We are delighted to congratulate Geoff Sharp, our friend and colleague, for being appointed LEADR Fellow for 2008 - 2010. Geoff is the first New Zealander to be appointed a LEADR Fellow. Previous LEADR Fellows have been the Honourable Tony Fitzgerald QC and Ms Joanna Kalowski. The role of Fellow is to act as an ambassador and to represent ADR to the community and to government.

LEADR Chair, Margaret Halsmith said “We know Geoff to be a person of ideas and energy. LEADR is excited by the opportunities for working closely with him to action these ideas in line with the goals of LEADR.”

For more information about Geoff and his witty and topical insights, visit his blog at at http://mediatorblahblah.blogspot.com.

With the Presidential election less than a week away, neuroscientists are contemplating why there still exists such a plentitude of undecided voters. Sam Wang, an associate professor of neuroscience at Princeton, and co-author of Welcome to Your Brain: Why You Lose Your Car Keys but Never Forget How to Drive and Other Puzzles of Everyday Life explains, “decision-making is thought to involve two parts, gathering evidence and committing to a choice. In tasks as simple as deciding whether a shifting pattern of dots is moving to the left or to the right, brain activity in the parietal cortex rises as evidence is gathered, eventually reaching a tipping point of choice - though it is not yet known what brain regions drive the final choice.”

There’s an obvious trade-off to this kind of process between speed and accuracy. While a quick decision will let you move on to the next task at hand, a decision made after extensive “evidence gathering” could lead to a wiser and more accurate choice. Wang explains that those who are undecided are not indifferent but rather may simply take more time in their “evidence gathering,” demonstrating a willingness to trade off speed for accuracy.

In Your Brain’s Secret Ballot, an Op-Ed article in the New York Times, Wang writes,

In measurements of decision-related neural activity, after there is enough evidence to reach a person’s decision threshold, his brain can ignore further input even when it might improve accuracy. The brain goes ahead and decides, freeing up mental resources to deal with other problems.

This logic suggests that undecided voters might simply require a higher degree of confidence before they commit. Still, the person may not be aware of that internal commitment. In one study, people were asked to play a gambling game in which they could choose cards from several decks, some of which were secretly stacked against them. After losing repeatedly, most subjects began to nervously avoid the less favorable decks but were unable to say why until after much further play. People with damage to the ventromedial prefrontal cortex lack this intuition, and so they take inordinate time to make decisions in general.

Of course, undecided voters aren’t suffering from brain damage, it’s just that their brains may require an especially long amount of time to develop confidence in or awareness of a choice.

Undecided voters have another five days to finalize their evidence gathering before the clock runs out for them to commit to a candidate. Negotiators however, can continue to utilize the data from Wang’s studies long after the election is over to assess the decision making preferences of their counterpart.

The Califoria Supreme Court on October 22, 2008, voted 6-0 in favor of granting the petition for review in Brinker Restaurant Corp. v. Superior Court of San Diego County, a major employment law decision over meal and rest breaks. Justice Kathryn Werdegar was absent and did not participate in the vote.

The 4th District Court of Appeal in the Brinker decision concluded that while employers can’t discourage employees from taking rest periods, they do not have to ensure the breaks are taken and can only be held liable for employees working off the clock if they were or should have been aware of them doing so - a notable initial victory for employers.

The Supreme Court’s review of the matter will no doubt place employers on edge as they await a decision, while employees enjoy the possibility that they may in fact have the last hoorah.

For past coverage of the Brinker matter, click here.

This 1936 photograph of Florence Owens Thompson, a poverty-stricken migrant mother, came to symbolize the Great Depression. By Dorothea Lange/Corbis.

The power of visual information while not easily quatifiable, can be utilized quite effectively at the negotiating table to shape and shift another’s perception of the matter at hand. Glenn W. Richardson, Jr. discusses the power of visual information and the relevant supporting scientific data at length in his article on visual storytelling published in the American Communication Journal.  In his article, Richardson discusses several studies which have linked vivid visual information with heightened memory and recall, finding that visual scenes served to enhance the verbal story line. He goes on to explain that this results from the brain processing visual information holistically rather than deriving meaning exclusively from narrative linkages.

Consider for a moment a person you haven’t seen in a very long time. Now try to describe what that person looks like. You may find this difficult to do. Yet, there is no doubt that when you finally do see this individual again, you will be able to immediately recognize most if not all of the ways that they’ve changed since your last encounter. This is because visual information is often processed in terms of how it fits or deviates from existing patterns. Thus, just because someone cannot articulate or recall the details of a particular visual communication, such as a PowerPoint presentation or photographs embeded in a brief, does not mean that the communication was ineffective or failed in its impact.

On this note, we leave you with a slideshow of the 25 best news photographs as determined by the editors of Vanity Fair - each of which tell a very compelling story.

July 26, 1990 - President George H.W. Bush signs into law the Americans with Disabilities Act of 1990 (ADA)

On September 25, 2008, 18 years after his father signed the Americans with Disabilities Act of 1990 into law, President George W. Bush signed the Americans with Disabilities Act Amendments Act of 2008 (”ADAAA” or “Act”). 

The ADAAA goes a long way in restoring protections that were promised by the Americans with Disabilities Act of 1990, but rescinded by unfavorable Supreme Court decisions that interpreted the protections of the statute narrowly.

When the ADA was passed in 1990, it adopted the definition of disability used in the Rehabilitation Act of 1973, such that an individual was deemed to have a disability if he or she had a physical or mental impairment that substantially limited one or more major life activities, had a record of such an impairment, or was regarded as having such an impairment.

However, the Supreme Court, in 1999, narrowed the definition of disability in their holding in Sutton v. United Air Lines. In Sutton, the Court held that when determining under the ADA if an individual is disabled by an impairment that is substantially limiting, consideration must be given to the effects of mitigating measures such as corrective lenses, medications, hearing aids, and prosthetic devices. 

In 2002, the Supreme Court went one step further in Toyota v. Williams by interpreting the word “substantially” contained in the ADA’s definition of disability to mean “considerably” or “to a large degree” and redefined a “major life activity” as one that must be of central importance to most people’s daily lives.

The ADAAA rejects the holdings in Sutton and Toyota as well as portions of the EEOC’s ADA regulations. The ADAAA retains the ADA’s basic definition of “disability” as an impairment that substantially limits one or more major life activities, a record of such an impairment, or being regarded as having such an impairment. However, it changes the way that these statutory terms should be interpreted in several ways. More specifically the ADAAA:

• directs the EEOC to revise that portion of its regulations defining the term “substantially limits”;
• expands the definition of “major life activities” by including two non-exhaustive lists:
  1) the first list includes many activities that the EEOC has recognized (e.g., walking) as well as activities that EEOC has not specifically recognized (e.g., reading, bending, and communicating);
  2) the second list includes major bodily functions (e.g., “functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions”);
• states that mitigating measures other than “ordinary eyeglasses or contact lenses” shall not be considered in assessing whether an individual has a disability;
• clarifies that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active;
• provides that an individual subjected to an action prohibited by the ADA (e.g., failure to hire) because of an actual or perceived impairment will meet the “regarded as” definition of disability, unless the impairment is transitory and minor;
• provides that individuals covered only under the “regarded as” prong are not entitled to reasonable accommodation; and
• emphasizes that the definition of “disability” should be interpreted broadly.

A sign famously hangs in Paul Newman’s Westport, Conn., office that reads, “If I had a plan I would be screwed.” Newman, who died of cancer this year at age 83, firmly believed in the benefit of “creative chaos,” welcoming the opinions of others whether in business or on the movie set.

Newman understood and appreciated that success in today’s age depends on how good we are at improvising rather than merely sticking to a script or plan. The concept of improvisation, while rooted in the arts and music, has widespread application to all disciplines including the legal and ADR field. At its heart, improvisation is a tool that can facilitate greater communication, learning and transformation, which are in and of themselves, the cornerstones of innovation and growth.

At the negotiating table, improvisation demands that parties deal with the reality they are presented in real-time rather than continually revisiting scenarios of what they believe could or should be. By limiting oneself to a scripted plan, options for solving problems are narrowed and opportunities for solutions are more likely to be missed, leading to a failed negotiation. Improvising instead of following a script or a plan, allows one the flexibility to stay nimble, operate more freely and authentically, and invite the participation and entrepreneurship that are essential to success as Newman aptly identified.

With the support of a grant from the California Bar Foundation and assistance from the State Bar of California, Office of Legal Services, Access and Fairness staff, the Public Interest Clearinghouse and the State Bar announced recently that ForeclosureInfoCA.org, a central repository for public resources and attorney volunteer opportunities, has gone live. 

 This site has a host of services including: 1) listing agencies and organizations providing mortgage foreclosure assistance to consumers; 2) linking with http://www.probono.net/ca/and listing the attorney volunteer opportunities available at legal services programs, HUD counseling agencies, local bars and LRS’s interested in using volunteer attorneys to address mortgage foreclosure issues on behalf of home owners and renters; and 3) providing consumer education on mortgages, loans and the foreclosure process.

Ideas for additional ForeclosureInfoCA.org resources, should be directed to Siobhan Waldron, Public Interest Clearinghouse at swaldron@pic.org.

RealtyTrac, the leading online marketplace for foreclosure properties, reported in its Q2 2008 U.S. Foreclosure Market Report, that foreclosures were filed on 739,714 U.S. properties during the second quarter of 2008, a nearly 14% increase from the previous quarter and a 121% increase from the second quarter of 2007. The report also shows that one in every 171 U.S. households received a foreclosure filing during the second quarter of 2008.

“Although much of the fallout from foreclosures is being driven by rampant activity in a few states, such as Nevada, California, Florida, Ohio, Arizona and Michigan, most areas of the country are seeing at least some increase in foreclosure activity,” said James J. Saccacio, chief executive officer of RealtyTrac. “Forty-eight of 50 states and 95 out of the nation’s 100 largest metro areas experienced year-over-year increases in foreclosure activity in the second quarter.”

In light of all the recent dismal activity in the housing market, states across the nation are responding with mandatory mediation programs to provide some form of relief to struggling homeowners.

In Connecticut, the General Assembly launched a special foreclosure mediation program through the state Judicial Branch, the first of its kind in the United States, to help homeowners who have not been able to make their monthly mortgage payments reports Daniel Tepfer of the Connecticut Post. 

Similarly, Ohio’s Supreme Court has developed and instituted an 11-Step Foreclosure Mediation Program Model that Ohio Courts are using in forming their mandatory foreclosure mediation programs throughout the state. In Seminole County, Florida, 18th Judicial Circuit Chief Judge Clayton D. Simmons signed an order earlier this summer ordering mediation in foreclosures of owner-occupied residences in an effort to force lenders to respond to homeowners’ who want to work out a deal so they can keep their home. “It is forcing, hopefully, some communication that wasn’t going on in the past. That was our whole purpose,” Simmons said as reported in the Orlando Sentinel by Amy Edwards . “If they don’t communicate, there’s no way of working it out.”

We have not seen anything comparable instituted yet in California to specifically tackle the foreclosure crisis. We invite you to weigh in with your thoughts and comments on the issue and how mandatory mediation programs may positively or negatively effect foreclosure actions across the country.