Normally, if a matter settles at mediation, the parties will enter into a settlement agreement then and there to ensure that the matter has indeed settled; there will be no buyer’s remorse or change of mind the next morning. Often included within the settlement agreement are provisions that the settlement agreement may be enforced by a motion to enforce the settlement pursuant to California Code of Civil Procedure Section 664.6 (“C.C.P. §664.6”) and that the court will retain jurisdiction to enforce the terms of the settlement agreement. In Mesa RHF Partners, L.P. v City of Los Angeles, et al, and Hill RHF Housing Partners, L.P. v City of Los Angeles, B288355 (filed 3/29/19), the Second Appellate District Court in California just made it tougher on the parties to have the trial court retain jurisdiction on a motion to enforce the settlement. It ruled that the parties themselves, and not their counsel, must make the request to the court. For counsel to do so, will not be enough. In both matters, the plaintiffs sued the City of Los Angeles seeking declaratory and injunctive relief challenging payments that they had to make regarding the City’s establishment of the Downtown Business Center Business Development Improvement District (“District”) in downtown Los Angeles ( first cited case) and then also of the San Pedro Historic Waterfront Property and Business Improvement District and the San Pedro Property Owners Alliance (“District’) in Los Angeles (second cited case). Both lawsuits challenged the tax assessments for such services. Eventually, both lawsuits settled in which the parties agreed that the plaintiffs would be remitted the amounts that they were paying in assessments for these Districts . Both settlement agreements contained the provision that the Court would retain jurisdiction to enforce the terms of the settlement agreement pursuant to C.C.P. §664.4. Further in the request for dismissal of each lawsuit, counsel inserted the provision that the Court would retain jurisdiction to enforce the settlement pursuant to C.C.P. § 664.6. Section 664.6 provides: If parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement. Approximately, five years later, the city ordinance creating the Districts expired. In negotiating the renewal of these Districts, the City of Los Angeles took the position that the terms of the settlement agreements expired with the expiration of the ordinance creating these Districts. (Id. at 2-5.) So, the plaintiffs moved to enforce the settlement agreements. The trial court denied the motion on the merits. The appellate court agreed with the denial but based its decision on a lack of jurisdiction. Citing C.C.P. §664.6, the appellate court noted that the requests for dismissal were not signed by the “parties” as previous Courts have construed the statute. (Id. at 5.) : A request for the trial court to retain jurisdiction under section 664.6 “must conform to the same three requirements which the Legislature and the courts have deemed necessary for section 664.6 enforcement of the settlement itself: the request must be made (1) during the pendency of the case, not after the case has been dismissed in its entirety, (2) by the parties themselves, and (3) either in a writing signed by the parties or orally before the court.” (Wackeen v. Malis (2002) 97 Cal.App.4th 429, 440 (Wackeen).) The “request must be express, not implied from other language, and it must be clear and unambiguous.” (Ibid.) (Id. at 5-6.) The court refused to accept the request being made by the attorneys as being sufficient. Rather, it “… must be made either in a writing signed by the parties themselves, or orally before the court by the parties themselves…” (Id. at 6.) In response that this may create a “Catch 22”or burden on the parties, the court stated that this requirement was not all that complex: the attorneys could have either attached a copy of the settlement agreement to the requests for dismissal (Id. at 6), or they could file a new action for breach of settlement agreement, or …, the parties could have easily invoked section 664.6 by filing a stipulation and proposed order either attaching a copy of the settlement agreement and requesting that the trial court retain jurisdiction under section 664.6 or a stipulation and proposed order signed by the parties noting the settlement and requesting that the trial court retain jurisdiction under section 664.6. The process need not be complex. But strict compliance demands that the process be followed. (Id at 7.) Consequently, simply providing either in a settlement agreement or in a request for dismissal that the Court retains jurisdiction to enforce a settlement agreement pursuant to C.C.P. § 664.6 will not be sufficient. A document signed by the parties in the form of the settlement agreement either attached to the request for dismissal or attached to a stipulation and proposed order or having the parties themselves sign the stipulation and proposed order must be submitted to the court for it to retain jurisdiction. Otherwise, a party seeking to enforce the settlement agreement will be left with the undesirable alternative of having to file a whole new lawsuit for breach of contract. … Just something to think about. ------------------------------------- If you would like to receive this blog automatically by e mail each week, please click on one of the following plugins/services: and for the URL, type in my blog post address: http://www.pgpmediation.com/feed/ and then type in your e mail address and click "submit". Copyright 2018© Phyllis G. Pollack and www.pgpmediation.com, 2018. Unauthorized use and/or duplication of this material without express and written permission from this site’s author and/or owner is strictly prohibited. Excerpts and links may be used, provided that full and clear credit is given to Phyllis G. Pollack and www.pgpmediation.com with appropriate and specific direction to the original content. The post Retaining Jurisdiction Just Got Tougher! appeared first on Los Angeles California Mediation Services | San Diego Dispute Mediation | San Francisco Business & Commercial Mediation. from http://www.pgpmediation.com/retaining-jurisdiction-just-got-tougher/
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Charlie Woods ‘A bird in the hand is worth two in the bush’ is thought to originate from mediaeval falconry! There are a number of variations on the theme – apparently in central Europe the saying is ‘a sparrow in the hand is worth a pigeon on the roof’! A number of cognitive biases are at play here, in particular the ‘endowment effect’ – (applying greater value to something that is owned than what would be paid to acquire the same thing) and ‘hyperbolic discounting’ (smaller immediate rewards being preferred to larger ones in the future). The ‘neglect of probability’ also has a role to play, this is more likely to occur when the outcomes are emotionally charged or potentially painful (in one experiment a typical subject was willing to pay $10 to avoid a 99% chance of an electric shock, and $7 to avoid a 1% chance of the same shock). Is the proverb always applicable? Given the biases involved is it any surprise that we can’t seem to adopt the policies and behaviours to tackle climate change and other significant challenges, where the benefits, although large (particularly to future generations) are in the future, while the costs appear to be much shorter term. In a mediation parties will often have to weigh up the value of concluding matters on the day against the uncertainty and delay of allowing a court or other third party decide. The mediation process will also allow parties the opportunity to be more considered in their calculation of value, probability and choice and application of discount rates, to counter the impact of any cognitive biases. Another dimension of assessing value is to consider it in different contexts – for example, what might be a costly waste to one may be a potentially valuable input to others. This is exemplified in the film ‘Closing the Loop’. The documentary looks at practical examples of companies across the world who are applying ‘circular economy’ principles (moving away from the traditional linear model of ‘take, make, dispose’, to one built on renewable resources which is more ‘make, use and recycle’) and achieving business success in the process. This consideration of value also has application in a mediation context. While the value of possible outcomes might be expressed in monetary terms for ease of comparison, it may be useful to dig a bit deeper to make sure we really understand what lies behind each party’s valuations to see if the pie to be divided is potentially bigger than it might at first appear. So is a bird in the hand worth more than two in the bush? Maybe, but you really need to know much more about the birds, how and why they are valued, how those involved value the future and what the probability is of of there being a bush with birds in it when they get there! More from our authors:
from http://mediationblog.kluwerarbitration.com/2019/04/08/is-a-bird-in-the-hand-worth-two-in-the-bush/ Rick Weiler “Hi, I’m Rick. I’m your mediator for today. I can’t decide what happens in this dumb dispute or how you resolve issues. My job is just to help people who are incapable of resolving conflict, like yourselves, find areas that you can agree on. That means I get to control what appears in the messages, which is a good thing since it seems like the two of you are incapable of making any smart decisions. I just want to say that this better be good. I DON’T like to waste my time.” This has not been my standard opening for the past almost 30 years as a commercial mediator, but new research indicates maybe it should have been. In their 2017 research paper, The Surprising Effectiveness of Hostile Mediators, authors Ting Zhang, Francesca Gino, Michael I. Norton conclude: “In contrast to the intuitions of both mediation “how-to” manuals and our own participants, hostile mediators can increase the likelihood that parties in conflict find solutions to their disagreements. By studying mediator behaviours counter to what is typically recommended, we show that hostile mediators can positively influence negotiators’ motivation and ability to resolve conflict.” In what appears to be very thoroughly designed research the authors conducted a series of six experiments designed to prove or disprove their hypothesis, “that when faced with a hostile mediator, negotiators perceive themselves to share a common enemy, leading them to be more willing and likely to reach agreement than if that mediator had been kind.” Now, the experiments did have their limitations. Participants, choose from Amazon’s Mechanical Turk, did not meet in face to face interactions. The mediations took place via online chat rooms. The first experiment was a “Pilot” that unsurprisingly found that people intuitively believe that hostile mediators are less likely to help negotiators reach agreements compared with nice and neutral mediators. But through a series of five further experiments, the authors found significant support for the proposition, “that [mediator] hostility leads participants to experience sharing a common enemy with their counterpart, increasing their willingness to reach agreements with that counterpart—and the quality of solutions they achieve.” Take careful note. Mediator hostility results in not just more agreements, but better agreements! Mean MediatorsWhat is meant by “hostile” mediator behaviour? The authors wanted the mediator to be mean; displaying unfriendly behaviours that included directed anger, rudeness, and spitefulness. Here are some mean mediator quotes from the study (in addition to the one at the start of this post):
Further ResearchIn my February post to the Kluwer Mediation Blog I wrote, “I think there’s little reason to believe that more field-based mediation research focusing on mediation techniques will tell us anything we don’t already know.” I stand by that statement as it relates to “field-based” research but it seems to me that this “angry mediator” research shows that much more work can be done in the realm of theoretical research. Indeed, the authors observe, “Future research can also investigate the influence of hostility on different types and domains of conflict. In our studies, added hostility shifted perceptions in situations where participants were in conflict over resources and where there were positive zones of possible agreement. However, added hostility may not be helpful in situations where the zone of possible agreement is small, difficult to uncover, or negative. Additionally, hostility from a mediator may be detrimental for relational conflicts that are more personal as opposed to task or procedural conflicts, particularly if the mediator is hostile toward both parties for personal missteps or character flaws that originally ignited the conflict.” The TakeawayAs Donald Swanson asked in his blog post at Mediatbankry that first drew this research to my attention, “What, then, should a mediator do? There is the problem of building a reputation in a field where being “nice” and “understanding” is a desired quality. What’s the effect of hostile behaviour during mediation on that reputation?” Perhaps this research will be of most use to mediators not relying on repeat and referral business to make their living, such as assigned mediators in institutional or industry-specific settings or even judges in the context of pre-trial settlement conferences. For those of us tilling the fields of dispute resolution in the private sector, it seems likely that the “mean mediator” tools will mostly stay in the bag. More from our authors:
from http://mediationblog.kluwerarbitration.com/2019/04/06/the-surprising-effectiveness-of-hostile-mediators/ Normally, if a matter settles at mediation, the parties will enter into a settlement agreement then and there to ensure that the matter has indeed settled; there will be no buyer’s remorse or change of mind the next morning. Often included within the settlement agreement are provisions that the settlement agreement may be enforced by a motion to enforce the settlement pursuant to California Code of Civil Procedure Section 664.6 (“C.C.P. §664.6”) and that the court will retain jurisdiction to enforce the terms of the settlement agreement. In Mesa RHF Partners, L.P. v City of Los Angeles, et al, and Hill RHF Housing Partners, L.P. v City of Los Angeles, B288355 (filed 3/29/19), the Second Appellate District Court in California just made it tougher on the parties to have the trial court retain jurisdiction on a motion to enforce the settlement. It ruled that the parties themselves, and not their counsel, must make the request to the court. For counsel to do so, will not be enough. In both matters, the plaintiffs sued the City of Los Angeles seeking declaratory and injunctive relief challenging payments that they had to make regarding the City’s establishment of the Downtown Business Center Business Development Improvement District (“District”) in downtown Los Angeles ( first cited case) and then also of the San Pedro Historic Waterfront Property and Business Improvement District and the San Pedro Property Owners Alliance (“District’) in Los Angeles (second cited case). Both lawsuits challenged the tax assessments for such services. Eventually, both lawsuits settled in which the parties agreed that the plaintiffs would be remitted the amounts that they were paying in assessments for these Districts . Both settlement agreements contained the provision that the Court would retain jurisdiction to enforce the terms of the settlement agreement pursuant to C.C.P. §664.4. Further in the request for dismissal of each lawsuit, counsel inserted the provision that the Court would retain jurisdiction to enforce the settlement pursuant to C.C.P. § 664.6. Section 664.6 provides: If parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement. Approximately, five years later, the city ordinance creating the Districts expired. In negotiating the renewal of these Districts, the City of Los Angeles took the position that the terms of the settlement agreements expired with the expiration of the ordinance creating these Districts. (Id. at 2-5.) So, the plaintiffs moved to enforce the settlement agreements. The trial court denied the motion on the merits. The appellate court agreed with the denial but based its decision on a lack of jurisdiction. Citing C.C.P. §664.6, the appellate court noted that the requests for dismissal were not signed by the “parties” as previous Courts have construed the statute. (Id. at 5.) : A request for the trial court to retain jurisdiction under section 664.6 “must conform to the same three requirements which the Legislature and the courts have deemed necessary for section 664.6 enforcement of the settlement itself: the request must be made (1) during the pendency of the case, not after the case has been dismissed in its entirety, (2) by the parties themselves, and (3) either in a writing signed by the parties or orally before the court.” (Wackeen v. Malis (2002) 97 Cal.App.4th 429, 440 (Wackeen).) The “request must be express, not implied from other language, and it must be clear and unambiguous.” (Ibid.) (Id. at 5-6.) The court refused to accept the request being made by the attorneys as being sufficient. Rather, it “… must be made either in a writing signed by the parties themselves, or orally before the court by the parties themselves…” (Id. at 6.) In response that this may create a “Catch 22”or burden on the parties, the court stated that this requirement was not all that complex: the attorneys could have either attached a copy of the settlement agreement to the requests for dismissal (Id. at 6), or they could file a new action for breach of settlement agreement, or …, the parties could have easily invoked section 664.6 by filing a stipulation and proposed order either attaching a copy of the settlement agreement and requesting that the trial court retain jurisdiction under section 664.6 or a stipulation and proposed order signed by the parties noting the settlement and requesting that the trial court retain jurisdiction under section 664.6. The process need not be complex. But strict compliance demands that the process be followed. (Id at 7.) Consequently, simply providing either in a settlement agreement or in a request for dismissal that the Court retains jurisdiction to enforce a settlement agreement pursuant to C.C.P. § 664.6 will not be sufficient. A document signed by the parties in the form of the settlement agreement either attached to the request for dismissal or attached to a stipulation and proposed order or having the parties themselves sign the stipulation and proposed order must be submitted to the court for it to retain jurisdiction. Otherwise, a party seeking to enforce the settlement agreement will be left with the undesirable alternative of having to file a whole new lawsuit for breach of contract. … Just something to think about. ------------------------------------- If you would like to receive this blog automatically by e mail each week, please click on one of the following plugins/services: and for the URL, type in my blog post address: http://www.pgpmediation.com/feed/ and then type in your e mail address and click "submit". Copyright 2018© Phyllis G. Pollack and www.pgpmediation.com, 2018. Unauthorized use and/or duplication of this material without express and written permission from this site’s author and/or owner is strictly prohibited. Excerpts and links may be used, provided that full and clear credit is given to Phyllis G. Pollack and www.pgpmediation.com with appropriate and specific direction to the original content. The post Retaining Jurisdiction Just Got Tougher! appeared first on Los Angeles California Mediation Services | San Diego Dispute Mediation | San Francisco Business & Commercial Mediation. from http://www.pgpmediation.com/retaining-jurisdiction-just-got-tougher/ In cleaning up my office so it could be repainted and re-carpeted, I came upon an article in the July 2018 ABA Journal (volume 104) entitled, “Sounds of Silence” by Philip N. Meyer (pp. 22-23.) ( “ABA Article”). The ABA article notes that a pause at the right moment can be a very powerful tool. It cites an oral argument in which the issue was whether the police had waited long enough after knocking before entering an apartment to execute a search warrant. The police had waited 25 seconds which the defense argued was insufficient. To make the point, counsel for the District of Columbia, started the oral argument by stating, “May it please the court….”. He then paused, precisely for 25 seconds, which to everyone else seemed like an eternity. As the appellate judges were about to break the very uncomfortable silence, counsel began to speak, noting that the silence was the same 25 seconds that his client had waited before entering the apartment. Counsel had made his point and won the appeal. (Id. at 22.) An article cited in the ABA Article discusses the different uses of silence. In “’Talk Less’: Eloquent Silence in the Rhetoric of Lawyering”, Bret Rappaport, (67 Journal of Legal Education 286-314 (No. 1, 2017), (“Journal”) discusses one type of silence, or what the Greeks called “Eloquent Silence”: “… the nonspeaker intends to be communicative by her silence, or… to make an argument.” (Id. at 292.) On a cognitive level, silence or pauses are important as they allow the brain to process and “think” about what is being said. While our System 1 thinking is automatic and thus does not require silence (and is also prone to mistakes), our System 2 being deliberative, slow, and methodical, needs the silence in which to work; It needs to take in what is being said and then process and evaluate it. ( Id at 294-296.) He cites one study which showed that the longer a teacher paused between asking a question and picking a student for an answer, the more positive and thoughtful were the responses. (Id. at 294-297, 296.): Silence slows things down (triggering System2), allowing more effective learning to take place. …Think time allows the listener to make connections and detect patterns… -and wait time allows for personal, purposeful, meaningful and relevant learning. Silence is wait time’s solitary ingredient. (Id at 296-7.) There are various types of Eloquent Silence. It may be a single pause before a word or phrase (i.e., a pregnant pause) or the silence may occur after a phrase or word (i.e., a dramatic pause.) Or, the pause may occur both before and after a phrase or group of words which create a “chunk”. Or, finally, the silence consists of simply saying nothing. (Id. at 299, 300-312.) An example of the pregnant pause was President Franklin D. Roosevelt’s famous statement, “the only thing we have to fear is [3.5 second pause] fear itself.” (Id at 301.) That pause just before the last two words had great effect in calming a nation mired in the Great Depression. In contrast, the dramatic pause occurs after the important wording. It allows the listener to reflect on what was just said and to digest it. It allows the words to sink in with the listener. An example was the eulogy that former President Obama gave for the Reverend Clementa Pinckney and eight parishioners killed by Dylann Roof at the Emanuel African Methodist Episcopal Church in Charleston, South Carolina. After he concluded his remarks, Mr. Obama waited 13 seconds-to let his words sink in- before transitioning slowly to a rendition of “Amazing Grace.” (ABA Article at 22.) Placing a pause every so often also has an effect. Called “chunking”, the pause is often placed every seven words (plus or minus 2) providing the needed emphasis to particular words. (Journal at 308. ) The Pledge of Allegiance provides a good example: I pledge allegiance [pause] to the Flag [pause] of the United States of America, [pause] and to the Republic [pause] for which it stands, [pause] one Nation [pause] under God [pause], indivisible, [pause] with liberty [pause] and justice for all. (Id. at 307) To me, the most important Eloquent Silence is simply saying nothing. As many negotiators have learned, listening and saying nothing is key. (Id. at 309-312.) By staying silent and simply listening, the other side will often “leak” information either verbally or non-verbally through changes in voice, and pitch. What I have found, is that a well-placed silence – simply asking a question and letting it hang there, will after a few seconds make the other party uncomfortable and prone to say what she is really thinking or what is really troubling her about the matter. Most people can not tolerate silence for more than a few seconds and feel the need to fill the space and say something. Often what is said is the innermost fears, anxiety, frustration or the real reason that is causing the dispute or impasse. So—silence cannot only be golden but a very effective means in getting to the heart of a matter quickly and thus, being able to resolve it. So- say nothing and you will speak volumes. … Just something to think about.
------------------------------------- If you would like to receive this blog automatically by e mail each week, please click on one of the following plugins/services: and for the URL, type in my blog post address: http://www.pgpmediation.com/feed/ and then type in your e mail address and click "submit". Copyright 2018© Phyllis G. Pollack and www.pgpmediation.com, 2018. Unauthorized use and/or duplication of this material without express and written permission from this site’s author and/or owner is strictly prohibited. Excerpts and links may be used, provided that full and clear credit is given to Phyllis G. Pollack and www.pgpmediation.com with appropriate and specific direction to the original content. The post Silence is Golden! appeared first on Los Angeles California Mediation Services | San Diego Dispute Mediation | San Francisco Business & Commercial Mediation. from http://www.pgpmediation.com/silence-is-golden/ In cleaning up my office so it could be repainted and re-carpeted, I came upon an article in the July 2018 ABA Journal (volume 104) entitled, “Sounds of Silence” by Philip N. Meyer (pp. 22-23.) ( “ABA Article”). The ABA article notes that a pause at the right moment can be a very powerful tool. It cites an oral argument in which the issue was whether the police had waited long enough after knocking before entering an apartment to execute a search warrant. The police had waited 25 seconds which the defense argued was insufficient. To make the point, counsel for the District of Columbia, started the oral argument by stating, “May it please the court….”. He then paused, precisely for 25 seconds, which to everyone else seemed like an eternity. As the appellate judges were about to break the very uncomfortable silence, counsel began to speak, noting that the silence was the same 25 seconds that his client had waited before entering the apartment. Counsel had made his point and won the appeal. (Id. at 22.) An article cited in the ABA Article discusses the different uses of silence. In “’Talk Less’: Eloquent Silence in the Rhetoric of Lawyering”, Bret Rappaport, (67 Journal of Legal Education 286-314 (No. 1, 2017), (“Journal”) discusses one type of silence, or what the Greeks called “Eloquent Silence”: “… the nonspeaker intends to be communicative by her silence, or… to make an argument.” (Id. at 292.) On a cognitive level, silence or pauses are important as they allow the brain to process and “think” about what is being said. While our System 1 thinking is automatic and thus does not require silence (and is also prone to mistakes), our System 2 being deliberative, slow, and methodical, needs the silence in which to work; It needs to take in what is being said and then process and evaluate it. ( Id at 294-296.) He cites one study which showed that the longer a teacher paused between asking a question and picking a student for an answer, the more positive and thoughtful were the responses. (Id. at 294-297, 296.): Silence slows things down (triggering System2), allowing more effective learning to take place. …Think time allows the listener to make connections and detect patterns… -and wait time allows for personal, purposeful, meaningful and relevant learning. Silence is wait time’s solitary ingredient. (Id at 296-7.) There are various types of Eloquent Silence. It may be a single pause before a word or phrase (i.e., a pregnant pause) or the silence may occur after a phrase or word (i.e., a dramatic pause.) Or, the pause may occur both before and after a phrase or group of words which create a “chunk”. Or, finally, the silence consists of simply saying nothing. (Id. at 299, 300-312.) An example of the pregnant pause was President Franklin D. Roosevelt’s famous statement, “the only thing we have to fear is [3.5 second pause] fear itself.” (Id at 301.) That pause just before the last two words had great effect in calming a nation mired in the Great Depression. In contrast, the dramatic pause occurs after the important wording. It allows the listener to reflect on what was just said and to digest it. It allows the words to sink in with the listener. An example was the eulogy that former President Obama gave for the Reverend Clementa Pinckney and eight parishioners killed by Dylann Roof at the Emanuel African Methodist Episcopal Church in Charleston, South Carolina. After he concluded his remarks, Mr. Obama waited 13 seconds-to let his words sink in- before transitioning slowly to a rendition of “Amazing Grace.” (ABA Article at 22.) Placing a pause every so often also has an effect. Called “chunking”, the pause is often placed every seven words (plus or minus 2) providing the needed emphasis to particular words. (Journal at 308. ) The Pledge of Allegiance provides a good example: I pledge allegiance [pause] to the Flag [pause] of the United States of America, [pause] and to the Republic [pause] for which it stands, [pause] one Nation [pause] under God [pause], indivisible, [pause] with liberty [pause] and justice for all. (Id. at 307) To me, the most important Eloquent Silence is simply saying nothing. As many negotiators have learned, listening and saying nothing is key. (Id. at 309-312.) By staying silent and simply listening, the other side will often “leak” information either verbally or non-verbally through changes in voice, and pitch. What I have found, is that a well-placed silence – simply asking a question and letting it hang there, will after a few seconds make the other party uncomfortable and prone to say what she is really thinking or what is really troubling her about the matter. Most people can not tolerate silence for more than a few seconds and feel the need to fill the space and say something. Often what is said is the innermost fears, anxiety, frustration or the real reason that is causing the dispute or impasse. So—silence cannot only be golden but a very effective means in getting to the heart of a matter quickly and thus, being able to resolve it. So- say nothing and you will speak volumes. … Just something to think about.
------------------------------------- If you would like to receive this blog automatically by e mail each week, please click on one of the following plugins/services: and for the URL, type in my blog post address: http://www.pgpmediation.com/feed/ and then type in your e mail address and click "submit". Copyright 2018© Phyllis G. Pollack and www.pgpmediation.com, 2018. Unauthorized use and/or duplication of this material without express and written permission from this site’s author and/or owner is strictly prohibited. Excerpts and links may be used, provided that full and clear credit is given to Phyllis G. Pollack and www.pgpmediation.com with appropriate and specific direction to the original content. The post Silence is Golden! appeared first on Los Angeles California Mediation Services | San Diego Dispute Mediation | San Francisco Business & Commercial Mediation. from http://www.pgpmediation.com/silence-is-golden/ In cleaning up my office so it could be repainted and re-carpeted, I came upon an article in the July 2018 ABA Journal (volume 104) entitled, “Sounds of Silence” by Philip N. Meyer (pp. 22-23.) ( “ABA Article”). The ABA article notes that a pause at the right moment can be a very powerful tool. It cites an oral argument in which the issue was whether the police had waited long enough after knocking before entering an apartment to execute a search warrant. The police had waited 25 seconds which the defense argued was insufficient. To make the point, counsel for the District of Columbia, started the oral argument by stating, “May it please the court….”. He then paused, precisely for 25 seconds, which to everyone else seemed like an eternity. As the appellate judges were about to break the very uncomfortable silence, counsel began to speak, noting that the silence was the same 25 seconds that his client had waited before entering the apartment. Counsel had made his point and won the appeal. (Id. at 22.) An article cited in the ABA Article discusses the different uses of silence. In “’Talk Less’: Eloquent Silence in the Rhetoric of Lawyering”, Bret Rappaport, (67 Journal of Legal Education 286-314 (No. 1, 2017), (“Journal”) discusses one type of silence, or what the Greeks called “Eloquent Silence”: “… the nonspeaker intends to be communicative by her silence, or… to make an argument.” (Id. at 292.) On a cognitive level, silence or pauses are important as they allow the brain to process and “think” about what is being said. While our System 1 thinking is automatic and thus does not require silence (and is also prone to mistakes), our System 2 being deliberative, slow, and methodical, needs the silence in which to work; It needs to take in what is being said and then process and evaluate it. ( Id at 294-296.) He cites one study which showed that the longer a teacher paused between asking a question and picking a student for an answer, the more positive and thoughtful were the responses. (Id. at 294-297, 296.): Silence slows things down (triggering System2), allowing more effective learning to take place. …Think time allows the listener to make connections and detect patterns… -and wait time allows for personal, purposeful, meaningful and relevant learning. Silence is wait time’s solitary ingredient. (Id at 296-7.) There are various types of Eloquent Silence. It may be a single pause before a word or phrase (i.e., a pregnant pause) or the silence may occur after a phrase or word (i.e., a dramatic pause.) Or, the pause may occur both before and after a phrase or group of words which create a “chunk”. Or, finally, the silence consists of simply saying nothing. (Id. at 299, 300-312.) An example of the pregnant pause was President Franklin D. Roosevelt’s famous statement, “the only thing we have to fear is [3.5 second pause] fear itself.” (Id at 301.) That pause just before the last two words had great effect in calming a nation mired in the Great Depression. In contrast, the dramatic pause occurs after the important wording. It allows the listener to reflect on what was just said and to digest it. It allows the words to sink in with the listener. An example was the eulogy that former President Obama gave for the Reverend Clementa Pinckney and eight parishioners killed by Dylann Roof at the Emanuel African Methodist Episcopal Church in Charleston, South Carolina. After he concluded his remarks, Mr. Obama waited 13 seconds-to let his words sink in- before transitioning slowly to a rendition of “Amazing Grace.” (ABA Article at 22.) Placing a pause every so often also has an effect. Called “chunking”, the pause is often placed every seven words (plus or minus 2) providing the needed emphasis to particular words. (Journal at 308. ) The Pledge of Allegiance provides a good example: I pledge allegiance [pause] to the Flag [pause] of the United States of America, [pause] and to the Republic [pause] for which it stands, [pause] one Nation [pause] under God [pause], indivisible, [pause] with liberty [pause] and justice for all. (Id. at 307) To me, the most important Eloquent Silence is simply saying nothing. As many negotiators have learned, listening and saying nothing is key. (Id. at 309-312.) By staying silent and simply listening, the other side will often “leak” information either verbally or non-verbally through changes in voice, and pitch. What I have found, is that a well-placed silence – simply asking a question and letting it hang there, will after a few seconds make the other party uncomfortable and prone to say what she is really thinking or what is really troubling her about the matter. Most people can not tolerate silence for more than a few seconds and feel the need to fill the space and say something. Often what is said is the innermost fears, anxiety, frustration or the real reason that is causing the dispute or impasse. So—silence cannot only be golden but a very effective means in getting to the heart of a matter quickly and thus, being able to resolve it. So- say nothing and you will speak volumes. … Just something to think about.
------------------------------------- If you would like to receive this blog automatically by e mail each week, please click on one of the following plugins/services: and for the URL, type in my blog post address: http://www.pgpmediation.com/feed/ and then type in your e mail address and click "submit". Copyright 2018© Phyllis G. Pollack and www.pgpmediation.com, 2018. Unauthorized use and/or duplication of this material without express and written permission from this site’s author and/or owner is strictly prohibited. Excerpts and links may be used, provided that full and clear credit is given to Phyllis G. Pollack and www.pgpmediation.com with appropriate and specific direction to the original content. The post Silence is Golden! appeared first on Los Angeles California Mediation Services | San Diego Dispute Mediation | San Francisco Business & Commercial Mediation. from http://www.pgpmediation.com/silence-is-golden/ In cleaning up my office so it could be repainted and re-carpeted, I came upon an article in the July 2018 ABA Journal (volume 104) entitled, “Sounds of Silence” by Philip N. Meyer (pp. 22-23.) ( “ABA Article”). The ABA article notes that a pause at the right moment can be a very powerful tool. It cites an oral argument in which the issue was whether the police had waited long enough after knocking before entering an apartment to execute a search warrant. The police had waited 25 seconds which the defense argued was insufficient. To make the point, counsel for the District of Columbia, started the oral argument by stating, “May it please the court….”. He then paused, precisely for 25 seconds, which to everyone else seemed like an eternity. As the appellate judges were about to break the very uncomfortable silence, counsel began to speak, noting that the silence was the same 25 seconds that his client had waited before entering the apartment. Counsel had made his point and won the appeal. (Id. at 22.) An article cited in the ABA Article discusses the different uses of silence. In “’Talk Less’: Eloquent Silence in the Rhetoric of Lawyering”, Bret Rappaport, (67 Journal of Legal Education 286-314 (No. 1, 2017), (“Journal”) discusses one type of silence, or what the Greeks called “Eloquent Silence”: “… the nonspeaker intends to be communicative by her silence, or… to make an argument.” (Id. at 292.) On a cognitive level, silence or pauses are important as they allow the brain to process and “think” about what is being said. While our System 1 thinking is automatic and thus does not require silence (and is also prone to mistakes), our System 2 being deliberative, slow, and methodical, needs the silence in which to work; It needs to take in what is being said and then process and evaluate it. ( Id at 294-296.) He cites one study which showed that the longer a teacher paused between asking a question and picking a student for an answer, the more positive and thoughtful were the responses. (Id. at 294-297, 296.): Silence slows things down (triggering System2), allowing more effective learning to take place. …Think time allows the listener to make connections and detect patterns… -and wait time allows for personal, purposeful, meaningful and relevant learning. Silence is wait time’s solitary ingredient. (Id at 296-7.) There are various types of Eloquent Silence. It may be a single pause before a word or phrase (i.e., a pregnant pause) or the silence may occur after a phrase or word (i.e., a dramatic pause.) Or, the pause may occur both before and after a phrase or group of words which create a “chunk”. Or, finally, the silence consists of simply saying nothing. (Id. at 299, 300-312.) An example of the pregnant pause was President Franklin D. Roosevelt’s famous statement, “the only thing we have to fear is [3.5 second pause] fear itself.” (Id at 301.) That pause just before the last two words had great effect in calming a nation mired in the Great Depression. In contrast, the dramatic pause occurs after the important wording. It allows the listener to reflect on what was just said and to digest it. It allows the words to sink in with the listener. An example was the eulogy that former President Obama gave for the Reverend Clementa Pinckney and eight parishioners killed by Dylann Roof at the Emanuel African Methodist Episcopal Church in Charleston, South Carolina. After he concluded his remarks, Mr. Obama waited 13 seconds-to let his words sink in- before transitioning slowly to a rendition of “Amazing Grace.” (ABA Article at 22.) Placing a pause every so often also has an effect. Called “chunking”, the pause is often placed every seven words (plus or minus 2) providing the needed emphasis to particular words. (Journal at 308. ) The Pledge of Allegiance provides a good example: I pledge allegiance [pause] to the Flag [pause] of the United States of America, [pause] and to the Republic [pause] for which it stands, [pause] one Nation [pause] under God [pause], indivisible, [pause] with liberty [pause] and justice for all. (Id. at 307) To me, the most important Eloquent Silence is simply saying nothing. As many negotiators have learned, listening and saying nothing is key. (Id. at 309-312.) By staying silent and simply listening, the other side will often “leak” information either verbally or non-verbally through changes in voice, and pitch. What I have found, is that a well-placed silence – simply asking a question and letting it hang there, will after a few seconds make the other party uncomfortable and prone to say what she is really thinking or what is really troubling her about the matter. Most people can not tolerate silence for more than a few seconds and feel the need to fill the space and say something. Often what is said is the innermost fears, anxiety, frustration or the real reason that is causing the dispute or impasse. So—silence cannot only be golden but a very effective means in getting to the heart of a matter quickly and thus, being able to resolve it. So- say nothing and you will speak volumes. … Just something to think about.
------------------------------------- If you would like to receive this blog automatically by e mail each week, please click on one of the following plugins/services: and for the URL, type in my blog post address: http://www.pgpmediation.com/feed/ and then type in your e mail address and click "submit". Copyright 2018© Phyllis G. Pollack and www.pgpmediation.com, 2018. Unauthorized use and/or duplication of this material without express and written permission from this site’s author and/or owner is strictly prohibited. Excerpts and links may be used, provided that full and clear credit is given to Phyllis G. Pollack and www.pgpmediation.com with appropriate and specific direction to the original content. The post Silence is Golden! appeared first on Los Angeles California Mediation Services | San Diego Dispute Mediation | San Francisco Business & Commercial Mediation. from http://www.pgpmediation.com/silence-is-golden/ In cleaning up my office so it could be repainted and re-carpeted, I came upon an article in the July 2018 ABA Journal (volume 104) entitled, “Sounds of Silence” by Philip N. Meyer (pp. 22-23.) ( “ABA Article”). The ABA article notes that a pause at the right moment can be a very powerful tool. It cites an oral argument in which the issue was whether the police had waited long enough after knocking before entering an apartment to execute a search warrant. The police had waited 25 seconds which the defense argued was insufficient. To make the point, counsel for the District of Columbia, started the oral argument by stating, “May it please the court….”. He then paused, precisely for 25 seconds, which to everyone else seemed like an eternity. As the appellate judges were about to break the very uncomfortable silence, counsel began to speak, noting that the silence was the same 25 seconds that his client had waited before entering the apartment. Counsel had made his point and won the appeal. (Id. at 22.) An article cited in the ABA Article discusses the different uses of silence. In “’Talk Less’: Eloquent Silence in the Rhetoric of Lawyering”, Bret Rappaport, (67 Journal of Legal Education 286-314 (No. 1, 2017), (“Journal”) discusses one type of silence, or what the Greeks called “Eloquent Silence”: “… the nonspeaker intends to be communicative by her silence, or… to make an argument.” (Id. at 292.) On a cognitive level, silence or pauses are important as they allow the brain to process and “think” about what is being said. While our System 1 thinking is automatic and thus does not require silence (and is also prone to mistakes), our System 2 being deliberative, slow, and methodical, needs the silence in which to work; It needs to take in what is being said and then process and evaluate it. ( Id at 294-296.) He cites one study which showed that the longer a teacher paused between asking a question and picking a student for an answer, the more positive and thoughtful were the responses. (Id. at 294-297, 296.): Silence slows things down (triggering System2), allowing more effective learning to take place. …Think time allows the listener to make connections and detect patterns… -and wait time allows for personal, purposeful, meaningful and relevant learning. Silence is wait time’s solitary ingredient. (Id at 296-7.) There are various types of Eloquent Silence. It may be a single pause before a word or phrase (i.e., a pregnant pause) or the silence may occur after a phrase or word (i.e., a dramatic pause.) Or, the pause may occur both before and after a phrase or group of words which create a “chunk”. Or, finally, the silence consists of simply saying nothing. (Id. at 299, 300-312.) An example of the pregnant pause was President Franklin D. Roosevelt’s famous statement, “the only thing we have to fear is [3.5 second pause] fear itself.” (Id at 301.) That pause just before the last two words had great effect in calming a nation mired in the Great Depression. In contrast, the dramatic pause occurs after the important wording. It allows the listener to reflect on what was just said and to digest it. It allows the words to sink in with the listener. An example was the eulogy that former President Obama gave for the Reverend Clementa Pinckney and eight parishioners killed by Dylann Roof at the Emanuel African Methodist Episcopal Church in Charleston, South Carolina. After he concluded his remarks, Mr. Obama waited 13 seconds-to let his words sink in- before transitioning slowly to a rendition of “Amazing Grace.” (ABA Article at 22.) Placing a pause every so often also has an effect. Called “chunking”, the pause is often placed every seven words (plus or minus 2) providing the needed emphasis to particular words. (Journal at 308. ) The Pledge of Allegiance provides a good example: I pledge allegiance [pause] to the Flag [pause] of the United States of America, [pause] and to the Republic [pause] for which it stands, [pause] one Nation [pause] under God [pause], indivisible, [pause] with liberty [pause] and justice for all. (Id. at 307) To me, the most important Eloquent Silence is simply saying nothing. As many negotiators have learned, listening and saying nothing is key. (Id. at 309-312.) By staying silent and simply listening, the other side will often “leak” information either verbally or non-verbally through changes in voice, and pitch. What I have found, is that a well-placed silence – simply asking a question and letting it hang there, will after a few seconds make the other party uncomfortable and prone to say what she is really thinking or what is really troubling her about the matter. Most people can not tolerate silence for more than a few seconds and feel the need to fill the space and say something. Often what is said is the innermost fears, anxiety, frustration or the real reason that is causing the dispute or impasse. So—silence cannot only be golden but a very effective means in getting to the heart of a matter quickly and thus, being able to resolve it. So- say nothing and you will speak volumes. … Just something to think about.
------------------------------------- If you would like to receive this blog automatically by e mail each week, please click on one of the following plugins/services: and for the URL, type in my blog post address: http://www.pgpmediation.com/feed/ and then type in your e mail address and click "submit". Copyright 2018© Phyllis G. Pollack and www.pgpmediation.com, 2018. Unauthorized use and/or duplication of this material without express and written permission from this site’s author and/or owner is strictly prohibited. Excerpts and links may be used, provided that full and clear credit is given to Phyllis G. Pollack and www.pgpmediation.com with appropriate and specific direction to the original content. The post Silence is Golden! appeared first on Los Angeles California Mediation Services | San Diego Dispute Mediation | San Francisco Business & Commercial Mediation. from http://www.pgpmediation.com/silence-is-golden/ In cleaning up my office so it could be repainted and re-carpeted, I came upon an article in the July 2018 ABA Journal (volume 104) entitled, “Sounds of Silence” by Philip N. Meyer (pp. 22-23.) ( “ABA Article”). The ABA article notes that a pause at the right moment can be a very powerful tool. It cites an oral argument in which the issue was whether the police had waited long enough after knocking before entering an apartment to execute a search warrant. The police had waited 25 seconds which the defense argued was insufficient. To make the point, counsel for the District of Columbia, started the oral argument by stating, “May it please the court….”. He then paused, precisely for 25 seconds, which to everyone else seemed like an eternity. As the appellate judges were about to break the very uncomfortable silence, counsel began to speak, noting that the silence was the same 25 seconds that his client had waited before entering the apartment. Counsel had made his point and won the appeal. (Id. at 22.) An article cited in the ABA Article discusses the different uses of silence. In “’Talk Less’: Eloquent Silence in the Rhetoric of Lawyering”, Bret Rappaport, (67 Journal of Legal Education 286-314 (No. 1, 2017), (“Journal”) discusses one type of silence, or what the Greeks called “Eloquent Silence”: “… the nonspeaker intends to be communicative by her silence, or… to make an argument.” (Id. at 292.) On a cognitive level, silence or pauses are important as they allow the brain to process and “think” about what is being said. While our System 1 thinking is automatic and thus does not require silence (and is also prone to mistakes), our System 2 being deliberative, slow, and methodical, needs the silence in which to work; It needs to take in what is being said and then process and evaluate it. ( Id at 294-296.) He cites one study which showed that the longer a teacher paused between asking a question and picking a student for an answer, the more positive and thoughtful were the responses. (Id. at 294-297, 296.): Silence slows things down (triggering System2), allowing more effective learning to take place. …Think time allows the listener to make connections and detect patterns… -and wait time allows for personal, purposeful, meaningful and relevant learning. Silence is wait time’s solitary ingredient. (Id at 296-7.) There are various types of Eloquent Silence. It may be a single pause before a word or phrase (i.e., a pregnant pause) or the silence may occur after a phrase or word (i.e., a dramatic pause.) Or, the pause may occur both before and after a phrase or group of words which create a “chunk”. Or, finally, the silence consists of simply saying nothing. (Id. at 299, 300-312.) An example of the pregnant pause was President Franklin D. Roosevelt’s famous statement, “the only thing we have to fear is [3.5 second pause] fear itself.” (Id at 301.) That pause just before the last two words had great effect in calming a nation mired in the Great Depression. In contrast, the dramatic pause occurs after the important wording. It allows the listener to reflect on what was just said and to digest it. It allows the words to sink in with the listener. An example was the eulogy that former President Obama gave for the Reverend Clementa Pinckney and eight parishioners killed by Dylann Roof at the Emanuel African Methodist Episcopal Church in Charleston, South Carolina. After he concluded his remarks, Mr. Obama waited 13 seconds-to let his words sink in- before transitioning slowly to a rendition of “Amazing Grace.” (ABA Article at 22.) Placing a pause every so often also has an effect. Called “chunking”, the pause is often placed every seven words (plus or minus 2) providing the needed emphasis to particular words. (Journal at 308. ) The Pledge of Allegiance provides a good example: I pledge allegiance [pause] to the Flag [pause] of the United States of America, [pause] and to the Republic [pause] for which it stands, [pause] one Nation [pause] under God [pause], indivisible, [pause] with liberty [pause] and justice for all. (Id. at 307) To me, the most important Eloquent Silence is simply saying nothing. As many negotiators have learned, listening and saying nothing is key. (Id. at 309-312.) By staying silent and simply listening, the other side will often “leak” information either verbally or non-verbally through changes in voice, and pitch. What I have found, is that a well-placed silence – simply asking a question and letting it hang there, will after a few seconds make the other party uncomfortable and prone to say what she is really thinking or what is really troubling her about the matter. Most people can not tolerate silence for more than a few seconds and feel the need to fill the space and say something. Often what is said is the innermost fears, anxiety, frustration or the real reason that is causing the dispute or impasse. So—silence cannot only be golden but a very effective means in getting to the heart of a matter quickly and thus, being able to resolve it. So- say nothing and you will speak volumes. … Just something to think about.
------------------------------------- If you would like to receive this blog automatically by e mail each week, please click on one of the following plugins/services: and for the URL, type in my blog post address: http://www.pgpmediation.com/feed/ and then type in your e mail address and click "submit". Copyright 2018© Phyllis G. Pollack and www.pgpmediation.com, 2018. Unauthorized use and/or duplication of this material without express and written permission from this site’s author and/or owner is strictly prohibited. Excerpts and links may be used, provided that full and clear credit is given to Phyllis G. Pollack and www.pgpmediation.com with appropriate and specific direction to the original content. The post Silence is Golden! appeared first on Los Angeles California Mediation Services | San Diego Dispute Mediation | San Francisco Business & Commercial Mediation. from http://www.pgpmediation.com/silence-is-golden/ |