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.