I Need Your Help

I was having lunch recently with a friend.  She started to tell me about a situation she was having with her neighbor.  It involved a tree in the neighbor's yard that was growing in a way that was damaging the wall between the two properties.  As she was relating the story to me, I started to get a little anxious.  You see, what she was describing is the way that a lot of pretty nasty lawsuits get started.  I worked on a case like that a while back.   It went on for years and reached some truly ugly levels with a couple of incidents where things got physical and police were called.  It was a textbook example of how not to manage conflict.  I'd heard many similar stories from other lawyers, and as my friend started to tell me about writing a letter to her neighbor to deal with the situation, I was worried that I was going to hear another ugly story.  Fortunately, as my friend related the words of wisdom she used to start her letter, I knew that wasn't a concern.

Dear Neighbor,

      I need your help ....

Four simple words, but quite powerful.  You take a potential enemy and enlist them as an ally, and sure enough, that's exactly how things worked out for my friend.

This is a great example of a concept discussed in the book Getting to Yes, by Roger Fisher and William Ury.  They suggest that when negotiating with someone you "separate the people from the problem."  Doing so makes it less likely that the person you are dealing with will react defensively.  My friend went a step further and asked for help.  Maybe I'm naive, but I believe that most people like being helpful when given the opportunity.  I've taken this approach with people lately, and it sure seems people respond well.  Interestingly enough,  I've had a couple situations where I haven't even explicitly asked for help.  Instead I just thought of the person in question as a partner instead of an enemy, and it definitely made a difference.  Not only does it help in my dealings with the other person, it helps me focus on what is now our problem.  

Working Together

I discovered a new favorite in the art world this week – maybe I should say favorites actually.  Following a link shared by a friend, I learned about Mica Angelea Hendricks and in particular was drawn to this post in her blog.  Mica tells the story of how one day her 4 year old daughter asked if she could draw in Mica’s sketchbook.  Not just any sketchbook, but Mica’s new, special, very high quality sketchbook.  Mica tried to divert her daughter’s attention to her own art supplies and away from Mom’s special book, but it was a lost cause.  Her daughter was holding a trump card, really the trump card.  “If you can’t share, we might have to take it away if you can’t share.”  Yup, that was check and mate.

Mica had drawn a lady’s head, and she told her daughter that she was about to draw a body to go with it.  Her daughter assumed those duties.  Mica initially resigned herself to just discarding this sketch, but when she looked at what her daughter drew, she loved it.  In Mica’s words:

Not surprisingly, I LOVED what she drew.  I had drawn a woman’s face, and she had turned her into a dinosaur-woman.  It was beautiful, it was carefree, and for as much as I don’t like to share, I LOVED what she had created.

And this is what they created:

They developed this system.  Mica drew the heads, her daughter would add the bodies and then Mica would add colors and highlights to finish the piece.  You can see lots of their work on Mica’s blog.

To me there are a ton of lessons from this story.  The one that jumps most to mind for me though these days is the beauty that can come from collaboration.

Collaboration produces results that individuals working alone would never achieve.  I know Mica only through reading her work but I’m very confident she would agree that she would never have gotten to dinosaur-woman here on her own.

I’m a big believer in collaboration.  Like with Mica and her daughter I often find that when I work together with other people on projects that we produce results both unexpected and beautiful. 

Reboot

     Things have been dormant in the blog for some time - over a year actually.  My how time flies.  It’s not that I haven’t had anything to say, but I haven’t been able to fit what I had to say within the format I defined before – so I let things sit.  Lately though I’ve had more of an urge to do some writing and I’ve decided that rather than struggling to fit my ideas into the format, well I’ll just redefine the format.

So, going forward the format is simply that this is my personal blog.  I’ll use it to write about things that are important and interesting to me, and that means that I’ll still write a lot about music and I’ll still write a lot about law and conflict resolution – these are my passions.  But if something else pops in my head and I get the urge, I’ll write about that as well.  Basically, I’m trying to set the rules aside, and let things flow.  Looking forward to seeing where it goes.

Tell Me Why

In a previous post I discussed three general categories of musical skill, theory, technique and feel.  I wanted to explore theory a bit more.  Theory is basically understanding the "rules" for how music is structured.  Someone with a solid grasp of music theory will have a good sense of what kinds of notes will sound good together.  This will help them compose in a purposeful way and will also help them with improvisational skills.  Now this is not to say that someone without a solid theoretical foundation is incapable of composing or improvising something that will sound good, but without the theoretical base, such successes will tend to come more through trial and error than being planned in advance.  Knowing theory lets you be more purposeful in what you're doing because it helps you understand the answer to the question of why certain things sound a certain way.

Understanding the why of something is tremendously powerful tool.  In the musical example, it takes you from being someone who can reproduce a set of notes written on a sheet of music to being someone who can generate the notes in the first place.  Answering the question why is also a critical skill for a mediator or negotiator.

This fact was ably demonstrated in a blog post this week from Tammy Lenski talking about a negotiation she was personally involved in.  She was negotiating a contract and the other party insisted in a 20% reduction in the proposed fee.  I won't spoil the ending, but I will say that Tammy used a creative solution that satisfied both parties and the key was understanding the why behind the other side's position.

Mediators, particularly those mediating cases that are in litigation, tend to walk into conflict well after it has arisen.  Often, parties have become firmly entrenched in their positions.  Now obviously, if those entrenched positions were compatible, the parties wouldn't need the services of the mediator so the mediator must begin deconstructing those entrenched positions in order to allow the parties to decide if they can reach a resolution.

The question "why?" can be a very powerful tool in that deconstruction process.  Suppose that a party is walking into mediation insisting that they will not settle the case for less than $X.  It is critical to gain an understanding of why that figure is significant and the best way to gain that understanding is often just to ask, why $X?  In Tammy's example above, she got a fairly straightforward answer to that question, but often it is going to need to be asked several times and with subtle tweaks.  It may well be that even the party doesn't really know the answer to the question "why" they are taking a certain position, it's just been ingrained in them.  Once you understand the why behind a position though you can start looking at alternatives that still satisfy the same why and once you've opened those alternatives up for the parties, you're often well on the way to resolution.

Today's post title shows up in titles and lyrics to a number of songs.  I'm a little chagrined to admit that the one with which I am most familiar is the breakthrough 1999 hit from The Backstreet Boys, "I Want it That Way".

Cover Me, Come on Baby, Cover Me

Recently I was participating in a mediation as counsel for one of the parties.  It was a somewhat complex case with multiple parties, so there were several moving parts that the mediator had to coordinate.  Over time the mediator helped the parties close a pretty significant gap and eventually the case settled.  As usual, the people getting money took less than what they walked in feeling entitled to and the people writing checks wrote bigger ones than they thought they should have to when they arrived.  So how did that happen?

I observed something when the mediator was interacting with my client, a common theme that ran through the things discussed in our caucuses.  The mediator could see where the case needed to go to resolve, the mediator could see the position of my client and what was blocking them from getting to a point where the case could settle.  In this particular case, I think the mediator sensed that one issue my client would have would be explaining to their boss why they should pay more than what had been settled on prior to the mediation, likely a very common dynamic when dealing with representatives of large institutional clients.

Now there weren't any real magic words that the mediator used at this point.  They really just went over points that, candidly, my client and I had discussed prior to the mediation.  Sure enough though in fairly short order, my client was well on board with the new position and was agreeing to champion it within the company.  Some short internal communications took place and voila!, a change in position emerged.  The case resolved.

So again, how did that happen?  It occurred to me that what the mediator had done, was to give my client something very important, cover.  The change in position could easily be justified with, "Well the mediator says XYZ."  I thought about what must have gone on in other rooms.  The Plaintiffs in the case, in my opinion, walked in with unrealistic expectations.  I thought of times I had represented clients with unrealistic expectations.  One dynamic that an advocate has to be concerned with is where a client feels that the lawyer is not advocating vigorously enough.  This dynamic can cause some lawyers to temper comments to their clients (I know it did me early in my career).  I can think of many mediations I've participated in where after talking with my client and a mediator I was able to recommend a compromise I knew made sense a little more vigorously than I had before talking to the mediator.  What happens there?  The mediator gave me cover to change the tone of my recommendation to the client.

One very common element covered in mediation training is the idea that you should get people to focus on their interests instead of their positions.  In the examples I went through above, people were locked into their positions.  The institutional client feels locked into the institutional position, the lawyer is locked into the position of supporting their clients position.  The mediator though, by providing cover, creates a safe space  for the person in question to take the focus off of their position and look at what is in their best interest.

Don't think the need for cover exists only in dealing with representatives of large institutional clients either.  Maybe it's a small two person business, but the representative who is present at the mediation doesn't want to change positions from what they've discussed previously with their partner.  We all need a little safety to make tough decisions.

A very similar dynamic goes on among musicians playing together in a band.  At some level, everyone wants to play right.  As we talked about before though, wrong notes are inevitable.  Part of what band-mates do is stay aware of what's going on with the other musicians.  If something goes wrong with one person, the others will jump in and cover things.  This creates a safe environment for all the musicians to take risks knowing that if there is a problem, the others will cover for them.

So when mediating, include the issue of cover on your list of things that are constantly evaluated.  Ask yourself what is locking someone into certain positions.  Is there an outside dynamic going on and, if so, do you have the opportunity to give that person cover to look at things in a fresh way.  Arm yourself with cases of rhetorical umbrellas that will give people the cover they need to to consider all the relevant issues and then make an informed decision.

Today's post title comes from the Bruce Springsteen song, Cover Me, off of the Born in the USA album.

Out of the Way, It's a Busy Day

For much of the time I have played musical instruments, I have struggled with technique.  For whatever reason, I never seemed to have quite the dexterity I wanted to move my fingers fast enough to play highly technical (i.e., fast passages with lots of notes) pieces.  Now, I'm still not the world's greatest technician, but I have dramatically improved recently.  More importantly though, I know now that I have the capacity to be very strong technically.  It started with the realization that there weren't any physical limitations impeding my abilities.  I mean we're just talking about nerves firing, muscles contracting, tendons pulling.  I can do all those things.

So once I figured out that there wasn't any physical reason to keep me from flying my fingers up and down the neck of the guitar, I had to ponder the question of why they weren't.  It became pretty apparent to me that the impediment was mental.  I realized that I was just thinking too much about what I was trying to do.  I needed to stop thinking, and just do it.

I began to practice with the goal of not thinking about what I was doing and I found myself slipping into that state.  Unfortunately, when I would become aware of this nonthinking state I started thinking about it. Being able to let yourself go in this way is just another thing that must be practiced and learned.  I've adopted a little mantra to help myself let go.  When a little too much concentration starts to seep in, I just tell myself, "Stay out of your own way."

So I had lunch with another mediator today.  At one point in the discussion we were talking about the uncertainty that arises during mediations and how the mediator needs to make decisions in the face of a lot of unknowns.  When talking about making those decisions, she said, "Just trust the process."  To me she was saying that she has to rely on knowing that if she keeps going through the steps she knows to take in mediation that the process will unfold appropriately.

It occurred to me that the process of letting go while playing an instrument was really just trusting the process involved in your musical technique.  The mediator who is truly trusting the mediation process, is staying out of their own way.

Today's post title is taken from the lyrics, of the Pink Floyd classic, Us and Them off the Dark Side of the Moon album.

Right to be Wrong

The other night I was practicing my bass.  I was working on playing lines where I would need to move my hand along the fretboard as opposed to lines that involved my left hand staying in one place.  One of the goals was to be aware enough of the neck of the bass that I didn't need to look to make sure I landed in the right spot when I moved my hand.  Things were going along pretty well when at one point I went one fret too far with my fingers and landed on a wrong note, a note that was out of key for the chords I was playing over.

When I hit that wrong note I was able to move back to the right notes without too much difficulty.  It didn't sound great though and it would probably have been apparent to anyone listening that I had made a mistake.  Something inside told me that there was opportunity in that mistake.  I needed to make it again, fearlessly and I could do so because it wouldn't sneak up on me, I would  know it was coming.  I needed to embrace the wrongness of the note.  So I did, I consciously made the same mistake - without looking, I might add - and just let that note ring.  I listened to how it sounded.  I noticed that while it was definitely uncomfortable, it was also compelling.  It was like I was caught in a tractor beam.  I applied some rhythm to that note and allowed myself to listen to its wrongness comfortably, and that meant I could react to the wrong note, not from a position of fear, but from a musical position.  I could think about how to comfortably, musically get back to right notes.

I then explored some different ways to move from the "wrong note" back to the "right notes".  I listened to how that sounded as well and it was soothing.  As much tension had existed while the wrong note was ringing, there was that much relief when I was back on right notes.  It occurred to me as a musician that an audience will have a lot of room to forgive, perhaps even appreciate those "wrong" notes as long as you take them back to a comfortable place in the end.  Play fearlessly - mistakes will occur - but it's not about mistakes happening, it's about how you react to mistakes.

The mediator's equivalent to a musician's notes are his words.  Just as a musician has to deal with the inevitability of playing a wrong note, a mediator has to deal with the fact that he will inevitably choose some words that will rub one of the participants in mediation the wrong way.  Such situations certainly have the potential to completely derail the proceedings, so it is essential that the mediator be comfortable once they hit a "wrong note".  They must have the ability to lead the conversation back on track in a graceful manner to allow things to keep moving forward.

Having this ability carries with it another important benefit.  If one knows how to comfortably recover from a mistake, then there is no need to fear making a mistake.  Just as the best musicians are able to play without fear, so must the best mediators be able to do so without fear.  If one strives to mediate fearlessly then they will have the best opportunity to reach their full potential.  So launch away into your mediations with abandon and without fear.  Will you hit a "wrong note"?  More than likely yes, but you won't be worried about that.  Like any great jazz musician, you will know how to play the "wrong notes" right!

The title of today's post is the name of a song by Joss Stone.