dougnoll’s posthaven

Segment 1: It’s Not All About the Fight.  Mediation is a process by which a neutral party helps people in conflict resolve their issues and move forward in peace. To speak about mediation and how it is used within the legal system we are interviewing Jan Frankel Schau, of Schau Mediation on this edition of The Doug Noll Show. Jan has over 20 years of experience as a litigator, and is also a public speaker, an author, and a mediator (http://schaumediation.com/).

Jan was always drawn to the drama and the narrative of law. Her involvement in mediation happened by accident, when she took a class for continuing education units. She soon discovered that mediation is different in the sense that it has two sides of the story, and the other side might have merit if you dig deep enough. She found with mediation that she didn’t have to be so narrow-minded or laser-focused on whomever had hired her as a lawyer. With mediation, it’s not all about the fight and the win; it’s about solving problems and moving forward.

Segment 2: A Heart Shift.  As Jan dove deeper into mediation she had what she calls a “heart shift” from fight and defend to “let’s work it out.” At that point she knew she was no longer an effective advocate, except for peace and conflict resolution. She didn’t have the fight in her belly anymore.

Lawyers who haven’t been property trained in mediation tend to cram human conflict into a narrow box of legal rights and remedies and processes and procedures, which strips away what makes people human. Mediators have an acceptance of the fact that there can be two truths. Instead of a YES BUT, it could be a YES AND. And out of those two stories emerge a new story of hope and peace.

Segment 3: Middle of the Road.  Jan’s newest book is titled View from the Middle of the Road: A Mediator’s Perspective on Life, Conflict and Human Interaction. It started as a personal self-reflection activity, and turned into a book of real stories with fictionalized characters, plus proven tools and rules for mediators and lawyers. To find out more about Jan’s book, visit http://viewfromthemiddleoftheroad.com/.

Segment 4: Plenty of Room for Peacemakers.  Unfortunately, Jan thinks mediation is a concept that hasn’t quite permeated society yet, although she is seeing more and more innovative programs developed by people with skills in negotiation and conflict resolution. The services are extremely valuable but it’s difficult to get the word out that they are available. She reminds us that it’s important to pull yourself back as a mediator and really listen to your clients. The mediator essentially has two missions: to come to an agreement, and to acknowledge the human side of the conflict. Jan believes there is plenty of room for peacemakers within the context of law. Practicing law is not the only way to help people with their law issues. Visit http://schaumediation.com/ for more information about Jan and her services.

To listen to the entire interview:

Segment 1

Segment 2

Segment 3

Segment 4

The capacity to maintain a “non-anxious” presence within a conflict may be one of your most significant capabilities. Not only can this capacity enable you to be more clear- headed about solutions and more adroit in difficult situations but, a non-anxious presence will modify anxiety throughout the entire group. This aspect of leadership can sometimes do more to resolve issues than the ability to come up with good solutions.

Do not confuse a “non-anxious presence” with the idea of staying cool under pressure. A non-anxious presence is a true state of inner calm. You are connected to your people, but detached from their swirling emotions. Peacemakers are like transformers in an electrical circuit. To the extent that they are anxious themselves, when anxiety in the peacemaking session permeates their being, it potentially comes back into the session at a higher voltage. Consequently, to the extent that they can recognize and contain their own anxiety, they function as a step-down transformer or perhaps as a circuit breaker. In this case, their presence, far from escalating conflict, actually serves to diminish its destructive effect. 

Two aspects of non-anxious presence are worth highlighting. The first is playfulness.  Anxiety’s major tone is seriousness, often an affliction in itself. It is always content- oriented. Its major antidote is playfulness, especially with those for whom you feel responsible. Your capacity to be paradoxical, challenging, earthy, sometimes crazy, and even “devilish,” often can do more to loosen knots in a peacemaking session than the most well-meaning “serious” efforts. This is not because being paradoxical affects the content in the heads of others (reverse psychology), but because the act of being playful frees others by forcing them out of their serious “games.” I have gotten up from a table in the midst of a very heated dialogue between counsel and stepped into a nearby wastebasket. I stood there until they looked up, incredulously. A fifty-year-old man dressed in a dark business suit, standing in an office wastebasket was too much for them.  I grinned at them, they laughed, and the dialogue loosened up. We take ourselves way too seriously in our conflicts and in our efforts to resolve them. This is not to say that peacemaking is not serious, difficult work. It is. But we cannot get too carried away with it. When you have to assume the mantle of peacemaker, keep the load light when you can.

The opposite of playful functioning, which is most likely to heighten the seriousness in a system, is diagnostic thinking. Diagnostic thinking tends to increase polarization, intensifies anxiety, and is the natural manifestation of anxiety. When you become over-analytical, you become anxious about you own analysis. Am I right or not? Will I solve this conflict or not? The parties will pre-consciously sense your seriousness and will misinterpret it as worry or concern.  Their anxiety will skyrocket, with the usual, predictably negative conflict behavior. 

The other aspect of “non-anxious” presence is hope. If the conflict is escalated enough for a peacemaker to intervene, the parties have probably lost any hope that it can be resolved, not to mention transformed. Maintaining a “non-anxious” presence exudes confidence in the parties that they can, together, work themselves out of the conflict. Most importantly, it gives the parties hope. With hope, they will try harder, be more engaged in the peacemaking process, be less competitive and adversarial, and ultimately find the solutions they need. They can be skeptical about outcomes and wary about the peacemaking process. As long as you provide them hope by maintaining your “non-anxious” presence, they will come through. 

Douglas E. Noll, Lawyer to Peacemaker

Creator of Negotiation Mastery for the Legal Pro

California Lawyer Magazine, California Attorney of the Year 2012

Hierarchies are formed through a quiet, usually unconscious, struggle as people sort out who will be superiors, inferiors, and equals. If you look closely at any group, you will see a hierarchy. One person has more respect or popularity or responsibility, and is therefore a “superior.”  Others, usually followers or subordinates, are “inferiors.” People of equal rank are “equals.” The terms “superior,” “inferior,” and “equal” should not be confused with worth of a person. In this context they refer simply to social ranking within a group.

Most of the time, hierarchies are benign and useful. However, superiors can abuse their positions. Likewise, inferiors can ineptly not “fit in.” In our culture, individualism and egalitarianism is so highly regarded, and the notion of hierarchy is distasteful. Thus, most people either overlook or deny the existence of hierarchy. This social blindness can be a mistake. 

People develop their positions in hierarchy through roles and status. Every individual portrays multiple roles deriving from the various communities in which he participates. A person may be superior in one community, but an inferior in another. The complexity of society requires that each person play many roles, alternating between superior, inferior, or equal, within hours or even minutes of each other.

Within a hierarchy, successful role-playing is determined by how well we deal with our superiors, inferiors and equals. We learn these hierarchical social skills as children. Our parents are our first experience with absolute authority. We play before our parents, bring things to them, and entice them to play hide and seek. In this way, we learn to attract and hold the attention of our first significant audience. However, until we learn how to play other status roles, especially roles with equals, we will relate to superiors and inferiors as we learned to relate to our parents. 

Learning other status roles comes from learning manners. Through dress, gesture, speech, and bearing, we indicate to others and to ourselves where we belong or want to belong in our society. All manners are a dramatization of the self, telling others how we want to be regarded and how we regard others. Manners are the daily language of hierarchy, and the absence of manners signifies the absence of social order.

These concepts allow us to consider some causes of conflict. First, conflict arises when people are ignorant of the basic social forces that compel formation of hierarchies. Thus, they do not perceive that a role appropriate in one context or hierarchy is completely inappropriate in another. When people do not enact expected roles, groups act quickly to either force conformity or expel the offender. Conflict can be transformed in these cases when people become conscious of the hierarchies within their lives, and adopt behaviors appropriate to the role of the moment.  

Conflict over bad manners arises from the belief one is not really important in the eyes of the transgressor. A faux pas made out of ignorance (and soon corrected) will be readily excused. With a faux pas, the importance of manners as a social bond is not challenged. Likewise, people laugh at a comedian’s vulgarity so long as what they feel important is not threatened, but people become uncomfortable with savage ridicule or continued vulgarity because this conduct endangers the social order upon which manners are based.

Much conflict derives from poor training in status communication. People want to communicate effectively with superiors, inferiors, or equals, but, because of a status difference, often do not know how to do so. An employee may have a difference of opinion with a supervisor, but may not know how to address that person effectively. Similarly, a superior may not have sufficient skills to communicate effectively to subordinates. Likewise, equals may have difficulty expressing concerns or differences with equals. These are all examples of deficient status communication skills. If a person’s social experience precludes open discussion of differences with equals and superiors, he cannot be expected to welcome it. Thus, inability to deal with hierarchical differences leads to conflict avoidance, anger, frustration, shame and guilt.  

If you are facing a conflict situation within a work group, discern the underlying hierarchy. What are the roles of each of the members? Who is superior? Who is inferior? Who are equals?  What is expected of each role? Is the individual behavior consistent with the role in the hierarchy? If not, is the individual aware of the dissonance between behavior and role? If not, is the problem one of insufficient skills in status communication or possibly bad manners? If the individual is aware of the dissonance, a power struggle may be occurring.

Douglas E. Noll, Lawyer to Peacemaker

Creator of Negotiation Mastery for the Legal Pro

California Lawyer Magazine, California Attorney of the Year 2012

For others, however, peace in the workplace means that employees feel respected, are cooperative with one another, are enthusiastic about what they do, and have a sense of teamwork. They love coming to work and value their friendships. I get excited about this kind of peace.

If peace means the absence of conflict, then both concepts of peace are accurate. But clearly they are not the same. One way of distinguishing types of peace is to consider the idea of negative peace versus positive peace. Negative peace is generally defined as the absence of overt conflict or violence. A ceasefire in Bosnia is negative peace. In the corporate setting, a negative peace may exist when all expressions of disagreement or conflict are suppressed. Employees put on their “happy” faces, pretend to get along, and avoid raising uncomfortable or difficult subjects for fear of angering the boss. The absence of conflict or violence does not lead to a positively defined condition. Hence, peace is characterized as negative. 

Positive peace, on the other hand, may parallel the ancient concept of shalom. Every person is valued and feels valued. There is a right relationship between each member of the work group.  Not only is conflict absent, but an esprit d’corps seems to exist. People are motivated by each other and strive for excellence. A balanced blend of personal, internal competition (How can I improve?) and external cooperation (How can I help the other person do better?) predominates. People are excited about their work. They feel privileged that someone is paying them for what they do.

Most workers would prefer to have positive peace around them. Yet most work environments are satisfied with negative peace. For example, I asked a company president if her company had a peaceful environment. She indignantly said yes and challenged my implication that her company’s environment was hostile. Of course, my question was purposefully unfair because I did not distinguish between positive and negative peace. I then asked her if the peace within her company was positive or negative. She was nonplussed by the question. When I explained the difference, she thought for a moment. To her credit, she admitted that her company probably maintained a negative peace.  

Why do most companies have negative peace? First, companies seek an interpersonal goal of absence of conflict. Absence of conflict is comfortable because anxiety is reduced and a sense of control prevails. After all, overt conflict means anger, loud words, and imminent loss of emotional and possibly physical control. One of our dominant cultural norms dictates lack of emotion, rationality, control, and repression of emotion so as not to be frightened with potential violence. Companies also seek a kind of corporate homeostasis or status quo. Maintaining status quo requires less effort, less thinking, less resources, and less creativity. Any strategy reducing difficult objectives appeals to many over-worked managers. 

Third, companies focus on the financial bottom line or the stock price. The payoffs from the efforts required for a positive peace are not easily related to the current value of stock options.  Thus, the minimum socially and legally required effort to maintain peace becomes the standard human resources objective.  

Imagine, however, how positive peace might operate on a company’s stock value. Employees would be easy to recruit because the company holds a reputation as good place to work.  Retention would not be as difficult. When restless employees compare their environment to other opportunities, positive peace wins. Since most companies have negative peace, the competition for retention favors the few who foster positive peace. Positive peace increases morale, reduces absenteeism, increases creativity, and increases productivity.  People are, to put it simply, happier.

So why don’t companies work towards positive peace? Probably for the same reasons most companies are average financial performers: unawareness, apathy, insufficient human and financial resources, and lack of commitment. Those companies that do concentrate on positive peace find that their investment is rewarded by huge multiples in terms of recruiting, retention, productivity, and valuation in the marketplace. In other words, wealth is proportional to positive peace. 

Douglas E. Noll, Lawyer to Peacemaker

Creator of Negotiation Mastery for the Legal Pro

California Lawyer Magazine, California Attorney of the Year 2012

Escalation is charted in five phases, each having its own characteristics and triggers.   Stage One is part of normal, everyday life. Even good relationships have moments of conflict. These can only be resolved with great care and mutual empathy. In this stage, people look for objective solutions in a cooperative manner. If a solution is not found, especially because one of the parties sticks obstinately to his or her point of view, the conflict escalates.

In Stage Two, the parties fluctuate between cooperation and competition. They know they have common interests, but their own wishes become more important. Dealing with information becomes limited to favoring one's own arguments. Logic and understanding are used to convince or win over the opposing side. At this stage, each party does everything possible to not show weakness. The temptation to leave the field of argument increases until the conflict escalates because of some action taken by one of the parties. 

By entering Stage Three, the field of concrete actions, the parties each fear that grounds for a common solution is lost. In other words, they lose hope for a reasonable outcome. Interaction becomes hostile. All logic is focused on action, replacing fruitless and nerve-wracking discussions. The parties each believe that through pressure they will change the other party. At the same time neither is prepared to yield. At this level, stereotyping is applied as a negative identification of the opponent. Power becomes important as empathy disappears.  

At Stage Four, the parties’ cognitive functioning regresses. One is aware of the other’s perspectives, but is no longer capable of considering the other’s thoughts, feelings and situation. How often have we remarked that parties in conflict are acting like children?  In fact, they are because of the escalation. Both sides feel forced into roles from which they see no escape. If the conflict cannot be halted at this stage, the escalation undergoes a dramatic increase in intensity. Escalation results when one side commits some action that is felt by the opposite side as a loss of face. 

At Stage Five, progressive regression appears in the form of a comprehensive ideology and totalizing of antagonistic perspectives. Sacred values, convictions, and superior moral obligations are at stake. The conflict assumes mythical dimensions. Sometimes the parties have fantasies of omnipotence, seeing no way that they can lose in court. In psychological terms, the escalation has reached a hallucinatory-narcissistic sphere. The entire self-conception is drawn into the conflict such that individual perceptions and evaluations disappear. By threatening and creating fear, both parties strive towards total control of the situation and thereby escalate the conflict further. To remain credible and to restrain the enemy from an act of force, the threatened party feels compelled to commit acts of force itself. This process continues until the parties reach financial or physical exhaustion, or the matter is decided in the courtroom.

At some point along the way, the parties may seek mediation. The difficulty of an escalated case is that the parties must be walked back through the stages of escalation.  If a mediator is not aware of the escalation cycle and assumes that the parties are at Stage One, the mediation is doomed to failure. Furthermore, working back through the escalation stages takes time and infinite patience. The parties may backslide and regress.  Oftentimes, the parties resist the mediator’s efforts to move them into more mature levels of escalation. This behavior is very similar to parents working with children who have temporarily regressed. Sometimes, one party will move to an earlier stage of escalation faster than the other, creating more complexity. Thus, the mediator’s function is to act as a guide for the parties, assisting them in finding their way to the common ground of Stage One. Only when the parties have reached Stage One will they be ready to find a common ground for resolving the 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 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.