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On September 6, 1916, the 64th Congress of the United States passed legislation declaring that the Supreme Court shall hold one term annually, “commencing on the first Monday in October.” Today, for the second time in the past three years, the Court begins its term with less than its full complement of nine justices because the Senate has not yet completed the confirmation process concerning the nomination of Judge Brett Kavanaugh to fill the vacancy created by the retirement of Justice Anthony Kennedy.

Last Friday, after hearing from Dr. Christine Blasey Ford and Judge Kavanaugh the day before, the Senate Judiciary Committee completed its confirmation hearing and referred the nomination of Judge Kavanaugh to the full Senate, pending completion of a further investigation by the FBI. Ironically, the confirmation hearing provided a case study in “confirmation bias” — the tendency to seek and give greater weight to information which supports one’s existing beliefs and theories, while ignoring or undervaluing information which tends to refute those same beliefs and theories. “Confirmation bias” also includes the tendency to interpret new information in ways which support, rather than refute, one’s existing beliefs or theories.  


In June of 1894, amidst a deepening economic crisis, railroad employees staged a strike against the Pullman Palace Car Company to protest wage cuts and the firing of union representatives. Within days, members of the American Railway Union joined the “Pullman Strike” nationwide. When the U.S. government was asked to intervene, President Grover Cleveland dispatched federal troops and — after much rioting and bloodshed, including 30 deaths — the strike ended. Just six days later, fearing further conflict and hoping for a reconciliation with organized labor, Congress unanimously — ah, the good old days! — passed legislation which declared the first Monday in September to be “Labor Day.”  


I’ve been a fan of Mission: Impossible — first the television series, including its remake in the ’80s, and now the movie franchise starring and produced by Tom Cruise — since the day it first aired on September 17, 1966. With “Mission: Impossible — Fallout” having opened this past weekend, what better time to revisit and update the August 2015 edition of Resolution Strategies . . .

“Good morning, Mr. Siegal:  


As a mediator, I’ve discovered a truth that wasn’t really self-evident during my years as a litigator. Over the past ten years, I’ve repeatedly observed plaintiffs and defendants allow their negotiating strategy to be dictated by the other side. If one side presents a demand or offer deemed unreasonable, the other invariably counters with an offer or demand intending it to be equally unreasonable, inevitably leading to a series of tit-for-tat moves that make resolution more difficult. To prevent this scenario, consider declaring your independence from “reactive” negotiation.  


Nearly seven years ago, the California Supreme Court rendered its decision in Howell v. Hamilton Meats & Provisions, Inc., limiting a plaintiff’s right to recover economic damages for past medical expenses to the reasonable value of the services rendered or the amount actually paid by the plaintiff’s health insurance carrier, whichever is less.

At the time, offering my prediction of the impact Howell was likely to have, I wrote the following:

“In the short run, defendants will undoubtedly temper their settlement offers, believing that juries will be less likely to award substantial “general” damages absent evidence of substantial “special” damages.”  


Nearly eight years ago, on June 2, 2010, pitcher Armando Galarraga — then wearing the uniform of the Detroit Tigers — did something very few players in Major League Baseball have ever done. I’m not referring to the fact that he pitched what everyone agrees was clearly a perfect game. Rather, I’m referring to something perhaps even more rare and, in my opinion, more significant. I’m referring to the fact that a Major League Baseball player reacted to a first base umpire’s glaring mistake – in this case, a mistake of truly epic proportions that deprived the player of his rightful place in Major League Baseball history — not by arguing, but by accepting the umpire’s decision with perfect grace and equanimity.  


A principal function of the mediator in most disputes is to manage negotiations regarding money. When the time finally comes to discuss dollars, I sense that many attorneys fear disclosing their true objective to their mediator, convinced it will undermine their ability to achieve that objective. While at first blush that fear might seem to make perfect sense, my experiences as a mediator have taught me otherwise.  


After nearly four hours of mediation, the gap separating the parties had been reduced to $70,000. Defendant was not willing to make another move, but I sensed plaintiff still had room to negotiate. With the permission of counsel for plaintiff, I offered to present a Mediator’s Proposal for the parties to consider — an offer that counsel for defendant immediately refused, explaining that his adjuster had no interest in having me present a Mediator’s Proposal. Given defendant’s position, the mediation ended for the day.  


Long before I ever contemplated transitioning from litigator to mediator, I learned a valuable lesson about the power of communicating “visually” in mediation – one I have never forgotten.

I was defending a real estate brokerage in a nondisclosure claim for which plaintiff was seeking substantial damages. Counsel for plaintiff requested an opening joint session, to which I agreed. Using an exceptionally well-constructed computer presentation, he proceeded to preview what he was planning to show and tell the jury in his opening statement if the matter proceeded to trial.  


After mediating an interesting case last month, it struck me that mediators and air traffic controllers share something in common. Like air traffic controllers, mediators are responsible for managing the transmission of critical information to multiple parties, providing advice and guidance along the way to assist them in reaching their destination. Sometimes, as in the case I mediated last month, that may require taking an alternate route.  

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