It's been awhile since I posted on this page, but I've been happily busy mediating cases, and apologize for how boring this site has seemed. On this Day of giving Gratitude, Thanks-Giving, I would first like to express gratitude for my family, friends, clients, pets, health, work, and so many other people and things in my life. I encourage everyone to think about those they are grateful for, even better, express it, or tell a person how grateful you are for them.
This leads me to the photo and today's post. The photo is of the Northern Lights, taken in Iceland in Late September. It is an amazing experience to see such a feat of nature! We saw them on our second try, and it was well worth returning to our hotel at 2:00 a.m.. The mass of people there were so excited, with many expressions of gratitude. I could not help but reflect, if the whole world was here together, seeing this miracle, how could they remain in conflict? This is something that is neither tied to a political party, nor a race, religion, gender, sexual orientation, age, ability or disability. It is something that is in fact, universal, open for every person of every persuasion and belief. We came together and watched a miracle.
Which leads me to Mediation and Conflict Resolution. When people are in dispute or conflict, they usually feel aggrieved in some way,and at varying levels of intensity. There are feelings of anger, sadness, revenge, resentment, desire for redemption or vindication and frustration, among others. Emphasis is on oneself as the victim or aggrieved party, and the "other" side as the enemy. No one is thinking about how and where there might be commonalities or shared positions or experiences. Why should that matter? What one side wants, thinks or feels is of no concern or interest to the aggrieved other party. However, exploring shared interests, and considering the other side's needs, can be and usually is very important in achieving a desired resolution.
Roger Fisher and William Ury, authors of the seminal negotiating book "Getting to Yes", point out that "Bargaining over positions does the least harm if it comes after you have identified each other's interests, invented options for mutual gain, and discussed relevant standards of fairness." They cite to the story of Mary Parker Follett, about two men quarreling in a library over whether a window should be open or closed. Finally the librarian enters and asks why one wants the window open? "To get fresh air". Why does the other want the window closed?" "To avoid the draft". She comes up with a solution of opening wide a window in the next room, which let in fresh air but without a draft. As the authors of "Yes" point out, no solution could have been successfully created if the focus remained on the parties' positions; rather exploring the parties' interests helps to explain the underlying reasons, and to create solutions.
Of course many negotiations are not so simple or straightforward. However, the same principles apply regardless of their complexity - there may need to be a shift in the timing or strategy underlying when and how to find out, or to apply the interests, but the importance of those interests remains the same.
As Mssrs. Fisher and Ury write, "Interests define the problem." If we now apply this principle to a legal dispute involving an employee terminated from his job what are the interests? The employee is very hurt and upset and wants the employer to pay for it. The employer was very concerned by the employee's breach of protocol, which put the company at risk. What shared interest is there? At the very least, in simple terms, it is to come to a settlement that both sides can live with. But another shared interest is the well being of the employee, as well as of the company and the rest of its employees. Once these interests are understood, then solutions can be brainstormed.
Perhaps the employer can better understand that the employee's termination, however "professional", left the employee feeling unappreciated, and that his many contributions were disregarded. Perhaps the employee can better understand how the employer perceived the breach and impact to the business, and felt betrayed.
From an understanding of these interests, solutions may be found. The employee wants the employer to acknowledge the impact of the termination. Perhaps the employer can write a positive letter of reference, acknowledging the many contributions by this employee; or give or write a sincere apology for the way the termination occurred and express appreciation for the positive part of the employment history. Perhaps the termination can be changed to a resignation to help with current or future job searches (assuming as often occurs, the employer is unwilling to reverse the termination).
In some appropriate cases, we have worked out mutual apologies, not for being "at fault", but rather for their role in the conflict.
Likewise, the employer wants the employee to acknowledge the impact of the protocol breach. An employer may have financial pressures, and be concerned about other employees learning of the settlement and wanting to sue. Perhaps the employee, without conceding justification for termination, can acknowledge the error. Also, a tight confidentiality agreement can be included to ensure no one else learns of the settlement. Penalties can be included for any disclosure. The employee can perhaps acknowledge that the company is small or otherwise cannot withstand as large a settlement as the employee seeks; both parties can work together toward a better number; or work out a payment plan over time. Sometimes a meeting between employer and employee, where things get said to the correct person, in the protected setting of a mediation, can be healing for both, especially where there was an employment relationship of considerable length that has now been severed.
Adding one more quote, this time from Stephen Covey, author of "The Seven Habits of Highly Effective People": "Seek first to understand, then to be understood." We can all improve our relationships, personal and business, easy and in times of conflict, by trying to understand more about "the other person", in other words, let's all listen more.