Southern California Arbitration Mediation and Conflict Resolution : Settle it Now Dispute Resolution Services : Serving Los Angeles, Beverly Hills, Century City : Settle It Now Negotiation Blog

Today's New York Times (Questions of Rent Tactics by Private Equity) reports that investment firms have been purchasing New York City rental properties for the avowed purpose of "turning over 20 percent to 30 percent of the units, five times the typical vacancy rate," to upgrade the rentals up and out of rent regulation, generating tens of millions of dollars of income for the investors.    

Tenants are complaining that the investment firms' tactics to "turn over" those units (i.e., evict low-income residents from their homes) are not only ruthless, but fraudulent as well.  See the full article here.

So what's the little guy to do when BigBusiness decides to set aside ethics to maximize profit?  What individuals have always done when their survival is threatened.  Organize.  According to John Medina, author of Brain Rules, there's more than one way to be the fittest survivor and collaboration has always been our species' strategy.  

"Suppose you are not the biggest person on the block," Medina writes,

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 by 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. 

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 his is exactly what we did

Locating and deploying likely allies is not only good sense when the individual has no bargaining power -- like NYC's low-income tenants -- it's also an extremely savvy move for business negotiators.  As Lax and Sebenius explain in their ground-breaking book 3-D Negotiation

[w]here one-dimensional negotiators mainly focus on actions at the table, [the] third dimension, “setup,” extends to actions away from the table that shape and re-shape the situation to advantage. In deal after deal we’ve seen the same result: once the parties and issues are fixed, and once the negotiating table has otherwise been set, much of the game has already been played.

Therefore, before even showing up at the conference room, 3-D Negotiators take the initiative. They act away from the table to set up the most promising possible situation, ready for tactical interplay. This means ensuring that the right parties have been approached, in the right sequence, to deal with the right issues, that engage the right set of interests, at the right table or tables, at the right time, under the right expectations, and facing the right consequences of walking away if there is no deal.

If the setup at the table isn’t promising, this calls for moves to re-set it more favorably. As we’ll show you, a superior setup plus the right tactics can yield remarkable results that would be unattainable by purely tactical means, however skillful.

See the 3-D Negotiation strategy summarized in the online introduction here.

You don't need to grow larger, richer, stronger or even smarter to gain a bargaining advantage.  If you find the right allies, before you know it, you'll be roasting that woolly mammoth over charcoal briquettes in your own backyard.   

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I'm asked this morning by an ADR colleague whether we can criticize diversity without sounding like racists.  The question itself is problematic because it not only assumes a racial divide, it places "us" on the "white" side of it. 

The question arose from a recent press release by local mediator Elizabeth Moreno -- Is Mediation Losing Its Effectiveness:  Lack of Diverse Mediators.  The release describes an ADR diversity initiative being pursued by Shell Oil.  Shell, noted Moreno, is  

 introducing supplier diversity to the ADR profession [by] extend[ing] business opportunities to certified minority and women ADR neutrals. These efforts, coined as "second tier," allow Shell to influence prime or majority ADR firms, with whom they do business, to also contract with minority and women owned ADR firms within the business community.

In the upcoming months Shell will be targeting  . . . ADR services to participate in second tier efforts. Shell astutely recognizes that by embracing the concept of inclusion, the company will rise to a higher level, reflecting its belief that it "will benefit from diversity through better relationships with customers, suppliers, partners, employees, government and other stakeholders, with positive impact on the bottom line."

I'm assuming that my questioner does not agree with the "affirmative action" aspect of this program.  Having debated the affirmative action issue since I began law school at U.C. Davis where the Supreme Court Bakke decision originated, I know well how divisive this issue can be.  But it is an important issue -- an issue critical to a nation not only "conceived in liberty" but "dedicated to the proposition that all men (sic) are created equal."

So Let's Take a Look at ADR and Diversity

I'll ask the academics over at the ADR Prof Blog to correct me if I'm wrong.  

I understand the academic criticism of mediation to be this:  in the immediate post-civil rights era while greater legal protections have been afforded to women and under-represented minorities, the "people" have been channeled into a system -- mediation -- that lacks the prejudice-flattening constraints of the rule of law.  More disturbing, say critics, is the fact that this "lawless" system is largely presided over by -- excuse me if this offends anyone -- OLD WHITE MEN.

I've learned more about racial bias talking to my liberal (white) "unprejudiced" friends this election season than I have since I participated in the "second wave" women's movement in the early nineteen seventies (remember consciousness raising?)  I do not judge them, nor myself, for our necessarily limited view which just happens to be that of the dominant culture.

I know we still have a serious racial divide because when I talk to my educated and liberal African American friends they say things that shock me. Things like -- the U.S. may have started the AIDS epidemic to rid the world of Africans. OK. I get it.  There's something about their experience of America that is so radically different from mine that I think their point of view is, frankly, just a little nuts.  This is what I do know -- I will never truly be able to see the world from their point of view.

That said, I do think we can criticize people for taking advantage of "diversity" issues to forward an agenda -- or their own personal advancement -- other than forwarding diversity itself. We can criticize those who would deepen the divide to profit from it.

I think Obama is modeling the correct response to racial divide, which is one of the reasons his candidacy impresses me so.  There haven't been many public figures willing to talk about the elephant in America's living room -- racism.  Nor has anyone on the national stage in my memory ever said "your dreams do not have to come at the expense of mine."

If I could write a sentence in a circle at this point, instead of linearly as the language requires me to do, I would do so.  Here is what I understood Obama's response to the question of the racial divide in America to be.

Acknowledge it Heal it Move on Heal it Move on Acknowledge it Move On Heal it Acknowledge it

There are no periods in this sentence because this activity needs to be constant and on-going.  Because we will always be stuck in our own point of view.  Because in-group and out-group prejudice will always be with us. And because the more visible markers there are for "otherness" in others, the more prey we are to the error of dividing the world into "us" and 'them."  

The answer?  Diversity.  Vigilance.  Education. 

Toward that end, here are some ADR Diversity resources: 

Commonality to Balance Diversity

Mediation:  the Great Equalizer?  A Critical Theory Analysis

Toward a More Perfect Union in an Age of Diversity: A Guide to Building Stronger Communities
through Public Dialogue

Center for Dispute Resolution, whose mission is to "to promote and provide education and comprehensive approaches to dispute resolution that constructively serve the needs of our culturally diverse society."   

ACCESS ADR:  A 2004 Diversity Initiative Launched With The Support Of The JAMS Foundation And The ABA

Striving for DIVERSITY in ADR & Why it Matters: An Interview with the Hon. Timothy K. Lewis, the Chairman of the AAA's Diversity Committee [who] speaks candidly about his interest in diversity in the decision making professions, and why allowing minorities and women an opportunity to participate is so vitally important.

The Diversity Task force of the International Institute for Conflict Prevention and Resolution ("CPR") whose mission it is to "adopt businessdriven initiatives to increase the ethnic, gender, and social diversity of mediators, arbitrators, and those involved in alternative dispute resolution, both within CPR institute and on a national scale."

Compilation of mediate dot com articles on diversity in mediation 

THE GREGORY SOBEL DIVERSITY IN MEDIATION SCHOLARSHIP APPLICATION

Slouching Towards Inclusion by Carol Miller Lieber & Jamala Rogers

Diversity Resistance

The Media Diversity Institute

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A friend and former legal partner was fond of saying that the biggest lie in the business was I don't take it personally. After four years of full-time mediation, I have another "Big Lie" to add – it’s only about money.

The social scientists who sutdy these things say that the way in which we respond to adversity "often reflects the fact that [our] prestige or status has been threatened more than the fact that [our] purchasing power has been diminished." Miller, Disrespect and the Experience of Injustice, Annual Review of Psychology (2002). In other words, the corporate C.E.O., like any other kid on the block, will retaliate when he feels he has been disrespected.

Conversely, research shows that business people are reluctant to recommend legal action if they believe that they and their company have been treated respectfully. Although this is particularly true of fiduciary and special relationships such as lawyer-client and business partnerships of all kinds, it also applies to arm's length business transactions.

Every commercial interaction, we are told, "represents a social exchange and every form of social behavior represents a resource." Id. People's satisfaction with the outcome of a commercial transaction therefore "depends highly, and often primarily, on their perception of the fairness of those outcomes." Id.

When we, as litigators and counsellors, actively listen to what our clients and our adversaries are saying about the rights and responsibilities of all participants in an ethical business community, we stand the best chance of engendering mutual trust and respect among the parties. In that atmosphere, the probability of becoming embroiled in litigation decreases precipitously. When the parties believe that their concerns are being heard and respected, losses that might otherwise become lawsuits, are far more likely to be addressed as the understandable consequence of the inevitable mistakes and miscommunications that attend all human enterprises.

As much as we'd like to believe that we don't take it personally or that it's only about money, the good news for all of us is that we do and it's not.

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I'll add these to my blog roll when I'm not rushing out the door.  For now, check out Jonathan Farrington's Blog post on Negotiation - Dealing with the Early Phases, a resource I have to thank the Business Growth Blog for, cited at the end of more excellent advice on Negotiating:  Thinking it through. 

Here's a teaser to get you to the Business Growth post:

Remember that classic scene in "Erin Brokovich" where the high powered, electric utility law team shows up in force to negotiate with the small town law firm? Ed Masry sees them coming in and gets all his staff to file into the board room so they have more "lawyers" on their side of the table… and overpowers the power brokers.

Would you like to have a system that helps you think on your feet like that?

Here 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.

For the list of 8, click here!

Thanks guys!  Great advice in both posts with more good negotiation resources at the end of the Business Growth Blog post.

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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. 

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Dear Janis,

As you'll notice, I've posted on my blog the first three "chapters" of the ABC's -- due out from Janis Publications under the more genteel title "A" is for Donkey in July.    

Not meaning to compare myself to one of the greatest writers of all-time -- Charles Dickens -- other than in our mutual need for reader recognition, I'm hoping you will find that the "serialization" of the ABC's will encourage readers to buy it rather than discouraging them from doing so.  As you'll remember,

[a]ll of Dickens' novels made their first appearance in serial form. Nine came out in monthly installments: Pickwick Papers, Nicholas Nickleby, Martin Chuzzlewit, Dombey and Son, David Copperfield, Bleak House, Little Dorrit, Our Mutual Friend, and The Mystery of Edwin Rood. Five were composed for weekly serialization: The Old Curiosity Shop and Barnaby Rudge in Master Humphrey's Clock; Hard Times in Household Words; and A Tale of Two Cities and Great Expectations in All the Year Round. . . . Oliver Twist appeared in the monthly issues of Bentley's Miscellany, which Dickens was editing at the time. Although he took up the weekly form with the intention of getting into more frequent correspondence with his readers, Dickens never ceased to fret under the restrictions of tailoring his narrative into briefer segments; and indeed, with Hard Times he returned to the practice of blocking out his stories as if for monthly installments. Thus, the novelist's preferred and characteristic method was that of monthly serialization, calling, as he said, for "the large canvas and the big brushes."

Simply put, as a writer of installment novels who invited reader comments as he wrote, Charles Dickens may have been the first blogger for whom instant gratification was also "too slow." 

We don't, however, have to return to Victorian England for serialization precedent.  Tom Wolfe's phenomenal best-seller The Bonfire of the Vanities  was serialized in 27 installments in Rolling Stone magazine starting in 1984. The novel was a bestseller and a phenomenal success, even in comparison with Wolfe's other books.  Although it was thereafter made into one of the most dreadful movies of all time, we cannot blame that failure on the serial form the novel originally took.

Now that I've compared myself to two of my favorite authors, I will have to display a little humility.  Unless I can merge blogging with book writing, I don't think this book will be ready this July, this summer, this fall or next winter.  I think I'm only going to get it written if I do it this way.  

I hope that's alright with you!  The book itself will be better written (there are editors and publishers for a reason) ; far better illustrated; and, will make a fabulous gift for any friend, neighbor, co-worker, or mother-in-law the impulse-Borders'-buyer has in mind when they first see the ABC's irresistibly offering itself at the check-out stand.

I'm also hoping to convince you that the word "Asshole" will draw more customers than it will repel.  But that's why I'm in contact with readers.  I'm certain they'll tell me.

All best to you and your lovely husband Ray,

Vickie

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You recognize this guy.

He’s the  one who stole your parking place. He cut you off in traffic. Just last night at the Olmstead’s party, he interrupted your story about your trip to London for the sole purpose of changing the subject to his trip to Cambodia. 

You, on the other hand, are not an asshole. You are respectful of other people’s property, return telephone calls promptly, and honor the compacts that grease the wheels of social interaction. These are rules of etiquette, mostly, some of which have been turned into law, like “first in time, first in right.”

Still, you’re not inflexible. You can make the reasonable exception. If you’re standing in the check-out line with a shopping cart carrying enough food to feed a family of ten for a month, you don’t say “no” to the young woman holding a bottle of spring water when she asks if she can cut in front of you. If you refuse her this reasonable courtesy, you are the asshole.

From these few examples we see that an asshole is not necessarily a person or even a behavior. No one can be an asshole alone in his room. He needs someone to be an asshole to. An asshole is a social relationship in crisis. An asshole is a dispute.

Let’s go back to the asshole who steals your parking place.

It’s Christmastime at the Farmers’ Market in Los Angeles. Although the day is warm and the mood festive, the afternoon sun is reflecting harshly against your windshield as you make your third circuit of the parking lot. You’re starting to get really tense. You need to pick up the kids after soccer practice. If you don’t find a place right now you’ll have to turn around and leave, your errand undone.
You’re not, of course, alone in this contemporary hunting and gathering adventure. If you were, you would already have slid your white Kia into one of the many available spaces half an hour ago, picked up the ornaments you need to finish trimming the tree, and be headed over to the soccer field right now. But it’s not just you. There are at least ten other drivers circling the lot with you, and another five or six patiently idling their cars in the aisles.

You think you’re in a parking lot but you’re really in the field of conflict.

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In the new issue of The Complete Lawyer, my fellow Human Factor columnists and I talk about what new tricks we had to learn and old skills we had to re-invent when we took the journey from legal to mediation practice.  I give you my section of the column below, encouraging you to link to the Human Factor here to read what my my good friends and colleagues Gini Nelson, Stephanie West Allen and Diane Levin have to say.

My first day of mediation training progressed in somewhat the same fashion as my first few weeks in Civil Procedure. I remember struggling with the theoretical bases of jurisdiction in Pennoyer v. Neff one day only to be told the following week that Pennoyer was no longer the law. “Why,” I remember thinking, “did we even bother with Pennoyer when this Buckeye case about an exploding boiler now seems to be the law? Or would it be replaced next week as well?”

Law school, which taught me to “think like a lawyer,” was the precise opposite of my new mediation studies. Now, it seemed, I was being trained to stop “thinking like a lawyer.” Still, mediation, like the law, was full of conflicting ideologies from which it appeared I was required to choose.

It was easy for me to be evaluative: I had 25 years of legal practice in my backpack. I learned Dr. Cialdini’s “Principles of Ethical Influence”—Reciprocation, Scarcity (the rule of the rare), Authority, Commitment, Empathy, and, Consensus. These power principles helped the mediator to “make the other side see reason” when called upon to do so.

But the evaluative style was not the only prescribed route to mediation mastery. There were many who favored facilitation. The facilitative mediator first creates an atmosphere of hope and safety before helping the parties locate areas of agreement and mutual benefit. Here, the mediator is a follower or helper on the path to resolution, like the protective figures who appear early in a hero’s journey to enlightenment.

You can’t immerse yourself in mediation for long before you hear the clamor of the transformative crowd. Facilitative mediators, say the transformative folks, too often present themselves as wizards who intrude upon the parties’ conflict with their own agenda—usually “resolution be damned, let’s settle this darn thing!” The transformative mediator lets the session wheel out of control if that is where it is eager to go. Conflict is not seen as a state to be avoided or suppressed. Like a loving mother following the course of her child’s flu, the transformative mediator provides the parties with encouragement, opportunities to rest, lots of fluids and a metaphoric place to lay their heads as the conflict runs its natural course.

When I first brought this tangle of methodologies to the few master mediators I know, they all made short work of it with the scalpel of experience. “You are the technique,” they instructed. “Just stay in the process. Don’t guess. Ask questions. Listen. Don’t give up before the miracle of mediation happens.”

Now, four years into a full-time ADR practice, I am still struggling to embrace the entire dispute—the business or people problem that found its way to an attorney because of the justice issues with which it was burdened. I often feel that I’m walking a razor’s edge. I will never stop “thinking like a lawyer.” Nor will I stop pursuing this new way of thinking—one that looks for the opportunity to finesse the legal impasse by using the problem itself as an opportunity to broker a deal.

Why mediation? For me, it’s simply a broader canvass on which to paint a new picture. How mediation? In baby steps, one after the other, in just the same way I learned to be a litigator and trial attorney. How can the Human Factor help with your own life and legal practice? Stick around. Miracles are common here. We think you’ll enjoy the ride.

 

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The Los Angeles County Bar Association will soon be bringing its members the dynamite on-line work-life balance journal The Complete Lawyer.

Even if I weren't a columnist for TCL (the Human Factor here) I'd still urge you to flip through the online "pages" of this tremendous resource.  Take a look at the following for instance.

Are You As Stressed As Other Attorneys? by Ellen Moran, Lyle Miller and Alma Dell Smith 

We’re Culturally Inclined To Separate Mind And Body by Richard Strozzi-Heckler

My own husband's favorite offering -- When You Lose Sleep, Your Work And Health Suffer Dramatically by Thomas M. Heffron ("yes, honey, I'm coming to bed!")

Possibly A Firm’s Most Effective Health Insurance by one of my co-columnists, Stephanie West Allen who has penned this article with her Brains on Purpose colleague Jeffrey Schwartz

How To Master Stress by Maynard Brusman

Ask The Coaches (about networking) by Debby Stone and Laura Biering

Fix The Leaks In The Pipeline (on minority law school enrollment) by Carl Cooper

Hourly Billing Is The Opiate Of The Profession by Ronald J. Baker

Invest In Training Programs During Tough Economic Times  by Kathleen Brady

Five Steps To Achieve A Sound Mind by Cathy Wright

Master The Fine Art Of Appreciation by Judi Craig 

Do You Think Like A Solo Practitioner?  by Susan Cartier Liebel

Women Lawyers Have Natural Allies In The Millennial Generation by Lauren Stiller Rikleen 

What’s On Your Mind? by Arnie Herz

Beware Of Bloglash by Dawn Wagenaar

. . . . and much much more,

including my reviews of Lauren Stiller Rikleen's brilliant Ending the Gauntlet:  Removing Barriers to Women's Success in the Law

and

Ken Cloke's challenging new book Conflict Revolution:  Mediating Evil, War, Injustice and Terrorism.

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Canadian Lawyer Michael Webster asks about Jay Welsh's comment (see videos) that "in a mediation the plaintiff has to settle for far less than they thought and the the defendant has to pay far more than they ever thought." 

"So," asks Webster, "this would be the lose/lose theory of mediation?"

I know when Michael's being sarcastic but decided to respond seriously by noting that Jay himself  used the phrase "lose-lose." 

I went on to say that the most valuable service I can often perform is to "break through confirmation and other biases/ ** that have interfered with case analysis and caused impasse."

Michael's reply was important:  

When the issues have been crystallized into legal ones so well, you are in a lose/lose situation. The manager's dilemma then becomes counsel's dilemma: how do I manage to convince my client to lose more than I ever predicted and still maintain my own credibility.

Though I'm a little tempted to be flip ("this is why they pay me the big bucks") Michael's question nails one of the most difficult issue attorneys must deal with in settlement negotiations.  It is certainly one of the most delicate tasks a mediator is called upon to perform.

First Let's Re-Visit Interest-Based vs. Distributive Settlement Negotiations, Asking Ourselves Whether There's Really Such a Thing as a "Pure" Money Case

My husband, with 35-years of complex commercial litigation practice under his belt is my attorney-mediator-communication weather-vane.  So I asked him over pancakes this morning, "Honey, do you think there's any such thing as a 'pure' money case?"

Two months ago, he would have said "yes," and given me that "you've changed too much" look.  I don't know why he said "no" this morning.  But here was the gist of his response.

"Every case involves someone's interests, whether it's the GC or a company executive, or even a 'little guy' down the management chain who made a decision that impacted the course of the dispute four or five years ago.  So of course there are innumerable non-monetary concerns that impact why the case is settled and when and for how much.  Then again, maybe I've just been living with you for too long."

So let me first say that there is no such thing as a non-interest based negotiation.  There are only negotiations in which we ignore the fact that party interests are at play.  

This is one of those nature/nurture mind/body duality questions.  Yes, it's "just" about money.  And yes, the money represents party interests.  It's nature and nurture, mind and body, budgetary constraints and party goals and relationships.

Here's another thing.  Although the disputing parties may never again be in relationship with one another, the people on each side of the conflict-fence are not only in daily contact, their well-being, livelihoods, self-respect, reputation, promotions, demotions, and salaries depend upon their on-going relationships with one another, which are all in play in every negotiation of every commercial dispute.

And one more thing.  Conflict cannot arise in the absence of a relationship.  Even though the disputing parties may never again be in relationship, they're sure the heck in relationship now.   And the relationship of the disputing parties from the moment conflict arises to the minute it settles has everything to do with its resolution.

There is no "zero-sum" game outside the realm of the virtual or the hypothetical.  There is no "rational" man.  People -- messy, conflicted, emotion- and interest-driven people -- are the necessary pre-requisite to conflict.  How we deal with apparent lose-lose conflicts, "manage" party expectations and deliver bad news in a way our clients can hear it in the next post.  Immediately hereafter.  

_______________________

**/   "Confirmation bias" refers to our "unwitting selectivity in the acquisition and use of evidence" in ways that are "partial to existing beliefs, expectations, or a hypothesis in hand."  See Confirmation Bias: A Ubiquitous Phenomenon in Many Guises by Raymond S. Nickerson of Tufts University.

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Thanks to Anne Reed over at Deliberations for forwarding this April 22 Psychology NewsWire, It Pays to Know Your Opponent: Success in Negotiations Improved by Perspective-Taking, But Limited by Empathy.

It Pays refers to recent work done by Kellogg School of Management Professor Adam Galinsky, who has demonstrated (with colleagues William Maddux -- (INSEAD -- Debra Gilin -- St. Mary's U. --  and Judith White -- Dartmouth) that success in negotiations depends on focusing on the head and not the heart. In other words, it is better to take the perspective of negotiation opponents rather than to empathize with them. (You may remember Galinsky as the academic responsible for demonstrating that the person who makes the first offer will (nearly) always get the larger share of the delta between the two parties' "bottom lines."  See Making the First Offer here). 

Now Galinksy and friends inform us that we are far more likely to reach a negotiated resolution to a conflict if we use our heads rather than our hearts.  As It Pays reports:  

Perspective-taking, according to the study published in the April 2008 issue of Psychological Science, a publication of the Association for Psychological Science, involves understanding and anticipating an opponent's interests, thoughts, and likely behaviors, whereas empathy focuses mostly on sympathy and compassion for another.

"Perspective takers are able to step outside the constraints of their own immediate, biased frames of reference," wrote the authors. "Empathy, however, leads individuals to violate norms of equity and equality and to provide preferential treatments."

The researchers performed a total of three studies designed to assess the relationship between successful negotiations and perspective-taking and empathy tendencies. In two of the studies, the participants negotiated the sale of a gas station where a deal based solely on price was impossible: the seller's asking price was higher than the buyer's limit. However, both parties' underlying interests were compatible, and so creative deals were possible. In the first study, those participants who scored highly on the perspective-taking portion of a personality inventory were more likely to successfully reach a deal. In contrast, higher scores on empathy led dyads to be less successful at reaching a creative deal. 

Why Enlightened Self-Interest Trumps Sympathy

Just when you were about to stereotype "negotiated resolutions" as commie-pinko limp-wristed new age aquarian left-of-liberal kum-by-ya marshmellow toaster solutions to the problems of (excuse me fellas) real men -- along comes new research once again demonstrating that negotiation requires hard heads rather than soft hearts. 

Why?

Because our competitive natures ("I need my stuff to survive") will almost always trump our collaborative inclinations ("we need each other to survive").  If this weren't so, the world wouldn't be divided into its current "pie pieces" -- the first, second and third worlds for instance.  

More particularly, because distributive non-interest based bargaining is all about getting "our share" of a fixed pie while interest-based or integrative negotiations require the parties to:  (1) learn about and attempt to satisfy their bargaining partners' often non-apparent needs and desires; and, (2) to collaborate in an effort to find ways to satisfy those needs and desires in novel and creative ways, reaching an integrative agreement becomes much more likely than reaching a purely distributive one. 

Why?

Because the integrative deal will -- by its very nature -- serve more of both parties' interests than would its distributive counter-part.  

Perspective-Taking, Sympathy and Foreclosure

I don't know my neighbors well.  They have a small family with very young children and keep pretty much to themselves.  I understand from the local grapevine, however, that they're selling their house because one of them lost their job and they can't make the mortgage payments.   

If we lived in another country or if the neighborhood belonged to certain religious sects that make it their business to take care of their own, we might all come together to help the neighbors save their house.  But we don't.

We have and express a lot of sympathy when we discuss our neighbors' plight.  "Must be hard for the kids," we say, "and the parents have worked so hard to improve the property.  It would be a shame if they lost their equity."

Our sympathy, however, does not lead us to trump our self-interest (which includes simply "keeping to ourselves") in favor of the interests of the neighbors.

If, however, we learned that the neighbors were about to sell the house to a local fraternity, you can put easy money on the neighborhood mobilizing into action to find a solution.  And once the neighborhood starts looking for an affordable solution to a neighborhood problem, the chances that the interests of the distressed family and their (temporarily) better-off neighbors will intersect and that new resources will be brought to the table ("hey, George, I know a lawyer who specializes in these things" or a banker or a politician or a journalist for the L.A. Times) increase exponentially. 

Heck, instead of hiring lawyers to stop the sale to the fraternity, we might put together an emergency neighborhood loan-fund.   Or simply help find the unemployed neighbor a new job.  There are a lot of resources in my neighborhood.  And many good-hearted people.  But I'm afraid modern American folk-ways just don't allow for a neighborhood solution to one of its member's problems.  Until, that is, our own self-interests are threatened.

So it might seem counter-intuitive to say that mentally putting ourselves into another's shoes to ascertain their interests needs and desires (perspective-taking) is more likely to create a "deal" between people than simple sympathy. 

But we didn't survive as a species because we're particularly loving.  We survived as a species because its in our best interest -- our only interest -- to cooperate with one another. 

Or, quite simply, we die.

Which reminds me that it's Earth Day.  Make a contribution to the planet and our collective and individual survival as a species today by clicking on the image below!

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From AAA arbitrator and Judicate West mediator Jay McCauley's website:  The Role of Specialized Settlement Counsel

At bottom, virtually all litigation is a tool of negotiation. The numbers say it all: Ninety-five percent of all filed lawsuits in fact settle before trial, and upwards of ninety-nine percent perhaps should. Nonetheless, the specialized and challenging task of negotiation is normally left to the “trial lawyer” – a person whose training and orientation are focused on trial preparation, and whose efforts at negotiation are almost always secondary and often ineffectual.

The problem is not that trial lawyers don’t settle lawsuits; they almost always do. But when the mission of settlement is left to the trial lawyer, opportunities for early and optimal settlements are lost.

The solution for clients is not simply to engage trial lawyers who are sensitive to the task of negotiation and skilled in that art. Regardless of such lawyers’ negotiating skills, the reality is their task cannot be optimally accomplished while they are otherwise burdened with the "role” of being the trial lawyer.

The reason for this is basic: negotiation, by its nature, is driven by an inescapable tension – the tension between cooperation and competition. To display enough cooperation to promote early settlement, a trial lawyer almost inevitably must risk the client’s competitive position in the bargain. When a trial lawyer extends a proposed resolution to the adversary, the adversary will focus not only on the advantages of the proposal, but also on the firmness of the trial lawyers’ resolve. When a proposal is attractive enough to be tempting in itself, the fact that it is offered at all undermines the trial lawyer’s apparent resolve to fight, thereby tempting the adversary to do the wrong thing: defer or avoid serious settlement discussion.

Trial lawyers know this. And a vicious cycle therefore develops – to protect against the risk of appearing to lack resolve, they naturally tend to make their opening bids extreme. As a consequence, their adversary is characteristically left with nothing but two bad options: either to respond in kind (with an equally extreme and polarizing counter-offer) or not respond at all. Further negotiation is thereby sidetracked, while each party spends more time and treasure on “trial preparation” – i.e., extensive and expensive discovery exercises – to show further resolve and thereby bring the other side to its (apparently missing) senses.

Repeated experience tells us this vicious cycle is rampant in litigation. And an extensive body of literature from the fields of game theory and cognitive psychology tells us why: litigants are playing out the consequences of reactive devaluation – the dynamic wherein an otherwise attractive proposal becomes unattractive by virtue of its being presented by the adversary. See Lee Ross, “Reactive Devaluation in Negotiation and Conflict Resolution,” in Barriers to the Negotiated Resolution of Conflict (Kenneth Arrow et al, eds., 1995).

What, then, is the solution? Police departments bargaining for a confession from the suspect really do separate the “good cop” role from the “bad cop” role. Clients exposed to major lawsuits would do well to separate the roles as well – by engaging a specialized settlement counsel in addition to the needed trial lawyer, and commissioning the settlement counsel to bring his or her skills to bear on a single critical objective: early and optimal resolution of the dispute.

Who are settlement counsel? They are, by background, experienced trial lawyers capable quickly to become intimately familiar with the subject matter of the dispute at hand. They are also more than this: specialists in the methodology of risk-based claims valuation analysis and in the science and art of interest-based negotiation. Ideally, they are also experienced in the techniques of mediation advocacy, and familiar enough with the mediators in their community to advise and represent the client in achieving mediated resolutions in cases that warrant that treatment.

But they are not the trial lawyers for the case. By design, their mission is a short one. If they do not achieve a settlement quickly, they pass the baton to the trial lawyer, along with the full benefit of their early analysis. Their role is revealed to the adversary from the outset. It is because they are nothing more and nothing less than settlement counsel that they can afford to use some needed cooperative techniques to foster early resolution. No lack of resolve is conveyed by that effort. They can demand and measure a response in kind from the adversary, and exact a unique penalty if that response is not forthcoming: their own departure. The adversary knows from the outset that if, through recalcitrance, the mission of early settlement is not achieved, a new lawyer will appear – one who is single-mindedly focused on an entirely different mission: victory at trial.

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(top: we assimilate and organize data in our own favor:  click here for full size chart)

Despite our own beliefs that we've adequately analyzed the weaknesses in our own cases, we have all been told at one time or another that we are "buying our own bull%#@^."

Is there a remedy?

First the Social Science Research

According to Bargaining Impediments and Settlement Behavior, studies of self-serving bias on estimates of probable damage awards provide strong evidence that:

• we assimilate information based on our existing biases (remember the OJ verdict);
• even when told we're doing so, we continue to organize information in such a way that it supports our existing opinions;
• the receipt of additional information, without more, will simply "confirm" existing biases; and,
• to make a difference in the parties' views of the merits of their case, mediation practices must include techniques for de-biasing the parties.

The Research

Research subjects were given the identical "case" materials and randomly assigned roles as "Plaintiff" or "Defendant." The subjects were put into bargaining pairs and asked to: (1) estimate a "fair" award by a Court to the Plaintiff; and, (2) to attempt to settle the dispute.

The experimental results and their implications were reported as follows:

• Plaintiffs' predictions of the [probable award] were, on average, $14,527 higher than defendants'.
• Mean plaintiffs' fair settlement values were $17,709 higher than defendants'.
• Not surprisingly, the settling parties' assessments of what a fair settlement would be and what a judge would likely award were closer together than were those who did not settle.
• Among the 59 pairs who settled, the mean difference between the plaintiffs' and defendants' predictions of the judge's award was $9,050.
• For the 21 pairs who did not settle, the average difference was $29,917.
• The strong correlation between the magnitude of the bias in a bargaining pair and non- settlement supports the conclusion that the self-serving bias often prevents parties from settling disputes at the most advantageous time and for optimal mutual benefit.
• Even when asked to tell the "other side's" story in an essay before predicting possible awards or when told about the existence of the bias, the subjects continued to evaluate the case according to their own material interests.
• Only in one experimental setting where subjects were both informed of the bias and made to write an essay substantiating the other side's case was the effect of the bias mitigated.
• That subjects were unable to rid themselves of the bias when informed of its existence demonstrates that it is not a deliberate strategy.

Other findings of the experiments point to biased assimilation of information as the likely psychological mechanism underlying the self-serving bias.

When subjects were presented with eight arguments favoring the side they had been assigned (plaintiff or defendant) and eight arguments favoring the other side and were asked to rate the importance of the arguments as perceived by a neutral third party, there was a strong tendency to view the arguments supporting one's own position as more convincing than those supporting the other side, suggesting that the bias operates by distorting one's interpretation of evidence.

This study suggests that litigants may not be seeking to maximize their own payoff, but are rather trying to obtain what they deem to be fair.  

Conclusions from the Experimental Data 

The application of the self-serving bias to bargaining behavior led the authors of the study to tentatively conclude that 

• exchanges of information are not in themselves necessarily conducive to settlement, i.e., obtaining more discovery before the dispute is "ripe" for settlement may be neither cost-efficient nor an effective settlement strategy;
• the importance of information exchanges to the settlement of a dispute can only be analyzed in terms of how that information may effect preexisting biases, which suggests that attorneys pay greater attention to their opposition's case theories when analyzing information obtained during discovery; and,
• to act as an effective counter to the self-serving bias of both "sides," mediation practices should be, at least in part, directed at de-biasing parties rather than simply facilitating information exchange.
  

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Can you marry a blog?  If so, we're ready to propose to Deliberations, which is packed with more good advocacy tips than we can incorporate into our negotiation blog advice.  

Today, Deliberation's Anne Reed brings us the following useful information in The Brand Name Brain.  

When we're exposed to a famous logo for even a microsecond, [researchers have] concluded [that] we act out the qualities we've learned to associate with that picture. . .

[R]esearchers [asked] subjects [to] watch[] a screen explaining what they were supposed to do -- but also on the screen, too fast for them to notice, corporate logos flashed momentarily. When subjects turned to the assigned task, which logo they'd seen made a difference:

Subjects who saw the Apple logo, symbol of creativity, thought of more possible unusual uses for a brick than did subjects who saw the IBM logo, symbol of corporate sameness.
Subjects who saw the Disney logo, which we associate with earnestly pure things like Mickey Mouse and Snow White, confessed to more bad behavior (like calling in sick) than did subjects who saw the E! network logo, which we associate with celebrity gossip, honest or not.

What it means in real trials

Can lawyers use this? I say yes, but maybe not in the way you think.

There are trial lawyers out there who can use priming to underscore ideas and themes in trial, while still keeping track of where their cross-examination outlines are and whether the client understands what's going on and who's doing the jury instruction argument and whether they brought enough matching socks. . . . 

For the rest, here's a message from priming research we can all use. Jurors make decisions without knowing why.

And here's what in means to mediation advocates

Attorneys' initial contacts with the mediator are more important than many realize. As are mediation briefs.  But not to persuade the mediator of the rectitude of your position.  To "prime" the mediator to be more part of your negotiation team than your adversary's.  Of course we're neutral.  But, like research subjects and jurors, we make decisions (and form alliances) without knowing why.

What are your mediator's interests?  To settle the case, of course.  But to do so in a way that makes all parties and all attorneys satisfied with the result and with the mediator's services.  So what subliminal messages do you want to send to the mediator before negotiations begin?

• I'm reasonable, as is my negotiation strategy
• I understand that there are weaknesses in my case, which I'll admit to you, Ms. Mediator, for the purpose of attempting to resolve this lawsuit
• I'm collaborative
• I'm bringing my client, who is prepared to re-engage in the conflict, understanding that defensiveness and self-righteousness are not attitudes calculated to achieve peace in the Middle East nor to settle commercial litigation.
• I'm having trouble with my client (for a pre-mediation telephone conference only) and would like you to help me coach him/her/it on any of the following:
  • the merits of the case
  • the dangers of proceeding to trial
  • the unredeemably evil nature of the opposition
  • the art of haggling
  • the genuine interests -- needs, desires, fears, etc. -- underlying the client's negotiation position
• I understand a little bit about my adversary's
  • style
  • motivations
  • position and would like to help you work with him/her/it effectively.
• I'll be prepared to make the negotiation moves necessary to settle the matter without fruitless bargaining in the nano- or strato-spheres.
• I recognize that a handshake, a conciliatory manner and the expression of genuine empathy by my client for the party on the other side can dramatically effect negotiations and have alerted my client to the benefits of setting aside rancor, suspicion and judgment for at least a few hours on the day of the mediation.
• if anyone is going to take the larger share of any distributive bargaining delta, it ought to be me.

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Once again, from my article Shame by Any Other Name (etc.) here:

Understanding the differences between guilt and shame make even ordinary attempts to apologize and mend relationships damaged by careless, selfish or unkind acts, easier to understand and manage.

Use as an example the revelation that a spouse has had an affair. The anger, even rage, of the betrayed partner in this scenario is both understandable and familiar to all of us. A typical shame-suffused unfaithful spouse would more readily respond with shame-based confessions of powerlessness and helplessness than a guilt-ridden partner ("I couldn't help myself; I'm bad through and through; I wouldn't have done it if I were able to stop myself, but I was helpless against my desire") or aggression ("if you weren't so involved with your work, if you weren't so cold and distant, if you satisfied my needs more often, I wouldn't have had to seek solace in the arms of another").

Not only are these shame-based confessions unlikely to lead to a change in the unfaithful spouse's behavior, they are almost certain to further anger the betrayed spouse who likely wishes, at a minimum, an acknowledgement of wrong-doing, accountability, sincere apology and a promise not to offend again.

A typical guilt-based confession would have an entirely different focus. The guilty party, knowing himself to be the "locus of control," is far more apt to hold himself accountable for wrongdoing once it has been discovered. Guilty expressions of remorse would include "I'm sorry; I know I could have behaved better but I chose to ignore my better judgment" or "I have felt you to be distant and cold and I do feel my needs are not being met, but I understand that is no excuse for this bad behavior."

An individual who feels in control of his actions is more likely to feel accountable for them, and therefore, more likely to accept responsibility for them, apologizing and atempting to make amends.

As I go on to note in recommending to restorative justice practitioners some of the practices of 12-step programs, the widely misunderstood custom of "making amends" has much to recommend it for "restoring" criminal offenders to their communities.

As the Big Book [of Alcoholics Anonymous] explains:  

[We must] launch ... out on a course of vigorous action, the first step of which is a personal housecleaning, which many of us had never attempted. Though our decision [to stop drinking] was a vital and crucial step, it could have little permanent effect unless at once followed by a strenuous effort to face, and to be rid of, the things in ourselves which had been blocking us. Our liquor was but a symptom . . . . Putting out of our minds the wrongs others hand done, we resolutely looked for our own mistakes. Where had we been selfish, dishonest, self-seeking and frightened? Though a situation had not been entirely our fault, we tried to disregard the other person involved entirely. Where were we to blame? The inventory was ours, not the other man's. When we saw our faults we listed them. We placed them before us in black and white.  

The moral accounting created by the recovering alcoholic "working" Step Four is not simply a record of "bad deeds" committed. It is a means to put one's actions in perspective and to enable the alcoholic to create a new moral order from the ashes of his life. By way of Step Four, the AA member can mitigate his harsh self-condemnation while nevertheless taking responsibility for his misdeeds.

Indeed, in making amends, the Big Book advises [12-step] members to be "sensible, tactful, considerate and humble without being servile or scraping."  Only after putting his faults down in "black and white," admitting his wrongs honestly and becoming willing to set matters straight, does the [recovering individual] begin to learn "tolerance, patience and good will toward all men." 

The [12-step] member does not acknowledge these "sins" alone nor store his "inventory" in a bottom drawer, continuing to hide his shame. Rather, Step Five makes quite explicit the need to admit these wrongs to another human being. This step is the first opportunity to be freed from one's shameful secrets and any continued resistance to group participation. 

By reading their inventory to sponsors who have "been there," members recognize they are fallible rather than evil. They come to understand that they can set right many, if not all, of the things they put wrong. 

This set of suggestions pertains to the soul-searching necessary to locate "one's own part in" conflicts, particularly those concerning harm caused by one person to another.  The actual making of amends -- successful apologies -- is another of the 12 steps in all manner of recovery programs.

[After] a [recovering] member [of a 12-step community] brings his . . . list [of persons he has harmed] to his sponsor . . . [they discuss and] agree upon the details of restitution. 

For those victims who are dead or untraceable, amends must be indirect. So-called living amends are required under these circumstances. Members vow to be generous where once they had been selfish, faithful where treacherous, honest where deceitful. They agree to practice "restraint of pen and tongue" lest they lash out too quickly or too harshly at those they love. 

For other wrongs, making amends is direct and simple, if not easy. Money is paid back, even if it takes years. If a crime was committed, after much contemplation and discussion with sponsors, friends and family, some members consider confession to the authorities and may serve jail or prison time as a result. 

Members do not stop there. Recognizing that God will not relieve them of human fallibility, a commitment is made in Step Ten to continue to take personal inventory and when wrong to promptly admit it. Members keep their own side of the street clean and try not to take a broom to anyone else's. They do not "take another person's inventory." 

Finally, members agree to "be of service" to others. "Being of service" is not only repeatedly stressed in [12-step communities] it is recognized as one of the most effective avenues to achieving lasting [recovery].  Many opportunities exist for members to serve others - from making the coffee or setting up chairs at a meeting, to becoming a sponsor one's self, assisting even newer members in working the steps.

Through these twelve steps, [12-step groups] achieve[] the moral education and esteem building necessary for a productive norm-abiding life in a community of mutual trust and respect.

For references used in this article, click here.

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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 (