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Law Rules

How we resolve our disputes

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Monday
Jun132011

Popping the "information cocoon"

Sometimes, reading a New York Times book review can be better than reading the book. This past weekend, a review of the book The Filter Bubble: What the Internet is Hiding From You prompted me to think about how people can be trapped inside their own “information cocoons.” Google and other internet search engines, as well as Facebook, LinkedIn and other social media, apparently spoon feed us information they think we would like to see, based upon our past searches and selections. Their algorithms personalize search results and rankings according to the searcher’s previous internet history. The book details how and why this is done, as well as exploring the political and social implications of search engine personalization. The book review raises the question of whether governmental regulation to achieve more “serendipitous discovery” is desirable.

This topic is important in understanding how people make decisions and why disputes and conflict arise. Perhaps this is one of the reasons many people perceive an increase polarization and hostility in recent public discourse. When the information you receive on the internet is tailored to complement your previous disposition, you are less able and likely to see the other side’s point of view.

In dispute and conflict resolution, it is sometimes necessary to pop a person’s “information cocoon” to help him or her understand the other side’s position and the risks of continuing the conflict. Mediators often must test a participant’s underlying presumptions by engaging in “reality checks.” Another way to think about this process is to pop the information cocoon. Where are the parties to the dispute getting their information? Are they familiar with the other side’s sources? If not, it may be worth their time to take a look. 

Good litigators must know the other side’s case as well as their own. Good negotiators must be similarly prepared. If internet search engines and social media are making that more difficult, we must be aware of it and be prepared to deal with it. Removing the filters from our search engines would be a good start toward diversifying our information sources. Mediators should be prepared to point out this problem to parties in dispute in order to help pop their information cocoons.

Monday
Sep202010

Anti-Social Network

I can’t wait to see the movie Social Network, about the Winklevoss brothers’ lawsuit against Mark Zuckerberg, the CEO of Facebook. The brothers, who claim that Zuckerberg stole the Facebook idea from them when they were students at Harvard, reportedly reached a mediated settlement of that lawsuit for $65 million worth of Facebook stock. Then, their attorney commenced arbitration proceedings against the brothers to receive their 20% contingent fee. The attorneys succeeded and a U.S. District Court judge confirmed the award, but the brothers are appealing to the Ninth Circuit Court of Appeals. This morning, the brothers appeared on NBC’s Today Show and announced that they were going to try to reopen the settlement and the lawsuit because the stock was worth only about 22% of what Facebook (which is not publicly traded) lead them to believe it was worth. Of course, none of this information was supposed to be public because the mediation and arbitration were both confidential. So the veracity of the movie will remain questionable. Nonetheless, it should be fun to see how a nerdy Harvard student came up with, or stole, the idea to build and market Facebook, turning it into a multibillion dollar enterprise in a few years.

But several things bother me about the reporting of the lawsuit.

  • First of all, numerous reports state that the brothers “won” their settlement in mediation. Apparently, some reporters still do not understand the difference between mediation and arbitration or litigation.
  • Secondly, we’ve seen this movie at least twice before—Bonfire of the Vanities and Wall Street. And, like Wall Street, there is sure to be a sequel to Social Network because the Winklevoss brothers and Zuckerberg apparently are not done with each other yet. But what stands out, to me, in all of these stories is that there are no good guys and no one wins. I have actually been involved in a few cases like that. Sometimes, the best you can hope for is that there will be an end to it. I don’t know if greed is good, but it certainly is back.
  • Finally, what, if anything, does the settlement agreement say about future disputes? Is there no requirement that the parties return to mediation? With so much money at issue, “buyer’s remorse” should have been foreseeable. I wonder if the parties to the agreement, or the mediator, ever considered this. From now on, future dispute clauses may become routine.