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Segment 1: Don Philbin, Master Mediator.

On this edition of The Doug Noll Show, we speak with Don Philbin, master mediator, 2011 Outstanding Lawyer in Mediation, and elected fellow of the International Academy of Mediators and the American Academy of Civil Trial Mediators. Don is also the creator of PictureItSettled,  a highly-intelligent predictive analytics software tool that guides lawyers and mediators through the negotiation process. To find out more about PictureItSettled, please see http://www.pictureitsettled.com/.

 

Don did commercial litigation for years, and then moved to corporate law. Eventually he got his MBA and ended up in management. Don tells us he did litigation and transactions for years, and it finally dawned on him that he could do them together…which is basically what mediation is: assisting people in their negotiation to put deals together instead of going to court.

 

Segment 2: 98% emotional, 2% rational.

So when we have lawyers representing parties in mediation, what’s the role of the mediator? Don tells us that the mediator is “not the other side.” The mediator comes in as a neutral third party and offers options for the two sides to explore. Well-trained mediators have studied behavioral economics, neuroscience and psychology and know how people react in stressful situations. They can help frame the issues and choices for parties.

 

Our host, Doug Noll, says we’re 98% emotional and 2% rational, and lawyers are no different. Lawyers are generally poor negotiators and are subject to the same emotional mistakes that everyone else makes. Additionally, lawyers typically do not get the appropriate negotiating training in law school. The mediator’s role is to be able to spot when cognitive and decisional errors are interfering with decision making and gently guide the opposing parties in a direction that moves them toward settlement instead of toward impasse.

 

Segment 3: The Negotiation Dance.

So what gave Don the idea that negotiations were predictable enough to analyze? He says that once you are involved in case after case, you start to notice some similarities across cases. There seems to be a social convention that progress will be in increments. People mimic each other’s behavior to a certain extent. Parties will cooperate or get competitive within their negotiation, predictably. Mediators know intuitively that there is a certain rhythm to the day, from beginning offers to the ending deal. There is a pattern to the negotiation dance.

 

Segment 4: Reducing the Emotionality of Decision Making.

PictureItSettled is a predictive analytics online software program. Once you start making moves in negotiation, the settlement profit will start to predict where the deal is going to end up. It will predict when and where the intersection will take place. Don tells us it takes 2 offers on each side before PictureItSettled has enough information to predict the outcome. Of course it gets better with each additional round. Let’s say you want to run “what if” scenarios before you make an offer. It can anticipate the actions on the other side. If you have the software, you have a good idea of where the settlement will land. It reduces the emotionality in the decision making around settling lawsuits and allows people to stay cognitively clear.

 

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Negotiation is a skill that must be learned. Most people never get beyond the simple quid pro exchange of essentially, "I'll scratch your back if you scratch mine." However, sophisticated negotiation requires much more than simple exchange. A lot of people forsake negotiation training. I think this is due to a number of myths around negotiators.

So, let's look at these myths and dispel them.

The first myth is that negotiation is only about the money. Sometimes negotiation is about the money, but many times negotiation is about anything but the money. In fact, the money simply becomes a symbol for much deeper underlying needs and issues that must be resolved.

Another myth around mediation says that negotiation means getting the best deal for me or my client. Often times, the best outcome is not going to be the best deal for me or my client. It can be making sure that everybody gets a good deal out of negotiation. Sure, there are times when negotiation can become very competitive. However great negotiators find that if they can make a deal that satisfies everybody as reasonably as possible, then they really done a great job. Negotiators that are purely selfish find that they reach impasse and suboptimal deals quite frequently.

The third myth is that negotiation is simple, or the opposite, that negotiation is hard. Actually negotiation is not a simple nor is it hard. There is a lot to understand about the theory and practice of negotiation, but it is not a simple process of simply exchanging dollar numbers in a distributive auction.Nor is it an arcane, difficult to understand, highly sophisticated practice that only experienced negotiators can successfully engage in.

There is also a myth that negotiation follows a predictable pathway and that only simple steps need to be followed. The truth is that negotiation is not always a predictable path. It is true that in some broad frameworks of distributive negotiation certain steps follow one after another. However, learning how to negotiate by formula or recipe will lead to disaster. As you study negotiation, you earn about the nuances of negotiation practice and understand that it is not a linear process at all. It is iterative, elicitive, and reflective.

Some people are thought to be born negotiators. Think about this one a moment. Even used-car salesman have to go through extensive training to learn how to sell cars. So negotiators are not born, they are made. The good news is that you do not have to wait 20 or 30 years to become a masterful negotiator.

Another myth is that wicked and evil people make better negotiators.
Actually, if you look around the Middle East in the last two years, you can see that leaders like Sadaam Hussein, Moammar Ghaddaffi, and Hosni Mubarak who have committed crimes against humanity turned out to be very poor negotiators. Most people mistake the fact that people in a position of power may often appear to have a better BATNA. BATNA means "best alternative to a negotiated agreement." 

Some people believe that negotiation is a failure if you do not gain anything at the end of the day. Well, if you are a defense lawyer, you will never gain anything in negotiation. Often times a good negotiation outcome is defined by how risk is managed by the parties and their lawyers.

In addition, there are many negotiations where there is no gain, but there is a restoration of relationship a rebalancing of power, a reconciliation of injustice, and a righting of moral wrongs.

Knowing about these myths can help you overcome the idea that sophisticated negotiation is a skill to be learned and mastered, not an arcane art left only to the very experienced professional.

Remember, the best way to win the game is to call it yourself.
Better still, change the game completely.

Douglas E. Noll, J.D., M.A.
Mediator, Author, and
California Lawyer 2012 Attorney of the Year
for Pro Bono Service
Creator of Negotiation Mastery for the Legal Pro –
A new online course in cutting-edge legal negotiation
legalpronegotiator.com

,

After a year of development, I have finally launched my new on-line course, Negotiation Mastery for the Legal Pro. This course, designed primarily for young lawyers, but suitable for anyone wanting to learn the subtleties and nuances of distributive negotiation, is 9 hours long. It consists of an e-Book 45 video lectures, and downloadable templates and files. For California attorneys, it is MCLE-approved for 9 hours, including 2 hours of ethics and 1 hour of elimination of bias.

I built this course because, as a mediator and peacemaker, I saw a need for stronger negotiation skills. The mind-set of the negotiator is very different from the mind-set of a trial lawyer. Shifting from from one mode to the other is difficult for most attorneys. The need for comprehensive training, with the convenience of the Internet, led me to create the course.

I answer the age-old question of, How do I balance my need to get the most out of this negotiation with the need to cooperate to get a deal? If I am too competitive, I will blow the negotiation. But, if I am too cooperative, I might give up too much, or worse, be exploited.

Negotiation is a strategic communication designed to settle disputes and make deals. Zealous adovcacy won't work very well in this environment because there are no rules, no referees, and no boundaries constraining the negotiators. If lawyers take off on the hard-core trial lawyer approach, they might find themselves out of a good deal because they have been overly-competitive.

I shatter the myth that the anchoring effect dictates an unreasonably high or low opening move. Total rubbish, and I explain why.

Negotiation is not an exercise in rationality. It is deeply influenced by our emotional states moment to moment. Careful preparation, however, can reduce the stress, anxiety, and frustration of any negotiation. Calm execution will almost always lead to superior outcomes.

So, if you want to know how a young lawyer settled his first big case for $5.5 million using these skills, check out Negotiation Mastery for the Legal Pro.

 

 

Segment 1: Simply Incapable of Declaring War.

Our guest on this edition of The Doug Noll show is Dr. Brien Hallett, an associate professor at the Matsunaga Institute for Peace & Conflict Resolution at the University of Hawaii. Dr. Hallett began his career as an English professor but soon got hooked on the topic of war and peace, and ended up switching gears to attain his Ph.D. in Political Science. His latest book is titled Declaring War: Congress, the President, and What the Constitution Does Not Say.

 

Dr. Hallett tells us that the constitution says Congress should make the decision for war or peace, but that actually never happens. He thinks Congress is simply incapable. In fact, the U.S. has been unable to declare war since 1789, even though we have been involved in numerous wars since that time.

 

Segment 2: A Constitutional Duty.

Essentially the President is allowed to start a war without asking permission from Congress. If Congress actually undertook its constitutional duty to argue and debate over the declaration or war, we would have a much more public and robust discussion about whether or not we should use force.

 

Dr. Hallett believes there are two main reasons this does not happen.  First of all, for 5,000 years Kings and Emperors have made this decision. Everyone expects the war leaders to make the decision whether or not to go to war. Secondly, Congress is too large and busy, and its primary function is to pass domestic laws. It is not built to accomplish a function such as declaring war. It is simply unable.

 

Segment 3: A Fourth Branch of Congress.

If Congress is not taking on the authority to declare war, then the people of the U.S. have very little say on whether or not we use force. This is a fundamental problem and a major flaw in the constitution. Dr. Hallett thinks we should change the constitution and he is proposing removing the power to make foreign policy (and declare war) out of Congress and establishing it in an independent branch of government. This fourth branch of Congress would have 50 members and would be elected by the state legislatures. Their job would be to conduct foreign policy and review the relationships between the U.S. and countries around the world. They would identify problems early and solve them by peaceful means.

 

Segment 4: Declaring War: Congress, the President, and What the Constitution Does Not Say.

Dr. Hallett says his book is meant to be disruptive, and he acknowledges that his proposal is, currently at least, politically impossible. He is just trying to get people to consider the problem and look at alternatives. The first step is to start the debate. It is not a question of political will; it’s a question of political structure. Congress is structured so that it cannot worry about foreign affairs. It can’t do what the 2^nd Continental Congress did. That was a small group who would get together and discuss problems and find solutions. Today’s Congress is large and complicated - which is a good thing for domestic policy – but it doesn’t work for foreign affairs.

 

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Segment 1: Be Right or Be Happy.

Conflict is heavily tied to emotion. Often emotion arises from traumatic experiences and is a means of coping and surviving those experiences. As peacemakers, how can we work with our emotions so that they become liberating instead of confining? To answer this question we will be speaking with Don Milton on this edition of The Doug Noll Show. http://donmilton.net/

 

Don’s passion is teaching and coaching others to find opportunity and wisdom within stressful situations. He empowers his clients and encourages them to embrace open doors and unlimited possibilities. He believes that to thrive after catastrophic events depends on our attitude and how we approach the situation. We can either have a break down or a break through. So why is it that people have such a difficult time understanding the choice? It’s human nature: we would rather be right than happy.

 

Segment 2: Connecting the Head and the Heart.

Don has studied a lot of healing modalities and spiritual practices. His journey began after his divorce in 1990. He grew up in the Catholic Church but started questioning it when he was 18, which led to more and more questions and confusion. After a tough divorce, he met people who had a glow about them and a peace about them, and he wanted that. He began to study energy work and had a spiritual awakening in 1992, and that experience totally changed his life. His journey has been about connecting his head and heart. He says, “The ego and the mind are great things as long as you don’t use them too much.”

 

Segment 3: Emotional Freedom.

Don calls himself an “Emotional Freedom Coach.” He helps people understand what causes emotional distress and gives them tools to help eliminate the stressors. Don defines the “Cycle of Creation” as: our beliefs determine the way we think about things, our thinking determines the way we feel about things, our feelings determine the actions we take, which determines the results that we get, and then our results determine our beliefs. Beliefs are not easily changed. It takes a great deal of determination and self-awareness to change beliefs.

  

Segment 4: Divine Guidance.

Don’s work can help folks with anxiety and depression, among other things. He is deeply interested in the mind-body-spirit dynamic. Don believes everyone has access to divine guidance. We all have a divinely directed path as well as free will, and we have a choice: to be right or to be happy. His daily prayer is: I pray to know God’s will for me today, have the faith and the courage to do my part and not be attached to the results. As long as he stays in that space, everything works perfectly.

 

To find out more about Don and his work, please visit his website: http://donmilton.net/.

 

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In discussing the fiscal cliff compromise Donald Trump is reported to have tweeted today that while he is a Republican, Republicans may be the worst negotiators in the world. http://www.huffingtonpost.com/2013/01/01/donald-trump-republicans_n_2392960.html

He got that half right. Polarized political decision making is the best example of poor negotiating skills--that is shared by both party lines. Negotiating takes highly skilled individuals ready and willing to listen, to work together, and to create goals that serve the highest good for all involved. After a 22 year career as a trial lawyer I learned that successful outcomes come from skilled negotiators.

Many decisions made in the political realm are motivated by special interestes, personal agendas, and political dogmas. These ulterior motives do not serve their constituents well.

As a personal mission, I have created a master negotiation course Negotiation Mastery for the Legal Pro for lawyers to help teach lawyers how to negotiate well for the purpose of saving resources and bringing consensus in a timely fashion.

Segment 1: A Different Paradigm.

Marty Price, J.D., our guest on this edition of The Doug Noll Show, is a social worker turned lawyer turned mediator. He is internationally recognized as a leader in Restorative Justice and peacemaking. Professor Price will soon be returning to India to teach Restorative Justice at a top-ranked law school in India (National Academy of Legal Studies and Research) and on this show we will be talking to him about his upcoming trip to India and Restorative Justice. His website is www.vorp.com.

 

Marty started out as a juvenile court social worker, but felt he wasn’t making a big enough difference in the lives of troubled kids and their families. In order to change the system he needed to get a law degree and go to court, but he soon discovered he was much better suited for peacemaking than for being a lawyer warrior. He began his peacemaking journey by volunteering at local dispute resolution centers as a mediator, and then moved to Restorative Justice, which he calls “a different paradigm for understanding crime and justice, and responding to crime with a different sort of justice.” Restorative Justice recognizes that crime is about hurting people: the direct victims, the indirect victims, and the community at large. Crime is about harm. Restorative Justice looks at who was harmed and who has an obligation to make it right.

 

Segment 2: Victim-Offender Mediation.

Victim-Offender Mediation is one form of Restorative Justice. It brings together victims and offenders, voluntarily, if and when they are ready. This work has the potential to transform lives. When people can’t move on, they lose their lives to their crime. Offenders often think of their victims as nameless and faceless. However, through Victim–Offender Mediation, the offender is able to take real, meaningful responsibility for what they have done, and assume an obligation voluntarily. Restorative Justice is not soft on crime; it’s much more difficult to face one’s victim than to face a judge.

 

Segment 3: India’s Criminal Justice System.

India’s criminal justice system, simply put, is broken. India has an incredible backlog of criminal cases. People wait 10-20 years in jail before they get a trial. This mainly happens to the poor, who cannot afford bail or a lawyer. Because of this lack of justice, the offenders and their families are suffering, and the victims’ families are suffering as well. Marty believes Restorative Justice programs can help. At each of the law schools at which Marty taught, students are carrying on Restorative Justice programs they’ve created. Marty planted the seeds; his students are growing the movement.

 

Segment 4: Exchanging Knowledge and Building Goodwill.

The Fulbright Commission of the U.S. Department of State sends students and professors overseas to teach and learn; it brings foreign students and professors to the United States to teach and learn. It’s all about exchanging knowledge and building goodwill and peace between nations. In 2012, Marty went to India as a Fulbright Senior Scholar and taught Restorative Justice in three of the fourteen National Law Universities of India. In January 2013, Marty returns to India to teach at the National Academy of Legal Studies and Research, where the vice-chancellor is an advocate for Restorative Justice. He asked Marty to come and teach for a semester, during which Professor Price will have an opportunity to pursue his own goals: to arrange internships for students to do Restorative Justice work. He is raising money to be able to accomplish this because he does not have a Fulbright Scholarship for this year's work in India. If you would like to support Marty Price and this transformative work, please visit his website at www.vorp.com to find out more information and to make a donation.

 

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Segment 1: No Peace with Oppression.

Our guest on this edition of The Doug Noll Show is Israeli peace activist and author, Miko Peled. In September 1997 Miko’s niece was killed by a horrific suicide attack in Jerusalem. When Miko’s sister was interviewed by the press, her response of non-retaliation and compassion deeply affected Miko, which pushed him to study conflict resolution and become a peace activist. He believes there cannot be peace in Israel as long as there is oppression. Until Israelis have rights to water and land and travel and other freedoms, peace is not possible. Miko’s book is titled The General’s Son: Journey of an Israeli in Palestine and his website is http://mikopeled.com/.>

 

Segment 2: Jewish Faith in an Arab Country.

There are extremists who believe the land of Zion is sacred and refuse to give anything up to the Palestinians. The flaw is in the basic idea that you can have a Jewish faith in an Arab country, where half the population is not Jewish, and not have conflict. The only way to move forward is to give everyone equal rights and have a pluralistic society. Very shortly there will be a Palestinian majority, so the demographics are working against the Israelis. Miko says if we believe in justice, we need to go back to the basic fundamentals: human rights, civil rights, equal rights, and use these principals to guide us.

 

Segment 3: A One-State Solution.

So what is going to change in Israel to allow the government to finally recognize that they need to give Palestinians the same rights that the Israelis have? Our guest thinks the strength of the Palestinian resistance is that it’s very smart and very powerful. There are boycotts and Palestinian awareness groups as well as non-violence resistance on the ground. There is a strong resistance movement and Miko believes there is hope for a one-state solution, although there is still tremendous racism and fear.

 

Segment 4: More Activism to be Done.

Miko’s book, The General’s Son, came out in May 2012 and has gotten great reviews. His family is supportive and is all involved in peacemaking. There is still a lot of activism to be done, both in speaking to groups in the United States and being on the ground in Palestine. For more information, please visit Miko’s website at http://mikopeled.com/.>

 

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Segment 1: We Always Have Choices.

Our guest on this edition of The Doug Noll show is David Emerald Womeldorff. David is a consultant, executive coach, speaker and author of The Power of TED, a fable on personal leadership that offers an affective antidote for Karpman’s Drama Triangle. TED (The Empowerment Dynamic) is a way of thinking and interacting with others. When we apply the principals of TED, we realize that we have choices. Sometimes they are limited, but we always have choices --- we can choose the outcomes we want in our lives and how we respond to life’s circumstances. David’s passion is helping people live their lives as consciously and collaboratively as possible. To find out more about David and his work, please visit http://www.bainbridgeleadership.com/davidwomeldorff.html and http://powerofted.com/.

 

Segment 2: The Drama Triangle.

The Drama Triangle is interplay between victim, persecutor, and rescuer. We are a victim anytime we feel powerless. In order to be a victim, one must have a persecutor. A persecutor can be a human or a natural disaster or a medical condition, etc. A rescuer is someone/thing that “fixes” the victim or tries to protect the victim from the persecutor. The rescuer does not have to be a person; it can be an addiction or anything that temporarily numbs the pain. There is a trap to being in the rescuer role: over time the rescuer ends up being seen by the victim as the new persecutor. Eventually the victim realizes that they are being kept powerless by the rescuer.

 

The Drama Triangle is routed in a mindset that is anxiety-based and reactive in nature. This very mindset has helped us survive as a species. The reactivity is deeply wired and has been passed down as a survival mechanism. David says to fix the Drama Triangle we need to shift from a victim orientation to a creator orientation. When we utilize a creator orientation, the focus is on the outcomes we want to create and accomplish, instead of what we DON’T want to happen.

 

Segment 3: The Antidotes.

This is life-long work that takes patience and baby steps. We need to remember that we do have choices and we can choose a resourceful path. The “moment of choice” is the key point. TED helps us realize that:

 

Creator is the antidote to victim

Challenger is the antidote to persecutor

Coach is the antidote to rescuer

 

Segment 4: Non-Attachment, not Detachment.

One of the greatest challenges that you can have in TED is playing the role of challenger and coach at the same time. The secret is to cultivate a measure of non-attachment (different than detachment). The coach supports by asking questions, while the challenger supports by making declarative statements. It is requires a high level of self-awareness to play these roles and is a life-long practice. Baby steps!

 

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Segment 1: Perceptions of Reality.

Our guest on this edition of The Doug Noll Show is Roger Frame, President of Frameworks 4 Learning. Roger is an expert on resolving interpersonal conflict, defusing power struggles and preventing bullying. His book is called Don’t Carve the Turkey with a Chainsaw: Resolving Family Conflict. He comes from the psychotherapy perspective and thinks the single biggest cause of human conflict is differences of perspective. People view conflict as based on reality, when in fact it’s based on our perceptions of reality. Conflict is not something you can completely avoid (nor should we try to avoid it, as it usually brings people closer together once it is resolved). If we don’t have resistance, we cannot grow as human beings. The whole point of conflict is to alert us to the fact that there are things to which we need to pay attention.

 

Segment 2: Adopt a Curious Attitude.

In terms of holiday conflict, when relatives get together there are often repeated patterns that come up every year. It’s difficult for people to recognize these patterns, and the person who brings up the issue usually (unconsciously) has a vested interest in keeping it alive. So why would a reasonable, rational intelligent person do this? Adults play out the conflicts of their childhood and the dynamic stays the same. When you encounter an issue with a family member, ask the question, “I’m curious. What makes you want to keep bringing this up?” Having the presence of mind to ask a question like this takes practice and self-control. The most difficult thing is to stay present with yourself so that when someone pushes your buttons you can respond with compassion and clarity, even when you are angry. Instead of attacking back and reacting with anger, adopt a curious attitude.

 

Segment 3: Ignore the Words and Focus on the Emotion.

Listening is a powerful skill that needs to be taught. People don’t know how to listen or ask effective questions. Roger thinks we should ignore the words and focus on emotions. Repeat back the emotional experience of the person you’re speaking with at that moment. In doing that, you touch something deep and the brain starts to calm. In the brain, the emotional content goes to one neuropathway and the cognitive content goes to another neuropathway. When you recognize the emotion in a situation – and mirror it back – the emotional centers of the brain deescalate.

 

Segment 4: In Roger’s book he references many fly fishing analogies for conflict resolution. For example, kids bait their parents and know exactly what lure their parents will bite. As water warms up in a river, fish bite on different insects. Also, there are certain times of day when mom (or dad) is tired and kids know they can ask for and get what they want. Timing is everything. If you draw your fly rod back and start the forward movement too quickly, the fly will snap off. It’s the same with communication: if you interrupt someone too quickly, the conversation will snap off. Lastly, when casting in fly fishing, you must move backward before you go forward. When you are involved in conflict resolution, if you can pause and go backward a bit, it opens up the space to move forward. It creates a safe space for someone to be heard.

 

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