Wednesday, February 15, 2017

"Us" vs. "Them"

You want to know about us? The kind of people you can trust, that's us. Reputable people. About them, they are the ones who caused the problem, not us. The thing about us, is that we're right. We did nothing wrong. OK, maybe we made a few mistakes, and the biggest mistake we made was probably getting involved with them. But for the most part, we're right. As for them, they betrayed our trust. They took advantage of us. They cheated us. We don't want anything to do with them any more. We just want them to admit they were wrong, pay us back, and leave us alone. But even if they did that, how could we trust them? They'll say anything, and then stab us in the back.

Why should we even listen to them? They have nothing to say to us. They'll just make us angry. They lied to us, and we can't trust anything they say. Anyway, they can't possibly win, if there is any justice. What they did was wrong, and blatantly illegal. Anybody who listens to us can easily understand that.

Another thing about them is that they are different from us. How else could they say the outrageous things that they say, and do the outrageous things that they do? They don't have the same values as us. They are evil and disgusting. If you can't see that, maybe you're one of them.

Friday, February 10, 2017

Limiting options

There is a measure on the March ballot in Los Angeles, Measure S, that would among other things force a two year moratorium on most new big real estate development projects in the city. I'm not going to discuss here the merits of this proposal, even though I have definite opinions on the topic. I'm only going to address how our political and legal processes frame decisions. In this case, instead of allowing a healthy public debate over the scale, density and location of new apartment construction, in which we could consider a range of ideas, and perhaps reach solutions that serve a number of competing interests, this ballot initiative now forces use to choose only whether we are for or against one particular proposal. We listen to the proponents spin a narrative about preserving neighborhoods against greedy real estate developers determined to profit at the expense of our quality of life, while the opponents tell an equally compelling, competing narrative about the need to accommodate a growing population without rents spiraling out of control. To win the debate, both sides are prone to exaggerate the merits of their own proposal, and the faults of the other side. The debate is contentious because voters may choose only one side or the other, and are not allowed to search for a consensus solution.

Few people would try to justify the initiative process as an ideal way to make policy. Instead, initiatives get put on the ballot because some powerful interest becomes frustrated with the normal process of legislative decision-making on an issue. And often that frustration is justified, because the partisanship and corruption of the "normal" legislative process does not always create an ideal environment for making good policy either. But at least the City Council does not have to limit itself to only voting yea or nay on one particular way to approach a problem. It has the ability to consider many ideas, and can strike a balance between competing proposals.

Moving from the local to the national level, the new administration in Washington is also presenting us with some unfortunate "either-or" decisions. No longer are we talking about reaching legislative compromises on comprehensive immigration reform, for example. Instead we have been presented with ideas somewhat out of mainstream thinking, such as building a wall on our southern border, or temporarily banning entry from certain Muslim nations. And people are forced to line up for or against these proposals to address particular aspects of immigration policy, rather than being allowed to collaborate on solutions to broader questions. Whether people think these are good ideas or bad ideas, it appears that their implementation (or non-implementation) may make it harder to address other aspects of a much more complicated problem. When these political solutions inevitably turn into legal disputes, they devolve into another kind of an "either/or" choice. Our courts are now embroiled with deciding whether the temporary ban is constitutional or not, a binary problem that barely begins to address the whole complicated issue of immigration policy.

Proposals like Measure S, or like the Muslim ban, made by outsiders to the traditional political debate, have the power to upset the whole framework of that debate, and can make the solutions previously on the table impossible. People presented only with the choice of saying yes or no to a new radical proposal, tend to adjust to this new reality quickly and gravitate to one side or the other in the new framework. In that way the radical new idea becomes normalized.

"Either/or" thinking also permeates my world of business conflict resolution. Business disputes may be caused by a range of problems, including management failures, personality issues, and factual misunderstandings. But as soon as somebody threatens to go to court, the whole complicated array of problems that gave rise to the dispute may end up getting framed as an "either/or" question of whether somebody violated a particular contract provision, or committed a tortious action. The parties to the dispute will obviously line up on opposite sides of that question, and the deciders of the controversy may be limited in their choices to yes or no, up or down, guilty or not guilty. The real causes of the conflict may never be addressed, and other solutions to the conflict, beyond the narrow question presented to the court, may never be considered.

In sum, there are at least two problems with this prevalent mode of conflict resolution. One is that we have artificially limited the solutions to only an up or down vote on one particular issue, and foreclosed our ability to consider other ideas. The second is that we have forced the disputing parties to take antagonistic positions, investing them with the motivation to deny the validity of anything the other side is saying, rather than allowing them to work together to design a solution that may work better for both of them.

Eva Strauss

Thursday, February 2, 2017

"Soft" and "Hard" Negotiations, part 2

Yesterday, President Trump had a contentious call with Prime Minister Turnbull of Australia, in which he questioned a deal made by the Obama administration for the United States to accept a number of refugees currently held in detention by Australia, indicating we might not honor it. Other government officials spent the day trying to smooth over the disruptive and aggressive conduct of our new president.

What is ironic is that Australia has long had a much tougher and more racist immigration policy than the US. We detain people claiming refugee status until their cases are determined, but Australia refuses to allow even people who have been deemed refugees to set foot on the mainland, so they remain in deplorable conditions in offshore camps. Trump has thus gratuitously insulted someone with whom he should be in sympathy on this issue, in fact someone who is taking a much harder line on immigration than the United States does.

The question then is whether negotiations should be handled in an adversarial way, even when you have two people with similar views trying to deal with a common problem. There would seem to be no obvious reason for doing this, so it might be a case where the president is conditioned to react in a hostile and threatening manner even when that style might be counter-productive to reaching a resolution of the issue. Some litigators tend to handle every case in an aggressive way, simply because that is what they have been trained to do. Or as the saying goes, if the only tool you have is a hammer, every problem starts to look like a nail.

Whether President Trump finds it necessary or appropriate to moderate his aggressive style remains to be seen. If he doesn't, then we can expect to see more of what we saw today, which required others to move in and clean up the damage after an angry outburst from the president.

Monday, January 30, 2017

"Soft" and "Hard" Negotiating Styles

When you look at the literature on negotiating, you tend to find (at least) two schools of thought. One, exemplified by Fisher and Ury's Getting to Yes and its progeny, is a "win-win" approach that emphasizes communication and exploration of parties' underlying interests. The other is more of a "win-lose" philosophy that emphasizes getting the upper hand in negotiations and gaining profits for one side at the expense of the other. Some have labeled these as "soft" or "hard" approaches to negotiation.

Before trying to evaluate which approach to negotiation has more validity, I should note that there is some overlap between the two camps. An interest-based bargainer might say that being mindful of the other side's interests does not require you to sacrifice your own for the sake of a deal. Thus, it is not inconsistent with interest-based bargaining to make efforts to get the best deal you can.  On the other side, even the hardest of hard-boiled negotiators tend to recognize that the deal has to have some value for the other side, otherwise they will not enter into it, or they will not be able to perform it down the road. Lots of negotiators favor combinations of the two methods, following the time-honored "good cop-bad cop" technique.

One of the claims to fame of our new president is that he is an expert negotiator. He brags about his deal-making prowess, he has written books on the topic of negotiation; and his campaign was based in large part on promises to negotiate better deals for this country, especially on trade. President Trump's ideas about negotiating decidedly fall into the second camp. Admiring his tough talk, Trump's supporters believe he will get better terms from our trading partners, and dissuade companies from moving factories overseas, while Trump's detractors see him as a bully who will exacerbate rather than resolve conflict. Trump himself talks a lot about "winning."

President Obama, on the other hand, obviously exemplifies the "softer" approach that tends to be favored by mediators. He talks about finding consensus, and working together with people of different views to create constructive solutions. I have always thought of Obama as a mediator or conciliator himself, not as someone attempting to impose his will on others. I believe his style accounted for a lot of his successes, but he faced criticism from both supporters and opponents for not being "tough" enough. (At times, however, when Obama's opponents weren't complaining about how weak he was, they were attacking him for being dictatorial.)

This highly-charged election season can be seen in part as a referendum on negotiating philosophy. We are obviously deeply divided on this question, but it might be comforting to know that it is an issue more of style than substance. (Not that there aren't issues of substance that also divide us, but I'm not talking about those right now.) The country has now been jolted into an abrupt shift from one style to another, and the transition has been far from smooth. It remains to be seen, of course, how successful the "tough" approach to negotiating will prove.

Trump can already point to signs of success in getting companies to back down from plans to shift operations to other countries. He has hit some bumps, on the other hand, in negotiating with Mexico on who will pay for the planned border wall. Trump's speeches boasting that he would make Mexico pay may have gone down well with supporters, but this kind of talk was probably humiliating to Mexico, and has only intensified their opposition to the idea. To save face, Mexico's president has already canceled a meeting with the new president. And President Trump has somewhat softened his tone, now arguing that building the wall would be in Mexico's interests as much as ours. (Imagine Donald Trump, acting considerate of the opposing party's interests!) Trump says that he believes that torture works, but he also said he will defer to the new Secretary of Defense, who thinks he can get more out of a detainee with a couple of beers and a pack of cigarettes than by resorting to water torture. So stay tuned, and we'll find out how tough the tough talk really is, and how well it is working.

Thursday, January 19, 2017


Parties in conflict may face a choice among various processes for conflict resolution--litigation, arbitration, mediation, or some other formal or informal process. Attorneys are accustomed to presenting their clients with this array of options, and explaining the pros and cons of each. But the choice of process may turn out to be less important in many cases than the choice of approach to resolving the conflict.

Parties choosing litigation, for example, are likely to enter that process with an adversarial mindset, filing every possible motion, and disputing every assertion made by the other side. This is the way many of us--including myself--were trained to litigate. But litigation can also be conducted with a more cooperative attitude, and nowadays courts tend to encourage parties to work out disputes over pleadings, discovery and other pre-trial issues in a more collaborative manner. In many cases, parties forego a lot of permitted discovery and motion practice in the hope of resolving the case without incurring unnecessary costs. Litigation allows room for collaboration and negotiation.

Parties entering into mediation may understand that the process is supposed to encourage sharing of information and proposals for constructive solutions. Frequently, however, they arrive at mediation with the same adversarial attitude that we associate with litigation, determined to argue their case vociferously, and give in only grudgingly to their adversary's demands. Sometimes that kind of belligerent attitude can even be effective in achieving a more favorable settlement. And some mediators conduct mediation in a quasi-judicial manner, offering their evaluations of the parties' respective positions on the merits as if they were being presented in court. Mediation allows for strident advocacy and adversarial tactics.

I'm not suggesting that a cooperative approach is always better than an adversarial one. Sometimes you have to fight. What I am suggesting is that parties consider their approach to conflict as carefully as they consider the process for resolving their conflict. And most of the time, they will probably find that they can achieve more of their goals when they adopt a more cooperative attitude, whether they find themselves in court or in a more informal setting.

Saturday, December 31, 2016

Family business disputes

Problems that arise in running a family business sometimes manifest themselves as legal claims. That seems obvious when the company gets sued by an employee or vendor or customer, but can also occur when the other owners choose to invoke the courts when they suspect another family member of financial improprieties or mismanagement. Anger at the alleged offender can then fuel the fires of litigation, turning the conflict into a costly experience that can not only destroy the business, but can also destroy the family. And litigation may never resolve the underlying causes of the conflict, which could stem from sibling rivalry, parental favoritism, or some form of abuse. Those underlying causes of conflict can't always be resolved, but they should at least be identified, so that the parties understand that they either need to deal with them, or perhaps dissolve or re-structure their business relationships.

The importance of identifying underlying causes of conflicts can perhaps best be appreciated in situations where problems arising in a family business don't naturally appear as a "cause of action." For example, one partner is not seen as pulling their weight. Or the owners simply have different strategies for running the business. If the parties can't construe these problems as breaches of contract or torts, they are precluded from resorting to the legal system to resolve them, and that can be a blessing. Family businesses usually deal with these kinds of problems by informal means, or they allow them to fester.

That's when business owners should look for attorneys who can help them negotiate a buy-out of the interests of a disgruntled partner, or reassign the owners' roles in the company. Mediation may also be invoked to help families work through the underlying causes of their conflicts. Family businesses should also consider using informal, negotiated processes for resolving problems that seem to raise legal claims. Why treat a conflict raising legal claims differently from a conflict that only creates problems for the business? Both may be driven by the same sorts of personal issues, and confronting those issues may be necessary to solve both kinds of cases. Litigation may only create new problems for the business without touching any of the underlying grievances, allowing them to reappear later in another context. That would suggest that families should resist the urge to "make a federal case" out of every claim arising from a partner's alleged dereliction of duty, but instead to try to understood the root causes of those actions. The challenge is to overcome a natural reluctance to confront difficult underlying issues, even when those issues may be poisoning the parties' relationships or harming the successful operation of the business.

Friday, November 25, 2016

Lost in translation

How do we know whether those with whom we are dealing have hostile intentions? How do we establish communication with them? How do we develop trust? The new science fiction movie Arrival addresses these common problems in conflict resolution.

Confronted by forces that appear new and dangerous, our human instincts urge us to fight or flight. Those instincts may also lead us to interpret ambiguous gestures in a threatening way. We face these challenges even when we are dealing with people we know who are speaking our language. Imagine being confronted by an alien race that communicates with symbols we have no key to interpret. The movie nicely illustrates the linguistic complexities involved in asking a simple question like, "What is your purpose here?" It also shows what can happen when communication is misinterpreted. Did the aliens really use a word meaning "weapon"? Or did they mean "tool"? A lot rides on getting the right answer to this question.

The film attempts to make some larger points about language, arguing that the language we speak can actually affect the way we think. The idea that learning a new language might also awaken some new abilities in ourselves takes this point to a more magical level. But sticking to the known and  familiar, we know, when we try to resolve conflicts across cultures, that different cultural norms and habits can affect the way people perceive a problem. The way people of different backgrounds express a problem also affects the ways they approach solving it.

Not only does this film show just how difficult it can be to establish communication, it also preaches the virtues of collaboration over competition. The problem presented by this story can only be solved by twelve different nations working together and sharing information. Once these groups start distrusting one another and withholding information, they risk war. So it's a film that works both on the micro level of establishing communications between two parties who have difficulty understanding each other, and on the macro level of building world peace.

Tuesday, November 22, 2016


Senator George Mitchell, the architect of the Northern Ireland peace agreements, spoke at the SCMA Conference the Saturday just before the election. Not knowing or making any assumptions about who would win, Senator Mitchell addressed what we, and the next president, need to do next to help bring us together and solve some urgent problems. He stressed the importance of listening to opposing views, and working together to find consensus on policy issues. Our political system is supposed to encourage that kind of cooperation because our system of separation of powers, unlike a parliamentary system, rarely puts one party in total control of the government. So what tends to result when the two parties fail to cooperate is political gridlock. That just makes voters even more disgusted with the political process, and even less interested in cooperation. It's a vicious cycle.

Since the election, I see few signs of adversaries reaching out to work with political opponents. President Obama has been gracious and cooperative, but he is about to surrender power. On the Trump side, the names being floated for Cabinet and White House positions do not inspire much confidence that the Trump White House will act in a conciliatory manner. And on the Democratic side, we are already hearing much talk about engaging in the same kind of total opposition to anything the president proposes that the Republicans have engaged in for the past eight years.

While the instinct for payback is natural and understandable, those combative tendencies are not necessarily politically smart, or good for the country. Talk of complete resistance to anything the new government proposes may only increase its authoritarian impulses. Instead we still need to make an effort to listen to opposing points of view, and find points of agreement where we can. We need to have faith that respect for the rule of law will be strong enough to prevail against the most potentially dangerous proposals of the incoming administration. And the new administration needs to make good on early promises to unify the country.

Tuesday, November 8, 2016

Public Meetings

Dorit Cypis put together an interesting workshop at the SCMA conference this past weekend, in which participants explored the power of forming small groups to engage in dialogue. This format has been used successfully in a number of contexts to allow different points of view in a community to be expressed and understood. (See my post below on the Days of Dialogue programs on the future of policing.) It works because the participants in these groups learn to see one another as human beings They feel safe in telling their stories and expressing their feelings because they are taught to listen respectfully when other members of the group do the same. The topic in our small groups at this conference was the very process in which we are engaged. In other words, we were encouraged to talk about our civic interests and experiences, and the tools we could bring to bear to facilitate dialogue on public issues.

Last night I happened to attend a public meeting in my neighborhood sponsored by the Army Corps of Engineers and attended by other interested groups, to talk about plans for a nearby stretch of the LA River. They did not set up the room with round tables inviting random members of the community with varying concerns to engage in dialogue with one another, the format we were exploring over the weekend. But they also chose not to use the typical public meeting format either, where members of the audience are situated in opposition to officials who sit in the front of the room, and given a few minutes in front of the microphone to voice concerns to the people with authority. Instead the sponsors of the meeting employed a hybrid format where a number of tables were arranged around the auditorium, staffed by groups with different areas of expertise and interests who could answer questions from the public.

At least one member of the public was upset by this format. At the end of a short introductory message, where a Corps spokesman explained they would not be taking questions from the floor, she stood up and loudly protested being denied the right to publicly ask her list of questions, crying out, "This is supposed to be a public meeting!"

As much as we recognize the limitations of the traditional format of public meetings, it seems that some members of the public, and perhaps some officials also, actually prefer a confrontational style. Perhaps they feel that an "on the record" format is the best way to hold their officials accountable.  Or perhaps they simply enjoy engaging in confrontation rather than dialogue. I didn't get a chance to ask the woman who was unhappy about being denied the chance to stand up in front of everyone and ask her questions publicly, why she felt that was so important. But the episode did make me realize that it may go against the grain for at least some members of the community to ask them to eschew confrontation and conflict and instead engage in dialogue and collaboration.

I also learned that the thing that members of the public such as myself think of as the river bike path is instead thought of by the Army Corps of Engineers as an access road to a flood control project, that they allow the city to use as a bike path. A number of meeting formats can allow these different conceptual views to be expressed. I continue to believe, however, that a more collaborative process is best for designing solutions that serve all legitimate interests.

Monday, October 3, 2016

Voting against peace

On Sunday voters in Colombia surprisingly rejected a peace agreement that took the parties years to negotiate. The agreement would have ended more than 50 years of a civil war  that has pitted the government against the rebel FARC army. This setback for the cause of peace comes the same week that Israel buried Shimon Peres, one of the country's great peacemakers, the same month when a hard-won ceasefire in Syria seems to have collapsed, the same year that the United Kingdom voted to pull out of the EU treaty that has helped keep the peace in Europe for a generation, and the same year that has seen the growth around the world of nationalist movements, and of fears of trade and foreigners. In the United States, our political system has been disrupted by a campaign based largely on opposition to trade, hostility to outsiders, and distrust of diplomatic solutions to foreign conflict.

What is going on? Are people tired of making the compromises necessary to obtain peace? Is the world suddenly in a more warlike mood? Do people prefer to maintain their principles, their grudges, their hatreds? Or are we simply facing an upsurge in second-guessing the results of negotiated agreements, based on popular distrust of political leaders? Many people who did not participate in the negotiations of the Colombia peace agreement, just like the Iran disarmament agreement, or the TPP for that matter, apparently believe that better deals may be obtained if their side just acts "tougher" at the bargaining table.

In the case of Colombia, it is understandable that a generation that has grown up with violent conflict is reluctant to let go without a more satisfactory settling of scores. Opposition to the peace agreement seems to be based on a combination of distrust of the enemy the nation has been fighting for so long, and an unwillingness to accept its members back into society. The former president of Colombia, an opponent of the treaty, said that peace is an illusion, and that the proposed peace agreement was too forgiving of the rebels.

The good news, though, is that both sides in Colombia seem to be tired of fighting, and agreed at least on the idea that violence is not the best solution to conflict. Perhaps they will at least lay down their arms, even if they haven't yet been able to come to terms that their constituents will accept.