Thursday, September 24, 2009

The Great Compromise*

What is it about the word "compromise" that tends to raise the hackles of those who hear or read it? To many, any compromise is regarded as the shameful abandonment of principle. Perhaps the best example of the negative visions that the word conjures is the Munich debacle in the fall of 1938. Neville Chamberlain, trying desperately to avoid another catastrophic war with Germany, sold the fledgling Republic of Czechoslovakia down the river, thus, making another catastrophic war with Germany inevitable.

Against such a backdrop, it is well to remember that the word "compromise" was not always considered epithetical. In any society, interests — even principled interests — will inevitably clash. For a society to survive, means must be found to resolve those differences peacefully. And not all conflicts are susceptible to win-win resolutions. The great British statesman, Edmund Burke, for one, regarded compromise as an essential and beneficial part of the human condition. See my post of May 26, 2008, "The Best Compromise That Never Was?."

In order to counter the prejudice against all compromise, it is useful from time to time to discuss historical examples of some that proved to be fortunate. The first that springs to my mind was reached in July of 1787 at Independence Hall in Philadelphia (pictured above). As I have stated before, the drafting of the United States Constitution involved "a high-stakes negotiation among many distinct interest groups." See "Yes, Virginia, There Is a Plan," May 25, 2008. Potentially the most crippling dispute facing the delegates dealt with the question of how the national legislature would be constituted. Delegates from larger states like Virginia favored election of representatives based on population. This, its adherents believed, would assure a legislative body truly national in character. Opponents of this concept, chiefly from the less populous states, believed that each state should have equal representation, else the smaller states would lose all power in the national government.

More than mere self-interest was involved in the debate; both sides supported their positions with principled arguments. The question occupied the delegates for a month, with almost no progress toward resolution being made. The issue was so divisive that many despaired of overcoming it and feared that the Convention would dissolve in failure as a result. Fortunately, most delegates were committed to the success of the endeavor, and ultimately took the larger view that without some compromise of principle, the entire American experiment would miscarry. Thus, they recognized that the larger principle of national unity was on the line, without which all other principles would be irrelevant. A so-called "Grand Committee," with members from each state, was formed to study the issue over the Fourth of July recess. One of its members was Benjamin Franklin, who proposed the concept of proportional representation in the lower house (House of Representatives) — which was to be given the exclusive power to generate revenue bills — but equal representation for each state in the upper house (Senate).†

It took almost two more weeks, but ultimately the delegates approved the compromise by a narrow margin. Eventually even James Madison, one of the most strident of those opposed to anything but 100% proportional representation, put the issue behind him.

And the rest, as they say, is history.

* For background on this post, I am indebted to William L. Shirer’s classic The Rise and Fall of the Third Reich (New York: Simon and Schuster, 1960), Catherine Drinker Bowen’s Miracle at Philadelphia: The Story of the Constitutional Convention, May to September 1787 (Boston: Little Brown and Co., 1966), and Richard Beeman’s more recent Plain, Honest Men: The Making of the American Constitution (New York: Random House, 2009).

† The concept of mixed representation — the people represented in the lower house and the states represented in the upper house — was based on a proposal floated the previous month by Roger Sherman of Connecticut, which is why the result is sometimes called the "Connecticut Compromise." But the idea didn’t get a lot of traction until Franklin wined and dined the members of the Grand Committee, tweaked it a bit, and lent it his support.

Thursday, September 17, 2009

The Dick Francis Solution

Long before I ever heard about Fisher and Ury’s Getting to Yes, I started reading Dick Francis’ mysteries. For those not familiar with his books, Francis, formerly a steeplechase jockey, develops his novels around British horse racing. His protagonists, rather than being super sleuths, are usually fairly normal, civilized people who are forced to deal with extraordinarily uncivilized situations; his villains are some of the most evil and malevolent specimens in literature. What struck me when I first started reading his books, was that their focus was primarily on how situations could be resolved to best serve the interests of the protagonists — even if the solutions did not always result in all the villains getting satisfactorily crunched.*

With this background, when I was first exposed to Getting to Yes, it was relatively easy for me to understand what the authors were getting at when they discussed the superiority of focusing on interests rather than positions.

When a person is injured due to another’s fault, often the first reaction is a desire to punish the offender. If I have been hurt because someone else was careless, I want the other guy to suffer as much as, or more than, I have. It is difficult for the lizard part of my brain to accept that the aim of the civil justice system is not punishment. Sometimes this initial reaction will fade with the passage of time, but not always and usually not completely. A plaintiff’s lawyer who expects a case to settle must work with his or her client to overcome this natural reaction.

"Revenge," the proverb says, "is a dish best served cold." But, in truth, it isn’t a dish at all. Revenge doesn’t put food on the table, replace lost income, or pay medical bills. Revenge doesn’t put your kids through college or provide for your retirement. And, largely because of liability insurance, the defendant will never feel the financial pain he or she has inflicted on you.

The sooner a plaintiff accepts the reality of the situation and is ready to make decisions based on what is best for him or her, as opposed to what is bad for the other guy — to accept the Dick Francis solution, in other words — the sooner a case is likely to settle and the plaintiff can move on with his or her life.

* Some examples are Risk (1978), Reflex (1981), Straight (1989) and To the Hilt (1996).

Thursday, September 10, 2009

Deus ex Machina Mediation

Deus ex machina literally means "God from a machine," and refers to the practice in ancient Greek drama* of bringing in a god (lowered to the stage toward the end of the last act by a crane or on a piece of scaffolding) to magically solve all the problems created during the course of the play. Merriam-Webster Online defines the term in context as "a person or thing (as in fiction or drama) that appears or is introduced suddenly and unexpectedly and provides a contrived solution to an apparently insoluble difficulty."†

Some litigants approach mediation with little or no preparation, no clear vision of the result they want to achieve, and no plan as to how to proceed. The idea on each side seems to be that it is the mediator’s job to somehow convince the others to accept their position, without having to present a clear reason for them to do so beyond saying something like: "We are confident that a jury in this county will go along with us." The mediator is then expected, by means indiscernible to mere mortals, to get everyone to agree to a solution somewhere in between the parties’ positions. In reality, the mediator is reduced to shuttling back and forth like Henry Kissinger, unable to say anything more illuminating than "[d]o you realize you might lose this case?" Although such mediations do sometimes lead to settlement, I suspect that the same results could have been achieved by exchanging a series of e-mails, without the need for a mediator.

For a mediator to help parties settle a case, the parties and their lawyers normally have to work as hard as, or harder than, the mediator. They must: (a) know their cases thoroughly; (b) be imaginative and flexible; (c) know roughly where they want to go; (d) have a plan as to how to get there; and (e) be prepared to give plausible reasons for each step taken. If the participants have done their homework, then mediators have many tools to smooth the process and help the parties arrive at a mutually satisfying solution.

As is the case with most human endeavors, hard work, sweat and preparation are necessary to get the job done. Sorry, but as Vernon Dursley put it: "There’s no such thing as magic!"‡

* I have no idea why it’s a Latin phrase, rather than Greek.

Merriam Webster’s Online Dictionary (10th ed).

Harry Potter and the Sorcerer’s Stone, Chris Columbus, Director (Warner Bros. 2001).

Thursday, September 3, 2009

Little Blank Spaces

When a liability insurance claims office gets a report that one of its insureds has been in an accident, it immediately sets up a file, gives it a claim number, and assigns it to a claims representative. Typically, the company’s guidelines require that certain information about the claim be obtained before it will consider making a substantial offer. The required information includes basic documents about the accident (police report, witness statements, e.g.), plaintiff’s lost time and earnings from work, medical bills, medical records, whether the plaintiff has reached a medical end point, etc. I tell plaintiffs that the claims rep has lots of little blank spaces on his or her computer screen and, until those spaces are filled in, the money faucet will remain closed.

It follows that if you represent an injured plaintiff, you will want to find out what those blank spaces are and help the claims rep fill them in as soon as possible. If you don’t know what they are, ask. By thus accommodating the company’s protocol, you won’t turn a doggy case into a winner, but you should enhance your credibility with the insurance company in meritorious cases and help set the stage for a successful mediation.

For more on the same subject, see my article entitled, "Dealing with Insurance Company Claims Representatives," written in 2006.