourselves, the more we

437
00:34:55,840 --> 00:34:59,360
are interested in what are we going to get out of this deal.

438
00:34:59,360 --> 00:35:06,440
The more we are interested in protecting ourselves, the less we trust you.

439
00:35:06,440 --> 00:35:15,280
So the more selfless we are, the more vulnerable you are, the more we can gain the trust of

440
00:35:15,280 --> 00:35:23,320
our audience, the more that we can break through these impasses and work towards a voluntary

441
00:35:23,320 --> 00:35:25,760
agreement.

442
00:35:25,760 --> 00:35:32,480
So how do we go from being opponents to being teammates?

443
00:35:32,480 --> 00:35:37,600
How do we get to this point of reaching a voluntary agreement?

444
00:35:37,600 --> 00:35:44,400
One of the key ways in which we can become teammates as opposed to opponents is that

445
00:35:44,400 --> 00:35:46,040
we change the story.

446
00:35:46,040 --> 00:35:50,800
We change the story from being on opposite sides of the table to being on the same side

447
00:35:50,800 --> 00:35:57,800
of the table by us collaborating and working together as we on the same side of the table

448
00:35:57,800 --> 00:36:02,960
and we throw our clients and our problems and issues on the other side of the table

449
00:36:02,960 --> 00:36:08,480
and we work together to solve the problems on the other side of the table.

450
00:36:08,480 --> 00:36:10,680
That's how we get past and in-pass.

451
00:36:10,680 --> 00:36:17,040
The problem is that we have in the United States a canceled culture.

452
00:36:17,040 --> 00:36:23,880
We are very good at separating people out and saying that some people are not one of

453
00:36:23,880 --> 00:36:26,640
us, not part of our tribe.

454
00:36:26,640 --> 00:36:32,280
And here is an example where in terms of the native countries, we incarcerate more people

455
00:36:32,280 --> 00:36:36,480
per capita than anybody else among the native countries.

456
00:36:36,480 --> 00:36:44,440
In fact, we incarcerate people more than almost any country in the world.

457
00:36:44,440 --> 00:36:50,640
We're very good at dividing our people up and saying you're not part of our tribe.

458
00:36:50,640 --> 00:36:56,800
Even with respect to the government, back in 64, 77% of the people thought that the

459
00:36:56,800 --> 00:37:01,360
federal government did the right thing just about all the time.

460
00:37:01,360 --> 00:37:06,720
And today, it's only about 16% of the people that believe in the government that we consider

461
00:37:06,720 --> 00:37:10,600
ourselves as one, as all together.

462
00:37:10,600 --> 00:37:16,320
And it's the same with respect to lawyers that the public doesn't trust us either.

463
00:37:16,320 --> 00:37:23,720
That only about 16% of the public thinks lawyers have high or very high honesty and ethics.

464
00:37:23,720 --> 00:37:30,360
By contrast, the nurses, every single year that Gallup runs this poll, they come out

465
00:37:30,360 --> 00:37:31,360
in the 8% range.

466
00:37:31,360 --> 00:37:35,240
They're at the top of the chart every single year.

467
00:37:35,240 --> 00:37:43,480
And it goes back to that equation, that trust equation, that the more selfish we are perceived

468
00:37:43,480 --> 00:37:50,320
to be, the more self-interested we're perceived to be, the less people trust us.

469
00:37:50,320 --> 00:37:54,400
The more selfless we appear, the more people trust us.

470
00:37:54,400 --> 00:38:01,920
And if you look at this scale, it kind of follows that pattern of people or professions

471
00:38:01,920 --> 00:38:07,000
that we consider to be more selfless are at the higher end of the scale.

472
00:38:07,000 --> 00:38:14,160
And the people that we conceive as being more selfish are on the lower ends of the scale.

473
00:38:14,160 --> 00:38:16,480
But it wasn't always like this.

474
00:38:16,480 --> 00:38:23,560
Back in 1952, when Nixon was on the vice president show, was a vice president, vice president

475
00:38:23,560 --> 00:38:31,560
candidate on the Eisenhower ticket, there was a slush fund issue that came up, a controversy

476
00:38:31,560 --> 00:38:37,760
regarding his use of campaign funds for personal purposes.

477
00:38:37,760 --> 00:38:44,720
And there was a lot of talk about him being taken off this presidential ticket and being

478
00:38:44,720 --> 00:38:46,680
replaced by someone else.

479
00:38:46,680 --> 00:38:52,680
And so Nixon went on television and delivered what is called the checker's speech.

480
00:38:52,680 --> 00:38:53,680
Checkers was his dog.

481
00:38:53,680 --> 00:38:54,680
He talked about his dog.

482
00:38:54,680 --> 00:38:58,160
He talked about his wife's coat and a bunch of things.

483
00:38:58,160 --> 00:39:03,040
So probably one of the more interesting things about that speech is he decided to give St.

484
00:39:03,040 --> 00:39:10,320
Dunn-Quarcher, reviewing the receipts and approving of those receipts that back then

485
00:39:10,320 --> 00:39:20,000
lawyers were considered not selfish, but selfless in promoting the rule of law as opposed to

486
00:39:20,000 --> 00:39:24,160
protecting their particular clients.

487
00:39:24,160 --> 00:39:27,280
In the McCarthy hearings.

488
00:39:27,280 --> 00:39:33,960
The hearings were stopped when a partner, a Boston partner, Joseph Welch, defended

489
00:39:33,960 --> 00:39:41,920
an associate in his office and gave that famous line, Senator, at long last, have you left

490
00:39:41,920 --> 00:39:44,040
no sense of decency?

491
00:39:44,040 --> 00:39:47,800
And that stopped the McCarthy hearings.

492
00:39:47,800 --> 00:39:52,800
And this was a lawyer defending another lawyer.

493
00:39:52,800 --> 00:40:00,080
In the Supreme Court, the Supreme Court at that time was nine white men.

494
00:40:00,080 --> 00:40:11,160
And yet these nine white men unanimously issued the Brown versus Board of Education decision

495
00:40:11,160 --> 00:40:19,800
and thereby revolutionized and changed the entire history of our law at that point in

496
00:40:19,800 --> 00:40:20,800
time.

497
00:40:20,800 --> 00:40:30,600
The reason that lawyers had such prominence back then and not so much today was the story

498
00:40:30,600 --> 00:40:34,880
we told about ourselves was different.

499
00:40:34,880 --> 00:40:41,440
What, who we thought we were and how we conveyed that to the rest of the public was different

500
00:40:41,440 --> 00:40:43,520
than it is today.

501
00:40:43,520 --> 00:40:50,040
In the original canons of professional ethics that was issued in 1909 and existed until

502
00:40:50,040 --> 00:40:58,600
1969, the preamble to that professional canons is entirely on this screen.

503
00:40:58,600 --> 00:41:01,360
It was just as one paragraph.

504
00:41:01,360 --> 00:41:12,000
And it emphasized our role of giving the public absolute confidence in the integrity and impartiality

505
00:41:12,000 --> 00:41:15,600
of the administration of justice.

506
00:41:15,600 --> 00:41:27,200
In 1969, the new preamble for the ABA model rules continued to emphasize the rule of law

507
00:41:27,200 --> 00:41:32,320
and respect for the dignity of the individual.

508
00:41:32,320 --> 00:41:40,640
And again, it was this idea that we were there to promote a free and democratic society,

509
00:41:40,640 --> 00:41:46,840
help things beyond ourselves, selflessly promoting this larger purpose.

510
00:41:46,840 --> 00:41:51,000
But in 1983, our story changed.

511
00:41:51,000 --> 00:42:00,680
And the emphasis became on zealously representing our client, of being zealous advocates.

512
00:42:00,680 --> 00:42:07,680
And we even went so far as to say that if two sides are represented by zealous advocates,

513
00:42:07,680 --> 00:42:10,680
we can assume that justice will be done.

514
00:42:10,680 --> 00:42:14,160
We have no obligation to make sure that justice is done.

515
00:42:14,160 --> 00:42:20,040
We can assume justice is done if two sides are represented by zealous advocates.

516
00:42:20,040 --> 00:42:26,960
And we became a different kind of attorney, not one that is promoting this rule of law

517
00:42:26,960 --> 00:42:31,520
and fairness to everybody, but one who is representing clients.

518
00:42:31,520 --> 00:42:38,840
And so back in 1909, the emphasis was on integrity and impartiality.

519
00:42:38,840 --> 00:42:41,960
Today the emphasis is on clients.

520
00:42:41,960 --> 00:42:47,880
And the word client appears in the preamble 17 times, the word zealous appears three times.

521
00:42:47,880 --> 00:42:56,360
And those words never appeared in the prior versions of the preamble of our ABA model

522
00:42:56,360 --> 00:42:57,600
rules.

523
00:42:57,600 --> 00:43:04,680
This increase in defending a client looks a lot more selfish than selfless.

524
00:43:04,680 --> 00:43:12,400
So how do we, in light of all this, how do we transform from being zealous advocates

525
00:43:12,400 --> 00:43:19,160
into being teammates and being on the same side of the table?

526
00:43:19,160 --> 00:43:28,680
Well, again, the goal is a voluntary agreement.

527
00:43:28,680 --> 00:43:37,120
And the key to getting a voluntary agreement is this one word, we, that if we think of

528
00:43:37,120 --> 00:43:46,680
our objective being how do we reach an agreement, we are more likely to be able to overcome

529
00:43:46,680 --> 00:43:51,840
any type of impasse or being stuck in the agreement because we're not thinking solely

530
00:43:51,840 --> 00:43:59,320
about ourselves or our clients and what is good for us and our clients.

531
00:43:59,320 --> 00:44:00,760
How do we get there?

532
00:44:00,760 --> 00:44:04,000
How do we show that we are interested in we?

533
00:44:04,000 --> 00:44:09,400
How do we show that we are interested in solving all of our problems so that we can voluntarily

534
00:44:09,400 --> 00:44:10,400
agree?

535
00:44:10,400 --> 00:44:16,560
One of the most important things that we have to do to be able to get past these impasses

536
00:44:16,560 --> 00:44:20,040
is we need to be curious.

537
00:44:20,040 --> 00:44:26,840
Need to ask open-ended questions so that we can understand the perspective of the other

538
00:44:26,840 --> 00:44:30,080
parties that are involved.

539
00:44:30,080 --> 00:44:37,480
Classic example is a mother who has two children that are fighting over a lemon.

540
00:44:37,480 --> 00:44:43,040
And she decides to cut the lemon in half and give half to each of the children.

541
00:44:43,040 --> 00:44:45,320
And both of them are unhappy.

542
00:44:45,320 --> 00:44:50,800
And she does that when she cuts the lemon in half and gives it to both children.

543
00:44:50,800 --> 00:44:53,640
She is not being curious.

544
00:44:53,640 --> 00:44:59,360
She is not wondering what is each child going to be doing with this lemon.

545
00:44:59,360 --> 00:45:04,360
What is the, why are they fighting about this lemon?

546
00:45:04,360 --> 00:45:10,680
And her lack of curiosity means that she is relying on her own life experiences, their

547
00:45:10,680 --> 00:45:17,080
own life experiences, her own perspective, her own view of that chair to decide what

548
00:45:17,080 --> 00:45:21,240
is the right thing to do in this particular circle of sets to cut the lemon in half and

549
00:45:21,240 --> 00:45:23,840
give half to each child.

550
00:45:23,840 --> 00:45:31,320
Had she asked open-ended questions, she might have found out that one child wants the lemon

551
00:45:31,320 --> 00:45:35,040
for the zest to make lemon rang pie.

552
00:45:35,040 --> 00:45:39,800
The other child wants the lemon for the rind to make lemonade.

553
00:45:39,800 --> 00:45:46,120
And so had she been curious enough to ask what each child was going to do with this

554
00:45:46,120 --> 00:45:52,680
lemon, she might have been able to satisfy both of them 100% by just being curious.

555
00:45:52,680 --> 00:45:58,560
So one of the keys to getting to the same side of the table and working together to

556
00:45:58,560 --> 00:46:06,800
collaborate to solve the problems of our clients is to ask open-ended questions.

557
00:46:06,800 --> 00:46:08,440
Who, what, when, where, how?

558
00:46:08,440 --> 00:46:09,440
Tell me more.

559
00:46:09,440 --> 00:46:10,440
What do we get here?

560
00:46:10,440 --> 00:46:11,440
Where do we need to go?

561
00:46:11,440 --> 00:46:14,080
How do we get there?

562
00:46:14,080 --> 00:46:19,960
And there's a great book about this written by Alexander Carter, who is a Columbia Law

563
00:46:19,960 --> 00:46:25,120
professor, but she was a mediator first and then became a litigator.

564
00:46:25,120 --> 00:46:29,240
And so she had this appreciation about how to get people together.

565
00:46:29,240 --> 00:46:35,600
You have to show them that you are listening to their particular interests and identifying

566
00:46:35,600 --> 00:46:37,960
with them.

567
00:46:37,960 --> 00:46:43,160
She has in your book 10 questions, five questions that you ask yourself and five questions that

568
00:46:43,160 --> 00:46:44,760
you ask the other side.

569
00:46:44,760 --> 00:46:47,080
But it's 10 questions for any negotiation.

570
00:46:47,080 --> 00:46:53,800
And it is this basic concept of trying to understand the other side.

571
00:46:53,800 --> 00:46:57,440
The one question that is not included is why.

572
00:46:57,440 --> 00:47:01,040
Not all of why is exactly what we want to know.

573
00:47:01,040 --> 00:47:03,080
Why are we having this dispute?

574
00:47:03,080 --> 00:47:05,960
Why are you insisting on a particular position?

575
00:47:05,960 --> 00:47:09,800
Why does this solution not work?

576
00:47:09,800 --> 00:47:15,840
We want to know the answer to why, but the problem with asking why is it goes back to

577
00:47:15,840 --> 00:47:18,560
that consistency principle.

578
00:47:18,560 --> 00:47:27,800
The asking why forces a party to announce publicly a position, a line in the sand, as to why

579
00:47:27,800 --> 00:47:34,160
they are taking a particular posture in the negotiations.

580
00:47:34,160 --> 00:47:40,080
And once they announce publicly that posture, that position, it becomes very hard for them

581
00:47:40,080 --> 00:47:42,400
to back down from that position.

582
00:47:42,400 --> 00:47:46,320
And so that's the one question that we don't want to ask because of this consistency.

583
00:47:46,320 --> 00:47:55,200
I'd like to demonstrate to you how powerful open-ended questions can be.

584
00:47:55,200 --> 00:48:00,320
About a few years ago, I was in charge of the largest oil spill on the Port of Los Angeles.

585
00:48:00,320 --> 00:48:08,280
I represented a foreign shipper who was refueling their ship, and they had an overflow.

586
00:48:08,280 --> 00:48:12,840
And it contaminated seven miles of shoreline, and there was oil all over the harbor.

587
00:48:12,840 --> 00:48:16,240
And the harbor had to be closed all of a sudden.

588
00:48:16,240 --> 00:48:21,560
And it was like COVID-19, where all of a sudden the harbor was shut.

589
00:48:21,560 --> 00:48:22,760
Nobody could go in or out.

590
00:48:22,760 --> 00:48:27,280
And nobody knew how long it was going to take before we could clean things up and open up

591
00:48:27,280 --> 00:48:32,200
the harbor again.

592
00:48:32,200 --> 00:48:40,600
In order to process the 2,000 claims that came about as a result of that oil spill, we put

593
00:48:40,600 --> 00:48:47,640
together a claims office and tried to figure out a process for resolving all the claims.

594
00:48:47,640 --> 00:48:54,600
About two days after the spill, we had a meeting with all the potential claimants, and we tried

595
00:48:54,600 --> 00:48:58,160
to explain how we're going to process all of their claims.

596
00:48:58,160 --> 00:49:05,400
I had hired a claims manager, and he got up on the podium and tried to explain what the

597
00:49:05,400 --> 00:49:10,640
process is going to be and how we're going to process all of the claims.

598
00:49:10,640 --> 00:49:11,840
He got shouted down.

599
00:49:11,840 --> 00:49:18,800
Everybody thought that he was yelling at him and saying, you know, saying our clients were

600
00:49:18,800 --> 00:49:23,000
stupid and they shouldn't have had this spill, and they messed everything up, and they shut

601
00:49:23,000 --> 00:49:28,800
down the harbor and they just kept yelling at him and not listening to his explanation

602
00:49:28,800 --> 00:49:32,920
to how we're going to process the claims.

603
00:49:32,920 --> 00:49:40,960
So I got up to the podium, and the next person that yelled at me, I asked them, what do you

604
00:49:40,960 --> 00:49:45,920
think we should do that we're not doing already?

605
00:49:45,920 --> 00:49:51,360
And that person said something about communication.

606
00:49:51,360 --> 00:49:57,680
And one of my guys was standing next to a big whiteboard that we were using to map out

607
00:49:57,680 --> 00:50:04,120
how we're going to clean up the harbor, and he wrote down what that person said.

608
00:50:04,120 --> 00:50:06,080
The next person that yelled at me, the same thing.

609
00:50:06,080 --> 00:50:10,200
I asked them, what do you think we should be doing now that we're not doing already?

610
00:50:10,200 --> 00:50:13,120
And we wrote down what that person said.

611
00:50:13,120 --> 00:50:18,040
And each person that yelled at me, I asked the same question and pretty soon he filled

612
00:50:18,040 --> 00:50:20,400
up the entire board.

613
00:50:20,400 --> 00:50:26,520
And then this guy in the back of the crowd got up and he said, I don't give a damn about

614
00:50:26,520 --> 00:50:27,680
any of this.

615
00:50:27,680 --> 00:50:30,680
Where's my money?

616
00:50:30,680 --> 00:50:38,200
And that this lady in the front row, shut up, turned to the back of the crowd and said,

617
00:50:38,200 --> 00:50:40,000
sit down and shut up.

618
00:50:40,000 --> 00:50:42,680
These guys are trying to help.

619
00:50:42,680 --> 00:50:47,920
And I was completely surprised because this group that was in the front row, including

620
00:50:47,920 --> 00:50:56,560
this woman, were organizing to bring a mass action against my client.

621
00:50:56,560 --> 00:51:00,880
Before the meeting started, they were milling around, getting contact information from everybody

622
00:51:00,880 --> 00:51:04,880
to bring a mass action against my client.

623
00:51:04,880 --> 00:51:11,480
But the act of asking the open-ended questions, and it's not that I knew what to do at the

624
00:51:11,480 --> 00:51:12,480
time.

625
00:51:12,480 --> 00:51:15,280
I'm looking back.

626
00:51:15,280 --> 00:51:19,400
And now that I'm a mediator, I'm looking back and trying to figure out what happened

627
00:51:19,400 --> 00:51:23,560
back then because at the time I didn't know what happened.

628
00:51:23,560 --> 00:51:32,800
But the act of asking an open-ended question not only helped to try to figure out what

629
00:51:32,800 --> 00:51:38,520
the audience was thinking, but it invited the audience to be a collaborator.

630
00:51:38,520 --> 00:51:41,800
We didn't agree with everything that people were saying, but we wrote down everything

631
00:51:41,800 --> 00:51:43,240
that they said.

632
00:51:43,240 --> 00:51:47,880
And so they invited them to collaborate with us, to be on the same side of the table, to

633
00:51:47,880 --> 00:51:51,440
solve this particular problem.

634
00:51:51,440 --> 00:52:00,600
And it was amazing because after we had this discussion, that group of people that were

635
00:52:00,600 --> 00:52:05,360
organizing against us became our leisons with a lot of the claimants.

636
00:52:05,360 --> 00:52:13,120
And we were able to settle 600 of the 2,000 claims within two weeks of this film.

637
00:52:13,120 --> 00:52:18,680
And settle all 2,000 within three months of this film.

638
00:52:18,680 --> 00:52:25,360
And when I look back on it now, I now realize that that open-ended questions that I accidentally

639
00:52:25,360 --> 00:52:35,600
asked had a powerful effect in getting us past this impasse, getting us past this obstacle

640
00:52:35,600 --> 00:52:44,680
of being on opposite sides and becoming collaborators on the same side of the table.

641
00:52:44,680 --> 00:52:52,760
I find that in the pandemic, one of the greatest things that has happened is that we have these

642
00:52:52,760 --> 00:52:54,560
online platforms.

643
00:52:54,560 --> 00:53:01,320
And on the online platforms, we get to see people's background, whether it's virtual

644
00:53:01,320 --> 00:53:06,240
or the background that they have in their house or office or wherever it is.

645
00:53:06,240 --> 00:53:11,280
And we see a lot of things in the background that we would not see if they were in a conference

646
00:53:11,280 --> 00:53:12,520
room.

647
00:53:12,520 --> 00:53:21,880
And sometimes we see kids and pets and people walking by that we would not see if we were

648
00:53:21,880 --> 00:53:23,560
in a conference room.

649
00:53:23,560 --> 00:53:32,760
And those backgrounds give us an opportunity to conduct some small talk.

650
00:53:32,760 --> 00:53:39,000
And that small talk gives us an opportunity to engage, ask open-ended questions that have

651
00:53:39,000 --> 00:53:46,040
nothing to do with the dispute, but allows us to find ways in which we can empathize

652
00:53:46,040 --> 00:53:50,560
and identify with all the people that are involved.

653
00:53:50,560 --> 00:53:57,960
Not necessarily to agree on anything, but rather to show that we are not so selfish or more

654
00:53:57,960 --> 00:54:05,600
selfless to make us all a little more vulnerable and to basically try to get everybody on the

655
00:54:05,600 --> 00:54:10,680
same side of the table.

656
00:54:10,680 --> 00:54:17,240
Part of the agreements too, the way in which to get past these impasses, is that we have

657
00:54:17,240 --> 00:54:19,080
to expand the possibilities.

658
00:54:19,080 --> 00:54:24,480
We can't think only in terms of what's going to happen to trial and what the amounts are.

659
00:54:24,480 --> 00:54:26,640
And we can't think only in terms of money.

660
00:54:26,640 --> 00:54:32,480
We have to expand what the possibilities are and the kinds of things that we talk about.

661
00:54:32,480 --> 00:54:38,560
We have to expand the story that we're going to tell in order to get people to agree to

662
00:54:38,560 --> 00:54:45,280
a resolution and not be stuck in the binary trial story.

663
00:54:45,280 --> 00:54:53,160
In essence, in order to get past this impasse, this being stuck, we have to kind of think

664
00:54:53,160 --> 00:54:54,960
of the larger story.

665
00:54:54,960 --> 00:55:02,760
How do we get us all on the same page so we can walk together out of this mediation with

666
00:55:02,760 --> 00:55:03,760
a story?

667
00:55:03,760 --> 00:55:07,760
It doesn't have to be the same story, but with a story that each of us can tell ourselves

668
00:55:07,760 --> 00:55:09,960
that makes us want to agree.

669
00:55:09,960 --> 00:55:16,360
We have to change perspectives and we have to think of the problem as being a we problem,

670
00:55:16,360 --> 00:55:19,520
not a me or them or us or them problem.

671
00:55:19,520 --> 00:55:23,200
Let me give you a couple of examples of how this happens.

672
00:55:23,200 --> 00:55:31,320
How we can transform a situation that is focused on me to a situation where we can talk about

673
00:55:31,320 --> 00:55:32,320
we.

674
00:55:32,320 --> 00:55:39,040
You know, the Obergefell versus Hodges case is a very interesting example.

675
00:55:39,040 --> 00:55:42,000
It's the same sex marriage case.

676
00:55:42,000 --> 00:55:49,080
Back in 2000, there was a proposition in the California ballot that said that they wanted

677
00:55:49,080 --> 00:55:55,040
to amend the constitution, the California constitution, to say that marriage is only

678
00:55:55,040 --> 00:55:57,840
between a man and a woman.

679
00:55:57,840 --> 00:56:01,360
That proposition passed by over 60% of the vote.

680
00:56:01,360 --> 00:56:11,240
It was overwhelmingly popular amendment to change our California constitution to ban

681
00:56:11,240 --> 00:56:20,240
same sex marriage essentially and to say that marriage is only between a man and a woman.

682
00:56:20,240 --> 00:56:28,160
Some 13 years later, polling indicated that we were in exactly the opposite position.

683
00:56:28,160 --> 00:56:34,320
That 60% or more than 60% of people supported same sex marriage as opposed to those that

684
00:56:34,320 --> 00:56:35,680
opposed.

685
00:56:35,680 --> 00:56:37,480
What happened in that intro?

686
00:56:37,480 --> 00:56:45,680
One of the main things that happened is William Grace was the most popular sitcom on television.

687
00:56:45,680 --> 00:56:49,560
Back then, we didn't have all separate streaming channels or anything like that.

688
00:56:49,560 --> 00:56:54,560
We generally had a few channels and we're all watching the same programs.

689
00:56:54,560 --> 00:57:02,360
William Grace was the most popular sitcom during this period of time.

690
00:57:02,360 --> 00:57:07,880
It wasn't popular with just a LGBTQ segment of the population.

691
00:57:07,880 --> 00:57:10,680
It was popular with everybody.

692
00:57:10,680 --> 00:57:19,200
Although the show featured LGBTQ characters, what the storyline told us was that these

693
00:57:19,200 --> 00:57:24,760
LGBTQ characters are more like us than different.

694
00:57:24,760 --> 00:57:27,800
They have the same problems, they have the same issues.

695
00:57:27,800 --> 00:57:35,680
The identification caused others to come out and LNGPGeneres came out and Vice President

696
00:57:35,680 --> 00:57:37,600
Cheney's daughter came out.

697
00:57:37,600 --> 00:57:43,520
Basically, we started to realize that there's a lot more LGBTQ people around us than we

698
00:57:43,520 --> 00:57:50,080
imagined and it normalized the LGBTQ community in our society.

699
00:57:50,080 --> 00:57:55,480
They stopped being in other and became more of us.

700
00:57:55,480 --> 00:58:01,280
Basically, the messaging by the LGBTQ community also changed.

701
00:58:01,280 --> 00:58:07,840
That rather than saying that back in 2000, the messaging was, we are different and we

702
00:58:07,840 --> 00:58:10,440
have a right to be different.

703
00:58:10,440 --> 00:58:15,160
The messaging in the 2013 period was, we're just like you.

704
00:58:15,160 --> 00:58:16,600
We have families just like you.

705
00:58:16,600 --> 00:58:18,160
We have kids just like you.

706
00:58:18,160 --> 00:58:20,680
We are just like you.

707
00:58:20,680 --> 00:58:29,520
That identification as being just like everybody else is what causes change in the perspective

708
00:58:29,520 --> 00:58:32,480
about same-sex marriage.

709
00:58:32,480 --> 00:58:37,040
How do we go from us and versus them to we?

710
00:58:37,040 --> 00:58:39,600
We have to look beyond the game.

711
00:58:39,600 --> 00:58:46,960
Here's another story that exemplifies this idea of looking beyond the narrow perspective

712
00:58:46,960 --> 00:58:52,400
of the often-on switch of trial or arbitration.

713
00:58:52,400 --> 00:58:57,800
Sarah Tuchowski was in a championship college softball game.

714
00:58:57,800 --> 00:59:04,080
She is a diminutive woman and she had never hit a home run in her life.

715
00:59:04,080 --> 00:59:07,800
But she got up to the plate and this is a championship game.

716
00:59:07,800 --> 00:59:11,960
She got up to the plate and she hit the ball out of the park.

717
00:59:11,960 --> 00:59:17,160
She was so excited that she ran to the first base and rounded the corner and started going

718
00:59:17,160 --> 00:59:18,680
to second base.

719
00:59:18,680 --> 00:59:23,000
The first base coach said, hey, Sarah, you got to touch the base.

720
00:59:23,000 --> 00:59:29,280
She turned back to go to first base and something popped and she fell to the ground and she

721
00:59:29,280 --> 00:59:32,320
couldn't get up.

722
00:59:32,320 --> 00:59:41,200
She tried crawling to the base and she finally touched the base but she couldn't stand up.

723
00:59:41,200 --> 00:59:47,200
One of her teammates asked if they could pick her up and take her on bases and the Empire

724
00:59:47,200 --> 00:59:52,640
said, no, it will be a single if you touch her.

725
00:59:52,640 --> 00:59:58,360
Mary Hopen was the first baseman on the opposite team.

726
00:59:58,360 --> 01:00:02,640
She asked the Empire, what happens if I touch her?

727
01:00:02,640 --> 01:00:10,560
He looked to the book and said, I don't have any problem with you touching her.

728
01:00:10,560 --> 01:00:17,720
Mary called her right fielder, Liz Wallace, and Liz and Mary picked up Sarah and touched

729
01:00:17,720 --> 01:00:26,080
her base, touched her foot on second base, on third base, and at home.

730
01:00:26,080 --> 01:00:34,560
As a result of this home run, Mallory and Liz lost this championship game.

731
01:00:34,560 --> 01:00:43,800
But the reason that they did this was Mallory was a home run champion and she appreciated

732
01:00:43,800 --> 01:00:52,600
the idea of having home runs and didn't think it was right for Sarah to have hit the ball

733
01:00:52,600 --> 01:00:56,880
out of the park and for it to be counted as a single.

734
01:00:56,880 --> 01:01:06,280
So she fought beyond the game and figured out a way to give Sarah this home run.

735
01:01:06,280 --> 01:01:11,080
This was back in 2008 and I'm still talking about it today.

736
01:01:11,080 --> 01:01:17,720
It is looking beyond the limited opportunities of the court.

737
01:01:17,720 --> 01:01:22,680
The court can't decide that you should pay overtime, the court can't decide that they

738
01:01:22,680 --> 01:01:30,200
should be cross licensing, the court can't decide whether perhaps a business deal is

739
01:01:30,200 --> 01:01:34,600
coming up down the line so maybe we should give the other side an opportunity to invest

740
01:01:34,600 --> 01:01:36,040
in that business deal.

741
01:01:36,040 --> 01:01:40,520
Court can't decide that one party should apologize to your party.

742
01:01:40,520 --> 01:01:49,320
A limited role is an off-and-off switch with a dimmer, but the parties can agree to anything

743
01:01:49,320 --> 01:01:50,320
and that's the opportunity.

744
01:01:50,320 --> 01:01:55,480
You have to think beyond the game and think beyond the court's questions.

745
01:01:55,480 --> 01:01:59,960
Let me give you an example of this.

746
01:01:59,960 --> 01:02:10,480
A few years ago I was caught out to a factory where an employee died in a sandside.

747
01:02:10,480 --> 01:02:14,840
They got sucked on the sandside and he died for all the wrong reasons.

748
01:02:14,840 --> 01:02:25,720
There was no safety harness, there was no radio, there was no watchman, there was no information

749
01:02:25,720 --> 01:02:30,800
regarding a person that was trying to clean out the sandside and somebody turned it on.

750
01:02:30,800 --> 01:02:36,880
That's how he drowned in the sandside.

751
01:02:36,880 --> 01:02:44,720
I got there the morning after this accident occurred and the district attorneys, investigators

752
01:02:44,720 --> 01:02:48,120
were there and the OSHA investigators were there.

753
01:02:48,120 --> 01:02:55,640
They were all trying to figure out what happened and planning to bring felony charges against

754
01:02:55,640 --> 01:03:04,160
individuals and the company and OSHA charges as well.

755
01:03:04,160 --> 01:03:09,480
While I was there, the shop steward was coming out of a meeting with the investigators and

756
01:03:09,480 --> 01:03:16,680
I stopped him and I asked him, what do you think we should be doing when this happened?

757
01:03:16,680 --> 01:03:22,800
It's kind of a question I kept asking, I guess, and I didn't realize the impact that

758
01:03:22,800 --> 01:03:24,680
we have.

759
01:03:24,680 --> 01:03:32,120
He said that a lot of people are really hurting and they're concerned about working at this

760
01:03:32,120 --> 01:03:36,560
Petitor Factory because of the safety issues.

761
01:03:36,560 --> 01:03:45,120
Listening to that, we got the management of the company to basically bring in some mental

762
01:03:45,120 --> 01:03:47,600
health professionals to talk to all the employees.

763
01:03:47,600 --> 01:03:54,040
We went to the family's house and sat with them and took care of the criminal expenses.

764
01:03:54,040 --> 01:04:01,760
We brought in a safety expert to look at all the safety issues and change everything in

765
01:04:01,760 --> 01:04:05,160
the factory so that it would be a safer place to work.

766
01:04:05,160 --> 01:04:12,120
Then I went to the district attorney and I went to OSHA to see if we could resolve the

767
01:04:12,120 --> 01:04:14,080
matters with them.

768
01:04:14,080 --> 01:04:17,160
They said, well, we haven't even brought charges yet.

769
01:04:17,160 --> 01:04:19,680
We don't even know what we're going to charge yet.

770
01:04:19,680 --> 01:04:25,480
I said, it doesn't matter, the people are hurting and we really want to get this resolved

771
01:04:25,480 --> 01:04:30,520
and try to figure out how we can move forward.

772
01:04:30,520 --> 01:04:38,440
Both the OSHA representatives as well as the attorney thought this was premature.

773
01:04:38,440 --> 01:04:46,840
I heard from them enough to understand that they were really sincere in terms of wanting

774
01:04:46,840 --> 01:04:54,520
to create better working conditions and wanting to take care of employees.

775
01:04:54,520 --> 01:05:01,600
I told them that basically we're going to give them everything that we have in terms

776
01:05:01,600 --> 01:05:07,640
of all the documents and everything that happened before this particular incident.

777
01:05:07,640 --> 01:05:10,960
We're committed to becoming a good citizen from this point forward.

778
01:05:10,960 --> 01:05:13,400
We can't change the past.

779
01:05:13,400 --> 01:05:14,920
What happened happened.

780
01:05:14,920 --> 01:05:20,040
But we're going to turn over new leaf and we're going to be a good citizen from this

781
01:05:20,040 --> 01:05:21,640
day forward.

782
01:05:21,640 --> 01:05:29,640
I told them that if you got to treat good guys that are willing to cooperate before

783
01:05:29,640 --> 01:05:35,480
you've conducted any discovery before you've brought charges, you've got to treat good

784
01:05:35,480 --> 01:05:42,640
guys better than bad guys that are going to be withholding documents and not giving you

785
01:05:42,640 --> 01:05:43,640
information.

786
01:05:43,640 --> 01:05:48,320
Otherwise, there's no point in being a good guy.

787
01:05:48,320 --> 01:05:59,160
That story of treating good guys better than bad guys was the basis for both the district

788
01:05:59,160 --> 01:06:07,440
attorney and OSHA to rethink how they wanted to treat this particular company.

789
01:06:07,440 --> 01:06:14,560
Although the company had done everything wrong, the reframing of the story to expose their

790
01:06:14,560 --> 01:06:24,840
vulnerability and to increase their selflessness allowed the district attorney and the OSHA

791
01:06:24,840 --> 01:06:27,680
people to trust us a little bit more.

792
01:06:27,680 --> 01:06:33,120
It also allowed the shop steward to trust us a little bit more.

793
01:06:33,120 --> 01:06:38,720
As a result, when we went to the district attorney and to the OSHA to try to resolve the dispute,

794
01:06:38,720 --> 01:06:45,920
the shop steward came with us and we all worked together to try to resolve this claim.

795
01:06:45,920 --> 01:06:51,600
As a result, the charges were filed and dismissed the same day because we already worked out

796
01:06:51,600 --> 01:06:57,120
all the details of the criminal charges as well as the OSHA charges.

797
01:06:57,120 --> 01:07:07,000
But it is this effort to increase our vulnerability, decrease our self-orientation so that we're

798
01:07:07,000 --> 01:07:12,480
more selfless that allowed us to change the story and get us on the same side of the table

799
01:07:12,480 --> 01:07:15,920
to try to resolve the problems on the other side.

800
01:07:15,920 --> 01:07:22,880
An example of this effort to understand the other side and to think not so much about

801
01:07:22,880 --> 01:07:27,840
our own interests but to understand the other side's problem is Jerry Bus.

802
01:07:27,840 --> 01:07:32,840
Jerry Bus owned the Lakers from 1979 to 2013.

803
01:07:32,840 --> 01:07:36,960
During that period of time, he went to the finals.

804
01:07:36,960 --> 01:07:41,040
The Lakers went to the finals 16 times.

805
01:07:41,040 --> 01:07:43,120
They won the finals 10 times.

806
01:07:43,120 --> 01:07:45,040
You wonder, how did he do that?

807
01:07:45,040 --> 01:07:51,040
How did he take these Lakers and take them to the finals so often and to win so many

808
01:07:51,040 --> 01:07:53,040
championships?

809
01:07:53,040 --> 01:07:58,040
Franchises are happy if they win one championship, but he won 10 during the time that he owned

810
01:07:58,040 --> 01:07:59,720
the Lakers.

811
01:07:59,720 --> 01:08:04,680
At his funeral, his business partner talked about how Jerry Bus did business and it really

812
01:08:04,680 --> 01:08:09,720
exemplified this concept of solving other people's problems.

813
01:08:09,720 --> 01:08:13,720
Looking at the problem not just from your own perspective but trying to see the problem

814
01:08:13,720 --> 01:08:16,920
from the other perspectives.

815
01:08:16,920 --> 01:08:25,680
His business partner told the funeral audience that Jerry Bus, when he did business, he would

816
01:08:25,680 --> 01:08:27,280
look at the deal from all sides.

817
01:08:27,280 --> 01:08:30,440
If he thought it was fair to all sides, he would do the deal.

818
01:08:30,440 --> 01:08:35,000
If he didn't think it was fair to all sides, he wouldn't do the deal.

819
01:08:35,000 --> 01:08:39,800
One time, he agreed to do a deal, but after the fact, he thought it was unfair to one

820
01:08:39,800 --> 01:08:40,800
of the parties.

821
01:08:40,800 --> 01:08:43,800
He threw in a couple of players just to make it fair.

822
01:08:43,800 --> 01:08:49,600
Think about how you would feel negotiating with Jerry Bus as opposed to another owner

823
01:08:49,600 --> 01:08:54,920
that might want to take everything for themselves and try to take as much as they can off the

824
01:08:54,920 --> 01:09:00,520
table for themselves and give as little as possible in the negotiations.

825
01:09:00,520 --> 01:09:06,760
How would you feel about protecting yourself and opening up and trying to cooperate and

826
01:09:06,760 --> 01:09:12,600
work together and work on the same other table to solve problems if you were dealing with

827
01:09:12,600 --> 01:09:16,480
somebody like Jerry Bus as opposed to somebody who won't take everything for themselves?

828
01:09:16,480 --> 01:09:21,120
What's interesting about Jerry Bus is that he started out as a USC professor.

829
01:09:21,120 --> 01:09:28,640
He used this way of working from the time that he started buying small apartment buildings,

830
01:09:28,640 --> 01:09:31,320
fixing them up with his friends and selling them.

831
01:09:31,320 --> 01:09:36,160
They did this and they got bigger and bigger apartment buildings as they were going along.

832
01:09:36,160 --> 01:09:41,000
By the time he bought the Lakers, he owned the Chrysler Building in New York and traded

833
01:09:41,000 --> 01:09:47,120
the Chrysler Building in New York for the Lakers.

834
01:09:47,120 --> 01:09:52,200
This idea of looking at the problem from the other side is how we can start to get on the

835
01:09:52,200 --> 01:09:56,640
same side to get past the impasses.

836
01:09:56,640 --> 01:09:58,080
Talk about small talking.

837
01:09:58,080 --> 01:10:02,960
Again, here's an example of how that works.

838
01:10:02,960 --> 01:10:10,880
Chris Bus says that when he talks to the hostage takers, he wants them to say, that's right.

839
01:10:10,880 --> 01:10:15,840
That to affirm that he can see their perspective and he can identify with them and now they

840
01:10:15,840 --> 01:10:22,040
can hear him and now they can collaborate and work together to try to solve the hostage

841
01:10:22,040 --> 01:10:23,040
taking problem.

842
01:10:23,040 --> 01:10:32,760
One of the greatest examples of this small talk and how important it is in terms of resolving

843
01:10:32,760 --> 01:10:40,600
disputes and getting past these situations where we're stuck is Nelson Mandela.

844
01:10:40,600 --> 01:10:48,960
Nelson Mandela was imprisoned by the apartheid, Afrikaans government for 27 years of hard

845
01:10:48,960 --> 01:10:51,000
labor.

846
01:10:51,000 --> 01:10:55,520
He had every reason to hate, he had every reason to be resentful, he had every reason

847
01:10:55,520 --> 01:11:06,240
to not want to cooperate and to continue to try to seek revenge against the South African

848
01:11:06,240 --> 01:11:07,920
Afrikaans government.

849
01:11:07,920 --> 01:11:15,400
But instead, he realized that his guards were just as much imprisoned as he was in terms

850
01:11:15,400 --> 01:11:20,960
of viewing the world in black and white terms.

851
01:11:20,960 --> 01:11:29,720
He started to extend compassion and understanding to his guards and showing them this reciprocal

852
01:11:29,720 --> 01:11:39,360
respect and initiating concern and empathy for their families and what they were doing.

853
01:11:39,360 --> 01:11:46,120
In that manner, he didn't just simply react to what the apartheid government had done

854
01:11:46,120 --> 01:11:53,720
to him, but rather he started the reciprocality by extending this idea of understanding and

855
01:11:53,720 --> 01:12:00,080
empathy for the guards and their families.

856
01:12:00,080 --> 01:12:07,960
And that resulted in their respect for him and eventually a level of respect that allowed

857
01:12:07,960 --> 01:12:15,720
Nelson Mandela to negotiate a bloodless transformation of the apartheid government in South Africa.

858
01:12:15,720 --> 01:12:22,200
That's how powerful this small talk about issues that are not directly involved in the

859
01:12:22,200 --> 01:12:30,160
controversy can result in getting out of the impasse and being stuck.

860
01:12:30,160 --> 01:12:34,040
Alright, let's talk a little bit about techniques.

861
01:12:34,040 --> 01:12:39,280
What kind of techniques can we use to try to get on the same side of the table when working

862
01:12:39,280 --> 01:12:42,120
together as we?

863
01:12:42,120 --> 01:12:44,480
This is how we talk as lawyers.

864
01:12:44,480 --> 01:12:46,000
Yes, but.

865
01:12:46,000 --> 01:12:47,840
Yes, but.

866
01:12:47,840 --> 01:12:51,560
And we start to make our argument.

867
01:12:51,560 --> 01:13:00,480
By using this way of talking, we basically discount what the other side said.

868
01:13:00,480 --> 01:13:04,080
We're just waiting for our turn to talk.

869
01:13:04,080 --> 01:13:09,280
In the improv world, they use this way of talking.

870
01:13:09,280 --> 01:13:16,880
Yes, and they basically affirm what the other person did or said, and they build on it so

871
01:13:16,880 --> 01:13:20,400
that they don't simply stop the other story.

872
01:13:20,400 --> 01:13:26,920
They continue the story by listening to the other person's words and actions and trying

873
01:13:26,920 --> 01:13:31,560
to build on it and continue the story forward.

874
01:13:31,560 --> 01:13:38,400
This is described in the book Yes, and by the founders of Second City.

875
01:13:38,400 --> 01:13:44,760
And it is this idea of continuing the story rather than cutting off the story of listening

876
01:13:44,760 --> 01:13:50,360
and expanding upon what other people are saying.

877
01:13:50,360 --> 01:13:57,360
This idea of expanding the discussion avoids being stuck in these binary discussions.

878
01:13:57,360 --> 01:14:03,640
It avoids us arguing over and over again about our perspective and how we see the case and

879
01:14:03,640 --> 01:14:04,640
all that.

880
01:14:04,640 --> 01:14:09,840
And it forces us to try to listen very carefully to what the other side is saying and find

881
01:14:09,840 --> 01:14:15,400
out by listening whether there's any commonality that we can draw out of it, whether there's

882
01:14:15,400 --> 01:14:22,960
any avenue that we can take that will be consistent with the positions and interests that the

883
01:14:22,960 --> 01:14:24,560
other side is expressing.

884
01:14:24,560 --> 01:14:32,760
It also allows us to understand whether we can find a way to use the interests of the

885
01:14:32,760 --> 01:14:37,720
other side to blend with our own interests to find a path forward.

886
01:14:37,720 --> 01:14:44,400
But it depended upon us understanding, liking, and respecting the other side.

887
01:14:44,400 --> 01:14:52,800
Another way of thinking about this is the fact that we have different interests is not

888
01:14:52,800 --> 01:15:00,480
necessarily a showstopper, that we don't need to have common ground.

889
01:15:00,480 --> 01:15:01,840
We can have uncommon ground.

890
01:15:01,840 --> 01:15:07,920
We have different valuations of various things so that something that the other side may

891
01:15:07,920 --> 01:15:13,120
think is not that valuable, we may think is very valuable, or we may want to do something

892
01:15:13,120 --> 01:15:17,760
right now or the other side may have a longer time horizon.

893
01:15:17,760 --> 01:15:25,640
So we can adjust and negotiate between different types of interests that might have risk tolerance

894
01:15:25,640 --> 01:15:32,120
and we can shape the agreement if we understand the interests of the other side.

895
01:15:32,120 --> 01:15:34,600
And again, it requires open-ended questions.

896
01:15:34,600 --> 01:15:39,880
It requires a lot of probing to try to understand what the underlying interests of both sides

897
01:15:39,880 --> 01:15:44,440
are so that we can start to find opportunities.

898
01:15:44,440 --> 01:15:49,920
We also need to listen, just like I talked about with respect to the sidal case.

899
01:15:49,920 --> 01:15:55,920
Now to listen to what are the goals of the other side.

900
01:15:55,920 --> 01:16:01,760
What are their objectives and how do we craft the story so that it's a victory for the

901
01:16:01,760 --> 01:16:02,760
other side?

902
01:16:02,760 --> 01:16:10,480
How do we describe what we're doing in such a way that the other side thinks that this

903
01:16:10,480 --> 01:16:17,040
is a good thing, they want to voluntarily agree to this resolution?

904
01:16:17,040 --> 01:16:21,680
One way of exploring the possibilities is to use what if.

905
01:16:21,680 --> 01:16:22,680
What if we do this?

906
01:16:22,680 --> 01:16:28,280
Not so much I offer this or I demand this, but rather what if.

907
01:16:28,280 --> 01:16:29,680
What if we do this?

908
01:16:29,680 --> 01:16:34,640
It's sort of a non-committal kind of thing that allows us to feel out each other and

909
01:16:34,640 --> 01:16:41,880
see whether there is a possibility, a path forward that we can both agree on.

910
01:16:41,880 --> 01:16:48,760
And while we're doing this, it is so important to listen, listen and observe and see how

911
01:16:48,760 --> 01:16:57,120
we can affect each other, how we can use the reciprocality of people to a positive advantage.

912
01:16:57,120 --> 01:17:02,640
See how they're reacting, their first reaction to proposals or what if proposals.

913
01:17:02,640 --> 01:17:08,000
See if there's ways in which we can set out a bunch of alternatives and see which one

914
01:17:08,000 --> 01:17:11,880
is more of interest to the other side than the other.

915
01:17:11,880 --> 01:17:18,080
You know, it's rather than just one offer, one demand, several different possibilities

916
01:17:18,080 --> 01:17:23,360
that we're agreeable to that allows us to understand what is important to them and what

917
01:17:23,360 --> 01:17:25,040
is not important to them.

918
01:17:25,040 --> 01:17:28,200
And in the process, we have to understand that we are messaging.

919
01:17:28,200 --> 01:17:32,040
We are letting the other side know what we are interested in.

920
01:17:32,040 --> 01:17:39,600
And so we have to be very conscious of what we are messaging in the process of this negotiation.

921
01:17:39,600 --> 01:17:43,640
Ultimately, the focus has to be on now.

922
01:17:43,640 --> 01:17:44,840
We can't change the past.

923
01:17:44,840 --> 01:17:46,080
The past is already done.

924
01:17:46,080 --> 01:17:48,040
Whatever happened, happened.

925
01:17:48,040 --> 01:17:50,200
We can only change today and tomorrow.

926
01:17:50,200 --> 01:17:57,560
And so we are seeking some way in which both sides can walk forward together because it

927
01:17:57,560 --> 01:18:01,280
is not something that we can force the other side to agree to.

928
01:18:01,280 --> 01:18:06,240
It is only something that we can collectively and jointly agree to.

929
01:18:06,240 --> 01:18:09,720
It is a voluntary agreement that we are seeking.

930
01:18:09,720 --> 01:18:14,720
Talk a little bit about a mediator's proposal.

931
01:18:14,720 --> 01:18:25,440
mediator's proposal involves this concept of some area, the zone of potential agreement,

932
01:18:25,440 --> 01:18:35,160
where you have a sense that the party offering is willing to offer more than the demands

933
01:18:35,160 --> 01:18:36,160
of the other side.

934
01:18:36,160 --> 01:18:41,520
So there's an overlap between the demands and the offer.

935
01:18:41,520 --> 01:18:48,480
When you have NOPA, which is no opportunity for potential agreement, it means that the

936
01:18:48,480 --> 01:18:58,280
bottom line of the person making demands is above the ceiling of the party that is making

937
01:18:58,280 --> 01:18:59,280
the office.

938
01:18:59,280 --> 01:19:03,560
So there's a gap between the two sides.

939
01:19:03,560 --> 01:19:11,080
And so the mediator's proposal attempts to find that zone of potential agreement or create

940
01:19:11,080 --> 01:19:19,360
that zone of potential agreement by getting the parties to a position where you can encourage

941
01:19:19,360 --> 01:19:26,840
them to come to some kind of a meeting point between the two sides and all that.

942
01:19:26,840 --> 01:19:34,920
There are a lot of people, Mark Lemke and a lot of others, they have much more sophisticated

943
01:19:34,920 --> 01:19:37,680
discussions about how you use mediator's proposal.

944
01:19:37,680 --> 01:19:43,080
The mediator's proposal is one way to help the parties try to get on the same table,

945
01:19:43,080 --> 01:19:50,440
to get into a common perspective about how the case can be resolved.

946
01:19:50,440 --> 01:19:55,880
And the way that it works is both sides are given a number and a certain amount of time

947
01:19:55,880 --> 01:19:57,720
to decide.

948
01:19:57,720 --> 01:20:00,960
And if both sides agree, then we have an agreement.

949
01:20:00,960 --> 01:20:07,800
If one side doesn't agree, then the other side will never know whether they agreed or

950
01:20:07,800 --> 01:20:08,800
didn't agree.

951
01:20:08,800 --> 01:20:13,240
All they will know that if they don't agree, then there's no agreement.

952
01:20:13,240 --> 01:20:16,840
If they said that they agreed, then they'd know that the other side didn't agree.

953
01:20:16,840 --> 01:20:25,480
But basically the idea of a mediator's proposal is to try to encourage that center point for

954
01:20:25,480 --> 01:20:27,240
an agreement.

955
01:20:27,240 --> 01:20:32,680
But one of the problems with mediator's proposal and the idea of brackets, brackets is another

956
01:20:32,680 --> 01:20:40,600
way of getting to that overlap, is that it is oftentimes limited to the narrow binary

957
01:20:40,600 --> 01:20:49,720
two-dimensional trial story that would be in trial or arbitration and what that decision

958
01:20:49,720 --> 01:20:52,080
might be.

959
01:20:52,080 --> 01:21:00,440
It's difficult to force the discussion into this trial story.

960
01:21:00,440 --> 01:21:06,200
And it's easier to tell the largest stories about how and why we should get to a particular

961
01:21:06,200 --> 01:21:10,200
point.

962
01:21:10,200 --> 01:21:12,640
There are also other tools.

963
01:21:12,640 --> 01:21:19,040
And Chabini talks about social proof and authority and scarcity, looking at other verdicts, looking

964
01:21:19,040 --> 01:21:25,960
at what the experts say, being up against a trial so that we have a scarcity of kind

965
01:21:25,960 --> 01:21:28,120
to be able to make a decision.

966
01:21:28,120 --> 01:21:33,960
These are all other ways in which we can try to encourage the parties to work together

967
01:21:33,960 --> 01:21:37,080
to try to resolve this particular dispute.

968
01:21:37,080 --> 01:21:43,400
And ultimately, it's above a voluntary agreement.

969
01:21:43,400 --> 01:21:51,080
The goal in all of these efforts at getting pass and impasse is to get to we.

970
01:21:51,080 --> 01:21:58,640
And we get to we by being curious, by looking beyond the off and on switch, by looking to

971
01:21:58,640 --> 01:22:03,360
solve the other person's problems, to understand the other person's problems, figure out how

972
01:22:03,360 --> 01:22:10,160
we can solve their problem and give them a victory speech as to why they want to agree.

973
01:22:10,160 --> 01:22:16,480
And we get there by gaining their trust, by having this small talk that allows us to engage

974
01:22:16,480 --> 01:22:23,200
them in discussions that allow them to trust us to work out agreement together.

975
01:22:23,200 --> 01:22:32,920
The pandemic introduced a new opportunity for getting passed impasses or getting passed,

976
01:22:32,920 --> 01:22:39,640
getting unstuck when we have mediations.

977
01:22:39,640 --> 01:22:45,240
At the beginning of the pandemic, when everything shut down, I had a whole bunch of cases that

978
01:22:45,240 --> 01:22:48,840
were not ready for mediation.

979
01:22:48,840 --> 01:22:52,680
The parties had not yet conducted discovery.

980
01:22:52,680 --> 01:23:00,000
And so they didn't have enough information in which to rationally negotiate a resolution.

981
01:23:00,000 --> 01:23:09,920
And so what we did was we transformed the meetings on Zoom into five to 15 minute status

982
01:23:09,920 --> 01:23:11,320
conference.

983
01:23:11,320 --> 01:23:19,080
And we use that five or 15 minutes to try to figure out what information each side needed

984
01:23:19,080 --> 01:23:22,440
and how we're going to get it to the other side.

985
01:23:22,440 --> 01:23:27,400
At the time, we didn't know when there was going to be a trial.

986
01:23:27,400 --> 01:23:33,240
And at the time, we didn't know whether we'd go to court for any motions because the courts

987
01:23:33,240 --> 01:23:39,560
were essentially closed for all except emergency motions.

988
01:23:39,560 --> 01:23:49,840
And the result of these status conferences was that we were able to engage in a lot of

989
01:23:49,840 --> 01:23:54,000
small talk in the five or 15 minutes.

990
01:23:54,000 --> 01:23:58,600
Taking the backgrounds, we were all stuck at home and we only could speak to people in

991
01:23:58,600 --> 01:23:59,600
our households.

992
01:23:59,600 --> 01:24:03,680
And so it became a window to the outside in these status conferences.

993
01:24:03,680 --> 01:24:09,240
And we started to observe each other's backgrounds and pets and kids and all kinds of things

994
01:24:09,240 --> 01:24:16,080
were going on and started to joke and identify with each other.

995
01:24:16,080 --> 01:24:22,480
And in the process, we realized that something had changed.

996
01:24:22,480 --> 01:24:29,400
This status conference had changed the whole nature of mediations and how to get unstuck.

997
01:24:29,400 --> 01:24:37,880
That having status conferences from the very beginning of the case allowed us to avoid

998
01:24:37,880 --> 01:24:44,800
a lot of the entrenchment that happens when we are just throwing pleadings and correspondence

999
01:24:44,800 --> 01:24:48,360
back and forth to each other.

1000
01:24:48,360 --> 01:24:56,360
That it allowed us to talk and to find out whether there's ways in which we can avoid

1001
01:24:56,360 --> 01:25:01,560
the expenses of discovery to try to resolve the case.

1002
01:25:01,560 --> 01:25:04,280
I think there are a number of things that helped.

1003
01:25:04,280 --> 01:25:07,600
One, it was very convenient.

1004
01:25:07,600 --> 01:25:16,360
It didn't take any time at all to get onto a conference call on Zoom and to have a discussion

1005
01:25:16,360 --> 01:25:20,840
about what information we needed and how we're going to get the other side.

1006
01:25:20,840 --> 01:25:26,080
Like I said, the status conference will take about five or 15 minutes.

1007
01:25:26,080 --> 01:25:33,200
In addition, the format of the Zoom conference was such that all the people were the same

1008
01:25:33,200 --> 01:25:34,320
size.

1009
01:25:34,320 --> 01:25:40,720
And so the idea of dominance, of size dominance or anything like that, was sort of eliminated

1010
01:25:40,720 --> 01:25:44,400
because everybody was about the same size.

1011
01:25:44,400 --> 01:25:51,040
The camera size or the boxes that we were in were such that we were actually very close

1012
01:25:51,040 --> 01:25:52,040
to each other.

1013
01:25:52,040 --> 01:25:57,520
We could see each other's faces in such a way that we could observe reactions of other

1014
01:25:57,520 --> 01:26:03,520
people to what we're talking about, which became very useful in terms of getting a sense

1015
01:26:03,520 --> 01:26:09,920
of what people were really thinking in our discussions.

1016
01:26:09,920 --> 01:26:15,440
And I think probably one of the most important things about this status conference was that

1017
01:26:15,440 --> 01:26:17,400
we could see ourselves.

1018
01:26:17,400 --> 01:26:23,240
And so in a conference room, you can see everybody else, but you can't see yourself.

1019
01:26:23,240 --> 01:26:26,920
You can't see how you appear to other people.

1020
01:26:26,920 --> 01:26:31,760
And I think that had an effect in tempering everybody's comment.

1021
01:26:31,760 --> 01:26:36,600
People who are a lot nicer online than they might have been in person.

1022
01:26:36,600 --> 01:26:42,280
They could see themselves, they could see the effect that they're having on other people.

1023
01:26:42,280 --> 01:26:47,120
This status conference also did another amazing thing.

1024
01:26:47,120 --> 01:26:53,360
It took away the threat as being the way in which we negotiated.

1025
01:26:53,360 --> 01:26:54,840
The threat of trial.

1026
01:26:54,840 --> 01:26:56,800
We didn't know when we were going to go to trial.

1027
01:26:56,800 --> 01:26:58,280
The threat of motions.

1028
01:26:58,280 --> 01:27:04,920
We didn't know when the courts were going to entertain motions about discovery or anything

1029
01:27:04,920 --> 01:27:05,920
else.

1030
01:27:05,920 --> 01:27:14,960
And the threat of leaving a mediation was also eliminated because basically everybody

1031
01:27:14,960 --> 01:27:15,960
was at home already.

1032
01:27:15,960 --> 01:27:16,960
So where are you going to go?

1033
01:27:16,960 --> 01:27:20,200
Are you going to turn off your camera and leave the mediation?

1034
01:27:20,200 --> 01:27:21,760
But you're right there.

1035
01:27:21,760 --> 01:27:26,640
We could bring you right back by just calling you up and saying, hey, come back on the mediation.

1036
01:27:26,640 --> 01:27:33,120
And so by eliminating threats, we started to negotiate in a different fashion.

1037
01:27:33,120 --> 01:27:39,040
And I think that that resulted in a much, much higher level of resolution of all these

1038
01:27:39,040 --> 01:27:40,040
cases.

1039
01:27:40,040 --> 01:27:48,880
And most of the mediation were a lot shorter as a result of this online status conference.

1040
01:27:48,880 --> 01:27:52,720
Probably the most valuable thing, though, about these status conferences is that we

1041
01:27:52,720 --> 01:27:55,760
didn't have these marathon sessions anymore.

1042
01:27:55,760 --> 01:28:03,080
That we could meet and figure out what information that we needed in order to resolve the case.

1043
01:28:03,080 --> 01:28:08,520
And we could take a break, get that information, or get the right person to come to the mediation

1044
01:28:08,520 --> 01:28:11,720
to be able to talk about a particular thing.

1045
01:28:11,720 --> 01:28:19,640
And in this fashion, the mediation actually became segmented as opposed to one continuous

1046
01:28:19,640 --> 01:28:26,560
time when we depended on exhaustion as the basis for a resolution.

1047
01:28:26,560 --> 01:28:33,120
Now it's a matter of everybody agreeing, voluntarily agreeing to a resolution.

1048
01:28:33,120 --> 01:28:40,640
The other thing that came about because of the pandemic that helped us to get past these

1049
01:28:40,640 --> 01:28:51,440
impasses and get unstuck was an interest in early dispute resolution.

1050
01:28:51,440 --> 01:28:59,960
And there's an early dispute resolution institute that is started by Peter Silverman, Michael

1051
01:28:59,960 --> 01:29:11,520
Hawash, and Jordan, who introduced me to this concept of decision trees and a free website

1052
01:29:11,520 --> 01:29:16,080
that can help us to evaluate cases.

1053
01:29:16,080 --> 01:29:18,920
This is the website, the QR code there.

1054
01:29:18,920 --> 01:29:22,240
If you put your phone on it, you can go to that website.

1055
01:29:22,240 --> 01:29:29,400
The only problem with this website is that it's not intuitive in terms of how to use

1056
01:29:29,400 --> 01:29:30,400
it.

1057
01:29:30,400 --> 01:29:34,720
And so I'm going to kind of demonstrate a little bit about how we use this particular

1058
01:29:34,720 --> 01:29:37,720
website.

1059
01:29:37,720 --> 01:29:41,920
This is a website, Silver Decisions.

1060
01:29:41,920 --> 01:29:46,640
It's a website out of Poland.

1061
01:29:46,640 --> 01:29:53,400
And this is the first screen that you will see if you go to SilverDecision.pl.

1062
01:29:53,400 --> 01:30:00,360
If you click on the run box, you'll get a screen that looks like this.

1063
01:30:00,360 --> 01:30:06,080
And again, because it's not intuitive, it's a little bit difficult to use, but I'm going

1064
01:30:06,080 --> 01:30:08,200
to show you how it's done.

1065
01:30:08,200 --> 01:30:14,440
Basically, if you right click on your mouse, you get two choices here, or several choices,

1066
01:30:14,440 --> 01:30:19,280
but the main one is whether to add decision node or a chance node.

1067
01:30:19,280 --> 01:30:22,280
And decision node is where we start.

1068
01:30:22,280 --> 01:30:27,640
And then you'll see that there's two exclamation marks, and that means that this is an incomplete

1069
01:30:27,640 --> 01:30:28,640
model.

1070
01:30:28,640 --> 01:30:34,720
This decision tree model is incomplete, and it says the path not ending with a terminal

1071
01:30:34,720 --> 01:30:35,720
mode.

1072
01:30:35,720 --> 01:30:42,160
There has to be a terminal node in order to complete this decision tree.

1073
01:30:42,160 --> 01:30:48,520
And so I'm going to make this a little bit bigger, and I'm going to add, by right clicking

1074
01:30:48,520 --> 01:30:54,880
again, we can now add a decision node, a chance node, and a terminal node.

1075
01:30:54,880 --> 01:30:57,320
And so I'm going to add a chance node.

1076
01:30:57,320 --> 01:30:58,840
This is where we get choices.

1077
01:30:58,840 --> 01:31:06,760
And again, here you see the double exclamation mark, and it says that this path is not ending

1078
01:31:06,760 --> 01:31:08,880
with a terminal node.

1079
01:31:08,880 --> 01:31:14,480
And so the probabilities do not add up to one.

1080
01:31:14,480 --> 01:31:19,720
So now I'm going to add a terminal node.

1081
01:31:19,720 --> 01:31:26,520
And you'll notice there's no exclamation mark now, because there is a terminal node.

1082
01:31:26,520 --> 01:31:33,720
This one choice, it indicates the probability.

1083
01:31:33,720 --> 01:31:39,920
So it's 100% going to this chance node, 100% going to this terminal node.

1084
01:31:39,920 --> 01:31:48,400
But if I add another terminal node, what happens is it divides the probabilities in half.

1085
01:31:48,400 --> 01:31:57,280
And so if you look at the probabilities on any one of these legs, you'll see that there's

1086
01:31:57,280 --> 01:32:00,120
a hashtag under probability.

1087
01:32:00,120 --> 01:32:08,240
And the hashtag just simply means that the probability will be divided equally between

1088
01:32:08,240 --> 01:32:09,960
however many legs you have.

1089
01:32:09,960 --> 01:32:16,720
And so if we added another terminal node, the hashtag divides the probabilities for these

1090
01:32:16,720 --> 01:32:20,280
outcomes by one third.

1091
01:32:20,280 --> 01:32:29,760
So in looking at this decision tree, we can start to build a little bit of a model to

1092
01:32:29,760 --> 01:32:34,240
think about the future without actually having to live the future.

1093
01:32:34,240 --> 01:32:46,000
And so this first leg of the model is what we'll label as a trial.

1094
01:32:46,000 --> 01:32:54,840
And this is what it's going to take us to get and go through trial.

1095
01:32:54,840 --> 01:33:01,400
And then next level, it's this payout or payoff.

1096
01:33:01,400 --> 01:33:06,360
And here we have to put in what it's going to cost us to go to trial.

1097
01:33:06,360 --> 01:33:10,760
And so because it's going to cost us something, it's going to be a negative number.

1098
01:33:10,760 --> 01:33:16,780
So we're going to put negative, let's say $100,000.

1099
01:33:16,780 --> 01:33:25,920
So if it's going to cost us a negative $100,000 to go to trial, and if the result in all the

1100
01:33:25,920 --> 01:33:32,280
probabilities is zero going to trial, the current value or the expected value right

1101
01:33:32,280 --> 01:33:39,040
now of not going to trial is that we would pay out $100,000.

1102
01:33:39,040 --> 01:33:43,760
So if we were going to go to trial, it would cost us $100,000.

1103
01:33:43,760 --> 01:33:48,800
And if we were at the probabilities where we're going to get nothing in our trial, then

1104
01:33:48,800 --> 01:33:59,200
the value to the defendant would be to pay $100,000 rather than expend this $100,000.

1105
01:33:59,200 --> 01:34:04,320
And there's no benefit in expending the $100,000 going forward.

1106
01:34:04,320 --> 01:34:21,440
Now if the likelihood of a high verdict was, say, a million dollars, or we could lose a

1107
01:34:21,440 --> 01:34:31,040
million dollars, so it would be a negative for the defense.

1108
01:34:31,040 --> 01:34:38,600
Now the value of not going to trial, if there's a 33% chance of a high verdict or a million

1109
01:34:38,600 --> 01:34:46,640
dollars, the value is $433,333.

1110
01:34:46,640 --> 01:34:50,720
That's taking into account the cost of trial and the possibility of a negative verdict.

1111
01:34:50,720 --> 01:35:00,520
So anything less than $433,000 for the defense might make sense because it's less than what

1112
01:35:00,520 --> 01:35:04,320
it's going to cost and the probability of one third chance.

1113
01:35:04,320 --> 01:35:10,080
So it's not a million dollars, it's a one third chance of getting a million dollar award.

1114
01:35:10,080 --> 01:35:28,840
And if we flat the low verdict might be $500,000, again it's negative because it's what the

1115
01:35:28,840 --> 01:35:30,920
defense would have to pay out.

1116
01:35:30,920 --> 01:35:35,600
And there's a 33% chance that it's going to be $500,000, not 33% chance that it's going

1117
01:35:35,600 --> 01:35:41,160
to be a million dollars, and 33% chance that it will be zero and let's call this the defense

1118
01:35:41,160 --> 01:35:47,840
verdict.

1119
01:35:47,840 --> 01:35:54,040
Then the value of the case is $600,000 of not going forward.

1120
01:35:54,040 --> 01:36:02,320
These are our risks and we want to avoid these risks then it's worth paying $600,000 today

1121
01:36:02,320 --> 01:36:05,200
to avoid these possible risks.

1122
01:36:05,200 --> 01:36:13,960
And if we thought that the defense likelihood was actually much higher than 33% and we thought

1123
01:36:13,960 --> 01:36:22,440
it was more like 60% then we would put in.6 and it would change the equation and where

1124
01:36:22,440 --> 01:36:27,280
we had running hashtags it just simply equals out the probabilities.

1125
01:36:27,280 --> 01:36:34,240
So 60%, the 40% probability is divided equally 20%, 20%.

1126
01:36:34,240 --> 01:36:41,280
So the 60% chance of defense verdict now the value is $400,000.

1127
01:36:41,280 --> 01:36:45,840
But you can see how we can put in whatever numbers we want and there's no match to any

1128
01:36:45,840 --> 01:36:51,040
of these numbers but you can put in different numbers that will help us to see what the

1129
01:36:51,040 --> 01:36:56,560
likelihood of things going forward might be and we put in our own estimates of what the

1130
01:36:56,560 --> 01:36:57,760
likelihood is.

1131
01:36:57,760 --> 01:37:02,480
But it gives us an indication of what that's worth today in today's dollars.

1132
01:37:02,480 --> 01:37:09,600
So if we could pay less than $400,000 if this is what we think is likely to happen then

1133
01:37:09,600 --> 01:37:14,800
it's a better deal than going through this whole process and risking this particular

1134
01:37:14,800 --> 01:37:16,080
outcome.

1135
01:37:16,080 --> 01:37:26,040
Now we can also look at it from the plaintiff's perspective and say from the plaintiff's perspective

1136
01:37:26,040 --> 01:37:42,680
the cost is $100,000 and so again the payoff is a minus $100,000.

1137
01:37:42,680 --> 01:37:52,080
So the cost to the plaintiff or going to trial if they're going to win nothing is minus $100,000.

1138
01:37:52,080 --> 01:38:03,920
But if they think that they're going to win a million dollars then it's a positive number

1139
01:38:03,920 --> 01:38:08,240
because this is something we're going to keep.

1140
01:38:08,240 --> 01:38:16,920
So now the case is worth $100,000 going forward if there's a 40% chance of a million dollar

1141
01:38:16,920 --> 01:38:17,920
verdict.

1142
01:38:17,920 --> 01:38:22,480
Now let's say the little verdict is $500,000.

1143
01:38:22,480 --> 01:38:23,480
It's positive.

1144
01:38:23,480 --> 01:38:29,000
And again it's a positive number because it's what the plaintiff will recover.

1145
01:38:29,000 --> 01:38:36,880
So the plaintiff is better off if they got $200,000 rather than going through and risking

1146
01:38:36,880 --> 01:38:38,680
this particular scenario.

1147
01:38:38,680 --> 01:38:46,320
Now defense, they might think that defense chances are not 60% but is only about 40%.

1148
01:38:46,320 --> 01:38:49,400
I think it's only 4% chance.

1149
01:38:49,400 --> 01:38:55,520
And so the value of resolving the case today is $350,000.

1150
01:38:55,520 --> 01:39:00,280
This is the risks that we may encounter going forward.

1151
01:39:00,280 --> 01:39:08,240
And so you can see how the plaintiff's version and defense version are very different in

1152
01:39:08,240 --> 01:39:14,840
terms of what it looks like and how you value it the case.

1153
01:39:14,840 --> 01:39:17,880
Now how do you use this?

1154
01:39:17,880 --> 01:39:23,400
This is not an exercise in everybody agreeing on what the high verdict is, what the low

1155
01:39:23,400 --> 01:39:28,680
verdict is, what defense like reviewed is or anything like that.

1156
01:39:28,680 --> 01:39:30,480
That's not the purpose of this at all.

1157
01:39:30,480 --> 01:39:37,800
The purpose is to help people to evaluate what they're thinking, to get out on paper

1158
01:39:37,800 --> 01:39:43,000
their thoughts about what the future looks like, what the risks of the future look like.

1159
01:39:43,000 --> 01:39:48,360
And by doing that we're able to show people what the future looks like without, according

1160
01:39:48,360 --> 01:39:49,360
to them.

1161
01:39:49,360 --> 01:39:53,000
Again, the numbers are just numbers.

1162
01:39:53,000 --> 01:39:58,880
And there's no magic to any of these numbers.

1163
01:39:58,880 --> 01:40:03,400
It's just a probability analysis, decision tree probability analysis.

1164
01:40:03,400 --> 01:40:11,800
And so the only purpose of this analysis is to help people to see for themselves what

1165
01:40:11,800 --> 01:40:15,360
their future looks like according to their own assumptions.

1166
01:40:15,360 --> 01:40:19,720
You can't use the defense assumptions and impose it on the plaintiff.

1167
01:40:19,720 --> 01:40:26,840
It's like forcing somebody to agree with a different set of facts.

1168
01:40:26,840 --> 01:40:32,760
And you can't take the defense, the plaintiff numbers and enforceable defense.

1169
01:40:32,760 --> 01:40:37,160
The numbers only work for the people that are using them.

1170
01:40:37,160 --> 01:40:41,680
The only people that they're important to is the ones that are putting these numbers

1171
01:40:41,680 --> 01:40:42,680
in.

1172
01:40:42,680 --> 01:40:46,960
So the defense puts in their own numbers, the plaintiffs put in their own numbers.

1173
01:40:46,960 --> 01:40:51,720
And what they're looking at is not whether this is true or not.

1174
01:40:51,720 --> 01:40:57,440
They're looking at, given their assumptions, what that future looks like and what that

1175
01:40:57,440 --> 01:41:04,760
means in terms of what the case is worth today, this expected value number today.

1176
01:41:04,760 --> 01:41:11,800
And oftentimes you'll see that the expected value number overlaps, even though their assumptions

1177
01:41:11,800 --> 01:41:18,480
about the numbers and the defense likelihood and the like don't overlap.

1178
01:41:18,480 --> 01:41:22,880
Just another tool in getting people unstuck.

1179
01:41:22,880 --> 01:41:32,480
Well, thank you very much for listening to my thoughts about how to get unstuck.

1180
01:41:32,480 --> 01:41:37,320
How do we get past these impasses and how do we get on the same side of the table to

1181
01:41:37,320 --> 01:41:41,600
reach a voluntary agreement?

1182
01:41:41,600 --> 01:41:49,000
As we talked about, the goal is to think we, to get on the same side of the table and try

1183
01:41:49,000 --> 01:41:55,520
to understand each other so that we can solve together the problem on the other side of

1184
01:41:55,520 --> 01:41:56,520
the table.

1185
01:41:56,520 --> 01:41:59,880
We have to be curious in order to reach that goal.

1186
01:41:59,880 --> 01:42:06,960
We have to look beyond just the decisions that are made in court and realize that we

1187
01:42:06,960 --> 01:42:08,440
can agree to anything.

1188
01:42:08,440 --> 01:42:16,040
And we can understand each other's interests and what we want to get.

1189
01:42:16,040 --> 01:42:22,520
Maybe there's opportunities for other types of agreements that will make sense for everybody.

1190
01:42:22,520 --> 01:42:29,040
We don't have to be limited by what the court can decide or can't decide.

1191
01:42:29,040 --> 01:42:34,280
But in order to do that, we have to not think solely about ourselves and about protecting

1192
01:42:34,280 --> 01:42:35,280
ourselves.

1193
01:42:35,280 --> 01:42:40,040
We have to try to understand the other side's perspective.

1194
01:42:40,040 --> 01:42:43,560
We have to try to solve the other side's problems.

1195
01:42:43,560 --> 01:42:46,480
And we do that by building trust.

1196
01:42:46,480 --> 01:42:54,040
And we build trust through small talk, through just talking about things unrelated to this

1197
01:42:54,040 --> 01:42:59,840
particular dispute so that we can build the kind of trust and relationship that allows

1198
01:42:59,840 --> 01:43:05,440
us to get on the same side of the table and think as we to solve these problems.

1199
01:43:05,440 --> 01:43:06,680
Thank you.

1200
01:43:06,680 --> 01:43:09,560
You may be eligible for CLE credit in your state.

1201
01:43:09,560 --> 01:43:30,400
Visit bhba.org slash podcasts for more information.