Revenge or Justice?

Despite the benefit of having a PVR to fast-forward through commercials, I recently stumbled across a lawyer’s television ad based on revenge as a motivator. The ad opened with a miserable looking middle aged woman sitting on the couch. Her equally foul husband walks in, grabs the remote, sits down and shoots her a dirty look. She replies in kind. Cut to the picture on the television they are watching – a smiling, attractive woman says “Last Christmas Eve, my ex served me with divorce papers and ruined my Christmas. Two days later, I retained [fill in the blank] and Associates and ruined his New Year.” (smiling). The couple on the couch pauses a moment, then both jump for the phone – presumably to be the first to retain the hatchet man in the ad. The commercial reminded me of an old lawyer joke (and as a former lawyer, I have heard more than my share). Q: Why do lawyers have such a bad reputation? A: The 99% keep giving the 1% a bad name. (I should point out that ninety percent of the lawyers I know fall into the 1% – I guess I’ve been lucky.)

I found it interesting that the lawyer’s ad tapped into a potential client’s need to make their spouse  suffer, rather than appealing to a positive goal (an efficient, fair resolution). In my work as a conflict resolution professional, I often hear people speak of the desire for “justice”. Their version of justice often involves a degree of suffering for the the other person. Revenge is perhaps a way for a victim to take back power they feel they have lost. The question remains, however: does revenge achieve that end? Or is it closure that allows a victim to heal and move forward?

Those familiar with The Princess Bride may remember the character, Inigo, who has spent his entire life seeking revenge (“Hello. My name is Inigo Montoya. You killed my father. Prepare to die.“) At the end of movie, when asked about his future, he responds “I have been in the revenge business so long, now that it’s over, I don’t know what to do with the rest of my life.”

Fortunately, two movements have emerged to offer different approaches to justice.  Restorative justice (also known as victim-offender mediation) became formalized in Canada in the late 1980’s and is now a recognized part of the criminal justice system. The goal of restorative justice is to repair the wrong, not simply by punishing the offender, but by including the victim in the process and creating solutions that meet the needs of the victim and community. Outcomes may involve apology, explanation, restitution or other acts of service. Instead of being objectified, the offender must listen to the victim, understand the impact of their actions and participate in an outcome designed to hold the offender accountable for their behaviour. The focus is healing, not punishment.

Similarly, in the area of family law and divorce, an approach called “collaborative divorce law” is rapidly gaining acceptance. In collaborative divorce law, lawyers for both sides agree to assist the clients to resolve conflicts by employing cooperative techniques rather than adversarial strategies and litigation. All parties and their lawyers enter into a “Participation Agreement” where it is agreed that if a settlement is not reached, the lawyers will withdraw from the process and not participate in the ensuing litigation. In other words, there is no incentive for the lawyers to drag proceeding into court. Some forms of collaborative divorce law also employ “divorce coaches” or counselors to assist parties with the emotional aspects of the process. For further information, check out “A Client’s Guide to Collaborative Divorce” at http://www.sheddenfamilylaw.co.uk/book-club.php.

Although advertisements preying on the need for revenge may grab our attention, I find it gratifying to know that many professionals in the legal system work tirelessly to redefine “justice” and healing. And perhaps leave revenge to the movies.

Would John Wayne Negotiate?

The clock ticks as high noon looms. Marshall Will Kane, abandoned by his townsfolk and facing overwhelming odds, ponders his next move. Does he board the noon train with his wife or does he stay and confront the man sworn to kill him in revenge for arresting him earlier in life? It wouldn’t be much of a movie if Kane boarded the train and chose “flight” over fight. Instead, he makes his stand, facing certain death. As the quintessential western High Noon proceeds, we learn whether our hero will triumph over seemingly impossible odds. We eat it up.

In 2000, I attended a workshop by mediator and author Robert Benjamin, entitled “Negotiation Lessons from the Movies”. He showed clips from several movies (including High Noon, Braveheart, and Kramer vs. Kramer). He then invited us to explore how negotiation was portrayed in those movies and how they reflected cultural norms regarding collaboration and negotiation. It quickly became apparent that for many people, negotiation shows weakness. After all, John Wayne never negotiated – he fought for what he believed in.

We don’t have to look far to see current examples of that perspective. In this week’s episode of The Good Wife, the featured law firm of Lockhart, Gardner adopted the very aggressive and dangerous tactic of asking a judge to recuse himself. During a strategy session, one of the principals of the firm, Diane Lockhart, encapsulated the competitive philosophy with memorable quote: “When you’re going nuclear, don’t leave any missiles in the silo.” Fifty-eight years after High Noon, the theme of “death before dishonour” persists.

Even the word “collaboration” has negative connotations for some. During a recent workshop we were exploring various conflict styles (compete, avoid, accommodate, compromise and collaborate). One participant found it difficult to ascribe any benefits to a collaborative approach. He had been raised under a fascist regime and the term collaboration held the same meaning for him as it did during World War II – one who aided the enemy and betrayed their nation. Similarly, I worked with a lawyer of middle eastern descent who represented many clients of similar nationality. He stated that his clients would often resist a negotiated settlement and would rather go to court and lose than to be seen as weak by negotiating. The Spartans used to tell their warriors to “come back with your shield or on it”. This presents a challenge for mediators (or those who would negotiate collaboratively): participants often fear that the process itself will result in a loss of face.

What are the implications for those who adopt or support a collaborative approach to conflict? In mediation, for example, those who choose to participate need to be commended for their courage and commitment. They need to be validated for engaging in a process in which they maintain control over the ultimate outcome and which seeks a solution that works for all involved. And most importantly, we need to consider their constituency – those to whom they will be reporting (formally or socially) after the conflict has been resolved. Never underestimate the need of a participant to save face (often with those who are not in the room).

In his thought-provoking book, Warriors of the Heart, Danaan Parry talks about the need to abandon the traditional concept of “hero” (such as Rambo). He introduces the term “Warrior of the Heart” to describe a positive change-maker. These “warriors” have the courage to “know themselves” (including their dark side) and listen to opposing point of view without the need to defend, attack or justify. They have the courage to venture into the unknown and bring newness back to the tribe. Such a mindset is necessary for true conflict resolution as well as personal growth. May we all awaken our inner Warrior of the Heart.

For more information of Danaan’s book and the Earthstewards organization that he founded: http://www.earthstewards.org/

For Robert Benjamin’s article on the portrayal of negotiation and mediation in the movies: http://www.mediate.com//articles/benjamin2.cfm

Nik Lewis Apology: Take 2

In my most recent blog, I commented on an insincere apology by football star Nik Lewis, following a failed an inappropriate attempt at twitter humour. I differentiated between a partial and insincere apology, such as “I’m sorry if any of my actions offended anyone” and a  full apology. The latter acknowledges fault and is often offered with a promise not to repeat the behaviour in question.

In his initial apology Lewis stated, “Am I sorry that you got offended? Yes.” Needless to say, the apology failed to stem the tide of outrage at his original offensive tweet. The following day (likely responding to pressure by his team), he offered the following statement:

“I never would condone violence to anyone, especially women. I made a mistake by making that comment on Twitter and I take full responsibility for that comment. I would like people to know I am a better person than that.” He then pledged to donate his paycheque ($3,600) from Sunday’s CFL West final to the Calgary Women’s Emergency Shelter.

In contrasting his two apologies, we can see that he included many of the elements of a full apology:

• acknowledgement of the hurt or damage done
• taking responsibility for the situation
• a statement of regret
• an effort at restitution

It is unfortunate he had to wait for a replay to deliver a genuine statement of regret.

Insincere apology follows inappropriate OJ Simpson reference on twitter

In an earlier blog (I’m Sorry – does it calm the waters or fan the flames?) I differentiated between types of apologies. A partial and insincere apology, such as “I’m sorry if any of my actions offended anyone” can easily be interpreted as “I didn’t do anything wrong, but I regret that you are so sensitive.” A full apology, on the other hand, acknowledges fault and is often offered with a promise not to repeat the behaviour in question. Some of the elements of a full apology include:

• acknowledgement of the hurt or damage done
• taking responsibility for the situation
• a statement of regret
• a promise that it won’t happen again

Earlier this week, Nik Lewis, an all star receiver with the Calgary Stampeders (of the Canadian Football League) tweeted the following:

 “just bought OJ’s gloves on EBay. Now all I need is a white girl named Nicole #MaybeALittleToFar”

Not surprisingly, this sparked widespread outrage and resulted in both a fine from the league and a disclaimer from his team (“this organization is not proud of what occurred.”)

When a reporter asked Lewis if he regretted sending out the tweet, he replied:

“I mean, I regret getting money taken out of my pocket [fined],” he said. “I mean, I regret saying it. But I can’t take it back. That’s something you just go through in life. My life has been about overcoming things that I’ve always overcame. I’ll just continue to push forward and overcome this and when I go out there on Sunday, and I’ll just prove why I’m here.

“Everything I do can be offended by somebody, so I mean I’m not going to spend my life just sitting here, walking around and apologizing to everybody,” he said. “You know people follow me on Twitter for a reason. A lot of people have sent me letters and things like that on twitter expressing how funny they think I am and not to change and all this other stuff.

“For the people I didn’t offend, thanks for the support. For the people I do offend, I can’t apologize every day of my life, because I’m going to do something every day to offend somebody, and that’s just the way it is. You can’t just go around apologizing every time. Am I sorry that you got offended? Yes.”

I can’t think of a better example of a partial and insincere apology – and confirmation that such an apology adds insult to injury by a blaming those who were offended for being too sensitive.

Read more: http://www.calgaryherald.com/business/Lewis+regrets+tweet+says+apologize+every+life/7548756/story.html#ixzz2CIvpyn7O

Mediation in the Movies

Ever since I began mediating in 1991, I wondered why there weren’t television shows or movies about mediators. As I began to understand the dynamics of conflict resolution, I realized why: “in story, nothing moves but for conflict” (Robert McKee in Story). And, while mediation may be challenging, rewarding and productive, it just isn’t as sexy or enticing as a good knock-down, drag-em-out conflict. From sitcoms to dramas to the Jerry Springer’s of the entertainment world, conflict equals ratings. Conflict resolution; not so much.

Because I am fascinated with storytelling and screenwriting, I am constantly on the lookout for shows or episodes that feature conflict resolution. In the movies, The Wedding Crashers features two mediators (though apart from a short, dysfunctional mediation at the outset, their profession recedes into the background). An episode of The Office (“Conflict Resolution”) shows Michael Scott (played by Steve Carroll) mediating a dispute between two co-workers. And more recently, Showtime’s Fairly Legal (filmed locally in the Vancouver, B. C. area) features lawyer/mediator Kate Reed (played by Sarah Shahi) as she fights for justice for the underprivileged. While these portrayals are, for the most part, entertaining, they do a disservice to mediation, it principles and its values. In many cases, humour emerges from the bumbling or heavy-handed behaviours of the characters playing the mediator. In The Wedding Crashers’ opening scene, divorce mediators (played by Vince Vaughn and Owen Wilson) encourage the divorcing couple to think about the good times in the past and paint a picture of a brighter future. While these strategies are not uncommon in mediation, our movie mediators turn the mediation into a two man dog and pony show, prompting one of the clients to agree to settle and ask them “could you two just not talk any more”. In The Office, Steve Carroll conducts the mediation by reading from a manual and then imposing his own solution on the parties. In Fairly Legal, “mediator” Kate Reed usually attempts to impose what she sees as a reasonable solution, and then dons an advocate (or investigative) cloak to unravel the mystery behind one party’s refusal to accept her solution. Her “joint sessions” seldom last more than five minutes before one party storms out and imposes a deadline – setting in motion the race against time that defines most episodes.

I find these shows entertaining and amusing – even if they do poke fun at my profession. I hope that other viewers realize that there is little resemblance between the fictionalized world of mediation and its application in real life. Mediation stands on the principles of an impartial third party and the autonomy of the parties to generate their own solutions. The mediator creates a “safe space” for each party to tell their story and express their needs. The mediator ensures that the conversation remains focused and respectful. The mediator is not, however, the hero and therein lies the disconnect between reality and show business. So next time your favourite sit-com or drama features conflict resolution, enjoy the humour and drama, share a laugh, but make sure you have more than a grain of salt available.

Next week: Negotiation lessons from the movies.

The Thrilla Adjacent to the Amigdilla

Amy and Penny.

I thought of my neuroscience friends and colleagues when I heard the following dialogue from The Big Bang Theory. The conversation between Amy and Penny occurs after they have visited their boyfriends and observed another woman flirting with the men. Amy is a brilliant, though quirky scientist while Penny, possesses more street smarts than book smarts. They discuss Penny’s off-again, on-again relationship with her boyfriend, Leonard.

Penny: Maybe she was flirting with him, but who cares? I don’t even know where my relationship is with Leonard right now.

Amy: So says your pre-frontal cortex. But meanwhile, the limbic system of your brain is calculating that if another woman is attracted to Leonard, it must be because he is desirable.

Penny: Of course he’s desirable. He’s smart. He’s sweet. And in the bedroom – let me tell you – he really tries.

Amy: So it does bother you.

Penny: Fine! It bothers me a little. [Pause] No – you know this is stupid, it doesn’t bother me. [Pause] Okay, it bothers me, but only because she wouldn’t stop laughing. He’s not that funny.

Amy: And there you have it – pre-frontal cortex reasoning versus limbic lust. If this was a boxing match, they’d call it The Thrilla Adjacent to the Amig-dilla [laughs]. If you were a brain scientist, you’d be busting a gut right now!

Here’s to brain scientists everywhere.

Related articles

• The Big Bang Theory, Season 6, Episode 3, “The Higgs Boson Observation” (televisionmania.wordpress.com)

Ready? Set? Negotiate!

Two weeks ago, I was among the millions of disappointed, if not outraged fans who watched Monday Night Football. (I told my wife I was “researching” my blog – so I thought I had better follow through by drawing a negotiation lesson from the resulting carnage). For those who did not see the game or any of the subsequent media storm, the game was officiated by replacement officials because the NFL had locked out its regular, experienced referees as a result of a labour dispute. The game was decided on its final play when one of the replacement officials “blew” a call. This was on the heels of several blatant missed calls earlier in the game – and culminated several weeks of poor officiating across the league. The referees (and their lack of experience and knowledge) had become the focal point of many games, at the expense of the football itself. A firestorm of criticism erupted following the Monday night game, including comments from other NFL players, professional athletes from other leagues, celebrities and even Barrack Obama. Late-night talk show hosts had a field day. I remember predicting to my wife (as part of my “research”, remember) that the labour standoff would soon be settled. Fortunately, I was proven right when a marathon bargaining session resulted in an agreement several days after the controversial Monday night game. When the “real” referees appeared at games the following week, they were welcomed by the players and cheered by the fans (at least until they made their first call against the home team).

As this professional sports labour dispute concluded, the National Hockey League, which had locked out its players, announced the cancellation of the start of its regular season. Why did one dispute settle and the other drag on? Readiness. When the cost of failing to reach an agreement outweighs the other options available to someone, they become motivated to negotiate in good faith. In the case of the NFL, the national ridicule created urgency – the league was now ready to negotiate.

Roger Fisher and Bill Ury, in their seminal Getting To Yes coined the terms BATNA and WATNA to assess a party’s motivation to negotiate. BATNA (Best Alternative to a Negotiated Agreement) refers to the options available to a person if the negotiation falls through. WATNA (Worst Alternative to a Negotiated Agreement) refers to the consequences of failing to reach an agreement. The more options someone has away from the negotiating table, the less they need to rely on the other party. The more dire the consequences of failing to reach an agreement, the more reliant they become on the success of the negotiation. These alternatives speak to a negotiator’s power.

In the NFL situation, the referees had few options outside of the negotiation, and appeared to have less power in the negotiation, especially when the league locked them out and hired replacement officials. While this course of action seemed to put the league in the driver’s seat, league officials failed to appreciate the consequences of employing replacement officials – a misjudgement that came back to bite them on that fateful Monday night game. As the consequences of employing replacement referees became less tenable, the league was forced back to the bargaining table and motivated to be more flexible in order to reach agreement.

In the NHL situation, on the other hand, many players have exercised the option of playing in Europe. Accordingly, they are more likely to hold their ground in negotiating a new collective agreement. On the other hand, one would think that the cancellation of the early part of the season and the associated lost revenue would motivate the owners to seek resolution. Ironically, this consequence actually appeals to many owners, as they would lose less money by not playing games (as bizarre as that sounds). One could debate the long-term impact of the stoppage on the league’s “brand”, though the league seems to take the loyalty of its fans (Canadian ones, at least) for granted and assumes they will return once the lockout is lifted.  This analysis can shed some light on why one dispute settled and the other drags on. In the NFL situation, the consequences of poor officiating created a readiness to negotiate: the conflict was “ripe” for resolution. With the NHL and its players, however, the consequences of failing to negotiate a settlement are not significant enough to force either side to exhibit the flexibility necessary for resolution. The parties have not experienced enough pain to “ripen” the negotiation.

Apply this analysis to your own negotiations by balancing the options available to each side with the consequences of failing to reach an accord. By assessing the readiness of each party, you will have a better sense of where to focus your efforts to “ripen” the negotiation and move towards genuine negotiation.

Negotiation Lessons from the Barter Kings

One of my guilty television pleasures is the reality series Barter Kings. (Survivor and Storage Wars also fall into that category, though I draw the line at Big Brother and The Bachelor.) Barter Kings features Antonio and Steve – co-owners of a consignment/trading hop. The producers describe the show as follows:

“In each half hour we’ll follow two “trading strings,” the dramatic chain of events as items of little value are traded up for items worth thousands. At the heart of every trade is the art of the deal. It takes a ton of strategy, charisma, and all out manipulation to close them. It’s a world filled with amazing characters, fascinating items, and most of all, surprising, unpredictable journeys. When it comes to Barter Kings, anything can happen.”

In most of the trades shown, Antonio or Steve encounter resistance – usually because the “estimated cash value” of the item they are offering in trade is less than that of the item they are seeking. Not surprisingly, our heroes come out on top in almost all their trades and make it look easy. If we can sift through the oversimplified examples that mark “reality” television, themes and lessons can emerge. Antonio and Steve are masters at reframing the transaction from “what is this worth” to “what is this worth to you?” They do this by building rapport and eliciting their trading partner’s story by asking one of two questions:

1. “What is the reason you are looking to get rid of [your electric guitar]?” or
2. “What motivated you to want to trade for [this log splitter]?”

Here are some of the typical motivations they uncover by those questions:

• Family harmony (“my son broke his arm after an accident with his motor-bike and my wife told me to get rid of it”)
• Efficiency (“how long will it take you to sell your item and find something exactly like what I am offering?” )
• Ego (“I’m going fishing with my buddies and want to impress them with a new casting reel”)
• Financial needs (“I got laid off my job and figured I could make some money from the log-splitter you’re offering”)
• Urgency (“if I don’t get an air conditioning unit soon, I start to lose staff”)

Those familiar with Getting to Yes by Fisher and Ury may recognize the concept of WATNA (Worst Alternative to a Negotiated Agreement) at work. In other words, what is the consequence of not making a deal? (Imagine the reception the husband would receive from his wife if he came home without having disposed of the hazardous motor-bike referred to in the example above.)

Because Antonio and Steve are usually interested only in the cash or trade value of an item, they are not as constrained by consequences of not making a given trade – they simply move on to the next potential trading partner. As such, they are able to leverage the needs of the other party to conclude a trade in which they significantly increase their cash value. By repeating the process in the “trading string”, Antonio and Steve are eventually able to turn something small (a car radio) into something bid (a car).

While our negotiations are seldom as dramatic (or well-orchestrated) as those of the Barter Kings, the curiosity they display will serve us well in our own, more mundane negotiations. Remember, it’s not necessarily “what something is worth”, but “what something is worth to them right now.”

Escape from Victimhood: Fostering Accountability in Conflict

In conflict, we feel victimized. This is natural and normal. In most cases, the discomfort associated with this feeling motivates us to act. Some people, however, feed on the attention they receive (usually in the form of sympathy) and on the righteousness of being “innocent” and “right”. These payoffs can be very seductive and underlie the greatest challenge facing anyone working with conflict: how to support people to abandon the comfort zone of the victim and actively work to become part of the solution. This question is fundamental to all “helping professions”, including counseling and coaching.

I recently participated in a webinar hosted by Don Phin, based on his book Victims, Villains and Heroes: Managing Emotions in the Workplace. Don tackled this question in the context of leadership. He stated that leaders need to coax, encourage and inspire to empower those in victim mode.

We can encourage, by acknowledging people – to “find the good” in them. We inspire by sharing success stories with which people can identify. We can coax them to take small steps to begin to move forward. Phin uses the phrase “try this and see how it feels” to encourage people to act without overwhelming them with commitment. Another author on this topic, David Emerald (The Power of TED: The Empowerment Dynamic), uses the concept of “baby steps”. I have found this latter concept invaluable in helping me overcome procrastination – one of the many forms of victimhood.

With respect to conflict resolution, I would add empathy to the mix. In my experience, people will not let go of their victim stories until they feel their pain has been heard and acknowledged. I recall one of my early mediation trainers reminding us that “to go for a ride with someone, we must first pick them up where they live”. Until people feel heard at an emotional level, they tend to resist efforts to move them forward – however sound and well-intentioned such advice may be. When we are able to move a conversation to an emotional level, we are also one step closer to identifying the unmet needs that underlie their feelings of being a victim. This also allows us to reframe their situation in terms of what they do need – to at least offer them a glimpse of the preferred future in place of their focus on the unwanted past.
While nothing can force someone to abandon their role as a powerless and blameless victim, curiosity and empathy will build a solid foundation to encourage, inspire and coax them to become their own hero.

The Time and Place for Apologies

The following is an excerpt from my book, The Joy of Conflict Resolution. I decided to include this topic because I had seen so many situations in which “I’m sorry” simply fanned the flames instead of defusing a confrontation.

Genuine apologies have their place in conflict resolution, but have been so overused that their effectiveness is limited. “I’m sorry,” for example, seems to be an automatic reaction to another’s anger or frustration. Some people say “I’m sorry” when someone else bumps into them. Other times, an apology is offered before someone has even finished their story. However, it is often interpreted as “don’t be mad any more, I said I’m sorry.” When we feel wronged and have a story to tell, we have little patience with someone implying we shouldn’t be mad any more. People may become even angrier by an immediate apology and respond with something like “If you were sorry, you wouldn’t have done that in the first place.”

It also may be that you have nothing to apologize for–you did nothing wrong. Their anger may be misdirected or based on inaccurate or incomplete information. In those cases, the other person may see your apology as a sign of weakness and expect unconditional surrender, making them even more difficult to deal with.

When we think about it, “I’m sorry” speaks more to our intention than to the impact on the other person. It diverts the spotlight from their story to ours and is often followed by “but I only meant . . .” If you have made a mistake, you may find it more effective to say “You’re right. You should have been included in that decision” than “I’m sorry you weren’t included.” In short, what follows “I’m sorry” is much more important than the words themselves.

With an apology or any of these tools, being genuine is more important than being accurate. Ralph Waldo Emerson said, “What you are stands over you the while, and thunders so that I cannot hear what you say to the contrary.” A lack of sincerity reduces these powerful tools to manipulation, more likely to trigger another person’s anger than to defuse it.