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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 at 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?”

Continue reading here.

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Here's another character who everyone will recognize.  The Drama Queen.  Male or female, those who "stir up" conflict to add a little dramatic flair to an otherwise boring day, do so for a predictable set of reasons.

Before dissecting the guy who's the first to spread the word that George is being fired for "cooking the books," and tells Crystal that the office manager has it in for her at the same time he tells the office manager that Crystal covets her job, let's briefly return to the conflict "basics" outlined in chapter one.  

A conflict exists whenever two or more people believe that their needs (or desires) cannot be satisfied at the same time.  They see all relationships as zero sum games.  The social scientists would say that such people are in a constant state of  "perceived relative deprivation."  They are deprived in relationship to their fellows.  

We all live in a state of relative deprivation.  We drive a Honda while our neighbor drives a BMW.  We rent while our best friend owns.  Our salary is less than six figures.  The guy in the office next to us is making 200 grand.  Other people have been given more talent, better luck, more resources, superior business and professional networks, and, of course, more loving and supportive families.  And yet these "relative" deprivations do not always result in disputes.  Not unless we name, blame and claim.   

Naming, Blaming and Claiming

As we said in chapter one, "conflicts" over scarce resources do not ripen into disputes until we suffer a perceived injurious event such as failing to get in to the school of our choice; being rejected by an employer we hoped to work for; having our lavish dinner party go unreciprocated, or watching someone else take our parking space!  When we begin to suspect that we have been injured, we start looking around for the source of that injury -- someone to name as the cause, to blame for the loss and from whom to claim redress.  

Name, blame, claim.  

The Drama Queen in the Field of Conflict

Of the primary responses to conflict -- denying, avoiding, yielding, problem solving, and contending -- the Drama Queen almost always chooses contention.  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 to get what the contender wants. 

Meet Drama Queen John.  He's your colleague who has recently been assigned to work on the same project you have.  You are calm, well-organized, efficient and productive.  John is impulsive, chaotic, inefficient and un-productive.  You've never understood why John has lasted as long as he has at this job.  "Maybe he's the owner's brother-in-law" you've speculated -- but only to yourself.   

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.  You've been careful in all your interactions with John not to show your 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 that's been entrusted to you.   

For all your caution, things start to go wrong on the first day.  That very afternoon your supervisor Jamie drops by your office to mention that your teammate Gina is complaining about your domineering style.  The following week, you hear that George is saying you didn't deserve the bonus you received last year.  Someone has suggested that you have a "special" relationship with the divisional vice-president.  By week three, the team meetings have become tense.  People with whom you've long worked well eye you suspiciously when you enter the room.  And John is uncharacteristically cheerful. 

What Happened Here?

Unless someone talks to John about his dissatisfaction, we'll never quite know why he's been spreading rumors about you and creating ill-feeling between you and your team mates.  Still, we can make a few fair assumptions based on our knowledge of the social psychology of conflict.

For whatever reason, John appears to have named you as the source of some dissatisfaction in his worklife.  He's blamed you for that dissatisfaction and is actively claiming something from you.  In this case, his claim -- though negative and likely self-destructive -- comes in the form of personal satisfaction. 

What does someone like John get out of demonizing you to your workmates? The perverse satisfaction of exercising control, of making a drab office day momentarily dramatic, and, of exacting revenge from someone he's cast in the role of adversary.  John's hallmark characteristic is a lack of control.  Remember that he's disorganized, chaotic, impulsive and unproductive.  When he's able to create an atmosphere of suspicion about you, he's momentarily achieved the thing he most lacks, the thing you appear to have, the thing he believes people like you have deprived him of -- control.  

Though you needn't pity the poor Drama Queen, now that you know what drives him, you have some chance of engaging him in a productive conversation about his workplace behavior; a conversation that will make your work life far more cheerful and friendly.

Below, the Conflict Map outlining some of the concepts discussed here -- scroll down to the second page. 

Conflict Map - Get more documents

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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 

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(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.

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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!

 

 

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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

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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.

Verily I say unto you, Whosoever shall not receive the kingdom of God as a little child shall in no wise enter therein.  Luke 8:17 

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:

1. develop a knowledgeable, confident self-identity, and appreciate who they are without needing to feel superior to others 
2. experience comfortable, empathetic interactions with diverse people and ideas 
3. be curious and unafraid of learning about differences and commonalities 
4. feel comfortable collaboratively solving problems and negotiating differences 
5. be aware of biases, stereotypes, and discrimination when they occur 
6. stand up for themselves and others in the face of prejudice, without becoming biased in turn 
7. experience diverse affectionate relationships that grow stronger as a result of differences
   

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(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.

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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. 

1. Power of Reward 
2. Power of Punishment 
3. Power of Competition 
4. Power of Consistency 
5. Power of Expertise 
6. Power of Legitimacy 
7. Power of Situation 
8. Power of Information

 , , , , to achieve the highest level power is to have the power and not use it.

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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.

1. Marginalization:  Making ideas, people, perspectives, or insights that could threaten the system appear unimportant, irrelevant, irrational, or impossible to achieve.
2. Negative Framing:  Using language that frames new ideas and critics negatively so that nothing that threatens the system can be thought or communicated successfully.
3. Exaggeration:  Stereotyping or exaggerating one part of an idea in order to discredit the other parts and the whole.
4. Personalization.  Reducing ideas to individual people, then discrediting or lionizing them.
5. Sentimentalization:  Using sentimental occasions, ideas, emotions and language to enforce conformity and silence criticism.
6. 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.
7. 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.
8. Legitimization.  Considering only existing practices as legitimate an all others as illegitimate.
9. Simplification.  Reducing disparate, complex, subtle, multi-faceted ideas to uniform, simplistic, superficial,  emotionally charged beliefs.
10. False Polarization:  Limiting people's ability to choose by falsely characterizing issues as good or evil, right or wrong, either/or.
11. Selective Repression.  Selecting individual critics as examples, bullying them for disagreeing or failing to conform and ostracizing them.
12. 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.

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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. 
 

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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:

• Acknowledgment of moral culpability:  "I was wrong to have said or done . . . "  This demonstrates moral character.
• 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.
• Acknowledgment of awareness of the impact of your behavior:  "This is how I understand that it affected you . . . "  This demonstrates empathy or compassion.
• Expression of sorrow or regret at having caused offense:  "I feel sadness that I did this to you . . . "  This demonstrates caring.
• 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.
• Explanation of what you will do to make restitution and/or alter your behavior in the future.
• 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.
• 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.

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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!

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