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By Steven G. Mehta

The legal and ADR might just have a new tool to use in their conflict resolution toolbox.  I recently wrote an article about this in the Daily Journal.  I thought you might like to see the content of the article…

Los Angeles Daily Journal, Friday March 26, 2010

Let A Global Audience Decide Your Dispute

By Steven G. Mehta

It is 8:30 a.m. in Department 9 ¾  of the Los Angeles Superior Court.  John Smith, an attorney for seventeen years arrives in the courtroom yawning slightly.  The Court clerk asks him for two business cards, which he obligingly gives even though he only has two business cards left in his wallet.  He sits down and now waits for the judge to appear so that he can attend the case management conference.  Another routine hearing on another employment dispute in which he is representing an employer in a case brought by a disgruntled former employee claiming wrongful termination.

The Judge quickly leaves her chambers and sits down at her chair.  “Good Morning counsel,”  she says.  “Good morning, your honor,” respond all the attorneys in the room.

The judge then calls the calendar saying, “The matter of Potter versus TMOM, Inc..”    John Smith approached the counsel table and identified himself, “Good morning your honor.  John Smith for the defendant.”   At the same time, the opposing counsel, a new attorney from the plaintiff’s office also identified herself.”

“Counsel.  I have reviewed your file,”  said the Judge.  “You have both agreed to alternative dispute resolution, Correct?”  Both attorneys answered “Yes.”

So far, this hearing was just another routine hearing with routine orders.  But what the judge was about to do was going to change the attorneys’ views of alternative dispute resolution for a long time to come.

The judge continued.  “I am then ordering you to both submit your dispute to sidetaker.com.”

“Excuse me, your honor,” said Mr. Smith. “Sidetaker.com.  What is that?”

“Sidetaker.com is a website where you can submit your dispute to anonymous third parties who will then vote on your dispute and will give you feedback to help you see a different perspective,” said the Judge.

“The site’s message “Let The World Decide Who’s At Fault.”  You wanted a jury trial counsel, well now you have one,” said the judge.

This story is fiction and has not happened in a courtroom – yet.  But what an amazingly interesting site.  What if all disputes in court used this site to find out what third parties think about their dispute?

Sidetaker.com let’s you air out your differences anonymously.  No matter the dispute. Sidetaker.com lets you get a third party perspective and get an indication of whether other people with agree with you or not.

Currently, many of the disputes that are on sidetaker.com are of a personal nature, such as disputes between spouses, neighbors, co-workers, and friends.  Take for example, one couple.  She claims that her husband attended a two day bachelor party in Las Vegas.  After that, he has acted suspiciously.  She believes he cheated.  She has now called all of his friends.  She stated, “When he got back, I could tell he was being nicer than he usually is but he was also fumbling over what he was saying when I asked him what went on. he said none of the guys did anything. He said he didn’t even talk to a single girl.”  He, on the other hand, claims that nothing happened  He further states that it was wrong to call his friends.  He said, “I never lie to my wife. We did a hell of a lot of drinkin’ up there but we never fooled around with any girls. I confessed I danced with a few and we hung out for a while but I never saw them after like 10 o’clock…and what really could happen before that?”

Well, according to Sidetaker.com, 55% of the over 2400 responses agreed with the wife.   Here is a comment from a male user: “Usually, when you can tell a difference in attitude, it’s a pure sign of wrongdoing. I’d have to say he did something wrong;”  Another man commented as follows: “You got caught! I can’t believe you couldn’t come up with a more believable excuse than what you did…Sorry but I’m going to side with Nikki. Admit it because it’s much harder to keep a lie going than it is to tell the truth.”

The fascinating thing about sidetaker.com is that it is an automatic and quick mock jury.  I remember having mediated a premises liability case where a woman tripped and fell in a hole  The actual accident had been videotaped and broadcast on youtube.com.  There had been many comments from viewer describing different perspectives relating to the accident.  I was able to print out those comments and use them during the mediation to assist the parties to evaluate the case and re-evaluate their extreme positions.

Sidetaker.com does a similar thing, but with voting.  The obvious problem with sidetaker.com for legal disputes is that the parties may not submit their dispute voluntarily.  But that is where – in this hypothetical world – a court could require the parties to submit the dispute.  The parties would get fascinating feedback about the dispute.  Many times, the parties’ extreme position could get tempered because of the comments made by the users.  Just as with focus groups, the comments of the thousands of jurors could help one or both sides realize that their dispute is not cut and dry and that there is room for compromise.  Otherwise, if they don’t decide the dispute, then perhaps one of those thousands of anonymous users will be on their jury.

Often, disputes end up in litigation and in trial because the one or more of the parties fervently believe that they are right and that there is no other way of seeing the matter besides their own.  Focus groups, mock juries, and sidetaker.com can help clients and attorneys better understand the different perspectives.  By understanding those perspectives, they will be better armed in being able to resolve their disputes short of costly and divisive trials.

Well, the story was fictional.  The website is real.  The concept is hypothetical.  But the principal is sound.  Hopefully, the resolution of disputes will be easier with sidetaker.com

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By Steven G. MehtaSteve Mehta

Feeling slighted, miffed, or offended can influence how a person responds much more than being the recipient of perceived generosity, even if the net value of the social transaction is the same, the research on reciprocity—giving and taking—shows.

“Negative reciprocity, or taking, escalates,” said Boaz Keysar, Professor of Psychology at the University of Chicago and lead author of the paper “Reciprocity is Not Give and Take: Asymmetric Reciprocity to Positive and Negative Acts,” published in the Psychological Science. The study was based on giving-and-taking games conducted on students and people in downtown Chicago.

The games provided data on how people respond to give-and-take social exchanges.

In one experiment, subjects were divided into two groups and asked to conduct experiments that began in two different ways using money. In the first group, one player learned that another player had $100 and was going to share it. In each situation, the player with the money gave the other player $50. When the roles were reversed, the players who received the $50 received $100 which they could share with the other players. In that exchange, those players gave their partners on average $49.50.

On the other hand, In a companion experiment, the researchers found when they changed the act to taking instead of giving, that the act of taking had a far bigger impact on people’s responses than did the act of sharing.  Just as in the first experiment, when the roles were reversed, the first players took back much more, leaving the partners with an average of $42.

Further, as each round continued, each person “taking” became increasingly greedy over repeated exchanges.

The study, which was supported by the National Science Foundation, the National Institute for Mental Health, and the Templeton Foundation, shows various social exchanges differ from those in the marketplace, where goods are bought and sold, Keysar said. “Acts of giving are perceived as more generous in social exchanges than objectively identical acts of taking,” Keysar said. “Taking tends to escalate.”

Applying the Research

Most studies involve positive reciprocity – the giving of gifts in anticipation of coercing positive action from the other person.  However, this study demonstrated that negative reciprocity can often be more powerful a motivating factor than positive reciprocity.  This directly applies to the litigation negotiation context.  Often in litigation, one party feels slighted.  Take for example, when an offer is made that is a “highball offer” or “lowball offer,” the other side tends to reciprocate with their own version of an offensive offer.  This research demonstrates that unless the cycle is broken, the conflict of negative reciprocity will continue to escalate.

Moreover, people are often also slighted by some action that occurred that instigated the litigation.  The same cycle of negative reciprocity and increasing escalation can substantially increase the transaction cost to the litigation by forcing parties to conduct more discovery, more motions, and more time and energy.

It is, therefore, important to break the cycle.  According to Louis Kreisberg, professor of sociology, all conflicts will escalate until a point of stalemate, and then only can the parties de-escalate.   As such, whether the conflict is the litigation or the negotiating offers, the parties must first come to a stalemate.  In negotiations, that means that the parties need to realize that the escalating moves that are “offensive” won’t work.   The parties need to realize that they won’t be able to achieve their goal by pursuing the “offensive offers.”  But that may take some time.  The parties won’t realize that there is a stalemate in the negotiations until several moves have taken place.

Second, after realization of the stalemate, the parties need to have some way to start to de-escalate.  Some ways that negotiators and mediators can break the escalation cycle is as follows:

  • Make a unilateral gesture of good faith
  • Change the focus of the negotiation
  • Take the initiative to identify the stalemate  — I.e. “we all know that these moves aren’t going to get us anywhere.  We need to get to the realistic negotiations, otherwise we will be at a stalemate forever.”
  • Make a small gesture whilst indicating a desire to receive such a small gesture also.  This is also known as GRIT, an approach developed by Charles Osgood.   In his original writing he said it stood for “graduated and reciprocated initiatives in tension reduction; later he simplified this to gradual reduction in tension.  The basic idea is that disputant can initiate de-escalation by making a small, unilateral (one-sided) concession to the other side, and at the same time, communicating a desire or even an expectation that this gesture will be matched with an equal response from the opponent.  If the opponent does respond positively, the first party can make a second concession, and a “peace spiral” is begun.  If the first initiative is ignored, Osgood suggests that it be followed by a second–or even a third–attempt.  These concessions should be designed to build trust, but should not be terribly costly (materially or strategically), nor should they suggest weakness.   However, they should indicate a willingness to transform the conflict to a more cooperative and less adversarial approach.
  • Apologize – whether this is for something substantive or procedural.  An apology can help to significantly de-escalate a conflict.
  • Take a time out from the negotiations so as not to escalate the conflict.
  • Identify that the conflict is escalating and that you do not wish to escalate – State your intention to de-escalate.
  • Ask the other side to help you de-escalate.  – Former enemies will becomes the greatest of allies when they share the common goal or enemy.

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