Negotiating Cooperation
Cooperation
View more OpenOffice presentations from Victoria Pynchon.
Dealing with "Jerks" - Tit for Tat in an Email World
I'm re-posting below an article published in both the Los Angeles and the San Francisco Daily Journals (the local legal rags) about the dangers inherent in email communication. I do so because I had several complaints about the use of abusive email by in-house counsel last week at my negotiation training as well as in my twitter network from attorneys exasperated with combative emailers who refuse to take telephone calls (see post about conflict avoidance here)
My advice? Use the tried and true tit-for-tat strategy: retaliate for uncooperative conduct and be quick to forgive as soon as your bargaining partners bring themselves back into line. The advice I gave on twitter (@vpynchon) this morning was simple and pointed: tell opposing counsel that you will program your email system to automatically delete all of their emails until they pick up the telephone and give you the courtesy of a return call.
Below, my Daily Journal article on the Dangers of Using Email During Litigation.
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This story occurs in the spring of 2001, in a hotel room in Toronto, at 3 a.m., the morning of a deposition I've been preparing to take of an aging petrochemical engineer.
2001 is a year I'd dreamed of since elementary school. But the technological changes predicted in the science fiction of my childhood and adolescence are nothing like the "hi-tech" I'm living with now.
There are no one-man jets cruising the skies; no robots running my errands or cooking my dinner; no tele-transportation; and, on the political scene (it's not yet 9/11) no Big Brother.
My personal 2001 "future" is mostly about my instantaneous access to information and "real time" communication via the "killer app" -- email -- telegraphic, spontaneous, unnuanced, and about to get me in a great deal of trouble. (See Vanity Fair's must-read oral history of the internet here.)
There's an associate back in Los Angeles, you see, the quality of whose work and the strength of whose dedication to the case at hand is in alarming decline. More troubling, his work is deteriorating at the same time I'm taking old fashioned passenger jets from province to province to take the testimony of as many witnesses still living who know how 500+ toxic waste sites got that way in the first place.
Did I say it's 3 a.m.? The associate I'm thinking about failed to get me the outline I need for tomorrow's deposition on time -- or at all. The "hard copies" that were supposed to be waiting for me when I arrived at the hotel have gone missing. I'm tired. I'm hungry. I'm lonely. And I'm angry.
Worst of all, I'm composing an email to my associate about my considerable disappointment in his recent performance. There is a moment, a split second, in which my finger hovers over the "send" button while a rational voice in my head says "no." Then I push "send."
Email Makes Settlement More Difficult
More and more often when I'm meeting counsel on the morning of a mediation, they're also meeting one another for the first time. In fact, they often have not even previously spoken to one another unless they've met in Court ("good morning, counsel") or in depositions (eyes averted; objections made). Increasingly, by far the vast percentage of their communications have taken place via email.
And that's a problem.
Conflict Escalation
There's no question that litigation escalates whatever conflict existed when our client first walks in our door. We don't, after all, make requests. We issue demands. We don't seek concessions. We insist upon them. We don't make inquiries. We require responses. And we're not such great listeners. Rather, we impatiently tap our feet in Court, waiting for counsel to finish his argument (which we've heard dozens of times before) so we can press our case.
Are these bad things? Not necessarily. So long as we understand what we're doing and the likely results our conduct will have, escalation is not necessarily worse than maintaining a steady state or even deescalating conflict.
The problem for most of us is that we don't know what we're doing and we don't understand the breadth and depth of the likely repercussions.
In Conflict Escalation: Dispute Exacerbating Elements of E-Mail Communication, author Raymond A. Friedman of the Owen Graduate School of Management at Vanderbilt University quotes conflict specialists Rubin, Pruitt and Kim on the difficulties caused by escalation tactics and strategy. According to Rubin, et al., escalation is
"an increase in the intensity of a conflict as a whole.” Escalation is important . . . because when conflict escalates it “is intensified in ways that are sometimes exceedingly difficult to undo.” One reason why escalated conflicts are so hard to undo is that when more aggressive tactics are used by one side they are often mirrored by the other side, producing a vicious cycle.
Email, Friedman argues, unnecessarily, and often drastically, escalates conflict in ways none of us fully appreciate. Unlike conversation -- in person or by telephone -- we are not
physically present with others, can’t see their faces or hear their voices, and can’t give or get immediate responses. The lack of contextual clues . . . impose high “understanding costs” on participants in e-mail interactions, making it harder to successfully ground the interaction. . . . /* [T]the inability to carefully time actions and reactions . . . makes communication less precise.
E-mail Not Only Lacks Social Clues, it is "Profoundly A-Social."
Sitting in my Toronto hotel room at 3 a.m., reviewing online documents for tomorrow's deposition and now "penning" an email to my errant associate, I am, argues Friedman, not simply making communication more difficult, I have become "profoundly asocial" as my associate will also likely be when he reviews my email the following day. "E-mails," writes Friedman,
are typically received and written while the writer is in isolation, staring at a computer screen – perhaps for hours at a time, so that awareness of the humanness of the counterpart may be diminished.
As evidence, Friedman cites research in which subjects played the "prisoner's dilemma" game against a computer. Not only did the gamers act asocially in this context, "many continued to act asocially even when told that they were now playing with people (through the computer)."
E-mail, Friedman concludes, "often occurs in a context devoid of awareness of human sensibilities."
The Precise Difficulties Caused by E-Mail Communications?
Use of aggressive tactics. If e-mail communication encourages the use of more aggressive tactics during a dispute, or makes a counterpart’s tactics appear more aggressive, then escalation will be triggered.
Changes in view of other. Escalation is more likely if e-mail causes negative changes in psychological processes (e.g., perceptions and attitudes) towards the other, such as (1) seeing the other as unfair, (2) lessening empathy toward them, (3) increasing deindividuation and anonymity, or (4) or seeing the other as immoral.
Weakened interpersonal bonds. If e-mail weakens social bonds with the other, then escalation is more likely (e.g., due to reduced inhibitions for aggression).
Problems are difficult to resolve. If the communication limitations of e-mail (e.g., asynchrony deficits) make problems more difficult to solve, conflict may be escalated as frustrated disputants move from mild to more aggressive strategies to achieve their goals.
As a result, says Friedman, there are "higher rates of escalation when disputes are managed via e-mail than via face-to-face communication or other relatively rich media . . . such as telephone conversations." /**
Back in Los Angeles the Following Day
You knew this story was not going to have a happy ending. What a cranky, tired, stressed partner types into her computer at 3 a.m. and what a fully awake associate reads with his morning coffee the following day are, as Friedman stresses, two quite different things. And though I've rarely had a face-to-face disagreement with a colleague that cannot be mended by further communication, apologies, explanations and the like, this particular communication caused a rift that I was unable to heal.
This experience from several years ago, coupled with my recent mediation experiences, makes me want to advise, exhort, plead, beseech, entreat and pray that you commence every litigation with a telephone call rather than a "demand" letter or email. And that you continue to communicate with opposing counsel by telephone or, even more radically, in person over a meal, throughout the litigation to make sure channels of communication are as open and clear as possible.
The difficulties saved will not only benefit your personal life (reduce stress, increase fellow-feeling and the like) but will benefit your client as well -- in case efficiencies and better settlements all around.
______________________
*/ "Grounding" is the process
by which two parties in an interaction achieve a shared sense of understanding about a communication and a shared sense of participation in the conversation. Grounding is important because “speech is evanescent...so Alan must try to speak only when he thinks Barbara is attending to, hearing, and trying to understand what he is saying, and she must guide him by giving evidence that she is doing just this."
** / There's much more to be learned from this article, but these highlights should tell you whether further reading is in your interest or worth your time.
Arbitration and E-Discovery: Make Up Your Own #^%@ Law!
The National Law Journal's annoying practice of making its "best" content available only with a secret decoder ring forged in the fire of subscription dollars, nevertheless did not stop me from access to an intriguing article about arbitration's "e-discovery conundrum" (here for people with the secret code).
In Arbitration's e-Discovery Conundrum (thank you Mr. Thrifty for the copy) the author contends that:
. . . as litigation discovery techniques have become more prevalent in arbitration, arbitration has become just as time-consuming, expensive and burdensome. Without the benefit of an appeal process for the losing party, the primary remaining benefit for binding arbitration -- privacy -- is often outweighed by the other negative factors.
Parties and their litigation counsel have pointed to runaway discovery as one major reason why they have abandoned arbitration in favor of mediation in the United States and even internationally.
So how can "the long-recognized benefits of arbitration -- speed and cost savings -- be restored?"
(top: is this what any of us went to law school for? Flowchart from Integreon)
The author recommends that the process must "address the needs and interests that led them to arbitration in the first place: to balance the need to discover those documents reasonably necessary for a party to prove its case with the cost, burden and time involved in producing such documents, while taking into account the need for fundamental fairness and to avoid surprise and trial by ambush."
Here's where reformers fail to get the direction the law is moving in. It's not about finding a process that fits your needs - it's about creating the process that is tailor-made for your one and only completely unique and unrepeatable dispute.
The beauty of arbitration is not what it is. It is what it can be. The beauty of arbitration is that it allows you to make up your own $%#@^ law and procedure. It restores control of the process to you.
What, you say? Your opponent and you can't agree? This is no longer a good enough reason, particularly because I do not see many attorneys making the effort to craft discovery and case management plans that reasonably addresses the parties' actual need for every document that someone marginally involved in the dispute might have once breathed upon.
I know whereof I speak.
The solution? Sit down, for goodness sake, with your adversary, for as many days as it takes, to reach agreement about what each side actually needs. Leave your huffing and your puffing, your posturing and your adversarial chops at the conference room door. There will be plenty of time for all of that after the only people who actually understand the dispute -- YOU -- agree upon the type of process necessary to resolve it as efficiently and effectively as possible.
The law firms that do this will survive the recession.
Negotiating Thanksgiving Conversations
I kicked off the Thanksgiving holiday season last year by having an argument with my friend and neighbor the rocket scientist about extraordinary rendition and the effect of immigrant workers on the economy.
I knew I'd lost all sense of perspective around midnight as I continued searching for and emailing Tony articles that proved me right, while Mr. Thrifty snored softly beside me, intermittently awakening to say "I thought you said you were going to go to sleep?"
Embarrassing, but true.
This week, tens of millions of people will be sitting down to Thanksgiving dinner with friends and family they haven't discussed politics, sex or religion with for at least one full year.
For those of you who find you just can't help yourself, I provide the following resources.
First, I give you Ben Stein's Top Ten Tips for Having a Business Conversation -- appropriately entitled "How Not to Ruin Your Life." They will serve you at the Thanksgiving table every bit as well as they will save you from self-destruction at your next firm retreat.
If you simply cannot avoid a political conversation this Thanksgiving, do yourself a favor by taking a brief look at the Public Conversations Projects' Eleven Ideas for Making a Hard Conversation Work before the relatives arrive.
Finally, as much for myself as my for readers, I give you my own personal top six tips for Thanksgiving Day conversation.
1. Before diving in to a spirited dialogue about the use of fetuses for stem cell research with your second helping of mashed potatoes, ask yourself whether you are emotionally ready to resist the strong pull to hit your conversational partner over the head with a turkey leg. If not, open your mouth only to say something kind or grateful or to shove another helping of stuffing into it.
2. If you just can't help yourself from responding to Aunt Gertrude's (somewhat drunken) assertion that "torture is too good for the terrorists at Guantanamo," any of the following will do.
Can I pour you another drink?
Uuh huh, uh huh, uh huh
go on
tell me more
how do you feel about that?
I couldn't have said it better myself; do let me call you a taxi.
3. For the academically minded,
I have a couple of dozen articles on that issue. If you'll give me your email address, I'll pass them along to you.
4. For the cousin from Alabama,
I'd love to get Rush Limbaugh's point of view on that -- please do drop See I Told You So by the house before you leave for Montgomery tomorrow.
5. Avoid stereotyping people from Montgomery, Alabama.
6. As the Public Conversations Project advises,
Thinking before speaking is a good idea.
Have a great Thanksgiving and remember --Ben Franklin thought the National Bird should be a turkey!
Think twice.
Then think again and offer Aunt Gertrude another piece of pumpkin pie.
Click here for more Cartoon tips from Slowpoke thanks to David Giacalone of f/k/a.
Why Common Sense, Compassion and Listening Twice As Much As You Talk Are The Best Negotiation Strategies In Law and Life
Guest Blogger - Susan Cartier Liebel
First, I'm honored to be guest blogging while Vickie is away campaigning her heart out until November 4. I'm also a little intimidated to be here as I can't speak on negotiation with the authority Vickie can, after all she's a distinguished and honored expert on the topic.
However, I can speak on negotiation as a lawyer and a human being dealing with every day life. So in this post I will speak to both the skill sets which lawyers must employ every day of their lives both professionally and personally and the strange phenomenon which exists when lawyers are 'off' the job but are still known to be, or deliberately make others aware of the fact, they are lawyers.
A lawyer in many ways can never really step away from their professional reputation unless it remains hidden from those we are negotiating with. And you know exactly what I'm talking about. How many times have you negotiated with a vendor or customer service representative and when you feel you are losing ground or the other person is not taking you seriously you pull out your trump card, "Well, I'm a lawyer." What are you expecting? Be honest. You are expecting them to take you seriously now with the unspoken threat of legal action if they don't some how immediately capitulate or offer some type of concession to your demand. You've implied you have this superior intelligence and set of skills and you are not afraid to use it to threaten their job. How many times have you subtly threatened the same in a letter for a personal situation simply by using your business letterhead? Gotcha.
Well, what happens when the reverse is true? When someone you are negotiating with uses your status as a lawyer to escalate the situation? They don't treat you in the manner they would a friend or neighbor because they assume you will be aggressive and immovable on a matter precisely because you are a lawyer? They fire the first volley and create a situation where you have to defend yourself first by saying, "I'm not here as a lawyer. Why are you threatening me with legal action?" You are ultimately responsible for de-escalating a situation simply because they know you are a lawyer.
This very thing happened to me with a neighbor and I had to literally work backwards from the implied threat of a law suit simply because I am a lawyer. And in it are some valuable negotiation skills I want to share with you.
I've lived in my home six years. Both my neighbors are original owners having been there for more than 35 years. In between my home and my neighbor to the right are 40 foot pine trees and several 60 foot hickory trees which are quite old. My neighbor approached my husband and said he was going to take down two of 'his' trees, one of which sits on the edge of my property in an 'island' of trees bordered with decorative brick. When I heard he wanted to take down one of 'my' trees I went to his home and asked why he wanted to take down one of 'my' trees? He proceeded to tell me it wasn't my tree. "Then why is it in 'my' island?" "Because I told the original owner I had no problem with her using her decorative brick around it for aesthetic purposes. But now I want to take it down."
Well, while this neighbor is a friendly guy, I don't believe he gives away freely that which is his. He didn't like the leaves blowing into his yard and thought he could get away with claiming it was his. I asked him if he would show me the property card because I really wasn't sure this was his tree and I really enjoyed the tree. (Up to this point all was done in a very nice, cordial, friendly way.) His manner immediately changed, "I'm not showing you anything. I don't care if you don't want that tree coming down. It's mine and it's COMING down. And I know you're a lawyer and you can sue me if you want. It will come down when you're not home. And if you think that's going to bother you, wait till I take down all those pine trees in the spring." He's screaming this as he points to the beautiful natural fence between our homes. And he has now also upped the stakes.
So, let's talk about the practical aspects of this. First, he's a neighbor. Second, he could very well take the tree(s) down when I'm not home and no matter what happens in any litigation, the tree(s) are gone and irreplaceable. Third, I had no proof, just a very credible suspicion the tree was not his. Fourth, he was taking the tree down within a week. Fifth, he was immediately hostile and assumed because I was a lawyer I would threaten suit and use my magical 'superiority' that lay people fear in order to bully him. He seemed to have taken all options for discussion off the table simply because I was a lawyer. He attacked first.
It would have been very easy to escalate this. Here's what happened instead:
Me: (Jack)...let's slow down here. What's really going on? This is not like you. There's more to this. Is something else bothering you?
Jack: No, nothing. This is my tree and I'm taking it down whether you like it or not.
Me: Jack, let's get away from the tree for a minute. You're really edgy. I'm not used to seeing you like this. Is everything, OK?
Jack: (Pause)....Well, my aunt is in the hospital and it doesn't look good.
(This went back and forth for a while as he slowly revealed his aunt's condition, a woman who had raised him, and it was impacting him deeply.)
Me: Now it makes sense to me why you're so on edge.
Jack: (He brings back the topic of the tree.) "Step on my porch, Susan and you'll see the top of that tree is dead. I'm willing to pay to take it down."
All of a sudden, there is a subtle acknowledgment the tree isn't his. But now he has also pointed to a reason I would want the tree to be taken down. He would pay for its removal now or I could pay several hundred dollars for it later. He is trying to find consensus..or reaching across the table.
The end result is I agreed to let him pay to take the tree down. He did all the prep work around the tree and we both interviewed and agreed to the right tree service. After the tree was removed he told my husband he would not take down the pine trees that separated our properties. (I believe, although he planted those trees, he planted them with the agreement of our home's previous owner to do so on the joint border...a little tidbit I remembered from a previous conversation.) But this gave him a chance to be gracious and conciliatory.
The end result: I got what I wanted, someone else to pay for the removal of a tree which apparently was dead on top, no more threat of removal of the pine trees, no need to spend money on a property survey, either. He got what he wanted, the 'dirty' tree removed while we both got something else, preservation of our neighborly friendship and working together as a team on joint matters. This 'partnership' has since extended into other neighborly issues like shopping for home heating oil as a group to have better negotiating power, etc.
It's very hard to un-ring the bell when someone assumes because you are a lawyer you are incapable of not acting like a lawyer in a situation where both parties need to feel like they are on the same footing. And given most lay people's perceptions of lawyers and the casual way lawyers use their 'trump' card, is it any wonder.
At the heart of negotiation is listening twice as much as you talk and the ability to step into another person's shoes with genuine compassion. In our 'negotiation' everyone walked away with more than what they wanted without litigation in spite of the fact one of us was a lawyer. This neighbor got a chance to reclaim his good neighbor status because I took the time to figure out the thorn in the lion's paw.
Susan Cartier Liebel is a national coach/consultant working with newly minted or well-seasoned lawyers who want to create and grow their solo practices. She authors the popular blog Build A Solo Practice, LLC and is the creator of Solo Practice University - a revolutionary web-based educational and professional networking community for lawyers and law students.
Rock Paper Scissors Dispute Resolution
Thanks to Tammy Lenski over at Twitter (follow her!) for passing along Pop Crunch's photo of the best dispute resolution street sign ever posted (with all due deference to NYC's "Don't Even Think About Parking Here."
I can't download it to post it so you must click here for it to make your conflict resolution day.
Image below links to Random Images.
Interest-Based Negotiations: A Quick List of Preparation Questions
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I've linked to Negotiating: Thinking it Through from the Business Growth Blog before, but haven't quoted the Eight Preparation Questions listed there. The more I mediate (yes, one's practice does grow) the more I'm reminded that litigators resist interest-based bargaining techniques.
I get stuck in position-based negotiations as well. It remains a challenge for me, after 25 years of litigation practice, not to be sucked into the attorneys' arguments about why they are right. To help all of us in the mediation room . . .
[h]ere is a list of 8 questions you can ask yourself when you suddenly realize that you have to prepare for a negotiation. Use these to generate quick preparation for any negotiation.
1. What are my intended outcomes and interests?
This is about having your goal in mind but also about thinking about the bigger picture at the same time - if you're goal is to get to work on time, speeding to get there might seem like the right choice until the cop pulls you over.
2. What are their possible interests and outcomes?
Look at the negotiaion from their point of view. What do they really want from this?
3. What are some of the options of agreement?
Where are the points of agreement? Focusing on this beforehand will set a tone of reaching agreement rather than a tone of conflict.
4. What is my Plan B?
Once you've thought through the first three questions, what's your fall back position? Having your Plan B in mind gives you a feeling of options so if the deal goes to far against you, you are comfortable with your option B.
5. What is my worst case scenario?
Answering this question sets your "don't cross" line. You've predetermined what you're willing to give up and more than that is a deal breaker… that means you can negotiate confidently, since you know your direction.
6. What are some possible external standards?
External standard are outside measures that can move the negotiation away from personal stakes to measures from an outside authority. Examples might be interest rates, rate of exchange or time frame.
7. What is or are my reserve price / terms / limits?
Knowing what your limits are and then not not going past them results in more useful and enjoyable negotiation.
8. What is my game plan?
Map it out. What do you want and how are you going to get there?
Negotiating Anger: Why are They Shouting at Me????
Brilliant piece on de-escalating conflict over at Tammy Lenski's Conflict Zen this morning. Teaser and link below:
The friendly bailiff unlocked the small courtroom. After telling me to make myself a
t home, he pointed to a small red button on the wall. “If you need me, just press that button and I’ll be in here faster than you can blink and eye. It’s an emergency button.”
“Ok, thanks,” I replied, and began to unpack my briefcase.
“I mean it,” he said. “Just press the button. Maybe you should set up your chair so you’re near it.”
I gave him a long look. “You seem to want me to know about that button. Is there something else you want to tell me?”
Apology: Shame, Guilt, Rupture and Repair
A friend of mine once told me that "the most successful learning dyad in the history of the world" is the mother-infant/child relationship. Contemporary psychologists who have studied that relationship have discovered that toddlers whose caretakers help them "repair" the loving relationship that existed before the moment shame is elicited, learn guilt and apology instead of chronic shame and denial or withdrawal.
The explanation below (from my article Shame by Any Other Name) is largely drawn from the work of two scholars -- ALLAN N. SCHORE, particularly his book AFFECT REGULATION AND THE ORIGIN OF THE SELF: THE NEUROBIOLOGY OF EMOTIONAL DEVELOPMENT (1994) and D.L. NATHANSON, particularly his book SHAME AND PRIDE: AFFECT, SEX AND THE BIRTH OF THE SELF (1992).
Distinguishing Guilt from Shame
By age two, children develop the ability to empathize with the feelings of another and by age three to evaluate their own conduct against objective behavioral standards. As soon as we are able to experience shame and guilt, we instinctively attempt to regulate our emotional state by engaging in spontaneous acts of confession and reparation. . . . .Shame . . . "acts as a powerful modulator of interpersonal relatedness and . . . ruptures the dynamic attachment bond between individuals." When an individual has broken this bond, he wishes to recapture the relationship as it existed before it turned problematic.
Toddlers shamed by their mothers, for instance, naturally initiate appeals to repair the momentary break in the emotional bond resulting from the shame-inducing behavior. This process is called self-righting. It is natural and universal. The shamed toddler reflexively looks up at and reaches toward his mother. Even a preverbal child will spontaneously express this need to be held in an attempt to reaffirm both self and the ruptured relationship, to feel restored and secure.
A healthy and responsive mother accepts and assuages the child's painful feelings of shame, enabling the toddler to return to a normal emotional state, one in which love and trust are ascendant. If the caregiver is "sensitive, responsive, and emotionally approachable," especially if she uses soothing sounds, gaze and touch, mother and child are "psychobiologically reattuned," the "interpersonal bridge" is rebuilt, the "attachment bond" is reconnected, and the experience of shame is regulated to a tolerable emotional state.
This series of events between child and care-giver has been termed the "positive socialization of shame." It permits the infant to "develop an internal representation of himself as effective, of his interactions as reparable, and of his caregiver as reliable." . . . Importantly, when shame goes unacknowledged, "it is almost impossible to mend the bond." The natural resulting inclination to hide one's misdeeds "creates further shame, which creates a further sense of isolation."
Thus, while shame in the absence of a consistently repaired interpersonal bridge creates pathology, repair teaches emotional self-regulation, creates "secure attachments" and leads to the development of empathy and conscience.
Tomorrow, How to Make the Apology that is Most Likely to Result in Reconciliation
Apology: the Guilt Ridden vs. the Shame Infused
(thanks to Beyond Intractability for the graphic)
We talk a lot about apology as a means of descalating conflict for the purpose of engaging in successfully mediated settlement conferences and non-mediated commercial negotiations alike.
You can bargain with someone who is enraged at (or even merely irritable with) you, but your negotiation will be derailed over and over again as feelings interfere with business judgment.
Although you can't have one without the other (judgment without emotion) some emotions are conducive to successful negotiations and some are corrosive.
APOLOGY: I'm writing a book and my blog-job is interfering with my deadline. So I'm stealing my own material, for which I aplogize to myself and to any reader who has already read my published article on Restorative Justice -- Shame by Any Other Name Lessons for Restorative Justice from the Principles, Traditions and Practices of Alcoholics Anonymous (2005) 5 Pepp. Disp. Resol. L.J. 299 (2005).
If you're interested in what shame and guilt have to do with moral development as a preclude to recognizing the difference between guilt-ridden and shame-infused apologies, read on. (and yes Janis, I'm working on it!)
A SHORT PRIMER ON SHAME, GUILT AND MORAL EDUCATION
A. The Origins and Effects of Shame.
The word shame is derived from the Indo-European skem which means "to hide." Shame makes us want to hide - from ourselves, our God and our peers - making shame an existentially isolating state of mind. Feeling shame makes a person "dejection-based, passive, or helpless," causing the "ashamed person [to focus] more on devaluing or condemning his entire self" than upon his behavior. He sees himself "as fundamentally flawed, feels self-conscious about the visibility of his actions, fears scorn, and thus avoids or hides from others."
The shamed individual wants "to undo aspects of the self" whereas the guilt-ridden one wishes to undo aspects of his behavior. It is therefore not surprising that guilt tends to motivate restitution, confession, and apology, whereas shame tends to result in avoidance or anger.The psycho-biology of the constellation of emotions we call "shame" is innate. It produces a sudden loss of muscle tone in the neck and upper body; increases skin temperature on the face, frequently resulting in a blush and causes a brief period of incoordination and apparent disorganization. No matter what behavior is in progress when shame affect is triggered, it will be made momentarily impossible. Shame interrupts, halts, takes over, inconveniences, trips up, makes incompetent anything that had previously been interesting or enjoyable.
A state of cognitive shame follows this initial cluster of feelings. After the painful jolt of shame, we begin to search our "life scripts" for some way to integrate the shameful experience with our prior experiences, to make sense of the pain and disorientation caused by the sudden upset of a positive emotional state.
Because our earliest experiences of helplessness relate to our size, strength and intelligence, only anger and its explosive cousin, rage, allow us to prove to ourselves and others that we are powerful instead of weak, competent rather than stupid, large rather than small. Thus do many shame-suffused individuals respond to chronic shame in an attack mode, particularly those who feel "endangered" by the depths to which their self-esteem has been reduced. Such individuals experience shame as a threat to their physical well-being and lack the ability to trust and rely upon others.
Shame thus serves as a barrier to one's capacity to achieve empathy and develop conscience.
Distinguishing guilt from shame tomorrow.
Part II of Negotiating Law Firm Happiness in Connecticut Employment Law Blog
I've been guest blogging (along with many others) over at the Connecticut Employment Law Blog recently. Yesterday, Daniel Schwartz posted Part II of my article on using conflict resolution techniques and negotiation skills to increase the peace among your partners, whether there be only two of you or more than 1,000.
Part III is coming soon so keep an eye out for it.
And best of luck with the jury Daniel!
Conflict Revolution, Mediating Evil, War, Injustice and Terrorism or How Mediators Can Save the Planet
Yes you CAN pre order this book now!! Right here.
Not ready for the revolution? Read this review by clicking on the upper right hand corner and hitting "view full screen" at the bottom of the menu.
Book Review of Conflict Revolution; Mediating Evil, War, Injustice and Terrorism: How Mediators Can Help Save the Planet by Kenneth Cloke reviewed by Victoria Pynchon - Get more free documents
Would You Like a Helping of Tolerance and Empathy with that Easter Dinner?
Red and yellow black and white they are precious in his sight Jesus loves the little children of the world. Lyrics C. Herbert Woolston (1856-1927); Music: George F. Root (1820-1895) (MIDI, score). Root originally wrote this tune for the American civil war song Tramp, Tramp, Tramp.
Easter is one of those holidays that resists secularization unless you have children, grandchildren, hard boiled eggs and a rainbow of pastel dyes.
People don't casually say "Happy Easter" to one another, particularly in an urban American city and especially if half your family is Jewish.
Still, Easter reminds me that I used to be a practicing Protestant and that my values derive substantially from the liberal Christian teachings I was dipped into as a child -- first in Sunday School and then in church.
What did I learn? Tolerance. Compassion. Empathy. Forgiveness. Reconciliation. And perhaps most important of all, the genuine potential for every ordinary human spirit to experience a radical transformation -- so radical that one might say the individual had been reborn as a spiritual being.
Listen, this is not light weight stuff.
I like to write, but I'm no philosopher. Nor am I writer with a huge brain, steadily empathic heart, encyclopedic knowledge, original thought or the courage to dream paradigm shifting dreams. I do know that writer, however. His name is Ken Cloke and I am steadily making my way through all 500 and something pages of his new book.
These are the times to put our own individual highly personal spiritual or religious faith and a great deal of our material resources behind the transformation of human understanding necessary to save the species. (as James Lovelock , author of Gaia instructed us, we have no need to worry about the persistence of the planet itself. We are not necessary to its survival; we are merely its "spokesmodels.")
As my personal Easter offering, I give you yet another excerpt from Ken's soon-to-be-released book Conflict Revolution - Mediating Evil, War, Injustice and Terrorism or How Mediators Can Help Save the Planet.
How Prejudice Works, and How to Oppose It
Prejudice is complex and operates on many levels. It can be found not only in insults and judgments, caricatures and stereotypes, but refusals to listen and communicate, stories of demonization and victimization, inability to experience empathy with others, and infinitesimal denials of humanity. It is reflected in personal selfishness and hostile relationships, bullying and aggressive behaviors, and ego compensations based on poor self-esteem. It is expressed through contempt, disregard, and domination, as well as through low status, inequitable pay, and autocratic power.
Prejudice commonly operates by stereotyping. People form stereotypes, in my experience, in eight easy steps:
1. Pick a characteristic
2. Blow it out of proportion
3. Collapse the person into the characteristic
4. Ignore individual differences and variations
5. Disregard subtleties and complexities
6. Overlook commonalities
7. Match it to your own worst fears
8. Make it cruel
If these steps routinely produce prejudice, it is possible to undo them, for example, by making people more complex than their stereotype permits, or distinguishing unique individuals within a group, or recognizing commonalities between people. It helps, in doing so, to acknowledge that everyone is equal, unique, and interesting; that everyone forms prejudices; that everyone can learn to overcome them through awareness, empathy, and communication; and that everyone can become more skillful in communicating across stereotypes and lines of separation created by fear.
It is common for people, when accused of prejudice, to respond defensively, but to confront other people’s prejudices aggressively, leveling accusations and instilling shame. These responses may initially succeed in suppressing the expression of prejudicial attitudes and undermining social permission and the cultures of discrimination that allow it to continue. But to root out the deep-seated biases that keep prejudice alive, it is necessary to dismantle it at a deeper level, in people’s hearts and minds.Our principal goals in responding to prejudice are therefore not to castigate, blame, or point fingers at those who exhibit prejudicial attitudes, as shaming and blaming merely triggers defensiveness and counterattack. Instead, they are to defuse prejudice by assisting those in its grip (including ourselves) to:
Peace in the Law Firm? The Snark Says: Fess Up
(right: Calvin Coolidge, Zelig and Herbert Hoover)
Soon, the Complete Lawyer's Human Factor Columnists (first appearance, Vol. IV, Issue 2 /*) are going to be addressing the ways in which you can use conflict resolution techniques to create, or restore, peace in your law firm.
Though my contribution to that particular column is slicing the law firm's money pie with an eye toward the collective good rather than the individual's advantage, I can't pass up the opportunity to note the importance of accountability -- one of mediation's core values -- covered by The Snark in -- Oops! An Associate Did it Again (excerpt below).
FESS UP
This is the hardest plan to implement because you fear finally being discovered for being imperfect and possibly over-rated. Will you be fired? Will it go down in your "file" only to rear its head in four years when you are denied admission into the partnership and the only reason they can give is, "Back in your second year, you missed that 1 p.m. meeting with our best client, MegaCorp."
But I think in the end it is better to fess up. Just don't do it in a way that makes things even worse: no crying, sniveling or begging for mercy. And no need to shave your head or hold a press conference.
You just need to explain yourself while displaying the appropriate level of remorse blended with confidence that says, "Yes, I screwed up that once, but it was an uncommon lapse that will be rectified. I will work even harder and bill a few extra hours to make up for lost faith in my value."
Provided your mistake didn't actually cause lost revenue or client relationships, you likely will be forgiven. But don't let it happen again. You get paid way too much money to make mistakes.
BigLaw or Small, You are Not a "Cog"
I know the Snark's column is meant to be witty, sarcastic, ironic, snide, and all of that, but the demeaning reference to BigLaw associates as "Cogs" is unfortunately reflective of some young lawyers' felt reality. (Remember Jonathan Swift's Modest Proposal -- eat the poor? It's not a joke)
Here is my advice to every first year associate at every law firm in the country -- be it a Two-Person Enterprise or a Ginormous BigLaw Endeavor:
NOT ONLY ARE YOU NOT A COG, YOU DO NOT WORK FOR THE LAW FIRM
You WORK for the client. If your "boss" or your firm is not helping you do that to the highest level of your own abilities, then he/she is simply the guy/gal you need to circumvent so that you can give your client the best legal advice and services available.
THE BUCK STOPS WITH YOU.
You are a lawyer, with a lawyer's professional responsibilities and the right to be respected for the highly educated, skilled and semi-trained professional you are.
Don't let anyone fool you. You are not only important, you have power. And with power comes accountability.
Be a mensch. Be a star.
Welcome to the profession.
_______________________
/* The columnists are Gini Nelson of Engaging Conflicts, Stephanie West Allen of Idealawg and Brains on Purpose, and the mother of all mediation-bloggers, Diane Levin of the Mediation Channel. Oh yes, and me, Zelig.
Money and Power: How to Make Your Opponent Do What You Want Him to Do: An Interlude
Report on Day Two of the Mediators Beyond Borders Conference later this evening. Now, because Jens Thang from the Negotiation Guru dropped by to comment on Ken Cloke's list of ways we resist change, I'm linking to a recent N.G. article on power. Go to Negotiation Guru here to read about each of the eight power principles identified by Jens below.
- Power of Reward
- Power of Punishment
- Power of Competition
- Power of Consistency
- Power of Expertise
- Power of Legitimacy
- Power of Situation
- Power of Information
, , , , to achieve the highest level power is to have the power and not use it.
How to Make Your Opponent Do What You Want Him to Do: Part I
I'm blogging from the Stanley Hotel -- hence the Stanley Steamer -- in the Rocky Mountains -- hence the snow.
Stephen King wrote the Shining here, not in my room, but right down the hall. The book was Inspired by the Stanley. Hence the picture of Jack.
What's most exciting, however, is that I'm attending the Founding Congress of Mediators Beyond Borders; seeing old friends and meeting for the first time people I've long known at a distance; and getting to know an incredibly diverse and fascinating group of people dedicated to bringning conflict resolution techniques to international conflict.
More of that later.
Before getting to the "money shot" about changing the other guy's mind, I want to share with you Ken Cloke's 12 Ways Systems Resist Change from his lecture yesterday: Mediators as Global Citizens: How Mediators Can Change the Planet.
I start with resistance because you can't even begin to think about change until you understand why it is you're not getting past opposition's door. You might most readily notice in the following list the ways in which your workplace (or your government!) supports its dysfunction.
You'll also recognize your opponent's opposition to you and perhaps even yours to him.
- Marginalization: Making ideas, people, perspectives, or insights that could threaten the system appear unimportant, irrelevant, irrational, or impossible to achieve.
- Negative Framing: Using language that frames new ideas and critics negatively so that nothing that threatens the system can be thought or communicated successfully.
- Exaggeration: Stereotyping or exaggerating one part of an idea in order to discredit the other parts and the whole.
- Personalization. Reducing ideas to individual people, then discrediting or lionizing them.
- Sentimentalization: Using sentimental occasions, ideas, emotions and language to enforce conformity and silence criticism.
- Seduction. Describing the potential of the existing system in ways that unrealistically promise to fulfill people's deepest dreams and desires and blame the failure to achieve them on others.
- Alignment: Communicating that in order to exist, succeed, be happy or achieve influence, it is necessary to conform to the system regardless of its faults.
- Legitimization. Considering only existing practices as legitimate an all others as illegitimate.
- Simplification. Reducing disparate, complex, subtle, multi-faceted ideas to uniform, simplistic, superficial, emotionally charged beliefs.
- False Polarization: Limiting people's ability to choose by falsely characterizing issues as good or evil, right or wrong, either/or.
- Selective Repression. Selecting individual critics as examples, bullying them for disagreeing or failing to conform and ostracizing them.
- Double Binds: Creating double standards that require people to live divided lives, or make it difficult for them to act with integrity.
Change strategies tomorrow.
Writing on a Piece of Rice in a World of Injustice
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I often find myself explaining lawyers to their clients and clients to their attorneys. Here are some typical client complaints I hear about their litigator attorneys:
- he tells me to forget about the most important losses I've suffered
- she keeps editing my story
- I don't understand why I can't . . . i.e., recover my attorneys' fees or cross-complain, etc.
- he wouldn't let me tell the mediator everything I wanted to
- she didn't let me talk to the other side
And here are the typical litigator complaints I hear about clients:
- his expectations of success or recovery are commpletely unrealistic
- if I tell her the weaknesses of her case, she says I've become the enemy
- I've explained the limitations of the case to him, but he just doesn't seem to understand
Translating the Law into Justice -- An Explanation for Clients
The chart above and photos below are simple ways to explain to clients the gap between the law and justice. Sample explanation --
The dispute you're having exists in the world of injustice.
Picture the earth.
Now picture a grain of rice somewhere on the earth.
The grain of rice represents the injustices the law will remedy.
The earth represents the injustices the law will not.
Square Pegs in Round Holes -- An Explanation of the "Legal Story" for Clients
It feels like your attorney is "editing" or shaping or "spinning" your story of injustice because she is. The yellow square represents the facts necessary to obtain relief in court (damages, an injunction, etc.). It also represents the facts necessary to defeat your opponent's claim for relief.
The entire dispute -- everything that happened inside the green circle -- is generally what you, the client, want to resolve.
IT OFTEN INCLUDES FACTS THAT WOULD BE HARMFUL TO YOUR CASE.
That's why your attorney doesn't let you talk in the presence of the "other side" and asks you not to discuss the dispute with your opponent anymore. Because you might reveal something in the green area that's bad for proving your case in the yellow area.
THE MEDIATION ZONE -- AN EXPLANATION FOR ATTORNEYS AND THEIR CLIENTS
Mediators work in the green area. Clients almost always want to resolve all of the issues raised by the dispute, not simply the "legal" ones. Perhaps more importantly, there are many opportunities for resolution in the green mediation zone that no one has yet seriously explored because the green zone is not the focus of the legal action. Only the yellow legal zone is.
Mediation restores the dispute to the people who have it. They are the only ones who know and understand that dispute in all its detail, texture, dimension and meaning. Party interests -- their hopes, fears, desires, needs, etc. -- exist in both zones. The good news of mediation is that the party interests outside the legal zone can often be traded for concessions that are in or out of it.
When you have only one currency to negotiate with -- dollars -- you often reach impasse. Why? Because it seems so unfair to both parties that they should give in, compromise, split the baby in half, etc. just because the cost and aggravation of getting to trial is so high.
When you have more than one currency to negotiate with, however, like dollars and "face" or dollars and unexplored business opportunities or dollars and apology, or dollars and an explanation for the dispute's events that has the ring of truth, you can trump legal impasse with party interests.
Writing on a Grain of Rice
Vendors who line beach boardwalks or the sidewalks of tourist towns often include the guy who will write your name on a grain of rice. HERE!!!
Sometimes I feel as if my entire career as a litigator was written on a grain of rice -- that's how small the legal zone sometimes looks from here. It's O.K., though. Litigation isn't just a job or even just a career. It's a calling, this business of rights and remedies, of following a rule of law instead of a strong arm or the snake-oil's charm.
As the poet Lao Tzu wrote,
whether a man dispassionately
Sees to the core of life
Or passionately
Sees the surface,
The core and the surface
Are essentially the same,
Words make them seem different
Only to express appearance.
If name be needed, wonder names them both:
From wonder into wonder
Existence opens.
DIY Dispute Resolution: Accountability, Apology, Forgiveness and Reconciliation
When I was mediating the resolution of litigation on my local court-annexed ADR panel, I used to help attorneys, their insurance adjusters and physician clients resolve medical malpractice cases.
Some of my most profound human interactions occurred in these mediations. One surgeon said to me, with burning passion in his gaze, "you do not understand. The operating room is my church."
Another told me he could not consent to the settlement of a lawsuit because the sum the carrier was offering "would mean that I killed my patient."
Though I do not mediate malpractice cases anymore, I have been given a taste of the trauma that physicians experience when they are sued for malpractice.
What Does This Have to Do with Do It Yourself Dispute Resolution?
Research on the reasons patients sue their doctors suggest that malpractice litigation could be avoided if: (1) the patient understood the reason for an unexpectably bad result; and, (2) the physician were able to express to the patient responsibility for the outcome. See e.g. this Lancet study reporting that patients expressed the following reasons for suing their physicians:
[1] concern with standards of care--both patients and relatives wanted to prevent similar incidents in the future;
[2] the need for an explanation--to know how the injury happened and why; compensation--for actual losses, pain and suffering or to provide care in the future for an injured person;
[3] accountability--a belief that the staff or organisation should have to account for their actions; [and]
[4] [p]atients taking legal action wanted greater honesty, an appreciation of the severity of the trauma they had suffered, and assurances that lessons had been learnt from their experiences.
Which Brings Us to Transplant Surgeon Pauline Chen's Book Final Exam
Chen tells us that surgeons, who expect themselves and their colleagues to be infallible, have ritualized their response to error in Morbidity and Mortality -- M&M -- conferences. She cites sociologist Charles Bosk as first recognizing that M&M conferences
were a special ritual '"for witnessing [errors], resolving the confusion they create, and incorporating them into the group's history and the individuals biography." And this ritual function [is] so important that even 'those accustomed to letting others cool their heels" cleared all other obligations in order to attend M and M.
* * *
M and M, our professional ritual centered on death, attempts to heal the rents in our professional fabric caused by patient deaths. There are few other opportunities for surgeons to discuss death. We may mention it in passing, but we steadfastly reserve discussion for the conference, which will give us, as a group, ritual absolution. M and M requires a public accounting of loss and, in so doing, reconstructs the death into an event that affirms a core value of our professional identity: the need to be infallible in a highly variable world. In this way, M and M is like death rituals in other cultures; it seeks to transform death's loss into an affirmative experience.
According to Chen, this ritual of accountability also helps physicians deny their human fallibility, which may prevent them from taking the responsibility assumed in an M and M conference out into their patients' lives. Chen continues:
By defining death only as the result of errors, we erase the face of our patients and insert our own fiercely optimistic version of immortality. While admirable in some respects, this paradigm also denies our essential humanness. When we refuse to accept our own fallibility, we deny ourselves grief. In the end, then, M and M may prevent us from reaching what we so desperately want to achieve: the very best care for our patients.
Fallibility, Accountability and Apology
I have never been responsible for saving, or potentially losing, a human life. I have only been responsible for other people's money. And yet Pauline Chen's observations on fallibility strike a deep chord in me as a professional. If we make a mistake, people get hurt. And it is harder to accept responsibility for the mistakes that cause others harm than it is to accept just about any other disappointment in one's performance. It goes not simply to our "core values" as professionals, but to the very center of our professional and individual identity.
Some of us -- all of us under certain conditions -- will do almost anything to avoid admitting fault.
Which Takes Us to Brian Cox's Book Faith-Based Reconciliation
First let me say that I experience the same cognitive dissonance reading this book as I experienced taking Professor Cox's Faith-Based International Diplomacy class at Pepperdine Law School. The necessary wisdom contained here, however, makes me simply translate 'faith' and god (yes, I am, at best, an agnostic) into humanism and other people.
That said, here is Canon Cox's step-by-step prescription for accountability, forgiveness and reconciliation:
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Acknowledgment of moral culpability: "I was wrong to have said or done . . . " This demonstrates moral character.
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Acknowledgment of the offense or wrongdoing as specifically as possible: "This is what I did . . . " The more specific you are in your apology, the more likely that you will receive a positive response.
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Acknowledgment of awareness of the impact of your behavior: "This is how I understand that it affected you . . . " This demonstrates empathy or compassion.
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Expression of sorrow or regret at having caused offense: "I feel sadness that I did this to you . . . " This demonstrates caring.
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Acknowledgment that there is no adequate or true justification for your behavior: "There is no excuse for my actions that caused you pain . . ." This demonstrates sincere . . . sorrow for your actions.
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Explanation of what you will do to make restitution and/or alter your behavior in the future.
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Acknowledgment that you are prepared to accept the consequences of your actions. Avoiding consequences creates the impression that you are attempting to avoid responsibility for your actions and that your apology is insincere.
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Plea for forgiveness: "Will you forgive me?" This is the signal that you have done all you can and that the response has now been shifted to the other person.
Are there potential legal consequences to so open an acknowledgment of error and the adverse consequences it has caused. Yes there are and we will address them in the next post.
Let me say this, however. I firmly believe (and I believe the research will support me in this) that apology is far more likely to avoid litigation than it is to trigger it. In any event, living an authentic, robust life in community requires this. It is a small act of courage. Imagine what you would do if your life were at stake and so much more courage were required of you. Exercise the small acts of bravery now so that you will be prepared to face the much larger ones that may be required of you some day.
Do It Yourself: The Most Effective, Personally Satisfying and Least Costly ADR
I'm in the middle of reading two books, both of which should be on every mediator's night table -- Final Exam, A Surgeon's Reflections on Mortality by Pauline W. Chen and Faith-Based Reconciliation: A Moral Vision that Transforms People and Society by Canon Brian Cox.
Why should a commercial mediator read these books? For the same reason your business clients should -- they address the most important technology for making business effective and efficient -- do it yourself dispute resolution.
Maximizing Profit by Negotiating Peace
As my dear friend attorney-mediator Richard Millen says, "people don't have legal problems; only lawyers have legal problems; people have people problems."
I've adopted Richard's mantra for commercial litigation -- businesses don't have legal problems; businesses have business problems and most of those business problems are people problems.
Organizing teams of people into efficient working groups -- whether it be your Board of Directors; your research scientists; your associate attorneys; your sales staff; or, your physicians -- is the greatest challenge of every business -- making inventing the cure for cancer look like child's play.
We are a fractious, competitive, grudge-bearing, insecure, angry, difficult bunch. And yet everything we have ever accomplished by way of creating civilization and insuring our own survival as a species has resulted from our ability to communicate with one another for the purpose of engaging in a team effort.
As the author of The Brain Rules, John Medina has written of the course of evolutionary human events,
Suppose you are not the biggest person on the block, but you have thousands of years to become one. What do you do? If you are an animal, the most straightforward approach is becoming physically bigger, like the alpha male in a dog pack, with selection favoring muscle and bone. But there is another way to double your biomass. It's not be creating a body but by creating an ally. If you could establish cooperative agreements with some of your neighbors, you could double your power even if you did not personally double your strength. You could dominate the world. Trying to fight off a woolly mammoth? Alone, and the fight might look like Bambi vs. Godzilla. Two or three of you however, coordinating your behaviors and establishing the concept of teamwork, and you present a formidable challenge: You can figure out how to compel the mammoth to tumble over a cliff. There is ample evidence that this is exactly what we did.
Did I say I'm also in the middle of reading The Brain Rules and you should be too?
So, here's the thing. I'm starting a new category on the negotiation blog -- Do It Yourself Dispute Resolution. The next several posts are going to talk about what we need to understand to do that, jettisoning our attorneys for most of the business and people problems that end up in court so that we can reserve the attorneys to plan a better, more profitable future instead of fighting over the unprofitable past.
And the litigators? There will always be matters of principle; new law; new problems; and, new conflicts to resolve that require the process of an adversarial proceeding. I'm just looking to notch up your legal work a bit -- make it more interesting, satisfying and people-problem free.
Ready? Let's roll!
