The Complexities of #MeToo

We won’t sugar-coat it: Harassment claims destroy lives – even when valid, even when vindicated. But it matters a lot to people to feel that their workplace is safe. The #MeToo movement raises deep-rooted complexities. “Men could be falsely accused of harassment or assault. Women could lose out on opportunities at work because men will be afraid to work with them. The punishment for less severe forms of sexual misconduct could be the same as for more severe offenses.” These were among women’s top concerns about the #MeToo movement in a national survey Vox conducted with the media firm Morning Consult in March of this year. These concerns were held by a majority of women surveyed — 63 percent were very or somewhat concerned about false accusations, 60 percent worried about lost professional opportunities, and 56 percent were worried about perpetrators getting the same punishment for different misdeeds.
Read full article here.

Pressures leading to the #MeToo movement in October 2017 were mounting for years (probably decades), beginning with the feminist movement in the ’60s, which raised the consciousness in which women shared experiences of sexual assault and harassment – i.e. the first “MeToo.” We also have key legal and cultural precedents, notably the 1986 U.S. Supreme Court case Meritor Savings Bank v. Vinson, and the high-profile 1991 Senate confirmation hearing of U.S. Supreme Court nominee Clarence Thomas in which law professor Anita Hill testified that Thomas sexually harassed her in the workplace.

The point is that #MeToo isn’t new and didn’t develop as the latest social justice trend. Social movements like #MeToo are usually rooted in deep structural marginalization over time, until the “dam” finally breaks – at which point, players in the present moment pay the price for the many years of inequity and mistreatment. The results can be disproportionate and sometimes misplaced. At Pactum Factum, we have also seen situations where a harassment allegation in the workplace is used a sword rather than a shield (e.g. an under performing employee’s anticipation of an upcoming performance evaluation or adverse action; or other ulterior motive). The notion that “a person wouldn’t come forward and put themselves through the unpleasantness of vetting such a claim unless it were true” does not necessarily hold. But the idea behind the #MeToo movement’s subtitle, “Believe Women,” is that every claim should be thoughtfully heard and thoroughly investigated. A moral and practical balance must be struck when navigating the multiple states of Unknown that confront anyone entrusted to investigate such claims. This is yet another reason that a proper workplace investigation is so critical when these issues arise.

Lucia Kanter St. Amour, Pactum Factum Principal


The Most Beautiful Woman Theory

a.k.a. Nash Equilibrium.  In reality of course, the bar scene from Ron Howard’s film, “A Beautiful Mind” is not how the real Nobel Prize recipient for Economics John Forbes Nash Jr. came upon the idea.  Economics is a system for optimizing resources, which is one of several approaches Pactum Factum applies to negotiation and mediation. In a Nash equilibrium, each party’s strategy is optimal when considering the decisions of other parties. Every party wins because everyone gets an outcome they desire, even if it isn’t their preferred outcome individually. A Nash equilibrium teaches us that decisions that are good for individuals can sometimes be terrible for groups. A cooperative strategy is one that leads to the highest joint payoff for all participants.
Watch the scene

Lucia Kanter St. Amour, Pactum Factum Principal

Cognitive Traps Series Part 2: Reactive Devaluation

Reactive devaluation bias occurs when a proposal, business or otherwise, is devalued or seen negatively because it seems to originate from a negative or antagonistic source. For instance, a plan or idea is proposed by another employee with whom you’ve disagreed in the past. In a negotiation setting, a party may experience reactive devaluation of a proposal suggested by opposing counsel or the other party. They may dismiss the proposal or offer out of hand thinking, “if this is such a good deal for us, they wouldn’t be offering it.” This is an instance where a mediator can help parties evaluation proposals objectively.

Take-away: Be careful not to reject potentially beneficial options based on the messenger. Be disciplined in examining proposals from an objective viewpoint, and take the time you need to evaluate the idea and gain an objective perspective.

Background on our Cognitive Traps series (not our own original research): Social and cognitive psychologists have been interested for decades in how the brain processes information and what that produces in the outside world in terms of behavior.  In the 1970’s, two psychologists from Stanford University (Daniel Kahneman and Amos Tversky) started to study aspects of decision-making: does the rational person made decisions based on innate cost-benefit economic analysis? Their work (called Prospect Theory) created a new discipline of science known as Behavioral Economics, which earned them the Nobel Prize in Economics in 2002 (Tversky had died in 1996, so technically the prize only went to Kahneman at the time it was bestowed).  According to behavioral economics, the Rational Person theory doesn’t take into account all the reasons people behave the way they do. People make decisions relative to a reference point, and that reference point is the status quo – “where I am now.” Kahneman and Tversky categorized their work into a set of common heuristics: shortcuts that the brain takes so that it can make decisions in fast-moving everyday life.  But many of these heuristics can also act as cognitive traps in a negotiation, if you aren’t aware of them. Reactive Devaluation is one of them.

Lucia Kanter St. Amour, Pactum Factum Principal

“A Battle Of Wits”

Watch the scene here.

Have you ever found yourself in a dialogue, struggling to follow your interlocutor’s line of thought and wishing for some help in decoding their message? Garbled communication happens in everyday interactions, with varying degrees of consequences, the above scene depicting one that is quite extreme (and one could argue that the messaging, far from chaotic, is pathologically organized). Feeling like you’ve been pulled into a battle of wits can be confusing, tedious, and ultimately counterproductive to reaching resolution. In a negotiation, it can be particularly frustrating to sort through a cobweb of vague and disorganized messages and can lead to mistrust (which may have already been a problem from the beginning).

A mediator can be of particular help in these situations by helping to decode language, reframe declarations, and dig deeper into the needs and interests underlying murky communication. You can also learn clarifying techniques yourself, though training and regular practice.  Some quick basic tips include:

  • Calling it out: “I’m having trouble following you. Can you help me understand?” Recognize that, in many cases, even the speaker is unclear on what they are trying to say.
  • Rather than talking over someone (which will only result in them raising their voice), truncating confusion with a hand gesture: put your hand up like a police officer. This will cause them to pause, and both people can regroup.
  • Repeating back to the other speaker what you think you heard them say, and then asking for confirmation (or clarification) as to whether you got it right.
  • as a speaker: thinking about not just what you want to say, but why it matters to you, so that you have some guiding purpose to navigate your route.
  • If you know you are in a highly emotional state: waiting before speaking and/or taking 5 deep breaths counting to four for each inhale and each exhale. This is not to suggest that emotions be ignored or avoided; indeed, at Pactum Factum we treat emotions as another category of facts, which give us information. If the emotion is the communication, it might be important to express the emotion rather than to suppress it and camouflage it with reason.

Lucia Kanter St. Amour, Pactum Factum Principal

TKI: Understanding Conflict Styles

Conflict is a normal part of any workplace. It can lead to absenteeism, lost productivity, and mental health issues. At the same time, conflict can be a motivator that generates new ideas and innovation, increased flexibility and a better understanding of working relationships. However, conflict needs to be effectively managed in order to contribute to success. A critical competency for today’s professionals is to understand that we each have our own way of dealing with conflict. At UC Hastings and Berkeley Law, we taught the Thomas Kilmann Conflict Mode Instrument (TKI) to gain insight into the various conflict modes. The TKI is the world’s most used conflict-management tool for the workplace.
The TKI begins by identifying the two basic dimensions of conflict behavior:

  • Assertiveness:The degree to which you try to satisfy your own concerns during a conflict. This is related to how you might try to meet your needs or receive support for your ideas.
  • Cooperativeness:The degree to which you try to satisfy the other individuals’  It is related to how you might try to help the other individual meet his or her needs or how you can be receptive to the other individuals’ ideas (Thomas 3-4).

The TKI assessment applies these to the five conflict-handling modes listed below. By applying the basic two dimensions of Assertiveness and Cooperativeness to the five conflict-handling modes, you create the five major combinations possible in a conflict situation.

  • Competing:Is assertive and uncooperative. In this mode, you try to satisfy your own concerns at the other person’s expense.
  • Collaborating:Is both assertive and cooperative. In this mode, you try to find a win-win solution that completely satisfies the concerns of both individuals involved.
  • CompromisingIs intermediate in both assertiveness and cooperativeness. In this mode, you try to find an acceptable solution that only partially satisfies both individual’s concerns.
  • Avoiding:Is both unassertive and uncooperative. In this mode, you work to sidestep the conflict without attempting to satisfy either individual’s concerns.
  • Accommodating: Is unassertive and cooperative. In this mode, you try to satisfy the other person’s concerns at the expense of your own concerns.

So which mode is best? All of them! All modes are useful and effective, depending on the context and the conflict style of the other party. There is no single best way to handle every conflict. Each of the five conflict-handling modes has its own sets of benefits and costs. Each can be highly effective if used properly in the right circumstance. To be a truly effective negotiator, you will be familiar with your own natural conflict mode and learn the flexibility to adopt other modes to suit a situation (while always remaining true to yourself).
The full TKI is available at cost to individuals and groups, but you can see an abridged adaptation of the assessment tool here.

Those who know Pactum Factum Principal Lucia Kanter St. Amour will not be surprised to learn that her TKI mode is co-dominant in Collaborating and Competing.

Lucia Kanter St. Amour, Pactum Factum Principal