OctoMom seeks Trademark Registration?

I suppose you caught the article http://www.cnn.com/2009/US/04/15/octuplet.mom/index.html, or one like it, saying the mother of 8 now seeks to register that name as a trademark, for diapers and TV shows.

She might get a registration. I cannot find any legal reason why not. That would not prevent continued use by news organizations of "OctoMom" as fair use. And she would be a fool to interfere with free publicity.

Monumental bad taste aside, this is a pretty clever move, if she can get her diapers onto the market. Considering the public's bad taste, some manufacturer will surely license her trademark and start selling Octomom diapers.

Only in America.

You Can't Negotiate with Pirates, Can You?

"The only good pirate is a dead pirate." This is what some are saying, now that Capt. Philips of the Maersk Alabama is safe. I do not actually recall this sentiment when he was at risk, but now it is safer.

A pirate gang is like any other hostage takers. Whether they are to be negotiated with or just assaulted depends on circumstances. That applies to almost any potential negotiation. Whether it is worth talking with someone who owes you substantial money, or who claims you owe them depends on your assessment of (a) the potential benefit of talking, (b) the risk of not talking first, (c) the risk of proceeding directly to action, (d) the potential benefit of direct action.

The past couple years quite a few pirated ships have bought their freedom through substantial payments by their owners. Presumably, in each case there was at least some negotiation over price, payment method, and other details. No one was injured. In the case of the French yacht Le Ponant, two pirates and one hostage were killed. Some will say you should discount the dead pirates, only count the hostage dead, but that is debatable. Taking down hostage takers is potentially risky.

It is more risky if you announce a policy that you will not negotiate. Not talking at all makes their benefit for keeping live hostages zero. They have every reason to kill hostages before the hostages try to overpower them.

The potential benefit of talking is illustrated by the Alabama experience. One of the four hostage takers was talked into giving up after he was slightly injured. Three were easier to shoot with less risk to the hostage than four were.

What is there to discuss with hostage takers? Depending on circumstances, letting them get back in their fishing boat, disarmed but with a promise of no jail, at least no US/French/Russian/German jail, may be appealing to them. On the other hand, they may prefer a deal where they do time in one of those jails, but not in a Somali jail.

In other words, price of a buy-off is never the only thing to talk about.

Reducing piracy off Somalia may best be had by automating the means of sending notice to authorities and ensuring that helicopters or unmanned aerial vehicles (UAVs) will soon be overhead relaying back live high-def video. Still, one should not confuse negotiation in a specific piracy situation with best strategies for reducing piracy. The facts are grossly different.

Treat the other side as fellow humans with different views

Like everyone, I see the recent deal with the North Koreans as a real opportunity to increase world stability and reduce the chance of nuclear war. As an attorney and negotiation trainer, I see a learning opportunity for everyone who makes deals.

The 5+ decades since the nominal end of the Korean War have featured each side feeling threatened by the other, steps taken to repulse the other, and lots of nasty name-calling. The President’s labeling North Korea part of an “Axis of Evil” was an example of demonizing the folks across the bargaining table. It cuts off discussion.

People say the Bush Administration has the past couple years begun to seek a deal with North Korea as trying to recover at least a bit of positive foreign relation
legacy. Perhaps, but that only explains why they did a deal.

The more important lessons have to do with how. We stopped referring to North
Korea as “Axis of Evil” or with other debasement. That was good. No one will bargain with someone who calls him a criminal.

We went to the table without “pre-conditions” or points the other side must concede at the beginning. Only a fool would make such concessions before coming to the table. We apparently listened in good faith to their concerns about invasion from the South, even though we consider those concerns paranoid. When you
listen to the other folks in good faith, they will listen to you, even though neither side can believe the other side believes what they claim to.

“We are all more human than otherwise,” someone said. If we keep that in mind about those we despise but must settle disputes with, we increase the chance that bargaining, however lengthy, will pay off.
Negotiation 101: Bargain with the other side as if you thought they are OK-- potential dinner partners-- with no pre-conditions, and you may actually make a deal even if you hate them.

Negotiation is not Appeasement

The past couple days there has been a discussion between American political figures about appeasement.

One side says it is appeasement to be willing to negotiate with one’s enemies. Candidate Obama—who may have been the target of the remarks by President Bush and Candidate McCain—says it is not appeasement to be willing to talk, as a means of averting violence when there are strong issues between the two sides.

This web log is not about picking politicians. It is about negotiation. Negotiation is not appeasement, it is good sense. Being willing to negotiate—in a context of some agreed ground rules—is the beginning of solving problems by resolving issues.

You need a reasonable set of ground rules, whether the issues are as large as those in the Middle East, or as small as whether Johnnie or Susie gets to play with the fire truck for the next half hour. Those ought to include agreement to be civil, not to call names or make accusations. Instead, the focus ought to be, first, on clear statements by each side on what they need to get out of the negotiation. Not “You stop hitting me.” /”You stop cursing me first.”

Instead, “I need to be able to live without being hit.” The debate is not then to be about which side is stronger and can win a battle, but whether both sides would be happy without violence, and what the details of such a peace would be.

Both sides should be creative about what they might concede to get peace, provided those concessions are part of a package, a complete deal.

The deal struck ought to be one which outsiders would consider reasonable, fair and just.

Although the root of the word “appease” is in the word “peace”, we today usually take the word to mean to buy off at the expense of principle.

However, not every principle is one most people would consider fair, reasonable and just. For example, drawing from the Middle East, some Americans would consider it their principle that every nation should be democratic in government. But not everyone would agree that it is just to apply that principle to a nation not your own.

Some Muslims believe as a principle that a government must follow strictly the rules and governmental structures laid down in the Quran. They do not accept a democratic government, nor practice by non-Muslims of rules of life not in the Quran, e.g., their own faith’s rules of life.

It is clear both cannot exactly follow their principles and come to an agreed resolution, because both sides wish to apply their own principles outside their own dominion. Both sides will need to give to get.

I am not suggesting what that might look like. Wiser heads than mine have been working on this for many decades.

I do suggest that there are rules both sides could agree on during the process of coming to terms, such as mutual respect, civility, working together creatively to make a resolution, and listening sincerely to the views of third parties on what is fair, reasonable and just.

One can, then, be firm (“I will talk, but I reserve the right to say ‘no.’”), and insist on those rules of process as a precondition to speaking, while expressing a willing to negotiation. That is not appeasement.

Negotiation 101: One can negotiate, under pre-established rules of process, aiming at a mutually agreed bargain, without it being appeasement.

Zen and Negotiation

I have not written for a while, having been busy both practicing law—mostly working with inventors to license their patents—and teaching seminars on negotiation.

Doing half a dozen seminars the past few months, I have been experimenting with titles and techniques. I have come to believe that attitude and affect are the most important things to bring to the table.

Books and teachers often teach tricks to use at the table, or clever parries. But this scripting carries a risk. What if you don’t recognize your cue when to use a trick or parry one? (Line, please.)

More important I think is to come to the table prepared mentally. At the least of course is being prepared with information about the folks on the other side, and with a good sense of what you need to bring away (not just a prepared “position” or demand and a fall back).

Scholars about the highest levels of negotiations—settling border disputes and avoiding war, and making high-value deals—know that is all about one’s own psychology, and maintaining self-control and self-awareness.

People familiar with the notion of Zen offer a way to do this, called “mindfulness.” At its essence, it means practicing the art of seeing yourself and your situation from outside yourself. It means seeing the whole picture, in its most objective way. It certainly means not demonizing the other people. And it means keeping your own balance when provoked.

Provocation is often not intentional, but simply the other side stating their needs, which do not match your own.

The best part is one does not need at all to become a Buddhist, does not need to adopt a religion, to become mindful. Nor for that matter to sit in a “lotus” position. One needs to study and practice.

Negotiation 101: Being aware objectively of the process and minute-to-minute changes of circumstance are key to negotiating successfully.