We often see this kind of result in the troubled land of the litigants.   A settlement is proposed, but the stubborn claimant proceeds full steam ahead, eyes on the prize of a better damage award in court or in arbitration. In one case where we provided representation to a litigant in a dispute with a software company, the plaintiff refused a $300,000 settlement offer after trial, choosing instead to take his chances with an appeal. Before the appeal was concluded, the defending corporation went into bankruptcy, leaving the plaintiff with nothing.

This often occurs in alternative dispute resolution as well, when a party rejects a mediated compromise in order to pursue a better result through arbitration or litigation. Sometimes the award is disappointing, and, except for very narrow grounds, it cannot be appealed in court.  

Randall Kiser, an attorney who is an expert in litigation decision analysis, has analyzed more than 11,000 attorney-client decisions in actual cases.  He concluded that attorneys and clients are "not particularly accurate forecasters of trial results."  His 2008 book, Beyond Right and Wrong, describes the psychological and institutional factors that often impede sound decisions and provides suggestions for improving personal and group decisions.  

When facing catastrophic losses, as the Redevelopment Association was in last year's state budget negotiations, parties often act recklessly, said Kiser in a brief telephone conversation, perhaps even "hydroplaning above reality."  Neuroscience suggests that the perception of a loss or a gain actually activates different parts of the brain.  When facing a gain, the client or attorney may be more analytical, using the pre-frontal cortex, where "executive function" resides; whereas, when facing a loss, emotional responses rooted in the amygdala, such as fear, may dominate the decision process at the expense of rational analysis.

After discussing the redevelopment situation with him, I asked Kiser for some suggestions that people and businesses might incorporate to make better decisions. He offered two ideas from other researchers.  

Citing Gary Klein, he suggested doing a "pre-mortem" at the beginning of a project. Sit down with everyone involved to imagine a catastrophe at the end of the project and write down all the things that could go wrong. After alerting the players to all the potential hazards, they can implement steps to prevent them.

And this quote from futurist Paul Saffo is worth pondering:  "Good decision makers and forecasters have strong opinions lightly held."  After making a forecast, look for all the reasons you could be wrong, and then set out to disprove yourself.

The bottom line:  wise counsel encourage their clients to take reasonable settlement offers, but clients sometimes refuse the advice.  Compromise is often the better course, even if it means swallowing some outrage and giving up the chance for "ultimate justice."  The risk of harm may be greater than the potential reward.

Alma Robinson, Executive Director

California Lawyers for the Arts

Notes from 1985 and beyond:

"Mouse"

We didn't realize it, but when our group of five VLAs went to Apple Computer's training facility to learn how to use the first MacIntosh computers, we were becoming "early adopters." CLA (back then we were "BALA" or Bay Area Lawyers for the Arts) had successfully applied to Apple for a computer grant. The grant came with two conditions: you had to apply with a "network" of similar organizations and, you agreed that, if selected, you would attend a three-day training program at Apple headquarters in Cupertino.  During the training, Apple trainers and software engineers hovered over us, watching how we adapted to the new equipment.

"Press"

We'd recruited four sister art/law organizations for this adventure, and they willingly came -- from Georgia Volunteer Lawyers for the Arts in Atlanta, Philadelphia Volunteer Lawyers for the Arts, Washington (DC) Area Lawyers for the Arts, and Lawyers for the Creative Arts in Chicago. The computers were a great boost to our productivity and the training gave us an unparalled opportunity to work closely with like-minded colleagues, sharing our challenges and goals.

"Drag"

Back in our office at Fort Mason Center in San Francisco, it was a joy to replace our sewing-machine style Osborne with its tiny gray-scale screen! We were now on our way to the future with new Lotus Jazz software provided by Apple and new proficiency in word processing and spread sheet software using our new Macintosh.  

"Click"

The Apple Computer community grant program, sadly, is no more. But the gift that kept giving was the opportunity to collaborate. Through the network grant, we learned how to work with other organizations towards common goals. Soon after our success with Apple, we worked closely with the San Francisco Arts Commission to establish a joint project that provided technical assistance to artists needing studio space.

"Double Click"

Meanwhile, we collaborated with the San Francisco Unified School District to create arts internships for high school students from disadvantaged communities--this program is still going strong and has served more than 600 students. We also launched Arts Resolution Services, a national mediation program funded by the NEA and the Hewlett Foundation, with other art/law organizations around the country. Through a collaboration with the Arts Administration Program at Golden Gate University and the San Francisco Department of Human Services, we provided job training services for persons receiving public assistance.  Even California Lawyers for the Arts was born of a collaboration--between BALA and Volunteer Lawyers for the Arts-LA--that resulted in a statewide footprint for our services. 

"Click Shift"

Steve Jobs was, of course, the master collaborator, whose vision and imagination drove him to work with the movie, music and telecommunications industries to develop incredible consumer products.  No doubt he'd understood, when Apple's community contributions program was conceived, that we'd get more "bang for the buck" working in collaboration with other organizations.  

Thank you, Steve, for opening the door for us to learn how to collaborate across geographic and sector lines, in ways that stretched our vision and enlarged our role and impact significantly. We see the through line.

Alma Robinson, Executive Director                 

California Lawyers for the Arts

As Congress and the US Department of Education wrestle with how to fix No Child Left Behind, arts education advocates are hoping that the acknowledged failures of “bubble testing” and blaming teachers will reveal a path to a more robust public education program that includes the arts.  Malissa Feruzzi Shriver, Chair of the California Arts Council, has a passionate concern that arts education has been “privatized,” available only in private schools and wealthier public schools where parents can afford funds for enrichment “extras.” 

 

California was one of five states that participated in the 2011 Education Leaders Institute funded by the NEA to develop arts education strategies.  In addition to Malissa, California's team included Craig Cheslog, representing State School Superintendent Tom Torlakson,  and Larry Powell, the Fresno County School Superintendent who became a media star when he voluntarily reduced his annual salary to $31,000 for the next three years in order to save more than $800,000 for programs in his District.   

The CAC team brought the ELI platform back to California under a new banner: "CREATE the STATE: Core Reforms Engaging Arts to Educate." Convening for two days in mid-October at Loyola Marymount University in Los Angeles, artists, educators and administrators from both sectors heard several speakers who had ignited the Chicago meeting, including:

Education Professor Yong Zhao from the University of Oregon declared that current US educational policies have  “eroded our strength.” Questioning concerns about the achievement gap between the US and Asian countries, he asked, “Why should test scores in two subjects matter more than anything else?” While US children may compete badly on math and science test scores, he said, our kids rank #1 in confidence, which promotes innovation and creativity, passion and entrepreneurial drive.  

 

Indeed, Joan Straumanis, former program director at the National Science Foundation and President of Antioch College, questioned why art needs to “work,” any more than philosophy or mathematics.  “Much of what we teach in mathematics is not good for anything," she said. Robust learning is long term, a foundation for further learning and transferable to novel situations.  It’s not about learning a “fact,” not testable on a “bubble test,” and is, in fact, hard to test. Effective learning, she said, is multi-modal, engaged, self-motivated, pleasurable and social.  Kids learn better in groups, teaching each other. In some important areas, she described how arts learning provides a cognitive transfer to other important skills, for example, music to language perception; acting to emotional intelligence. 

 

During lunch, Fresno County Schools Chief Larry Powell shared with me his concern that more than 60% of African American students in Fresno fail to complete high school; approximately 60% of these drop-outs are involved in the criminal justice system within three to five years. He has made increasing arts education in his district one of his top three priorities, along with anti-bullying and early childhood education.   

Lack of access to arts programs in schools is a signal for poor educational outcomes and greater involvement with the criminal justice system. This, then, can be viewed as a civil rights, as well as a socio-economic issue. Indeed, an analysis of neighborhoods with high rates of crime and incarceration shows a pattern of low educational achievement--not a surprise. In a recent report, Misplaced Priorities:  Over Incarcerate/UnderEducate, NAACP researchers mapped neighborhood statistics from Los Angeles, Houston and other cities, concluding that: "The ultimate outcome is a daunting visual that clearly shows a correlation between high incarceration neighborhoods and low school performance. In five cities where school performance is depicted, the low-performing schools tend to be located in the areas with the highest incarceration rates … When viewed through a geographic lens such as this, the nation’s $70 billion investment in prisons is evident in not only the criminal justice involvement of the most vulnerable communities, but also in their levels of educational attain­ment."

The conclusion: Lack of access to arts education in schools contributes to high drop out rates, leading to greater involvement with the criminal justice system. Assuming that you agree, the most important question for future action remains: how do you develop the public will to ensure needed funding for arts education?   

Kevin Kirkpatrick of the Metropolitan Group consulting firm provided some pointers about political framing for the CREATE the STATE audience, conceding that "a consistent and sustainable public will doesn't exist for the arts and arts education." Even if public opinion polls support arts education, how do you make the transfer to financial investment? Drawing on the work of linguist George Lakoff, Kevin suggested building a public campaign that targets the values of the "strict fathers" including innovation, a level planning field (instead of "fairness,") and an education that helps kids "compete and win" while reducing the burdens of crime and criminal justice.

The bottom line: The communities that most need arts education in the public school system are the least empowered and organized to demand it. That leaves it to the rest of us to have already taken care of our own, to care enough about the greater good to make the change we need. After all, the greater good is also for us. A quality education that includes the arts will pay dividends in public safety, economic development and a healthier society.  

The challenge: Go out of your comfort zone and find a "Strict Father" to convert. 

Alma Robinson, Executive Director

California Lawyers for the Arts

Following his compelling research for the William James Association documenting the benefits of arts-in-corrections programs, Dr. Larry Brewster, professor of public administration at the University of San Francisco, is completing a new book about ex-offenders who were engaged in art programs while they were incarcerated.  

Recently, he shared some highlights from his current research with members of the California Arts Council at their meeting in San Francisco. Ex-offenders said they had learned how to work and how to complete projects. Discipline and focus. Some of them talked about having something positive to share with their families, giving their children something they could say with pride about their parents. Becoming better role models. They also learned how to work with people of other ethnic groups--an opportunity to get past the racial divides that cause so much friction inside our prisons--and outside. Remarkably, of the 28 persons he has interviewed, eight are earning at least a partial living from arts-related work based on skills they learned while incarcerated.

Dr. Brewster's forthcoming book with photographer Peter Merts, Arts-in-Corrections: A Path of Discovery and Redemption, provides new arguments for advocates for arts education, not only in our prisons and jails, but also in schools and communities. Learning how to work, how to finish an assignment, how to accept suggestions for improvement and how to work with people who don't look like you are important survival skills in 21st Century California.  

These skills were in great evidence at a recent performance of Twelfth Night produced by Marin Shakespeare Company with inmates at San Quentin.  Following a rousing standing ovation, cast members expressed their gratitude--they were learning how to "play" together in a safe environment. One inmate pointed to the opportunity for restorative justice when he spoke poignantly about the opportunity to "give back" to society for the harm he acknowledged that he had caused.

In recent years, the Golden State has raced to the bottom with the highest recidivism rate in the country (an estimated 70% of released prisoners return within three years), while only 70% of high school students manage to graduate.   More than 2/3ds of incarcerated persons are school drop-outs, according to a report by the Pew Partnership for Civic Culture. In addition to the huge waste of human potential, the cost of corrections is consuming state income that could otherwise pay for infrastructure improvements, education, health care and other needed services.

While not the only solution, the arts provide significant benefits by keeping kids motivated to stay in school, and helping ex-offenders stay away from the revolving door of recidivism.  It is clear that the price of not addressing these gaps is just too great.  

CLA is working with the William James Association and California Arts Advocates to restore arts-in-corrections programs.   Our current statement about these issues describes this effort in more detail.

Alma Robinson, Executive Director

California Lawyers for the Arts

The commemorative ceremonies and related coverage of the 10-year anniversary of the 9/11 disaster nearly wiped me out.   I had intended to browse lightly through the news reports, correctly anticipating that going into it too deeply would reawaken the original anxiety I had experienced after seeing the planes crash into the Twin Towers again and again. Instead, I found myself immersed in Sunday's non-stop television coverage, which included a two-hour reprise of the documentary made by the French filmmakers Jules and Gedeon Naudet.  These brothers had set out to profile a rookie firefighter and found themselves at Ground Zero documenting one of the biggest stories of our era.

Knowing the terrible price that we Americans have exacted on ourselves and the rest of the world in reaction to 9/11 made my angst even worse this time around.  While we continue to mourn for the victims of the 2001 attacks who were cut down in the prime of their lives, where is the grief for our 6,000+ American war dead and the more than 100,000 citizens of Iraq, Afghanistan and other countries who also paid with their lives?  And now that these misadventures have nearly bankrupted our country, how in the world are we going to rebuild Iraq and Afghanistan?  

Brown University's Watson Institute for International Studies estimates in Costs of War that there are more than 3 million Iraqi refugees, whose displacement will have an untold impact on politics in the Middle East and the rest of the world for generations to come. No doubt the injustice they are experiencing in the name of democracy has radicalized thousands of youth whose futures have been torn to shreds.  

Meanwhile, our own infrastructure and public institutions are crumbling. Public funds for arts and humanities, scientific research and space exploration, education, job training, health, housing and social services--and even the US Post Office--are shrinking due to "the deficit."  Medicare and Social Security, which guarantee a safety net for our elders, are being viewed with skepticism and derided as "entitlements."  It is clear that the federal deficit has largely resulted from mortgaging the costs of 10 years of war. 

 

But the 9/11 evening news hour also brought some hope for change. Code Pink ladies were enthusiastically waving peace signs on the Golden Gate Bridge. Their demonstration reminded me of a theatrical piece that urges women to exercise their ultimate leverage in order to stop war. In Aristophanes' Lysistrata, which was first performed in Athens in 411 BC, the protagonist urges women to end the Peloponnesian War between Athens and Sparta by withholding affection from their men. That series of conflicts, which ground on for more than 20 years, is said to have marked the end of the Golden Age of Greece.  After the war ended, Athens never regained its pre-war prosperity.

 

We can't wait another 10 years to resolve this debacle.  Quick!! Could someone please forward this post to Michelle Obama and Laura Bush?  It's going to take a bi-partisan effort....

Alma Robinson, Executive Director

California Lawyers for the Arts

The world is a small place indeed!   Our mediation delegation from Sacramento, visiting Ghana for the Third International Africa Peace and Conflict Resolution Conference in July, had an opportunity to visit with six Queen Mothers in Kumasi and learn how they administer justice in their Districts.   As a Brooklyn native, I was astonished when the youngest Queen Mother looked at me and exclaimed, "I live in Brooklyn!" She spends half of each year in New York, taking care of orphaned Ghanaian youth who are growing up in the US.  She said that her mission is providing a place where they can learn about their culture and have a sense of community.  

Kumasi is in the gold-rich Asante region. The Asante people are matrilineal, with descent and inheritance through the mother's side. They are ruled spiritually and politically by a paramount King and paramount Queen. The Queen has the power to appoint the King, who is ceremonially enthroned on a Golden Stool.  If the Queen, who is usually not married to the King, should be dissatisfied with the King, she has the power to destool him.

Each District of Asante has a Queen Mother, who is not the "mother" of the King or Queen, but is a blood relative of the Queen.  Queen Mothers are selected because they exhibit qualities that are required to make fair and sound decisions that will help to keep peace in the community. 

With the assistance of a cultural translator called a Linguist, we engaged in a lively dialogue about the Queen Mothers' work at a community room located near the King's Palace. We listened raptly as each one described how she administers justice in her district. They hold court in their own communities on a regular schedule, varying from two days a week to once every six weeks.  The cases they hear involve conflicts with neighbors, parent/child disputes, landlord/tenant issues, contract disputes and curses, which they said are the most prevalent type.

People believe in the power of putting a curse on someone who they believe has done them harm. The Queen Mother can order that a curse be removed--a task not entered into lightly.  Following an extensive investigation into the background of the situation, each party to the conflict is closely questioned, as are family members and neighbors. The evidence is examined at length until the Queen Mother is convinced she understands the root of the problem.  She then offers a solution designed to keep peace in the community--a win-win resolution.  

If parties are not satisfied with the Queen Mother's ruling, particularly in civil matters, they have recourse to the legal court system. The Queen Mothers say this does not happen very often, because they work to make a most fair judgment. The Asante traditional system of alternative dispute resolution has been replicated in many other regions of Ghana.

Ellen Taylor, Associate Director

California Lawyers for the Arts

   

With the sponsorship of the Center for African Peace and Conflict Resolution at California State-Sacramento and California Lawyers for the Arts, our group of seven mediators is now in Accra, Ghana, visiting local mediation centers, speaking with mediators and judges, and attending the Third International Africa Peace and Conflict Resolution Conference. 

A highlight of our visit was the opportunity to observe a mediation administered by theAshaiman ADR Centre in Accra. The mediation was held in a small cinder block room located in a schoolyard--imagine!  Three mediators, two men and a woman, described the history of their mediation center and their processes. After a series of questions, I realized that it all sounded very familiar. 

Shortly afterwards, a couple entered the room and was seated in the first row facing the stage.  The two male mediators then left, explaining that since the female mediator was fluent in Ewe, she would conduct the mediation and translate into English for us from time to time. Amazingly, very little translation was needed. The body language and emotional speech told us the story. The couple, who had a 12-year traditional marriage, had separated because the woman wanted a proper legal marriage, after two children together. The man had kept promising but not delivering. The mediator first listened to the woman, then the man, and asked them probing questions. The man said he was going to marry her--but first he had to discuss it with his parents. At the conclusion of the session, the mediator helped them set a date for a return session and said she was quite certain that they would return at the appointed date.

The door to the mediation room was open the entire time, with the noises of the schoolyard, traffic and birds filtering in. Afterwards, the mediator debriefed with us.  As we exited the room into the schoolyard, the media was there waiting for us.  We were on TV that night and in the newspaper the next day.

Then we were off to Court--quite a change of scene.  The old British whitewashed multistorey buildings were set in a beautiul park. We were invited to witness two settlement conferences on commercial matters. Each one dealt with narrowing the issues of the dispute and setting a new date. The female judge invited us into her Chambers for a Q & A with two women judges and a female court administrator.  

 

We have toured Kumasi and had an opportunity to speak with the Queen Mothers, who hold traditional courts for dispute resolution. Now we are in the midst of the three-day conference, which is considering “ADR and Peace Studies in Africa – fifteen years later; Lesson and Future Directions.”   Earlier meetings were held in 2008 in Addis Ababa and in 1998 in Accra.

For now, Akwaaba

Ellen Taylor, Associate Director

California Lawyers for the Arts

California Lawyers for the Arts

When I learned that Craig Watson worked with Christo's team on the Running Fence soon after graduating from Occidental College with a fine arts degree, I became an instant fan.  In 1976, Christo and Jeanne-Claude, quintessential international public artists, mounted a 24.5-mile "fence" composed of heavy cloth panels that snaked across the pastures of Sonoma County straight into the Pacific Ocean. 

Christo and Jeanne-Claude, Running Fence 

Photo: Wolfgang Volz (c) 1976 Christo

In addition to his outsized visual poetry, Christo is also known for his tenacity in convincing government agencies and private landowners that the final result -- the art -- is good for their communities.  After helping with the installation, Craig served as a tour guide for the Running Fence. Drawn to the site, which was mounted only two weeks, I, too, got to know the bucolic landscape of Sonoma as it was transformed by Christo's magical weaving. Later, when the steel posts and billowing nylon sheets were removed, Craig was part of the crew that walked through the rolling hills, reseeding trampled grasses.  

 

After that assignment, his arts administration career was jumpstarted with a CETA (Comprehensive Employment and Training Act) funded job at the Arts Council of Sonoma County. Making good use of his training as a carpenter's assistant, he was in charge of converting a vacant school to an arts center (think: auditorium to theatre; classrooms to art studios).

Whether the state or parents alone can provide the kind of supervision needed by vulnerable youth is questionable.