Communique - CNDR's Newsletter
June 2009

Negotiation Tip: How to Bring Curiosity into the Mix

By Grande Lum, originally published in the Huffington Post

Look at your difficult relationships with fresh eyes to open new possibilities.  Whether interacting with a lifelong acquaintance or a total stranger you can say to yourself, "I know what that person is going to say" or "I know where this conversation is going." Over time, your interactions resemble scenes from the movie Groundhog Day, where the main character played by Bill Murray keeps reliving the same exact day over and over again. When you perceive yourself having the exact same conversation repeatedly, you can unwittingly fall into an adversarial dynamic.

Experience and knowledge can surprisingly lead you down the conflict spiral. On the one hand, experience can breed comfort and success, yet, it is wisdom that offers sophistication in managing difficult situations. Generally speaking, we revere experts in any field who, with a minimum of clues, can give accurate diagnoses and solutions instantly. However, the more expert you become, the more likely you filter out nonconforming data.

After sizing up the situation, you quickly see what you need and then leap to your conclusions. When everything becomes old hat in tough interactions with another person, the conclusions stay the same. You can unconsciously drive the interaction to conflict and not realize your role in the process. You become unaware and cannot accurately gauge how the other person perceives you.

One of the best attributes of a mediator is that they bring that outsider perspective to a conflict. As a mediator, I remember the power of asking the parties questions they would not ask each other. I asked parties in labor-management disputes why they chose to work at the organization, what they like about where they work and what were their worst times. The process humanizes warring individuals to each other. They listened to each other more intently than they may have ever done so. Curiosity led to openness. Labor representatives then agreed to allow management more flexibility in offering bonus compensation while management agreed to provide more money for an important initiative.

In truth, anything a mediator can do, individuals can do on their own. Observe with fresh eyes, like Bill Murray in Groundhog Day, to open up what seems to be exactly the same as it has always been. Bring in curiosity to a routine interaction to bring new energy to the people, the discussion and the outcomes. Ask about the other person's hobbies and interests. Inquire to a side of that person about which you know nothing. Where there appeared to be no choice, choice gradually unfolds.

Choice of attention - to pay attention to this and ignore that - is to the inner life what choice of action is to the outer. In both cases, a man is responsible for his choice and must accept the consequences, whatever they may be. -- W. H. Auden

New Faculty for Fall: Russell Brunson & Sheila Purcell

As we prepare for the beginning of school in August, CNDR is looking forward to two new additions to its cadre of top-notch instructors.  Russell Brunson will be teaching Negotiation and Settlement, and Sheila Purcell will be teaching Dispute Systems Design.

Russell is a manager with the Peninsula Conflict Resolution Center (PCRC), responsible for implementing mediation, negotiation and conflict resolution-themed professional development programs in the K-12 schools, universities, colleges, municipalities and community organizations throughout San Mateo County.  Russell also provides mediation and facilitation services for intact workgroups of municipalities and K-12 schools to effectively manage disputes in the workplace.

Prior to his work with PCRC, Russell was the Development Director and Training Specialist for the National Center for Conflict Resolution Education, which implemented conflict resolution programs in schools, juvenile justice facilities and youth-serving organizations throughout the United States.

Sheila Purcell, a Hastings graduate, directs the Multi-Option ADR Project, “MAP”, a partnership of the San Mateo Courts, bar and community with distinct programs and staff in civil, small claims, family, probate, complex litigation and juvenile courts.  Her program is a 2009 recipient of an Administrative Office of the Courts Award for Innovation. 

Sheila has served on numerous ADR committees.  She served as the ABA ADR Courts Committee Co-Chair and received the ABA Dispute Resolution Committee of the Year award for work on the first-ever national Court ADR conference.  She helped found the California Dispute Resolution Council, is a frequent conference presenter and assisted in drafting several ADR bills and Court Rules.  She initiated and co-chaired the ABA Court ADR Technical Assistance Committee and served on the California Administrative Office of the Courts Advisory Committee on Compliant Procedures for Court ADR.  She served as the State Bar of California’s ADR Program Developer.

In addition to providing technical assistance on program design and development throughout California and the United States, Sheila has hosted several international delegations, and has assisted and presented on implementing ADR, Case Management and other civil law reforms in Eastern Europe, Italy and India.  Sheila received a California Dispute Resolution Council Founder’s Award in 2004 and special recognition in 2008 from Chief Justice Ron George for her many contributions to court mediation programs.

Student Spotlight:  Tim Crawley Writes from Israel

Timothy Crawley, one of our outstanding 1Ls on the team last year, won 3^rd place, along with his partner, Christoffer Lee, (also a 1L) at the Merhige National Environmental Law Negotiation Competition.  He writes about his exciting summer in the Middle East:

“This summer, I am working for Adalah, a human rights law firm located in Haifa, Israel.  I have been assisting the supervising attorneys who represent the Palestinian and Arab minority living within Israel and the residents of the Palestinian Occupied Territories.  The cases cover but are not limited to prisoners’ rights abuses, family unification, property rights violations including housing demolitions and land seizures, extrajudicial killings, and refugee issues. 

Specifically, I have been researching a case where secret evidence is being used to deny a political prisoner basic rights under the guise of national security.  I am also working on a property rights case involving Gazan residents who have seen their social security payments from Israel frozen as a result of the Israel offensive carried out in December and January of this past year.  And finally, I am assisting with the drafting of an article on bias in the United Nations’ report on torture in Israel.  Recently, Adalah sponsored a trip for the interns into the Negev to view the Bedou villages that are subject to demolition orders.  These villagers have been living in these pockets since they were displaced there by the military regime in Israel that lasted until 1956.  Once again these people are facing displacement 50 years later to make room for the expanding Israeli townships.  Adalah is representing these villages in an effort to get a court order to halt the demolition orders.

I am hoping to use this summer as an opportunity to gain a deeper understanding and a broader perspective of the Israeli-Palestinian conflict.  With my previous experiences living in the West Bank and working in a refugee camp during the Second Lebanon War of 2006, and with the encouragement and guidance of UC Hastings Professor George Bisharat, I decided that a summer legal opportunity within Israel would be a worthwhile experience as a person interested in diplomacy and armed conflict negotiation and resolution.  I have since found that a critical component of the conflict are the Palestinian and Arab citizens and residents living within the Jewish state, where they face the real challenges of systematic discrimination.  The allocation of public resources to Arab communities is often accompanied by legal pressure put on governing bodies from Adalah and other non-profit law firms.

My summer began with a brief Middle East tour.  My fiancé and I flew into Beirut, visited friends that I studied with for a semester as an undergraduate at the American University.  We traveled to the biblical cities of Tyre and Tripoli, visited the ancient Roman site of Baalbek, and stayed in Bcharre, famous for the cedars of Lebanon.  After our travels through Lebanon, we entered Syria, and after an eight-hour stint at the border, finally gained entry and headed north to Hama, Apamea, and Aleppo.  The souqs of Damascus were next on the itinerary and we ate warak diwali (stuffed grape leaves), tabouleh, shish towouk, and other delicious foods.  Next, we picked up and went to Jordan—Amman, the capital city and Wadi Rum where Lawrence of Arabia initiated his attack upon Aqabah (and also where the desert scenes of the movie were filmed).”

Special Master: Martin Quinn

Adjunct Professor Martin Quinn, who teaches mediation at Hastings, has plenty to crow about these days.  Martin was elected President of the Academy of Court-Appointed Masters (ACAM) at the Academy’s annual meeting in Phoenix, Arizona this year.  ACAM is an independent organization of experienced masters who serve in both federal and state courts.  “Our purposes are to educate the bench and bar about efficiencies that the use of masters can bring to complex cases, publicize ‘best practices’ and generally to encourage the use of masters”, Martin said.  Masters substantially reduce litigation expenses and assist jurists in fulfilling their obligations, saving judges and court personnel substantial time. To become a member of ACAM, one must have received a court appointment as a master, referee, monitor or some other kind of court adjunct, and then receive approval by the Academy.

Martin is looking forward to a conference on e-discovery principles for masters and mediators that ACAM is co-sponsoring with the Sedona Conference Institute in early 2010.  Recognized as a specialist in e-discovery issues, Martin recently served as a discovery special master in a multi-district litigation in Los Angeles of 100 patent cases involving interactive telephone technology.

If that weren’t enough, Martin has been invited to perform in a mediation role play in Milan, Italy this October.  Martin will play the part of the mediator before an audience of lawyers and judges in the ceremonial courtroom of the Court of Appeal.  This demonstration is being put on by the JAMS International ADR Center, the alliance between JAMS and the ADR Center of Rome, as part of the efforts of the European Commission to foster the growth of mediation in the EU. 

The case is entitled Antoine, the Mule.  It involves a dispute between an Italian film company and an animal trainer in which the film company accuses the trainer of breaching his contract by having furnished a mule that couldn't do the tricks needed for the film and the trainer accuses the director of defamation for some intemperate remarks about the trainer's honesty and competence.  The film company seeks 100,000 euros for damages for breach of contract; the trainer seeks 1 million euros for the defamation.  The role play will take 45 minutes, and concludes with a deal for the trainer to provide a giraffe for a Christmas film the director is making.  And, it’s all in Italian.  Fortunately for Martin, there is a script he can follow.

Mediating Upcoming Legislation: Jeff Goldfien

Originally published in The Recorder, June 16, 2009
By Dan Levine

In Sacramento, a bill stands a much better chance of passing if its supporters outside the state Capitol have ironed out their differences before they even look for a legislator to sponsor it.  For a proposal to reduce copper content in brake pads, the task of getting everyone to sign off on final bill language fell to mediator Jeffrey Goldfien.

A former zoning and land use lawyer, Goldfien now focuses on mediation and has developed a specialty in matters that touch on public policy. In the case of the copper, studies showed elevated levels of the metal in San Francisco Bay, which was traced back to brake pads.  A partnership of environmental activists, storm water regulators, brake pad manufacturers and others tried to figure out how to address the problem. Once legislation became the preferred vehicle for change, Goldfien had to help the players agree on the size of reductions they would seek, and how long to give industry to accomplish it.

"He was very patient. I was just amazed," said Richard Looker, an engineer at the Regional Water Quality Control Board. "I commented to him several times, 'Oh my God, I could not do this job.'"  Senate Bill 346 is now in the pipeline, with a coalition behind it that includes the brake pad manufacturers (but not car companies).

Goldfien's interest in environmental issues and land use seems appropriate for a third-generation Marin County native.  “I grew up here in Mill Valley when it was a very different place than it is now," he said.  Out of college, Goldfien worked for Sen. Alan Cranston's doomed presidential bid in 1984, and then attended the University of San Francisco School of Law. He plunged into a land use practice, eventually coming to Meyers Nave Riback Silver & Wilson in 2000 and working there as a city attorney for smaller municipalities.

That year, Congress passed the Religious Land Use and Institutionalized Persons Act, which gave religious groups more leverage when they sought to construct or expand places of worship. Goldfien quickly became immersed in the subject, he said, because it combined his land use background with his interest in constitutional issues.  "In Marin County , the most common conflict is property rights and land use as it relates to development," he said. The situation gets even more complicated when a religious group pressing its own free-expression rights comes into the mix.  "It creates an entirely different dynamic in those situations, one that tends to push [the parties] farther apart," Goldfien said.

Trying to resolve those kinds of disputes as an advocate piqued Goldfien's interest in mediation. So he went back to school and received an LL.M. in dispute resolution from the University of Missouri School of Law in 2005. In addition to his full-time mediation practice, Goldfien teaches a regular course at Hastings College of the Law, and just wrapped up two at UC-Berkeley School of Law.

Beyond strict public policy disputes, Goldfien has gravitated toward civil rights claims like one against a nursing home over AIDS-related discrimination. The Law Foundation of Silicon Valley tested a variety of homes and found that several of them claimed to have no space when queried about an HIV-positive patient, said Alison Brunner, the foundation's program directing attorney.  But when the group inquired separately about healthy patients, the same homes reported vacancies, Brunner said. Many of them worked to correct the problem, she said, but one home litigated.  The case was extremely bitter and personal, she added, and Goldfien made a "huge" difference in getting it settled because he was familiar with civil rights issues.  "We needed someone who could 'get it' enough so they could convince contentious opposing counsel there is some value in the claim," Brunner said.

A video interview with Jeff is available at http://vimeo.com/5176159