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Jefferson v. Patent Trolls: Postcolonial history

In the last post, we took a look at the She-Hulk’s patent confrontation. In this post, we will move away from superheroes and look at Thomas Jefferson’s own encounter with patents, according to Jeffrey Matsuura, the author of the book Jefferson vs. the Patent Trolls.

Before we begin, it’s important to mention that Thomas Jefferson was in many ways full of contradictions, most notably as a slaveholding believer in natural rights. If Jefferson were in a comic book, we wouldn’t be sure whether he was a hero or a villain. We will see that even Jefferson’s interactions with patents were at times inconsistent.

Patent Perspective

Jefferson viewed patent rights as a means to disseminate knowledge. In other words, for Jefferson, patents provided legal rights designed to encourage collaborative creativity and place inventions into society as quickly as possible. So in exchange for accessibility to inventions, Jefferson believed in granting limited monopoly rights to inventors. With this in mind, let’s take a brief historical tour of Jefferson’s varied encounters with patents, followed by a suggestion.

Jefferson the Non-Patenting Inventor

Many of the nation’s founders were citizen scientists, and Jefferson joined their ranks as a seminal innovator. Jefferson was a polymath who not only began his career as a trial lawyer but also was an inventor of many devices, including a plow. We could apply the traditional saying to him:

A jack of all trades is a master of none, but oftentimes better than a master of one.

As a renaissance figure, when Jefferson contemplated his own innovative endeavors, he believed that inventions should be useful in daily life. For example, his plow was focused on improving farm production. He put a lot of effort into documenting his invention, complete with mathematical formulas, so that farmers could build his plow for themselves. And to make his plow accessible to all, he did not patent his invention, even though he could have thanks to the federal Constitution.

Jefferson the Influencer of Patents in the Constitution

The Constitution (drafted 1787-89) summarizes the relationship between innovation accessibility and patent monopoly. Within Article One, the obligation of the government is to “promote the progress of…useful arts, by securing for limited times to…inventors the exclusive right to their respective…discoveries.” Although Jefferson was in Paris as Minister to France (1785-89) when the Constitution was drafted, it’s thought that he had an influence on its drafting based on his correspondence.

The Constitution tells the government what it is supposed to do but does not say how patent rights are to be implemented. As we will see next, Jefferson played a large role in defining that implementation when he returned to the US.

Jefferson the Patent Examiner

After Jefferson returned from France, he was appointed the country’s first Secretary of State (1790-93) by George Washington. In this role, he was an examiner of patent applications. As a patent examiner, he rejected some patent applications due to what he perceived as a lack of social benefit. For example, he thoroughly examined a sailing vessel’s onboard desalination system to provide drinking water for sailors. But he did not grant a patent because he was skeptical that this invention was the most effective system possible.

As a patent examiner, Jefferson felt the friction between ensuring that an invention deserves patent protection and lacking sufficient time to review a patent application. While Jefferson leaned towards a thorough review process, a simple registration process was implemented after 1793 that generally granted allowance to all patent applications, leaving it up to the courts to resolve patent validity. Eventually, in 1836, the patent system that we generally recognize today was enacted that created a balance between the prior registration slackness and Jefferson’s earlier examination strictness.

Jefferson the Alleged Patent Infringer

When Jefferson retired as the third US president in 1809, he returned to his plantation at Monticello. Later, he installed a new flour mill, which caused Jefferson to experience firsthand the tension between providing inventors enough incentives to disseminate their knowledge and giving patent owners too much power that effectively prohibits society’s use of inventions. Specifically, in 1813, Jefferson and other farmers were accused of using milling technology that was patented by Oliver Evans. Jefferson strongly objected to the validity of Evans’s patent, which was ironic because Evans’s patent was the third US patent ever granted—by Jefferson himself back in 1790. So Jefferson originally granted Evans the patent rights that, years later, Jefferson said were improper when he was accused of patent infringement.

Just to be clear, despite the title of Jeffrey Matsuura’s book, Oliver Evans was not a patent troll under a modern definition of that term. For example, although Evans did not sell mills, Evans’s invention was a practical improvement to milling, as opposed to being directed to a separate technology that mills utilized. So under today’s standards, Evans’s patent infringement claim would likely have been considered defensible, as the arguments against Evans’s patent had more to do with what was patentable in the early nineteenth century, as opposed to how Evans was asserting his patent rights.

Jefferson the Patent Licensing Negotiator

When Jefferson was president (1801-09), he negotiated the doubling of the size of the country with the Louisiana Purchase. So it should be no surprise that Jefferson was a skilled negotiator, who used those skills to resolve his dispute with Evans. Despite their differences, Jefferson and Evans were willing to communicate directly with each other to try to reach a resolution. In 1814, Jefferson explained to Evans his position that Evans’s patent was not novel based on Jefferson’s interpretation of patent law. Evans had an impassioned response explaining to Jefferson his business difficulties of monetizing his invention. Jefferson and Evans listened to each other carefully and eventually resolved their differences outside of the courtroom when Jefferson acquired a license from Evans that ended the litigation.

Super Listening Suggestion

The title of the book Jefferson vs. the Patent Trolls has a comic-book sound to it, but of course it’s not about superheroes. It’s clear that Jefferson did not have superpowers, as explained in the book Thomas Jefferson: The Art of Power. The author, Jon Meacham, describes Jefferson as “a breathing human being who was subject to the passion and prejudice and pride and love and ambition and hope and fear that drive most other breathing human beings.”

Yet the author points out that Jefferson developed one particular skill to an almost super level. That skill was listening, a skill that we can all improve. Jefferson recognized early in his political career that he was not a compelling public speaker, and so he overcame his speaking deficiencies by developing his listening abilities. He became attentive to others by caring about their perspectives. Thus he guided conversations to topics that he knew were interesting to others, and then followed their thoughts wherever they led.

Everyone likes to be heard, and we can all learn from Thomas Jefferson’s dedication to improve listening. In this way, we can strive to become super listeners ourselves.

Image: “freemont troll” (CC BY-ND 2.0) by MFer Photography.

Source: Matsuura, Jeffrey H. Jefferson vs. the Patent Trolls: A Populist Vision of Intellectual Property Rights. University of Virginia Press, 2008.

Source: Meacham, Jon. Thomas Jefferson: The Art of Power. Random House, 2013.

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She-Hulk: Patent smash!

Like it or not, the Incredible Hulk smashes stuff. The Hulk at his core wants to defend the innocent from harm, but he also causes an enormous amount of suffering as he lays waste to anything in his berserk path. Patent litigation can feel like a collision with the Hulk. Both patent owners and alleged infringers will often feel smashed by patent litigation, regardless of who prevails. As patent litigation plods forward, it can abruptly careen out of control in startling ways. It’s kind of like the Hulk, who gains more gamma-radiation strength the angrier he gets. And like litigants trying to manage patent proceedings, Bruce Banner (the Hulk’s alter ego who is a brilliant scientist) cannot constrain the Hulk no matter how hard he tries.

Would you have guessed that Bruce Banner’s cousin, Jen Walters, became embroiled in patent litigation? By day, Jen is an attorney juggling client matters, but off the clock she’s the She-Hulk kicking bad guy you-know-what. While the Hulk behaves as a raging brute, Jen retains her intelligence and controls her temper as the She-Hulk, who gained her gamma powers from a blood transfusion with Bruce.

In the graphic novel, She-Hulk: Law and Disorder, Jen agreed to represent a patent owner, a widow of an independent inventor. The emerald heroine thought that she could quickly negotiate a settlement with the alleged infringer, the distinguished Tony Stark of Iron Man fame. However, Jen didn’t get to meet with Tony. Instead she was intercepted by Tony’s lawyer, who gave her the run-around. Jen abandoned negotiations, saying, “I’ll just see you in court.” But in court, things did not go well for Jen as she got inundated with motions from her opposing counsel, and each motion required her response. Later, the jade giantess felt discouraged and confided to her client, “I was thinking that the scope of this thing is getting a little out of control—I thought this would be a two-minute chat with Tony Stark.”

Disagreeing Without Being Disagreeable

Before the chaos began with out-of-control scope, the She-Hulk had the right idea to try to negotiate early. But if she had followed the Understanding Method of conflict resolution promoted by Gary Friedman, her goal would have been more than just a two-minute chat. If she and her client had really desired to understand the problem and work to a solution, three discussions could have occurred in patent mediation. Patent mediation can be especially effective when attorneys, managers, and technologists all participate to discuss law, business, and technology.

First, Discuss the Applicable Law

With the Understanding Model, the first discussion is about the law. For the She-Hulk, this discussion would focus on intellectual property. As Gary Friedman points out, the purpose of discussing the law is for the attorneys to educate the managers about the impact of the law on their case. This discussion is preferably done in three stages:

  1. Each attorney explains the strengths of each side’s legal position. The emphasis here is the impact the law will have on the parties, more than the substance of the law.
  2. Each attorney then explores the risks of each side’s legal position. This makes the law understandable for the managers who are already experienced with SWOT to strategically analyze business weaknesses.
  3. Next, each attorney describes the practical consequences of going to court if an agreement is not reached. Often, this is a description of the costs to attempt to reach a favorable ruling.

This systematic legal conversation could have provided the She-Hulk with an opportunity to share with her opposing counsel a cooperative, rather than an adversarial, view of the legal reality facing her client and Tony Stark. Such a cooperative view would have helped her client and Tony find a mutually favorable outcome.

Second, Discuss the Business Issues

After the managers understand the legal realities facing their companies, they discuss their business realities. Depending on the relationship between the parties, this discussion can take many forms, as mangers explain their business situation to each other. For the She-Hulk, her client could have explained to Tony Stark that she was in possession of additional repulsor technology from her deceased husband, and that she would like to license the trade secrets to Stark Industries, which could have significantly benefited Iron Man.

Third, Discuss the Technology

In patent mediation, it is not enough to understand the legal and business realities. Everyone should also understand the realities around the technology. To do that, technologists from both companies meet together to understand the technologies as presented in the patent disclosure and as implemented in the alleged infringement. In the She-Hulk’s case, there was a lot to understand around the repulsor technology that technologists could have clarified.

Negotiate Based on Understanding

After these three discussions have occurred, the parties can negotiate together to find a resolution. Of course, this patent mediation process is significantly longer than a two-minute chat that the She-Hulk had anticipated. While the process may appear time consuming, it could have avoided her client’s courtroom confrontation and empowered her client to determine beneficial settlement proposals.

Calm the Rage

Patent litigation is hard on everyone, even for someone as tough as the She-Hulk. Before getting too entangled in such a clash, it is prudent to try to reach an agreement through patent mediation as early as possible. But even with early mediation, both plaintiffs and defendants may feel Hulk-like rage at the patent enforcement process. Please remember that while patent litigation is often a grueling course of action to have a patent case decided, our patent system has historically been a world-class empowerment of citizens from all walks of life to be inventors. According to Marshall Phelps, a former VP at Microsoft:

The world’s first democratized patent system bequeathed to us by our Founders was the crucial engine that powered our industrial growth in the nineteenth century and made us the preeminent economic super power that we are today.

Speaking of our country’s Founders, in the next post we’ll look at a Founder’s own ravaging encounter with alleged patent infringement. His name? None other than Thomas Jefferson.

Image: “Universal She-Hulk” (CC BY 2.0) by JD Hancock.

Source: Friedman, Gary, and Jack Himmelstein. Challenging Conflict: Mediation Through Understanding. American Bar Association, 2008, pp. 137-69.

Source: Phelps, Marshall, and David Kline. Burning the Ships: Intellectual Property and the Transformation of Microsoft. Wiley, 2010, pp. 153-67.

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Everest: Traverse intellectual property licensing routes

“Yeah, mate, I know, but you’ve got to keep on moving.” These were the words from Mount Everest’s Basecamp to Rob Hall, an expedition guide who was out of reach of rescuers. Rob had radioed that his hands were freezing and that he had to de-ice his mask. Basecamp, searching for ways to get Rob to safety, responded, “That’s good, you’ve got to get that mask working; the sun’s going to come up, you know; you can get warmer, you can get moving.” Alone and having expended all his energy to assist a fatigued client who did not survive, Rob now needed assistance himself. After determining that Rob was taking shelter in a depression at an outcrop just below the south summit, Basecamp implored, “All right, you can do this. You’ve just got to pull yourself out of that dip and slide the rest of the way. You’ve just got to come on down, mate. Come on down.”

The film Everest depicts this heartbreaking communication as well as the next day’s tender farewell between Rob and his pregnant wife patched in from home. As imperiled as Rob was by an immobilizing blizzard, words of hope nevertheless permeated the radio waves. Not only did Basecamp and Rob’s wife send encouragement to try to keep Rob alive, but Rob himself conveyed hope to his wife when he rasped, “I love you–sleep well, my sweetheart–please don’t worry too much,” as he signed off before his second and permanent night a hundred meters below the mountain’s summit.

Tie in to the rope of hopeful thinking

Hope is more than just wishful thinking. To use mountain climbing as a metaphor, hopeful thinking involves choosing your desired destination, believing you are capable of selecting a route to reach that destination, and having the self-determination to persevere in your traversal of that route. These three elements are described by C.R. Snyder with hope theory:

  • Goals (destinations) – Knowing where you want to go
  • Pathways (routes) – Staying flexible and figuring out alternative ways to get to your goal
  • Agency (determination) – Believing in yourself to achieve your goal and tolerating disappointments along the way

You can think of hope theory as a climbing rope that you can tie in for safety by setting a goal to pursue, visualizing different plans to guide you there, and resolving to make strategic changes to stay on course as you overcome obstacles and challenges.

Route selection for intellectual property licenses

Although scaling the world’s highest peak is an extreme example, it can inspire us to apply hope theory to negotiating IP licenses for technology transactions. In its most simplistic form, IP licensing can be thought of as paying for a permission. For example, a patent license can grant permission to use a patented invention in exchange for a royalty payment. In negotiations, both parties to an IP license are determining the valuation of the IP, as can be seen from the equation: permission = payment.

Unlike Mount Everest, which has few routes to the summit, you have the flexibility to define permissions and payments your way to meet your business aspirations. For example, you can define how the IP will be implemented (field of use), how long a license will last (duration), and what will happen to new ideas (improvements). In other words, there are many routes to an IP deal that gets you to your licensing destination.

Licensing flexibility is good news because IP is meant to foster innovation, and you can be innovative with each IP license. To use hope theory’s terminology, there are many pathways in the terms and clauses of an IP license, and your passion for innovation gives you agency to propel you toward your goal of an IP deal. So, stay hopeful in negotiating a technology transaction as you confidently assess workable routes to making an innovative deal that grows your business.

Pack hope theory to reach ambitious heights

Mount Everest is unattainable for most of us, but if you enjoy hiking in nature, then it is useful to follow the Survival Rule of Threes. Basically, this rule can help set priorities when lost in the wilderness. The numeral three is a memory aid for the rule that you won’t survive three minutes without air, three hours without shelter from extreme cold or heat, three days without water, or three weeks without food. We can add one more component to this rule: you won’t survive three seconds without hope. Whether you are navigating wilderness hikes or negotiating technology transactions, start your journey to success by packing hope theory’s goals, pathways, and agency with your gear.

Image: “Everest” (CC BY 2.0) by Mário Simoes.

Source: Snyder, Charles R. Handbook of Hope: Theory, Measures and Applications. Academic Press, 2000.

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Inside Out: Family meetings avoid putting the foot down

Family meetings are more than just a way to promote cooperation and joint decision making. Family meetings also provide an opportunity to respectfully discuss family disagreements and negotiate solutions. In the meetings, each family member is given time to talk and everyone else listens to understand each other. Most importantly, family members get to share with each other the emotions that they are feeling.

Dinner disaster: The foot is down!

Disney’s movie Inside Out shows what can go wrong when family members do not share how they are feeling. While sitting down to dinner, we get to look into the mind of eleven-year-old Riley as well as the minds of her parents. Each mind has a headquarters with a console operated by five Emotions: Joy, Sadness, Fear, Anger, and Disgust. Dinners with this family are usually fun and friendly. But this mealtime Riley is being sarcastic because Riley’s Joy and Sadness are absent from her headquarters, leaving Riley with just her Disgust, Fear and Anger. Mom’s Emotions, led by her Sadness, want to get Dad involved in the dinner conversation to figure out what is wrong with Riley, but he is slow to respond. That is because Dad’s Emotions are distracted watching a hockey game.

In Dad’s headquarters, Dad’s Anger notices Mom’s signals and says, “Uh-oh, she’s looking at us,” while clicking off the hockey game. Dad tries to pay attention and asks Riley about school, but Riley gives a dismissive response. Dad’s Fear reports, “Sir, she just rolled her eyes at us” and Dad lets Riley know that he doesn’t like her attitude. In Riley’s headquarters, Riley’s Anger is getting hot and says, “Oh, I’ll show you attitude, old man,” and Riley accusingly tells Dad to leave her alone. Dad’s Fear reports “high level of sass” and sounds the alarm as Dad’s Emotions prepare to “put the foot down.” Dad starts to lecture Riley.

Riley’s Anger yells, “You want a piece of this, Pops?” and Riley tells Dad to shut up. In response, Dad’s Anger commands “Fire the foot!” as Dad tells Riley to go to her room. Riley briefly looks surprised, then leaves the table. Dad’s Fear exclaims, “The foot is down! The foot is down!” while Dad’s Emotions cheer. Dad’s Anger praises his Emotions saying, “Good job, gentlemen, that could have been a disaster.” Mom’s Emotions all moan, and Mom’s Sadness sighs, “Well, that was a disaster,” as Mom hears Riley’s bedroom door slam.

Learning to manage conflict

What happened in this family? It’s helpful to understand their conflict by using Joyce Hocker and William Wilmot’s definition of conflict from their book Interpersonal Conflict. The authors think of conflict as having five components:

  1. Interdependence: The behavior of one affects the other.
  2. Difference: A perceived difference that is going to bother somebody.
  3. Opposition: Frustration of the goals of at least one person.
  4. Expression: Someone has to act in a way so that the conflict is visible.
  5. Emotion: There is always some level of negative emotion, typically anger, in a conflict.

Feelings aid reasoning

Focusing on the last conflict component of emotion, the movie portrays anger as controlling Riley and her Dad. This makes the dinner scene an example of what can happen when anger is at the console. Everyone knows that the improper expression of anger can cause irreparable harm in close relationships. However, as Antonio Damasio points out in his book Descartes’ Error, reasoning without emotions can actually cause more harm than when emotions run free. Here’s how the author describes Descartes’ alleged error of separating feelings from reasoning:

When emotion is entirely left out of the reasoning picture, as happens in certain neurological conditions, reason turns out to be even more flawed than when emotion plays bad tricks on our decisions.

In other words, feelings are not a luxury, but a necessity. They are necessary to be able to predict the future and plan next steps, which are essential to navigating through any problem presented in a conflict. How then should you deal with negative emotions when you are in conflict? The answer isn’t easy, but is worth the effort. Rather than mindlessly reacting, notice your emotions and let them aid your reasoning to think through your options and choose the best course of action.

Express feelings rather than act them out

As shown at the end of the movie Inside Out, Riley’s family reached intimacy when they shared with each other their feelings. Riley felt sad, and had acted on this feeling by running away. But when she returned home, she shared with her parents her feeling of sadness. Her parents then shared how they too felt sad. But, unlike Riley’s family who waited until the end of the movie, you can start expressing feelings now by putting on your family’s calendar a regularly scheduled family meeting that is a safe place to discuss conflicts between family members and to take turns sharing emotions.

Image: “Big Foot!” (CC BY-ND 2.0) by Craig Sunter.

Source: Damasio, Antonio R. Descartes’ Error: Emotion, Reason, and the Human Brain. Putnam, 1994.

Source: Hocker, Joyce L, and William W. Wilmot. Interpersonal Conflict. W.C. Brown, 1978.

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Study shows internships are beneficial career experiments

In an earlier post, I offered some insight to anyone who may be considering going to law school. In this post, I am following up with general advice to college students who are looking at their career options. But first, let’s take a look at some career news.

University of Wisconsin’s study of summer internships

According to the Wall Street Journal, a study by the University of Wisconsin shows that summer internships may be more beneficial at landing a job than a business degree. The outcome of the study is that employers give more weight to real-life experience than to classroom achievements. Specifically, a summer internship is estimated to increase the odds for a job interview by 14%. This boost in employment opportunity occurs even if the internship was listed on a resume five years prior.

If you are a college student who is thinking about an internship, here are my recommendations that you can keep in mind as you explore career options.

Career advice for college students

1) Don’t hate what you do

It’s good to know that getting practical experience is beneficial for the job search, because I think practical experience is a critical step as part of the career determination process. I encourage people to try something out before making a significant educational investment. For example, if someone is hoping to become a physician, I would want that person to make sure that interacting with patients is enjoyable. Ultimately, no matter when it happens, if you realize that you don’t like what you do, it’s time to move on to something else. Figuring out what you don’t want to do, even if you’re far along on a career path, is part of your self-discovery process.

2) Do what you’re good at doing

A career choice is often hiding in plain sight. You need look no further than what you are good at doing. As long as you don’t hate it (see step 1), if you are good at the work, you will probably find fulfillment and meaning as you shape your career around your gifts and talents. Sometimes, people are so good at something that they assume that anyone can do it because it is so easy for them. Focusing on what comes easily for you will allow you to build a vibrant career that plays to your strengths over your weaknesses.

3) Get paid

An internship provides a learning experience that lets you figure out if you are good at something before investing a lot of time and energy in a narrow field. That being said, you should always be targeting earning a decent wage no matter how much you want to do the work. I am wary of employers who are looking for free labor rather than improving their industry by offering solid mentoring. Even if you are paid a fixed salary, calculate your hourly wage to make sure you are not working beneath your earning potential. If you are doing an unpaid summer internship, you might want to consider negotiating working a few days a week, rather than the whole week. This will free your time to earn money in a paying job or to do other activities related to the profession that you are exploring.

4) Be passionate about the company

Job announcements often state that an employer is looking for a passionate applicant. I recommend flipping this on its head, and looking for employers who are passionate about improving society through services and products. An employer’s mission statement should be something that makes you proud. The CEO should be someone you want to follow. Your supervisor should be someone you want to help become great. Fellow employees should be fun to work with. These are examples of qualities you want to look for as you map your skills to a possible job.

5) Enjoy your hobbies

If you’ve read the book The E-Myth Revisited by Michael Gerber, you’ll know that one of the ways to start disliking what you love to do is to launch an entrepreneurial business. While you may be able to convert work that you love into a business, it is probably best to save your passion for a hobby. This allows you to enjoy the work without the stress of administration and marketing. While we are talking about hobbies, I encourage university students who are choosing a major to imagine whether they would enjoy what they are learning after they retire. I think a college major should be something you think you will enjoy independent from career prospects. Furthermore, if you have a choice, your major should lean towards the liberal arts as much as possible, because ultimately, college is about learning how to think. You can always acquire practical skills later with electives, certification programs, and internships. But learning how to think through intensive reading, writing, and speaking is best learned while in college.

Start exploring now

Thomas Edison demonstrated that to discover what will work, you have to eliminate what won’t. Internships and other practical experience can help you figure out what will work for your career path. When it comes to career exploration, there is no time like now to start. As entrepreneur Jen Groover recommends, have more fear of regret than failure. To further inspire you, here’s a quote from Jen’s book What If? & Why Not? that she attributes to Ralph Waldo Emerson:

Do not be too timid and squeamish about your actions. All life is an experiment. The more experiments you make the better. What if they are a little course, and you may get your coat soiled or torn? What if you do fail, and get fairly rolled in the dirt once or twice? Up again, you shall never be so afraid of a tumble.

Image: “Test Tubes” (CC BY 2.0) by Shaun Fisher.

Source: Nunley, John M, Adam Pugh, Nicholas Romero, and R A. Seals. “College Major, Internship Experience, and Employment Opportunities: Estimates from a Résumé Audit.” Labour Economics. 38 (2016): 37-46.

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Bridge of Spies: Pre-mediation conference avoids being left out in the cold

In Stephen Spielberg’s movie Bridge of Spies, Tom Hanks portrayed Jim Donovan, an attorney who engaged in an historical negotiation. During the Cold War, Jim was enlisted by the CIA to be the negotiator in an exchange of accused spies. This exchange took place on the Glienicke Bridge spanning between East Germany and West Berlin. However, before the prisoner exchange occurred, Jim had to enter into negotiations with the USSR and East Germany. These negotiations had a frosty start.

As portrayed in the movie, the negotiations were preceded by Jim’s sleeping in a damp and cold cottage on the outskirts of West Berlin, instead of in a welcoming and warm hotel. On February 3, 1962, the day Jim was to make contact with his Soviet counterpart, he walked alone through the icy streets of East Berlin, only to be robbed of his overcoat before finding his way in the snow to the Soviet embassy. There, while trying to regain his composure and warmth, he was accosted by a cacophony of confusion from three KGB imposters who claimed to be the relatives of Rudolph Abel, the accused Soviet spy. Jim quickly realized that the clamorous family was fake. While Jim needed to overcome his body’s chill, he did not lose his cool as a negotiator.

Pre-mediation conference call is a warm up for negotiation

This movie scene illustrates the importance of pre-mediation conference calls. The purpose of having a phone call with a mediator is to remove as much uncertainty about the negotiation process as possible before the mediation begins. In the movie, Jim would have benefited from a call with a mediator to at least discuss with whom he was negotiating, confirm the exact time and place of the meeting, and receive specific directions to the conference room.

A goal of a pre-mediation conference call is to start a mediation with everyone being prepared to work hard and put their best thoughts forward. To reach this goal, here is a brief checklist of things that you can expect to be covered in a pre-mediation conference call:

  • Disclosure of any issues uncovered during a mediator conflicts check.
  • Explanation of the case status, such as last offers made.
  • Format of mediation, including expectations and goals.
  • Exchange of documents, including submission of summaries to the mediator.
  • Listing of who will participate in the mediation.
  • Description of any telephonic attendance requests.
  • Time and place of the mediation session.
  • Arrangement for snacks or meals and a discussion of any special accommodations due to health or schedules.
  • Decision of what each party is to bring as support materials.
  • Confirmation of mediator compensation.

The pre-mediation conference call addresses issues in advance so that, once the mediation session starts, everyone can focus on reaching a settlement. In other words, think of the pre-mediation conference call as a time to become educated about the upcoming mediation.

Advice from JFK about difficult negotiations

While we are thinking about the Cold War, it’s good to remember a quote from John F. Kennedy, who was president during Jim’s negotiations. JFK admonished the nation in his inaugural address:

Let us never negotiate out of fear. But let us never fear to negotiate.

Just as the Glienicke Bridge spanned the Havel River between West Berlin and East Germany, mediation is a process that can help parties span the dispute that is between them. Because the process is voluntary, even if a court orders parties to mediation, they don’t have to settle. To take JFK’s advice, knowing that you have control over your negotiated decisions, you don’t need to enter into mediation in fear. Nevertheless, because mediation is a confidential process that enables you and the other party to make informed decisions, you also don’t need to fear offering proposals that meet your needs. It’s as good a time as any to imitate Jim Donovan’s savvy determination to reach an agreement that you can live with and that puts the dispute behind you.

Image: “Bridge of Spies” (CC BY 2.0) by David Stanley.

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Pirates of Penzance: A most ingenious conflict paradox

In Gilbert and Sullivan’s comic opera The Pirates of Penzance, Frederic, a pirate apprentice, was faced with a “most ingenious paradox.” A paradox is a situation with two competing sides that appear as a contradiction. The Pirate King explained the paradox to Frederic. Frederic was bound by contract to serve the Pirate King as an apprentice until he reached his “twenty-first birthday.” But Frederic was born on a leap day, the 29th of February that only appears on the calendar every four years. So although Frederic could count 21 years of his life, he could count only 5 birthdays. His paradox was that his age was 21 and 5 at the same time, depending on the method of calculation. Here’s how Frederic explained his situation:

How quaint the ways of Paradox!
At common sense she gaily mocks!
Though counting in the usual way,
Years twenty-one I’ve been alive,
Yet reckoning by my natal day,
I am a little boy of five!

This paradox placed Frederic in a conflict with the Pirate King over the interpretation of the contract that defined his freedom. When we are in conflict, we may also experience our own paradoxes. In fact, Bernard Mayer describes seven conflict paradoxes in his book, The Conflict Paradox. Let’s take a look at these through Frederic’s eyes.

1) Competition & Cooperation Paradox

In negotiation, offers can be considered either competitive or cooperative. For example, when Frederic was faced with the news that his indenture with the pirates was to last another 63 years, he took a cooperative approach by playing nice and asking, “You don’t mean to say you are going to hold me to that?” He sought to cooperate with the Pirate King to find a solution. In contrast, when Frederic’s love interest, Mabel, got the news, she took a more competitive stance by acting tough and asserting that the pirates “have no legal claim.” She appeared ready to challenge the pirates. Choosing between competition and cooperation can be a tricky balancing act. As Bernard Mayer teaches, cooperation tends to yield better results, yet without competition there may be no motivation to cooperate. In this case, Frederic would have benefited from balancing his cooperative approach with Mabel’s competitive approach, rather than simply telling Mabel that “when Duty calls, I must obey.”

2) Optimism & Realism Paradox

An optimist may be confident that everything will work out. A realist might say, “Don’t believe everything you think.” Bernard Mayer points out that optimism without realism is not meaningful, while realism without optimism is a dead end. When motivated by optimism and guided by realism, one can wrestle with uncertainty and doubt. In Frederic’s case, he displayed optimism with laughter as the Pirate King described the paradox. But the optimistic outlook soon vanished when Frederic was faced with the reality of his contract with the Pirate King, leaving Frederic in a state of confusion. Bernard Mayer recommends approaching such confusion under the assumption that a way can be found forward that will make a difference, but with the full knowledge that there is no guarantee that there will be a successful conclusion to the conflict.

3) Avoidance & Engagement Paradox

We pick our battles by choosing to raise a conflict or ignore it. Before learning the news about his contract, Frederic enlisted the police to hunt down the pirates. Mabel tried to encourage the police to engage against the pirates by exhorting, “Go, ye heroes, go to glory, though you die in combat gory.” In comic display, the police avoided the pirates by staying in place while saying, “Yes, yes, we go.” Such avoidance, while frustrating to Mabel, may have been the prudent course of action in this case. For example, Bernard Mayer recommends waiting a bit before confrontation and, in the meantime, asking for more information in order to prepare for constructive engagement when the time is right.

4) Principle & Compromise Paradox

Compromising on principles can be considered cowardly, while being unwilling to compromise for practical reasons can be considered arrogant. Bernard Mayer recommends that in order to advance our principles that are based on our most important values and beliefs, we have to be willing to compromise on those principles. He put it another way with the phrase: Never let your values get in the way of doing what is right. Frederic would have benefited from this advice. Instead, he clung to the principle that “duty is before all—at any price I will do my duty.” In contrast, Bernard Mayer might have told Frederic that his approach to conflict could have improved by distinguishing interests from principles.

5) Emotion & Logic Paradox

Traditionally, emotion and logic are kept separate under the belief that logic is an aspect of the left-brain and emotion is an aspect of the right-brain. However, Bernard Mayer believes that emotion and logic are best integrated as part of the same conflict resolution process of expression and analysis. For Frederic, he logically told Mabel that he will return to her in 63 years, while Mabel responded emotionally (and accurately), “It seems so long!” Frederic would have benefited by integrating some of Mabel’s emotional expression into his own logical analysis.

6) Neutrality & Advocacy Paradox

While most disputing parties are willing to have a neutral third-party assist with conflict resolution, parties ultimately hope that a neutral third-party will be an advocate for their position. In Frederic’s case, Mabel went to the Sergeant of Police and imploringly advocated that Frederic was acting nobly by returning to piracy, because of his “heroic sacrifice to his sense of duty.” Comically, the Sergeant wanted to concur, but he did admit, “This is perplexing.” Bernard Mayer acknowledges the perplexing nature of the tension between neutrality and advocacy, especially in relation to the contrasting styles of transformative and evaluative mediation.

7) Community & Autonomy Paradox

Bernard Mayer defines community as interdependence with others in our lives and autonomy as independence with individuality. Both community and autonomy give one a sense of identity of who one is. Frederic wanted his autonomy by breaking free from the pirates. He explained, “Individually, I love you all with affection unspeakable; but collectively, I look upon you with a disgust that amounts to absolute detestation.” Bernard Mayer explains that both community and autonomy are necessary in life. Specifically, independence is established by having a healthy attachment to others, and one can become truly autonomous by having a healthy network of social relationships. Of course, Frederic recognized that his relationship with the pirates was unhealthy, and so he attempted to free himself from them.

Taste for paradox

Before Frederic was faced with his paradox, Mabel’s father, Major-General Stanley, introduced himself by asserting that “I am the very model of a modern Major-General.” He further exclaimed that “I’ve a pretty taste for paradox.” Bernard Mayer shows his taste for paradox by saying that both sides of a conflict paradox “are not really polarities” because “each element of the paradox is dependent on the other.” Bernard Mayer acknowledges that finding the unity of each polarity is difficult to do, but teaches that “embracing paradox is a core method of dealing with conflict.” Have you ever dealt with conflict by embracing a paradox?

Image: “Jolly Roger Pirate Grunge Flag” (CC BY 2.0) by Nicolas Raymond.

Source: Mayer, Bernard S. The Conflict Paradox: Seven Dilemmas at the Core of Disputes. Jossey-Bass, 2015.

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Elaine Stritch’s Shoot Me: Giving up the car keys

For an elder, few things are as symbolic of the loss of freedom as the phrase “giving up the car keys.” Elaine Stritch illustrates this well in her documentary Shoot Me, filmed when she was 86 years old. At the beginning of the documentary, it was clear how full of life she was walking the streets of New York City. She trotted on the sidewalks with driven determination, pausing along the way to engage with fans who recognized this Tony Award winning Broadway legend. And, as she connected with passersby, she delivered witty remarks that indicated that she not only was a master of active listening but that her mind was sharp as a tack.

Yet, before these introductory Manhattan neighborhood scenes, even before the opening credits, Elaine was filmed in her apartment responding to a question about how she felt about her life at age 86. She emphatically stated with her saucy voice:

Look. I’ve got a certain amount of fame. I’ve got money. I wish I could [expletive] drive! Then I’d really be a menace.

For Elaine, who was bounding with energy at 86 years old, she was frustrated at having to give up the car keys. Considering the sense of isolation and dependency that comes from not being able to drive, giving up the car keys can feel like a devastating experience.

Transparent conversations with Elaine Stritch

If the name Elaine Stritch does not sound familiar to you, you may recognize her from her guest appearances on 30 Rock as Jack Donaghy’s mother. For theatregoers, she is famous as the grande dame of Broadway musical comedies featuring songs from Stephen Sondheim. In her documentary, she reprised those Sondheim songs in cabaret shows while occasionally forgetting her lyrics. Despite her memory lapses, she connected with her audience to the envy of any attorney attempting to connect with a jury.

In her documentary, for example, a reviewer of one of her performances writes: “The mere presence of this lean, glaring lion of a woman said everything about resilience, feisty determination, and the will to continue. Almost any other performer would probably throw in the towel, but a trouper grits her teeth and plunges ahead, trusting in her survival instincts to carry her through any crisis. That is exactly what Ms. Stritch did, to wild acclaim.” To see an example of her classy determination to push through her forgotten lyrics, watch her performance of I’m Still Here sung at the White House.

The documentary showed much more than just Elaine’s stage presence. It also chronicled her daily struggles with diabetes and alcoholism. For example, after being rushed to the hospital due to a sudden drop in blood sugar, Elaine described what it was like when she was physically unable to talk, yet her mind was fully engaged. Throughout the documentary, her transparency allowed the viewer to journey alongside her as she dealt with the advances of age.

Transparent conversations uncover interests beneath positions

Transparent conversations don’t have to be limited to up-close and personal documentaries. Transparency can be between adult children and their parents by participating in family facilitation. Like Elaine sharing with the camera about her hopes and fears, in facilitation an elder parent can intimately share with his or her family the emotions of aging. Similarly, strained sibling relationships can be eased when an adult child shares with other siblings concerns about what is often called “caregiver burnout.” With the goal of planning for the right level of care, families can collaboratively make tough decisions that come along with aging.

A family meeting with a facilitator can be effective because it enables families to go beneath the surface and uncover what is important for each family member. As an elder parent enters a life transition, families can go beneath positions and uncover interests. In the classic book Getting to Yes, Roger Fisher and William Ury explain that positions are things you want, while interests indicate why you want it or think the way you do about it. Often, families will get stuck in arguments over declared positions. Family facilitation can help preserve family ties by having difficult conversations that recognize and satisfy interests. For example, an adult child might take the position that the elder parent must no longer drive. By exploring why the adult child has taken this position, and why an elder parent needs access to transportation, solutions can be explored that balance the twin desires of safety and independence. While this type of collaborative dialogue may take time, understanding what is important to everyone is time well spent to reach family decisions based on mutual understanding.

Cheering “Bravo!” for aging parents

Elaine helps us understand her views of aging when she explained:

I like the courage of age. And Bette Davis said it better than anyone, you know? Not for sissies. Getting old is not for sissies. And I never liked the word ‘old.’ I like ‘older.’ I’m getting older every single day, and so is everybody else. So we’re all going together. Ba-boom, ba-boom, ba-boom. And why not enjoy it? ‘Cause there’s not a [expletive] thing you can do about it.

Similar to Elaine looking ahead to her life’s curtain call with brave honesty, elder parents can map out their plans for what they still want to accomplish. Family facilitation can strengthen family bonds by uncovering dreams as well as recognizing vulnerabilities. By engaging in family discussions, adult children can help their parents cast themselves in their life’s scripts and understudy Elaine by living life with pizzazz.

Image: “Taxi” (CC BY-ND 2.0) by Nick Harris.

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Law School: Attaining a license to serve

According to Bloomberg Business, law schools are receiving fewer applications from prospective students, resulting in law schools having to choose whether to reduce their class sizes or lower their admission standards. It appears to be getting harder for prospective students to make the financial and time commitments required by law school. This news report reminds me of when I was a first-year law student (what is called a “1L”). Back then, my law school’s admissions office asked me to describe my experience of being a law student. I was asked for this description to help educate prospective students about what they could expect from attending law school.

My 1L description of law school for the admissions office

You may be wondering for yourself what law school is like. From my prior perspective as a first year law student, I described acquiring a law degree as attaining a “license to serve” and provided the following analogies:

  • Law school is like learning to snowboard. Although you will start out on a gentle slope, you will find that both feet being strapped onto a board will result in constantly falling flat on your back. It is a tiring and painful experience until you learn to not catch your board’s edge and move on to steeper slopes. As a beginning law student, you will find that your response to a professor’s question will inevitably fall flat, which will leave you frustrated. Although you will read a tremendous load of cases, it will take time for you to catch a judge’s meaning. Over time, however, you will begin to master the material and will gracefully snowboard down the law school mountain.
  • Law school is like a kindergartner going to a candy store. Although the store has so many sweets from which to choose, the child only has a small amount of change. No matter what candy the child buys, the youngster will leave the store feeling as if there are other treats that should have been selected. [Law School] has more opportunities than you can possibly have time to do. Take a look at the number of clinics that are offered or try looking at [the law school newspaper] to choose which of the many speaker-lunches you would like to attend in any one day. No matter how many activities you choose to do, you will always feel as if there is one more you should have done.
  • Law school is like a telescope. If you look through it upside-down, everything gets smaller and further away. But when you look through the telescope the way it is meant to be, objects that are distant become clearer and closer. If you look at law school upside-down, you will worry about grades and become self-focused through competition. Looking at law school the way it is meant to be, you will build a community of friends and learn how to serve.
  • Finally, law school is unlike anything you will have ever done before. If it were easy to describe, the analogies would not be necessary. I advise you to talk to as many lawyers and law students as you can. Discuss your goals and expectations with them so that you are prepared for all that law school has to offer.

If you are interested in going to law school, I hope these analogies provide a useful first-year-student perspective for you to make your decision regarding entering this service profession.

The privilege of serving people at an impasse

Speaking of attaining a “license to serve,” it is a privilege for me to be a mediator who can serve my community by helping people resolve their conflicts. It is an honor to assist people who are at an impasse because, as William Ury advised in his book Getting to Yes with Yourself, “Life is too short for these mutually destructive conflicts that consume people and their families with stress, tension, and a huge loss of resources.”

Image: “Law & Order” (CC BY 2.0) by Paige.

Source: Kitroeff, Natalie. “The Best Law Schools Are Attracting Fewer Students.” Bloomberg Business. Bloomberg L.P., 26 January 2016. <www.bloomberg.com/news/articles/2016-01-26/the-best-law-schools-are-attracting-fewer-students>.

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Finding Vivian Maier: Exposing conflict like a street photographer

Street photographers have an eye for seeing reality from new perspectives. Just as film is exposed to light, street photographers can teach us how to expose our understanding to the reality of our conflicts. The documentary Finding Vivian Maier from John Maloof gives an inside look at a 20th century street photographer, Vivian, who was a full-time nanny. Ready with her Rolleiflex camera, Vivian would stroll throughout Chicago with the children under her care in tow. A Rolleiflex is a film camera for the street because it has a viewfinder on top, which lets you hang the camera from your neck and look down to take a picture. In other words, you don’t have to hold this type of camera up to your face. Because the camera is at waist level, a street photographer can trigger the shutter without being noticed. However, street photographers aren’t disengaged. Rather, they briefly enter into a street scene, take a picture in an unobtrusive way, and then walk away. This is what Vivian would do.

Joel Meyerowitz, a street photographer featured in the documentary, had this to say about street photography:

Street photographers tend to be gregarious in the sense that they can go out on the street and they’re comfortable being among people, but they’re also a funny mixture of solitaries at the same time as being gregarious. You observe and you embrace and you take in, but you stay back and you try to stay invisible.

In particular, Joel described Vivian’s photographic style in this way:

As [Vivian] was photographing, she was seeing just how close you can come into somebody’s space and make a picture of them. That tells me a lot about her. It tells me that she could go into a space with a total stranger and get them to accommodate her by being themselves and generate this kind of moment where two presences were actually kind of vibrating together. And then she’s gone.

He also stated about her pictures that:

Vivian’s work had those qualities of human understanding and warmth and playfulness. . . . I think her pictures show a tenderness, instant alertness to human tragedies, and those moments of generosity of sweetness. I see her as an incredibly watchful, observant, caring person. And probably why she was a nanny was that she had those capacities.

When it comes to conflict, it’s possible for us to learn to be watchful, observant, and caring. We can observe like a street photographer, but instead of shooting a picture, we can ask a question. A question can help you take a snapshot of your situation the way Vivian took snapshots of the people she saw on the street. You can ask a question to discover whether your perceptions are accurate, kind of like focusing a camera. Asking a question allows the other to clarify what was meant and provide an explanation, giving you a focused view into your situation.

To ask good questions, or to take good street photos, it helps to be in the present moment. In his book Getting to Yes with Yourself, William Ury describes embracing the present. He writes that we “can visit the past from time to time to learn from it and we can visit the future to plan and take necessary precautions, but we make our home in the only place where we can make positive change happen: in the present moment.” He goes on to say that it “is by being present and spotting the present opportunities in our negotiations that we can most easily get to yes with others.” Like having a flash on a camera, by being in the present moment, you will be able to see things that you might otherwise have missed, and ask questions that lead you to resolution.

Vivian was able to be in the present moment for her street photography. As Joel Meyerowitz said, she took pictures with “an authentic eye and a real savvy about human nature.” You can do the same with your questions.

Image: “Rolleiflex” (CC BY 2.0) by Oreste Pantegani.