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Make it Funny: It’s a Risk, But Humor Can Ease ADR Tension

DEBORAH ROTHMAN

Is there a role for humor in mediation?

To answer this question, we turned to the lawyers who ought to know best, the litigators who have represented show business’s funniest men and women. On the surface, their answers appear uniform and superficial: Self-deprecating, spontaneous humor can help in some circumstances, but the use of humor is risky and can backfire.

 Viewed more deeply, however, the answers reveal profound psychological truths relevant far beyond courtrooms, law offices and mediations.

 Christopher Q. Britton of San Diego’s Ferris & Britton was part of the comedic San Diego Chicken’s defense team in KGB, Inc. v. Giannoulas, 104 Cal.App.3d 844 (1980). His observations? “This is the blandest thing a trial lawyer has ever said: Humor in good taste is sometimes appropriate to lighten the atmosphere. But you must use good judgment. Emotions run so high that attempts at humor can be easily misunderstood.”

So how, then, can we distinguish appropriate from inappropriate attempts at humor? For starters, the basic rule of comedy–timing is everything–is no less applicable in this context than in any other. Manhattan Beach, Calif., sole practitioner Gary Stabile, who represented the interests of political cartoonist Paul Conrad in Yorty v. Chandler, 13 Cal. App. 3d 467 (1970), points out that mediations generally start with a plenary session. “That’s when people have their game faces on,” says Stabile. “Lawyers are making points to their own clients as well as to the other side and the mediator. It’s the time to show how strong your case is and how tough you are. When clients speak, it’s often in the nature of venting. It serves a good purpose, and lets clients get stuff off their chests. But that venting tends to exacerbate tension and even hostility. Once all that venting is done, a little humor in an uncontrived way can go a good distance toward dissipating that negative energy. Humor can play a role in shifting people from adversarial to more cooperative postures, and start them looking for joint solutions.”

It’s in the Timing

The timing may continue to be right as the mediation progresses. John H. Lavely Jr., of Century City, Calif.’s Lavely & Singer, which represented comedian Mike Myers in Universal City Studios v. Myers, Los Angeles Superior Court Case No. BC 231170, feels that “mediations can be intense and combative, lasting 18 hours or more, from early one morning through the night into the next day. People get stressed out. An anecdote or story can allow people to recharge their batteries and catch their breath without calling attention to the fact that they are doing just that. I’m not talking about anything structured, like a joke every hour, but rather interspersed anecdotes. That kind of conversation brings out the good sides of people that you might otherwise not see in an intense bargaining situation.”

The best kind of humor? The consensus is broad. Kelli L. Sager, a partner in Davis Wright Tremaine’s Los Angeles office, who represented the satirists in Patrick v. Superior Court, 22 Cal.App.4th 814 (1994), says, “Self-deprecating humor is best. It’s less likely to offend anyone. Nobody must feel that you are making fun of them or their case.”

Pierce O’Donnell of Los Angeles’ O’Donnell & Shaeffer, who represented author Art Buchwald in Buchwald v. Paramount, 1990 Cal. App. Lexis 634 (Cal. App. Dept. Super Ct. Jan. 31, 1990), elaborates:

“Self-deprecating humor pricks the bubble of your own pretension when all the lawyers are puffing their chests to impress their clients. The puffing is not productive! People are more comfortable with you if you can make a little fun of yourself. It helps relax other people in the room. I don’t want to come across as self-important. I want to establish common ground with the people in the room, so we can talk and negotiate.”

 This consensus is echoed by John M. Genga, litigation partner in Paul Hastings Janofsky & Walker’s Los Angeles office, who represented comedian Steve Martin in Turner v. Martin, 246 F.3d 676 (9th Cir. 2000): “If you take yourself too seriously, it’s hard to get anything useful done. You have to be the human being you are.”

 Bruce A. Rogow heads a Ft. Lauderdale, Fla., firm that represented the Palm Beach County Canvassing Board in the litigation over the 2000 presidential election. But that’s not why we interviewed him on the subject of all things humorous and comedic. He also represented rap group 2 Live Crew in the leading U.S. case on parody, Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994). He insightfully elaborates on the perspective described by Sager, O’Donnell and Genga:

Responding to situations with a lightness of being can be effective in every aspect of lawyering and life. I call it lightness of being rather than humor. A pleasant demeanor and a smile are more productive than a rigid, humorless approach to life.” But, Rogow cautions, “Telling jokes is not appropriate. A bad joke produces nothing but groans and diminishes the gravitas of the person telling the joke.

Does Rogow’s “lightness of being” actually aid the negotiation process? Absolutely, according to Deborah Drooz, a special counsel in the Los Angles office of Strook & Strook & Lavan, who got some respect when she represented Rodney Dangerfield in Star Editorial Inc. v. U.S. Dist. Ct., 7 F.3d 956 (9th Cir. 1993), and  who says she does not “believe in scorched earth litigation. It’s easier to make progress if there are good relationships with others in the case. Establishing those relationships almost always involves humor. American Media Inc. is the company we sue the most, because they publish the tabloids and we represent the celebrities. Our opposing counsel is almost always Williams & Connolly. We are always joking with them, personally, while we fight as hard as we can on the merits. Humor gets us past the difficult points in the litigation. The real fight is on the law.”

Even the lawyer who represented writer-director-comedian Mel Brooks in Marshall v. Yates, 1983 U.S. Dist. Lexis 12305 (C.D. Cal. 1983), Morton G. Rosen, a senior partner in Los Angeles’ Haight, Brown & Bonesteel, agrees. “Humor can lessen tension, make people listen better, and put people in a more accommodating mood. That desire to reach accommodation is more than 50% of the grounds for success in mediation. To the extent humor enhances that desire, it’s great.”

Well, OK. But, why? Why is it that the right kind of humor, used at the right time, can go so far to lubricate the wheels of communication and negotiation, in mediation and beyond? Possible answers originate in political science and psychiatry.

COOPERATION AND RECIPROCATION

In his landmark 1984 work on negotiation, “The Evolution of Cooperation,” University of Michigan Prof. Robert Axelrod concludes that, in many negotiations, you “benefit from the other [parties’] cooperation. The trick is to encourage that cooperation. A good way to do it is to make it clear that you will reciprocate. Words can help here, but, as everyone knows, actions speak louder than words.”

In mediation, words seem to be all we have, though. So, where does humor come in? Los Angeles management consultant and psychiatrist Mark Goul=ton provides a theory: “Self-deprecating humor shows humility. It is almost impossible to show humility and be on the attack at the same time. People instinctively know this. So when you show humility, you show that you are more likely to reciprocate cooperation. In fact, you are initiating it in a way that almost guarantees that others will reciprocate. Everyone’s guard will come down. People will feel more free to change their positions without fear that they will be attacked for doing so.”

Arthur Koestler explained with greater elaboration in his 1964 classic, “The Act of Creation”: “Laughter, as the cliche has it, is ‘liberating,’ i.e., tension-relieving. Relief from stress is always pleasurable, regardless whether it was caused by hunger, sex, anger or anxiety. Under ordinary circumstances such relief is obtained by some purposeful activity which is appropriate to the nature of the tension. When we laugh, however, the pleasurable relief does not derive from a consummatory act which satisfies some specific need. On the contrary: laughter prevents the satisfaction of biological drives, it makes a man equally incapable of killing or copulating; it deflates anger, apprehension, and pride.”

Still, be careful out there. Attempts at humor can easily backfire, with disastrous consequences. Many experienced lawyers believe that humor does not belong in mediation at all. Peter F. Laird of Los Angeles’ Edelstein, Laird & Sobel, who represented radio funnyman Rick Dees in Fisher v. Dees, 794 F.2d 432 (9th Cir. 1986), recalls that “of all the legal proceedings in which I have been involved, mediation is the one where I can honestly say I have never seen anything funny happen. Settlements leave both sides unhappy and mediation brings pressure on people to compromise. It doesn’t lend itself to humor.”

     Trial lawyer Lawrence P. Grassini of Woodland Hills, Calif.’s Grassini & Wrinkle, who represented the interests of puppeteer Paul Winchell and his friends Jerry Mahoney and Knucklehead Smith in April Enterprises, Inc. v. KTTV, 147 Cal. App. 3d 805 (1983), cautions that “In some kinds of cases, such as wrongful death matters, any attempt at humor might detract from the seriousness of the situation and would just be inappropriate.”

In other cases, though, perhaps observations such as Grassini’s stem from our common misunderstandings of what legitimately qualifies as “humor” in the first place. Mark Goulston continues: “Ridicule and sarcasm are not humor at all. Those types of comments are designed to provoke your opponents, not reassure them. They are just disguised aggression, and they’re not constructive. Ask whether your humor will be perceived as coming at the expense of anyone other than yourself.”

John Lavely agrees: “It’s not humor if it’s sarcastic, belittling, namecalling or anything that would create insult.”

Humor is especially risky if it involves clients. Deborah Drooz is empathetic: “Some clients are so wrapped up in the importance of their problem that they can’t see past it. It would be cruel to try to joke with such clients about their cases.”

The warning is made even more clear by James E. Hornstein of Century City, Calif.’s Greenberg Glusker Fields Claman Machtinger & Kinsella, who represented the creators of “The Full Monty” in Sinclair v. 20th Century Fox, No. SA CV 98-2020 GLT (C.D. Cal.): “Lay participants don’t understand how remarks can be intended as humorous if they are the brunt of the humor. It can easily backfire.”

How badly can it backfire? Consider the sad case of Christine Johnson, who had sued the Catholic Church, alleging that a priest had sexually molested her son. The case found its way to Santa Barbara Superior Court Judge Bruce Dodds for a settlement conference. Dodds kept a crystal ball on the conference table in his chambers, where the settlement negotiations took place. After telling her what he thought her case was worth, Dodds pressed a button on the crystal ball. The ball responded “yes,” confirming Dodds’ settlement evaluation, and he then said to Johnson, “There it is. That’s it. That’s what you get.”

 Ms. Johnson then found her way to ABC’s Prime Time Live, where she told her story to Diane Sawyer and millions of viewers.

Dodds then found his way to U.S. District Court in Los Angeles, where he filed suit against the network for defamation. The claims were dismissed, and Dodds appealed. The dismissal was affirmed and reported in Dodds v. American Broadcasting Co., 145 F.3d 1053 (9th Cir. 1998).
 

Humor in mediation is inherently risky. The consequences of humor going awry can be disastrous. Can we possibly encapsulate the standards of good taste in one rule of thumb? Sure. For tastefulness, we naturally turned to Stephen A. Kroft a partner in McDermott, Will & Emery’s Los Angeles office, who represented Beavis & Butthead creator Mike Judge in Kodadek v. MTV Networks, 152 F.3d 1209 (9th Cir. 1998): “If you have any doubt at all, don’t.”

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