In this election year, everyone’s paying a lot of attention to the negotiation styles of the presidential contenders, as I pointed out in a recent post.

The most recent commentary comes from the blog Daily Kos (thanks to fellow blogger Victoria Pynchon for the link), which discusses the substantive differences in the negotiation styles of Barack Obama and Hillary Clinton:

By engaging all parties in negotiations, and reaching a collective agreement about how much weight to give to each variable, it is possible to provide some benefit to each party, although no-one [sic] gets exactly what he or she wants. This is integrative bargaining. I have a strong hunch that Senator Obama learned about this in law school, and applied it during his work as a community organizer. When he talks about having all parties sit down to negotiate about health care, this is what he has in mind. When Senator Clinton talks about defeating the enemies of her health care plan, she is talking about zero-sum bargaining. The 50% + 1 approach to winning elections is zero-sum. Her argument that she will break the glass ceiling by being elected president is also zero-sum; for a woman to win, a man has to lose.

Give me a break. It’s Daily Kos that’s created the zero-sum game, one which Clinton can’t possibly win. You’re either a value-creating negotiator (good), or you’re a value-claiming one (bad). There’s not a lot of room here for nuance. Indeed, this kind of reasoning evokes Orwell’s doomed sheep bleating, “Four legs good, two legs bad.”

The truth is that life — and negotiation — are never that simple.

Personally, for a change, I’d like to see the White House inhabited by a president who is skilled in many styles of negotiating. Someone who possesses the flexibility, sophistication, and wit to deploy the appropriate negotiation strategy, or indeed as many strategies as are necessary. Not every negotiation merits a collaborative approach. And sometimes getting to yes is a really bad idea.

No matter what, there is one negotiating style in particular the next administration should practice: what Bargaining for Advantage author G. Richard Shell calls “information-based bargaining”. A common-sense approach, it focuses on “solid planning and preparation before you start, careful listening so you can find out what the other side really wants, and attending to the ’signals’ the other party sends through his or her conduct once bargaining gets underway.”

We could all do with a lot more solid planning and a whole lot more careful listening by our elected leaders.

Otherwise, once again, we’ll end up with less than we bargained for.

Jim Melamed, co-founder of Mediate.com, arguably the ADR field’s best known and most influential online resource, has published “Obama’s Message: Mediation’s Political Triumph“, an impassioned and compelling panegyric to a presidential candidate and the influence on politics and culture of the mediation movement.

Tammy Lenski — talented blogger, prolific author, inspiring colleague, and respected thought leader — heads in a bold new direction.

After blogging about conflict resolution at Lenski.com for many years, she is leaving her old digital home and launched a new site, Conflict Zen.

Tammy explains why:

My writing has always served two masters: You and me. You, in that you have interest in effective conflict resolution in your life, your family, your workplace or business, and/or your community, and it’s what’s drawn you to subscribe to my articles. Me, in that my writing helps me explore ways to frame what works for my current clients so that I can share it even more effectively with future clients.

But I have always puzzled over the paradox of an imperfect human (me) offering up conflict resolution advice to others. It’s important to me that you understand I don’t come to you from the high place of interpersonal perfection, but instead as an equal human in front of you. I happen to know a thing or two about conflict resolution because I’ve spent two decades studying and successfully practicing it in a professional capacity. But I have yearned for a place where I would frame my work as a teacher who is also your co-learner. Conflict Zen will be that place.

Tammy, best of luck. I’m glad to know that we will all continue to benefit from your wisdom.

Brett Trout hosts Blawg Review #148 at BlawgIT. This week’s theme is the meme.

Memes are units of cultural information transmitted virally from one individual to the next. Blogs provide an ideal culture medium for memes to thrive in, since bloggers disseminate memes widely, inviting other bloggers to comment on them and pass them along in turn. Memes are in essence the blogosphere’s equivalent of chain letters — like a chain letter, the recipient must respond in a designated way, then pass the invitation along to others.

Be sure to catch this highly entertaining edition of Blawg Review, the weekly review of the best in legal blogging. And like any meme, spread it widely.

The National Iranian American Council reports that Ambassador John Limbert, one of the 52 US diplomats who was held hostage at the United States Embassy in Iran in 1980, has published “Negotiating with the Islamic Republic of Iran: Raising the Chances for Success – 15 Points to Remember” (PDF), a guide for negotiations between the U.S. and Iran.

Limbert’s 15 points are:

1. Negotiating with Iran—hard as it may be—is worth doing.
2. Establish objective criteria free of legalisms.
3. The past matters: Be aware of Iran’s historical greatness, its recent weakness, and its grievances from decades or centuries earlier.
4. Choose intermediaries with great care.
5. Talk to the right people.
6. Understand that the Islamic Republic’s priority is survival.
7. Let the Iranians define what is in their national interest.
8. Understand the Iranian BATNA: Expect actions that may appear (to you) self-destructive.
9. Give your Iranian counterparts credit for intelligence.
10. Expect a case based on vague and uncertain claims.
11. Expect grandstanding, political theater, and flamboyant gestures.
12. Remember that power is respected, weakness despised.
13. Understand that justice, often in a harsh version, in the abstract is extremely important.
14. Remember that conspiracy theories have great currency—and are sometimes true.
15. Expect hands to be overplayed.

Limbert says,

What works in any negotiation—being prepared, building relationships, exercising patience, knowing both one’s own and the other side’s BATNA, understanding the other side’s real interests, among other things—can work in negotiations with the Islamic Republic.

Here’s a round-up of links for your viewing pleasure:

The Stella Awards, a site that recognizes the year’s wackiest lawsuits, has announced the winners for 2007. The Stella Awards are named in honor of Stella Liebeck, who achieved notoriety when she spilled a hot cup of McDonald’s coffee on her lap and sued, winning a $2.9 million jury verdict. (Via Slaw.)

The public reacted with indignation last week when it learned that a Hillsborough County, Florida, deputy sheriff dumped quadriplegic Brian Sterner from his wheelchair during booking following an arrest for an alleged traffic violation — an act which was caught on video. Sterner, however, intends to negotiate with, rather than sue, the sheriff’s office in what Sterner’s lawyer has characterized as a “roundtable” discussion. (Note that Sterner’s lawyer says that “he can avoid some legal hurdles by negotiating outside court. Government agencies are liable for a maximum $100,000 per person for negligence when employees are working within their professional capacity. If a jury were to award a plaintiff more than that, the government agency would pay the $100,000 and the plaintiff would have to petition the Legislature for the remainder. “)

At Brains on Purpose, Stephanie West Allen has pulled together resources to help facilitate learning and mind changing.

At Legal Blog Watch, Carolyn Elefant wonders whether blogging is the reason for mandatory arbitration agreements for law firm employees.

Here’s something for neuroscience fans (and what dispute resolution professional is not?) — Jason Kottke at Kottke.org interviews Jonah Lehrer, author of Proust Was a Neuroscientist.

The World Directory of ADR Blogs keeps growing. I’ve just added three more blogs:

• The Colorado Family Solutions Center blog, which focuses on ways to help families in transition find solutions outside of court.
• Conflict Matters, which provides tools and ideas about conflict resolution and mediation, published by dispute resolution professional and attorney Roy Baroff of North Carolina. (Hat tip to the Mediation Mensch for these two latest additions.)
• Secretos del Mediador Exitoso, a Spanish language blog, answers the question, what do you need to know and do to be able to mediate successfully? This blog’s motto is “Transformacion de Conflictos, Cooperacion y Respeto.”

Finally, for a rousing example of what a bunch of people working together can achieve, here’s an election-related news story: On February 19, over a thousand Prairie View A&M University students and their supporters marched seven miles to the polls at the Waller County, Texas, Courthouse to protest the lack of an early voting place on campus. You can view the march at YouTube. Would you walk seven miles to cast your vote?

It’s not just credit card companies, nursing homes, telecom giants, and a Texas burger franchise who are jumping on the mandatory arbitration bandwagon.

According to Condé Nast Portfolio.com, one BigLaw firm has instituted mandatory arbitration for all its at-will employees.

Who will be next? Mediators?

Let’s hope not.

Football now joins the growing list of informal alternative dispute resolution methods, along side arm wrestling and perennial favorite rock, paper, scissors.

Facing South reports that one Tennessee lawmaker has proposed using a football game to settle a border dispute over access to water between Tennessee and Georgia.

They say you should believe nothing you hear and only half of what you see.

There’s nothing like an optical illusion to remind us of the truth of that aphorism. At Cognitive Daily you’ll find not only a great optical illusion but also an explanation of why we see what we see.

In addition, there’s a link to Arthur Shapiro’s Illusions and Demonstrations for Visual Research, the source for this particular bit of visual trickery, along with several others that delightfully fool the senses.

And for still more, visit a site I recently discovered, Akiyoshi’s Illusion Pages — which actually come with a health advisory.

Online misunderstandings flare up easily, but there’s a way to prevent them.

For a crash course on internet etiquette, view “How To Behave On An Internet Forum“, created in old-school-style, 8-bit animation.

(Spotted on Boing Boing.)

Richard Susskind, digital technology expert and legal visionary, once said, “The best way to predict the future is to invent it.”

That’s exactly what Charles Brofman did. He invented the future.

Brofman, a former trial lawyer, is the co-founder of Cybersettle, the world’s leading online claim settlement company. Cybersettle makes use of what is known as online dispute resolution (ODR), a kind of dispute resolution process that utilizes digital technology to settle claims quickly and economically.

In 1996, Brofman had the foresight and rare common sense to create Cybersettle. What sparked this vision? A situation familiar to any trial attorney or mediator who has wrestled with a case that just won’t settle:

Cybersettle grew out of a 1995 encounter between seasoned trial attorneys Charles Brofman and James Burchetta who were representing opposing sides in attempting to settle an insurance claim. Jim, who in this case was representing the plaintiff, had demanded tens of thousands of dollars more than the amount Charlie, the defense counsel, was willing to offer. Both parties were well aware of what amount would eventually settle this case, but neither wanted to compromise his bargaining position – so on to court they went.

In the courthouse, they agreed to secretly write down their bottom line numbers and hand them to a court clerk, who was instructed to give them a “thumbs-up” if they were within a few thousand dollars of each other. If the case didn’t settle, the clerk would destroy the papers and never reveal the figures. He flashed a “thumbs-up.” The amounts were within $1,000 of each other. They split the difference and settled the case within minutes.

Cybersettle was thus born of the desire to help lawyers and others accomplish what sometimes can feel like the impossible: get cases to settle fast and fairly.

So, how does Cybersettle work?

Cybersettle utilizes a patented automated, online, double-blind bid dispute resolution system which allows disputants to resolve claims quickly and confidentially. Optional telephone facilitation is also available when necessary to smooth out communication difficulties and keep settlement negotiations on track, or when parties are close and can benefit from the help of a skilled neutral.

The online service generates high-speed settlements by matching offers and demands. Once the process gets underway, disputants have three opportunities or rounds to settle a claim. One demand or offer is entered for each round; Cybersettle instantly compares the demands to the opposition’s corresponding offer. When the offer is greater than or equal to the opposition’s demand, the claim instantly settles.

Who uses Cybersettle? And why?

Cybersettle has many satisfied customers, as its case studies testify, and has assisted in almost 200,000 transactions, representing $1,457,299,751 in settlements to date, an impressive figure.

Among those who use Cybersettle are attorneys and other legal professionals; insurance carriers and claims professionals; third-party administrators and self-insureds; and government, including municipalities.

But why would they use Cybersettle?

New York City has 11.6 million reasons why. That’s the number of dollars the City saved during its first year using Cybersettle. Faced with a backlog of 40,000 cases, the City needed to take drastic steps. The first city to integrate Cybersettle into its settlement process, New York was able to settle 66% of its cases within 30 days, reduce its backlog significantly, and realize significant cost savings.

For its clients, Cybersettle is virtually a no-risk proposition. The double-blind bidding means that parties can submit their walk-away numbers without compromising their position. This means that there are none of the worries associated with making first offers or other pitfalls of face-to-face negotiation. Most importantly, parties don’t pay unless they settle. I’ll say that again. Parties don’t pay unless they settle. What’s not to love about a system like that?

Speed and 24/7 access — much like an ATM or your favorite convenience store — are other qualities that make Cybersettle so appealing. Trained phone facilitators are also available during normal business hours if parties need the extra nudge to cross the finish line.

Curious to find out how it works? You can take Cybersettle for a test drive.

Final thoughts

Incidentally, Brofman’s talent for predicting the future is not limited to digital technology. Not only did he see the future in ODR, but on a phone call with him back in January, he correctly predicted that the New England Patriots would play the New York Giants in the Super Bowl and that the Giants would win. This is one guy who’s skilled at looking ahead.

Interested in finding out more about Cybersettle? Visit Cybersettle’s web site. And if you’d like to learn more about the brave new world of technology-mediated dispute resolution, read “Settling It On the Web“, an article from the ABA Journal which provides an excellent introduction to ODR.

David Levy, artificial intelligence expert and author of Love and Sex with Robots (no, I’m not making that up), in a recent interview with Scientific American predicts that humans one day will marry robots.

One observation about the need for disagreement in relationships caught my attention:

[Journalist:] Would people really want a robot that agreed with everything you wanted or were completely predictable?

[Levy:] I do think there is often a need for friction in relationships. You wouldn’t actually want a robot that does everything you want. Most people might want robots that sometimes say, “I don’t really want to do that,” that rejects certain requests from time to time. So you could program that in, the level of disagreement you want.

Which leaves me wondering how those disagreements will be handled. Do you simply reboot your partner? (Be honest now — how many of you have wished you could do that?)

Marvin Schuldiner, a commercial mediator and arbitrator who blogs at Sanns Mediation World of ADR, tells businesses how to avoid a lawsuit. While there’s no guarantee against ever getting sued, you can reduce the likelihood of litigation by doing something that shouldn’t be rocket science: treat customers right and respond promptly to complaints.

Schuldiner deconstructs and comments on a recent customer service nightmare to demonstrate how a missing $1,100 laptop led to the filing of a $54 million lawsuit. It’s well worth reading — as is the content overall on this informative ADR blog.

The peace symbol — an enduring emblem of protest recognized around the world — celebrates its 50th birthday this year.

Visit the Happy Birthday Peace web site to learn what you can do to make love, not war.

Two different sources — one approvingly, one not — report that a growing number of doctors are asking patients to enter into agreements to arbitrate malpractice claims and waive their right to trial by jury.

Both sources link to “Arbitration a growing trend in health care“, a story appearing earlier this month in the Philadelphia Inquirer :

Michael Cohen was handed an arbitration agreement when he visited his longtime primary-care doctor in Bucks County. Cohen said he was not the suing kind, but the thought of being asked to give up his right to sue “stopped me in my tracks.” He said no, and his doctor saw him anyway.

Then Hedy Cohen, who has had a kidney transplant, was mailed a similar form by a group of kidney specialists she planned to see for the first time. The form from Hypertension-Nephrology Associates in Willow Grove insisted on binding arbitration and said she would have to pay the doctors’ legal fees if she filed a complaint and lost.

Hedy Cohen said no and was told to find another nephrologist.

That was fine with Cohen, a nurse with a master’s degree in health-care administration. “I couldn’t have a relationship with this person because they had already set the tone,” she said. “We’re adversaries before we even know each other.”

You can count me in the camp that considers such agreements a really bad idea. Never mind all of the usual arguments against mandatory arbitration agreements — they go without saying. The chief problem I see is the message it conveys — it says plainly, “I care more about my own self-interest than I do about the quality of my relationship with my patients.” What impact does that have on a patient’s trust? What does it say about the physician’s priorities? His or her sense of duty to that patient? What does it convey about that physician’s commitment to providing good patient care — what is at bottom good customer service? It would tell me as a patient all I need to know — to seek medical care somewhere else.

What if instead a physician asked a patient to enter into a very different kind of understanding? An understanding premised on trust, mutual respect, and a willingness to communicate?

It’s not so far-fetched. Listen to “Medical Apologies“, which aired recently on Radio Boston. It describes what happens when health care professionals actually talk to patients when medical procedures go wrong. It means fewer lawsuits, not more, when doctors apologize to patients for medical errors. And it represents a healthier direction for the health care field and for patients than the mandatory arbitration trend.