Play Ball!

This is not about Major League Baseball, even though today is opening day of the 2011 season. However, baseball has been used as a metaphor for, or backdrop to, life in general for most of the last century, at least in U.S. literature and theater. From For Love of the Game to Field of Dreams, from The Chosen to the The Natural, baseball in novels and the movies is part of our national and cultural folklore. Baseball’s lessons and language also permeate mediation and dispute resolution.

The other day, I was engaged in some business negotiations. After presenting our initial proposal, the other party’s attorney said it was not even “in the ballpark” and advised his client to forget about making any deal with us. In effect, he wanted to pick up his ball and look for another game after the first pitch. Recognizing this as a time-worn negotiating tactic, I reminded them that we were only in the first inning and there was plenty of time for both sides to take their turn at the plate. In other words, we wanted to play ball with them. If they would have accepted our initial proposal, we would have been very happy but that was not our entire game plan. After the exchange of a few more proposals, it became apparent what was important to each side and an agreement was reached. All it required was for each side to demonstrate a love of the game and be prepared to “go the distance.”

Very often in mediation and negotiation, we see parties take positions that are seemingly irreconcilable at the outset. If the parties come in with positions that are truly their bottom lines, no agreement or settlement will be possible. Therefore, I recommend that the parties do their research ahead of time, come in with their best alternative to a negotiated agreement (BATNA) but be aware of the worst that could happen. And then play ball. After all, it is our national pasttime.

Hopes to Settle

The headline for the lead article in the local section of today’s Milwaukee Journal Sentinel reads “Archdiocese hopes to settle.”  Music to a mediator’s ears.  The article quotes Milwaukee Archbishop Listecki and the attorney for 15 plaintiffs who have filed lawsuits in Milwaukee County Circuit Court over the Archdiocese’s handling of clergy sex abuse cases.  The Archbishop said he wants to be responsive to victims, and avoid a trial in court and extensive legal fees.  The attorney for plaintiffs said the victims want exposure of all offenders, disclosure of all files, and closure.  That would be very poetic justice.  How nice when both parties publicly state their motivation up front. 

A retired Cook County (Illinois) judge will be the mediator.  One roadblock immediately appeared when plaintiff’s attorney said that a desire by the Archdiocese to seal the documents would be a deal breaker.  It remains to be seen whether the judge will be able to avoid that obstacle to settlement.  It is nice to see mediation getting such prominent attention in the media.  But will the parties’ publicly expressed intentions be followed in private negotiations and mediation?  Or is it all just so much “hopium”?  Determining the parties’ true motivations is the beginning of the process, not the end.  It has taken the parties 15 years to decide to try mediation in these cases.  A quick end is not necessarily in sight merely because they have agreed to mediate, but it is a good first step. 

Good idea, glad I thought of it

About 5 years ago, my wife and I had some friends over for dinner, and my sister-in-law from Southern California was there as well. We mentioned that our niece (the sister-in-law’s daughter) had just graduated from college and that our friends had a son who had recently moved out there to go to grad school. We thought they might make a good match and asked if they would like to be fixed up. Our friends said that if it came from his parents, their son would have nothing to do with it. So we dropped it.

About 8 or 9 months later, we found out that our niece had begun dating a guy she met through the internet. And so had our friend’s son. Sure enough, they found each other through an electronic Yenta the Matchmaker. When it became their idea, it was a good one. Last summer, we attended their wedding. 

Yesterday, I heard a report on NPR reminding us that Republican opposition to health care reform in the 1990s (Hillary-care) resulted in a Republican sponsored proposal for mandatory health insurance, which the Democrats opposed. Now, Republicans oppose the Democratic health care proposals (Obama-care) because they mandate health insurance coverage for everyone. It seems that neither party thinks this is a good idea unless it is their own. Sounds familiar.

When I try a case or mediate a dispute, I try to plant seeds and let the jury or the parties think that they came up with the ultimate resolution. If the verdict is favorable or the settlement is something everyone can live with, I don’t care whose idea it was. Ego has no place in this business. It’s a shame that politicians can’t say the same thing. 

All I want for Christmas is . . . Arbitration?

The House of Representatives has passed a measure that provides for binding arbitration for more than 2,000 General Motors and Chrysler dealers to fight company-ordered closings.  Illinois Senator Richard Durbin said he expects the Senate to pass the measure, too.  Durbin added that “This is a fair opportunity to resolve the disputes and to have a fair hearing, which is all these dealers have asked for.” Oh, really?  Automobile dealers just want a fair hearing?  Arbitration?  They don’t want to stay in business and continue to make money selling GM and Chrysler vehicles?  I don’t think so.  First of all, seven years ago, Congress enacted the Motor Vehicle Franchise Contract Arbitration Fairness Act, which exempted auto dealers from the Federal Arbitration Act.  Instead, the Act makes predispute arbitration clauses in motor vehicle franchise contracts unenforceable unless both parties consent after the dispute arises.  Let’s face it.  No one wants to give up their 7th Amendment right to sue in court, and have a jury resolve their case, unless they believe it would enhance their chances of winning.  Secondly, binding arbitration and litigation are the ultimate hammers in dispute resolution.  If the parties cannot negotiate a mutually acceptable settlement agreement, one of them is going to initiate a lawsuit or arbitration.  Forum shopping has long been part of the process of deciding which course to follow.  But let’s not fool ourselves.  No one merely wants a “fair hearing.”  They want to win.  Or, at least, they want leverage to help negotiate or mediate a better settlement.