Category Archives: Popular Culture, Politics, Society

Conflicts of interest in the age of Twitter and Facebook: neutrals must find right balance

finding balance in an age of Twitter and FacebookFacebook, Twitter, LinkedIn – if you are active on any of those sites or on the many others like them – then you no doubt have frequent opportunities to connect.

But what happens for ADR professionals – mediators, arbitrators, and others – when clients are the ones who invite you to connect, follow you, or seek to “friend” you?  In an increasingly plugged-in (and wireless) world, when many of us do our networking or marketing online, the risks of this happening are real: the ABA Journal reports that the North Carolina Judicial Standards Commission reprimanded a judge who friended on Facebook a lawyer in a pending case and discussed the case by posting messages to the lawyer through the social networking site.

Various codes of conduct for mediators, such as ABA and ACR’s Model Standards of Conduct for Mediators (PDF) (which, alas, are aspirational only with no regulatory teeth to back them), exhort mediators to identify and disclose all actual or potential conflicts of interest, including current or past personal or professional relationships with any of the parties, and caution mediators to prevent harm to the integrity of the process and avoid establishing a relationship with any of the participants once the mediation has ended.  These standards, as my favorite ADR iconoclast, scholar Michael Moffitt, has pointed out before, offer little meaningful guidance and don’t tell me whether following someone on Twitter counts as a “relationship”, professional or otherwise. I can however imagine how one side to a dispute might feel were they to see that I’d connected on LinkedIn with their counterpart two weeks after the mediation had concluded.

So what’s a mediator to do in the digital age? What policies do you have in place for dealing with the day a former client seeks to friend you on Facebook ?

Photo credit: Kostya Kisleyko

Law like love: thoughts on a Supreme Court nomination, ADR, and jurisprudence

Law like loveEarlier this week President Obama announced the nomination of Federal Appeals Court Judge Sonia Sotomayor to the U.S. Supreme Court.

Predictably her nomination produced swift reaction: cheering accolades from some quarters and harsh condemnation from others. What caught my own attention was the response of a number of conservative pundits to an article Sotomayor wrote with Nicole Gordon, “Returning Majesty to the Law and Politics: A Modern Approach” (PDF), 30 Suffolk U.L. Rev. 35 (1996), based upon a speech Sotomayor delivered in February 1996 as part of the Donahue Lecture Series, a program instituted by the Suffolk University Law Review to commemorate an honored 1921 alumnus, Judge Frank J. Donahue. A former faculty member, trustee, and treasurer of Suffolk, Donahue served as an Associate Justice of the Superior Court of Massachusetts for 42 years. (As an aside, over the years the Donahue Lecture Series has featured many distinguished speakers, including Chief Justice William H. Rehnquist, Associate Justices Antonin Scalia and Stephen G. Breyer, and Judge Richard A. Posner.)

Sotomayor’s article acknowledges the lack of public confidence in law and legal institutions, due in part to law’s propensity to evolve over time and the uncertainty of its outcomes, and sets forth some modest proposals to restore confidence in the legal profession and the judiciary.  Sotomayor recognizes, too, the binary limitations of law, giving alternative dispute resolution a nod:

…the adversary system, almost by definition, cannot address the gray area of the “truth” present in most cases because the system tends to produce all-or-nothing winners and losers. This is why settlements and new forms of “alternative dispute resolution” are so important.

What provoked the heated wrath of several conservative voices? These words:

The public expects the law to be static and predictable. The law, however, is uncertain and responds to changing circumstances.

And these:

The constant development of unprecedented problems requires a legal system capable of fluidity and pliancy. Our society would be strait-jacketed were not the courts, with the able assistance of the lawyers, constantly overhauling the law and adapting it to the realities of ever-changing social, industrial and political conditions; although changes cannot be made lightly, yet law must be more or less impermanent, experimental and therefore not nicely calculable. Much of the uncertainty of law is not an unfortunate accident: it is of immense social value.

And finally these:

…a given judge (or judges) may develop a novel approach to a specific set of facts or legal framework that pushes the law in a new direction…[referring to cases of first impression]

Sotomayor’s critics are quick to see these as nothing more than secret code, the tell-tale signs of judicial activism, and convincing proof that Sotomayor will make up law out of whole cloth to advance a radical left-wing agenda.

Alas, there is nothing either remarkable or sinister about what Sotomayor has written. She is simply describing what every first-year law student in common law jurisdictions like the U.S. learns during his first few weeks in law school: that law is in flux, gradually but constantly evolving, and that some of it, as indeed it has been for centuries, is the product of judicial decision making not legislative action.  At the risk of reproducing here what has rapidly devolved into a tedious cliché through constant repetition, I offer you what jurist and legal scholar Oliver Wendell Holmes said about the law in his best known work, The Common Law:

The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics. In order to know what it is, we must know what it has been, and what it tends to become.

On a less lofty, more pragmatic level, the uncertainty of law is well known to its agents, intermediaries, and surrogates: it is what creates leverage at the mediation table. As litigators and the mediators who assist them behind closed doors know full well, the law can be unpredictable, so better trade hope for certainty by settling.

While pundits cannot see it, even the poets know of the mutability of law; I leave you with W.H. Auden’s moving work, “Law Like Love”, which speaks of law’s unknowable and ever-changing nature:

Law, say the gardeners, is the sun,
Law is the one
All gardeners obey
To-morrow, yesterday, to-day.

Law is the wisdom of the old,
The impotent grandfathers feebly scold;
The grandchildren put out a treble tongue,
Law is the senses of the young.

Law, says the priest with a priestly look,
Expounding to an unpriestly people,
Law is the words in my priestly book,
Law is my pulpit and my steeple.

Law, says the judge as he looks down his nose,
Speaking clearly and most severely,
Law is as I’ve told you before,
Law is as you know I suppose,
Law is but let me explain it once more,
Law is The Law.

Yet law-abiding scholars write:
Law is neither wrong nor right,
Law is only crimes
Punished by places and by times,
Law is the clothes men wear
Anytime, anywhere,
Law is Good morning and Good night.

Others say, Law is our Fate;
Others say, Law is our State;
Others say, others say
Law is no more,
Law has gone away.

And always the loud angry crowd,
Very angry and very loud,
Law is We,
And always the soft idiot softly Me.

If we, dear, know we know no more
Than they about the Law,
If I no more than you
Know what we should and should not do
Except that all agree
Gladly or miserably
That the Law is
And that all know this
If therefore thinking it absurd
To identify Law with some other word,
Unlike so many men
I cannot say Law is again,

No more than they can we suppress
The universal wish to guess
Or slip out of our own position
Into an unconcerned condition.
Although I can at least confine
Your vanity and mine
To stating timidly
A timid similarity,
We shall boast anyvay:
Like love I say.

Like love we don’t know where or why,
Like love we can’t compel or fly,
Like love we often weep,
Like love we seldom keep.

On Mother's Day, every mother deserves a little peace…and justice

An organization committed to promoting social justice, Inter Pares, whose name means “among equals” in Latin, has launched a campaign to take back Mother’s Day and rededicate it to the causes of peace and reconciliation that its early proponents worked for.

Here’s the video they’ve created urging mothers and anyone who’s got a mom to take back Mother’s Day:

Hat tip to Catherine Morris at Peacemakers Trust.

Another round-up of articles for negotiators, ADR professionals

roundup for mediatorsSince February I’ve been microblogging at Twitter, a social media tool ( and recently sharing my experiences and lessons learned).

As I’ve come to appreciate, Twitter can be a great way to keep your ear to the ground and gain access to the latest news and ideas that the world is discussing.

As I’ve done in the past for non-Twittering readers of Mediation Channel, I’ve pulled together a sampling of articles I’ve recently passed along to my followers on Twitter.

If you’re already on Twitter, you can follow me at @dianelevin. Or you can subscribe to the RSS feed for my Twitter updates.

Negotiating disability

barriers to negotiationLast summer an online magazine for entrepreneurial women elevated form over substance when it advised its audience to accessorize for that big negotiation and mimic the “look” of the person on the other side of the table. I responded with a post criticizing the undue focus on physical appearance:

Behind it lurks a whole array of social justice issues uncomfortable to discuss but urgent for us to face — women and aging, youth and beauty, race and skin color, antipathy toward the obese, prejudice against those with disabilities or deformities.

In urging women to “mimic” the look of their bargaining counterpart, how would the author of this article counsel the 60-year-old woman negotiating with her 30-year-old prospective boss? Or a woman of color negotiating in a predominately white workplace? Or a woman wearing a hijab? Or a woman with a face disfigured in a car crash, negotiating with people who are unscarred and whole?

We are told not to judge a book by its cover yet repeatedly we do nonetheless, reducing others to something less than the sum of their parts. We make snap judgments, too often wrong ones, on the basis of physical appearance. We mistake mere emblems of authority — the business suit or the white coat — for actual authority. We rely on beauty as a proxy for intelligence, social skills, and talent.  And our discomfort with differences can lead those who are not disabled to stigmatize and shun those who are.

Consider the recent case of BBC children’s television host Cerrie Burnell. The BBC’s decision to cast Burnell, who has only one hand, sparked strong reaction from some parents who claimed that her disability would frighten children.

The BBC made the decision to hire Burnell; others obviously would not have. For those with disabilities not all barriers are made of concrete or stone. And some still block access to a seat at the negotiating table.

(Hat tip @NaropaPeace.)

More negotiation lessons from humor

Questions before decisionsLast fall, in “A negotiator walks into a bar“, I passed along a humorous story offering lessons in problem solving that a friend happened to email me. Over the weekend, this same friend emailed me another joke, which likewise serves double-duty as a cautionary tale for negotiators.

Here it is:

A large company, thinking it was high time for a shake-up, hired a new CEO.

The new boss was determined to rid the company of all slackers.

On a tour of the facilities, the CEO noticed a guy leaning against a wall. The room was full of workers, and the CEO wanted them to know that he meant business. He walked up to the guy leaning against the wall and demanded, “How much money do you make a week?” A little surprised, the guy looked at him and replied, “I make $400 a week. Why?”

The CEO pulls out his wallet, hands the guy $1,600 in cash and yells, “Here’s four weeks’ pay, now get out and don’t come back!”

Feeling pretty good about himself, the CEO looked around the room and asked, “Does anyone want to tell me what that slacker did around here?”

For a moment, silence reigned. Then, a worker close by gathered the courage to speak up: “Pizza delivery guy from Domino’s.”

The moral of the story: ask questions before you decide, not after.

January 20, 2009: The better angels of our nature

our better angelsChange has come to the White House.  Among the signs: the new White House blog, which affirms the commitment of the Obama administration to three core principles: communication, transparency, and participation.

Among its first posts was this one, proclaiming a National Day of Renewal and Reconciliation:

We are in the midst of a season of trial. Our Nation is being tested, and our people know great uncertainty. Yet the story of America is one of renewal in the face of adversity, reconciliation in a time of discord, and we know that there is a purpose for everything under heaven.

On this Inauguration Day, we are reminded that we are heirs to over two centuries of American democracy, and that this legacy is not simply a birthright — it is a glorious burden. Now it falls to us to come together as a people to carry it forward once more.

So in the words of President Abraham Lincoln, let us remember that: “The mystic chords of memory, stretching from every battlefield and patriot grave to every living heart and hearthstone all over this broad land, will yet swell the chorus of the Union, when again touched, as surely they will be, by the better angels of our nature.”

It is enough to move even an atheist like me to say, “Amen.”

No soap, radio: confronting our fear of asking questions

No soap, radioThose of you who grew up in the U.S. may be familiar with “no soap, radio“, a prankster’s joke.  When I was a kid, it was the kind of gag that older kids would pull on younger ones. The prankster and her accomplices — a group of sixth graders for example — would approach their mark — a younger sibling in the fourth or fifth grade perhaps — and offer to regale him with the funniest joke ever.

In the version popular in my hometown, the joke went something like this:  “Two elephants sitting in a tub were taking a bath together. One elephant says, ‘Hey, pal, pass the soap.’ The other elephant replies, ‘No soap, radio!'”

On cue, the prankster and her accomplices begin to laugh uproariously.  The younger kid surreptitiously glances at them, not sure why his older sibling and her friends are laughing.  Puzzled and uneasy, but not wanting to appear unworldly (meanwhile wondering anxiously whether ‘radio’ might be some kind of sexual slang), the younger kid begins to laugh, too, hesitantly, then with more conviction.  The prankster and her friends suddenly stop laughing, and maliciously one asks, “Hey, kid, what’s so funny?”  The younger kid stops, sensing too late the undercurrent of cruelty.  The air is charged with it, as a shameful silence hangs.  The older kids explode with laughter again, and in triumph the prankster shouts out the real punchline, “If it’s so funny, then explain it to me!”

Like a home-grown version of the experiments in social conformity conducted by Solomon Asch in the 1950s, it’s a prank that exploits a strong fear and an equally fierce desire: our fear of looking stupid, and our desire to belong.  Unfortunately, when you don’t ask, the joke’s on you.

It takes courage to admit when we don’t know something, and courage as well to ask.  As the proverb says, “The one who asks questions doesn’t lose his way” — or, for that matter, look like an idiot on the playground. It’s a grade school lesson that all of us should heed.

(Photo credit: Emiliano Spada.)

Federal law would create negotiation training programs for women and girls

Negotiation justice for womenOn January 9, 2009, the U.S. House of Representatives approved two bills that would remedy paycheck discrimination.  One, the Paycheck Fairness Act, would eliminate gender-based pay disparities.

What is especially significant about this Act is that it would establish a grant program to fund training for women and girls in negotiation skills. Section Five of the Act provides:

An entity that receives a grant under this subsection shall use the funds made available through the grant to carry out an effective negotiation skills training program that empowers girls and women. The training provided through the program shall help girls and women strengthen their negotiation skills to allow the girls and women to obtain higher salaries and the best compensation packages possible for themselves.

Congress has at last recognized and aims to remedy a problem that women themselves have long been aware of: that social barriers prevent women from negotiating effectively.

(Hat tip to Concurring Opinions.)

To err is human: how do we keep our feet out of our mouths in the first place?

apologizing for hidden bias

Last week, legal marketing guru Larry Bodine put his foot in it with a blog post describing the “Best ‘Elevator Pitch’ Ever…?”, courtesy of a “silver-haired senior-most litigator” who relies on a cheap joke about the Holocaust to woo business clients.

Bodine’s readers responded with outrage, and, to his credit, Bodine deleted the post from his blog and offered an apology that mediator Victoria Pynchon has described as “heart-felt”:

I sincerely apologize for the crude and offensive “Elevator Pitch” post I put online last week. In the clear light of morning, it is clear that it was anti-Semitic and repellent. I want to thank all the people who commented and called me about it; I listened and took what you said to heart.

I have deleted the post. It was a mistake to repeat a crude joke that I heard in rural Illinois, and I should have known better. It was a worse mistake to say it was the “best” of its kind, when actually it was hideous.

Curiously, at Legal Blog Watch, a well regarded blogger approvingly repeated Bodine’s anecdote in a post captioned “Great Elevator Pitch for Lawyers“. Quickly realizing her error, and showing true character and class, she amended her post to apologize sincerely for her mistake:

Law firm public relations expert Rich Klein makes the important point at his blog that an elevator speech making light of the Holocaust is offensive. Klein is right and I apologize to anyone whom this post may have offended.

Although Bodine’s apology has earned the praise of some, not everyone was willing to let him off the hook so easily, including one blogger from a family of Holocaust survivors.

But what interests me about this whole event is not so much the apologies that resulted, or their acceptance or rejection. Instead, I wonder how it is that two people, one who recounted the anecdote and one who repeated it, missed its offensiveness the first time around. That they did is a lesson in humility for all of us.

In a post published in The Situationist in the aftermath of the Don Imus firing last year, authors Jon Hanson and Michael McCann mused,

…the stereotypes that we purport to abhor when articulated explicitly reside within most of us unexamined and unchallenged, sometimes wielding influence on our cognitions and behavior. We are, in a way, all carriers of the same virus…

What happened to these two bloggers could happen to you or me.  We, too, are susceptible; it is all too easy for any of us to err.  Without warning, we can all be deaf to the import of our words, blind to their effect.  In the end, we can only learn from incidents like these.  As James Joyce wrote, “A man’s errors are his portals of discovery.” Experiences such as these can build our immunity to the viruses within us.  And healing will come — through prevention and, yes, through apologies.