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.
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
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.
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.
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.
- Compromising: Is 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.
Confirmation bias is the tendency to search for or interpret information in the way that confirms one’s preexisting beliefs, leading to statistical (and strategic) errors. When people would like a certain idea to be true, they end up believing it to be true. Confirmation bias is particularly problematic because it does not allow a person’s perspective to change, even based on evidence. It enables people with opposing beliefs to dig their heels in further rather than to adapt their mindset to the surroundings.
For example, an attorney preparing for a trial will certainly conduct research into case law that supports their theory of the case so that they can persuade a judge or jury, but will be committing a risky error if only notice examples that conform to their theory of the case. It is critical that the attorney also research cases that challenge their theory of the case so that they can prepare rebuttals and avoid being caught off guard.
Consider the person in a workplace personality conflict. Rather than talking to those people who might disabuse them of their negative impressions of the co-worker (e.g. the co-worker’s close friends and associates) they usually gripe to people most likely to agree with them. As a result, their negative impressions become amplified in an echo chamber of agreement. The chorus they hear most is, “Wow, she is awful to treat you that way.” The complainer’s blamelessness rises while the image of the adversary is demoted further in to someone really unsavory.
This is yet another area where the art of negotiation meets science. Astrophysicist Neil deGrasse Tyson will tell you the same thing: question your hypothesis. More important than proving it right, try every possible way to prove it wrong before deciding it’s right.
Related to Confirmation bias is Overconfidence Effect: this is when we systematically overestimate our knowledge and our ability to predict. Overconfidence measures the difference between what people really know and what they think they know (it turns out the experts suffer even more from the overconfidence effect than laypeople do). Studies have found that over 90% of US drivers rate themselves above average, 68% of professors consider themselves in the top 25 percent for teaching ability, and 84% of Frenchmen believe they are above-average lovers.
Take-away: In preparing for a negotiation, be proactive in seeking out information that does not conform to your preconceived notions, rather than just information that boosts your position in an effort to convince the other party. While this is terribly difficult to do, it is also a terribly important step in the preparation process.
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. Confirmation Bias is one of them.
Everyone lies. It doesn’t make you a bad person. People generally lie about three things: facts, opinions and emotions. Lying is common in life and in negotiation. But why? Understanding the reasons can increase empathy and elevate communication to a deeper level of understanding in negotiation and mediation.
Read more here what the most world-renowned expert on lying has to say about why people lie.
As mentioned in the above article, an important pre-cursor in detecting deception is learning to spot micro expressions, which often reveal hidden emotions (note: it is impossible for people to control micro expressions. Thus, if you learn to observe when they happen, they can offer insight. The important thing to remember is that noticing a micro expression does not necessarily provide the reason behind the emotion, and does not necessarily mean the person is lying).
Test your baseline ability to detect lies with this Paul Ekman quiz!
Fun Fact: It is a little-known fact that Pactum Factum Principal Lucia Kanter St. Amour pre-tested (meaning before she even started the 40-hour training in Dr. Paul Ekman’s micro expression and lie detection training) in the top 5% of the population for natural ability to read micro expressions.
Pactum Factum principal Lucia Kanter St. Amour truly enjoys negotiating (in fact, her challenge is to refrain from doing so in situations that do not call for it). But for many people, negotiation causes angst and heartburn. If you don’t believe us, Watch this clip from “The Life of Brian.”
But we can help. Negotiation is like a muscle: the more you exercise it, the stronger you get. An exercise to get you started is a simple haggle (for a Craigslist item, at the flea market, etc.). As a first step, take a minute to build some basic rapport with the merchant/seller (even if just to make eye contact, flash a genuine smile, and ask how their day is going. If making an inquiry via email, you can accomplish this with some brief and friendly “small talk.”). Show interest in the item with specific comments (“I appreciate the craftsmanship of this knit scarf. My grandmother used to crochet a similar pattern.”). You can ask a (strategically loaded) open-ended question, such as “How flexible are you on price?” and then observe closely how they answer. At that point, you are well on your way! As a first step (if even this is too daunting) try this: the next time you are checking out of the store, ask simply (with a friendly smile), “Are there any other discounts or offers that apply to my purchase today?” If the answer is no, you are in no worse position than you started and you haven’t lost any face. But you may be surprised at how often the answer is “yes.”
In her article published in Contra Costa Lawyer, “The Future of Dispute Resolution is Here,” Pactum Factum Principal Lucia Kanter St. Amour describes how mediation principles are being applied in some of our public schools using the Restorative Practices method (text version of article can be found here)
Worthwhile endeavors take time. Mediation is no exception. If you go into a mediation with the attitude that it will be a quick and easy fix, you may be setting yourself up for frustration and disappointment, not to mention poor use of resources (time, money). For an example of how mediation, and quick “creative” compromise doesn’t work, watch this.
While “creative” is the hailed descriptor for negotiated solutions, they also need to be practical and durable. As for easy compromise to save time and effort (e.g. “split the difference,” which has its place in simple transactions, e.g. on Craigslist for the purchase of household items), these results tend to be unprincipled and can lead to buyer’s remorse in more complex disputes.
Prepare for your mediation thoughtfully, and be ready to give it the time it deserves: be prepared to tell your story; also be prepared to listen to the other side’s story. Think about what outcomes would be acceptable to you and what concessions you can offer the other party. Think beyond your “position” to why it matters to you. What interests are at stake? If you cannot resolve the dispute through mediation, what are your alternatives, and what impact do those alternatives have on your life? Be prepared to share information and evidence with the mediator so that she can help evaluate options. Although mediators do not give legal advice, they do provide information and can offer mediator proposals. But the parties need to be in the mental state of mind to meaningfully participate in the process.