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.

Mardi Gras – An All or Nothing Lesson

Last evening at the stroke of Midnight, Mardi Gras officially ended. Fat Tuesday, Carnival or Shrove Tuesday. Whatever you call Mardi Gras, the celebration includes rich foods, richer costumes, vibrant music and dancing. It remains the Christian feast before the fast (Lent). In an ironic twist, perhaps this celebration pre-dates Christ as the Roman winter solstice holiday of Saturnalia. Whether adopted from a pagan ritual or begun centuries later, Mardi Gras has been celebrated for well over 1,000 years with local traditions evolving along the way.

Venice, Italy offers the opportunity to avoid the hoi polloi of all the commoners at parades while attending balls and dances intended for the upper of the upper crust. Too fancy? Try Barranquilla, Columbia where you can don an elephant mask complete with a long trunk and large ears like everyone else. Perhaps Binche, Belgium is more your speed where men parade dressed as their wives or mothers. They then dance with brooms to chase away evil spirits. Freud would have a field day with that tradition.

Need to cool down from all the partying? In Goa, India, Mardi Gras revelers douse each other with buckets of colored water. Still too hot? Go to Quebec City, Canada to take a Fat Tuesday snow bath in your bathing suit. If you work up an appetite, return to Belgium for oranges thrown to the crowds from the floats. For dessert, travel to the first place of Mardi Gras celebration in the United States, Mobile, Alabama, to receive that Southern delicacy, Moon Pies, thrown from floats. And for those with a need for more, try Mardi Gras in Cologne, Germany which begins 11-11-11 (November 11 at 11 a.m.) continuing until Ash Wednesday months later.

One Mardi Gras among these stands out for its traditions – New Orleans. As Mark Twain stated: “An American has not seen the United States until he has seen Mardi Gras in New Orleans.” Still being fairly new to the global Mardi Gras scene, the first New Orleans Mardi Gras was in 1857, many traditions can be fairly traced backed to their origins. Reviewing some of this history and traditions allows us to better appreciate the current New Orleans festivities and helps us to understand Mr. Twain’s bold assertion. Surprisingly, in researching this history, an unlikely link between this annual cultural phenomenon and the mediation process became apparent.

In 1857, the Mystic Krewe of Comus secured the assistance of Mardi Gras organizers from nearby Mobile, Alabama to put on a parade including themed floats with masked krewe members. The parade was intended for public participation while the associated formal balls were limited to krewe members. For decades, five krewes – Comus, Rex, Twelfth Night, Monus, and Proteus – controlled the Mardi Gras scene. Membership in krewes was limited to moneyed elites while the parades remained for public consumption. By the early 1900s, those “left out” of the krewes formed their own krewes often based on heritage or even cultural bonds (Irish, Italian, German, African-American krewes).

Notably, the oldest krewe, Comus, stopped parading in 1991 after Louisiana passed a bill requiring krewes to integrate. The Mystic Krewe of Comus gave up a 134 year tradition instead of integrating. The fact that it took until 1991 to compel integration may be more surprising than the facts that a krewe was not integrated by that date or that the krewe opted to end its run rather than integrate.

The Shrove Tuesday elaborate costumes and masks were hardly unique to New Orleans Mardi Gras. Yet, they served additional purposes in the Big Easy. The costumes served as disguises which then allowed some non-krewe members to participate in balls with concealed identities. Some New Orleans costumes served “economic” purposes as well. African-American prostitutes would dress up as “Baby Dolls” (a term coined by their white male clients) to gain access to festivities in the hope of securing work at a time when sex work was racially restricted. The irony of Baby Dolls working the refused-to-be-integrated Mystic Krewe of Comus events is not lost on anyone.

The Mardi Gras color scheme of green, gold and purple is a New Orleans invention originating with the Rex Krewe. The Rex Krewe named a “king” for each year’s Mardi Gras – King Rex. In 1872, that year’s King Rex liked the color combination of gold, purple and green. He decreed them the official colors of the Rex Krewe. In 1892, to add legitimacy or purpose to these colors, that year’s King Rex declared that purple represented justice, green symbolized faith, and gold stood for power. These colors have dominated ever since the royal decrees.

The phenomenon of throwing beads from floats to parade goers dates back to the late 1890s. Initially, the Carnival King would throw fake rings and gems to his loyal subjects. In the 1920s, the krewes all joined in the tradition of tossing glass beads during the parades leading to the current tradition of throwing plastic beads. In 1910, some krewes threw coconuts from the floats as the glass beads that year were too expensive. Not surprisingly, the City of New Orleans has had to repeatedly excavate tons of strands of beads from its storm drains.

A Mardi Gras tradition from Europe of baking sweet treats and pastries before the period of fasting continued in New Orleans. The King Cake containing a special item hidden in the cake well pre-dated any New Orleans Mardi Gras. Indeed, that practice can be traced back to the pagan ritual of Saturnalia. Whoever found the hidden item in the cake would be king for a day.

The New Orleans twist of using a small baby figurine representing the infant Jesus from the Feast of the Three Kings in King Cakes may be more opportunistic than religious. A local New Orleans baker in the 1940s came across a surplus supply of French porcelain dollhouse figures. The baker placed a baby figurine in each King Cake paving the way for a new tradition.

As with many traditions, the origins, if they can be determined, are quite often humble or even non-sensical. A King Rex liked gold, green and purple and two decades later these colors became the unofficial, official colors of Mardi Gras. A King needs to honor his subjects so now everyone throws plastic beads (good thing that the coconuts did not catch on). A baker has a box of baby figurines and now we all hope to get the piece of King Cake with the baby.

In researching these traditions and how they evolved, the actions of the Comus Krewe stood out as a possible mediation lesson. Why would the oldest active krewe opt to render itself irrelevant rather than comply with an integration law. The bill passed in 1991, not 1891. Societal norms and perceptions changed regarding integration decades before this law had to be adopted. Certainly, the law could not come as a surprise to the Comus Krewe in 1991. Perhaps membership had dwindled so much or costs increased so much for the Comus Krewe that they welcomed the 1991 law as an excuse to call it quits. Hopefully, the Comus Krewe members did not genuinely believe integration to be so inherently bad that the self-destruction alternative was more appealing. Regardless of the reason, these actions remain squarely in the “all or nothing” camp. The Comus Krewe ended up with “nothing” rather than address the new reality.

In mediation, many participants start out in the all or nothing camp. Litigants state they will remain firm on principle. Others pledge a belief in legal arguments or summary judgment motions which cannot possibly lose in court. Still others assert that they would rather fight and exhaust all litigation avenues, including appeals, instead of settling with the adverse party. As a mediator, I am fine with these positions being advanced as they convey a seriousness or purpose, a view of case worth, or an understanding of the applicable facts and law. The challenge becomes when a mediation participant becomes stuck on such an issue and refuses to compromise regardless of counterpoints or compromises offered by the adversary.

When a party becomes so entrenched, a reminder of the plight of the Comus Krewe may assist in explaining litigation risks. Trials become all or nothing for the parties. While a large monetary award may be celebrated by a plaintiff, this same plaintiff could be unconsolable if there is a complete defense verdict. The large award would still need to be preserved through appeals. There exist no guarantees anywhere in the litigation process. Instead, trials remain “You win. You lose.” propositions.

In contrast, settlement provides certainty and guarantees the outcome. The underlying dispute ends through resolution instead of the issues being made quite public like the plight of the Comus Krewe. Most often, mediation settlements remain confidential rather than the world knowing who “won” and who “lost”. In mediation settlements, the parties can craft agreements well beyond the claims in litigation. The parties can define future conduct among themselves and not have their conduct dictated by rulings of third parties.

The Comus Krewe had ample opportunity over the course of decades to address its segregation policies and issues. By 1991, they effectively challenged the legislature to act as the Comus Krewe would not compromise. The legislature told the Comus Krewe “You Lose.” In mediation, participants and lawyers must avoid placing themselves in the role of the Comus Krewe in refusing to compromise. The alternative is an all or nothing result. Like the Comus Krewe, you may end up on the nothing side of the equation.

Movement or Flash in the Pan?

We just passed the one year anniversary of the horrific school shooting at Marjory Stoneman Douglas High School in Parkland, Florida where 17 were killed. In the immediate aftermath, the “Parkland Teens”, a group of soon-to-be activist high school students, flexed their muscle in forcing national televised forums on gun control; stormed the Florida legislature forcing debate on gun control measures; and rallied tens of thousands for March for Our Lives in Washington, D.C. where they passionately plead for reform on gun control. Unfortunately, the news today is filled with stories of those shot to death by a co-worker in Aurora, Illinois.

I wrote about the efforts of the Parkland Teens last March observing the similarities between their fledgling fight and those of Linda Brown. Linda Brown, the plaintiff in Brown v. Board of Education fame, had then recently passed away. When the lawsuit on behalf of Linda Brown was filed challenging segregation in schools, few recognized that it would become a watershed Supreme Court ruling and key component in civil rights reforms. I marveled at the efforts of the Parkland Teens and asked whether we were at a “Linda Brown” moment concerning how society addresses gun control. Or, were the Parkland Teens merely canon fodder to feed the insatiable 24 hour news channels with their movement to fade with the next catastrophe. See Children Forcing Changes article here.

Now, a year later, I look back to attempt to determine in real time whether the Parkland Teens were anything more than a flash in the pan. Editor’s Note: I always thought that the phrase “flash in the pan” originated with the California Gold Rush in the 19th century. Prospectors would become excited upon seeing something shiny in their pans only to become disappointed when it turned out to be something other than gold. Such would be a “flash in the pan”. Yet, the true origin ties into the use of flintlock muskets during the 17th century or even earlier. These muskets would have small pans to hold gunpowder charges. When the gunpowder flared up, but the musket failed to discharge a bullet, it would literally be a “flash in the pan” — promising beginning only to lead to disappointment. Back to our story. . .

Where Linda Brown sought changes through the courts, the Parkland Teens sought changes through the legislative processes. The Parkland Teens initially succeeded in convincing their home-state legislature to act on the otherwise contentious issue of gun control. The Parkland Teens appeared quite savvy in using social media and benefitted from the national media spotlight to compel the Florida legislature to do something in the aftermath of the massacre at the high school. The Republican legislative chambers passed, and a Republican governor signed into law, the Marjory Stoneman Douglas High School Public Safety Act.

After this law passed, Florida Senate President Bill Galvano noted that the direct lobbying and advocacy by the Parkland Teens was “key” to the bill’s success. He also observed as brilliant the comprehensive nature of the proposals by the Parkland Teens to address many aspects of school safety and not simply gun control. That approach made the bill more appealing to many legislators rather than narrowly focused gun control measures.

OK. The Parkland Teens succeeded in convincing Florida to begin to address the catastrophe in its own backyard while still grieving the losses. Amazingly impressive, but was Florida an isolated situation? What happened after the national spotlight became focused on other issues?

As it turns out, during 2018, twenty six states and the District of Columbia passed into law 67 bills directed at curbing gun violence. The laws ranged from addressing basic gun safety issues, mandating improved background checks, banning gun ownership by convicted domestic abusers, further regulating concealed carry, to even banning bump stocks and large-capacity magazines. These new measures were signed into law by both Democrat and Republican governors. Laws passed on the east and west coasts, in the heartland and, dare I say, even in the deep south. For context, no meaningful gun control measures were passed in any state following Sandy Hook, Columbine and other school shootings.

The Parkland Teens remained directly involved with many of these legislative efforts. State legislators credited the group with influencing, in some fashion, virtually all enactments. Allison Anderman, an attorney who assists and counsels the Parkland Teens, credits the group as “incredibly eloquent and motivated and organized.” The March for Our Lives campaign amplified their message and convinced others to follow the formula for change.

Gun ownership and gun control remain passionate issues in the United States regardless of personal views. Guns are also big business. The clout of the National Rifle Association (NRA) as a behemoth lobbying organization is undeniable. Indeed, the NRA maintains a dedicated lobbying arm and manages its own Political Action Committee. The NRA is acknowledged as one of the three largest lobbying organizations in Washington, D.C. During 2018, the NRA boasted that, by its own count, over 200 “anti-gun” bills were defeated and 7 other bills were vetoed by governors, all with the help of the NRA.

What stands out then with the Parkland Teens is the level of traction and success on various gun control efforts in the face of such staunch opposition by the NRA and similar groups. Jaclyn Corin, a founding member of the Parkland Teens and student at Marjory Stonemason Douglas High School, aptly stated: “I think we moved the needle. Not enough, but we did.”

The Parkland Teens remain active one year later. They seek to create a grassroots army of young people focused on state legislatures, city councils and school boards. They encourage young people to vote for and support candidates for these state and local offices with views and policies aligned with their own. The Parkland Teens recognize that real work gets accomplished at the local level and they witness their influence in the process at those levels.

The success of the Parkland Teens cannot be denied. Absent their efforts, there simply would not have been the new gun control laws in each of the 26 different jurisdictions. As importantly, there would not have been debate or action on such core gun control issues as ownership limits, concealed carry, and bump stocks. It may be difficult to quantify the impact of the Parkland Teens and their followers in these legislative processes, but the fact of their impact cannot be denied.

Just as it took years for Brown v. Board of Education to weave through the courts, it will take years for the strategic efforts of the Parkland Teens to fill local political offices with those who share their policy objectives. We must still wait and see if the Parkland Teens remain a dedicated, viable force for change. What we can conclude, however, is that the Parkland Teens have become established and much, much more than a flash in the pan.

We may need to check back after the next election cycle to see how the kids perform against the NRA. True democracy remains fascinating!

My wife, Kristen, is rooting for the New England Patriots to win the Super Bowl. How can that be?

One of her favorite shirts includes the saying: “My two favorite teams are the Buffalo Bills and ANYONE who beats the Patriots”. Speak of the Patriots and Kristen will lecture you about cheaters who steal signals, dig opponents’ play books out of the trash, and allegedly even bug the opposing team’s locker room. Mention Tom Brady and Kristen will recite all the details surrounding “Deflategate” before she gets into Brady’s “character” issues. Yet, Kristen is rooting for the Pats to win it all in the Super Bowl.

Does Kristen detest the Patriot’s opponent even more so than the dreaded Patriots? No. She has no real feelings one way or the other about the LA Rams. She might be hard pressed to tell you the colors of the Rams’ uniforms. She holds no strong opinions about LA itself. To Kristen, the Rams are simply “there”.

It gets better. After the Super Bowl, Kristen has all but vowed to completely give up on the NFL. Did you hear that NFL advertisers? Kristen, a fairly avid fan, plans to catch up on projects and respond to emails on Sundays next Fall rather than watch your games. Kristen, the reigning champion of her 14 team fantasy football league, would rather get her early Christmas shopping done instead of seeing the games.

What could possibly have happened to so turn upside down the universe that Kristen would actively root for Team Brady, et al. and then walk away from the sport? For Kristen, the integrity of the game (whatever integrity may have remained) was left on the field of the New Orleans Superdome with the now infamous “no calls” of pass interference and helmet to helmet hit late in the NFC Championship game between the Saints and the Rams.

As we all know, including non-sports fans, the referees missed these blatant fouls with precious little time remaining in the game to decide who would advance to the coveted Super Bowl. If called properly, little doubt exists that the Saints would have run the clock down and kicked a “chip shot” field goal to win with time expiring. Instead, to their credit, the Rams tied the game and then exited victorious in overtime. Did this football play transcend sports? Well, during the recent government shutdown, members of the House of Representatives took to the House Floor to introduce resolutions about it.

But, referees are human. They miss calls, even game changing calls. These “no calls” were not reviewable under NFL rules. Sorry Saints. But wait, little known and never invoked NFL Rule 17, Section 2, Article 3 allows the NFL Commissioner to change the outcome of a game, require the game to be replayed, or require the game to be replayed from the time and spot of the offending conduct. To uphold the integrity of the outcome of the game and provide a just result, the Commissioner would surely step in to do the right thing. Right?

Did compelling and clear evidence exist that the calls were missed? The videos confirmed that the Rams defender never even tried to make a play on the ball, but instead tackled the Saints receiver well before the ball arrived. Hmm? Was this situation simply a too close to call judgment call? Consider the statement from the Rams’ player who committed the fouls: “I put his ass on a Waffle House frying pan! It was football! If you don’t know the sport, well, then, news flash: We hit people. It’s the NFL. And, sometimes, we’d rather take a flag and hit somebody than somebody catch and score on us.” Someone needs to counsel this player about legal admissions and declarations against interest.

Ultimately, the NFL itself acknowledged the penalties after the fact. The NFL levied a $27,000 fine against the Rams’ defender for a helmet to helmet hit. Yet, these acknowledgements and a petition with about 1 million signatures demanding justice meant nothing to the NFL Commissioner. He would not invoke NFL Rule 17, Section 2, Article 3. The Rams win. Move on.

But wait, again. Disgruntled Saints fans filed a lawsuit seeking the NFL Commissioner to require a do over. Ultimately, that action did not succeed. Notably, in response for the demand for injunctive relief, the NFL CFO filed an affidavit claiming, in part, that the NFL could lose in excess of $100 million if the Rams-Saints game had to be replayed and the date of the Super Bowl then placed in jeopardy.

Ahh! There it is. The NFL asserting, in open court, under oath, that money was more important than the integrity of the games. I explained to Kristen that one factor a court considers on applications for injunctions is the economic harm which could result. However, the only message Kristen received was confirmation of the NFL’s greed as vastly superior to the quality of the product on the field. You have lost an ardent fan, NFL, not because you missed a call, but because how you handled it.

It struck me that the Rams-Saints game, and its subsequent handling, could be a teaching moment for those involved with settlement of legal disputes. As a mediator, significant effort involves identifying risks for each party and the benefits of avoiding those risks through agreed upon resolution. At length, we discuss “litigation risks”.

Simply put, litigation risks are the wild cards in proceeding to trial. Some such risks are identifiable, but not quantifiable. For instance, the demographics and socio-economics of the potential jury pool may be well understood, but the make-up of the particular jury empaneled for your case will not be known until the trial begins. Similarly, the trial judge may delay ruling on critical motions vital to claims in issue. These types of issues may be identified in advance as realistic risks of proceeding. Parties can attempt to handicap those risks and place some value on them.

The more challenging litigation risks are akin to the Saints-Rams game. These risks are unknowable or unfathomable before trial. If someone postulated these risks as hypotheticals before trial, they would be dismissed as far fetched plots from Grisham novels. But, these things happen and they happen often. Here are a few “life is stranger than fiction” examples from my career.

First, with a two month jury trial heading toward conclusion, the judge casually advised that every Sunday morning, he plays golf with three of the lawyers for the plaintiffs. The judge merely wanted to place that statement on the record as he was certain that no one had issue with social sporting events. Every evidentiary and procedural ruling having been made in favor of the plaintiffs suddenly made sense.

Second, during jury deliberations on Christmas week after a five week trial, the judge advised that he, on his own, reconsidered his jury charge and would add a new element to the claim the plaintiff had to prove. The judge brought the jury back into the courtroom, stated that he meant it when he previously advised that the jurors would be done before Christmas; re-instructed the jury (over objections) adding in a new element which no party addressed during the trial; and instructed the jury to deliberate further. Fifteen minutes later, the “deadlocked” jury returned a verdict favorable to the defendants.

Third, immediately after conclusion of a three week jury trial, a lawyer on our team received a perfumed, heart-laden note from Juror #6 inviting the lawyer out for a cup of coffee or glass of wine. It appeared that the trial was a healthy distraction for Juror #6 as she just went through a difficult separation. The lawyer would have to disclose the note to the court, the adversary, and, of course, his wife.

For the Saints fans, a missed penalty call would be a realistic potential ending to a game. To have the circumstances unfold as they actually played out would be closer to a work of fiction. To result in national attention, debate on the House Floor in Congress, and reliance on an obscure, never previously invoked NFL rule through social appeals and a lawsuit is beyond rational consideration. To have those like Kristen declare that they will no longer be fans of the NFL represent consequences never intended by the NFL powers that be. The outcome of the Saints-Rams game represents the unknowable type of litigation risk.

For litigants, having the judge change the rules after years of litigation and lengthy trial because it was Christmas week is not the result any party desired. That action guaranteed two things: a costly appeal and even more costly re-trial. Having Juror #6 show up with a bottle of wine may confirm that you connected with the jury, but not in a manner which did you any favors to preserve the outcome of the trial. These circumstances could not have been anticipated before trial, but each threatened the outcome of the trial. They are among the unknowable litigation risks.

Trials are unpredictable. That much is certain. How they will be unpredictable is the unknown and unknowable. These risks cannot be avoided and they are a challenge to quantify. This challenge does not mean they can be dismissed or avoided. Just the opposite. Parties need to understand that their cases, no matter how well prepared, will not play out as anticipated. The question becomes whether the unknown is a simple mis-step or a landmine for your entire case. If you are still not convinced, just ask the Saints. But do not bother to ask Kristen. She is no longer a fan.

Let Them Eat . . . McNuggets

Editor’s Note: This article is grounded in college football and politics. It is about neither. Followers of this blog understand that I do not take sides in politics and especially do not take sides in the religion known as college football.

The Clemson Tigers football team continued their National Championship celebration with a visit to the White House. Alas, due to the federal shutdown, a number of White House workers have been furloughed. Who would feed the dozens of these enormous young men and their equally large appetites on their visit? President Trump floated, then immediately dismissed, the notion that the First Lady and Second Lady could whip together a few salads (difficult to visualize that one!).

Fear not, the Fast Fooder in Chief devised a game plan for this football team. Trump directed his staff to provide “McDonald’s, Wendy’s and Burger King with some pizza” for the Clemson Tigers players and coaches. Complying with this charge, the White House staff broke out the good China, lit the candles on the candelabras, and set forth an array of fast food on gleaming silver trays.

Meeting with the press, standing proudly behind mounds of nicely arranged fast food containers, President Trump boasted: “We have 300 hamburgers. Many, many french fries.” As to the fare consisting of burgers, fries and pizza, Trump declared: “We have everything that I like.” As to serving fast food for an official White House event, Trump responded: “I would think it is their favorite food.” It is this last statement which got me thinking — more on that point later.

Trump then noted the unusual nature of the event had been driven by the government shutdown. Trump took the opportunity to cast blame on others for the shutdown while a White House communication noted that the President himself would personally pay for the feast. Whew! The taxpayers really dodged one on these costs. Let’s place politics to the side, talk some football, and have all enjoy tons of fast food for one evening!

But would all Clemson Tigers enjoy this smorgasbord of fast food? Meet Donna McCain, culinary professional and Executive Performance Chef of Clemson Tiger football. First, think about that. Clemson football has a full time Executive Performance Chef on its staff. A quick check of the University of Alabama website confirms that the Crimson Tide employ full time positions of Director of Performance Nutrition and two Assistant Sports Nutritionists. Is it any wonder that these programs with such resources are at the pinnacle of their sport year in and year out?

As Executive Performance Chef, McCain describes her position as half of her duties in the kitchen and the other half in educating the players. She meets regularly with players, monitors their eating habits and assists them to properly fuel their bodies. McCain conducts one on one cooking classes with the players. These classes stress the importance of nutrition and consequences of smart choices in food selection while teaching basic cooking skills. Chef McCain teaches life lessons.

McCain’s passion seeks to create a culture for the Tiger football program. McCain has become a mentor to many players who witness improvements in the weight room and on the football field which they credit to better nutrition.

Would culinary champion Donna McCain approve of the White House menu loaded with Quarter Pounders, fries and chicken strips? Probably not. Would McCain at least argue for some salad options? Probably so. But, hey, it is only one meal and part political stunt at that. McCain stresses a lifetime of good habits. Let’s face it, we all have bad diet days. We can let one meal slide.

Given culinary professionals on the staff — chefs who work to alter the perceptions about foods and stress nutritional needs — perhaps President Trump may not be correct in declaring: “I would think it is their favorite food.” Was this White House dinner an opportunity lost? Perhaps Clemson’s Chef McCain could have been consulted on the food choices. Perhaps the White House could have used its soap box to emphasize how better eating habits and better nutritional education assisted this football program in elevating player performance.

I think it is more likely that the White House suffered from what all of us do every day. We make assumptions. The White House assumed that virtually everyone, especially young people, genuinely enjoy fast food. The thought process probably did not go much beyond “get them McDonald’s, they will love it.”

A number of years ago when one of my sons was in high school, I volunteered to drive a number of players to a tournament across the state. The tournament went late and I ended up with a vehicle full of hungry, grumpy teenagers fairly late in the evening. We found an open Taco Bell and stopped for food. Each player dutifully placed an order while never even glancing up at the menu. I observed how each player knew what they wanted without consulting the menu. One responded that he has the menu memorized as he eats his dinner 3 or 4 nights a week at Taco Bell. Yum! Perhaps President Trump’s assumption was well founded. Personal note: To this day, I am proud to say that I have never eaten anything from Taco Bell.

Now past teenage years, I observe the eating habits of my sons. Apparently gone are the days of pining to stop at fast food joints. They prefer to quickly fry up some vegetables and add chicken or beef for a meal rather than make a stop for burgers and fries. Fast food is not completely gone from their diets. It appears relegated to road trips or times when no other option appears in view. Their friends appear to share the same view of deep fried cuisine. Even absent an executive chef culinary coach, the concept of better food choices is getting through to at least some in the next generation. This dynamic does not bode well for long term stockholders of McDonald’s and the like.

Yet, I think President Trump and most Americans would assume that the twenty-something crowd would cite McDonald’s, Wendy’s and Burger King among “their favorite foods.” Perhaps they don’t. As a mediator and mediation participant, I must constantly remind and caution myself not to make or rely on assumptions. The most common assumption I hear as a mediator is the refrain that the other party only wants money, and as much as they can get. It is true that monetary relief is most often the exclusive form of relief available. It is also true that the lawyer’s job as advocate is to secure the best resolution possible which means the most money. Yet, I often hear that the aggrieved party desperately desires something more than money. They may want validation of their claim. They may want an apology. They may want a promise that the opposing party will institute preventative measures so that others do not become aggrieved. They may simply want to know that they have been heard.

When assumptions start to enter the equation, the mediation participants can easily become entrenched in their positions. However, there are preventative steps the mediator and practitioner can take to avoid this pitfall. One step is to be direct. Rather than assume about an adversary’s motivation, inquire about it. Ask what is needed to get the parties closer to settlement (besides each party raising or lowering demands). In one case, a party included as part of each offer a demand that settlement funds be paid within 2 weeks. That point alone became the obstacle to resolution. With direct inquiry, all parties learned that the plaintiff cared not when settlement would be paid, but that her lawyer needed the fees from these funds within 2 weeks to meet his firm’s fiscal year end. A structure then easily fell into place to accommodate the lawyer.

Second, make inquiry of the mediator. That professional has a feel for the dynamics in each negotiating room. The mediator may be able to suggest approaches or positions which would be well received by the opposing side. While the mediator should be taking these steps already, a plain discussion may spur different ideas or approaches.

Third, caucus with just the lawyers. There may be challenges between lawyer and client such as unreasonable expectations of the client. In a private caucus with just lawyers and the mediator, one attorney may be able to disclose such difficulties with all then crafting an approach to address the situation.

Fourth, think beyond the claims in dispute. Many times, litigation or settlement positions can be driven by external factors. In business settings, perhaps a corporate transaction is behind the scenes which precludes consideration of certain points. Litigants may be addressing personal and family issues unrelated to the claims. The adversary may not be able to disclose such circumstances, but may be able to educate the other side that different factors need to be considered.

These steps, and additional tools from the the mediator’s toolbox, can assist to avoid bad consequences from assumptions. The next time you assume that everyone wants fast food or you assume that an adversary is being unreasonable, just remind yourself that Chef McCain and all her efforts may be just behind the scenes. Many times, other issues are in play and you can figure out how to use them for your benefit.

Mediation Resolution: Settlement Agreement Challenges and Opportunities

These were the best of times. These were the worst of times. Ten hours of mediation slogging through issues, concerns and positions. Multiple threats to walk out on all sides. Intense hallway conversations. “Arm twisting” by the mediator and even your own lawyer. Gut wrenching calls to others to secure different settlement authority. Yet, somehow, some way, resolution has been achieved in this “unsettleable” case.

You just need to write up the settlement terms when the adversary includes a confidentiality clause in the settlement. The last 5 hours of your negotiation have been premised on use of the settlement in press releases and by your sales force. The adversary responds to your objections with a claim that it always includes confidentiality and such was assumed in all proposals. The entire settlement blows up.

We have all been there. Instead of a confidentiality provision, insert scope of indemnity or release, dates of payments, non-competes, or any other type of provision one party assumed was integral to settlement which the other party may never have considered. Not only has the settlement fallen apart, accusations of bad faith negotiating tactics enter the equation while relationships become further strained. Any trust developed in the process is lost. Resolution now appears a distant objective.

While seasoned mediators and skilled attorney-practitioners may work diligently to save settlement (and have their clients avoid significant future costs and risks), this scenario should arise sparingly as long as the mediator and lawyers consider potential settlement terms and structure well in advance of the actual mediation. This article addresses both the mechanics and structure of settlements achieved through mediation as well as challenges arising in that process. This article culminates a series of “nuts and bolts” mediation process writings which have covered many topics including pre-mediation considerations, negotiating methods, and now settlement structures.

Foremost, all practitioners must not merely recognize, but embrace the dynamic that the entire mediation process remains privileged as a settlement effort. This confidentiality protection extends to discussions and exchanges of information prior to the actual mediation sessions. This reminder is raised as so many of the practice tips detailed below necessitate raising issues and concerns in advance of the mediation session to allow parties the ability to consider, value and properly address proposed settlement terms. If settlement structure issues are more timely raised, parties may understand and appreciate that different decision makers may need to be involved or different approvals secured which would otherwise not be available during mediation itself.

Think Through Potential Settlement Structures

Typically, attorneys at mediation are well prepared to address amounts of settlements. This basic economic term has been fairly vetted between attorney and client. Authority and approval levels have been established premised on the proposed amount of settlement. With this process to establish potential worth of claims, the attorney better sets client expectations.

Yet, this same pre-mediation analysis is not always applied by practitioners to issues beyond monetary worth. As an initial step, discuss with your client that which is necessary and that which is desired in any settlement. Determine whether the settlement structure will address issues and concerns beyond the four corners of asserted legal claims. Determine whether the interests of third parties may be impacted. For corporate and insurer clients, have them detail essential agreement conditions which they desire to include in all settlements.

My experience is that attorneys, in general, are problem solvers. Once concerns are identified beyond the pure economic issues, attorneys can work to develop a settlement structure to achieve most goals. If the issue cannot be addressed due to legal or ethical hurdles, the attorney can counsel the client early in the process in order to reset expectations and redirect efforts. Once identified, the parties can begin to place value on the issue. The key remains to understand such essential settlement terms in advance to avoid surprises for all.

Further, careful consideration of settlement terms and structure in advance of mediation should provide new and different tools in negotiating. In a number of instances, parties at mediation recognized that they could mutually benefit from a new or different business arrangement with this new relationship serving as part of the resolution of the pending dispute. However, such consideration proves short-lived as the necessary business personnel are not present at the mediation. If such matters had been explored in advance, a potential path to settlement may have developed.

Think Through the Economic Settlement Terms

Economic settlement terms and structure issues include, but are not limited to:

Amount
Timing of Payment
Goods/Services in Lieu of Payment
Classification of Payments
Annuities

While the amount of settlement is obvious, the parties need to evaluate and be prepared to address additional economic terms in any settlement structure. The timing of payment may be critical for one or all parties. One party may require prompt payment terms. That party may not always be the party receiving the funds. There may be financial accounting reasons for quick payment. There may be undisclosed potential transactions in play which require a clean balance sheet. Alternatively, for similar reasons, payment may need to be delayed or spread over time. Each of these valid concerns needs to be considered and then valued economically by the parties.

A more complex economic term for settlement presents itself where goods or services are exchanged in lieu of direct payments. For the parties, detail and clarify control over that arrangement. If dispute arises in the on-going transactions, will the parties be guided by the settlement agreement, new contractual arrangements, or other agreements? Clarity is essential in creating alternate compensation processes.

Classification of payments may provide flexibility to the parties. Employment cases routinely involve claims where a portion of settlement proceeds is deemed wages. Use that concept in other circumstances where it may benefit the parties. There may be financial benefits in dedicating a portion of settlement proceeds to an adversary’s legal fees. One party may cover expert or other costs. One party may contribute more toward the ever reasonable mediation costs. Each of these examples illustrates a method to increase the absolute value of settlement for one party even if not deemed a settlement payment.

If the parties seriously consider annuity payments, that issue should be raised in advance. The annuity brokers should provide alternative structures, or better, be in attendance to participate in the mediation. There always exist tension between use of an annuity and a contingent fee arrangement. Nonetheless, as a settlement tool, annuities can demonstrate the reach of a modest amount of money over time. Annuities may serve as a convincing tool to address unreasonable expectations by some parties.

In sum, the economic settlement terms broadly include many topics well beyond the simple issue of “How much?”.

Think Through the Non-Economic Settlement Terms

Non-economic settlement terms include, but are not limited to:

Confidentiality
Indemnities
Releases
Non-Competes
Non-Disparagement
Injunctive Relief
Modified or New Business Relationships

Certain non-economic terms remain case-specific such as forms of injunctive relief or new/modified business relationships. In terms of addressing such matters in the settlement, the key point remains to provide clarity and certainty to guide future conduct or relationships. Any settlement should be designed to eliminate and prevent disputes, not further entangle the parties.

Other terms such as confidentiality or non-disparagement clauses might be viewed as a ”given” settlement term. Do not assume that points have been accepted even if it is your typical practice. Raise the issues early in the process to avoid later dispute.

Non-compete clauses may carry significant value for parties, but must be carefully approached. One party, with no current plans to remain in a particular business, may be entirely willing to sign off on a broad and far reaching non-compete proposed by an adversary. Business plans change in the future. New business owners may seek to enter new business areas. The non-compete may be challenged. More so than the litigants, the audience to think about on non-competes should be a court sitting in critical review of the scope of the non-compete in some future action.

Releases and indemnities oft-times present challenges for parties. Typically, parties are prepared to release all claims and all issues related to claims “from the beginning of time until the end of time”. A corresponding limited indemnity usually presents little difficulty. However, once a release or indemnity seeks to include other potential claims and even other parties, the parties need to carefully review the scope and determine the worth of settlement with this transfer of risk. When parties remain entrenched in demanding a broad form release and indemnity for any and all claims, related or unrelated to the underlying facts, they should carefully consider the alternative of proceeding to finality in the courts. At the conclusion of a case, claims asserted in the litigation, and nothing more, will be dismissed. No other claims will be released. There will be no indemnity of any nature available.

Use of non-economic terms and structure in settlements remains limited only by the parties’ and mediator’s creativity. The structure of any settlement is not constrained by the underlying pleadings, claims asserted, or defenses presented. In evaluating different or less than traditional approaches, the parties may discover alternative and beneficial paths toward settlement.

Proper consideration of settlement agreement terms and structure in advance of mediation proves beneficial on many fronts. The attorney can better ensure that all issues the client needs to get addressed are included in the agreement. Expectations can be better managed and reset as required. Proper approvals can be secured from the appropriate personnel. Advance notice of select issues to an adversary will not be “tipping your hand”, but rather a privileged communication to make certain that your issues are fully and properly addressed in a settlement agreement. The adversary may require different approvals, especially where non-economic relief is in play. The advance notice allows such authority to be secured, if appropriate.

If followed, this process focuses the parties on concerns meaningfully in dispute or those considered vital in resolution. The process establishes defined goals and may present new paths toward agreements. The process should illustrate the points where the parties actually agree or on which there is no dispute. Indeed, quite often, the parties recognize that they are actually close to settlement.

No Surprises for Brett Kavanaugh

First, a disclaimer. I write this article a few days before the initially scheduled Senate Committee vote on US Supreme Court Nominee Brett Kavanaugh. The nomination has been thrown into turmoil over the past few days. I do not know whether Kavanaugh will be confirmed, whether he will withdraw his nomination, whether his nomination will be withdrawn, or whether a complete circus sideshow will unfold in the Senate. I offer no opinion on the merits of Kavanaugh’s nomination. I am merely amazed by the politics surrounding these developments and write on issues related to political games being played to decide Kavanaugh’s future and Kavanaugh’s own (ironic) role in setting the stage for his own potential downfall.

Something funny happened on the way to the coronation. Supreme Court Nominee, Brett Kavanaugh, on track for Senate confirmation one week before the scheduled Senate Committee vote, had survived the Senate hearing process and emerged relatively unscathed. He dutifully avoided answering questions as have all nominees since Robert Bork. Kavanaugh well understood the political gauntlet he had to run and played the game perfectly. At worst, he appeared set for Senate confirmation along partisan lines.

But wait, in a Perry Mason “aha” moment, after the hearings and before any vote, allegations of physical sexual abuse from Kavanaugh’s past rise up to take center stage. The allegations are more than 35 years old and involve alleged actions by Kavanaugh while a 17 year old high school student. The allegations are quite serious in nature. As a consequence, events continue to unfold in real time with the nomination potentially in jeopardy and uncertainty all around. The only sure thing is that political maneuvering by all will be on steroids over the next few days, or more.

I have been fascinated by the politics of Supreme Court appointments since Robert Bork’s nomination in the 1980s. Judge Bork was the last nominee to actually provide his views and opinions on certain matters in response to Senate inquiries. He was torched in the nomination process and defeated by Senate vote. In response, every nominee since Bork, regardless of political leanings or views on the law, responds with one of the following to nomination process questions: “I respect precedent of the Supreme Court and recognize it as the law of the land.”; “I believe in the Rule of Law.”; and “Each case must be addressed on its own merits, I cannot speculate.”. We learn nothing with such general statements.

As a result, the Senate confirmation process for Supreme Court nominees has become an event for Senators to grandstand, knowing that the nominee is trained to avoid the questions. The nominee is compelled to play this political game with no new information learned directly from the nominee. The only enlightening information appears to be from the nominee’s past writings and activities. There may be judicial opinions, law review articles, and other publications which can be dissected to determine actual views. Previous positions and jobs provide insight into the person as well. Senators, both in support of and opposed to a nominee, will place a spin on these data points to score political points in the process. The nominee must be careful to avoid any of these political pitfalls.

Of all recent nominees, Kavanaugh appeared the most knowledgeable of the politics involved in any Senate confirmation process. Indeed, his entire professional career has tracked toward this moment. Kavanaugh graduated from an Ivy League law school, clerked for a Supreme Court Justice, served as prosecutor and even with Special Prosecutor Kenneth Starr seeking to impeach President Bill Clinton, served as part of the legal team representing George W. Bush in Gore v. Bush, served in the Bush administration, and has been a federal judge. Since graduating law school in 1990, Kavanaugh has been a “Washington Insider” not with a front row seat for the extreme politics, but as an actor on the stage itself. He has been part of the politics.

The reward Kavanaugh sought was provided with the recent nomination to fill Justice Kennedy’s seat on the Supreme Court. The Senate hearings concluded. The parade of character witnesses served him well. All appeared in place with a little work to be done to secure the votes of a few key Senators. Enter college professor, Christine Blasey Ford. Professor Blasey Ford alleges sexual abuse by Kavanaugh while they both were in high school in the 1980s. Let’s be clear. IF TRUE, such events are horrifying at any time. IF TRUE, Kavanaugh would have lied with his denials of the events. IF TRUE, such matters would be fatal politically for Kavanaugh in the midst of the #MeToo Movement, weeks before the midterm elections, and while a record number of women seek political office.

Within 48 hours of this revelation, pushed by political supporters of Kavanaugh, the news cycle turned from “Are the allegations true?” to “Is it fair to dredge up 35 year old allegations?” In the abstract, perhaps there exists legitimate reason to debate whether new allegations of conduct from decades ago constitute fair game for consideration. After all, the allegations have not previously been raised even when Kavanaugh held very public and prominent positions. The allegations were presented a few weeks ago to a Senator who did not disclose them until this late stage. The timing of the disclosure appears to be strategically calculated to place maximum political pressure on Senators to turn on Kavanaugh or force withdrawal of the nomination.

For Kavanaugh himself, however, the response undoubtably is that this gamesmanship involving such serious allegations, and how it plays out, remains entirely fair in his own nomination process.

Recall that Kavanaugh served on Kenneth Starr’s legal team to investigate and pursue President Bill Clinton regarding perjury for the Monica Lewinsky affair. Kavanaugh was among those who advocated that prior alleged inappropriate actions and relationships of Clinton were relevant to the investigation, even where the allegations involved decades old actions. Kavanaugh also argued that all specifics of the affair between Clinton and Lewinsky be explored to make Clinton’s “pattern of revolting behavior clear — piece by painful piece.” Kavanaugh continued: “[t]he interests of the Office of the President would be best served by our gathering the full facts regarding the actions of this President so that Congress can decide whether the interests of the Presidency would best be served by having a new President. More to the point: Aren’t we failing to fulfill our duty to the American people if we willingly “conspire” with the President in an effort to conceal the true nature of his acts?”

Kavanaugh may now confront the type of very personal, embarrassing inquiries he advocated. Kavanaugh advanced that every graphic detail of the Clinton-Lewinsky relationship be explored including the number of times they engaged in activities, the precise nature and type of activities, the locations of the encounters, etc. According to Kavanaugh, Congress and the American people had to understand these details in order to render judgment about Clinton. Welcome to the hot seat Nominee Kavanaugh where your personal life may unfold “piece by painful piece”.

Kavanaugh argued that the Presidency itself demanded that these inquiries be made. We all need to have faith in the integrity of the office itself. That thinking applies even more so to uphold the integrity and faith in the Supreme Court. There are no term limits or elections for Supreme Court Justices, just lifetime appointments. What follows is that a complete vetting of Kavanaugh’s alleged physical sexual abuse is demanded in order to protect the integrity of the Supreme Court itself. Kavanaugh himself demands no less.

Kavanaugh set the standard to judge others in these circumstances. To be plain, he sought to solicit explicit details of sexual encounters, in part, to embarrass Clinton so that the President “(i) resigns or (ii) confesses perjury and issues a public apology to [Kenneth Starr].” Some Senators, politically motivated, may now seek the details of Kavanaugh’s past actions to embarrass the nominee.

As a career Washington Insider, Kavanaugh consistently used the politics of the day to achieve his goals. He has used the political machinery masterfully in order to advance from prosecutor to administration official to federal judge. Now that he can almost grasp his ultimate goal of becoming a Supreme Court Justice, the same political machinery may turn on him. The one person who had to see this coming was Brett Kavanaugh.

Again, I offer no judgment about Nominee Kavanaugh. I recognize the “fairness” arguments being raised about last-minute, emotionally charged allegations. I understand the points about relevance of issues from decades ago. In this circumstance, we need not address such arguments or debate the merits as Nominee Kavanaugh himself set the bar for any such investigation and inquiry. He has deemed all such matters completely relevant. Simply apply the standard which Kavanaugh advocated.

Nominee Kavanaugh may squeak through the confirmation process as did Justice Clarence Thomas (52-48 vote). Kavanaugh may withdraw his nomination. I know not. But I do know that Kavanaugh will now be subject to political gamesmanship, the likes of which he has known and engaged in since 1990. Now that is fair.

Americans Own Less Stuff – What Does That Mean for Us?

With the infiltration of the internet and software in our lives, we necessarily own less stuff. We consume books on Kindle. We rely on Netflix for our movies. Spotify provides our music. These, and similar, service sites own the entertainment which we lease. Actual books and compact discs are becoming relics for which a modern times Indiana Jones may soon search. Many (most) appear OK with this arrangement.

Noting such changes in our approach to ownership, Economics Professor Tyler Cowen observed that the younger generation even avoids the one American Dream of car ownership in favor of urban living with reliable mass-transit, cycling, Uber and Lyft options. Cowen acknowledges that such changes provide benefits. Yet, he opines that Americans are “losing their connection to the idea of private ownership.” (See Professor Cowen’s full article at: httpss://www.bloomberg.com/view/articles/2018-08-12/american-ownership-society-is-changing-thanks-to-technology). Professor Cowen then questions what this new societal approach which avoids direct ownership means for capitalism. In part, Cowen concludes that owning less stuff serves as a reason to be nervous for our economic system.

I am no economist and cannot meaningfully wade into the fray on the strength of the underpinnings of capitalism. I do agree that our increasing reliance on on-line service providers results in less ownership of “stuff”. My 20-something-year-old kids clearly view the significance of ownership differently then the generation above. They want just what they want and no more; they want to use it when they want it; and they see no need for ties to it when done with it. As a result, there is less ownership of stuff and we can even have less stuff. My kids look in bewilderment and amazement at my collection of CDs and, dare I say, record albums.

But, is less “stuff” good or bad? Just help someone move from their house. When you find boxes of manuals and instructions relating to appliances which were left behind in prior houses from previous moves, ask whether we need that “stuff”. Are the slightly broken desk chair and plastic containers with no lids the “stuff” we treasure so dearly we must keep? Look through your attic and storage spaces at all the “stuff” you have not used in years, if not decades. Could any of this “stuff” possibly be donated to those in need? Do we need these grand living spaces for us, or as a nice setting to keep our voluminous “stuff”? This younger generation may be on to something about owning less stuff and living in tiny houses.

When we got married, our first house was 100 years old with tremendous character and charm. In its original design, it could not be filled with too much “stuff” as it had but two small bedroom closets and no other storage areas. Some time during the 20th Century, our society developed a great need to collect and retain stuff. We were not always this way.

I admit to my own guilt in having too much stuff. I am not a fan of clutter and try not to collect too much stuff. However, I find it quite challenging to let go of books. I have read them and enjoyed them. They should be shared with others. When my much better half starts to box up books to donate to an old folks home, I cringe at the prospect even if done for such a good cause.

Perhaps this younger generation which presently views little need to own stuff represents the pendulum swinging back in the other direction. Give this new generation ten years and we will see what happens when partners are found and children enter the picture. Maybe the need for ready transportation and desire for a permanent home base may develop. We will see.

Regardless, whether we have too much stuff or avoid ownership of stuff, litigators and mediators should be cognizant of this shift in thinking with the new generation entering the business world. So many litigation disputes center on ownership rights. Estate litigation essentially argues over who owns or controls the stuff. Business dissolution cases involve directly competing ownership claims over stuff. Remove children from the equation and family law principally focuses on who gets the stuff. Intellectual property law raises questions about who invented and owns the stuff as well as who can use the stuff. The list can go on.

College students and 20-something-year-olds constitute a significant portion of potential jury pools. As a group, they present few viable excuses to avoid serving on juries. They will bring with them their refined views of property ownership. I am not certain what these views may mean during deliberations, but I am certain that their views will be expressed for consideration. Ignore this group at your own risk.

In the most fundamental manner, there exists a new risk calculus for litigants. Trial attorneys should strategically think through case presentations and themes to be advanced in light of different views of property ownership. Litigants should not dismiss the younger generation as sheep or simple followers on juries where deliberations will include ownership rights. Mediators and ADR professionals should educate themselves to better understand and be prepared to use this new dynamic in settling cases. At a minimum, less than traditional views of property ownership represent an unknown factor. “Unknowns” translate to greater litigation risk for all. Mediators should stress this new, unquantifiable risk.

As for Professor Cowen’s analysis, there may be less direct ownership of stuff in today’s society, but the capitalistic business models of service providers such as Apple, Netflix, Google and Kindle appear to be well intact. The 20-something-year-old crowd may not “own” these services, but I would not be the one to attempt to take them away from that generation. Less “stuff” translates to a change in societal thinking and approach. We need to recognize and work with the new approach. And maybe, just maybe, we do not need so much stuff.

Mediation Goes to the Movies

One of my boys recently observed that there are plenty of lawyer movies. He questioned why there are no mediator movies. As explained below, the answer to that question is simple. Nonetheless, with too much time on the beach during vacation, I pondered the “what ifs” of mediating some iconic movies. Can this hypothetical cinematic exercise teach us anything? Or, does it merely prove that I need more to do while on vacation? I recognize that those conclusions may not be mutually exclusive.

First, the answer. Lawyer and legal movies incorporate built in conflict. Whether against each other in court or within the confines of a law firm, lawyers clash. They argue. They stake out positions and defend them. Litigation compels parties to fight. The litigation process, by definition, remains adversarial.

This “conflict” serves as a ready-made plot device. The underlying movie plot could be the legal battle itself (e.g., To Kill A Mockingbird, A Civil Action) or the vehicle to move the story along (e.g., 12 Angry Men, My Cousin Vinny). It is easy to create heroes and villains where there exists conflict. In sum, the conflict represents tension from which the story evolves.

Compare lawyer and litigation conflict to mediation. Mediation remains a voluntary process where all agree to attempt to seek resolution of conflict. Mediation participants want peace and finality to claims. They want to terminate battles. One need only look to two fundamental mediation training books to sum up mediation: “Getting to Yes” and “Getting Past No”. A movie about people cooperating and inching toward handshake and a settlement agreement, quite simply, is not an action thriller which will fill up the seats of a movie theater. For cinematic purposes, mediation is boring.

Nonetheless, my son’s observation got me thinking about what might happen if mediation were introduced into movies. For these purposes, I eliminated from consideration all lawyer and legal movies as such films already begged for some alternative dispute resolution. I sought to focus on the classics and well-known movies. I selected an unlikely trio of movies as mediation candidates: The Wizard of Oz, Casablanca, and Animal House.

The Case of The Wizard of Oz or Who Owns the Shoes

The essence of the dispute in The Wizard of Oz boils down to who has a legitimate or better claim to the ruby slippers. Dorothy Gale was thrust into the fray after her well-crafted Kansas house left the Wicked Witch of the East “not merely dead, . . . really most sincerely dead”. Without consultation or consent, the good witch transferred the ruby slippers to Dorothy. Dorothy remained in possession of the fancy shoes as, at best, the recipient of a gift. Pretty slim legal entitlement claim to the shoes for Dorothy.

However, the claim of the Wicked Witch of the West does not appear much more sound upon examination. We know of no will which bequeathed the ruby slippers to the Wicked Witch of the West. The Wicked Witch of the East clearly did not give the slippers to her sister as evidenced by the fact that the Wicked Witch of the East had been using them upon her demise. The simple fact that the Wicked Witch of the West claimed to be aware of the powers granted by the ruby slippers and that she knew how to use such powers fails to constitute a valid legal claim of ownership.

With each party presenting tenuous legal claims for the ruby slippers, the dispute cries out for compromise and mediation. But wait. Can this dispute truly be resolved with only Dorothy and the Wicked Witch of the West? As we learned, the Wizard of Oz himself may be required for transportation back to Kansas as well as the Good Witch of the North. Sounds as if they should be included in the mediation. Perhaps the Good Witch of the North herself possesses a claim for the shoes. If the Wicked Witch of the West ultimately retains powers from the ruby slippers, would not the Munchkins be entitled to a seat at the mediation table to ensure the peace they gained when the Wicked Witch of the East got squished? This mediation covering footwear suddenly became quite complex and crowded.

A critical point for mediators and participants is to identify necessary stakeholders in order to completely resolve a dispute. The stakeholders may be parties to the litigation or even third parties with some interest. Seek to identify any such stakeholder prior to mediation and resolution efforts. Otherwise, your mediation could be derailed by a pack of Munchkins at your door.

The Case of Casablanca or Rick vs The World

It is no wonder that Rick often acts as if the weight of the world rests on his shoulders in so many scenes of Casablanca. He feels directly responsible for the well-being of Sam and all employees at Rick’s Cafe. He believes he must protect them from all external influences. He loved and lost only to confront this love again in his own gin joint. He constantly battles the only other, well-connected bar owner for supplies, customers and control over corrupt local officials. He secretly anguishes over perceived injustices in local and world conflicts while stating that he will “stick his neck out for no one”. He then must overcome possible jealousy of a true freedom fighter who happens to be married to the love of his life. Rick is fairly miserable for the one who possesses German letters of transit which ensure freedom to the bearer. At least Rick need not worry about Ugarte.

How can mediation help in Casablanca? Initially, we might need a family law mediator to assist with the Rick vs Ilsa and Victor Laszlo scenario. Rick needs help with all his feelings of revenge while Victor desperately needs the letters of transit to continue the resistance fight.

Just who deserves the letters of transit would be a fascinating mediation. Rick possesses them. The German officers assert some level of ownership as the letters were stolen from a German courier. Ilsa and Victor seek them citing the moral high ground of the need to continue resistance efforts. We should not forget Captain Renault who ordered the search of Rick’s Cafe looking for the letters of transit due to their monetary value in Renault’s corrupt enterprise.

While Rick is on the way out of town, he sells Rick’s Cafe to his business opponent, Ferrari. One cannot help but think that Rick and Ferrari, both practical business owners, would have benefitted from a pre-arranged, mediated business solution in the very likely event one of them had to expeditiously get out of town.

Perhaps mediators might not have been able to assist in resolving Rick’s internal moral struggles or the spread of Nazi control in the region. However, given the number of distinct conflicts presented by Rick, mediation could have been used to bring Rick and all these other parties closer on a host of disputes. But, one mediation could not address the family law, business divestiture, and letters of transit disputes, among others. The parties and mediator would need to define the issue(s) being addressed. Only then could the necessary parties focus on the core disagreements and work toward solutions.

The Case of Animal House or The Merits of Double Secret Probation

At first glance, Animal House may be a questionable mediation candidate. Yet, the plot provides various disputes which could benefit from mediation efforts, both within and involving the Delta Tau Chi fraternity and Faber College. The long-standing and numerous disputes between the Deltas and the Greek Council are primed for resolution discussions rather than formal hearings. Instead of penalties, solutions could be crafted to better encourage rule-abiding conduct by the Deltas. Dean Wormer placing the Deltas on “Double Secret Probation” without notice or advice of consequences may be an area where emotions are ratcheted down and common ground reached. Finally, the Deltas insisting on a Roman Toga Party in response to disciplinary steps could possibly be avoided with a better understanding of the positions of all involved.

The challenge with each dispute from Animal House remains the unreasonable expectations of each party. For the Greek Council, the only acceptable solution is taking away the Delta’s Charter. For Dean Wormer, anything short of expulsion of the Deltas from Faber is a failure. For the Deltas, any response not including an over-the-top beerfest and revenge-filled parade is a non-starter.

A perceptive mediator as well as lawyer-participants representing clients will appreciate, and act on, unreasonable expectations of a client before the mediation. Demanding that students, however questionable their academic profiles and misdemeanors, leave college gives the Deltas a “nothing to lose” mentality. The extreme positions ensure an extreme response and fight instead of negotiations. Mediation requires compromise and the compromise will lead to an agreed upon settlement somewhere between the extremes. The unreasonable expectations and demands of some parties need to be addressed head on in order to direct these parties toward a realistic settlement range.

I am confident that there exist other and better mediation-movie candidates. For each example, mediation can alter the dynamics of conflict, turning them into opportunities to difuse a situation or possibly resolve the dispute. Of course, movies then would be far from exciting, regardless of the excitement for ADR processes each mediator would most definitely bring to the table!