Here’s a follow up to last week’s post about the American Bar Association ethics opinion distinguishing between “puffing” on the one hand and “false statements of material fact” on the other in caucused mediations, and which bestowed its blessing upon the former but not the latter.

This week’s edition of Blawg Review links to a post on the Psychology of Compliance & Due Diligence Law blog about a new book for the legal profession, Lawyers’ Poker : 52 Lessons that Lawyers Can Learn from Card Players.

Consider this from the book’s description on Amazon.com (and negotiators, be sure to note the zero-sum imagery):

Great poker players are master tacticians. Not only do they calculate odds with lightning speed and astonishing precision, but they also cunningly anticipate and manipulate the actions of their adversaries. In short, they boast skills that every lawyer can envy. This highly entertaining work might best be summed up as “better lawyering through poker.” Steven Lubet shows exactly how the tactics of the poker table can be adapted to litigation, negotiation, and virtually every aspect of law practice. In a series of engaging and informative lessons, Lubet describes concepts like “betting for value,” “slow playing,” and “reverse bluffing,” and explains how they can be used by lawyers to win their cases. The best card players, like the best lawyers, have a knack for getting their adversaries to react exactly as they want, and that talent separates the winners from the losers.

When I consider the preceding passage together with the recent ABA ethics opinion, some questions for lawyers, negotiators, and mediators come readily to mind.

Let me say first that as someone who enjoys a good card game (and in fact married my husband in Las Vegas), I have nothing against poker, cards, gambling, winning, losing, or even using those analogies in describing litigation tactics or outcomes. In fact, gambling metaphors lend themselves very nicely to depicting the risks inherent in litigation–it’s the leverage that mediators use when we urge parties to weigh their alternatives.

But should we attorneys and negotiators rejoice to hear these metaphors applied not only to litigation but “virtually every aspect of law practice” including “negotiation”? Are we truly supposed to believe that skill in “manipulating the actions of their adversaries” is a virtue that “every lawyer can envy”?

More to the point, do we really want to be comparing ourselves to card sharks and gamblers when public opinion of lawyers has never been so low? (Although, ironically, just ask anyone what qualities they would wish for in the attorney that represents them, and most people would answer emphatically that among those qualities would be the ability to “cunningly anticipate and manipulate the actions of their adversaries”. But that’s a post for another time.)

As for mediators, if mediation is, as we like to say, “assisted negotiation“, is this the kind of negotiation we want to be assisting? What does it do to public confidence in mediation if we allow parties to “puff”, bluff, and manipulate their way to settlement, even if it does have the ABA’s seal of approval? We still have a responsibility to the process, to our profession, and to ourselves.

Otherwise, in the end, everyone loses. And is that a gamble mediators should be willing to take?

Mediators everywhere (along with poultry farmers) will be relieved to know that one age-old conflict has at last been put to bed: a group of three experts agree that it was the egg, not the chicken that came first.

(Via the always surprising Infamy or Praise.)

Among the tools that mediators bring to the negotiating table the most powerful may be reframing. In the words of Bernie Mayer, “The art of reframing is to maintain the conflict in all its richness but to help people look at it in a more open-minded and hopeful way.”

Reframing is also what gives successful entrepreneurs and business leaders the ability to see possibilities where others see problems. This model for problem solving is known as Appreciative Intelligence (AI), according to the two organizational design experts, Tojo Thatchenkery and Carol Metzker who describe and analyze its qualities and characteristics, along with methods for cultivating it, in a new book, Appreciative Intelligence: Seeing the Mighty Oak in the Acorn.

As this article from Ode Magazine explains,

Appreciative intelligence can be defined as the capability of perceiving the inherent generative potential within a situation at hand. Put simply, appreciative intelligence is the ability to see the mighty oak in the acorn. It is the capacity to see a strong trunk and countless leaves emerging from this small nut as time unfolds. It is a knack for seeing a breakthrough product, top talent or valuable solution for the future hidden in the present.

This should all sound very familiar to mediators.

Appreciative Intelligence grew out of Appreciative Inquiry, a method for engaging organizations and groups in developing and implementing positive change and achieving potential.

For more information on Appreciative Inquiry, you can visit the Appreciative Inquiry Commons web site.

(With thanks to Stephanie West Allen for introducing me to AI and for sharing many of these links. Stephanie is currently working on an interview with Carol Metzker for her blog, Idealawg, to be published soon.)