I mediate and arbitrate complex commercial disputes, the former with ADR Services, Inc. in Century City and the latter with...
The 33 cent wage and income gap is unacceptable and unnecessary. So is the cliché glass ceiling. Bottom line, our...
I've said this before. "I don't take it personally" is the biggest lie in the legal business. Well, that and "it's only about money" which is pretty much the same thing. But let's pretend that you, a seasoned litigator and trial attorney, have achieved legal practice nirvana. Despite the fact that another attorney is getting up across town or on the other side of the country with the express purpose of making you look like a liar, a cheat and a thief on a daily basis, you rise above it with equanimity every working day.
You don't take it personally.
But your clients do.
And the attorneys who most commonly say that the dispute is "not personal" or "only about money" are often the ones who resolutely refuse to sit in a room, at a table, across from their (doesn't-take-it-personally) adversary in an effort to use the litigation as an opportunity to make a business deal while at the same time relieving one's clients' grinding sense of injustice.
That's why I'm talking about Poland and enemies today. To shine a light on our common human tendency to demonize our adversaries, particularly when we've been opponents for so long that opposition, rather than productivity, has come to define us.
Today's New York Times reports on the sorry state of a country so used to defending itself against enemies that their absence has made it turn on itself. Poland, Lacking External Enemies, Turns on Itself, should also shed some necessary light on post-Cold War American politics, as Red and Blue Americans eat their own young in a frenzy of fear of and hate for the unseen enemy who laid them off, put their homes into foreclosure and decimated their life savings.
Listen to the wisdom of an ordinary Polish citizen on the current troubles there:
"Poles always feel they need to have an enemy," Urszula Slawinska, 38, said one day as she walked along a sidewalk in Warsaw, an average citizen headed home, uninvolved in politics, yet keenly aware of what was happening around her. "Because of our history we define ourselves, to be Polish meant to protect our country. So now that we don't have to protect ourselves, we still need to find an enemy."
"That's got nothing to do with my legal practice," you say, thinking I've singed my brain on the open fire I've been roasting marshmallows over for too long. And yet I've talked to your clients - hundreds of them by now - and most of them - whether middle managers, sole proprietors, or even CEO's - have come to define themselves as justice seekers in opposition to the devil on the other side of the "v."
If you find your opponent's legal or factual positions "ridiculous" or "outrageous" or simply "beyond understanding," it's not usually a sign of some ulterior nefarious purpose, but a signal that the case is not settling or progressing as it should because you and your client have become the enemy, a dark presence intent on blinding your opponent just before robbing him of the remainder of his worldly goods.
Priming Legal Negotiations is the winner of this week's Golden Asshole Award. /* An autographed copy of A is for Asshole, the Grownups' ABCs of Conflict Resolution will be winging its way to author Carrie Sperling, Executive Director of the Arizona Justice Project today! Excerpt below. Full article at the link.
Thanks to the Legal Writing Prof Blog for the head's up.
As I left for work one crisp, sunny April morning, I spotted a five-by-seven printed form on my car’s front windshield. The form’s message proclaimed, in large, bold letters, “youparklikeanasshole.” The form had a checklist of infractions like “two spots, one car,” “that’s a compact?” and “over the painted lines.”The bottom of the printed form said,
Parking is far too limited in our overcrowded streets and parking lots, and you happened to park like an asshole. Go to the above web site to see why someone else thought you parked like an asshole. Don’t be too offended, we all do it one time or another—it just so happens you got caught.
My next-door neighbor, who evidently put the note on my car, listed my infraction as “other” with a follow-up explanation written by hand: “You are parking too close to my garage. It’s hard for me to pull my truck in.” I studied the note for a few moments. I felt my heart start to pound and my whole body became uncomfortably warm. I wadded the note and tossed it. I was angry. When I arrived at work twenty minutes later, I was still angry. I told my co-workers about the note.
They all agreed with me; it was rude and inappropriate.
When I returned home that evening, I visited with neighbors who were not complaining about my parking. I showed them the note, now crumpled and dirty. They, too, became angry. One neighbor suggested exacting revenge on the note’s author by letting the air out of his tires. Another neighbor excitedly suggested something involving Crisco. Although I am a trained mediator, I became giddy about the prospect of getting even.
Perhaps it was a moment of self reflection that led me to question why I was even thinking of revenge. But that written demand evoked intense emotions in me and in my neighbors. We did not care about investigating appropriate responses or attempting to resolve the problem; we wanted to make my neighbor pay for his rude behavior. Instead of encouraging me to change my behavior in the way my neighbor requested, the note had an entirely different effect. The written demand prompted me to make my neighbor regret placing that note on my windshield.
This incident led me to question the legal demand letters lawyers write. I wondered if demand letters often evoke similar negative emotional reactions in their recipients. And, if so, do those emotions influence the recipients’ behaviors in ways that hinder settlement?
I'll be providing a template for a negotiation request letter later today.
And all kidding aside, this article should be required reading for every legal writing class in every law school in the country!
Cross-posted at The ABCs of Conflict Resolution Blog.
__________________
*/ The Golden Asshole Award is given once a month to the individual making the greatest contribution to reducing assholishness in the profession.
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
Uncover and Collaborate
Elicit Genuine Buy-in
Build Trust
Focus on process
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.
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.
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.
It was an unusually clear and sunny Tuesday morning in September when Thomas Burnett Jr., senior vice president and chief operating officer of a medical research company, boarded a plane in Newark, New Jersey heading for his home in the San Francisco Bay Area.
Easing into his first-class seat as he accepted a glass of orange juice from the flight attendant, he nodded good morning to his row partner, Mark Bennett. Settling in for the five-hour flight, Thomas opened the front page of the New York Times – the early edition of the paper dated September 11, 2001.
Are you a conflict resolution hero? Read "H is for Hero" in A is for Asshole, the Grownups' ABCs of Conflict Resolution today!
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.
Here's another character everyone will recognize – the Drama Queen. Male or female, the Drama Queen stirs the pot of conflict to add emotional intensity and intrigue to an otherwise ordinary business day.
Of the primary responses to conflict – denying, avoiding, yielding, problem solving and contending – Drama Queens almost always choose contention. As we noted in B is for Bully, contentious responses to conflict include ingratiation or gamesmanship, shaming, threats, promises or arguments and coercive commitments or violence. All of these tactics are employed to overpower the will of another and get what we want.
Drama Queen John is a colleague recently assigned to work on the same project as you. John is impulsive, chaotic, inefficient and unproductive. You are calm, well-organized, efficient and productive. You’ve never understood why John has lasted as long as he has at his job. As a good team player, you've been keeping your own counsel. You've mentioned neither your opinions about John nor your irritation with him to your co-workers. In all your dealings with John you've been careful not to show annoyance. You've been getting along and going along while at the same time trying to keep your eye on the prize – the successful completion of the project entrusted to you.
But for all your caution, things start to go wrong on the first day the team meets. That afternoon your supervisor, Jamie, drops by your office to mention that your teammate, Gina, complained about your domineering style. The following week, you overhear George saying you didn't deserve the bonus you received last year. Someone else (John, you assume) suggested that you have a "special" relationship with the divisional vice president.
By week three your team meetings have become tense. People with whom you had worked well for a long time began eyeing you suspiciously when you enter the room.
And John is uncharacteristically cheerful.
What’s happening here?
Yes, you'll have to await the publication of A is for Asshole: the Grownups' ABCs of Conflict Resolution for the means at your disposal to put this cluster-F*** in the office back into shape again.
(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.
Nearly every condominium complex harbors an outlaw – the man, woman, couple or family – who refuses to follow the rules. It could be the young couple blasting the woofers off their stereo at 3 am, the elderly woman who doesn't clean up after her dog, or the raucous family playing Marco Polo in the community pool after midnight.
Offended and outraged, other homeowners make demands on their volunteer board of directors who contact the often-unresponsive management company. Volunteer board members of the homeowners' association issue warnings to procure compliance, but to no avail. Eventually someone reads the rules governing relationships among the homeowners – the Covenants, Conditions and Restrictions (CC&Rs) – and learns that the board has enforceable legal duties and the homeowners have enforceable legal rights.
Many of these disputes make their way to the Dispute Resolution Center of the Los Angeles County Bar Association in West Hollywood. And some of them make their way to me.
Welcome to community mediation. We're well-trained and we're free. But can we deliver justice?
Only if you're one of the first to purchase and read A is for Asshole: the Grownups' ABCs of Conflict Resolution due out in time for your outlaws' holidays!
Follow the ABCsofConflict on Twitter!
"Like" the ABCs Facebook Page!
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.
Book launch in September! Stay tuned!
If you always wanted a raw, gutsy, no-holds-barred, emotionally wrenching, profoundly inspiring, intellectually challenging account of what actually happens in conflict and a no-nonsense guide to the practice of mediation, look no further. Victoria Pynchon is amazingly brilliant, deeply creative, profoundly insightful, and painfully honest. Read it. You won’t be sorry.
Kenneth Cloke, author of The Crossroads of Conflict: A Journey into the Heart of Dispute Resolution; and Conflict Revolution: Mediating Evil, War, Injustice and Terrorism.
