Monday, April 6, 2009

Our Friends at the Bank


Uganda in the mid-1990s is the setting for Thursday's documentary, Our Friends at the Bank, which shows some aspects of the tripartite negotiations within and between the government of Uganda, the World Bank, and the International Monetary Fund.

I had several teaching goals in mind when I first decided to show Our Friends at the Bank, but watching the film again yesterday, while I was also thinking about the interviewing exercises you have been working on, one more course-related question emerged: Who is the client?

The adjunct faculty and I have been discussing this issue, and I plan on devoting some class time to it when we review the Fourth of July footage together. In addition to the 10 questions that I have prepared for you (see the focus-and-feedback sheet posted on TWEN) here is another set of questions: Which relationships in the film are analogous to the attorney-client relationship, and within those relationships what are the factors that make them different from the attorney-client relationship? Please mull this over while you watch.

Responsibility to and for clients is something else for us to think about. In the 2006 film The Last King of Scotland, starring Forest Whitaker as the Ugandan dictator Idi Amin, I noticed a motif that came back to me when I first watched Our Friends at the Bank.* Several times during The Last King of Scotland the camera focuses on a mosquito. I can't be certain what the filmmaker intended the mosquito scenes to convey, but what I took from the images were messages of blood-extraction and disease.

Those messages are consistent with the role of the anti-hero, the Scottish physician Nicholas Garrigan who, even while his patient (Idi Amin) despoils the whole country, enjoys the kind of celebrity lifestyle that an uncharitable observer would describe as parasitical.

The mosquito motif does not lead me to pose any further concrete questions of my own for you at this point. I am just asking you to ponder it and, if it triggers questions in your mind around the subjects of interviewing, counseling, ad negotiating, please share them with the rest of us.

* Just to help orient you temporally, Idi Amin fell from power in 1979, approximately 15 years before the events that Our Friends at the Bank covers.

Wednesday, April 1, 2009

Fourth of July Exercise

There were some great questions in class yesterday that drew my attention to gaps in the exercise and areas that I need to explain more thoroughly. So I'm glad we have a little time to clarify the objectives, the work product, and the roles.

If, after reading the following, you still have questions please feel free to e-mail me. I realise that time is of the essence and I'd like to reply promptly. Right now I'm having trouble accessing my UConn e-mail from home, so send your questions to peter@petervickery.com. That way I can respond even while I'm at home.

Objectives and Work Product
When I designed the syllabus I envisioned two items of gradable work product coming out of this exercise, namely a settlement agreement and a reflective memorandum. Generating a settlement agreement, however, would demand considerable negotiation. Practice is immensely beneficial and you would reap real educational benefit from another Balance of Power-like experience. But crafting a settlement agreement would probably take more time than I can fairly ask of you and, given the fact that you do have other classes and a life outside of law school, would be unduly burdensome. So no settlement agreement.

I still want the reflective memorandum, but instead of a settlement agreement I would like you to write an office memorandum, the kind of detailed memo you would put in the file to refresh your memory the next time you pick it up, or to explain the case to a colleague who is picking up the file for the first time. So there are two possible audiences for this office/file memo: yourself and your colleagues.

Now, even though I do not require a negotiated settlement it would be helpful for you to converse with one another informally. Yesterday evening after class one of the adjunct faculty, Attorney Mike Harrington, mentioned to me that the second round of meetings (when you counsel your respective clients) will be more productive and realistic if you have talked to one another beforehand. For example, those of you representing the Town Manager could check in with counsel for the parade organizer and the chair of the protest committee. Mike is absolutely right, so please do sound out your counterparts in other teams so get a sense of what their clients want.

Getting back to the gradable work product, what should the office/file memo look like? As in real life, this document should reflect the substance of your conversations with your client. It should be no more than five pages long, double-spaced, in 12-point Times New Roman font. At the top of the document you should write "memorandum." In the "to" line write "file," and in the "from" line write your name. The subject line should state the name of your client.

Roles
In our exercise, Attorney Mike Harrington is playing the role of the Town Manager, Michael Bartolo. Attorney Karla Turekian's character is Alex Sachs, the parade organizer. Attorney Thomas Jones will star as Joseph Kelly, the chair of the anti-war group Amherst Committee for Peace and Justice (ACPAJ, pronounced ack-paj).

Links
In addition to the documents on TWEN, you might want to do some additional background reading to get a sense of the real-life parade dispute. So here are the sites that flashed before your eyes briefly in class:

For the minutes of the Select Board meeting click here.

To browse the Amherst Bulletin's news, columns, and letters to the editor you can use the paper's search engine.

For the relevant post on the Only in the Republic of Amherst blog click here.

Monday, March 30, 2009

NEEM


This post is about the Potworowski and Kopelman article, Strategic Display and Response to Emotions: Developing Evidence-based Negotiation Expertise in Emotion Management (NEEM). I try to tie the article to the Cochran reading for this week and to identify some lessons that will be helpful in the Fourth of July exercise.

Awareness of emotions is useful for negotiators because, the authors say, "emotions in negotiations convey information... and can strategically influence behavior" (337). The truth of this claim seemed reasonably clear to me when I was planning our course and I adopted, in part, one of the authors' suggestions about teaching NEEM, namely the use of video clips and questions about the emotional state of the negotiators. Thinking back to The Deal and the subsequent quiz, you may recall my focus on emotions and how the actors conveyed them.

For a while I considered the authors' suggestion about having the class role-play the next step in the negotiation process (343) but, you will be relieved to know, decided against it. Asking half the class to play the role of Tony Blair and the other half to channel Gordon Brown seemed just too weird. So in place of The Deal, Part II, we have the Fourth of July exercise.

But wait, you are thinking, isn't the Fourth of July an interviewing-and-counseling exercise as opposed to an exercise in negotiating? Well, yes. But I believe that there is significant overlap in the skills that will make you effective collaborative counselors and those that will help make you strong dispute resolution advocates. Both involve acting, for example, and the strategic behavioral display of emotion.

What do I mean by that? Let's look at Chapter 8 of Cochran, in particular section 8-5 where Cochran and his co-authors discuss the process of counseling the client toward a decision. In 8-5 (a) (3) they write that part of the job is to "provide a comfortable physical and emotional environment" and that this involves "[p]rojecting empathy, acceptance and genuineness." Projecting emotions demands a good idea of what they look like -- literally -- and how others respond to them.

In the Fourth of July exercise, the adjunct instructors playing the role of your clients will display emotions. That is the essence of playing a role. It is no affront to their theatrical skills to say that they will be engaged in what Potworowski and Kopelman refer to as "surface acting," by which I mean that they will only be pretending to be sullen/ecstatic/apoplectic and so on. They will be watching you, of course, and I hope that you will be watching them too, observing and learning from them.

During the exercise, please think about how the adjunct faculty use their faces, voices, and body language to convey emotions, and about how those emotions (albeit feigned) adapt in response to your words and actions. The idea at the core of the NEEM article is the notion that recognizing emotions in others, modulating our responses, and fashioning our own displays of emotion are skills that we can learn. In reading your memoranda about the exercise I will be looking for reflective comments on this point, among other things.

Finally, a word about the acronym "NEEM." It reminds me of a Monty Python sketch. For British-born men of a certain age, everything reminds us of a Monty Python sketch. Last semester I incorporated several Monty Python scenes into my course (how else can you teach Legal Writing?) and met with mixed responses. Some students loved it; others did not. Accordingly, I do not force you to watch anything overtly Pythonesque in class and, instead, merely make available to you -- for viewing at your leisure -- such Monty Python sketches as I deem pedagogically necessary and proper.

For the Knights Who Say Nee scene from that cinematic extraveganza Monty Python and the Holy Grail click here.

Tuesday, March 17, 2009

Reciprocity


We missed it when it was in the local cinema, so my wife and I rented Brideshead Revisited last week. The critics hadn't been kind, but we enjoyed the film. It is the sort of thing we like and, as Abraham Lincoln put it, "people who like this sort of thing will find this thing the sort of thing they like."

You may be wondering what Brideshead Revisited has to do with our LP course, so I shall tell you. The law review article I was just reading brought to mind a scene from the film.* The scene illustrates neatly a point that came up in our work on negotiating and is coming up again in our work on interviewing. As the title of this post suggests, the point is reciprocity.

The scene involves the central character, Charles Ryder, his friend, Sebastian, Julia (Sebastian's sister) and Lord Marchmain, who is Sebastian and Julia's father. The image above shows (L-R) Sebastian, Lord Marchmain, and Julia. They are chatting amicably, albeit in Evelyn Waugh's stilted aristocratic manner. Lord Marchmain asks about Charles's mother, and Charles replies that she is dead.

How does Lord Marchmain respond to this disclosure? He looks at the ceiling and says nothing.

It is a painful scene. There is no customary expression of condolence or sympathy; simply silence and an aversion of the eyes. Nothing in Lord Marchmain's demeanor reflects Charles's emotions or the significance of the information he has just shared.

What is lacking is reciprocity. Charles has shared something important, and Lord Marchmain has not. In fact, Lord Marchmain has not offered so much as a kind word. In the language of the kindergarten, it's just not fair.

What made me think of the scene was an exercise that Laurie Shanks describes in the article I mentioned. During the first class of the semester, Professor Shanks asks her students to break up into pairs, and each tell the other about an experience that changed her or his life. Later Professor Shanks asks one student from a pair to tell the rest of the class the story of the other student's life-changing experience.

The exercise has several distinct purposes, one of which is to bring the students to the realization that "what we do as lawyers, inside a courtroom and out, is function as the 'teller' of our client's story." Of course, telling someone your story has the potential to threaten your sense of "face," as we have been reading about in Linda Smith's article, Client-Lawyer Talk (posted on TWEN).

Allowing clients to maintain face is essential to building trust and learning their stories, and Professor Shanks drives this important point home with a question. She asks her students how they would have felt if she had concluded the exercise "with only one partner in the pair having told his or her story." The students respond with indignation, telling her, among other things, "that wouldn't be fair." Then she asks, "How do you think our clients feel when they share with us and we do not reciprocate?"

What follows is a lightbulb moment, apparently, when the students both learn something valuable and realize that they are learning it.

If, as Linda Smith claims, the client-lawyer interview is a conversation, a cooperative endeavor that both parties control, and if, as Laurie Shanks claims, "gaining trust is critical to effective client representation," there has to be some reciprocity when we converse with our clients.

How much reciprocity is appropriate? On the one hand, we know that we cannot built trust if we behave like Lord Marchmain, staring vacantly into space when the client takes a risk and discloses something that is difficult to talk about. On the other hand, there is a danger of straying from empathy into amateur psychology, and of crashing through the professional boundaries that allow attorneys to lead full, meaningful lives away from the office. So how do we strike the right balance?

This subject, reciprocity, is one of the difficult questions we need to wrangle with in class as we move forward into interviewing and counseling. In the meantime, I welcome your comments.


* Laurie Shanks, Whose Story Is It Anyway? Guiding Students to Client-Centered Interviewing Through Storytelling, 14 Clinical L. Rev. 509 (2008).

Friday, March 6, 2009

Libs meet Dems

This is just a short post. Jennifer Williams is sending you details about viewing the Balance of Power recordings via Odin. In the meantime here's some film that I shot of the Libertarians meeting with the Democrats.
video

Tuesday, March 3, 2009

A House Divided

Before you go any further, please read the comments that BJ and Jen posted to the last entry. What follows will make more sense if you do.

In March 1977, Prime Minister James Callaghan invited David Steel to 10 Downing Street to discuss a parliamentary pact. How did that ball start rolling? Who made the first call? Eagle-eyed students will have noted a subtle difference between the excerpt from Steel's biography and the the excerpt from Steel's own book, A House Divided.

In the biography, we read that Callaghan's colleague, William Rodgers, called Steel for an exploratory conversation, a "fishing expedition to find out what terms Steel would demand." From the biography we also learn that Steel had already had at least one conversation with another leading Labour member, namely Cledwyn Hughes, days before the call from William Rodgers. "A friendly talk," is how the biography describes the conversation between Steel and Cledwyn Hughes.

How did it come about that Cledwyn Hughes, the chairman of the Parliamentary Labour Party (the legislative caucus) had reason to have a friendly talk with David Steel, leader of the Liberal Party, in the first place? Here the biography is silent. It tells us that the conversation happened, but not who initiated it.

By turning to A House Divided we can start to fill in the blanks. One of Steel's Liberal colleagues, Cyril Smith (pictured), used to be a member of the Labour Party. Steel tells us that, in early March, Cyril Smith "proposed [to Steel] that we should explore the possibility of securing some agreement with the government in return for our support." Steel says that he gave the go-ahead to Cyril Smith's idea of writing to Prime Minister Callaghan, but let's examine the words he uses to describe that decision:
"I was not over-keen on such a brazen approach but agreed that Cyril should do this off his own bat and entirely unofficially."
My first question for you has to do with that early stage of the story of the negotiations, prior to the inter-party discussions getting under way. Assuming that Steel's memory is reliable and that those were, in fact, the conditions that he gave Cyril Smith, what purpose could the deniability serve?

Now let's think about what happened next. Cyril Smith wrote to Callaghan. Callaghan responded. Smith was "very cross" about the nature of Callaghan's response and, according to Steel, leaked news of their correspondence to a newspaper. Not just any newspaper, by the way, but the Daily Mirror, the paper of choice for Labour's core working class supporters. We can imagine how Mirror readers might have felt when they found out that the leader of their party, in desperate need of parliamentary support, had just alienated the Liberals.

At this point, it is easy to imagine the story ending very differently, with no inter-party negotiations and no pact. So what was it that triggered Cyril Smith's anger and nearly derailed the train before it even left the station?

In reply to Smith's note, Callaghan had suggested that Smith might want to talk to Cledwyn Hughes. Smith took this as a rebuff. From Steel's account we can infer that Cyril Smith felt that he had lost face.

I want us to pause for a moment and think about Beyond Reason. Using the lens of the five core concerns to look at the interaction between Cyril Smith and Prime Minister James Callaghan, what do we see? That is my second question.

Picking up the story again, Steel writes that when Callaghan read the newspaper version of his exchange of letters with Cyril Smith he (Callaghan) talked with his colleague Cledwyn Hughes who then called Steel. Callaghan's message to Steel, through Cledwyn Hughes, was that Callaghan had not intended to snub the Liberals. Steel writes that "Cledwyn telephoned me to say that no such snub was intended and I seized the opportunity to invite him round to my room for a chat."

This brings us to my final questions. Was Cyril Smith really angry or just faking? And did Cyril Smith leak alone, or did he have an accomplice?

From the outset, I have asked you to think skeptically about what you read. One of the phrases I tend to use in this context is "kick the tires," and I hope I have made clear that there is a difference between kicking the tires and taking a sledgehammer to the windshield. By this I mean that you should not read with utter credulity, but nor should you dismiss everything out of hand. Differentiate between claims and evidence; that's what I'm asking.

Approaching Steel's account of the pre-negotiation gamesmanship with skepticism, we can learn something, I believe. To engage in this line of skeptical inquiry, I recommend assuming a role while you think, the role of Prime Minister James Callaghan.

Put yourself in Callaghan's shoes in March 1977. Your party is about to fall from office and face a general election unless it can negotiate a deal with a smaller party, and the most likely partner is the Liberal Party. Cyril Smith, one of the handful of Liberals in the House of Commons, approaches you. Maybe you feel relieved. Smith's overture must mean that the Liberals are as worried about facing the electorate as you are. That, in turn, means they won't be demanding much in the way of concessions.

But then you open the Daily Mirror and get the impression that the Liberals are about to walk off in a huff. You were already feeling the heat and now somebody has gone and dialed it up.

By leaking to the press -- to the Daily Mirror, in particular -- Cyril Smith has upped the ante. After reading the Mirror, Callaghan not only reaches out to the Liberals but also has to start with an apology. Callaghan may still suspect that the Liberals will support his government even without Labour giving them anything of substance in return, but he can't be sure. Small in numbers they may be, but the Liberals have just scored two points.

Perhaps Cyril Smith was genuinely ticked off and vented to the press out of personal frustration, without clearing his actions with his party leader. But from what you have read so far, about negotiating in general and the Lib-Lab Pact in particular, does this exercise in negotiation-via-press-release have somebody else's fingerprints all over it?

Tuesday, February 24, 2009

Coalition Building

The Lawrence Susskind article that I posted on TWEN recently contains some valuable advice for anybody about to enter into multiparty negotiations. From my standpoint, the Susskind article lends weight to my point that the Balance of Power exercise is helpful preparation for the real world of legal practice (not that I crave validation, of course).

To leverage the article's value I would like you to think about some of the connections between it, The Deal, the article on the Lib-Lab Pact that I'll hand out in class, and the Balance of Power exercise. I end this post, as usual, with some questions, but before we get to the questions let's tease out some initial lessons.

Our Balance of Power exercise does not give you as much face-to-face negotiating time as you would have in the real world, but even within our time constraints you may be able to adopt some of the proposals Susskind spells out in the section headed "managing group interactions." Breaking into smaller working groups might be feasible, for example.

Susskind states that "[c]larity about the group's decision rules is crucial," to which I would add that clarity about the decisions themselves is equally crucial. When I decided to introduce you to The Deal (which is a teacher's way of saying "when I decided to force you to sit through it") I had several goals in mind. One goal was to prompt you to think about whether Brown and Blair did, in fact, have a deal. So in the focus-and-feedback form I asked you two direct questions about this:

  • When Blair and Brown meet at the Granita Restaurant, they discuss the leadership of the Labor Party. Brown agrees to stand aside. What else, if anything, do Blair and Brown decide?
  • Think back to your Contracts class last semester. For a contract, you need offer, acceptance, and consideration. Are these present in the Granita conversation? Are they present when Blair and Brown are talking about the “big job” back in 1987-88?
Some of you wrote that in the Granita conversation Blair agreed to step down after one-and-a-half terms as Prime Minister and support Brown as his successor, and that the Granita conversation had all the elements of a contract. I disagree. I don't think Blair committed himself in a way that would satisfy the "acceptance" element of a contract. But -- having watched the film a half-dozen times -- I can see why some viewers would. And the intentional ambiguity that the writer, directors, and actors manage to construct is one of the reasons I consider the film such a valuable teaching tool.

By showing The Deal and asking questions about the putative existence of an agreement, I want you to focus on the uncertainty, the lack of clarity, and the possibility that Blair wanted to create "plausible deniability." I also want you to ask yourself what a politician -- or an attorney representing a client -- could stand to gain from an almost-but-not-quite agreement or a blurry agreement. This, in turn, should encourage you to be on the lookout for such ploys when you are negotiating with your classmates and, in future, your fellow attorneys.

Although I only put the finishing touches to the syllabus in December, I have been thinking about this aspect of our course, i.e. intentional blurriness in negotiations, for quite some time; about 30 years, in fact. The image that accompanies this post shows two British politicians, David Steel (left) and James Callaghan (right). Why is it there? Because the article I am distributing in class describes the negotiations that led to the 1977-78 agreement between Steel's Liberal Party and Callaghan's Labour Party, an agreement called the Lib-Lab Pact.

To orient you chronologically, let me put the Lib-Lab Pact in the context of The Deal. You will remember that the archive news footage near the beginning of The Deal starts with the Falklands War of 1982 and the general election the following year. We see Margaret Thatcher in a tank and hear her calling the Labour manifesto (i.e. platform) "the most extreme... ever put before the British electorate" By that point (1983) Thatcher's Conservative Party had been in power for four years, having won the 1979 general election. The Lib-Lab Pact came shortly before the 1979 election. Both parties to the pact, Liberal and Labour, saw their popularity decline considerably after the pact and lost votes to the Conservatives in the subsequent election.

Before you read the article, it is worth knowing something about the impact the pact continues to have, and how perceptions of the pact influence inter-party negotiations to this day. In an article by Martin Laffin in the January-March 2007 edition of Political Quarterly that I was just reading, about the coalition government in Scotland, I highlighted the following passage:
"The Liberal Democrat negotiators in 1999 were acutely aware of how, in the Lib-Lab Pact of 1977-78, the then Liberal Party kept Labour in office yet gained very little in policy terms. Consequently, they insisted that Labour sign up to lengthy, public partnership agreements that provided a policy [program] with some quite specific commitments for the two [parties]."
So Liberal negotiators nowadays try to avoid what they perceive as the mistakes of their predecessors in the 1970s. My first question for you relates to the central alleged mistake. Why would Steel's Liberal Party have entered an agreement that offered "very little in policy terms." You can find one answer in the handout, on page 149 to be precise. My subsidiary question for you, once you have read the article, is whether the pact (devoid as it was of weighty policy commitments) makes sense in hindsight.

Finally, here are the key negotiating issues I want you to look out for in the article. I think you will find the answers helpful in the Balance of Power exercise.
  • In terms of the three models of counseling that Cochran writes about, where would David Steel's approach to his colleagues and members fit?
  • How, exactly, did Steel communicate his initial position to the other side? When Steel and Callaghan met, what was Callaghan's response to the demand?
  • How did Labour open negotiations with Steel?
  • According to the article, why was Callaghan's invitation to meet so important to Steel? I have another handout, which I'll post on TWEN soon, that casts this issue in a different light.
  • What was the "first wrangle" that Steel had with the people in Callaghan's office?
  • In their initial meeting, where did Callaghan ask Steel to sit?
  • How did Steel seek to improve his party's BATNA?
  • What were the time-related costs to Labour and Liberals respectively?
  • Why was Steel's fifth point important (see pages 148-49)?
I look forward to your comments. You should feel free to address the foregoing question, raise a different question or point, or base your post on a combination of my question(s) and yours.

Friday, February 20, 2009

Building Momentum and Using Deadlines

For Day 6, we are looking at two articles, Building Momentum in Negotiations: Time-Related Costs and Action Forcing Events, by Michael Watkins, and Using Final Deadlines Strategically in Negotiation, by Francesca Gino and Don Moore. We can learn some useful lessons by studying these two articles together, and I believe that you will be able to give the lessons a test-drive during the Balance of Power exercise.

Before we delve into the lessons I have to get something off my chest, and before we do that I should give you some brief background information to help put the articles -- and my gripe, if you want to call it that -- in context. From 1969 until the mid-1990s, Northern Ireland was subject to a dismal, bloody period of inter-communal violence known as "the Troubles." As you will know from reading the articles (if you did not know it already) the Troubles came to an end, more or less, with the Good Friday Agreement of 1998, which takes its name from one of the most significant holidays in the Christian calendar.

Above is an image from May 18, 1998, showing the leaders of the two main political parties in Northern Ireland at the time, John Hume (Social Democratic and Labour Party) and David Trimble (Ulster Unionist), on-stage with Bono, campaigning for a Yes vote in the referendum on the agreement. I think I recall seeing that picture, or one just like it, in the newspapers the following day. I certainly recall the media coverage that preceded the agreement, and the buzz surrounding the Easter deadline, a deadline that had appeared in late March 1998.

Refereeing the negotiations that led to the Good Friday Agreement was former U.S. senator George Mitchell. In the Building Momentum article, Michael Watkins states that Mitchell established the Easter deadline "[w]ith the backing of the governments of the United Kingdom and Ireland." I think he is leaving out an important fact, one that has to do with the evolution and ownership of the deadline. In the interests of full disclosure, I should tell you that I only learned this pertinent fact a few months ago.

Back in the Spring of 1998, I was following the peace process quite closely, even though I was 3,000 miles away and busy with my last semester at law school. What I remember about the Easter deadline is the impression that Mitchell had imposed it on the parties unilaterally, and it seems I was mistaken. As for the provenance of my erroneous impression, I'm a bit murky after all these years. My main source of news was (and still is) the British Broadcasting Corporation, so I'll maintain a fine British political tradition by blaming the BBC.

In 2001, the Harvard Business School (HBS) published an article called "To hell with the future let's get on with the past:" George Mitchell in Northern Ireland. I found the article, and read it, just after Thanksgiving last year while I was putting our course together. One passage in particular brought me up short because it contradicted what I believed about the origin of the deadline.

According to HBS article, after talking to the two governments about an Easter deadline Mitchell then "met with representatives of each of the parties several times, refining his proposal at each meeting." The deadline "emerged out of a highly consultative process," says the HBS article. It was not, therefore, something Mitchell imposed unilaterally; it was something that the parties had agreed to before Mitchell announced it publicly.

Watkins says that Mitchell consulted the two governments. The HBS article says no, Mitchell also secured the buy-in of the political parties that were participating in the negotiations. This is an important difference, in my opinion.

If, indeed, the representatives of the various political parties all signed up to the Easter deadline in advance of its announcement, there are some very important lessons for trainee negotiators to draw out. But they are not the lessons that Watkins writes about in Building Momentum.

For the purposes of our learning, does this matter? Is the point that Watkins illustrates with the Easter deadline still valid, or does the multi-party ownership of the deadline undermine it? I look forward to your comments.

Wednesday, February 18, 2009

That one may smile and smile and be a villain

The subtitle of the Hurder article, To Be or Not To Be a Problem-Solving Negotiator, reminded me that references to Shakespeare's Hamlet appear with some frequency in law school, sometimes overtly and sometimes more subtly. While I was reading your focus-and-feedback questionnaires regarding The Deal, the same thought returned.

Several of you mentioned that the Gordon Brown character smiled only rarely, which brought to mind Hamlet, for reasons I describe below. Because so much of our course focuses on roles, both authentic and assumed, I think this constitutes a teachable (and blogable) moment. The image above is of British actor Anthony Lester as Hamlet, by the way.

For the next few minutes while you read this post, I would like you to ponder the idea that The Deal is, in some ways, like Hamlet. When you have finished reading, please explore the idea some more and see where it leads you. I hope the idea prompts some questions, and that you will share those questions with the rest of us, either here on the blog or in class.

So what does The Deal have in common with Hamlet, and how does this mental exercise help us become effective collaborative counselors and powerful dispute-resolution advocates? Let me address the first question first, and the second question later.

Maybe you studied Hamlet at school or in college. If so, stretch your mind back in time to that distant pre-law-school era. If not, look for a plot summary online, read the play, rent the DVD (I'd opt for Kenneth Branagh's 1996 version or The Tragedy of Hamlet from 2002 with Adrian Lester) or, best of all, go see it live in a theater. Unfortunately, I can't offer you credit for any of these activities. In the meantime, here's a thumbnail sketch of Hamlet, with apologies to Shakespeare and my old English Lit teachers.

Hamlet is a prince whose father, the old King Hamlet of Denmark, has died. Denmark is facing the threat of invasion from Norway. Hamlet's mother, Gertrude, has married her late husband's brother, Claudius, who is the new king. Claudius' chief adviser is Polonius. Hamlet courts Ophelia, Polonius' daughter.

Hamlet meets the ghost of his father, who tells Hamlet that he (Hamlet's father) was murdered by Claudius and that Hamlet must avenge the murder by killing Claudius. Hamlet hesitates to kill Claudius, feigns madness, rejects Ophelia, and kills Polonius, thereby causing Ophelia to lose her life, possibly by her own hand. Eventually Hamlet does kill Claudius, but not before Gertrude (Hamlet's mother), Laertes (Polonius' son and Ophelia's brother) plus Rosencrantz and Gildenstern (Hamlet's college friends) have all met untimely deaths. Norway invades Denmark and the dying Hamlet (yes, he dies too) names the Norwegian leader as his heir.

Got it? OK, back to The Deal.

If we think of The Deal as, on one level, a version of Hamlet, then John Smith becomes the father figure (the old king) with Gordon Brown his heir (Hamlet), and Mandelson serving as the trusted adviser (Polonius). That leaves one central male role for Blair: Claudius. You will recall that Claudius is the bad guy.

In Act One, Scene 5, Hamlet says "O villain, villain, smiling damned villain... one may smile, smile and be a villain." As I noted above, many of you observed that in the film Gordon Brown hardly ever smiles. Blair, in contrast, smiles nearly all the time. Is that smile a signal that Blair is the villain of the piece?

After the death of John Smith, Brown, like Hamlet, hesitates and agonizes. While Brown is mourning, Blair, like Claudius, is planning the succession with the aid of the scheming Polonius figure, Mandelson. When Blair calls Mandelson at Brown's apartment, Mandelson ducks into a back room to take the call, out of sight from Brown, like Polonius hiding behind the arras.

Duty, honor, and the agony of procrastination are all familiar dramatic devices. If you want to see them all rolled into one, rent the 2008 move In Bruges, starring Colin Farrell, Brendan Gleeson, and Ralph Fiennes, although I should warn you that it contains the occasional profanity and a wee drop of blood here and there. I think we see those themes in The Deal as well, but without the bloodshed.

Perhaps I'm way off the mark and the similarities between The Deal and Hamlet exist solely in my imagination. Or, if I'm right, maybe it is the subtle evocation of Hamlet that helps make The Deal so watchable. Even if I am right I'm not sure that the director and actors consciously intended the viewers to draw parallels with Hamlet, but the play is so embedded in British and U.S. culture that their intentions are almost irrelevant.

As drama, The Deal is a story of two young men who become rivals for an inheritance. This is a familiar motif in faith, fable, and literature. Think of sibling rivals Jacob and Esau; Romulus and Remus; Brutus and Mark Anthony in Shakespeare's Julius Caesar. If we put our heads together we could probably come up with many other examples drawn from the folklore of Africa, Asia, Scandinavia, and, of course, Wales. With this in mind, we can look at the screen characters of Brown and Blair as the latest incarnations of ancient archetypes.

How does this relate to our work as interviewers, counselors, and negotiators? In one important way, I believe. We humans like stories. They help us make sense of the world and our place in it. We need to be aware of our tendency to take the situations we find ourselves in and drop those situations into familiar narrative categories and to cast ourselves in distinct roles. Does the phrase "rights warrior" ring any bells? And what about Gerald the Gladiator?

Paying attention to stories, roles, and archetypes is part of our training, cultivating our mindfulness, which in turns helps us develop the quality that Cochran puts at the heart of collaborative counseling and calls "practical wisdom."

What do you think?

Lawyers & Clients: The Initial Interview

Tomorrow evening (Thursday, February 19) we are going to watch a DVD called Lawyers and Clients: The Initial Interview featuring Professor Robert H. Mnookin of the Harvard Negotiation Research Project. If we have time after our initial discussion, we'll watch it twice.

First, some context. Both at the start of the film and at the end, Professor Mnookin explains how interviewing and counseling fit together with negotiation. He starts by saying that the relationship between attorney and client is itself something that has to be negotiated, and he closes by reminding us that an effective client-attorney relationship is a precondition for productive settlement negotiations. Please keep that in mind, and think about how the three aspects of this course overlap.

Now for your tasks. Before we start watching the film tomorrow, think back to yesterday's class and ask yourself this question: What are the objectives of the initial interview? While we watch the film, look for examples of the attorneys (Eric and Gerald) meeting those objectives and missing them. Notice how the meeting between Eric and the client, Dr. Susan Garfield, becomes an arm-wrestling match. What is at the root of that? What changes could Eric make to his choice of words, his use of silence, his posture and -- most importantly -- his basic assumptions about the purpose of the meeting to prevent the interview becoming a battle of wills?

The second attorney, Gerald, seems to score better than Eric in terms of eye contact, empathy, and active listening, but I think there is something fundamentally wrong about the way he assigns roles. What is it? The picture below will make more sense when we get to that part of the DVD, by the way.

In addition to noticing how Eric and Gerald conduct themselves, and how their clients respond, I would also like you to pay attention to Professor Mnookin. From time to time he says "cut" and steps on stage to give advice. And after each interview he sits down with Eric and Gerald for a debriefing. Watch how he, Mnookin, asks questions, expresses emotions with his face, and uses his hands.

Finally, look out for examples of active listening techniques such as open questions, clarifying or closed questions, requests for clarification, summaries, reframing statements, and acknowledging emotions. Look out for their absence too. Make note of junctures where one or more of those techniques could have moved the interview in a better direction.

Monday, February 16, 2009

Lemon Pie

Who got the best deal in The Deal? And how, if at all, did the characters' approaches reflect what we have been reading about so far?

My quiz question about the pie drew conflicting responses. Some of you said that by offering Brown free rein over economic and social policy, Blair was expanding the pie. One of you said it was Brown, not Blair, who was expanding the pie.

On the other hand, some of you pointed out that Blair walked away with the entire pie. He got everything he wanted and then some: not only the leadership but also Brown's public support. Blair took the pie and sold Brown a lemon.


On the subject of interests versus positions, you had some very thought-provoking answers. What were the real interests of Blair and Brown vis-à-vis their positions? Obviously both men wanted to become leader after John Smith died. Several of you pointed out that both men had the interests of the entire Labour Party at heart, but that Brown seemed to keep those interests closer to his heart than Blair did to his.

On that subject, one of the comments that stood out was this one, mainly because of the way it ties in with the theme of implementation: "Brown was advancing the Party's interests, and at the same time increasing his own chances of becoming the leader of the party in the future." Yes, under Blair the Labour Party won the 1997 election, the 2001 election, and the 2005 election. Then, two years into his third term, Blair stepped aside and Brown took over.

So stepping away from the film and into real life, let's remember that the deal outlined in the film seems to have held together. For all of Blair's alleged prevarications and back-tracking, Brown got what he wanted. He got it late, to be sure, and he had to fight hard for it. Moreover, before becoming PM he managed to hold on to his job as Chancellor for ten years, to make himself indispensable (as indispensable as anybody can be in politics) and to prevent any other potential successors from edging him out.

Brown wanted to be Prime Minister, and now he is. He just happens to be Prime Minister at a time when the UK is facing what one of his Cabinet colleagues calls "the worst recession in 100 years" and when the opposition Conservatives have pushed their opinion-poll lead over Labour to 16 points.

Thursday, February 12, 2009

Getting to Yes and Beyond Reason

I'm going to write more about The Deal before our next class, but I'll wait until the quiz is over. I have already read some of your answers and they provide great food for thought (and for blogging). In the meantime, let's focus on Getting to Yes and Beyond Reason.

I was just re-reading a review of Beyond Reason, and as we are starting to knot and knit together the various pieces of our course I thought I'd share some excerpts with you. The review appeared in the April 2006 edition of Negotiation Journal. The reviewer's name is Erin Ryan and she teaches negotiation at the Marshall-Wythe School of Law.

One of the aspects of the review that I really like is that Professor Ryan's puts the book in its context as a sequel to Getting to Yes. For example:
Where the first book taught us to create value in the face of the emotional roller coaster that is any negotiation, the new book teaches us how to change the roller-coaster ride -- if not into a Sunday drive, then at least into a more predictable commute.
Professor Ryan points out something that I hadn't noticed before, and that is the arrangement of the chapters. Referring to Chapter 8 (On Strong Negative Emotions), she says that its positioning toward the end "shows that it is secondary to the main purpose of the book, which is to teach us how to avoid these situations in the first place, by proactively inculcating positive emotions from the very beginning."

Professor Ryan also highlights one the book's self-confessed shortcomings, namely the fact that it doesn't grapple with situations where "negotiators' abilities to collaborate are hindered by their need to 'perform' for their constituents or communities of interest." By way of reference to the text she cites to page 33 where the authors discuss the second element of appreciation, i.e. finding merit in what the other person thinks, feels, or does.

There are barriers to finding merit, and one of the examples Fisher and Shapiro give has to do with constituents. When you (the negotiator) express appreciation for the other side's point, your constituents could misunderstand you: "They might think that your seeing merit demonstrates that you agree with view with which you, in fact, disagree." In other words, your constituents could misinterpret your behavior. They might doubt your loyalty to them, and think that you are betraying them to the other side. This is a danger you will come to grips with during both the Balance of Power exercise and the Fourth of July exercise.

As we ramp up to those exercises, here's my question for you. As an attorney, how would you prevent that kind of constituent/client misunderstanding arising?

Tuesday, February 10, 2009

The Deal, and Why We're Watching It

Yesterday evening we started to talk about empathy; putting ourselves in other people's shoes and seeing things from different perspectives. Later in the course we're going to study active listening. These twin skills (empathy and active listening) are important in the three activities that form the subject matter of our course, namely interviewing, counseling, and negotiation. Let's keep that in mind as we watch The Deal.

I am not going to over-sell this feature of the course. Films are no substitute for reality, and watching is an essentially passive experience. But so long as we reflect on what we're seeing, they can supplement our readings and role-play exercises. So here are a few suggestions.

Let's keep an eye on Gordon Brown's body language and Tony Blair's facial expressions. The director and the actors (Morrissey and Sheen) are telling us something important about the characters through their gestures, posture, and the way they inhabit space. They are also sending us signals about strength and weakness, candor and duplicity, loyalty and betrayal. But (and here's the challenge) what signals, exactly?

Our course is, in large part, about influencing other people's conduct. With that in mind, let's also pay attention to Peter Mandelson. What persuades him to switch teams? Is it solely his conversation with Blair in the House of Commons, or the conversation in combination with other factors? And, if so, what other factors?

Finally, after you've seen the movie and had some time to mull it over, I'd like to you to let me know what lessons you would use it to illustrate, or what questions you would hope it might prompt in the minds of law students. In other words, I'm asking you to put yourself in my shoes and think about The Deal from the perspective of an LP professor. Please post your answers on the blog.

Monday, February 9, 2009

Cochran, Chapter 3

Because we missed a class due to the weather, I've squeezed two classes into one, which means we'll be watching The Deal this coming Thursday without as much prep as I would have liked. I also trimmed Chapter 3 of Cochran from the list of assigned readings for Thursday's class.

However, Chapter 3 is important so please read it anyway. I think you'll find it helpful not only in our exercises and for Citizenship Day but also when you start practicing law. As Cochran points out, "knowing how to read body language enhances the accuracy of communication between the lawyer and the client and also leads to better decisions." And remember, in addition to your clients other people will be reading your body language; judges and opposing counsel, for example.

As a student at Boston University School of Law I worked in the criminal clinic. My professor, David Rossman, drove the point about body language home by telling us how not to respond when your client is on the witness stand and says something unexpected/bizarre/fatal to the case. David jumped to his feet, held his head in his hands in an impressive imitation of Edvard Munch's The Scream, and shrieked "oh noooo!" This, David assured us, would (among other things) undermine the attorney-client relationship.

On the positive side, there are some steps you can take to build trust with your client. Cochran's advice on responsive statements, paraphrasing, and reflecting content and emotion is invaluable. The two important points I ask you to take from Chapter 3 are (1) it really is easier, both in the short term and the long run, to be genuinely interested in what somebody is saying than it is to feign interest, and (2) you don't have to wait. You can practice Cochran's advice in your daily life starting today.

In fact, you should feel free to practice the active listening skills in class!

Friday, February 6, 2009

Gifford Article


Yesterday (Thursday) evening we didn't get to the Gifford article, The Synthesis of Legal Counseling and Negotiation Models: Preserving Client-Centered Advocacy in the Negotiation Context, so here's what I had hoped we would focus on.

The first point is the one that Gifford makes at the end, i.e. he wants us to treat his article as a starting point for further dialog about improving the generally accepted models of counseling and negotiation. In that spirit, let's try to pose some questions and come up with some questions to move that dialog forward, in our class at least.

The second point is one that we touched on in class: the cyclical nature of counseling and negotiating. Gifford points out that negotiations happen "over extended periods of time.. and are intermixed with meetings between the attorneys and their clients." The key learning here, I believe, is that we need to avoid thinking of interviewing, counseling, and negotiating as three separate activities. In practice, particularly with clients who are watching every penny and don't want to take up your billable time unless absolutely necessary, it is easy to fall into the trap of treating the initial interview as a one-shot deal.

With the linear model -- the one we want to avoid -- at the interview you get your marching orders, which you then execute by bargaining with opposing counsel, and after you've negotiated a deal you go back to the client and ask for a yea or nay. But Gifford reminds us that representation is dynamic and that a "party's expectations for the negotiations and the emphasis placed on one particular issue, as compared with other issues, are not fixed and static, but continuously changing during the negotiations."

The next points I want us to think about are the problems that Gifford says we need to solve, namely (a) the a boundary role that the lawyer plays and (b) lawyer dominance.

Then, in Part III, we come to his proposal. What Gifford suggests is a pre-negotiation counseling conference at which the attorney and te client discuss four topics. One of the questions I have for you is how you would prepare yourself and your client for that conference. What difficulties might you encounter in simply setting up what, on first reading, seems like an eminently sensible and unobjectionable meeting.

My second question has to do with the concession Gifford makes toward the end of his section on the pre-negotiation conference, that is the fact that some disputes are just not amenable to integrative solutions. For those distributive problems we have what Gifford calls a "less emotionally satisfying task." So my question is this: How would you prepare yourself and your client for that kind of conversation?

Thursday, February 5, 2009

Welcome

Welcome to the blog for this semester's Lawyering Process course, Interviewing, Counseling & Negotiation. My goal for the forum is simple: I want all of us to reflect on the coursework, pool our ideas, and generally grapple with the subject matter.

Please use the blog to draw the class's attention to news stories, articles, websites, and other blogs you deem worthy of note, and to comment on the assignments and in-class discussions. Because we meet in the evening, after you've already put in a hard day's work, you may find that your most brilliant insights come to you after class. This is an opportunity to say what you would have said if you hadn't been so tired/hungry/whatever and to keep the conversation going between classes.

Without wishing to chill your expressiveness, I want you to know that traditional academic etiquette applies. Keep your remarks respectful and to the point, avoid profanity and personal attacks, and only post messages that you would have no qualms seeing on the front page of the New York Times. Before clicking "post" ask yourself whether -- several months or years from now -- you would be happy for potential employers to read what you just wrote.