dougnoll’s posthaven

The system has served us well at protecting individual rights against oppression for two centuries. Today, however, we bring all conflicts to the legal system, not just problems for which the legal system is appropriately designed to resolve. We expect that peace will be restored after the parties have expended financial and emotional resources to reach a result they are generally unhappy with. We wonder why there is such unhappiness with the legal system.

I think there's a better way. Simply stated, we must reintroduce the social knowledge of how to resolve conflicts back into our community. Let me propose a radical idea: that lawyers be trained as peacemakers; that we train our children in the social knowledge regarding making things right and reconciling interests; that we learn how to apply the ancient principles of confession, apology, and atonement to everyday business life. 

This is not as far-fetched or as difficult as it sounds. Teaching lawyers is the easy part.  Without exception, every lawyer who I have talked to about peacemaking is interested and intrigued. To that end, I have developed a comprehensive continuing legal education program for lawyers: Negotiation Mastery for the Legal Pro. The goal is not replace the adversary system. Instead, the goal is to provide new tools and orientations to human conflict. This is a multi-disciplinary curriculum, drawing on social psychology, law, and human conflict theory.

Teaching the children is also easy. The problem here is convincing the schools to introduce peacemaking as an expected everyday occurrence on campus. This effort has already been initiated by the Center For Peacemaking and Conflict Studies at Fresno Pacific University. We just need to expand and support its effort. 

Finally, reaching out to the business community should not be difficult. The social knowledge necessary for effective conflict resolution is simple to teach and easy to learn.  It's like riding a bicycle: once you learn, you never forget. Once we convince business owners that peacemaking is good for business, good for people, and good for the bottom line, we move forward into a more peaceful and efficient way of resolving conflict.

Douglas E. Noll, Lawyer to Peacemaker

Creator of Negotiation Mastery for the Legal Pro

California Lawyer Magazine, California Attorney of the Year 2012

The sales manager thought the contest would be a good way to promote productivity in the sales department. In the first month, all of the sales people worked hard. The difference between the winner, Ms. Jones, and the rest of the sales people was small. 

The contest continued in the second month and the same result occurred. Ms. Jones received another thousand dollars while the other sales people received nothing. 

In month three, morale deteriorated. By the end, Ms. Jones was not well liked by her peers, and several good people left the firm. 

Most managers do not consider how competition looks from the trenches. For Ms. Jones, to win meant that other people had to lose. Ms. Jones’ self-interest was to do the minimum necessary to cooperate with her colleagues. If truly driven, Ms. Jones might subtly hinder the efforts of the other salespeople. Worse, she might take away the other sales people’s opportunities. Finally, successive wins might begin to make Ms. Jones feel superior to her colleagues.

How does competition look from the losers’ perspective?  Ms. Smith worked as hard and produced nearly as much, but because of bad luck, received nothing for her extra effort.  She asked herself, "Why should I work harder when I can't be assured of compensation for my efforts?" Ms. Smith began to resent Ms. Jones, hate the competitive pressure of the job, and believe that because she could not win, she must not be a good sales person.  Despite the fact that she was one of the firm’s best employees, Ms. Smith left within a month after the sales contest ended. 

In considering this company's situation, think about how many winners and how many losers were created by the contest. Obviously, only one employee was a winner; the rest were losers. How do we react to losers? Even though they were good, hard working, high producing employees, they still were not the winner—they just weren’t as good. Because they were losers, they became resentful of the winner and of the environment that put them into a competitive, conflictual situation. Thus, the contest, designed to increase productivity, had the opposite long-term effect.

Does competition promote higher productivity? Not in the long run. When employees compete against each other rather than work cooperatively, they must look out for their own interests. The employer’s interest is the least of a competitive employee’s concern.  Looking out for number one means just that. Furthermore, the game is to win, not to produce. Competition generally does not promote excellence because trying to do well and trying to beat others are two different things. One can only attend either to the task at hand or to the enterprise of climbing over someone else. 

Additionally, in a competitive environment, promoting creative ideas and processes that could dramatically increase everyone’s productivity is not worth the risk of individual loss.  More likely, a creative idea will be hoarded for its competitive advantage. Working with others and helping newcomers develop their potential is out of the question.

Do we perform better when we are trying to beat others than when we are working with them or alone? Superior performance does not require competition; in fact, it usually seems to require the absence of competition. Alfie Kohn, a social psychologist writing on the subject of competition and rewards, noted that in 65 studies cooperation promoted higher achievement than competition. Eight found the reverse, and 36 found no statistically significant difference. In 180 studies of cooperation, cooperation promoted higher achievement than independent work, while six found the reverse, and 42 found no difference. The superiority of cooperation held for all subject areas and all age groups. The evidence is clear: competition is associated with lower performance in the workplace. 

The implications of competition for peacemaking should be clear. To prevent conflict in the workplace, consider carefully how competition, both overt and covert, might be minimized. Avoid competition and promote cooperation. Conflict management requires prevention of unnecessary competition between valued employees. Instead, instilling cooperative values and incentives will increase long-term productivity, enhance morale, and lead to a positive, happy workplace.

Douglas E. Noll, Lawyer to Peacemaker

Creator of Negotiation Mastery for the Legal Pro

California Lawyer Magazine, California Attorney of the Year 2012

Peacemaking addresses these problems and gets to the heart of the conflict without fear of escalation. When people agree to follow some simple ground rules, with or without an intermediary, they move into an empowering and special relationship. This relationship requires a commitment to be constructive, to actively listen, and to be empathically accurate.

Conflict escalates when this temporary special relationship is not formed. How many times have you heard voices become angry or louder as an argument ensued? The conflict is escalating because neither person believes that he or she is being heard. The easiest - but least effective – way to be heard is to raise one’s voice. However, then the other person doesn’t feel heard and raises his voice in response, and so on. Sometimes out of sheer frustration violence erupts. Peacemaking stops this escalation by committing each person, for a few moments, to be in a positive, rather than a negative, relationship with another.

  Peacemaking also works because it changes personal orientations from a competitive and hostile attitude to a cooperative and constructive attitude. The attitude shift does not change immediately. However, as people work through the peacemaking process, they begin to understand each other's perspectives and, in that context, re-evaluate their own positions. Often times, this re-evaluation and recognition provides the basis for transforming the conflict.

On an emotional level, peacemaking works because it allows for mutual recognition of injustices or wrongs. In many conflicts, each person feels violated by the other. Peacemaking allows both parties to recognize not only that they have been victimized, but that the other person also may have a sense of victimization. Similarly, peacemaking allows parties to acknowledge there has been a wrong or a violation. The Japanese take this to an extreme. Even when one party is clearly wrong and the other is clearly right, the party in the right will attempt to find some reason to offer apology so as to make the reconciliation process mutual.

On a practical level, peacemaking allows for a discussion of how to make things right. While people are in that special temporary relationship, they can identify how the wrongs, whether mutual or not, caused harm, and what they think is necessary to remedy the harm. Sometimes making things right is as simple as an apology. Other times, making things right is substantially more complex. However, if the parties have committed to the peacemaking process, they have agreed the only acceptable solution will be one that satisfies everybody's interests. 

Peacemaking permits movement into the future. Having recognized wrongs and discussed how to make things right, the parties find that the trust-building process begins with affirmations of future conduct. Many times the parties in conflict agree to support each other in ways that did not previously exist. The conflict thus becomes an event for strengthening relationships and providing for cooperative benefits that did not previously exist. Sometimes discussing future intentions uncovers a need for outside support, training, or other assistance. Without this discussion, these needs would go unmet, providing the seeds for conflict on another day.

When people can come together in hostility and anger, acknowledge injustices, whether mutual or not, decide how to make things right, and discuss their future needs and intentions, they engage in a process of moral growth. They learn to confront their fear, anxiety, and frustration. They learn to listen and to be empathic. They learn to recognize and acknowledge the other's perspective. They become empowered with their own ability to make decisions constructively and cooperatively. They begin to look to the future and rebuild trust. 

Douglas E. Noll, Lawyer to Peacemaker

Creator of Negotiation Mastery for the Legal Pro

California Lawyer Magazine, California Attorney of the Year 2012

One useful way to look at conflict is in terms of power, rights, and interests. Framing the conflict as a power struggle, an assertion of rights, or a satisfaction of interests can dramatically affect the process and the outcome. If you are analyzing a conflict, identifying how the parties see the conflict in terms of power, rights, and interests can lead to transformative solutions not otherwise apparent.

            Power is the ability to have one's way against the wishes of another. A very simple example of power is the power of voting. Whether the votes are cast for political office or organizational positions, the voters have the power to choose. People do not like to be coerced by power. Consequently, resolving conflicts by imposition of will seldom leads to peace. However, there are many situations when resolving a conflict by power is appropriate. For example, I do not want a negotiation in the hospital emergency room when I'm suffering from a cardiac arrest. Similarly, in other emergency situations a clear command structure more likely assures safety and security.

            Rights enforcement is the ability to have a third party decide that one may act against the wishes of another. The threat of rights enforcement can be similar to power and used for negotiation purposes.  Rights enforcement is commonly conducted through the judicial system, but other systems, such as arbitration or grievance procedures may also be utilized. Rights enforcement usually involves a process of naming, blaming and claiming.  When a person's rights have been violated, the violator is usually identifiable. This is naming. Blaming occurs when a causal link is established between the violator and the injury. Claiming follows blaming, usually constituting a demand for redress. Rights enforcement is appropriate when one party of a conflict has systematically oppressed another party. Rights enforcement is also appropriate when one party refuses to acknowledge an injustice or injury. However, rights enforcement leads to more conflict when it is the conflict resolution method of choice. People conditioned to name, blame and claim are less likely to seek peaceful and cooperative resolution of conflict.

            Interests are the things that people wish to have satisfied. Interests are the foundations for positions in negotiations. For example, if in an automobile injury case the plaintiff demands $50,000.00, the plaintiff has stated a position. The interests underlying that position may include compensation for pain and suffering, lost wages, medical expenses, and general aggravation from dealing with the accident. In addition, there may be non-monetary injustices that must be acknowledged and reconciled. Identifying and acknowledging interests often leads to more creative solutions. Furthermore, when conflicts are defined in terms of interests rather than power or rights, people tend to cooperate rather than compete. Satisfying an interest is emotionally easier to accept than compelling action through power or seeking third-party assistance, such as litigation or arbitration.

            If you are analyzing a conflict as a manager, ask yourself if any of the parties are attempting to assert power over the others. Perhaps two people are in a power struggle against one another, seeking to determine who will be dominant in the relationship. Instead of defining the conflict in terms of power, ask the parties to identify the injustices each has suffered and the interests each wishes satisfied. Find out if the parties can work cooperatively to satisfy all of the interests between them. By reframing the conflict as interest-based rather than power-based, you can move the parties from competitive hostility to cooperative teamwork.

            Power, rights, and interests are ways of a looking at and resolving conflict. Whenever possible, seek interest-based resolutions, then rights enforcement, and finally, if all else fails, use a power-based process. 

Douglas E. Noll, Lawyer to Peacemaker

Creator of Negotiation Mastery for the Legal Pro

California Lawyer Magazine, California Attorney of the Year 2012

The job of the lawyer is to not only manage the negotiation so that the best possible outcome can be obtained, but also to help the client overcome the inherent distortions of the human brain so that decisional error is minimized. This is what I mean by cognitive counseling.
Some lawyers shy away from this idea saying that they are not therapists. I think it is important to understand that were not talking about therapy. Therapy involves diagnosis, prescription, and prognosis with the goal of healing injury. Cognitive counseling is more like coaching to help clients make good decisions.

The first step in cognitive counseling is to recognize decisional errors. This will take some practice, but armed with the information he received from you so far, you can see that any type of emotional reaction is potentially the cause of decisional error.

In addition to calling out decisional errors, you can slow the process down. Sometimes getting outside and walking around for a while is a useful way of getting some cognitive rest. Do not allow the process to accelerate so quickly that your client becomes overwhelmed emotionally or cognitively. Frequently, clients will leap ahead to find objections why a certain decision should not be made. As a cognitive counselor, try to maintain the decision-making one step at a time and bring your client back when he or she leaps forward.

In these situations, you will have to make an empathic connection with your client by listening, reading his or her emotional data field, summarizing the essence of what your client is saying, and labeling his or her emotional experience. When your client seems overwhelmed, have your client focus on what is really important. Most lawsuits are not life-changing. Therefore, you can ask questions about what life will look like five and 10 years ahead. Helping your client gain perspective on what is really important can be of crucial importance during the heat of a negotiation.

As I have repeatedly said, take good notes and be sure to memorialize your conversations with your client in a follow-up letter. The problem of the under settled case is growing as negotiation and mediation becomes more of a mainline practice. You will need to keep your client in line by making a written history of what happened.

Cognitive counseling is an iterative process, which means that you will repeat the same things over and over again. Sometimes it will seem like you are spinning your wheels. However, it is your repetition, patience, compassion, and understanding that will be the greatest service to your client. Your client will not remember your brilliant legal analysis. She will remember how you treated her and a very difficult and extreme moment of her life.

Remember, the best way to win the game is to call it yourself.

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

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.

To listen to the entire interview:

Segment 1

Segment 2

Segment 3

Segment 4

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.

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

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.

Normal 0 false false false EN-US X-NONE X-NONE MicrosoftInternetExplorer4

In a past blog, I predicted the failure of Kofi Anan's mediation efforts. This was no magical feat on my part. Anyone with an once of experience in mediation could see that Mr. Anan was the wrong person at the wrong time with the wrong skills for the job. While he is a famous international diplomat, he is not and never has been a trained, professional mediator. That became apparent as he violated mediation principle after principle during his tenure. His resignation, accompanied by a public statement excoriating the international community, was more of a reflection of how he misread and misunderstood the conflict than about the political will of the UN Security Council.

What now? Clearly, a negotiated peace between the Assad regime and the opposition forces is unlikely. Iran and Russia have publicly supported the Assad regime and cannot gracefully retreat without significant loss of international prestige. For the Iranians, in particular, that is unacceptable. Thus, the conflict will have to play out to the end with Bashar al Assad being deposed or running for asylum. His mindset is unfortunately locked into a belief structure that will not allow him to see reality. Hence, he is as likely to be killed in office as to retire from it.

If anyone is thinking in the international community, they should be planning on how to prevent all out chaos and anarchy in Syria post-Assad. With the removal of the Alawites from power, there will a vacuum crying to be filled. A host of interests are eager to rush in, including Shiite fundamentalists, Sunni fundamentalists, al Queda-affiliated forces, and the Muslim Brotherhood. The Syrian people are not experienced in the tug and pull of democracy, do not have a strong civil society, and do not have foundational institutions to allow for a free society. These all have to be built from scratch. At the same time, the bureaucracy has to remain functional to provide basic services. Hopefully, the world learned that lesson from Iraq and Libya.

If mediators can assist at all, they will work on the inevitable conflicts arising in the opposition forces and help the various factions form political coalitions that approach independent self-determination.  This is messy, difficult work. Once the common enemy, Bashar al Assad, is gone, the glue holding together the opposition will melt away. Finding common purpose in a peaceful, nonviolent transition to an appropriate form of government will be very challenging. It will take courageous, visionary Syrian leadership to guide the people.

In addition, the internal factions will face the prospect of dealing with outside spoilers. Those spoilers could include Russia and Iran, looking to maintain and perhaps strengthen their influence in the new Syria. The US and European powers could also be spoilers if they see disadvantage to a truly independent, self-determinative Syria. The Kurds are also a wild card, and may negate Turkey's potentially positive influence on the Syrian outcome. The only way the outside power players can be thwarted is if the Syrian factions unite against outside interference. This poses a classic Prisoner's Dilemma situation for the Syrian factions as the decision to defect from cooperation with other factions may appear more attractive than agreeing to cooperate and facing the possibility of exploitation. Again, mediators might be able to facilitate the decision making process towards cooperation and away from self-interested choices that will ultimately defeat a peaceful Syria.

The experiences in the Middle East over the past 10 years should inform us all that classic international power politics is more likely to generate war than peace. The international powers certainly are not oriented to stability. Instead, they continue to joust for influence by thwarting each other's ambitions and interests. Thus, if the Syrian people want peace and self-determination they will need the discipline to turn away from the power inducements of the west or of Russia and Iran. They will have to turn inward and solve their own problems in their own way. They can do this with the help of skilled mediators. Time will tell if that is the path they choose.