The following is the write-up of this case presented in the materials of the Annual Conference of the Association of Southern California Defense Counsel (March 4-5, 2010):  “Burlege v. Superior Court (2009) 178 Cal. App. 4th 524, Second District, Division Six.  Purchaser of home claimed that seller fraudulently failed to disclose that the home encroached upon neighboring property.  The parties agreed to arbitrate the dispute.  Prior to arbitration, the title company paid the neighbor for a lotline adjustment that gave the purchase clear title.  The arbitrator though refused to hear evidence of the lot line adjustment and awarded the buyers approximately $1.5 million in damages and costs.  The trial court vacated the award.  The Court of Appeal held that, while judical review of contract arbitration is very limited, the trial court properly interceded.  The arbitrator’s refusal to hear material evidence substantially prejudiced the seller.  It was more than a mere erroneous evidentiaryruleing to exclude evidence that the title company solved the problem through a modest payment to the adjoining landowner.  Without the opportunity to present material evidence, a party does not receive the benefit of the bargain when agreeing to arbitration.”

What I take form this case is that a court will intercede when it must to avoid what it believes is an obvious miscarriage of justice.  The court will not do so where an arbitrator makes a common garden variety error of fact or law, or even when an arbitrator’s actions are perhaps an abuse of discretion.  The standard  is more akin to the old standard for intentional infliction of emotional distress – when one is inclined upon hearing the facts to pound on the table and exclaim: “That’s Outrageous”!  Here, the standard would be that upon hearing the facts one is inclined to raise one’s eyes to the sky and exclaim: “Oh, That’s Just Wrong”!

I think this is a useful way to think about the ”manifest disregard” doctrine,  although this doctrine is reserved for errors of law. 

One aspect of this Burlage case is perhaps unfortunate, and this aspect is the reference to the “benefit of the bargain” with respect to the arbitration agreement.  This reference is unfortunate because this concept allows much more under the edge of the tent than the extreme type of situation that I believe was intended.  It will take more cases to circumscribe the appropriate parameters of the court’s willingness to intercede in the event of an error of fact or law by an arbitrator. 

A practical lesson from this case for arbitrators is to err on the side of allowing the presentations of evidence that a party feels is relevant.  This could make for longer hearings, but also for more secure awards.

Ten Rules for Effective Participation[1]

Kendall C. Reed

©2008

Thousands of years ago, Sun Tzu wrote The Art of War, in which he described a number of rules of war that if followed, he believe, would assure victory.  Today we have other tools available for resolving dispute, including mediation.  With apologies to Sun Tzu, I present here ten rules for participation in mediation that I believe will greatly increase the chances for resolution, and in any case, will result in certain progress toward resolution

Rule 1 –   The Decision Makers Must Participate

Who is a decision maker?  This seems like an easy question.  When a party is an individual, then that individual is the decision maker.  However, when a party is an entity, the answer is less clear.

Entities can only act through their agents, and as such, a decision maker for an entity can be said to be an agent who is authorized to settle a dispute on behalf of the entity.  This is correct, of course, as far as it goes, but for purposes of mediation, it is too broad.  This definition is too broad because it allows for legitimate “authority,” but only “limited” authority, that is, authority up to some predetermined limit that seemed to make sense at the time it was created.  Providing an agent with only limited authority is understandable and practical, but it can cause significant problems for mediation. 

This is because as the mediation unfolds the parties can gain a new and more realistic understanding of the dispute.  In fact, this is one of the most valuable benefits of the process.  As a result, it is not uncommon for the parties to change their minds about what constitutes an acceptable settlement.

When this happens, the agent with limited authority must stop and seek additional authority from someone else within the entity with greater authority.  However, this other person has not participated in the mediation process and must consequently be educated about the reasons for the changed perspective.   This presents at least three problems.  First, this education process is always time consuming, as it must replay the events that have taken place.  Secondly, it is not always successful; it can be difficult for an absent principal to fully appreciate the event from an outsider’s perspective.  And, thirdly, such a consultation is second-hand in nature and inflexible within the context of the give and take of the mediation process.     

As such, when a party is an entity, a more correct definition of “authority” is the power to accept any offer of resolution made by the other party, limited only by the legal structure of a party [2] and the realm of reason.[3] 

What is meant by “participate”?  It means being personally involved in all of the events that occur during a mediation session so that the participant has the opportunity to gain a new and more realistic understanding of the dispute and respond accordingly in real time.  The best form of participation is physically presence.  When this is not possible, then participation can be by way of video conference or speaker phone.  Being “on call” is not participation, and this is because the participant is not involved in the events that occur. 

Rule 2 -  The Important Documents Must be Physically Present

            Mediation involves working through the differences of opinion about a dispute, and documents can be extremely revealing.  For example, it is important to have the Covenants, Conditions, and Restrictions physically present at a mediation session in a dispute between a home owners association and a condominium owner.  As another example, it is important to have the insurance policies present in a dispute between an insured and the insurer. 

            A hand written envelope was the critical document in one case I recently mediated.   Because this envelope was present at the mediation, it could be compared to the signature that appeared on a document of title, which was also physically present.  This comparison revealed that the signature on the document of title was likely forged, and the case was thereafter resolved.

Rule 3 -  Be Right, but only to a Point

Every party to every dispute believes s/he is right.  Whatever the relevant factors, whether these might be the dictates of the law, the facts, the practicalities of the situation, or even moral values, every party subjectively, genuinely, and honestly believes he is right in some way and for some reason. 

The question about who is right, that is, who is likely to ultimately prevail absent an agreement, is very important because realistically predicting the chances for ultimate success defines the parameters for realistic options for resolution.  However, one should not focus exclusively on demonstrating that one is right (and the most right) because clarity about this rarely results in resolution.   Such an analysis can never be more precise than a range, and once the range is established, no amount of argument can tighten the range beyond a certain point. 

Rule 4 – Build a Deal

In a fight, the goal is to win.  Fighting involves pursing one’s own demands without regard for the effects on one’s opponent.  Further, fighting requires a significant expenditure of effort in resisting the opponent’s moves.

In mediation, the goal is resolution.   Achieving resolution requires a significant expenditure of effort on finding options that will satisfy both parties.   Finding options that satisfies both parties is very much like building a deal in a commercial context.  It must work for both parties, or there is no deal.

As such, in mediation one is concerned simultaneously with one’s own interests and with the interests of one’s opponent. 

Rule 5 – Treat the Other Party with Respect

            Consent is a sine qua non for any deal.  Consent need not be given happily, but it must be given nonetheless.  As such, and in a very real sense, each party has something the other wants  –  its consent.  A party who has been insulted is not usually inclined to give consent.  Further, a party who is feeling disrespected tends to be distracted by this to the exclusion of all else, which is counter-productive to the mediation process.[4]

This is not a matter of “making nice.”  It is a matter of avoiding mindless or gratuitous disrespect.

Rule 6 – Be Persuasive

            One must be persuasive about the merits of one’s position on the substance of the dispute, and one must be persuasive about mutual benefits of any potential deal. 

            The classic means of persuasion is the subject of rhetoric.[5]   This involves establishing the right approach, at the right time, with the right emotional tone, with the force of objective logic, and with the strength of personal credibility. 

            In addition to rhetoric, social psychology has a great deal to say about persuasion.  One author, Cialdini, [6]sets out six basic principles of persuasion:  reciprocity, commitment and consistency, social proof, liking, authority, and scarcity. 

            These two approaches to the task of persuasion, rhetoric and social psychology, are usually in accord.  Sometimes, however, these two systems can suggest opposite choices.  For example, one rhetorical move is to over-sympathize, which is intended to make the audience feel ashamed about an emotion that one would have them change.  However, from a social psychological perspective, making someone feel ashamed could make them like us less, and thereby make us less trustworthy in their eyes.  Generally speaking, where these two systems conflict, rhetoric should yield to social psychology, or at the least, a rhetorical move that potentially violates a principle of social psychology should be tempered thereby.

Rule 7 -  Focus on Interests

The importance of “interests” is described by Roger Fisher and William Ury in their seminal book, Getting to Yes.[7]  According to Fisher and Ury, the parties’ interests define their dispute.  This is a revolutionary statement because the conventional wisdom had been that a dispute is defined by the parties’ positions.

An “interest” is a want.  A “position” is one way to satisfy a want. 

            Knowing one’s own interests is essential, but it is only part of one’s task.  The other party has interests too, and one needs to know what those are.  Identifying the other party’s interests is usually more difficult than identifying one’s own.  Initially this requires a certain amount of speculation, but once a mediation session starts, one can ask.

Rule 8 – Be a Problem Solver for Interests

            In achieving resolution, the task is to reconcile interests.  Options must be identified or created that allow both parties to achieve enough of their interests in a sufficient degree to make the options better than no deal at all. [8]

            Reconciling interests requires problem solving, and problem solving requires creativity and an open mind.  A good technique for generating this type of open thought is brainstorming, which is a process in which parties identify every idea they can think of to reconcile the interests.  For this process, no idea is rejected or criticized, and ideas can build on one another.  The better ideas usually come late in process after people believe they have run out of ideas.  

            Once a number of options are identified, then the parties can evaluate them and select those that result in the maximum, or at least acceptable, benefits for each.   

            Additional tool for problem solving include simple compromise, compromise across time (one way this time, the other way next time), and trading-off interests (also called “logrolling”).

Rule 9 -  Work Past the Anger

Anger is the inevitable byproduct of frustration, and frustration results when one does not get what one wants.  If the parties are willing and able to identify their respective interests and engage in productive problem solving, anger might not arise.  However, my experience is that the process is not so smooth.  Parties are often reluctant to set aside their positions, and even when they do, they are unwilling to make a deal that both sides can accept; why should they when they are right (and most right) about the dispute?   

At some point in the process, the parties begin to understand that perhaps they are not most right about the substance of the dispute or that they will need to take less (or give more) in order to make a mutually acceptable deal.  When this happens, the parties often start to get frustrated, and thereby angry.

Many parties believe that their own anger is a sign that things are not going well and that they should stop.  This is incorrect.  A deal can still be achieved if the parties can consent to a deal that satisfies their interests better than having no deal.  Developing such an option is work that can continue even if, and in part because, the parties understand that they will not get everything they initially demanded.

Rule 10 – Be Patient

Mediation involves change.  Parties in a dispute typically believe they are right (and most right) about the dispute.  Each party may or may not understand her/his own interests and those of the other party, and each may have unrealistic expectations.  Each party may be unwilling to treat the other with any degree of respect.  It takes time to address these issues, and it takes time for people to change their minds.  It is important for parties in a mediation to allow time for these changes to occur. 

            Of these 10 Rules, this one is the most important one of all. 

Conclusion

                Successful participation in mediation requires more than knowing that one is right and pressing one’s positions forcefully.  It requires an understanding of the mediation process and how to operate effectively within in it.  Adherence to these 10 rules will yield better results more often and more quickly.  

[2] In some situations it is not possible to have such a principal present and participating.  This can be the case when a government entity is involved, and this is because government entities typically can only act through their governing bodies.  In this type of situation, the lack of actual authority must be disclosed from the outset and the goal can be an unqualified recommendation from the agent to the governing body. 

[3] I am not suggesting that the president of a multi-national company must be present at the mediation of a small auto accident case because the other party might make a huge demand, but I am suggesting that the level of authority must take the unexpected into account, and in no event should a party create a “best possible case” limit on the authority of its agent so as to control the situation.

[4] Another way to say this is that respect is a universal interest.  The subject of “interests” is discussed below.

[5] An excellent recent book on the subject is Henrichs, Jay, Thank You For Arguing, What Aristotle, Lincoln, and Homer Simpson can Teach us about the Art of Persuasion, Three Rivers Press, New York, New York, 2007.

[6] Cialdini, Robert B.  Influence, The Psychology of Persuasion, Quill, New York, New York, 1984.

[7]  Fisher, Roger, William Ury, Getting to Yes; Negotiating Agreement Without Giving In, Penguin Books, 1981.

[8] Fisher and Ury, supra, use the expression “BATNA,” which means the Best Alternative to a Negotiated Agreement.

I’m running for Judge of the Superior Court for the County of Los Angeles, Office 28.

I am running because I wish to serve my community and serve the cause of justice in a capacity that will call on several of my natural strengths – a deep sense of fairness, a thoughtful approach to decision-making, and a respectful demeanor.

I ask for you support on June 8, 2010.