In a punchy headline, the ABA Journal sums up the message a U.S. Supreme Court justice has for his critics in “I’m Conservative, But Not Biased, Scalia Says … So Get Over Bush v. Gore“, a story about Scalia’s recent interview with the TV news magazine 60 Minutes.

As I read the story, I thought back on other controversial cases in which those critics questioned Scalia’s ability to be impartial. For example, there’s the infamous duck hunting trip with Cheney, when a case involving the Vice President was pending before the Court. Despite Scalia’s insistence that “I do not think my impartiality could reasonably be questioned”, folks who understood something about the subtle tools of persuasion weren’t so reassured. One of those tools, reciprocity, is what creates a powerful sense of obligation when we receive a gift from someone else.

What makes bias so pernicious is that all too often we are blissfully unaware of our own. I’m guessing that maybe all that certainty is simply evidence that Scalia has fallen victim to one of the most pervasive of cognitive errors, overconfidence bias, which explains why a large majority of us place ourselves in the statistically impossible top percentile when it comes to things like driving skills, intelligence, negotiating abilities, even humor. As two Cornell University researchers put it, most of us are unskilled and unaware of it (PDF).

Scalia is undoubtedly conservative. But unbiased? Given how blind we all are to our own biases, this makes a good case for settling before trial; it’s tough enough being at the mercy of our own cognitive errors. Why be at the mercy of those of the judge, too?

Two years ago I introduced readers to the web site ChangeThis, which I described as

a web site born of a radical and hopeful idealism: to virally transmit ideas through a culture medium of community, respect, and dialogue.

Recognizing that “the best discussions in science, medicine, business and politics have always been the civil ones”, ChangeThis publishes what it calls manifestos — proposals for change which serve as “a reasoned, rational call to action, supported by logic and facts”. The goal is to provide a forum for “the rational and thoughtful arguments that help people change their minds to a more productive point of view.” In the egalitarian spirit with which ChangeThis was founded, anyone is welcome to submit ideas for a manifesto.

This online experiment in changing minds has thrived, amassing in the past two years a considerable inventory of innovative thinking, and consequently I continue to stop by in search of ideas to invigorate my work.

On a recent visit to the site I was struck by the premise of a newly published manifesto, “Questionating“, by business consultant Corinne Miller. Miller celebrates the power of the question and its role in creativity and fresh thinking:

Questions have been the enablers of innovation for centuries. As Albert Einstein said, “To raise new questions, new possibilities, to regard old problems from a new angle requires creative imagination and marks real advances in science”…

Questions use verbs and words that activate key areas of the brain that, in turn, increase the volume and variety of questions. The more questions, the more creativity and innovation. We like to say that questions open the innovation pipeline.

Despite the role of the question in stimulating discoveries and advancements, Miller observes that people seem to lose the willingness to ask questions as they grow older:

As we age, we disengage… from asking questions. Questions decrease as aging increases. Think about it. Why does the typical 5-year old ask about 65 questions a day, while the typical 40-something asks only about 6 questions a day? Why is it that the older we get, the fewer questions we ask? We’ve found that the most popular answers to this question have been: asking a question makes one look stupid; asking a question is a sign of weakness; and people think they know the answer so they don’t feel the need to ask.

What a sad state that we have created a business culture where asking questions is seen as a weakness. Shouldn’t it be the opposite, where not asking questions is a weakness?

How can we change this?

Indeed. How can we change this? What can any of us do to challenge the notion that asking questions displays weakness or even disrespect? What can we do to make it safe to ask questions of our institutions, of our leaders, of each other? Questions reflect, reveal, resolve; they shine light into the dark corners. Most importantly, questions give us the ability to see the world afresh. As Bertrand Russell once said, “In many affairs it’s a healthy thing now and then to hang a question mark on the things you have long taken for granted.”

Straight from the folks who got me wondering what would be on your mediator’s playlist comes another question suitable for a Friday: “Besides ‘Animal House’, What Pop Culture References Inspire You?”

I’d like to ask the same thing of mediators and negotiators: what pop culture references inspire you?

The haggling scene from “Life of Brian”?

The conflict resolution episode of “The Office”?

“The Wedding Crashers”? (Please, God, not that.)

To get your creative juices flowing, there are a couple of lists, one here and another here with some ideas.

Our local Whole Foods Market carries a brand of high-end chocolate bars in assorted flavors which boast a variety of exotic ingredients, including — I am not making this up — smoked applewood bacon. In so many ways, that’s just wrong.

Let me set the record straight. I like chocolate. And I love bacon. In fact, a lot (which doomed my brief flirtation with vegetarianism).

Bacon pairs well with lots of food. Chocolate doesn’t happen to be one of them. See, no matter how good something may be, it’s not a perfect match for everything.

Despite the fact that I’m a professional mediator, it’s also one of my concerns about alternative dispute resolution. Like bacon with chocolate, it’s not always the right choice. But some in my field are convinced otherwise.

While attending an ADR conference a few years ago, I struck up a conversation with a fellow mediator. He chastened me when I used the phrase “alternative dispute resolution”. “No,” he corrected me, plainly insulted, “it’s not just an alternative, it’s appropriate dispute resolution — not like litigation, which is never appropriate, as far as I’m concerned. I want people to think appropriate instead of alternative when they hear ‘ADR’.”

Unfortunately the workshop I was leading was about to start, so I left without a chance to tell him what I thought. That was probably a good thing, since I was about to offer an impolitic response. What arrogance, I thought to myself, how can anyone insist on the absolute appropriateness of private resolution for all disputes? It’s like treating every disease with antibiotics regardless of the cause or the symptoms.

That mediator is not alone in thinking this way. Some mediators, I know, think that “alternative” marks ADR as inferior or third-rate — litigation’s red-headed stepchild. Google the phrase “appropriate dispute resolution”, and it’ll return over 20,000 hits. Frequent use has begun to legitimize it. This is no cause for rejoicing — not when you stop to read the legitimate criticisms leveled against ADR and overzealous ADR practitioners, or consider the reminders of the value and role of litigation. It becomes harder and harder to insist that the “A” in ADR should mean “appropriate”.

Over the years I’ve thought often about that conversation. I thought of it when I read Victoria Pynchon’s article, “Paternalism, Self-Determination and the Rule of Law“, which recounted an incident at the recent Mediators Without Borders conference:

[S]omeone suggested from the podium that we should include mediation and arbitration agreements in our own contracts with our own clients.

I raised my hand.

“Why,” I asked, “do you want to restrict our clients’ access to the justice system?” once again demonstrating a fractious lack of diplomacy that makes some people wonder how I could possibly be an effective mediator.

It wasn’t a well-placed question but it is of a type I often find myself more or less compelled to shoe-horn into any conversation that assumes mediation is best for other people.

It’s time at last to reclaim or insist upon “alternative” as the “A” in “ADR”. Among other things, “alternative” means “choice”, “one of several possibilities”. This notion of choice comports with ADR’s history with its roots in legal reform and other movements which sought to increase, not decrease, the choices available on the road to justice. Pioneer Frank Sander, while envisioning the multi-door courthouse with its many entrances leading disputants to the process fitting best their dispute, never intended that the door to litigation be closed. In delivering his 1976 paper, “The Pound Conference: Perspectives on Justice in the Future”, he reminded his audience of the “need to retain the courts as the ultimate agency capable of effectively protecting the rights of the disadvantaged”.

The lack of choice which ADR’s modern offspring have produced runs contrary to the promise of choice that once distinguished ADR. Let’s put the “alternative” back in ADR and let people choose for themselves what’s appropriate — whether to arbitrate or mediate — or, yes, to litigate.

This is probably way more information than any of us really needs to know, but here goes.

Poop For Peace Day (do not click if you possess a low tolerance level for the scatological) is based on the notion that #2 is the best way to solve the world’s #1 problem:

Poop For Peace Day is not a day of protest. Pooping for peace is not a left-wing or right-wing activity. Pooping for peace is an act of unity. It’s not about religion or politics. Rather, it’s about the simple truth: underlying our religions and our politics are universal needs, wants and desires. To poop for peace is to transcend arbitrary divisions and embrace that which makes us human. Only from starting at such a fundamental truism can we hope to expand our understandings and solve our differences.

If you say so.

Via Kottke.org.

This weekend I finished reading Steven Johnson’s The Ghost Map: The Story of London’s Most Terrifying Epidemic — and How It Changed Science, Cities, and the Modern World. A recounting of nineteenth-century London’s battle with cholera, it proved to be one of those books so riveting I could not bear to put it down.

It is at bottom an etiology of error — uncovering how mistaken beliefs about the causes of disease take hold, thrive, and persist, with disastrous consequences for public health. It considers important questions:

The history of knowledge conventionally focuses on the breakthrough ideas and conceptual leaps. But the blind spots on the map, the dark continents of error and prejudice, carry their own mystery as well. How could so many intelligent people be so grievously wrong for such an extended period of time? How could they ignore so much overwhelming evidence that contradicted their most basic theories? These questions, too, deserve their own discipline — the sociology of error.

This book delivers as well a message of optimism about intellectual courage and unblinkered vision — how two men struggled to cast off bad ideas and pursue better ones — ideas that ultimately led to the defeat of a deadly disease.

For anyone fascinated by human judgment and cognition, this book offers a reminder, rooted in history, of the importance of the second glance, of the ability to see anew.

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.

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?)

Throughout this election season here in the US, there’s been a lot of talk about the candidates and their skills in, or positions on, negotiating.

Barack Obama took heat for saying he’d talk with Iran, as Republican contenders insisted they wouldn’t negotiate with terrorists, while Hillary kept changing her mind whether she would or not.

Meanwhile from the mediation community we’ve heard Robert Benjamin’s views as a hard core negotiator on one of the candidates, countered by a deft parry from conflict management professor Darrell Puls.

With so much at stake here in the U.S. presidential elections — jobs, the economy, health care, foreign relations, national security, the war in Iraq, civil liberties, education, the environment, you name it — it’s surprising that no one’s talking about the negotiation skills of the one person who matters most here: the American voter. That’s the person we should be most concerned with, since it is this person who will ultimately determine (dodgy electronic voting machines and Florida recounts aside) who will occupy the White House in 2009.

What kind of negotiator is this person? How prepared are they for the negotiation in the voting booth? That’s what I want to know.

I therefore propose three negotiation tips for voters to aid them as they decide which political candidate to pull the lever for come November.

Negotiation Tip No. 1: Be prepared.

Many negotiators agree on the importance of preparation. The more you ask questions, the more you listen, the more you learn, the more you’ve taken time to understand the interests at stake and evaluate the options available, the better the position you’re in to negotiate. An election’s no different. Knowledge is power, both at the negotiation table and in the voting booth.

In fact, you owe it to yourself to seek your information from sources that are as reliable and as objective as possible. Forget what the candidates, your favorite radio station, or your Uncle Dave tell you. Visit sites like The Fact Checker, FactCheck.org, or PolitiFact.com to learn what the spin-doctors don’t want you to know. As The Who once said, “Won’t get fooled again.” Let that be your anthem.

Negotiation Tip No. 2: Watch out for cognitive biases.

As humans, we all fall prey to cognitive errors — the mistakes our minds commit as we make decisions or form judgments. In fact, here’s a whole list of them to guard against. In particular, watch out for confirmation bias — the tendency to seek out information that supports your position.

Negotiation Tip No. 3: Arm yourself against the weapons of influence.

In his classic work, Influence: The Psychology of Persuasion, Robert Cialdini details our susceptibility to the manipulations of others. He warns of how easily we succumb to influence, what he calls the click, whirr of human behavior. Click, the behavioral trigger is activated. Whirr, we irresistibly respond. For example, researchers have documented how effective authority can be for influencing everything from consumer purchasing decisions (consider the controversy over Dr. Robert Jarvik’s endorsement of Lipitor) to support for a political candidate (think Chuck Norris or Oprah Winfrey).

For a description of the strategies of influence at work, Victoria Pynchon writing at Settle It Now Negotiation Blog lists six basic principles of persuasion that you may already be at the mercy of.

* * * * * * * * * *

With these three tips, you’ll be ready for anything that the pundits and the pols dish out. Just remember, even if you don’t believe in negotiating with terrorists, at least be willing to negotiate with yourself before you vote.

On Valentine’s Day, romance is in the air.

But not for Charleston, West Virginia radio station WKLC. It’s holding a Valentine’s Day contest to give away a free divorce to one lucky couple.

There’s just a couple of problems. That free divorce — surprise, surprise — doesn’t include the services of a divorce mediator. And it may not be so free — the winner of the contest instead will only get 10 free hours of an attorney’s time.

Ten hours may only be enough to just get you started — especially if you consider the study the Boston Law Collaborative conducted of 199 divorce cases. It found that for divorcing couples, “[m]ediation was by far the least expensive option, with a median cost of $6,600, compared to $19,723 for a collaborative divorce, $26,830 for settlements negotiated by rival lawyers, and $77,746 for full-scale litigation.”

Tonight ABC news anchor Charles Gibson eulogized a colleague and friend, retired journalist John McWethy, who died yesterday in a ski accident.

Gibson spoke movingly of McWethy’s commitment to objective reporting and to uncovering the facts: “Jack believed that the most important word, the most powerful word, in the English language is why.”

Those words queued up a film clip of McWethy speaking at a DePauw University graduation ceremony:

All institutions, all endeavors, all relationships, are improved by a good scrubbing, using the word “why”. In democracy it is the question we must all constantly be asking our government and our leaders. It is not unpatriotic to question the government. It is unpatriotic not to.

Before kids become as scared of dispute resolution professionals as they are of clowns, I think it’s high time I stepped in to clear up a pernicious rumor buzzing among the elementary and preschool crowd.

Law blogger Denise Howell’s son, like plenty of other little kids, thinks that mediators wiped out the dinosaurs.

For the record, it was arbitrators.

People always get us confused.

Just when you think that mandatory arbitration clauses, cropping up ever more frequently in consumer agreements and employment contracts, can’t get any more outrageous, along comes a business that stoops to a new low.

The Mojo Blog at Mother Jones reports that

[T]he owner of an East Texas Whataburger has apparently taken arbitration mania to a new level. Every public entrance to the burger franchise displays a sign informing people that simply setting foot on the premises means that they are giving up their right to sue the company for any reason, even if, for instance, they get a little e coli along with their fries. Instead, customers will be forced to arbitrate their claims before the American Mediation Association, an organization that seems to consist of three lawyers in Dallas hired by the Whataburger (part of a 58-year-old fast food chain deemed a “Texas treasure” by the state legislature).

(Emphasis added.)

(Hat tip to Consumer Law & Policy Blog.)

I will remember always the pride I felt the day I was sworn in as a member of the bar.

I was the first woman in my family to go to college, to get an advanced degree, and now, to become a lawyer. It was an important achievement for me and for my whole family.

It meant a great deal, this formal commitment to the courts and to the law that courts serve — to become a member of a profession dedicated to principles so lofty that when you speak their names out loud, you can hear the capital letters ring out:

Justice. Liberty. Equality. Rights.

Such is the romanticism of youth.

A week or so after the ceremony, something unexpected happened to crush my youthful idealism.

I can no longer remember what mission the partner who was supervising me had sent me on, but for the first time I walked into a courtroom as a lawyer. I wore a brand-new suit and carried a leather briefcase (also new). I walked past the gleaming wood rail that marked the area where the general public waited, entered the lawyers’ bullpen, and proudly sat down.

A few minutes later, two attorneys, men in their late sixties, approached my row, caught sight of me, and then glared at me. They stood for a moment, and I had the impression that they were about to ask me to move. Instead, they glanced meaningfully at each other and then sat down directly behind me.

They began whispering to each other, just loudly enough that I could hear every word. “It’s an outrage what’s happened to the legal profession. People these days evidently don’t know their place,” said one. “Looks like anyone can be a lawyer these days,” said the other, “they’ve certainly lowered the bar.” There was more along those lines.

Nothing in my law school career had prepared me for that. I had no idea what to do. I could feel my face burning. I felt sick to my stomach. And really, really angry. The attorney sitting next to me rolled his eyes in disgust. “Ignore it,” he whispered, “and don’t let it get to you. Dinosaurs like that are on their way out.”

As it turns out, his prediction was wrong.

Sexism is alive and well and living in the comments section of an article in the ABA Journal’s Law News Now about a woman who contacts an advice columnist to get some help with a toxic workplace — specifically, the law firm that employs her.

Go see for yourself that dinosaurs still walk the earth.

At CKA Mediation Blog, Chris Annunziata asks, “What Is Appropriate Law Firm Attire Nowadays?”

I would pose a far more interesting question: what might that attire be concealing?

We mediators are keepers of secrets. People trust us with sensitive information. We know their vulnerabilities, their self-doubt, their long-nursed wrongs, their secretly nurtured hopes. We have seen the hiding places of the human heart.

Yet it’s not only mediators to whom confidences are trusted. Designer and corporate lawyer David Kimelberg is the creator of Inked Inc., a photography project and book exploring the intersection of corporate and alternative culture, in which professionals roll up their sleeves and reveal the tattoos beneath the pinstripes.

An online gallery of photos of lawyers, doctors, and other professionals shows us images of these individuals in work clothes as well as of the body art they keep hidden from their colleagues. (There are, alas, no mediators, in case you were wondering.) It provides a candid look at individuals straddling the line between the professional and the personal, the corporate and the countercultural, as they proclaim their individuality in a conventional world.

Inked Inc. also provides an online social community.

So . . . inquiring minds want to know. What’ve you got up your sleeve?