Articles
Principled Negotiation Satisfies All Parties: Diane Levin
As someone who helps people negotiate for a living, I’ve seen how useful negotiation is for solving many of life’s dilemmas. Most of us are familiar with two ways to negotiate—gladiator-style, in which only one of us emerges victorious from the sand of the arena; or the split-the-difference approach in which we all give and get a little, leaving everyone equally unhappy. In both cases, we leave value on the negotiating table—and all too often enemies in our wake.
Others rely on a third way. Principled negotiation seeks ways for all parties to get their key interests met. This method of negotiation succeeds in part because it stresses both relationship and communication with our bargaining counterpart.
Although the notion of “relationship” is often derided because of its touch-feely connotations, relationships are what gets stuff done. Our ability to connect with others, gain their trust, influence and motivate them is the social lubricant that makes businesses thrive. In fact, Dan Hull, an attorney I admire for his focus on client service, once wrote, “Treat each co-worker like he or she is your best client.” He’s right—nurture relationships for a healthier law firm.
Good negotiators are communication experts: they ask questions and listen closely to the answers. Communication should be easy for lawyers because it’s our stock in trade. But communication is fraught with peril because our perceptions fool us. In a famous study, researchers showed subjects a video of two teams playing basketball, and instructed them to count the number of times the ball bounces. A person in a gorilla costume walks through the players, stops in front of the camera, thumps his chest, and then exits. Half the subjects failed to see the gorilla, so intent were they on following the ball. Life is like that—we miss the gorilla. Do what good negotiators do—use
communication to identify the gaps in perception—yours and mine.
Relationship building, like good communication, helps to keep peace in any workplace. But they work best in tandem. When things go wrong, when people screw up, when intergenerational or cultural differences manifest, you’ll need them both. Communication will produce solutions and the relationship will become more resilient and survive.
Re-spect: Look Again—Stephanie West Allen
Being a mediator has been like having both a challenging teacher and a caring guide. Although not always easy to learn, the lessons mediation has taught me have served me well in many of my life roles. Using my mediation eyes and ears has become a way of understanding many if not most people and interpersonal interactions, not just disputants and disputes.
Daily life presents us with many opportunities for give and take. How much we give and take is a function of the situation, as well as our values, interests, and personal styles. Each time the relationship and situation is new and unique.
To remember that uniqueness is one of the most important lessons I have learned from mediation. We tend to forget this as we become more seasoned in our practice of mediation, of law, and of life. Our brain likes to be fuel efficient; by discerning patterns, it saves energy. It studies the situations at hand, whether they are protracted mediations, playful exchanges with a partner, or steely verbal duels with opposing counsel, to see if they resemble a situation it has seen in the past. We then base our judgments on that unconscious notion of past—but we are not always fully aware of the present. Yesterday’s solutions do not always fit today’s problems.
As a mediator, my goal is to seek with focused attention, and value with fresh senses, the uniqueness of each interaction. I ask (or at least try to remember to ask), “What is new—right now—about this particular mix of values and interests and people?” I try to bring respect to the situation. Re-spect. Re-look. Look again. Fresh eyes and ears are two of the most valuable tools of a mediator. Our senses can be sharpened by experience or they can become jaded and aged. As the decades pass, I hope my mediation experience has kept my senses young.
Let’s Start Talking About What We Genuinely Value: Victoria Pynchon
If law firms are simply high schools with money, the varsity jocks and beauty queens of the profession are the members of the AmLaw 100. These are the attorneys who make $200,000+ as young associates; $500,000+ as mid-level partners; and $1 million+ as senior shareholders.
According to the Global Rich List, AmLaw 100 associates are among the top .01% richest people in the world. Mid-level AmLaw partners are in the top .001% and beyond that the GRL stops counting. Though of course we do not.
If a comparison of our salaries with these galactic levels of compensation make us unhappy, it is unlikely that the following knowledge will make us happy—three billion people live on less than $2 and 1.3 billion on less than $1 per day. Why does this knowledge leave us untouched? Because we don’t compare ourselves to the rest of the world. We compare ourselves to the guy sitting in the office next to us.
So how did we—some of the smartest, richest, most creative, energetic and best educated people in the world—get so unhappy about money? I personally blame it on the American Lawyer even though, like drug dealers and the paparazzi, legal journalists wouldn’t be concentrating on profits per partner unless we were all so avid to know them.
In 2006, for instance, the American Lawyer (and nearly every other legal journal) reported that the mean “profits per partner” of the AmLaw 100 was $1.2 million. Yet a far more compelling factoid recently found its way into Forbes magazine: the very very rich, like those in the Forbes 400, report virtually the same level of happiness as do the Maasai herdsman of East Africa.
So what’s the “human factor” solution to this problem? Should we deep six news of our fellow shareholders’ income? Pretend we don’t care? No. We do something far more radical than that.
We start talking together about what we genuinely value. We remind ourselves that money is at best a means to a goal and at worst a substitute for something we haven’t otherwise been able to achieve, like a feeling of being appreciated, understood, meaningfully occupied, even loved. When we look again at our group earnings, we can brain-storm ways to most happily distribute them.
Give the staff an across-the-board raise instead of increasing Al’s compensation from $1.2 to $1.5 million? Sponsor a local high school trial advocacy team? Buy goats for a small village in Africa? Purchase random appreciation gifts for staff and attorneys for jobs particularly well done? Give the same degree of “business origination” credit to the attorneys who keep the client as to those who snag the business in the first place?
Listen—and now I’m talking to my fellow boomers—we can do anything we want. We’re in charge now. We can kick out the jams, break down a couple of institutional walls, and shake things up a little. We could, if we wanted, even get back that lovin’ feelin’ . . . . yeah, yeah, yeah . . . .
Know How To “Do” Conflict: Gini Nelson
Lawyers, like most people, work with others and inevitably, conflict arises. When friends complain about these conflicts, I no longer tell them that one of the best things about being a home office solo is “no office politics” because they just tell me I’m bragging. Instead I give them this advice: (1) know yourself (how you tend to handle conflict); (2) know that others are legitimately different from you (and not just “dysfunctional”); and (3) know how to “do conflict” by using the skills you have and learning more skills.
Clients and friends have told me that talking with me about conflict is like talking with a counselor, not a lawyer or a friend. I listen well and give good counsel. They don’t know that in my personal life, and in dealing with professional colleagues outside of the specifics of a case, I’m a conflict avoider. Though I feel conflict and can draw judgments about conflict situations, I have a deeply-ingrained habit of remaining silent. While that helps me reduce my own stress, the other person can resent being ignored, and decisions can end up being made by default. Sometimes conflict avoidance is “deferred relationship maintenance,” which means that you hope a problem will not get worse before you get to it.
All the styles of handling conflict, according to the Thomas-Kilmann conflict modes, are helpful in some circumstances and not so helpful in others. Some people handle conflict by accommodating (“I like it the other way, but it’s your call”), compromising (“Let’s split the difference”), collaborating (“We are smart enough to have both high quality and low-cost. How can we do it?”), or by competing (“That’s my decision and I am your boss”). You probably use all the modes at least sometimes but have a preferred style, though you may not see its disadvantages. You also may not see the advantages of the other modes or respect their proper uses.
If your style is accommodating, be careful to avoid a pattern of
appeasement as you might be exploited by others. If your style is
compromising, be careful not to compromise on vital issues and remember that not all issues can be fully resolved. If collaboration is your preferred mode, don’t ignore the fact that this strategy takes a lot of time and effort. If you prefer to compete, don’t fight unfairly as others will feel resentful.
We hope you enjoyed our last group effort. From now on, we will alternate writing our own columns for successive issues.
