The Surprisingly Modern Santa Claus

Youngsters prepare for the annual arrival of Santa Claus in a few weeks with hopes that some last minute good behavior will tip the scales in favor to avoid placement on the Naughty List.  The Santa Claus part of Christmas, as opposed to the religious side of Christmas, so much focuses on children.  However, many are surprised to discover that Kris Kringle as the bearded, red suit wearing, cookie eating, stocking stuffer gift bearer for kiddies is a relatively recent phenomena.  How could that be the case with the roots of Santa Claus traced back 1,700 years ago to Saint Nicholas?

To understand the evolution to the current jolly St. Nick, it is necessary to appreciate a little history of Christmas itself, the struggles of Santa Claus in keeping Christmas going, and how groups along the way incorporated Santa to achieve their purposes.  Looking at this transformation may even teach us a few things this holiday season.

We can start with Saint Nicholas himself.  He was a Bishop in the Church who resided in Turkey, not the North Pole.  Folklore has it that at the Council of Nicea in 325 A.D., Nicholas’ disagreement with religious brethren resulted in him suffering a broken nose during a fight.  The remains of Saint Nicholas confirmed the broken nose, but the underlying tale of fisticuffs cannot be historically verified.  

Despite this reputation, Nicholas possessed a soft side when it came to children.  He gave away his wealth to those in need and protected children.  For instance, Nicholas provided three bags of gold to a poor father of three girls to be used as dowry.  Absent a dowry, the girls were headed toward careers as “professional” women of the evening.  Further protecting children, while at an inn, Nicholas discovered three dead children fermenting in brine barrels.  Saint Nicholas resurrected the pickled children and punished the inn keeper.

These deeds to protect children and a view of him as a common, tough fighter resulted in his tremendous popularity through the Middle Ages.  Saint Nicohlas became so celebrated that his feast day, December 6, would be celebrated by giving gifts to children (gifts to children sounds familiar).

On a separate track and not associated with Saint Nicholas, in the 400s, Pope Julius I decreed December 25 as the Feast of the Nativity to recognize the birth of Jesus.  But why December 25?  As the Catholic Church has done in other instances, Pope Julius I appears to have hijacked a pagan ritual.  The Roman feast of Saturnalia culminated in late December with much wine and food to celebrate the harvest.  At the winter solstice, Romans also began the feast of Juvenilia which honored Roman children (focusing on children at a holiday sounds familiar).  Finally, Romans already celebrated December 25 as the birthday of Mirtha, the god of unconquerable sun (December 25 as a birthday sounds familiar).

December 25 also fit neatly with other cultures for Pope Julius I.  In Germany, the winter solstice honored the pagan god Oden.  Oden, apparently not a particularly cordial god, would make night time flights observing his subjects to determine who would perish and who would prosper (nocturnal flights, evaluating who has been naughty or nice sounds familiar).

In Scandinavia, the Norse celebrated the feast of Yule, beginning on December 21.  Yule recognized the return of the sun and longer days.  Large logs would be set ablaze with the Yule festival lasting as long as the fire.  These logs would burn up to 12 days (12 days of celebration sounds familiar).

Church leaders embraced this December 25 Christmas and coopted traditional winter solstice customs and festivals as part of Christmas.  By the Eighth Century, Christmas had spread across Europe and North Africa with confirmation of such celebrations in such far away lands as England, Scandinavia and Egypt.  But the combination of Christmas with pagan rituals appears to have resulted in unintended consequences.

By the Middle Ages in Europe, celebrations for Christmas included attending church in the morning followed by all day drinking and rowdy activities.  Someone would be declared “lord of misrule” to lead others to the houses of the rich demanding more drink and food.  But wild and drunken parties could not be tolerated by the Puritans who would then come to power.

The Puritan Reformation in the 1500s and 1600s ushered in a declaration of war on Catholic saints and holidays such as Christmas.  The Pilgrims brought this Puritan set of beliefs to the New World.  In fact, between 1659 to 1681, the celebration of Christmas was outlawed in Boston with a five shilling fine for anyone exhibiting the Christmas spirit.  However, beyond Puritan control, Christmas lived on.

At this time, the Dutch honored Saint Nicholas or “Sinterklaas” during the Christmas season.  The Dutch portrayed Sinterklaas in a red bishop’s miter and snowy white beard (red hat, white beard, named Sinterklaas sounds familiar).  When the Dutch migrated to New York, they brought Sinterklaas with them.  Christmas again flourished in America, at least until the early 1800s.  However, Christmas festivities still reflected more of an adult, carnival drink fest than the celebration focusing on children, family, religion and peace.

In the early 1800s, the Saint Nicholas Society in New York discovered the ideal front man to transform Christmas celebrations: St. Nick himself who was known and beloved for being so kind to children.  This Society sought to make Christmas a family event through St. Nicholas.  They received prompt support from writers and artists.

Enter well-known author Washington Irving.  In 1819, Irving published “The Sketchbook of Geoffrey Crayon, gent”.   This series of short stories reflected a peaceful Christmas scene of an English country squire hosting society’s well-to-do together with the less fortunate.  Irving presented the combination of all from society enjoying Christmas together as some ancient custom, despite being a complete fictional account.  The American audience began following these more peaceful “ancient” customs.

In 1821, an anonymous poem, “The Children’s Friend”, circulated featuring “Santeclaus”.  Santeclaus traveled by sleigh pulled by reindeer with rewards for children.  Clark Moore followed with his poem in 1822 entitled “An Account of a Visit from St. Nicholas”.  This poem is only slightly better recognized by its opening line: “Twas the night before Christmas . . .” with a complete description of Santa Claus included.

Other contemporary literary works more firmly established Christmas as the charitable, gift-giving season offering well wishes.  Charles Dickens published “A Christmas Carol”.  But it was not until 1881 that the current depiction of Santa Claus arose.  Cartoonist Thomas Nast immortalized Santa Claus as the jolly elf with white beard, red suit and sack of toys in his illustration of Moore’s classic poem “Twas the Night Before Christmas”.  Santa Claus as the marketing and advertising dream was then born.  Santa never looked back.

Part of how we understand and appreciate Santa Claus is a blind acceptance that he has been around a long, long time.  He was there for us as children, our parents and grandparents when they were children, and countless prior generations of children before them.  Christmas tales reinforce this idea of the timelessness of Santa Claus.  However, everything is not always as it appears.  Santa Claus confronted real struggles to get where he is today.  Thanks to the Scandinavians, Sinterklaas appears to have bridged the gap between the feast day of Saint Nicholas and Christmas day.  More importantly, St. Nick survived the Puritanical purge of saints during the Reformation.  Despite being outlawed in Boston, Kris Kringle re-emerged in New York and elsewhere.  Only with literary assistance in the 1800s did Santa Claus become as we know today.

We take, as we must, the story of Santa Claus at face value.  Nonetheless, the back story illustrates a figure forced to address numerous challenges and one who changed to meet the circumstances of the day.  The evolution of Santa should remind us that those with whom we deal probably have their own back story with unique sets of challenges about which we have no idea.  Perhaps we can show greater sympathy and empathy this holiday season assuming that others may also have had difficult obstacles to overcome as did St. Nick.

I could go on about how the story of Santa Claus provides lessons for mediation such as accepting changed circumstances, having to dig deeper into backgrounds of storylines, and how difficult it would be to sell fanciful stories to triers of fact.  Instead, this holiday season, I simply wish peace and hope you enjoy the spirit of the very modern Santa Claus.

A Risky Business

In her later years, my mother-in-law, Ann, thoroughly enjoyed gambling.  On occasion, I would be enlisted by her daughters to chauffeur Ann to the casinos about an hour’s drive from her place.  I actually treasured these times alone with Ann as we otherwise would always be surrounded by family.  The casino trips provided the rare one on one opportunity for meaningful conversations between us.

I marveled at her gambling routine once at the casinos.  Ann would locate the desired video poker machine at a bar, order a Manhattan to drink, and gamble no more than the $20 she brought plus the $20 I would secretly slide her.  Between bets, Ann would demand the bartender to explain why the Syracuse ballgame was not on any of the television screens at the casino located in Mississippi.  Inevitably, she could make the modest investment last hours much to her amusement.

I, on the other hand, followed a different routine of sorts.  First, I would have to pull the twenty-something year old bartender to the side to explain how to properly make a Manhattan, and generously tip the bartender so that this new exotic drink, a Manhattan, would continue to flow to my mother-in-law.  Once Ann and the mixologist were set, I would proceed to the blackjack or craps tables.  After a few hours, I would scoop up my evening’s geriatric charge and drive back wondering how the night cost me $300 while my mother-in-law enjoyed hours of entertainment at almost no cost.  I miss those trips with Ann.

Ann understood risk.  She was willing to lose $20 of her money, but no more.  She appreciated that 100% of her $20 might be lost and that, regardless of this fact, she would receive the enjoyment of an evening out on the town.  She further understood the odds of winning at the casino remained in the favor of the house, but that, at times, her Irish luck would break in her direction.

The risk calculus Ann used for an evening of gambling is one we all follow.  In taking risks, we want to best understand the uncertainties, and, if possible, control them.  Take picking stocks as an example of risk tolerance.  A company’s balance sheet can be carefully scrutinized.  The customer base and anticipated sales for the company can be studied.  The future for the industry in general, micro-economic and macro-economic issues can all be vetted.  Armed with this knowledge, we can decide whether to “roll the dice” in purchasing a stock.

This type of analysis applies to many aspects of our lives.  Walking across a busy street involves the risk of being struck by a motor vehicle.  To be safe, we cross at controlled intersections only when the pedestrian icon illuminates and only after we observe that on-coming traffic has, indeed, stopped.  With the variables controlled, we can safely proceed across the street.

We willingly accept risks where we fully appreciate the consequences (Ann losing her $20); where we understand the potential influences on the risks (study the economics of investing in stocks); or where we better control the risk factors (cross at the green, not in between).  People are generally cautious and avoid unnecessary risk or at least seek to manage it.

In mediations or settlement conferences, I have witnessed the utter disregard of this inherently cautious approach by lawyers and litigants.  At some point, the mediator or neutral will raise the specter of litigation risk as a consideration.  Well prepared lawyers readily respond that case law supports their positions or that uncontroverted facts will carry the day for their cases.  Some lawyers will be able to cite relevant jury verdicts for similar fact patterns as confirmation of assigning modest risk to proceeding toward a trial.  These type of responses miss the mark.  Those responses address known or knowable litigation risk factors.  True and unquantifiable risk lies hidden in the unknown and unknowable factors.

Unlike picking a stock or even throwing dice at a craps table, the litigation process necessarily includes inherently unknowable risks and risk factors which cannot reasonably be anticipated in preparation.  Here are but a few real life examples of the unknown, unknowable, or unanticipated factors from litigations and trials from my own career.

Just Friends

In the middle of a six week trial involving multiple plaintiffs and defendants, the judge takes the bench and casually announces that every Sunday he plays a round of golf with three attorneys for the plaintiffs.  As the weekly golf game is simply a sporting event among friends, it can have no influence on the court, so says the judge (Note that the judge never stated whether the golfers discussed the pending trial during their golf outings).  The judge wanted to place that statement on the record in the interest of complete disclosure, but he remained certain that no party had any issue with it.  Thanks judge.

The Early Christmas Present

A multi-year litigation culminated in a case the court scheduled to commence immediately before Thanksgiving and be completed no later than December 21.  Given the time allocated to each party, the jury would receive the case for deliberations on December 21.  The judge repeatedly advised the jury that their service would be completed before Christmas.  The jury began deliberations on December 20.  On December 22, with no end to jury deliberations in sight based on questions from the jury, the judge announced that he made a mistake in his jury charge and would modify his jury instructions.  Over objections, the judge added a new element of proof to the plaintiff’s claims.  No party had addressed this element of proof in their case and the judge knew it.  The jury listened carefully to the new requirement added to plaintiff’s case and returned a verdict for the defense twenty minutes later.

The judge created a nightmare for appeal, entered a judgment he knew could not withstand challenge on appeal, and wasted the resources of all parties putting on a multi-month trial.  But, hey, everyone was home by Christmas as promised.

The Foul Mouthed Witness

It is not exclusively judges who throw you wild cards.  Your own witnesses can cause the train wreck at trial.  I represented a large Japanese camera manufacturer at trial.  A Japanese witness whose testimony just completed was an engineer who discussed various features of cameras and lenses.  At the conclusion of his testimony, our counsel table was littered with boxes and styrofoam pieces from the packaging.  The judge denied my request for a five minute recess to allow us to repackage all the cameras and accessories before proceeding to my next witness, the American head of sales.  Quite reasonably, the judge told the jurors to stand and stretch in the jury box while we put away all the equipment.

With our backs to the jury, I whispered to the American head of sales to appear helpful and assist in putting away the cameras and lenses as the jurors were watching us.  The chief sales guy fumbled with a lense and styrofoam piece for a minute, became frustrated, tossed the pieces back on the table and said way too loudly: “Only the f***ing Japs can put these back together”.  The judge and jurors stared at my next witness with mouths agape.  I did my best to act like nothing happened.  Game, set, match for the adversary.  

Bonus risk factor from the camera litigation:  When representing a Japanese company, try to avoid taking the case to trial on the 50th anniversary of Pearl Harbor.

Birds of a Feather

In a product liability case, we remained confident that the plaintiff could not establish a defect in the product or that the product caused the fire at issue.  The plaintiff’s own experts had no answer to our proof of an alternative cause.  The plaintiff himself was not sympathetic mostly because he was the alleged alternative cause of the fire.  

In this particular court, a case for trial is not assigned out to a particular trial judge until the first day of trial.  Plaintiff’s counsel in this action was, unfortunately, wheelchair bound due to a horrible motor vehicle accident.  The case was assigned to the one judge in the district who was also wheelchair bound.  The trial judge took the bench and immediately disclosed the four or five organizations and associations where he and plaintiff’s counsel closely work together.  The judge then inquired if the defense has any problem with people with disabilities.  We settled the case by lunchtime.

Darling Dearest

The unexpected can happen anywhere along the litigation spectrum, including as part of a mediation.  A week before a scheduled mediation, unsolicited, I received a letter and photographs from a party’s wife.  The letter asserted that in good conscience, the wife could not permit her husband to exaggerate the nature and extent of the injury to his ankle.  The wife claimed that before doctor visits, her husband would hit his ankle against their bedpost to enhance bruising and swelling.  She included photographs from a family trip to Disney World with her husband walking with the family and waiting in lines.  These photographs ran counter to the photographs submitted to our side by the claimant which illustrated the claimant in a wheelchair and having to wear a boot while at Disney World.

Both husband and wife appeared at mediation with the husband’s attorney.  We privately conveyed the wife’s disclosures to the claimant’s counsel.  After a lengthy time to regroup, the claimant’s attorney asserted that the wife’s disclosures merely confirmed the true love story between the husband and wife.  According to this lawyer, the family relationship was strained with the parties veering toward divorce due to the trauma of this accident.  The wife sent us the information when the couple was at a low point.  But now, one week later, they were back together and their love stronger than ever.  The wife really did not mean everything she told us (I suppose she also did not mean to provide the damaging photographic evidence).  Nice try.  The case settled below nuisance value.

Unfortunately, I have numerous other, equally absurd examples of events from trials or litigation which no one could have reasonably predicted or foreseen.  You cannot make up this stuff.  Each example seems like a surreal scene from a movie, but each event happened to me.  I am not unique and other litigators and trial attorneys can share their own impossible or unbelievable moments.

What remains equally unknowable is whether these events will represent a speed bump in a case or cause a twenty car pile up.  Either way, they will happen.  When a mediator discusses “litigation risk”, do not think of Ann and her $20 bill at a casino.  Ann addressed the known and identifiable risks.  Instead, think about how you would seek to explain any of these wacky examples to your client and why you did not anticipate it.  Remember, settlement buys finality and precludes these events from materializing.  Manage the risks rather than charge head first into them.

“Trick or Treat!” – “Trick!”

Quick Blog post – Halloween Edition

Most people are aware that Halloween festivities date back centuries.  Whether celebrating the end of summer, conclusion of the harvest season, or more commonly commemorating the deceased, Halloween included the donning of costumes and journeying from house to house in search of food or a few coins.  Dating back to at least the 15th Century, Christian Halloween celebrations included the handing out of a small pastry or soul cake to the revelers in return for promises of prayers for the dead.

Fast forward to present times where Americans will spend $8 billion on Halloween candy, costumes and decorations.  $2.5 billion of that figure will be to purchase candy.  1/2 billion will be spent on pet costumes.  Yes.  Pet costumes.  Halloween should be the celebration of American consumerism.  Perhaps we can hand out soul cakes with promises of Trick or Treaters to pray for our drained bank accounts.

But how did the phrase “Trick or Treat” originate?  The history of Halloween remains rich with folks performing simple tricks in exchange for treats.  In some cultures, the trick could be reciting verse or performing scenes from plays in return for food.  These performances would appease the souls of the dead believed to roam the lands at Halloween.  In 1593, Shakespeare references this tradition in The Two Gentlemen of Verona.  With such practices going back to the 1400s or earlier, use of the phrase “Trick or Treat” remains a quite recent development.

“Trick or Treat” is distinctively North American.  The phrase was coined in Canada or the U.S. in the 1910s or 1920s.  The first written reference to its use appears in a 1927 newspaper article:

“Hallowe’en provided an opportunity for real strenuous fun.  No real damage was done except to the temper of some who had to hunt for wagon wheels, gates, wagons, barrels, etc., much of which decorated the front street.  The youthful tormentors were at back door and front demanding edible plunder by the word “trick or treat” to which the inmates gladly responded and sent the robbers away rejoicing.”

Trick or Treating, as we know it today, began around 1910.  In honoring older customs, these early, modern day trick or treaters would be ready to perform a trick to earn a treat.  By the 1920s, the “tricks” began to dominate the “treats” with escalation to mostly harmless vandalism as reported in the 1927 newspaper account.  During the Great Depression in the 1930s, trick or treaters did not enjoy the best reputation as they became synonymous with beggars which were way too common in society.  

Costumed Halloweeners greeting households with “Trick or Treat” limped their way through the 1930s with the practice abruptly, completely halted in 1942.  Due to World War II sugar rationing, there were no treats and, therefore, no trick or treating until after the war.  By 1947, trick or treating re-emerged but not without distractors.  In 1948, the Madison Square Garden Boys Club in New York City protested trick or treating in a parade in which they carried a sign reading: “American Boys Don’t Beg”.  Imagine a group of boys protesting free candy or treats.  There must be more behind that story.

By 1951, the “Trick or Treat” catch phrase appears to have become firmly established in our culture when the characters in the iconic Peanuts comic strip yelled “Trick or Treat” at someone’s door.  A 1952 Disney cartoon followed the challenges of Donald Duck taking his nephews Huey, Dewey and Louie trick or treating where they used the greeting throughout.  “Trick or Treat” became mainstream by the early 1950s.

The practice of demanding a trick has all but been abandoned.  Apparently, a few neighborhoods in St. Louis, Missouri and Des Moines, Iowa still demand a trick prior to securing a treat.  Of course, there is also the lone old man in northern New Jersey who engages in this practice.  While trick or treating in my suburban New Jersey neighborhood many decades ago, at one particular house, the refrain of “Trick or Treat!” was met with the old man sternly demanding “Trick!” in response to the kids at his door.  In order to reach the promised land of full-sized candy bars in his dish, each child had to perform a trick.  We commonly used the “I can make myself disappear” trick and stepped behind a fellow trick or treater for a few seconds.  A childhood friend later reflected that the old man never said it had to be a good trick.  With candy bars secured, we moved on.  While the old guy remained somewhere between scary and funny, he stands out as distinct among Halloween memories.

Where Halloween activities began centuries ago, Ireland, Scotland and England, it was not until the 1980s that the phrase “Trick or Treat” began to be used.  However, as traditionalists, some of these cultures possessed great difficulty accepting the Yankee influence on the celebrations their ancestors invented.  A BBC journalist referred to use of “Trick or Treat” as “making demands with menaces”.  It appears that a good contingent in these countries wanted to return to the greeting: “Help the Halloween Party”.  I guess the phrase: “We are costumed to calm the wandering spirits and you must provide soul cakes” was already taken by others.

With alliteration, “Trick or Treat” flows freely off the tongue and can even be proclaimed while a piece of candy is already stuffed in one’s mouth.  “Trick or Treat” concisely captures the history and essence of Halloween traditions.  A costume, a modest performance, or a simple trick may appease the spirits among us.  Offering nuts, apples, coins, soul cakes, or more recently candy in response better ensures that the spirits will not trouble our thresholds.  Three simple words of greeting: “Trick or Treat” embodies centuries of traditions.  The amazing part is not that we use “Trick or Treat”, but that it took us five hundred years to come up with such a simple phrase.

When you open your door and hear “Trick or Treat”, remember that these kids are only doing their part to try to keep you safe from menacing, lost souls of the dead let loose at this time of year.  Be generous with your response in the form of abundant, quality candy so that the wandering spirits will pass by your abode.  Or, simply be like the scary old guy who demands a “Trick!”  Either way, Happy Hallowe’en.

A Catcher in the Wry

The baseball playoffs are in full swing.  The Fall Classic is almost upon us once again.  However, it is difficult to find anyone who genuinely cares other than die hard sports fanatics.  The casual fan has left behind baseball and its 162 game, feels like never ending, 8 month long season.  In this day where e-mail is not fast enough so that we must communicate by instant messages, we have been conditioned to demand resolution and finality quickly.  Instead of listening to Red Barber stories between pitches, we send and receive multiple tweets on a variety of topics.

I generally followed baseball when I was young.  In the shadows of New York City where I grew up, the only argument among school kids was whether you should root for the Yankees or Mets.  Fast forward to my law school years in Boston in the mid-1980s.  I lived but a well hit foul ball away from Fenway Park where the Red Sox hold court.  I became swept up in the rejoicing of a community where The Curse of the Bambino would finally be lifted in the 1986 World Series as the Red Sox battled the Mets.  The Red Sox had not returned to the World Series since 1918.  In 1919, the Red Sox sold the contract rights for Babe Ruth, or the Bambino, to the New York Yankees.  Trading away perhaps the greatest baseball player in history resulted in The Curse which held that the Red Sox would not win another World Series.

With Sox up 3 games to 2 in the best of seven World Series, I watched game 6 at a bar adjacent to Fenway Park with hundreds of my fellow fans.  In the 10th inning with Sox leading and one out away from clinching the championship, you not only heard the collective groan, but also felt the collective pain, when Mookie Wilson’s harmless ground ball to first base rolled between Bill Buckner’s legs thereby providing victory for the Mets.  While game 7 was back in Boston, the Red Sox Faithful (or Fateful) knew The Curse would continue.  The Mets won game 7, but I was hooked as a Red Sox fan and their historic suffering.

Even with this emotional tie to one baseball team, like so many, I cannot follow baseball.  Perhaps it is the length of the season.  Perhaps it is the length of the games.  Perhaps it is the amazingly slow pace of the games.  Perhaps we now have so many alternatives competing for our limited free time as opposed to just one generation back.  Regardless of the reasons, it remains too laborious to remain engaged.

What, then, recently served to remind me of more fond memories of baseball and inspire this post?  Surely it was not the baseball playoffs as I cold not tell you which teams remain in contention.  Surely it was not local excitement as no sport exists here in the Fall beyond the Saturday religion otherwise known as college football.  Instead, I overhead a simple conversation while in line to checkout at a store.

In response to his child’s complaint, a father said, “It ain’t over till it’s over.”  The child looked perplexed and I immediately thought of Lawrence Peter Berra.  Of course, he is better known as Yogi Berra and this quote is one of his best known Yogiisms.  Yogi Berra, a Hall of Famer, played for the Yankees from the 1940s through the 1960s.  Yogi was a ferocious hitter, best known as a catcher, but also played other positions for the Bronx Bombers.  In addition to his baseball skills, Yogi became a beloved figure beyond sports due to his positive approach, good nature, and simplistic, if not confusing, shorthand way to state things.  These quaint assertions became known as Yogiisms.

Spurred on by this reminder of Yogi Berra, I researched Yogiisms as I could only recall a few of the most famous quotes.  As I considered the Yogiisms, it struck me that many of these statements can be applied to so much more than baseball.  In part, in his simple manner, Yogi provided advice for getting through life.  Remarkably, many of the Yogiisms apply well to negotiations, mediation and resolution dispute efforts.

Regardless whether you are enjoying the baseball playoffs, simply making your way through life pleasantly unaware that baseball is still being played, or are involved with mediation and alternative dispute resolution, here are some timeless Yogiisms and how they may apply to you.

It Ain’t Over Till It’s Over

Some Yogiisms appear difficult to understand at first glance.  Here is perhaps the most straightforward of all Yogiisms.  You never know how the ball will bounce until the last out.  Just ask the 1986 Red Sox.  Keep playing and keep trying.  Subtly, this Yogiism encourages positive thought and approach as you need to believe that a chance still exists.

In mediation and negotiations, we should remind ourselves of this Yogiism when one or more of the parties want to claim “Impasse”.  In countless mediations, negotiations continue after one or even all parties assert that they have presented their best and final offer.  At those stages, I remind the parties that “We are still talking”.  The game goes on and as long as we do not reach that final out, there remains the opportunity for agreement.  The parties can also be reminded of the costly litigation alternative to shutting down the mediation process.  The litigation process and its attendant costs never seems to have an ending.

If You Can’t Imitate Him, Don’t Copy Him

Be yourself.  Understand your own abilities and skills and improve them.  Sports teams fall victim to this Yogiism all the time.  A team wins a championship in a sport with a certain style or approach (e.g., see the Golden State Warriors who appear almost exclusively to shoot 3 point shots in basketball).  The next season, more than half the teams adopt that style.  But quite often the talents and skills of the players on the roster do not fit that particular style.  The team fails miserably and management wonders why the new approach did not work well for them.  Do not be something you are not.

In mediation, I often see lawyers on all sides and insurance representatives with cookie cutter approaches.  You can almost script out how they will act.  Admittedly, these approaches worked in other cases and worked for others who used them.  If the style is imitated, success should follow, correct?  However, every litigation in which I have been involved has been unique based on its facts and people.  In some circumstances, a projection of sympathy or empathy may be needed to move parties forward.  In other cases, only a discussion of cash matters.  In still other cases, a party may need a process to vent or to be heard before compromise can begin.  Cases, simple or complex, present a myriad of factors and issues to which the participants and mediators need to be attuned.  Mere imitation of one style will rarely work well.

I Knew the Record Would Stand Until It Was Broken

The origination of some Yogiisms remain in dispute.  No question remains for this Yogiism as Yogi himself sent this message in a telegram congratulating another ballplayer who broke one of Yogi’s longstanding baseball records.  Change is inevitable even if it is long in coming.  

Parties so often get hung up on how things used to be and they want to go back.  Aggrieved plaintiffs with employment claims so often just want to have their old jobs back.  Companies in business disputes just want to return to the mutually beneficial business relationships.  It is incumbent upon lawyers representing these parties and the mediators to carefully explain that change has already happened and the old way can be no more.  In other words, expectations need to be properly managed by all involved in the processes.  Even where that former relationship lasted a lengthy period as did Yogi’s record, change forces a new paradigm.  

Always Go to Other People’s Funerals, Otherwise They Won’t Go to Yours

Show respect along the way and you will receive respect in return.  Do the right thing.  It will be noticed by others.  

In mediation, I almost always require an initial joint session even if it includes nothing more than participants greeting each other and going over ground rules.  Personalize the process.  Respect for each other as individuals and as people begins to flow from this simple step.  In trying to close a gap to conclude a negotiation, I have heard comments along the lines that the adversary does not appear to be such a bad guy after all so a little more would be offered or a little less would be accepted.  

If You Don’t Know Where You Are Going, You Might Not Get There

Have a goal.  Have a plan to achieve that goal.  Anticipate that there will be challenges and unforeseen changes along the way.  As long as the goal stays within focus, you can set a course to achieve it.

In mediation and negotiations, I often encounter participants with a clear goal (I will not settle this case below $100,000).  The parties have deeply thought about the goal, studied other case values involving similar claims, factored in the likelihood of recovery in that jurisdiction, and carefully considered their own circumstances.  These same participants who prepared on this issue show up with no plan to achieve that goal.  Take the time to think through the case from the perspective of the adversary who starts with a very different goal.  Identify those factors to be used to move the adversary toward your analysis.  Listen to the positions presented and be flexible to incorporate new or different points in response knowing where you are going.

When You Get to a Fork in the Road, Take It

I have personal knowledge about this Yogiism.  Yogi lived in Montclair, New Jersey.  I grew up one town over.  The fork referenced by Yogi is on the main road of Bloomfield Avenue.  If you take the right side of the fork, the next right turn will be on Pompton Avenue.  If you take the left side of the fork, the next right turn will be on Pompton Avenue.  Just “take the fork” and then turn right on Pompton Avenue.  These directions actually make sense to anyone who lives in that area.

In addition to driving directions, this Yogiism reminds us that different journeys can get you to the same destination.  One journey may be longer.  One journey may have more challenges.  During mediation, do not be distraught getting stuck on one point or veering off on what appear to be a tangent.  Trust the mediator who understands the dynamics involving the parties in each separate room.  The mediator’s eyes remain focused on the destination.  Go on the journey on either side of the fork if the mediator signals that such a path is important in the process.

Baseball became enormous business over the past generation.  Maybe personalities such as Yogi Berra could not break through the current corporate structure surrounding the business of baseball.  Maybe Yogi simply remains terribly unique.  In any event, it is clear that baseball and the shrinking interest in the sport could only benefit with a few more personalities like Yogi Berra.  In closing, whether in life or in mediation, we should all heed Yogi’s advice to not make “too many of the wrong mistakes.”

The Musical Muse Turns 70

This week, Bruce Springsteen turned 70 years old.  With a new album recently released, The Boss is still rockin’.  The Boss had the fever for rock ’n roll since the 1960s on his way to becoming a local hero at the Jersey Shore.  While growin’ up, The Boss was no cautious man, traveling the backstreets from Asbury Park to Atlantic City searching for that musical magic.  Taking a roll of the dice, he put together the E Street Band in the early 1970s.  Bruce and the E Streeters were born to run with Bruce destined to be one of the most popular and revered artists of his time.

Commemorating this 70th birthday, a few articles popped up this week seeking to explain Bruce’s rendezvous with success spanning decades.  The Boss has never had a “Number 1” hit.  Yet, his popularity continues to increase as others fade away.  This article briefly explores Bruce’s amazing popularity and a fundamental reason it continues to expand as Mr. Springsteen enters his seventh decade.  Point blank — these other articles missed the mark.  A rather simple explanation is not wrapped in some brilliant disguise, but plain to see.  What have all these pundits overlooked?  What could be so basic to drive and expand popularity all this time?  And, amazingly, what might it teach us about mediation and litigation?

First, disclosure and a confession of sorts.  Since the late 1970s, I have been a Springsteen fanatic.  From my hometown in New Jersey, my buddies and I would drive all night until the light of day just to get to the next concert of Bruce and the E Street Band.  I have seen well more than a dozen Bruce shows live.  One friend and I reached the promised land one night in the mid-1980s when we partied with The Boss at a small, local bar down the Jersey Shore (more on those glory days later).  My wife and I insisted on Springsteen songs among the playlist at our wedding reception with his songs still among the ties that bind us.  I am not impartial when it comes to the music of The Boss.

The huge business known as the entertainment industry rewards only the current hot “thing” and immediately moves on to the “next big thing”.  The business takes no surrender in stomping on any artist’s book of dreams in search for the next hit.  A musician’s life comes with no easy money with most artists winding up out in the street.  Despite these odds, Bruce and the E Street Band steadily grew in popularity with their grit, raw style while other fads came and went (disco, the MTV generation, big hair/heavy metal, techno rock, rap, etc.).  Over the decades, Bruce racked up 20 Grammys, an Oscar, a few Golden Globes and a Kennedy Center Honor.

What has given Bruce one step up on all the entertainment industry competition and the entertainment industry complex itself?  These recent articles suggest the following:

Correctly, these articles note that Springsteen is masterful at writing songs.  The Boss brings a human touch to his poetic verse in making his songs come to life.  Great songs.  Check.

Uniformly, these articles observe that Bruce and his band put on epic, legendary live shows which no other performer can match in duration or intensity.  Bruce can prove it all night with the band typically playing four or more hours until they shut out the lights.  Great shows.  Check.

Some of these articles suggest that The Boss will challenge his audience which adds to his appeal.  The latest album, Western Stars, presents an almost country music feel.  His 1982 album, Nebraska, daringly left behind many electric guitars and signature horns.  Where other artists fear treading on the rocky ground of something new and different, Bruce boldly crosses the river and walks bravely into the fire with high hopes that his audience will follow and new fans may join the ranks.  Bruce grows as an artist.  Check.

Interestingly, these articles cite Bruce being respected and revered by other artists as a reason for the lofty status of The Boss.  Given the down to earth nature of his songs and rather humble beginnings, Bruce may not necessarily enjoy being considered the man at the top, but such may be the price you pay.  Professional peer respect and admiration.  Check.

Bruce has been open with his fans about his own vulnerabilities.  He has spoken about a challenging relationship with his father.  He has battled depression.  He had to work through a divorce.  Bruce has lived life itself and shares his experiences.  From these restless nights eventually comes better days.  His songs reflect this very fragile, human side.  Bruce is a real person and shares both the good and not so good.  He is human like us all.  Check.

Finally, The Boss presents a strong element of social justice, or perhaps injustice, in his music.  For example, so many politicians like to use Bruce’s song Born in the USA as an anthem of patriotism.  Listen carefully to the lyrics to find a song about a nation which fails to be there for returning soldiers who just fought with their blood brothers — no jobs, no help, no thanks for all your sacrifices.  Social conscience.  Check.

All of these points certainly contribute to the overall success of The Boss.  I suggest the most fundamental aspect of Bruce’s popularity and longevity rests in the undeniable fact that Springsteen is living proof of the supreme master storyteller.  

I do not profess to know the psychology of storytelling and why people so admire good storytellers.  Perhaps because a storyteller can transport you into the story itself.  Perhaps the power rests with instant connections to the characters in the story.  A good story evokes sympathy and even empathy for the characters.  Whatever the reasons, we like stories and remain enthralled by good storytellers.  The Boss is an excellent storyteller.

Here is but one example from Bruce’s music.  The song Thunder Road begins:

The screen door slams, Mary’s dress waves

Like a vision she dances across the porch as the radio plays

Roy Orbison singing for the lonely

Hey, that’s me and I want you only

Don’t turn me home again, I just can’t face myself alone again

Don’t run back inside, darling, you know just what I’m here for

So you’re scared and you’re thinking that maybe we ain’t that young anymore . . .

All can envision the setting on a large porch with music playing from merely one line of the song.  The man in the song has put himself out there for Mary.  He expresses his vulnerabilities and fears and knows Mary is equally fearful.  You are hooked and rooting for the two of them halfway through the first verse.  We all understand being afraid of rejection, relationships and the prospect of loneliness.  The first verse of the song is not even completed.

Rather than chronicle the stories in Bruce’s songs, permit me to share two Springsteen stories from my own experiences.  On December 8, 1980, I attended a Springsteen concert in the old Philadelphia Spectrum.  Being December, the show featured a number of Christmas songs and band members in Santa hats.  The spirit in the night was positive for all until the encores.  Bruce came back on stage for the first encore dragging his guitar behind him.  He was visibly shaken.  He solemnly announced to the crowd that he just learned that John Lennon had been shot and killed in New York City.

Bruce spent the next few minutes explaining how much the Beatles meant to him and every kid who picked up a guitar after 1964.  Springsteen related how he studied the Beatles lyrics and strove to make his own songs simple and understandable as John and Paul wrote.  The E Street Band then played a set of Beatles music in tribute.  There could be no rehearsing the stories Bruce passed on at that fateful moment.  They were genuine.  You could feel the storyteller’s own pain as the words poured forth.  As the crowd emptied out to the streets of Philadelphia, concert goers still had tears in their eyes.  

The second story is a little more lighthearted.  In the mid-1980s, my friends and I wasted too much time at the Jersey Shore.  Rumors always swirled around that Bruce had been spotted nearby and we were in the lucky town where The Boss will show up next.  One night when a buddy and I were at a seedy little bar in Belmar, New Jersey with a crowd of maybe 30 people, Bruce strolled in with a few friends.  Bruce joined the house band — which terrified the band members — played for about 45 minutes and then held court at the bar.  

While sharing beers, everyone gathered around like children listening to grandpa.  Bruce told stories about when he started out and dreamed of playing before a huge crowd like these 30 people at this bar.  He had everyone doubled over laughing at the vision he created of his band being booed off the stage so the regulars could watch the ball game on tv.  He encouraged the house band to stick with it to reach the land of hope and dreams.  Once more, off-the-cuff stories transported us back to Bruce’s early days with him.

If any doubt remains, view a recording of Bruce’s Broadway show.  You need not be a Springsteen fan to be pulled into his stories behind the music.  Through these stories, without trying, you feel for him and feel like him at the same time.  Storytelling is powerful.

Mediation practitioners and trial lawyers can take lessons of storytelling from The Boss.  In mediation, attorneys typically show up well prepared to discuss key facts and legal issues.  One line of inquiry as a mediator is to discuss the alternatives if settlement is not reached.  If the case proceeds to a jury, what is the story the party will tell?  Quite often, the lawyer wants to reiterate the great facts or legal positions in support of claims.

Failure to develop a good storyline in litigation or even mediation is an opportunity missed.  Attorneys will benefit from working on a story and themes early in the case.  A good story captures the audience (jury) just as Bruce captured the audience with half a verse of Thunder Road.  A good story can make the audience want to root for certain parties.  A good story presents a framework to allow the audience to feel sympathy or compassion for particular parties.  A good storyline may present a convenient vehicle to ignore or belittle “bad” facts or evidence as not fitting into the narrative.

Lawyers, as advocates, need to work on storytelling skills.  Listen to The Boss tell a story through is music, Broadway Show or from clips from his concerts.  Lawyers who show up at mediation without a solid storyline for the case and without litigation themes, quite simply, are not prepared for trial.  They might be well set for motion practice, including summary judgment applications.  However, the trial presents a significant risk and they may not appreciate the magnitude of the risk.  Develop storylines early and work on storytelling skills.

Happy Birthday Bruce.  Oh, and for those die hard Springsteen fans, you should be able to locate the 48 Bruce song titles used in this article.

Lying in State, John McCain and Mediation

This past week we celebrated the remarkable life and achievements of John McCain. War hero, Navy Captain, U.S. Senator, family man, author, patriot. You did not have to agree with McCain to appreciate that he lived staunchly dedicated to his moral compass. At times, many found themselves in disagreement with McCain. Heck, McCain and his own political party routinely found themselves in disagreements.

Even with disagreements, we should admire McCain’s unwavering dedication to “do the right thing”. Yet, McCain was also practical. McCain understood well that sometimes, perhaps oft-times, you need to take small steps on a journey toward a goal. McCain had the fairly rare ability to continue to see the big picture and understand how these small steps could lead to the desired result. More on those points later.

One honor of McCain came from Congress itself: McCain was lain in State in the Capitol Rotunda. To lie in State or lie in Honor at the U.S. Capitol requires Congressional Resolution or approval by Congressional leadership. McCain’s casket rested on the Lincoln catafalque (the simple pine structure constructed to hold the casket of President Lincoln and subsequently used for each person honored to lie in State). Thousands were then able to pay respect and mourn a true statesman.

Admittedly, I knew little about lying in State in the U.S. Capitol other than it seems to happen when well-known American politicians pass on. With some research, I discovered a few noteworthy facts about this honor. First, as noted, Congressional Resolution is required unless the death occurs when Congress is in recess. If Congress is not in session, Congressional leadership approval is required. American politicians/statesmen and military personnel lie in State. Other American citizens lie in Honor. The Lincoln catafalque is used for all lain in State, but has never been used for those lain in Honor.

29 Americans have lain in State. 4 Americans have lain in Honor. 11 U.S. Presidents have lain in State. 4 military soldiers were selected to lie in State as representatives of the Unknown Soldiers of WWI, WWII, Korean War, and Vietnam Conflict. In 1998, the first to lie in Honor were Capitol Police Officers Jacob Chestnut and John Gibson, both killed in the line of duty protecting the Capitol. Of the 33 Americans to receive this honor, 1 was a woman.

Civil Rights pioneer Rosa Parks lain in Honor upon her passing in 2005. I get it. For the majority of the history of the United States, women were mostly excluded from the military and politics. As such, there would be little opportunity to recognize a woman to lie in State. Yet, Congress believes that only one woman from our rich history deserved this honor? Rosa Parks is a fine choice and deservedly so. But what of Susan B. Anthony, Clara Barton, Grace Harper, Harriet Tubman or Barbara Jordan?

Let’s not hear that these women died at a time that Congress focused elsewhere. Congress should remind itself that it directed the disinterment of Pierre Charles L’Enfant eighty four years after his death in order to have him lie in State and subsequently re-interred. You will recall that the L’Enfant Plan with L’Enfant as the architect laid out Washington, D.C. as our Capitol. We can disturb the eternal slumber of an architect but not those who started suffrage movements, founded the American Red Cross, served as a Navy Rear Admiral while inventing computer programming, became the “conductor” of the Underground Railroad, and broke racial political barriers? Come on Congress, Aretha taught us that we need a little R-E-S-P-E-C-T.

Perhaps surprisingly, serving as U.S. President is not an automatic ticket to lying in State upon death. Noteworthy is that if a President dies or is killed while in office, lying in State is a virtual certainty. With no disrespect to their accomplishments or even them, it does not appear likely that Presidents Garfield, McKinley or Harding would have received this honor absent their untimely, unfortunate demise. Many of the Presidents who have lain in State appear to have had strong ties to Congress in the form of prior service.

In any event, McCain joins a rather select group of Americans to have lain in State. Hopefully, this recognition provided more Americans the opportunity to pause and reflect on the service and dedication of this very public servant. While so many in Washington view “bipartisan” as a four letter word, McCain’s career demonstrated that genuine, simple respect for the positions of others can lead to cooperation and progress.

As a mediator, McCain’s actions in his political career remind me to continually step back in order to see the big picture. When his Senate colleagues lost sight of the big picture, McCain used political clout, procedural rules, negotiations, and very public votes to remind others of the true goals, not those politically convenient. The dramatic McCain vote rejecting the repeal of the Affordable Care Act (“ACA”) illustrates vintage McCain in action.

Many seem to quickly forget that McCain generally opposed the ACA. He apparently was on board to vote to repeal and replace the ACA. McCain recognized that there existed good points in the ACA which most Americans favored (e.g., ending pre-existing conditions exclusions). McCain was among the group of legislators working toward some replacement of the ACA to avoid the previous mess of unregulated health care. The dynamics changed with the forced vote on repeal of the ACA with no replacement. McCain’s “thumbs down” last minute vote was in no manner siding with the opposite political party. Instead, it was a clear reminder to his own party that they committed to repeal AND replace the ACA. In McCain’s view, his party lost its way and he needed to remind them of their own promises to engage in the hard work to create something, not merely take a wrecking ball to that which they did not like.

Similarly, when confronted with mediations bogged down on an issue, I need to be reminded (and remind the participants) to look at the big picture. If, for example, one party is hung up on potential application of some legal precedent, I need to remind that party that such points have already been stressed, the other party has carefully considered the issue, and compromises in positions have been made based on the cogent arguments presented. I then need to encourage the entrenched party to also look at the big picture of moving toward resolution rather than seeking capitulation by the other side. I will remind the party that compromise is required (which does not mean giving up on an issue, but instead reframing it in terms of value). I can introduce new risk factors into the equation such as the likelihood of relief not being fully granted, the court simply sitting on the great motion with no ruling, and costs of proceeding through conclusion and appeal. The parties should be reminded that the resources dedicated to litigation could be used productively elsewhere.

Just as McCain would use Senate rules, his experiences, and relationships, the mediator must be reminded to dig deeper into the resolution toolbox to find what will move the parties forward. The movements need not be grand, but can be taken in small steps. Merely discussing other issues can start the parties to think differently about risk or focus on other factors. The participants may simply need a break and walk around the block in order to come back recharged. Starting discussions about the settlement framework and structure could get the parties to think about finality. None of these steps will settle the case, but any one of them can place the parties back on the path toward agreements and away from sticking points.

Whether it is to remind us to see the big picture, take small steps of progress toward a goal, or move forward by working with “adversaries”, much can be learned from the lengthy and distinguished career of a dedicated public servant such as John McCain. I will seek to apply these concepts in mediating disputes, but, in essence, McCain left us with basic life lessons.

We have almost reached conclusion of this year’s Dog Days of Summer and my own canines are ready for cooler temps. In my mind, the phrase “Dog Days of Summer” always conjures up vibrant images involving the hottest days of summer. A classic view of Dog Days includes a large dog resting below a mossy oak, panting, and simply too tired and hot to chase a squirrel or rabbit which crosses its path. Instead of animals, perhaps Dog Days are better embodied in black and white photos of sweltering city apartment dwellers who brave their rusty fire escapes after sundown in the hope of catching even a warm breeze. Maybe Dog Days are captured with visions of a raving mad, out of control Al Pacino on New York City streets entangled in a bank robbery gone bad. As it turns out, each of these images — lazy, exhausted, weak, reckless, insane — have been part of the fabric of Dog Days of Summer as that phrase evolved over time.

The origination of “Dog Days of Summer” has little to do with actual dogs, although references to canines remain throughout the entire history of use of that phrase. In celestial terms, where Dog Days of Summer began, the “dog” is, indeed, just that. Sirius is the brightest star in the southern sky. While visible most of the year, it cannot be seen in early summer due to the tilt of the Earth. Sirius reappears, or rises, in the night sky on or about July 19. For ancient Greeks, when Sirius arose, the Dog Days started.

But what about the dog part? To locate Sirius, first find the Orion constellation. Follow the line created by the three stars on Orion’s Belt toward the south (usually toward the horizon). The brightest star in that path is Sirius. Sirius is the star which follows Orion across the night sky as a dog follows its master. Thus, Sirius is oft-times referred to as the Dog Star.

The Greeks associated the rise of Sirius with the onset of extreme heat of summer and accompanied unpleasantness. In fact, some Greeks believed that Sirius hid from view in early summer as it was busy adding heat and power to the sun for the Dog Days. In the Iliad, Homer described the Dog Star’s appearance as follows:

“Sirius rises late in the dark, liquid sky. On summer nights, star of star’s, Orion’s Dog they call it, brightest of all, but an evil portent, bringing heat and fevers to suffering humanity.”

Evil portent? Suffering humanity? Bringing heat and fevers? It is little wonder that few, if any, would look forward to the Dog Days. Over time, the perception has not improved terribly much. The Romans blamed Sirius for summer heat and diseases. Drought in the vineyards would be the making of the Dog Star. Romans were cautioned to be vigilant of dog attacks during these days.

Fast forward to the 1500s to discover still little change. The medical practices of bloodletting and induced vomiting were to be avoided during the Dog Days as man was “made weake” at that time. In 1729, a British medical publication noted that if men became ill during the Dog Days, “they be more sick than at any other time, yea very near Dead.” Men were then counseled to “abstain all this time from women.” No bloodletting and no sex while the Dog Days of Summer continued? — sort of a glass half full situation in the medical world.

So, in the Dog Days, men became sickly, feeble and weak. Dogs became vicious. Crops suffered. What group could history possibly treat worse than these in describing the effects of the the Dog Days of Summer? Of course, women. As early as the 2nd Century, Greek men were advised to “steep their lungs in wine” as Sirius approached as “women are at their foulest.”

Hesiod described the arrival of Sirius as the “season of wearisome heat, then goats are plumpest and wine sweetest; women are wanton, but men are feeblest.” Men are feeble. Women are aggressive. So enlightened.

How long do the Dog Days of Summer last? They begin on or around July 19, although the Farmer’s Almanac has an earlier date. Historical references abound for the various end dates of the Dog Days. The earliest end date appears to be August 11. The latest date is September 7. Most cultures carried the Dog Days through late August. Some invoke the Catholic Feast of St. Roch on August 16 as the final Dog Day. St. Roch is the Patron Saint of Dogs with a back story including acts of mercy and compassion involving dogs. With a feast day reminding us of the caring, gentle demeanor of dogs, how could the oppressive Dog Days continue thereafter?

In these times so modern and enlightened, can we avoid the effects of the Dog Days of Summer? Take a few lessons from my own canines, Louie and Sully. First, rarely leave a temperature controlled environment. Second, use the Starbucks Drive Thru to order Puppycinos (Yes. They have Puppycinos and your four legged friend will adore you for them!). Third, on those especially challenging days, lick a vanilla ice cream cone until gone. Fourth, take extra long naps. Actually, that process describes their entire existence, not merely the Dog Days.

In any event, it works. It is still the summertime. Slow down. Enjoy a treat. Avoid bloodletting. Ignore the outdated abstinence directive. The temperatures will cool, the leaves will change, and Sirius will soon enough follow Orion across the autumnal night sky.

Editor’s Note: Michael typically writes on topics which he somehow connects to mediation or ADR. The article about the Dog Days of Summer could probably be used to describe how perceptions change over time and mediation parties must remain alert to changed positions and signals; or to draw obvious analogies between bloodletting and the litigation process, both of which could be avoided with a settlement during the Dog Days. However, the Dog Days have taken their toll and Michael appears too feeble and weak to think about such things. Instead, Michael will take Louie and Sully out for Puppycinos.

Rosie M. Vivas passed away on July 8, 2019. You may better remember Ms. Vivas as Rosie Ruiz, the defrocked “winner” of the 1980 Boston Marathon. Race officials immediately became suspicious of Rosie’s victory when she crossed the finish line and had barely broken a sweat; she could not answer post-race interview questions about her training regimen; and other racers could not recall seeing her decked out in a bright yellow jersey during the first 25 miles of the race. Rosie joined the Boston Marathon field with just few miles to go in the race.

Not previously known within marathon race circles, investigation continued into how Rosie even qualified for the Boston Marathon. Rosie qualified by turning in a competitive time at the prior New York City Marathon. As if out of nowhere, Rosie ran the 26.2 miles faster than many world-class athletes in NYC. As it turned out, Rosie did not rise out of nowhere. Instead, she rose out of a NYC subway station near the finish line after riding underground most of the race. Unfortunately for Rosie, too many New Yorkers saw her on the subway in her running gear and confirmed her scam.

Well, even cheaters can atone for their famous misdeeds and then lead exemplary lives, right? In 1982, authorities charged Rosie with cheating a real estate company out of $60,000. While on probation, to make ends meet, Rosie sold cocaine to an undercover detective. Ugh!

Rosie Ruiz ranks high in the modern cheaters hall of fame. The sports world is replete with infamous cheating scandals. My version of the top three include the following, with honorable mention for Rosie Ruiz.

Bronze Medal: Lance Armstrong. For years, Lance Armstrong rode his bicycle invincibly over the French Alps leaving competitors miles behind in the Tour de France. When the stages hit the Alps, the best cyclists in the world strained while Armstrong appeared as though he was cruising along the beach.

More cogently, during this time, many world-class competitors addressed doping challenges (among them many valid claims) while Armstrong embraced the position of Mr. Clean who best all challengers through dedication and training. Apparently, Mr. Clean’s dirty little secret was that he, too, boosted his performance with steroids. It now appears that Armstrong used performance enhancing drugs during his reign as champ.

Silver Medal: Boris Onischenko. Having won medals in the 1968 and 1972 Olympics in the pantathlon, Soviet Boris Onischenko entered the 1976 Olympics among the favorites to take home gold. During the 1976 games, however, things came to a point for Onischenko during the fencing event in the pentathlon.

During an early epee fencing match, Onischenko recorded a hit or strike on an opponent when the competitors appeared separated. Onischenko promptly claimed a malfunction with his foil and changed out the sword. The foils, or swords, contain sensors at the tip which indicate and record hits on an opponent. Onischenko advanced and a few matches later Onischenko recorded another strike while retreating and nowhere near the opponent. Upon examination, Onischenko’s foil was found to be rigged with Onischenko able to trigger the sensor with a button in his foil handle. Absent the malfunction of this cheating system, Onischenko may have continued victorious for a few more Olympics.

Onischenko and the Soviets were disqualified from the pentathlon. Onischenko was barred from the sport for life. Onischenko earned the moniker “Disoniscehnko”. The Soviet Union denied any knowledge of or involvement with the intricate electronic wiring system installed in Onischenko’s foil. Drats, foiled again!

Gold Medal: 1919 Chicago White Sox. 100 years ago, the heavily favored Chicago White Sox took on the Cincinnati Reds in the 1919 World Series. Baseball was coming into its heyday as America’s sport. Unfortunately, fans of these teams and the betting public were unaware that 8 Chicago White Sox players had been paid off to lose the series, and lose they did. Mafia boss Arnold Rothstein’s gambling syndicate apparently made an offer the White Sox could not refuse.

This highest profile sporting event scam relied, in part, on the complete and perpetual silence of eight twenty-something year olds each just paid off in cash. Should we be shocked that this mass cheating endeavor came to light?

The scandal undermined the integrity of baseball itself while destroying the careers of all White Sox players including those not involved with the scam. Say it ain’t so, Joe! Forever more, the 1919 team from the Windy City would be known as the Black Sox. It took years for baseball to recover.

Cheating is by no means limited to the world of sports. While examples can be found everywhere from West Point Cadets breaching the honor system on unsupervised exams to wealthy parents recently cheating the college admissions processes, one area remains rich with cheating scandals: game shows.

The English version of Who Wants to Be a Millionaire suffered the most rudimentary cheater a few years ago. Contestant Charles Ingram planted audience members who would signal correct answers to him. Ingram would read aloud an answer as if debating whether he would select it. When he stated an answer among the multiple choices and heard his accomplice cough, Ingram knew he had the correct answer. Ingram coughed his way to the top prize.

Producers and directors of game shows have not been immune to cheating when ratings were at stake. In the 1950s, the game show 21 ruled the ratings. One contestant, Herbert Stempel, won countless times in a row. Unfortunately for Stempel, he was boring and nebbish. The producers, directors and even the sponsor, had to get rid of Stempel as ratings swooned.

Enter Charles Van Doren, a charismatic, good looking professor. Professors are really smart, correct? Surely the professor could beat Stempel in a game of knowledge. Indeed, anyone could beat Stempel if provided all the questions and answers in advance as the professor received from the producers and directors. After four exciting tied games, Professor Van Doren proved victorious and embarked on his own winning streak. Ratings soared.

When the cheating scam was unveiled, television networks dropped game shows left and right. Congress passed amendments to the 1960 Communications Act to start to address rigged game shows. Americans lost interest in and their appetite for game shows. It took ten years for game shows to creep their way back into being a tv staple. Imagine if game shows were gone forever after 21. No Paul Lynde in the center square. No B list celebrities extending their careers on Match Game. No recently married couples careening toward divorce court on the Newlywed Game. No Gong Show! I recognize how these references date me.

What common features can be found among cheaters? They all acted intentionally and knowingly to avoid rules. The original cheating deed itself was planned. Time and effort would be taken to skirt the rules and avoid detection. These schemes were no simple mistakes or misinterpretations of rules.

Further, all cheaters seek to be masters of short cuts. Why run for years in training for a marathon when you can simply look up what times the subway runs? Why spend countless hours in the library studying a myriad of topics when others simply provide the questions which will be asked (as well as the correct answers)?

Can the legacy of Rosie Ruiz and these other cheaters teach us anything about mediation? All cheaters acted knowingly and with intent. The cheating may have better ensured victory or a good result. However, even with a rigged system or outcome, risk remained. The risk of an unfavorable result may have been eliminated with the scam. It became immediately replaced with the risk of being caught. Each cheater still possessed potential exposure after the “cheat”.

Quite often, participants in mediation raise disputes narrowly as defined by claims in a lawsuit. A court can rule only on those matters and claims before it. By contrast, mediation may be expansive to allow the participants to address all risks for each party. A mediated settlement could address other business dealings between the parties and guide conduct to avoid future disputes. Relief may be available with services in kind, discounts or new business not available in court. Settlements could be structured to allow greater funds to flow to aggrieved parties rather than a lump sum payment. Mediation offers the flexibility and ability to address (and limit or eliminate) all present and future risks.

More instructive may be the point that cheaters seek short cuts. Many well-experienced mediation counsel quite often seek to take short cuts in mediation. These lawyers want to skip opening sessions in mediation with claims that “We know their position and they know ours.” Some lawyers even want to short cut their own presentations in individual caucus sessions and proceed directly to negotiations. As a mediator, I caution against taking these short cuts as they usually prove to be opportunities lost.

The opening session in mediation is almost a relic. Nonetheless, my experience is that much can be learned in those few minutes. In litigation, participants have virtually no opportunity to speak directly to an adversary. During mediation opening sessions, messages can be delivered in an unfiltered manner. Styles and personalities can be evaluated. Common ground may be found where all believed none existed. The personal dynamics between parties almost always changes, and most often for the better, after opening sessions. Give up that opportunity only after serious consideration.

I have never understood attempts to short cut the evaluative phase of individual caucus sessions. Make certain the mediator appreciates the nuances of a position so that the mediator can become your champion in the other room. Allow the mediator to test the theories and presentation as they most certainly will be tested by the adversary and judge if litigation continues. Allow the client to hear directly from the neutral mediator about the warts on a case or position.

As the mediator, I do not know where or how the opportunities for progress or even resolution will arise during mediation. I do know that they will present themselves. Skilled mediators will utilize information learned in all aspects of the mediation process to assist the parties to craft solutions. Mediators remain alert for such signals. Short cutting the process denies these opportunities.

We can all memorize subway routes to get to a destination. It takes real effort to do it correctly to achieve lasting success. Cheat yourself out of the process at your own peril.

I’m Ready, Celebration! I’m Ready, Celebration!

SpongeBob SquarePants turned 20 years old on May 1, 2019! For anyone younger than 35, SpongeBob has been ingrained in your pop culture. For parents of anyone younger than 35, the SpongeBob theme song is most probably ingrained in your brain. For those who missed these SpongeBob years as your children were already too old for the Yellow Sponge, do not worry as your grandchildren will introduce you to SpongeBob, Patrick Star, Sandy Cheeks, Mr. Krabs and the entire cast in Bikini Bottom.

Cartoons come and go. Children’s programs come and go. The same silly gags used over and over eventually wear thin even when initially hilarious. Why then has SpongeBob defied the aging process and typical shelf-life of television programming? Indeed, a SpongeBob empire has been spawned with television cartoons, movies (and, yes, a new SpongeBob movie is set for release in 2020!), amusement park rides, a Broadway musical, video games, and more. As Sandy would say: “How has the little yellow critter done it?”

Let’s take a little closer look at SpongeBob to determine just how he may have “done it” as well as determine what SpongeBob can teach us. There may even be a lesson or two for mediation hidden in that pineapple under the sea.

Foremost, an admission if not confession of sorts. I have kids in their 20s. SpongeBob was prime material for these kids and all their classmates over the years. Our youngest, in his teens, also knows virtually every SpongeBob episode. Yet, SpongeBob was not alone in these younger years. That huge purple dinosaur had his place. The Wiggles often wiggled their way across our tv screen. The oddly peculiar Teletubbies even made regular appearances.

SpongeBob endured while Barney wiggled away with the Teletubbies. In fairness, these three SpongeBob “competitors” did target a slightly younger audience. After learning the ABCs, 123s, and colors, there would admittedly be less attraction for these others. Fair enough.

But Nickelodeon, the SpongeBob network, pumped out tons of alternatives to visiting the Krusty Krab. The Rugrats ran for years based on a bunch of toddler friends getting into and out of trouble just like SpongeBob and his cadre of pals. The Powerpuff Girls fought strange villains and saved the world before bedtime just like SpongeBob and Patrick when they joined forces with Mermaid Man and Barnacle Boy. For slapstick humor, Ed, Edd and Eddy always paved the way including chicken stampedes just like SpongeBob trying to lift weights with Larry T. Lobster or practice karate with Sandy.

All of these other cartoons and, in fact, all other cartoons on Nickelodeon, failed to attain even half of SpongeBob’s longevity status. And SpongeBob is still going today. These other shows were humorous in their own right, presented similar ridiculous plot lines, presented roughly similar animation, and targeted the identical audience as SpongeBob. Obviously some ingredient from SpongeBob was lacking in all these other cartoons.

SpongeBob is a true and loyal friend. SpongeBob helps others. SpongeBob wants to please others. SpongeBob is happy. SpongeBob is not afraid to be himself. You can identify so many of these elements in these other cartoon characters. It struck me that one differentiating factor for SpongeBob is that he and all his buddies in Bikini Bottom are grown ups in a grown up world dealing with grown up issues, albeit oft-times in a dramatically juvenile manner. All other shows are about kids being kids in a kid universe.

SpongeBob owns his own house/pineapple. SpongeBob cares for a pet snail. SpongeBob holds down a job. SpongeBob drives. Oh, wait. Scratch that. SpongeBob can never pass his driver’s test for one reason or another. SpongeBob must then figure out his own problems, including transportation. In short, SpongeBob is a responsible endoskeleton.

Look at these points a little deeper. SpongeBob is not merely a fry cook. He is THE fry cook at the Krusty Krab. He is expert at making the perfect Krabby Pattie. He does not like his job, he loves it, he loves going to it and he loves doing it every day. How many parents encourage their kids to find a job which inspires them and makes them happy? The perfect career. Check.

SpongeBob owns his own place. He has moved out of the house of Mom and Dad. He tends to his pet snail, Gary. He lives down the block from his best buddy, Patrick Star. How many parents want their kids to be financially independent and stable as SpongeBob? The perfect place. Check.

Even with all this responsibility, SpongeBob still goes jellyfishing and blows bubbles with a starfish. He pretends he is anything he wants to be playing inside an empty box. How many parents tell their kids to have fun when they grow up and never lose their sense of adventure? How many parents remind their kids to just be themselves regardless what others may think? The perfect lifestyle. Check.

In part, SpongeBob is the perfect grown up about which parents tell their kids. SpongeBob is in his own, cool house. He has a pet. He always hangs out with his friends. And his job is at his favorite place. The wackiness just makes being an adult fun. Straight-laced Squidward is the ever present foil to fun in order to remind us to enjoy everything as it unfolds in life. SpongeBob, living in a pineapple and working as a fry cook, is the ideal grown up presented by Mom and Dad.

As a kid, SpongeBob lets you know that you can grow up and still be goofy. That message resonates into the teen years as kids grow up with SpongeBob. That message explains the popularity of SpongeBob on college campuses. College provides a wonderful setting for these growing up kids to take on some level of independence and responsibility while still enjoying “kid” activities before taking that serious step toward a job and career. No wonder that SpongeBob is a cult hero in that environment.

Thus the longevity and continued attraction of SpongeBob for decades.

Do the lessons of SpongeBob resonate with adults? Perhaps they should. Are we satisfied and happy with what we have or do we always want more? Do we enjoy each day and think that everyone we meet could become our new best friend? Do we take any time to go jellyfishing or enjoy our favorite activities? Do we have SpongeBob careers which we relish and love doing every single day? Do we remain positive even when all the Squidwards in our lives try to dampen our enthusiasm? We all cannot live in the ideal setting of Bikini Bottom, but maybe we can take some lessons from deep in the sea.

In mediation in employment and personal injury cases, I often hear from the injured parties that all they really want is to get back their old jobs which they “loved”. Many times, these parties are hung up on that point. To try to get them past that issue, I explore with them how much they genuinely “loved” their prior positions. I hear how they enjoyed many of their co-workers and considered them like family members. I hear about the benefits of a regular paycheck and certainty of knowing what they would do each day. I usually do NOT hear that they liked molding rubber parts for eight hours straight or processing expense reports for hours at a time. I then inquire that if the clock could be turned back 20 years, what career path would they take. The overwhelming response is that a different path would have been followed. They really did not “love” their jobs, they really were upset with how the relationship ended on the employer’s terms and not their own.

SpongeBob would not hesitate to claim that he would want to be and remain the fry cook at the Krusty Krab forever. He found what he loves doing. These injured parties need to take note of SpongeBob. A legal claim may well present the opportunity to find your own Krusty Krab and start doing what you enjoy. Being grown up does not have to mean that fun ends. Happy Birthday SpongeBob!

No Limit to Wealth and Power: The College Admissions Scandal

Wealth. Fame. Privilege. Entitlement. Whatever the origins and whatever the reasons, the new college admissions scandal sheds harsh light on a terribly broken system which provides opportunities to the wealthiest of the wealthy while denying opportunities to those without means. The ringleader, William Rick Singer and his organizations have been taken down as he has been cooperating with authorities. His cadre of accomplices including his professional test-taker, college admissions test administrators, and even a network of athletic coaches on the take at the subject universities, continue to fall like dominoes.

Parents who consumed Rick Singer’s expensive, magical elixir are under indictment. Some universities have taken steps to expel students who fraudulently secured admission to the prestigious schools through this scam. It appears that some students knew or suspected their parents’ influence in the admissions processes while other students proceeded blissfully unaware even after their SAT scores suddenly skyrocketed to near perfect levels. Families have been torn apart. Reputations have been ruined. Many face jail time for buying off the college admissions processes.

Beyond the obvious “How could this happen?” set of questions, a dynamic emerges in contrasting the responses of the two highest profile defendants: actors Lori Loughlin and Felicity Huffman. While the US Attorneys brought these charges a few short weeks ago, Loughlin and Huffman have headed in different directions to address the risks presented. Based on the disclosures of the US Attorneys and what has been reported at this stage, it is remarkable to witness such vast differences in the handling of these cases which grow out the same nucleus of facts.

Huffman rather promptly acknowledged the underlying improper actions of paying Rick Singer’s fake charity in order to get her daughter into the desired school. Singer’s team then “improved” the daughter’s SAT answers before the test was scored. Huffman, and 18 other parents, plead guilty to one count of conspiracy to commit mail fraud and honest services mail fraud.

For her part, Loughlin has not engaged in plea discussions with authorities. The morning after Huffman and the 18 others plead guilty, Loughlin and the remaining 16 other parents faced an additional charge of conspiracy to commit money laundering. Loughlin just formally plead not guilty to the charges.

By way of background, the scam operated for years in various methods. Singer tapped into the desperate, extremely wealthy market of neurotic parents who must have believed a) that their children would benefit for their entire lives with a degree from the “right”, prestigious university, and b) that their children had little to no chance to secure admission on their own merits at the subject universities. Singer founded the Edge College and Career Network, also known as “The Key”, as a college preparatory business. Singer sold himself as a family man and coach who understood the pressures placed on families during the college admissions processes. Singer, and his colleagues at The Key were all self-described “coaches” who could “help unlock the full potential of your son or daughter, and set them on a course to excel in life.”

The Key had two predominant paths to assist with college admissions: academics and sports. These paths were not necessarily mutually exclusive. For fees ranging from tens of thousands of dollars to $6.5 million for one student, Singer would develop a plan to “unlock” the student’s potential.

On the academic path, Singer would instruct parents in arranging for extended time for their children to take the SATs or ACTs, including how to obtain medical records to establish learning disabilities. Singer then arranged for his professional college entrance exam experts to moderate these smaller groups of students. The test experts would then “correct” SAT or ACT answers on the subject student’s exam before submitting the tests.

Alternatively, a test expert would simply take the SAT or ACT on behalf of the student. One such brainiac, Mark Riddell, received $10,000 per test from Singer. Apparently, Riddell was capable to target and achieve a specific score as instructed. Riddell just plead guilty and is cooperating with authorities on the details of the scam. With the ideal scores in hand, the students would be well on their way to admission.

The second path focused on sports. With university coaches bribed through Singer’s charity, Singer ensured students’ placement on university athletic teams, including soccer, track & field, and rowing. The corrupt coach would guide the application of the student through the admission process. These coaches would then require no participation in the sport by the “student-athlete” after admission.

Indeed, in one instance, one student met with his academic advisor who had prepared recommended Spring semester classes. Upon review, the student inquired why the proposed class scheduling was so spread out over time periods and days of the week. The counselor responded that such a schedule accommodated the student’s track & field training, practice and meet schedule in order to allow the student to compete in the pole vault events. However, the student had never participated in any track & field event at any level in his life despite now being a member of the university team.

Apparently playing off the endless greed of his ultra-wealthy client base, Singer established a bogus non-profit organization, the Key Worldwide Foundation (“KWF”). KWF’s stated mission included: “The Key Worldwide Foundation endeavors to provide education that would normally be unattainable to underprivileged students, not only attainable but realistic. . . . Our contributions to major athletic university programs, may help to provide placement to students that may not have access under normal channels.”

Clients of The Key would make a charitable donation to KWF rather than pay The Key for services. These parents knowingly arranged to have others cheat on behalf of their children and then secure charitable tax deductions for bribery payments.

Well, at least the payments, however improper, were being made to an organization which benefitted underprivileged students, right? Wrong. Even a cursory review of the IRS filings for KWF signaled something was seriously out of place. KWF had no employees. KWF had no independent directors. KWF had three officers, two of whom worked zero hours annually. Singer, the exclusive officer of KWF who did any work, reported working eight hours a week for KWF.

Journalists quickly seized on the reported donations by KWF. KWF listed partnerships with legitimate organizations, none of whom had heard of KWF and none of whom ever received any donation from KWF. Yet, KWF donated $100,000 to a suspended corporation operated by a soccer coach at UCLA and donated $1.5 million to a foundation run by a tennis coach at Georgetown. These coaches are now under indictment as KWF served as one conduit for bribery payments. The financial threads continue to unravel.

Once the feds tripped onto the scam, they set up Operation Varsity Blues (who said the FBI does not have a sense of humor!). Singer immediately flipped on everyone. He provided emails, bank records and documentation establishing the various frauds and bribes. He wore a wire and agreed to have his calls wiretapped. Singer spent months continuing to operate The Key and KWF while the FBI tracked every move.

When the US Attorneys finally moved against Singer, his accomplices, the varsity coaches and approximately 3 dozen wealthy parents, they already possessed all data produced by Singer, confirmatory bank records, wiretap recordings, student academic records, and surveillance photographs. Any defendant would have to confront this overwhelming body of evidence as well as Singer now singing like a canary.

Felicity Huffman promptly plead guilty to the one charge against her. Prosecutors may seek a few months prison time, but 12 months of supervised release and a $20,000 fine is equally likely. Prosecutors would seek no further charges against Huffman.

Huffman issued an apology: “I am ashamed of the pain I caused my daughter, my family, my friends, my colleagues and the educational community. I want to apologize to the students who work hard every day to get into college, and to their parents who make tremendous sacrifices to support their children and do so honestly.” Huffman acknowledged wrongdoing, accepted responsibility for her actions, and genuinely apologized. Her apology recognized how innocent people were harmed. Well played in capping risk and jeopardy and opening a path toward reception in the world of public opinion.

Lori Loghlin plead not guilty and has been rewarded with an additional criminal count. More counts may follow. Loughlin, who paid Singer $500,000, possesses the resources to secure top-shelf legal counsel. These lawyers appreciate the legal jeopardy and challenges in contesting the charges with such evidence against Loughlin. What could motivate Loughlin to fight under these circumstances?

We must speculate here, but perhaps Loghlin remains in denial. She reportedly commented to friends that she did nothing wrong and any other parent would have done the same if they possessed the means. Place to the side the self-unaware nature of that comment and it illustrates that Loughlin, in her own view, simply did what she perceived as in the best interest for her child. How could that be wrong?

Perhaps Loughlin equates paying for Singer with making sizable donations directly to colleges. Such donations are perfectly legal and may well result in favorable consideration by the admissions committee. The difference, of course, is that purchasing a bribery scam is illegal. In addition, donations to colleges should actually result in enhancements of educational processes or facilities in a regulated forum unlike any “donation” to KWF.

Perhaps Loughlin worries about her professional reputation as a well known character in an old sit-com or her current roles in Hallmark movies. Sorry, but the damage to reputation has already been done and Hallmark terminated its relationship with Loughlin.

Perhaps Loughlin believes her image as beloved Aunt Becky and star power, however diminished, will carry the day before any jury. Just ask Bill Cosby how that strategy worked out. Loughlin will not be able to escape the image of her as a super-wealthy parent willing to spend any amount of money on any scheme on a spoiled child to secure admission to an elite university where admission is not merited.

Candidly, absent a legal silver bullet, I do not envision a good ending for Loughlin. Whether it is her lawyers, family or friends, someone needs to get through to Loughlin to plainly set forth the risks and jeopardy with proceeding to battle in an unwinnable fight. Otherwise, let’s hope Loughlin looks good in orange.

I am often asked why parties should mediate to settle disputes. We have courts to decide issues and mediation may simply be an additional cost. Where parties appear to be as entrenched as Loughlin, why bother? I stand at the ready to encourage parties to seek resolution where possible for a multitude of reasons. Resolution brings finality and certainty. Resolution stops the spending of transaction costs. Resolution allows parties to move forward in life rather than fight about the past. This list can go on.

But now I have another reason to add: Do not be Lori Loughlin. In some instances, a party needs to candidly evaluate the case and conclude that it stinks and it is a loser. Get beyond yourself and accept some level of objective reality. Look at Felicity Huffman who apparently has found a path forward, albeit with some difficult challenges yet to be addressed. Nonetheless, her exposure is now capped and she is striking out on a plan to move forward. Loughlin remains at the bottom of a hole and has chosen a shovel instead of a rope. Resolution, however painful, appears the preferred alternative. Aunt Becky should know better.