The Cost of American Militarism

Segment 1: Military Spending is Making American Less Secure.

The United States is spending more on the military than ever before. Over 50% of every dollar that we pay in taxes goes to support military spending. What are the consequences and what can be done about it? To consider that question we have Mel Goodman on this edition of The Doug Noll Show. Mel is a 24-year veteran of the CIA and offers an insider’s view of the U.S. military economy. He is author of the book National Insecurity: The Cost of American Militarism.

 

Mel worked within the government for 42 years and had the highest level of security clearance. He came to the sad conclusion that there has been tremendous exaggeration of every threat we have ever talked about since the end of WWII. He argues that U.S. military spending is making American poorer and less secure. For example, the U.S. squandered an amazing opportunity to change its military spending and military procedures after the collapse of the Soviet Union. Unfortunately, nothing changed. The last four presidents have been scared of the military and have not known how to deal and communicate with it.

 

Segment 2: The Hopes of Our Children.

Mel believes the American people need to become more active and call their representatives and voice their opinions regarding national security and military spending. Americans have become ethno-centric and congress has basically been “bought” by the defense companies. Military spending is out of control and this leaves very little money to pay for domestic issues such as bridges, roads, schools, and infrastructure. President Eisenhower warned about this in a speech: we are not only spending our capital, we are spending the sweat of our laborers, the genius of our scientists and the hopes of our children.

 

Segment 3: Totalitarian Dominance.

Since the Ronald Reagan administration we’ve had a totalitarian dominance of foreign policy by the military. In order to reverse this we need to demilitarize the national security arena and develop a more effective state department. The oversight process of the military has gradually disappeared. Additionally, when we give the military more money than they really need, it’s a tremendous drain on America’s ability to conduct its domestic policy.

 

The press has abused the freedom of the press by not exercising its right to freedom. It’s very hard for a contrarian to get a voice into the mainstream media. Peace does not sell in the media. We are the strongest nation in the world with the strongest geo-political position and the only country that can project military power, and instead of using this as a bargaining chip or for leverage in some way, we continue to pour on more military aid throughout the world.

 

Segment 4: Increase Prosperity and Security at Home.

So how do we shift America away from a militaristic state? We start by making sure that the military is not the key instrument in foreign policy. We need to get the state department more engaged and de-militarize the intelligence community. We also need a more effective Senate Foreign Relations committee and we need to cut back on military spending. The American people need to start asserting themselves and putting pressure on their Senators to change the status quo. We need to alter our military spending policies in order to better position the U.S. globally and increase prosperity and security at home.

 

To listen to the entire interview:

 

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Fire and Forget: Short Stories from the Long War

Segment 1: From Baghdad to Brooklyn, from Kabul to Fort Hood.

Our guests on this edition of The Doug Noll show are Matt Gallagher and Roy Scranton, authors of the book Fire and Forget: Short Stories from the Long War. http://www.fireandforgetbook.com/

 

Their website describes the book: “The stories aren’t pretty and they aren’t for the faint of heart. They are gritty, haunting, shocking and unforgettable. This anthology brings us a chorus of powerful storytellers – some of the first bards from our recent wars, emerging voices and new talents – telling the kind of panoramic truth that only fiction can offer. What makes these stories even more remarkable is that all of them are written by men and women whose lives were directly engaged in the wars --- soldiers, Marines, and an army spouse. Featuring a forward by National Book Award-winner Colum McCann, this anthology spans every era of the wars in Iraq and Afghanistan, from Baghdad to Brooklyn, from Kabul to Fort Hood.”

 

Segment 2: Raw Intensity and Deep Emotional Investment.

Matt and Roy met in New York while at a veterans writing workshop at New York University. There is a small community of veterans in New York, and even smaller community of vets who write. A few folks at the writing workshop broke out and started brainstorming about what to do with the amazing stories. Matt and Roy felt there were a lot of memoirs on the market but very few fiction short stories about war. Fiction makes it possible for the reader to make a deep emotional investment that might be more difficult with non-fiction war stories. There is a raw intensity in many of the stories. Most of the writers are under 40 and are recently back from serving.

 

Segment 3: A Call for Submissions.

To solicit submissions they cast a wide net. They talked to people they knew, they sent out emails to veterans writing groups, they reached out across the country to different veterans organizations with a call for submissions. They received quite a few stories from which to choose and went from there. They looked within the stories for an exchange, a description, an event that couldn’t be forgotten. They wanted all the short stories to add additional layers to the anthology. The fiction needed to feel new and fresh and engaging to be included in the book.

 

Segment 4:

Matt has worked with veterans groups as a Senior Writing Fellow, mostly to encourage them to get their experiences down on paper for cathartic purposes. The writing experience can create a new creative capacity in their lives. There is a military-civilian divide and Matt and Roy feel the most important thing they as vets can do within the community is to represent themselves and get their stories out there. The only way to really understand people’s personal stories is to keep talking, keep engaging, keep diving into the complexities of American History.

 

To listen to the complete interview:

 

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Conflict Unplugged

Segment 1: Why Don’t We Try Cooperation?

Our guest on this edition of The Doug Noll Show is up-and-coming young peacemaker Jesse Treakle, founder and director of the organization Conflict Unplugged. Jesse is based in San Diego and is currently finishing up his PhD in Conflict Resolution. When asked about his personal journey as a peacemaker, Jesse remembers at the age of five settling a conflict between two cousins. They were arguing over who was going to climb the ladder of a hen house first, and as the story goes, Jesse asked them, “Why don’t we try cooperation?” In 2000 as a member of AmeriCorps, Jesse had his first official mediation training seminar and walked out of the event a changed man. The skills spoke to him and he knew they would speak to others. He then spent a year in Switzerland studying peacemaking and pursued a Master’s degree in conflict resolution.

 

Segment 2: Teach the Children.

Eventually Jesse ended up in United Arab Emirates teaching English and conflict resolution to school kids. He had no idea the response to his first after-school program would be so huge. The school kids came each week and learned conflict resolution techniques and skills, which was completely new terrain to them. It was a very powerful experience, for Jesse as well as the students.

 

Segment 3: Conflict Unplugged.

Jesse tell us that he set up his peacemaking organization, Conflict Unplugged, on two simple ideas:

1) Conflict is not synonymous with disagreement. Often we think if we get into a disagreement we automatically get into a conflict. Instead, we need to ask ourselves, “What triggers lead us into conflict and how can we catch ourselves before we go down that road?”

2) It’s important to create a clear definition of conflict and to stress that is it NOT positive and inevitable, but instead, negative and preventable. This change of mindset is not easy and takes effort, but if we want to create a world that is harmonious and break the cycles of violence then we need to get past the idea that we are inevitably driven toward conflict.

 

Segment 4: Study the Instigators.

So how do you teach people to become less reactive to the triggers that cause conflict? The first thing is to separate disagreement and conflict. Then identify and study the instigators: anger and other negative feelings, negative character judgment, and feelings of inferiority or superiority. It’s a process of engaging in reflection. Take the negative emotion and let it be an indicator of what is missing in a relationship (with someone else or even with yourself). This self-reflection calls for a tremendous amount of discipline and system-2 thinking. The most challenging thing to do is to have that new thought pattern become habitual. To read more about Jesse’s crucial work, please visit his website: http://www.conflict-unplugged.com/.>

 

To listen to the entire interview:

 

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Dr. Izzeldin Abuelaish: Wisdom is Stronger than Bombs

Segment 1: Conflict is Caused by Fear.

Our guest on this edition of The Doug Noll Show is the esteemed Dr. Izzeldin Abuelaish, a Palestinian medical doctor who has dedicated his life to raising awareness for peace between Israel and Palestine. Dr. Abuelaish is also the founder of Daughters for Life, a foundation established to advance the education and health of girls and women from the Middle East.

 

Dr. Abuelaish believes the Palestinians need to be responsible for their own lives and for their own health and well-being, but the world needs to help them. It’s a mutual responsibility. A lot of conflict is caused by fear. In order to overcome that deep seated fear we need to be open and honest. Most fear comes from misinformation, a psychological barrier or ignorance. It’s easy to hide behind fear, but we must take responsibility to face our fears and learn about other cultures in order to find common ground.

 

Segment 2: No Child is Born a Warrior.

It is fear, ignorance and greed that drive the vast majority of violence and conflict. Humans become habitual in the way they view the world and violence becomes a means to an end. It is difficult to end that cycle. Dr. Abuelaish thinks once we have justice in life, we can attain peace. Once we have the human values we were born with, we have no need for violence. Violence is a disease and must be studied and treated as a disease. This disease is man-made; it is manufactured. No child is born a warrior. The best thing to do, if you want to remove violence and fear, is to change the environment in which children are raised.

 

Segment 3: Wisdom is Stronger than Bombs.

Dr. Abuelaish says it’s time for the international community to step up and tell the Israeli government that its attitude toward the Palestinians is not tolerable and we need to have peace in the region. Any progress in the peace process is for the interest of the world, not just for the Palestinians. It will save the Israelis from their self-destructive behavior. The solution is there; now all it takes is the governments to come together and make it happen. It’s time to start to build some trust. Let the actions speak. It’s time for us to ask, “What world do we want for our children? What legacy do we want them to have? What do we want them to inherit?”

 

Despite unimaginable tragedy, Dr. Abuelaish says he is not a victim. The death of his daughters just strengthened his resolve to work tirelessly for peace and justice and freedom. Anger and violence is a destructive disease to the one who carries it. Wisdom and good deeds are stronger than bullets and bombs.

 

Segment 4: Daughters for Life Foundation.

The Daughters for Life Foundation was established in memory of his daughters. Its goal is to promote education of girls and women from the Middle East --- girls who have the potential but not the resources. The most efficient and effective means for change is to invest in the education of girls and women and to enable them to reach their full potential. The child who is educated will have educated children. With that, Dr. Abuelaish can keep his daughters’ memories alive. To learn more about Dr. Abuelaish and his invaluable work, visit http://www.daughtersforlife.com/.>

  

To listen to the entire interview:

 

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Taming the Temper Within

Segment 1: Anger is a Normal Human Emotion.

Our guest on this episode of The Doug Noll Show is Nathanial Smith. Nathanial is a professional counselor specializing in anger, depression, anxiety and domestic violence. His is the author of Taming Your Temper, a Workbook for Individuals, Couples and Groups. His website is http://www.nathanielsmithcounselor.com/.

 

Nathanial’s father was in the mental health profession for many years and helped thousands of people, which is ultimately what drew Nathanial to this career. He’d like his legacy to be the same as his father’s: help people get in touch with their emotions and become empowered and courageous enough to address feelings of anger, anxiety and depression. Anger is a normal human emotion, but when it’s applied as a form of aggression and people’s rights are violated, it becomes a problem.

 

So how do you teach people to manage their anger? In his book Taming Your Temper, Nathanial gives exercises to practice control. There are pragmatic ways to communicate and solve conflicts, but it needs to start at a young age. Parents need to sit down with their children and talk about communication and feelings.

 

Segment 2: Emotional Intelligence.

In Nathanial’s experience, men don’t learn to express feelings. It’s important to teach our kids emotional intelligence at an early age so they can become empathic adults. Nathanial is a cognitive coach: he helps people become aware and articulate what they’re feeling and make a choice about how they want to respond in that moment. Once people realize they do have a choice, they become empowered.

 

Segment 3: The Physical Response to Anger.

Nathanial wanted to write a book to help people realize that their anger is manageable. He began putting together a list of tools to help clients during their counseling sessions, and realized after a while that he had enough information to create a workbook. The book is full of exercises and examples that people can use to become emotionally aware. He wanted to give people a way to get help in the privacy of their own home.

 

There is a physical response to anger: your heart rate gets faster, your adrenalin surges, your muscles tense up, your prefrontal cortex shuts down and you look for some sort of a release. With people who are resistant to becoming vulnerable and exploring feelings, Nathanial starts with teaching them the physical response. Once they understand that, he moves into the emotional part. Somatic awareness is one of the first steps of developing emotional intelligence.

 

Segment 4: Fear Shuts Us Down.

Empathy is defined as recognizing the emotions of others. To do this, we need to learn how to be in touch with our own emotions. Fear shuts us down and can devastate our lives. Nathanial finds that once people push through the fear of having to open up and be vulnerable, they bloom and have a fantastic transformation.  

 

To listen to the entire interview:

 

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Soha Al-Jurf: Finding Peace as a Palestinian-American Woman

Segment 1: Born In the Occupied West Bank.

Our guest on this edition of The Doug Noll Show is Soha Al-Jurf, a Muslim woman born the occupied West Bank to Palestine parents, and raised in an Arab community in Iowa City. Soha is the author of a new "fictional memoir" Even My Voice Is Silence. Although she is a speech pathologist by profession, her true passion is understanding and communicating the plight of the Palestinians.

 

As a Palestinian-American raised in the USA, Soha’s mother made sure she was intimately connected to her heritage. For as long as she can remember, Soha has always been trying to find ways to relate to her heritage culturally and as an activist.

 

Segment 2: Peace Starts by Humanizing Each Other.

Soha was raised in Iowa, but travelled back to Palestine in 2004-2005 and again in 2009. She also spent summers there as a kid. She believes the current Palestinian conflict has been a difficult conflict to get resolved because there are many layers, and the fact that much of politics today is fraught with deep self-interests. No solution is going to be achieved by putting our faith and trust in government heads who we think will suddenly become less self-interested and more altruistic. In order for the Israeli-Palestinian issue to be resolved, enough of a critical mass must stand up and say “no, we’re not going to take it anymore.” Peace starts by humanizing one another and finding basic common ground. That’s the only way a shift will happen.

 

Segment 3: Find Peace Within.

Soha says we need to find a balance between the non-violent, passive approach and the ultra-violent extremists. She believes the only way for things to change is for people to take conscious responsibility for their own self-awareness and self-evolution, and aim toward a higher consciousness. To reach genuine peace, we need to step back and ask, “What’s my role in the world? How can I shift my own consciousness to heal what is broken in me and in my community?”  We must deal with the trauma within ourselves and find peace within ourselves before we can deal with external violence.

 

Segment 4: We Can’t Source-Check Scripture.

Religion is different than spirituality. What we find in many conflicts is that religion is a very important identity driver. People start to identify themselves and justify themselves through a narrow view of what they believe in religiously. In terms of Palestinian society, certainly the society is religious, and much of the Arab Muslim world has become more religious in recent years. The zealots on the other side are the Orthodox Jews, who are making the claim that God promised the land to the Jews. Unfortunately, scripture has descended from a source with which we can’t communicate. We can’t source-check the scripture.

 

To listen to the entire interview:

 

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Judithe Registre: Because I Am a Girl

Segment 1: Social Justice and Basic Human Rights.

Our guest on this edition of The Doug Noll Show is Judithe Registre, Program Director for the Because I Am a Girl campaign at Plan International USA.  Judithe holds a Master’s degree in Philosophy and Social Policy from American University and a Masters Certificate in Advanced Social Research from Afrikaans University in South Africa, in addition to being a Fellow Alumnus of the Salzburg Seminar, a forum that brings together thinkers and leaders from different global institutions to develop ideas geared towards solving international issues.

 

Judithe was born in Haiti and discovered a passion for justice and social change at a very young age. At 9 she first realized that young girls have to wash, cook, and clean, while young boys got to play. That idea did not resonate well with her. She wanted to understand how society is structured and how people relate to one another, as well as learn about social justice. Judithe defines social justice as the idea that we are all born with innate human rights: education, quality of life, access to food and water, basic things we need to grow up as dignified human beings.

 

Segment 2: Invest In Kids Today.

Judithe has been in some of the most difficult places in the world, one of the most challenging being the  Democratic Republic of Congo. Spending time there taught her the true meaning of trauma. In any post-conflict environment, the population experiences trauma and violence at a greater rate than a mainstream population. We need to take into consideration the trauma that the women and girls in those environments have experienced when we attempt to rebuild their society.

 

The process of healing takes multiple generations. Change happens if we are patient and committed to the long process. The process needs to be centered around the community. If we want to get rid of the problems that occurred 20 years ago, invest in the kids of today. If we educate women and children, change can happen faster than anticipated.

 

The Because I Am a Girl campaign focuses on girls and invests in educating them before they become women. By 2016 they estimate they will have helped 4 million girls with education, financial skills, basic life training, issues of early marriage, and improved maternity health. The heart of addressing women is to address girls before they hit puberty.

 

Segment 3: Steady, Persistent and Consistent Efforts.

In developing or post-conflict countries, when young women start to reach puberty they become objects of reproduction and lose opportunity, whereas when young men reach puberty in those same countries, they gain opportunity. The expectations for boys and girls are very different. If we invest in the girl’s education, her contribution to society will be far greater.

 

Plan International was founded in 1937. They operate in 50 developing countries and have over 600 volunteers all over the world, primarily working with children. They work to ensure education and protection for the rights of kids so they can grow up to become active citizens who hold leadership roles in the community. Their mission is 3-fold: they work at the grassroots level, and at the government level, as well as the international level. Change in any environment is difficult, even when we know change is good for us. Steady, persistent and consistent efforts lead to change.

 

Segment 4: The Discussion Changes.

The moment someone believes they can do something, the moment we start believing that we have the confidence and the intelligence to make something happen…everything changes. When you have a nation of young women and young girls unable to realize their full potential, it prevents that society from realizing its full potential. It goes far beyond the individual girl. When people start recognizing the overall benefits to investing in girls, and that an educated and intelligent woman makes a better partner, mother, and role model as a whole, the discussion changes. Everything changes.

 

To listen to the entire interview:

 

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The Lawyer as Cognitive Counselor

In legal negotiation, your client will have to make the final decision about whether to make a deal or not. As we have seen, human decision-making in the face of great risk and uncertainty is fraught with peril. Our brains simply do not handle statistics, probabilities, or logical thinking very well, especially when under stress, fear, or other emotion.

The job of the lawyer is to not only manage the negotiation so that the best possible outcome can be obtained, but also to help the client overcome the inherent distortions of the human brain so that decisional error is minimized. This is what I mean by cognitive counseling.
Some lawyers shy away from this idea saying that they are not therapists. I think it is important to understand that were not talking about therapy. Therapy involves diagnosis, prescription, and prognosis with the goal of healing injury. Cognitive counseling is more like coaching to help clients make good decisions.

The first step in cognitive counseling is to recognize decisional errors. This will take some practice, but armed with the information he received from you so far, you can see that any type of emotional reaction is potentially the cause of decisional error.

In addition to calling out decisional errors, you can slow the process down. Sometimes getting outside and walking around for a while is a useful way of getting some cognitive rest. Do not allow the process to accelerate so quickly that your client becomes overwhelmed emotionally or cognitively. Frequently, clients will leap ahead to find objections why a certain decision should not be made. As a cognitive counselor, try to maintain the decision-making one step at a time and bring your client back when he or she leaps forward.

In these situations, you will have to make an empathic connection with your client by listening, reading his or her emotional data field, summarizing the essence of what your client is saying, and labeling his or her emotional experience. When your client seems overwhelmed, have your client focus on what is really important. Most lawsuits are not life-changing. Therefore, you can ask questions about what life will look like five and 10 years ahead. Helping your client gain perspective on what is really important can be of crucial importance during the heat of a negotiation.

As I have repeatedly said, take good notes and be sure to memorialize your conversations with your client in a follow-up letter. The problem of the under settled case is growing as negotiation and mediation becomes more of a mainline practice. You will need to keep your client in line by making a written history of what happened.

Cognitive counseling is an iterative process, which means that you will repeat the same things over and over again. Sometimes it will seem like you are spinning your wheels. However, it is your repetition, patience, compassion, and understanding that will be the greatest service to your client. Your client will not remember your brilliant legal analysis. She will remember how you treated her and a very difficult and extreme moment of her life.

Remember, the best way to win the game is to call it yourself.

Better still, change the game completely.

Douglas E. Noll
Mediator, Author, and
California Lawyer 2012 Attorney of the Year
for Pro Bono Service
Creator of Negotiation Mastery for the Legal Pro –
A new online course in cutting-edge legal negotiation
legalpronegotiator.com

Portable Careers for Military Spouses

Segment 1: Ambiguous Loss: Never Any Closure.
It is rare that we think about how military life can disrupt the career aspirations of its servicemen and women and how coming home from war zones and returning to normal life is difficult for all involved. On this edition of The Doug Noll Show we speak with Stacy Swearengen, founder of www.portablecareerplanning.com, a website to help guide military spouses in their career choices and professional goals.

 

Stacy tells us that there are a multitude of unique challenges to being a military spouse, the most obvious being having to manage a household single-handedly. According to Stacy, when a spouse first leaves there is a learning curve during which you have to learn how to do everything yourself. Then you start to develop the independence, and then the spouse comes back. Finally, there’s the whole process of adjusting to them coming home. Everything feels temporary and there is never any closure. As soon as they’re gone, they’re coming back again, but even when they’re back, they’re not really back (they’re in training or on leave).

 

Segment 2: Emotional Inconsistency.

Military spouses endure great emotional inconsistency. They are very resilient --- there isn’t any choice. The homecoming is extremely emotional, and there is no routine or sense of closure.

 

Segment 3: A Portable Career.

Portable Career Planning is like a moving company for your career. A career is part of a person’s identity. We can pack up our personal things and our household belongings, but what about the intangible things? Every day military spouses choose to put other people first instead of connecting with themselves. It’s easy for them to start losing track of who they are and what they love to do. Stacy discovers what her clients’ passions are and how those passions can translate into a portable career. A “portable career” doesn’t necessarily mean you work from home. It could mean being able to move from city to city, state to state, or even country to country.

 

Segment 4: Passionate Employees.

Stacy is always on the lookout for companies that have telecommuting available or international locations. Statistics show that Military Spouses stay at companies longer than non-Military folks. Generally speaking, Stacy has found that smaller start-ups are technologically savvy and they see the benefits of flexibility or telecommuting. They just want passionate employees, they don’t care if they are military or not.

 

To listen to the entire interview:

 

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Supporting Your Boss in Negotiation

This post is about how to support your boss in negotiation.

As a young lawyer, you may not be in charge of a negotiation but may be asked to be an assistant or second chair. There is quite a bit that you can do to help the principal lawyer prepare for and execute the negotiation. The fact that you lack experience will be made up by the thoroughness of your briefing book. Your primary function is information gathering and synthesis.
While the final negotiation strategy will be developed between the principal attorney and client, to the extent that they are well informed by you, they will be that much better prepared. So your job is to put together the information, distillate, synthesize it, and presented in a way that is immediately usable.

Your secondary function is to provide devil's advocacy. You will want to take the other side and develop its negotiation strategy based on the information you have developed to date. This will, of course, require some research on the other side. Fortunately, as you have probably learned, the explosion of social media sites provides a vast amount of information on people. Spending some time doing this research can give you tidbits of information and insight into who people are, their backgrounds, and their predispositions.

The usual function of young lawyers is to do legal research until you learn more about the other skills of lawyering. That role is no different in negotiation, where you are called upon to do a thorough case analysis. This will include a distillation of the salient facts and an analysis of the law applied to those facts. This is core lawyering with which you should be very familiar.
You will also want to do a comprehensive damage analysis. Again, you will have to start with the basic remedial concepts of damages, understand the claims, and work up various damage scenarios. You may be relying upon experts for some of this information and analysis. Do not be afraid to ask them hard questions and do not be afraid to professional ignorance if damage analysis and numbers are not your thing. It is their job to educate you, not impress you with how smart they are.

Very few lawyers are familiar with decision tree analysis so you can provide a useful addition to your briefing book with a decision tree. You may not be able to build a complex tree, but that is unnecessary. If you do nothing else than assess the probabilities of for trial outcomes, you will be adding value to the briefing book.

The briefing book can be something as short as a 2-3 page memo or a binder with detailed analysis and appendices. The amount of time and effort you put into a briefing book will depend upon the nature and size of the case, the litigation case budget, and your time constraints. You will probably never be asked to produce a negotiation briefing book. However, imagine the surprise of the principal lawyer when you present a detailed briefing book for review. I can pretty much guarantee you that you will create a positive buzz about your competency as young lawyer when you do this. The briefing book should contain all of the elements that we have discussed so far. In addition it should have a blank concession strategy plan that can be filled out by the principal lawyer and the client.

You may find yourself in the interesting position of having to explain a concession strategy to them as most lawyers have no clue what they are. We will be covering concession strategies later on.
In all of this work your primary job is to learn. You will take the information you’re learning in this course and apply it on the job. You will probably see behaviors and strategies that I recommend against. Be very careful not to criticize. Simply make note of what is observed and engage in the kind of reflective practice I discussed at the beginning of this course. What you want to do is learn from mistakes of others rather than adopt those behaviors and strategies as acceptable practice.
 In addition, you will see smart negotiators. Watch them very carefully and learn as much as you can about what makes them so good. Again, having taken this course will give you insight as to why they have become master negotiators.

I cannot emphasize enough how important reflective practice as an associate is. The first five years of law practice are an intense learning experience. You have to find time to step back and reflect upon what you are learning.

•    What works?
•    What does not work?
•    What did you do wrong?
•    What did you do right?
•    What could do better?

If you do not engage in reflective practice, your education will be hit or miss. Just do it.

Remember, the best way to win the game is to call it yourself.

Better still, change the game completely.

Douglas E. Noll
Mediator, Author, and
California Lawyer 2012 Attorney of the Year
for Pro Bono Service
Creator of Negotiation Mastery for the Legal Pro –
A new online course in cutting-edge legal negotiation
legalpronegotiator.com

Preparing Clients for Negotiation

Clients have interests, needs, goals, and desires. Some of these cannot be fulfilled by the legal system. You need to help your client sort through all of this so that he or she understands what is possible through negotiation. The trick is to listen to your client deeply.
This is not a skill that is taught in law school. There are places to go to learn how to listen. I strongly recommend to young lawyers that they take a course in coaching, motivational interviewing, or the like. Learning how to probe the client's true needs and helping the client clarify them is essential in the process of preparing for negotiation.

As you prepare your client for negotiation, be sure to set clear boundaries of responsibility. Who needs to be in the decisional loop? In many cases, the settlement decision affects more than just the direct client. Make sure that you know who has to participate in the decision early on. Have all decision makers and influencers been thoroughly informed about the case, the negotiation, and a range of reasonable outcomes?

Spouses and business partners can easily be forgotten about. It is your job to make sure that they are fully informed, consistent with protecting attorney-client privilege. At the very least, you must inform your client to keep influencers up-to-date on case developments and the negotiation strategy. Again, a letter outlining all of this can be an important protection for you.

Who will be present during the negotiation? Generally speaking, you want all of the decision-makers at the negotiation if the negotiation is in the form of mediation or some other group conference. Sometimes, for strategic or tactical reasons, certain decision-makers might not be physically present. They should be available close by or available by telephone or Skype for consultation as a negotiation unfolds.

Who will have to be present to make a settlement agreement binding? Settlement agreements made during mediation are not binding unless all of the parties have signed the settlement agreement. Therefore, you must take great care to make sure that you know who will have to be present to bind everyone to a deal.

What will be the role of the client during the negotiation? This one is overlooked all the time. Most of the time, you want your client to be an active participant in the negotiation. Sometimes your client will take the lead; sometimes you will take the lead. This should be discussed ahead of time so that there is no confusion over roles during negotiations.

Another related problem has to do with personal accountability. Very few people have the courage to take personal responsibility for their actions. Many times, people will come to lawyers, hoping to shift responsibility for their actions away from themselves. In negotiation, clients are often confronted with the need to take personal responsibility for their actions for the first time. This can be a difficult pill to swallow. A conversation about personal accountability well before negotiation begins is therefore a good idea.

Some clients can become very emotional, often with ample justification. I will give you more information about emotions in the context of decision-making later on. However, recognize that all human beings are 98% emotional and 2% rational. Conflict and stress tend to shut down the prefrontal cortex and activate the emotional centers of the brain. Be prepared to deal with your client’s emotions.

Remember, the best way to win the game is to call it yourself.

Better still, change the game completely.

Douglas E. Noll
Mediator, Author, and
California Lawyer 2012 Attorney of the Year
for Pro Bono Service
Creator of Negotiation Mastery for the Legal Pro –
A new online course in cutting-edge legal negotiation
legalpronegotiator.com

 

Evolutionary Law and the Collapse of Society

Segment 1: Navigating a High Failure Rate Environment.

On this edition of The Doug Noll Show we speak with Rebecca Costa, an American sociobiologist who offers a genetic explanation for current events, emerging trends and individual behavior. Rebecca’s first book, The Watchman’s Rattle: A Radical New Theory of Collapse, questions our ability to thrive in the complex world we have created. Her website is http://www.rebeccacosta.com/.

 

When Rebecca lived in Silicon Valley in the 1980’s, she observed the exponential rate at which the pace was moving and came to the conclusion that there was little chance we would be able to keep up with that pace. She says these days we’re all struggling with a high failure rate environment. It’s difficult to sort through all the information that bombards us each day and decide what’s relevant and what’s not. The odds are stacked against us to pick the right career, the right health care program, etc. There is too much information, and the number of wrong choices is exponentially greater than the number of right choices.

 

Evolution is lagging behind what is needed to succeed in society. Our brain is not designed to deal with the complexities and the great amount of information coming toward us each day. It exceeds our physiological and cognitive ability.

 

Segment 2: The History of Human Civilization.

Evolutionary Law says we need to adapt or die. However, we can only adapt at a certain rate. Rebecca sees a consistent pattern throughout history: First civilizations hit a cognitive threshold, where the problems are beyond their “pay grade” and they become gridlocked and unable to act. Next, there is mass confusion among leadership and individuals in the society between what is an empirical fact and an unproven belief. Public policy becomes highly irrational because it’s based on unproven beliefs instead of empirical evidence. Lastly, an event comes along that “does a society in” and the society collapses. This doesn’t mean that everyone dies; it just means that the society breaks into smaller units and then starts to ascend again. This is the history of human civilization.

 

Segment 3: Insight.

So what tools do we have to prevent an ultimate collapse? Rebecca sys for the first time in human history we can use science and medicine to watch what the brain is doing. For instance, scientists recently discovered a third form of problem solving: insight. Insight is the ability to connect two pieces of data in a novel way. Scientists can now predict that a person will have an insight about 300 milliseconds before they actually solve the problem. Our brains need to be consistently exercised and “warmed up” to deal with the complex problems of our day-to-day lives, thus stalling and perhaps preventing an ultimate collapse.

 

Segment 4:  

We are dealing with environmental changes that are beyond what we’re designed to do. We are not designed to respond to a long-term threat. The solution is to try to mitigate and train and catch up the brain. We can turn to neuroscience to help us adapt at a faster rate. We can train our brains and recognize that when we have a complex problem to solve, we need to invest in multiple solutions and expect a high threshold of waste.

  

To listen to the entire interview:

 

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The Doug Noll Show Tonight Interviews International Advocate for Women Judithe Registre

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Tune in tonight to the Doug Noll Show 7pm PT. My guest tonight is Judithe Registre, the program director at Plan International USA for the Because I am a Girl campaign, which creates sustainable projects in developing countries to give girls access to the most basic of human rights: clean water, food, healthcare, education, financial security, and protection from violence and exploitation. The lines are open for your questions and comments at   877-474-3302, or Internationally, 01 858-623-0126.

http://Bit.ly/8Sf4m

 

 

The Doug Noll Show Thursday Interviews International Advocate for Women Judithe Registre

On the Doug Noll Radio Show Thursday February 21st at 7pm Pacific, Doug interviews International Advocate for Women Judithe Registre, the director of Plan International USA for the Because I Am A Girl Campaign which creates sustainable projects in developing countries to give girls access to the most basic human rights: clean water, food, healthcare, education, and protection from violence and exploitation.

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The Doug Noll Show

Normal 0 false false false EN-US X-NONE X-NONE The lines are open for your questions and comments at   877-474-3302, or Internationally, 01 858-623-0126.

http://Bit.ly/8Sf4m

 

 

Predicting the Negotiation Dance

Segment 1: Don Philbin, Master Mediator.

On this edition of The Doug Noll Show, we speak with Don Philbin, master mediator, 2011 Outstanding Lawyer in Mediation, and elected fellow of the International Academy of Mediators and the American Academy of Civil Trial Mediators. Don is also the creator of PictureItSettled,  a highly-intelligent predictive analytics software tool that guides lawyers and mediators through the negotiation process. To find out more about PictureItSettled, please see http://www.pictureitsettled.com/.

 

Don did commercial litigation for years, and then moved to corporate law. Eventually he got his MBA and ended up in management. Don tells us he did litigation and transactions for years, and it finally dawned on him that he could do them together…which is basically what mediation is: assisting people in their negotiation to put deals together instead of going to court.

 

Segment 2: 98% emotional, 2% rational.

So when we have lawyers representing parties in mediation, what’s the role of the mediator? Don tells us that the mediator is “not the other side.” The mediator comes in as a neutral third party and offers options for the two sides to explore. Well-trained mediators have studied behavioral economics, neuroscience and psychology and know how people react in stressful situations. They can help frame the issues and choices for parties.

 

Our host, Doug Noll, says we’re 98% emotional and 2% rational, and lawyers are no different. Lawyers are generally poor negotiators and are subject to the same emotional mistakes that everyone else makes. Additionally, lawyers typically do not get the appropriate negotiating training in law school. The mediator’s role is to be able to spot when cognitive and decisional errors are interfering with decision making and gently guide the opposing parties in a direction that moves them toward settlement instead of toward impasse.

 

Segment 3: The Negotiation Dance.

So what gave Don the idea that negotiations were predictable enough to analyze? He says that once you are involved in case after case, you start to notice some similarities across cases. There seems to be a social convention that progress will be in increments. People mimic each other’s behavior to a certain extent. Parties will cooperate or get competitive within their negotiation, predictably. Mediators know intuitively that there is a certain rhythm to the day, from beginning offers to the ending deal. There is a pattern to the negotiation dance.

 

Segment 4: Reducing the Emotionality of Decision Making.

PictureItSettled is a predictive analytics online software program. Once you start making moves in negotiation, the settlement profit will start to predict where the deal is going to end up. It will predict when and where the intersection will take place. Don tells us it takes 2 offers on each side before PictureItSettled has enough information to predict the outcome. Of course it gets better with each additional round. Let’s say you want to run “what if” scenarios before you make an offer. It can anticipate the actions on the other side. If you have the software, you have a good idea of where the settlement will land. It reduces the emotionality in the decision making around settling lawsuits and allows people to stay cognitively clear.

 

To listen to the entire interview:

 

Segment 1

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Assessing Intangibles

This post is about assessing the intangibles of a lawsuit and factoring them into your preparation.

The first thing to realize is that trials are beauty contests. A significant amount of social psychological research has established that jurors form opinions about the case very early in the proceedings. Jury selection and opening statements are the two most important parts of the trial. If you have not convinced the jury by the close of opening statements of the righteousness of your cause, you will probably lose. For the rest of the trial, each juror is going to use the confirmation bias to seek facts that support his or her initial belief. Therefore, you have to assess what kind of story you can tell, and how that story compares to the story that the other side is likely to tell.

You also have to assess how likable your client is and how likable the other guy is. You have to be brutally honest in this process. You want to believe your client and thinking that he or she is going to be liked. However, any warts are going to be magnified intensely in the courtroom.

You also have to assess your experience and opposing counsel's experience. In all likelihood, you have had very little trial experience. Do not be surprised if you are up against a more senior lawyer who also has very little trial experience. I have known senior partners who portray themselves as litigators who have never tried a jury trial.

Experience does count, however. So if your opponent has a lot more trial experience than you do, you have to take that into account. That does not mean that you will lose just because you lack experience. You simply have to factor in that the more experienced trial lawyer is less like to make mistakes that you are.

You can find out a lot about opposing counsel on the Internet. It is amazing what people disclose about themselves in social media, on blogs, in podcast, and videos. It is much more likely that you will get this kind of information about younger lawyers. The vast majority of lawyers in their 60s do not even know what social media is and do not want to mess with it. However, you can still research counsel through verdicts and settlements to see what kinds of verdicts, if any, they have experienced.

Another factor concerns the type of typical juror found in your jurisdiction. You need to think about your best jury and your very worst jury. Some cases lend themselves well to jury trials, while other cases would put a jury to sleep. Think about the kinds of people that live in your community, their political beliefs, their ethnicity, their religious beliefs, their interests, and their hobbies.

You also have to consider who the trial judge might be. If you have a judge assigned for all purposes, as is usually the case in federal court and in some state courts, you will have a pretty good idea of what you are facing. Make a few phone calls to colleagues about their experiences with your judge and learn as much as you can about his or her background, beliefs, biases, and attitudes. Judges are human just like everyone else and are not immune from cognitive biases and decisional distortions. The more you can understand how your judge processes information, the better you can assess what might happen in that court room.

Remember, the best way to win the game is to call it yourself.

Better still, change the game completely.

Douglas E. Noll
Mediator, Author, and
California Lawyer 2012 Attorney of the Year
for Pro Bono Service
Creator of Negotiation Mastery for the Legal Pro –
A new online course in cutting-edge legal negotiation
legalpronegotiator.com

Congress, the Constitution and the Declaration of War

Segment 1: Simply Incapable of Declaring War.

Our guest on this edition of The Doug Noll show is Dr. Brien Hallett, an associate professor at the Matsunaga Institute for Peace & Conflict Resolution at the University of Hawaii. Dr. Hallett began his career as an English professor but soon got hooked on the topic of war and peace, and ended up switching gears to attain his Ph.D. in Political Science. His latest book is titled Declaring War: Congress, the President, and What the Constitution Does Not Say.

 

Dr. Hallett tells us that the constitution says Congress should make the decision for war or peace, but that actually never happens. He thinks Congress is simply incapable. In fact, the U.S. has been unable to declare war since 1789, even though we have been involved in numerous wars since that time.

 

Segment 2: A Constitutional Duty.

Essentially the President is allowed to start a war without asking permission from Congress. If Congress actually undertook its constitutional duty to argue and debate over the declaration or war, we would have a much more public and robust discussion about whether or not we should use force.

 

Dr. Hallett believes there are two main reasons this does not happen.  First of all, for 5,000 years Kings and Emperors have made this decision. Everyone expects the war leaders to make the decision whether or not to go to war. Secondly, Congress is too large and busy, and its primary function is to pass domestic laws. It is not built to accomplish a function such as declaring war. It is simply unable.

 

Segment 3: A Fourth Branch of Congress.

If Congress is not taking on the authority to declare war, then the people of the U.S. have very little say on whether or not we use force. This is a fundamental problem and a major flaw in the constitution. Dr. Hallett thinks we should change the constitution and he is proposing removing the power to make foreign policy (and declare war) out of Congress and establishing it in an independent branch of government. This fourth branch of Congress would have 50 members and would be elected by the state legislatures. Their job would be to conduct foreign policy and review the relationships between the U.S. and countries around the world. They would identify problems early and solve them by peaceful means.

 

Segment 4: Declaring War: Congress, the President, and What the Constitution Does Not Say.

Dr. Hallett says his book is meant to be disruptive, and he acknowledges that his proposal is, currently at least, politically impossible. He is just trying to get people to consider the problem and look at alternatives. The first step is to start the debate. It is not a question of political will; it’s a question of political structure. Congress is structured so that it cannot worry about foreign affairs. It can’t do what the 2^nd Continental Congress did. That was a small group who would get together and discuss problems and find solutions. Today’s Congress is large and complicated - which is a good thing for domestic policy – but it doesn’t work for foreign affairs.

 

To listen to the complete interview:

 

Segment 1

Segment 2

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Segment 4

The Attributes of a Master Negotiator

In this post, I want to talk a little bit about the attributes of a master negotiator.
I have mediated thousands of conflicts of all different kinds, both litigated and non-litigated. I have had the opportunity to work with some truly masterful negotiators. There are some uniform attributes and characteristics that are worth keeping in mind as you develop into a powerful, kick ass negotiator.
The first attribute is to recognize that negotiation is a process, not an event. In law school you are taught that the ultimate outcome is either a verdict or a decision on appeal. The focus is on the outcome for the client and not a lot of time is spent on all the processes. Thus, the conversations are around how to avoid mistakes, how to obtain the best outcomes for clients, and the focus is on winning.
In negotiation, the outcome will be defined by how well the process is managed. Master negotiators understand that process determines outcome. Master negotiators will spend considerable time making sure that the process is functioning properly to move the parties towards settlement. In short, master negotiators focus on process.
 Master negotiators also recognize that legal negotiation involves decision-making in the face of great uncertainty and risk. For the client, the stakes of a lawsuit can be very high. No one can predict what a jury will do in any given case. Therefore, sending a dispute to trial for decision is not quite as random as a roulette wheel, but sometimes seems that way.
Master negotiators study disciplines far beyond the law. They want to understand the principles behind cognitive biases and decision-making errors. They understand that emotions drive decisions and therefore knowing about emotions in human brains is just as important as knowing about the applicable principles of law in a case.
Master negotiators also know that negotiation always contains a tension between competition and cooperation. On the one hand, negotiators wish to obtain the best outcome possible for their clients. But if they are too competitive, the negotiation will collapse in impasse. Thus, cooperation is needed. However, if cooperation is to freely given, the possibility of exploitation by the other side is always possible. The master negotiator manages that tension effectively.
The master negotiator cultivates a strategic mindset directed towards helping the client make the best decision possible with an eye towards the deep consequences of that decision in years ahead. Master negotiators recognize hardball players instantly. They have learned how to identify hardball tactics, label them, and deal with them by focusing on the process of negotiation. They do not stoop to emotional, ad hominem attacks or gratuitous comments at the ethics or behaviors of opposing counsel or parties.
Master negotiators also recognize that being a lawyer does not equate to being a master negotiator. Master negotiators have learned that law school teaches analysis based on an adversary ideology. Law school teaches students how to become appellate judges, read appellate decisions, and write appellate memorandums. Generally speaking, those skills are not used in negotiation. Although more law schools are offering elective courses in mediation and even in negotiation, these offerings are considered to be fringe courses. Many law professors do not consider the skills of negotiation to be worthy of instruction in the law curriculum.
Since so much of the law curriculum is based upon the reading and analysis of appellate decisions, litigation is taught as a zero-sum game in which there can only be a winner and a loser. In every case, law students must understand why one side lost, and the other side won. As they distill out the rules of law from the cases, they are indoctrinated in a philosophy that lawyering is about winning cases for clients. The core values of negotiation, which include cooperation, compromise, and collaboration with opposing counsel and parties are not only ignored in law school, they are disdained.
Master negotiators recognize that negotiation outcomes are not always as gratifying as trial outcomes, but neither are they as depressing. Since negotiation involves compromise, there is no high similar to the rush of winning a jury trial. In addition, lawyers do not measure themselves by their skill in negotiation. Rather, they seek reputations for toughness, trial competency, and dogged persistence against all odds. When was the last time you heard a lawyer described as a great negotiator?

Remember, the best way to win the game is to call it yourself.
Better still, change the game completely.

Douglas E. Noll
Mediator, Author, and
California Lawyer 2012 Attorney of the Year
for Pro Bono Service
Creator of Negotiation Mastery for the Legal Pro –
A new online course in cutting-edge legal negotiation
legalpronegotiator.com