The Five-Tool Mediator: Game Theory, Baseball Practices, and Southpaw Scouting

This essay borrows heavily from the fields of game theory, baseball business strategy and neuropsychology. Knitting these together, the author advocates that mediators become inciters and advocates for an outcome that solves problems, irrespective of the amount in controversy and the initial gap between offer and counter-offers of settlement. This is not an essay on how to do facilitator’s tasks in settlement negotiations; instead, the reader should consider how to think about the mediator’s role in the process, advancing the value proposition in negotiations. This essay does not propose that mediators become group therapists but instead urges them to relentlessly expose (1) the essence of each party’s intentions and purpose within the controversy, and (2) a range of satisfactory outcomes from the perspective of each party. Once that is accomplished, the second, incitement, phase may commence. In that phase, three transitions must occur. First, the concept of wounding must fade into the background while the concept of amelioration – the path of most proximate to making each party whole – assumes the foreground. In that initial transition, the warriors – those for whom the encounter’s savagery matters equally with the outcome – must be disarmed and converted into fellow seekers of imaginative solutions to the joint problems to be resolved. This requires foremost that the mediators alter the mind-set of the adversaries from the binary thinking realm. The second transition converts each party’s belief that a win is the ultimate goal to understanding that there is a problem to be solved at the lowest possible cost to him in the most expeditious manner feasible – and that such an outcome is as close to victory as he may be realizable. This transition requires moving from pragmatic to imaginative thinking about a controversy’s resolution. A realistic perspective in a controversy, while helpful, is not all-sufficient to achieving a resolution in many cases unless a third-party adjudicator intervenes and directs the dispute’s outcome. The pragmatist’s perspective, that the dispute is a transaction whose terms have been written down but not agreed to, yet, will not guide the parties down the path to resolution. The appropriate perspective sees the dispute environment as writ on a white board, the problem set forth at its top margin and the resolution schematic remaining to be written. Here, every possible solution is available for capture, evaluation and incorporation into an overall solution. The third transition relates to trust: Learning to accept evidence of trust extended by the other disputant and to extend indications of trust without expectation of reciprocity from the adversary. Adopting these attitudes will set the facilitator on the path to becoming a five-tool mediator. For the person not engaged in the business of facilitation, this essay offers a lens through which to evaluate the talent of a prospective facilitator or to gauge a current facilitator’s ongoing performance

Chasing the Atticus Code - Preserving Adjudication Integrity in Local Administrative Hearings

In the United States administrative law realm, there purportedly exist more than 19 thousand municipal governments, 16 thousand town or township governments; three thousand county governments, 13 thousand school districts and 35 thousand special district governments. This essay argues that these local adjudicative loci largely neglect the ethical guidance or direction of lawyers serving in government-official capacities without holding elected nor judicial positions. I dub these decision-makers “Atticus.” Citizens support the notion of external codes of professional responsibility for such persons not necessarily because they believe that “lawyering rules” are well constructed or property enforced, but because they doubt lawyers truly are self – governing in ways promoting fairness or basic cultural values. The failure of the attorney regulatory process is especially acutely felt in the local government realm. There, attorneys adjudicate through administrative hearing processes while serving as unelected and temporary. The public is intimately acquainted with those processes as direct participants. There are thousands of local governments in America, with estimates ranging to upwards of 90,000 such jurisdictions. Substantial numbers of attorneys act as hearing officers in those communities in a variety of roles. Some are independent contractors; others volunteer their services. Irrespective of compensation, I argue in this essay that, in a “non-counselor” role, Atticus is essentially ungoverned by codes of attorney professional conduct. Thus, potential for mischief abides, a circumstance worsened by the failure of many communities to impose standards of ethical behavior on these contractors or volunteers. I argue that in many instances the lone governing ethic affecting such lawyers’ behavior as they fulfill their hearing officers’ roles is their oaths of admission to practice before the bar. These oaths, sworn at the commencement of bar admission, are marginalized if not ignored altogether in discussions of appropriate lawyer professional conduct where the representation of clients is not implicated. Ultimately I recommend ways for communities and state supreme courts to implement standards appropriate for Atticus’s role and concurrently satisfy public expectations for the local adjudicative process

Begone, Euclid!: Leasing Custom and Zoning Provision Engaging Retail Consumer Tastes and Technologies in Thriving Urban Centers

Is urban center retailing in a death spiral? Competition for consumers with Internet vendors is afoot; winners and losers shall be anointed. The threats to physical retailing in an era of the “Internet of Goods” initially are described below. Adaptations by tenants, landlords, and stakeholders in urban centers will be required quickly, and new perspectives and partnerships, including those among local and regional governments, are instrumental if physical retail operations in municipal cores are to survive. The balance of this article describes these needs from the vantage point of each stakeholder; but this article argues that integrating information and communication technological infrastructure into retail leasing practices and land use planning and zoning strategies is inescapable for the maintenance of resilient town centers. Part II of this article describes the overwhelming impact of Internet consumerism upon physical retailing while Part III explains the physical milieu’s remaining but shrinking opportunities to remain competitive with the online consumer realm. Parts IV and V demonstrate how information and communication technologies, with innovative strategizing by retailers and their landlords, can be leveraged to incite lasting consumer interest in physical shopping environments within a community’s commercial nodes. Parts VI and VII articulate the municipal imperatives, including policies to implement robust technology infrastructure and capitalizing on ICT’s inherent “intelligence,” required to maintain commercial core competitiveness

Inlaid-Ivory Towers: Higher Education Joint-Use Facilities as Community Redevelopment Bulwarks

This paper describes an unusual public-private partnership for real property development not involving typical infrastructure like bridges and roads. It addresses how communities like Mesa manage their way (adopting policies implicating land use and environmental sustainability principles via repurposing of buildings and sharing of additional community assets and “campus” leasing actions) to attract private sector higher education providers to establish a downtown as a node of intellectual stimulation, including cultural diversions. Etching the ivory tower environment into community centers sustains the quality of place. This quality attracts the “creative class,” which forms the core of leadership and entrepreneurship in America’s knowledge economy. Community interest in occupation-based approaches to urban economic development remains strong in this country. This paper identifies the goals of higher education institutions attracted to this opportunity to expand their student base in a time of heightened competition from proprietary institutions capitalizing on career orientations. Having identified the “town’s” and “gown’s” respective objectives, this paper then analyzes the essential interests of each party to a leasing transaction and how these parties’ respective vital needs can be met in a commercial lease instrument. Finally, an appendix to this paper affords the reader evidence of essential leasing terms in establishing this unique form of higher educational cooperative. First, however, the paper describes what is at stake for a community’s downtown revitalization