Negotiation Law Blog

A very good day indeed when you can instantly download The Grownups' ABCs of Conflict Resolution to your iPad (with a kindle app); your Kindle, or simply to your computer.

And for only $7.99!!

I also learned today that you can loan your Kindle books to friends for a 14-day period (during which time they're  unavailable to you). But hey! this is what my husband always objected to in e-book usage - that you couldn't loan them to friends.

And now you can!

It's a PERFECT reading world!

I know I'm prejudiced in favor of my own book (who wouldn't be?) but I think it's got at least one dynamite chapter for everyone that will be worth far more to you than the slight price of this Kindle edition.

And, of course, you can always "lend" it to that troublesome neighbor of yours!

Even though Stanford Professor Bob Sutton's The No Asshole Rule has been in the marketplace for nearly four years now, people continue to discover it for the first time as does the Harwich Oracle this week in its column, At Your Library: Insights into Bullies. As the Oracle notes:

The book discusses damage done to organizations by bullying employees, including a chapter on “How to Implement the Rule, Enforce It, and Keep It Alive.” There are examples of how the rule (or a variation) is applied at companies such as Google, JetBlue Airlines, and Southwest Airlines. Sutton explains that “enforcing a no asshole rule doesn’t mean turning your organization into a paradise for conflict-averse wimps.” Positive approaches to problem solving, using evidence and logic, with argument over ideas, rather than personality or relationships, are effective.  The author emphasizes that none of this is easy, but the rewards are substantial.  Negative behavior tends to spread to others in a group.

I'm personally grateful to Dr. Sutton not only for teaching the world to sing in perfect harmony, but for breaking the asshole barrier in book publishing. If you want to keep current on ways to deal with bullies in the workplace, put the RSS feed of Sutton's Work Matters into your newsreader.

Update on Cromartie Still Speaking His Mind, Now Making Threats on New York Magazine's Sports page. We in the profession call this conflict escalation, one of the unhappy results of speaking your mind with epithets, almost guaranteed to raise the level of dispute heat in any room.

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In honor of the second week of my East Coast Book Tour, I give you the second edition of The Week in Assholes (week one here).

Over at the New York Press, the irresistible Flavor of the Week: The Year of the Asshole, final words below without giving away the ending of this online dating confessional.

It felt like a breakup without the relationship.

I didn't need to consult the Chinese zodiac to know that this was a very bad portent for the rest of the year. 2011 will be the Year of the Asshole.

In Houston, at Culture Map, Why Women Love Assholes. Below an excerpt but you'll want to read the full article if you're under 35.

We like asshole guys not because they're assholes but despite it.

See, when you're smitten with a man then you're willing to put up with all kinds of bullshit. In my experience I'm too busy falling in love with a guy's good qualities to heed red flags like that I've caught him snooping through my text messages and e-mail. "But I have nothing to hide!" I'll tell myself. "Besides, we're, like, so in love!"

Then months later — surprise! — he turns out to be a controlling dipshit.

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She Negotiates . . . and everything changes

• When: January 10, 2011
• Where: 7725 Jericho Turnpike, Woodbury, NY
• Time: 6:00 p.m.

Federal Bar Association (S.D.N.Y.) Book Launch

• When:  January 11, 2001 at 6:30 p.m.
• Where:  Pierre Loti, 53 Irving Place, New York City 10003

(details to follow)

She Negotiates to Win! in Boston

• Date: January 18, 2010
• Time: 6:00 pm (networking until 6:30, book signing to follow program)
• Location:     YWCA - Library, 2nd floor, 140 Clarendon Street,Boston, MA 02116
• Tuition:    $35     includes workshop and autographed copy of the ABCs of Conflict Resolution (a portion of your tuition will benefit Massachuesett charities)

As you may recall, we've recently given Gold and Silver Asshole Awards here ~ the Golden to the "individual making the greatest contribution to reducing assholishness in the profession" and the Silver to the person who best illustrates the proposition that an asshole is not a person but a behavior and not one person but two. See also Legal Blog Watch for a discussion of the proper terminology here ~ assholiness?)

The theory that all good things come in three's (Gold, Silver, Bronze) was once again proven last week by the winner of the newly created Bronze Asshole Award, Steven Pesner of Akin Gump. We'll be awarding the Bronze Medal on an ad hoc basis to the lawyer who best demonstrates the dangers of hitting the "send" button on any email written when s/he is Hungry, Angry, Lonely or Tired ("HALT"!!)

Exhibit A for the Bronze can be found in several places, including the email boxes of anyone who ever landed on the AmLaw Daily's website which today covers the email event in an article entitled Explaining Bad Behavior.

The Bronze Award Winning Behavior

It's year-end and everyone's a little bit tired and cranky, particularly Mr. Pesner who last week circulated a firm email threatening to publicly fire any random associate "on the spot" for failing to get his/her time sheets in on time. The heart of the verbatim rant follows:

9. For those of you who think you are exempt from doing time sheets on a daily basis, I'd suggest that you reevaluate your importance and get ready to prove that (a) you are busier than I am on legal work, (b) you are busier than I am on client development work, (c) you are busier than I am on firm work and (d) [Redacted] and I do not have better things to do with our time than beg you to be responsible."

"10. Candidly, I'd put every future material violator's name in a hat, randomly pick out a name, and publicly fire the person on the spot--to demonstrate that time sheet compliance is serious business. And incidentally, it is my understanding that the job market is not so good right now in case you did not know."

"11. Also, please remember that I have a long and excellent memory.

Why Email Increases the Chance of Assholery

Other than reminding Mr. Pesner that the internet has a far longer and a much more excellent memory than his own, I'd like to take the opportunity of his outburst for a teaching moment.

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You may have heard from Legal Blog Watch (here and here) that we're giving a Golden Asshole Award once a month to the individual making the greatest contribution to reducing assholishness in the [legal] profession. See You Park Like an Asshole here.  The prize is a free copy of A is for Asshole, the Grownups' ABCs of Conflict Resolution.  

Today we're creating a Silver Asshole Award for the individuals (there will always be two) who best illustrate the proposition that an asshole is not a person but a behavior and not one person but two.  Given the reduced qualifications for the Silver Medal, we'll be sending the winners a .pdf of the first chapter of the ABCs - A is for Asshole.  This month's winners are an unidentified yawning student at Cornell (whose name, rank and serial number I will keep confidential if s/he wishes to pick up the prize) and his/her professor, Senior Lecturer Mark Talbert.

What is an Asshole?

As the first chapter of the ABCs of Conflict explains, an "asshole" is a person who has broken the social compact of civility. Because uncivil behavior tends to lead to fisticuffs, everyone tends to discourage it and many people make an example of others who engage in it.  Take the unwritten folk rule of "first in time, first in right."  The guy who steals another motorist's parking place is violating that rule. He doesn't own the space, but he's been waiting the longest for it so he gets to grab it before anyone else. This "first in time, first in right" rule is so important to us that people are killed every year in fights over parking spaces. (see, e.g., Detective Killed in Fight for Parking Space).

Break these rules and people lose it.  

Another folk rule meant to avoid the violence that can arise from incivility is the imperative that we do not shout at one another no matter what the provocation. We do not use profanity and we do not hurl insults or epithets at the other guy's crew. Check out "R is for Romeo" in the ABCs of Conflict Resolution for the fatal consequences of the Prince's failure to police uncivil behavior on the streets of Verona.  

Rarely, however, does anyone violate these rules without provocation. If our dinner party companion interrupts our story about our trip to Viet Nam to tell his story about his trip to Aspen, he's breaking a different turn-taking rule ~ the one that says conversation is a dialogue not a monologue. Everyone gets to talk and everyone gets to be heard.  Shoot, that's pretty much a complete distillation of procedural due process!

The Story at Hand

The story of the Cornell "Professor" (sic) shouting at a yawning student is all over the news, the blogosphere and the social networks (Facebook, Twitter and the like) this week.  A teacher who shouts at his students may be uncivil, but it rarely makes the local, let alone the national, news.  Nevertheless, the Huffington Post picked up the story last week in an item entitled Cornell Professor Freaks Out.  This unremarkable event did not became news because it happened. It became news because it was uploaded to YouTube. ("The way the camera follows us in slo-mo, the way we look to us all, oh yeah.")

The "Teaching Moment"

The Huffington Post correspondent purposely - for "news" value - or inadvertently - due to Fundamental Attribution Error (?) - mis-told the story of the Cornell "Professor."  If you watch the video, and listen to it very carefully, you'll hear a "yawn" that seems more one of derision than an unstifled inhalation arising from sleep deprivation. If you listen to the "Professor's" rant, you'll also hear him say that this is not the first time he's suffered this particular form of disrespect. He wants to know who the yawner is and demands his identity.  When that tactic fails, he tries talking about civility.  But his inability to out the miscreant only makes things worse. He asks his students for help.  They sit mum.  

Then he loses it.  

Why We Care

The Cornell professor video has been viewed 482,366 times.  Other videos of everyday, non-newsworthy uncivil behavior include the incident in the car park (3,360,599 views); the old lawyer fight (297,252 views); and, the bus driver fight with the kid (21,602,339 views).

Why are we drawn to this behavior?  Is it simply the car-wreck phenomenon? Rubber-neckers at freeway accidents, we are horrified but morbidly interested in this brief preview of a catastrophic loss we all fear. Seeing the wreckage allows us to continue believing that misfortune of this magnitude is visited upon others, not ourselves.

(for other reactions see the Cornell Insiders' post ~ Talbert's POV here and Stephanie West Allen's Idealawg post here)

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Check out Extreme Negotiations at Harvard Business Review this month (kicker:  What U.S. soldiers in Afghanistan have learned about the art of managing high-risk, high-stakes situations).

I have to tell you that I believe every one of our She Negotiates graduates understands and knows how to use the bullet point takeaways from Extreme Negotiations below.  Let me also say it's not enough to read about these techniques ~ you must practice practice practice practice.

Get the Big Picture

• avoid assuming you have all the facts
• avoid assuming the other side is biased but you're not
• avoid assuming the other side's motivations and intentions are obvious and nefarious
• instead, be curious ("help me understand"); humble ("what do I do wrong?") and open-minded ("is there another way to explain this?")

Uncover and Collaborate

• avoid making open-ended offers ("what do you want")
• avoid making unilateral offers ("I'd be willing to . . . "
• avoid simply agreeing to or refusing the other side's demands
• instead ask "why is that important to you?"
• proposed solutions for critique ("here's a possibility - what might be wrong with it?")

Elicit Genuine Buy-in

• avoid threats ("you'd better agree, or else . . . "
• avoid arbitrariness ("I want it because I want it."
• avoid close-mindedness ("under no circumstances will I agree to - or even consider - that proposal"
• instead appeal to fairness ("what should we do?")
• appeal to logic and legitimacy ("I think this makes sense because . . . ")
• consider constituent perspectives ("how can each of us explain this agreement to colleagues?"

Build Trust

• avoid trying to "buy" a good relationship
• avoid offering concessions to repair actual or perceived breaches of trust
• instead explore how a breakdown in trust may have occurred and how to remedy it
• make concessions only if they are a legitimate way to compensate for losses owing to your nonperformance or broken commitments
• treat counterparts with respect, and act in ways that will command theirs.

Focus on process

• avoid acting without gauging how your actions will be perceived and what the response will be
• ignoring the consequences of a given action for future as well as current negotiations
• instead talk about the process ("we seem to be at an impasse; perhaps we should send some more time exploring our respective objectives and constraints."_
• slow down the pace:  ("I'm not ready to agree, but I'd prefer not to walk away either.  I think this warrants further exploration.")
• issue warnings without making threats:  ("unless you're willing to work with me toward a mutually acceptable outcome, I can't afford to spend more time negotiating")

I'll be blogging on each one of these steps in the negotiation process for the next two weeks so stay tuned.

Cross posted at She Negotiates and the ABCs of Conflict Resolution.

I felt a great deal of kinship with the writers of the Rally to Restore Sanity today, particularly that part of John Stewart’s speech about how we cooperate with one another in traffic regardless of our bumper stickers (oh no, that one says Obama ... oh well, first you, then me.)

That’s what A is for Asshole is all about ~ that “assholes” and bullies and enemies are not people but behaviors and not one person but two.

You can imagine that I’ve had spirited discussions with other lawyers about this ~ the existence of people who are the embodiment of evil.  Hitler perhaps.  But few of us have actually met such a creature face to face.

As a result of these conversations, I realize the need to differentiate between people with personality disorders (sociopaths - Tony Soprano;  borderlines - Burton and Taylor in Who’s Afraid of Virginia Woolf; and, narcissists - film noir femme fatales such as Barbara Stanwyck in  Double Indemnity) on the one hand and the “rest of us” on the other.

It’s “the rest of us” that the ABC’s of Conflict Resolution is about.  I don’t have a degree in psychology so I’m not qualified to opine about borderlines, sociopaths or narcissists though I surely believe I have met some. I’m talking about those of us who are capable of behaving like assholes without being one.  And anyone who is prepared to say they have never behaved badly enough to qualify should call the Vatican to put the beatification wheels into motion.

Our Part in It

When someone cuts in front of us in line; drives 50 miles an hour through a school zone; behaves boorishly at a party; or, shouts at workplace underlings, is there anyone to blame other than the “asshole”?  Before I attempt to answer this question, let me first say that we are all blinded to the part we play in disputes by cognitive biases. 

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That we accomplish anything whatsoever without the support of our friends and families and colleagues and even the random kind stranger is a particularly American delusion.  Whenever I read a book, which is often, I always read the acknowledgements because I want to know how someone accomplished the extraordinary thing I have wanted to accomplish all of my life ~ write and publish a book.

Now that I have, it is not enough for me to allow my acknowledgements to languish inside the book.  My gratitude requires a bit of shouting and so I am laying it forth here and elsewhere in the blogosphere that has treated me and all my adventures so kindly.

As Joseph Campbell wrote, when you reach a certain age and look back over your lifetime,

it can seem to have had a consistent order and plan, as though composed by some novelist. Events that when they occurred had seemed accidental and of little moment turn out to have been indispensable factors in the composition of a consistent plot. So who composed that plot? Schopenhauer suggests that just as your dreams are composed by an aspect of yourself of which your consciousness is unaware, so, too, your whole life is composed by the will within you. And just as people whom you will have met apparently by mere chance became leading agents in the structuring of your life, so, too, will you have served unknowingly as an agent, giving meaning to the lives of others. The whole thing gears together like one big symphony, with everything unconsciously structuring everything else. And Schopenhauer concludes that it is as though our lives were the features of the one great dream of a single dreamer in which all the dream characters dream, too; so that everything links to everything else, moved by the one will to life which is the universal will in nature.

I begin with the leading agent of this book. He is the grace note that begins the symphony of the book and its final melody. He has been the book’s biggest noodge (“how’s the book coming?”) and its most enthusiastic cheerleader. He is my husband Stephen N. Goldberg.

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In the first chapter of A is for Asshole, the Grownups’ ABCs of Conflict Resolution, we dissect and illuminate why an otherwise sober member of the Fourth Estate might resort to the purchase of a paintball rifle in response to the asshole who cuts into the long line of cars “crawling toward the exit for the Brooklyn Bridge.  See Line-Cutting, on Four Wheels from today’s New York Times here.

Note that reporter Alice DuBois’ first imagined response to this violation of the social norm “first in time, first in right” is the contentious dispute resolution technique of shaming (You should be ashamed of yourself.  You cut in front of this line of decent citizens) after which she immediately resorts to the imagined pseudo violence of a paintball rifle (well within my budget).

In point of fact, real people suffer real injury, and some of them death, in fights over parking places every year.  As I point out to friends who do not understand conflict between Israelis and Palestinians in the Middle East, “you’ve owned that parking space for what? all of sixty seconds?  a minute?  two? and yet people are moved to violence when someone steals their place in line. Multiply that by a few thousand years of perceived entitlement and what you get is intractable violent conflict.”

What to do?

Buy A is for Asshole, the Grownups’ ABCs of Conflict Resolution due out in November. 

Cross-posted at The ABCs of Conflict Blog.  

Here’s another familiar character. This man was once the kid who shook you down for your lunch money on the elementary school playground. The boy who taunted you in gym whenever you failed to pass the basketball to the only teammate able to sink it. The swaggering delinquent who blew smoke in your face whenever you passed by.

Bullying is not, however, only the domain of the male animal. There’s no bully quite as deadly as the high-school girl who uses her new-found talent for empathy as a laser gun directed at her friends’ fragile teenage hearts. While boys tend to use physical superiority to intimidate, girls use the “gentler” arts of ridicule, gossip and shunning.

Like the asshole, no one can be a bully alone in her room. She needs someone to be a bully to. A bully is another relationship in crisis. Bullies inexplicably name victims as sources of discontent, blame those people for their unhappiness and claim a right to retaliate.

Before we throw stones at our fellows, let’s talk about the only bully whose behavior we can control. Let’s talk about us.

(in the criminal justice system, victims rarely get to have their say)

Every act of violence requires a victim, and every victim a perpetrator. Even if victim and offender are strangers, in the searing moment when a violent crime is committed they become inextricably bound in one of the most painful human relationships imaginable.

Lyndy is a victim of violent crime. When we meet her, she is pregnant with her first child. When we meet the man who raped her at knife-point fourteen years earlier, it is her own brother, Tim, to whom we are introduced. Tim is serving the thirteenth of a twenty-year prison sentence for his crime. Lyndy is serving her own kind of sentence, one which can only be commuted by Tim.

Lyndy and Tim’s story of violent crime, accountability, forgiveness and restoration – told in the award-winning documentary, Beyond Conviction – reminds us that remedies exist to heal the wounds inflicted by nearly every damaged human relationship.

By anyone’s standards, the Pennsylvania criminal justice system has done for Lyndy the job it was supposed to. Tim was arrested, charged with rape, convicted, and sentenced to twenty years in prison. The punishment meted out to Tim, however, did nothing to help Lyndy recover life as she knew it before that terrifying November night when Tim came home drunk, flew into a rage, held a knife to Lyndy's throat, forced her upstairs and repeatedly raped her.

Twelve years after Tim's sentencing Lyndy found herself close to suicide. If she took her own life, Tim’s curse, his terrible prophecy, would come true – that by his hand, Lyndy’s life would be ruined. Lyndy perservered and when she she became pregnant two years later, she sought out the services of Pennsylvania's restorative justice program, a program devoted to doing that which the criminal justice does not, and cannot, do – heal the victim. When asked why she wanted to meet with her brother after so many years, Lyndy explained. “I want to raise my son to be a kind and forgiving and caring person and I can't do that if I can’t be kind and forgiving and caring to the one person who has hurt me the most.”

Lyndy wants to forgive. But we cannot forgive that which we do not understand. Nor can we forgive someone who is unwilling to take responsibility for the harm he has caused. That would just make us more of a victim – doormats, co-conspirators to our own injury. Lyndy wants – she needs – her brother to acknowledge his responsibility for her suffering. She wants to tell him that nothing in their mutually difficult childhood could possibly justify his crime. And like so many victims, she wants to know that the rape was not her fault.

 My Twitter account tells me I have more than 2,000 “followers,” and my Facebook page suggests I add someone new to my account as a “friend” nearly every day. 

Despite our modern online age, people do not become friends (or loyal followers) at the push of a button. We start friendships tentatively, with small admissions of fallibility that won’t entirely rip away the costume of the person we’re pretending to be.

"I’m actually shy,” I tell an incredulous acquaintance. “The bravado masks it.”

"I pause and wait for a reciprocal revelation signaling a common desire to take the relationship in a more intimate direction – one in which I signal my willingness to be trusting and demonstrate my ability to be trusted.

"Me, too,” my potential friend might acknowledge. “I’m actually driven by fear. I know I seem confident, but all this apparent success makes me feel like a fraud. Worse, I’m always feeling guilty that I’m not a better, more attentive mother to my children because I’m so busy pursuing my own success. That’s selfish, don’t you think?”

With this response my acquaintance is not only reciprocating our growing intimacy, she is deepening it. I was merely talking about my professional life. She’s now drilled down into her relationship with her children. We are taking baby steps to friendship, testing one another’s ability to move beyond our public selves and open up the door to our private lives and secret fears. We are putting something of ourselves on the line – something vulnerable and valuable – in the hope of finding another person who knows and cares about us, warts and all.

When you consider how vitally important friends are to our emotional well-being, it’s surprising we don’t have more friendship owners’ manuals or, for that matter, friendship counseling. Bookstores are filled with advice manuals for marriages and parenting, but few titles advise us on the care and feeding of our friends – people who  outlast marriages and endure long past the time our children leave home.

What happens when friendships go bad and what, if anything, should we be doing to tend our friendship garden?

For the answer to this and many more conflict resolution questions, you'll have to buy the book, A is for Asshole, the Grownups' ABCs of Conflict Resolution!  We'll keep you up to date here on the publication date, which will be before the holidays.

UPDATE:  Thanks to the many great comments I’ve gotten here, at LinkedIn, on the book's Facebook Fan Page, and on the book's website I’ve shifted my focus from trying to depict the Asshole on the cover to depicting the Asshole’s victim/s.  Along those lines, I’m considering using an image somewhat like this cartoon by the great legal cartoonist, Charles Fincher of LawComix.  I might even ask Charles if I can use this very cartoon.  What do you think?

With Charles’ hilarious caption above and as the cover of the book below.

More after the jump.

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