Any Soldier Dot Com

Here’s a website to explore in honor of Memorial Day.

I am inexpressively sad that our soldiers are in Iraq, a war I do not support. When I discovered “Any Soldier Dot Com,” I became a devotee. You can get the address of a soldier and send a "care package."

The website was started by a soldier. Soldiers/Sailors/Marines/Air Force and Coast Guard personnel sign up with the website. Any soldier/sailor in harm’s way is eligible. The gifts are shared, but soldiers and sailors who don’t get any mail are given things first. You can follow the links on the website to:

Look up a soldier/sailor by country
Look up a soldier/sailor by name
Look up a soldier/sailor by service
Look up a soldier/sailor by gender
Look up a soldier/sailor by state
Order treats online to be sent
Get the names and addresses of any soldier/sailor who has signed up
Follow comments from soldiers/sailors, including preferences of what they’d like to receive
Donate money to Any Soldier Dot Com

Items which are always appreciated include (in no particular order): clean socks, candy, books, toiletries, phone cards, snacks, DVD’s, beanie babies (to give to children), etc.

I usually make up my own packages to send. At the post office I ask for pre-paid Priority Mail boxes, labels and customs declarations. These are free. Because the boxes are sent to APO addresses, you do not need airmail postage. The boxes, regardless of weight, are a flat fee to mail, which I think is about $9, although it could have just gone up.

You know those toiletries the hotels give you when you travel? I save those up and fill up a box with them, paperback books I’ve read and candy of the season (Halloween, etc.) I don’t think of it as a big deal—it’s just a small way of thanking them for their service.

If you have a favorite activity you do for our service men and women, leave a comment and let us know.

Adjust Your Attitude: Go Positive!

(This is the sixteenth in a series of posts on preparing for mediation.)

Lawyers who litigate for a living are apt, at times, to take on the persona of a warrior.
As a lawyer representing clients in litigated conflict, I have taken on my client’s causes as my own. Sometimes it feels like winning is everything and the only thing. The skill set used in day-to-day litigation tends to be zealous, aggressive advocacy.

When I speak to litigators about mediation, I sometimes start with what mediation is not.

It is not armed conflict.
It is not hand-to-hand combat.
It is not Moot Court.

Mediation calls upon us to use a different skill set. One that is more collegial, cooperative and collaborative. Best to leave the attack dog persona at home.

Effective negotiators listen to, and often out-listen, the other side. They accentuate the positive. They look for common ground. They talk about interests, not positions. They engage the other side in problem solving. They figure out ways to create value.

To be an effective negotiator, changing your attitude can reap rewards for your clients. Imagine a mediation in which you “won” by creating value for your client. And in the process, you were your own best (albeit tough) self.

It starts with the mood and attitude you take into the mediation room. If you walk in feeling positive and optimistic, you’ll be more likely to stay balanced throughout the mediation and get a better result for your client.

Be positive. Stay positive. See the difference it makes.

Earth's First Bloggers

“Who knew blogging was so popular 3,000 years ago?”

Great line! This caption appears in an ad with a park ranger pointing out petroglyphs to tourists. It’s part of Alberta, Canada’s ad campaign currently posted in subway stations in San Francisco.

Here's the Travel Alberta website. I'm ready to go!

Preparation for Mediation: Anticipate The Other Side's Negotiation Strategies

This is the fifteenth in a series of posts on preparing for mediation.

During the heat of battle, it’s sometimes difficult to defend against the other side’s negotiation tactics. Anticipating their strategies in advance can be useful. Hey, if it was good enough for Bill Walsh….

Here are four suggestions.

1. Be prepared. Do your homework about the other party and lawyer as well as historical settlement values for your type of case and venue. Think through the other side’s likely negotiation strategies. Be rigorous in your approach to mediation.

1(a). (A bonus suggestion.) Act prepared. All of us get busy. If you haven’t had
time to thoroughly prepare, at least act as if you are prepared. Malhotra and Bazerman suggest that not only will you gain respect, you will discourage the other side from lying out of fear of being found out.

2. Prepare to answer difficult questions. Take the other side’s view and figure out
what the most difficult questions would be for you to answer. Then work on reasonable responses. Why should preparing for negotiation be any different than preparing for oral argument?

3. Prepare to re-frame. It’s an election year, and re-framing is big. It also works in
negotiation. If the other side is being positional, change the conversation from positions to problem solving. Engage the other side in thinking with you about creative ways to solve your joint problem (how to settle the case). Also consider the gain/loss reframe. We are more likely to make concessions when allocating gains than losses. Change the frame of loss into the frame of gain and the other side will be more willing to negotiate.

4. Prepare for emotions. When strong negative emotions come up (and they will)
neutralize them by acknowledging them and using strategies to get your head clear. Perhaps you’re thinking I’m talking about your client, and I am. But I’m also talking about you. Looking back, it’s been rare that as an advocate, I have been cool, unruffled and rational throughout every negotiation. Tell yourself ahead of time that you are not going to react in anger. Give yourself permission to take a break or walk around the block.

Line Up Your Negotiation Strategies

(This is the fourteenth in a series of posts on preparing for mediation.)

As a lawyer, I used to tell myself that negotiation was intuitive. Thus seat-of-my-pants decision-making in mediation made perfect sense. That was then and this is now.

Having a game plan, scripting your moves and considering a variety of negotiation strategies in advance not only gets you in the right frame of mind (I’m ready!) it just may give your clients a better chance of claiming all of the value of the case (or alternately, paying as little as possible).

Books have been written on this subject. (See, e.g., Craver, The Intelligent Negotiator.) Thanks to my negotiation professor, Charles B. Craver, who now teaches at The George Washington University School of Law, I have four suggestions.

Aspire higher. Studies show that lawyers who go into a negotiation aspiring to the highest outcome do better than those who do not. Determine a reasonable value for your aspiration. Add 20%. Then convince yourself of its reasonableness. Just as you convince yourself of the flawlessness of your motions before hearings and the righteousness of your client’s case before trial, persuading yourself that you have a reasonable settlement goal will help you persuade the other side.

Decide what to disclose. It may be a small point. Any disclosure will make you seem more credible and more reasonable. It may be a strategic larger point. Thinking it through ahead of time will keep you from giving away the farm.

Decide what to ask. Be curious and ask the other side why they view the problematic issue as they do. Also ask, why not? And, if you’re trying to create value, ask what if?
You may gain insights that will help you settle the case.

Decide what to concede. Concessions beget concessions. Use the Rule of Reciprocity for small points. (See my earlier post.) Use principled rationales for larger points. State them objectively and ask for a concession in return. Use contingent concessions for dicey points. Especially if there is uncertainty surrounding an issue, a contingent concession can be useful.

Your mediation is coming up. Time to get your ducks in a row.

Preparing for Mediation: Scripting Your Moves

(This is the thirteenth in a series of posts on preparing for mediation.)

I moved to San Francisco in 1978. Joe Montana came a year later. Of course I became a big ’49 fan. Bill Walsh, the legendary ’49 coach, prepared for each game by scripting the first 25 plays. The team practiced these during the week. On game day, Walsh might not use all of the plays, or he might change the order of the plays as the situation warranted, but he could always return to the list. Walsh explained,

“The whole thought behind 'scripting' was that we could make our decisions much more thoroughly and with more definition on Thursday or Friday than during a game, when all the tension, stress and emotion can make it extremely difficult to think clearly."

The same holds true for mediations. Negative emotions often come up in mediations, sometimes in the parties, sometimes in the lawyers. Scripting your moves in advance can enhance your ability to stay in the moment and not get side-tracked from your settlement objectives.

One of the first moves to consider is whether to make the first offer. Many lawyers are hesitant to do this, worrying that it will be seen as a sign of weakness. The negotiation literature suggests that the party who puts forward a reasonable first offer is the party who controls the outcome of the mediation. Psychologists call this anchoring.

When you put out a reasonable first offer, even if its reasonableness is a little high (or low depending on which side you are on) other parties react to it. Your first offer therefore anchors the other side’s expectations. Many studies have been done on this phenomenon and you can read about them in Malhotra and Bazerman, Negotiation Genius, and Lax and Sebenius, 3D Negotiation. It’s the same reason that minimum bids are set in auctions. The higher (a reasonable) minimum bid, the higher the ultimate sale.

From Lax and Sebenius:

“[S]ome researchers argue you should put the first offer on the table,
and make that first offer as aggressive as you can. Because anchors
shift negotiator’s perceptions of the bargaining range, more aggressive
offers tend to be more influential than less aggressive ones. And
because anchors are more influential under conditions of greater
uncertainty, the first offer can have a much larger anchoring effect
than subsequent ones.”

Your best first move may be making the first offer.

Logrolling: How to Exploit Your Differences at Mediation

(This is the twelfth in a series of posts on preparing for mediation.)

Debra Synovec (below) created a nice segue into this post on logrolling. Did you notice she said that as a mediator, she looks for differences as a way to create value?

As lawyers, most of us think of the differing viewpoints of each side as impediments to settlement. After all, if the other side views the case exactly as we do, mediation would be unnecessary. Rather than thinking of differences as obstacles to overcome, try looking at them as opportunities to exploit.

Before your next mediation, think of the differing points of view you and the other side have. These could be differences in priorities, risk evaluation, time preferences or expectations about the future. An issue might have less priority to you and a greater priority to the other side. The other side might be more risk adverse than you. The timing of settlement payments may be important to one side, but not to the other. What will happen in the future may look different to the parties. Consider questions to ask at the mediation that could ferret out these differences.

Debra also noted that people care about the issues in a mediation. But here’s an important point: their passion is not equal on every issue. If you think about the issues ahead of time, you can make an educated guess about the other side’s passions. At the joint session, or in caucus with the mediator, you can test your hypotheses. If there is an issue that they are passionate about and you are not, conceding that issue to them creates an opportunity for you to gain a concession on an issue you are passionate about.

Malhotra and Bazerman in Negotiation Genius have a terrific explanation of this strategy.