December 2009
Communique - CNDR's Newsletter
December 2009
Negotiation Tip: How to Change Conflict to Collaboration
By Grande Lum, originally published in the Huffington Post
You have been there before. You are speaking with someone important to you - a co-worker, boss, spouse, child, client or neighbor - when suddenly your conversation hits an invisible wall. You cannot reach the other person. No matter what you say, the words don't get through to the other's ears. "What just happened?" you think to yourself. Anger, fear, and anxiety are the bricks and mortar in these walls. Just like real walls, these are not built instantly; it takes time, but eventually, brick by brick, these emotions lay the foundation for a formidable barrier.
The invisible wall blocks our conversations and relationships. The wall leads to avoidance. You give each other the silent treatment and avoid talking about the underlying issues. Your resentments keep building up and the wall gets taller. You subtly dig at the other person's faults. You may even badmouth the other behind his back.
What happens when you confront that person? The build up explodes into blow up. You both raise your voices; the floodgates release and pent-up anger streams out. The two of you morph into adversaries. When you step out of the room, you both say to yourselves, "Wow, that was worse than not talking about it."
So you bounce back into avoidance. You act as if nothing happened. You leave a room if you think the other person will be arriving soon. This pattern continues until the next disaster gets triggered and then the relationship spirals downward further. Seeing people handle these situations, I am astounded by how similarly very different conflicts play out.
My curiosity about conflict and passion for problem solving has guided me to a professional life as a mediator, consultant, professor, coach and writer. In these roles, I have helped people resolve their conflicts, whether it has been between labor and management over contract bargaining, researchers and marketers over product development, managers and employees over performance evaluations, landlords and tenants over cleaning a front yard, parents and administrators over a librarian firing or politicians over project budgeting. Though I could not see the walls between the warring parties, the walls were tall and imposing.
Tear Down the Walls
While these situations, and the people and issues involved have varied dramatically, the words that people used and the actions they took to break through the walls were strikingly similar and are tied to one central premise: first and foremost they made their invisible walls visible. People accessed something authentic inside themselves. They faced their own fears with courage and shifted away from seeing themselves as victims. They were able to see the part they played in the situation. They got out of their own way and reached out honestly to the other person.
To resolve conflicts from the inside-out means to first examine one's own thoughts, feelings and actions. This internal shift fundamentally alters interactions. People take greater responsibility and release themselves from debilitating restrictions. They persuade the other party to reciprocate. This is about being inner directed rather than letting the outer conflict control you. An outside-in approach places the individual more at the mercy of the other person and external events.
Walls sometimes crumble instantly. Walls sometimes deteriorate over years. Walls get rebuilt. Conflicts in human relationships vary dramatically and have their own inner logic. Over the years, I have continually noticed that the approaches unlocking conflict were informed by an insight into one's own or the other's actions. It is clearly important to understand one's own blind spots, strengths and vulnerabilities to enter a conflict with confidence and compassion.
How to Treat the Difficult Person as a Pathway Rather than a Wall
Let's begin by examining some conventional wisdom. Difficult people are the problem, right? You see walls that you are absolutely sure they have constructed. Perhaps you are right. They may be irrational and stubborn. And by the way, if you asked the other person, they may be thinking the exact same thought about you.
Here is an example. An adult daughter had a mother who worried a lot. The mother constantly called to make sure tasks were done, e.g. she would be picked up on time and the airplane tickets had been bought. The daughter's blood pressure went up whenever the mother was around. She blamed the mother for heightening her anxiety. The mother saw the daughter as irresponsible since she remembered the times the daughter forgot to do important tasks. When the daughter reframed this as an opportunity to work on her own anxiety, this altered her dynamic with her mother and reduced the conflict and her blood pressure.
Each reaction to the difficult person is a learning opportunity. If rage overwhelms you, then you can learn to control rage. If fear paralyzes you, then you can learn how to gain safety from that fear. The lessons will not be mastered in a minute, a day or a month, but these lessons give you the chance to make progress. The person with whom you are in conflict provides a pathway for your development and ultimately for the conflict itself.
The meeting of two personalities is like the contact of two chemical substances: if there is any reaction, both are transformed. -- Carl Jung
ABA Section of Dispute Resolution's Spring Conference
April 8-10, 2009 in San Francisco
It may be the beginning of Winter, but many Hastings and San Francisco Bay Area educators and ADR practitioners are gearing up for the American Bar Association Section of Dispute Resolution’s Spring Conference to be held in San Francisco, April 8 through 10th. Hastings’ alumni Howard Herman and Ruth Glick are co-chairs for this year’s conference, and have been coordinating the program, committees and presenters since May.
On Wednesday, April 7th, before the main conference begins, there will be a number of pre-conference meetings, as well as a symposium on Court ADR. This day will also include the National Representation in Mediation Competition, where the regional winners from across the country will compete for the National prize. (Hastings’ Mediation Team will be competing to go to the Nationals in March.) Hastings Professors Gail Silverstein and Darshan Brach are both on the Legal Education Committee, which is responsible for organizing the competitions and drafting problems for the regional and national competitions. If you are interested in judging any of the rounds for this national competition, fill out the recruitment form and email it to David Moora at moorad@staff.abanet.org .
Hastings will be well represented during the conference’s main dates of April 8th and 9th, when a number of Hastings adjuncts and faculty will be presenting on their various areas of expertise. Sheila Purcell will be speaking on two different panels - Dispute System Design: A Comparative Look at Court ADR in Bhutan, India, Israel and U.S.; and Probate ADR: An Idea Whose Time Has Come. Russell Brunson will be on a panel of mediators discussing the impact of mediation, and he will speak on the topics of culture and identity. Grande Lum, Timothy Dayonot, Jessica Notini and Rochael Soper will be presenting Shake It Up: Teaching the Negotiation Class Creatively. And, Eileen Barker will be presenting, along with Dana Curtis, Frederic Luskin and Robert Plath, Forgiveness: The Ultimate Tool of Conflict Resolution
CNDR will have a large presence at the conference with a booth, sponsored materials and activities, as well as hosting a reception. For more information and to register for the ABA Section of Dispute Resolution’s Spring Conference, visit http://www.abanet.org/dispute/ and go to “Section of Dispute Resolution Spring Conference” at the bottom of the page.
Student Spotlight: Sean Gentry
3L Sean Gentry grew up in Pleasanton, CA and completed his undergraduate degree at the University of California, San Diego (UCSD). He comes from a family with strong ties to the Navy who live in San Diego, so he was able to enjoy a “second home” while at school. He entered UCSD intending to major in Engineering or Physics, but as it became apparent that his speaking and reasoning skills were stronger than his math and science skills, he decided to switch majors and head toward law school. Sean’s father is a banker in the Bay Area, and had told him that Hastings has an excellent reputation for producing good attorneys and judges. Sean had also heard of Hastings’ excellent Moot Court program. Recognizing that he enjoys extra-curricular learning, and that Hastings had much to offer in this way, Sean came to Hastings.
It was during his 1L year that Sean was in the Clara Foltz Lounge and overheard students practicing a negotiation for class. Intrigued, he asked them what they were doing. When they told him, and told him about how great the class was, Sean made the connection that in order to be a successful litigator, he would need to understand how to bargain. He took Grande Lum’s negotiation course spring semester of his second year. In Grande’s class he met some Negotiation Team members and learned that he could gain further skills by doing negotiation as an extra-curricular activity through the Team.
Sean sailed through the In-School Competition, and made the Team this year. He sparred with the ABA Negotiation team this semester as they prepared for their competition, and Sean is looking forward to competing at the National Negotiation Competition at Liberty University School of Law in January, and then at the California Environmental Negotiations Competition in March. He’s found that he enjoys negotiation more than Moot Court (during his 2L year, Sean competed at the Judge Brown Admiralty Moot Court Competition in Charleston, SC) in that he works better in a less structured setting. Negotiating is the right mix of preparation and “winging it” for him.
In addition to his lawyerly extra-curriculars, Sean is the co-instructor of Hastings’ Ballroom Club. UCSD is the “Dancesport Powerhouse on the West Coast”, and Sean competed on the Dancesport Team all four years of his undergraduate time. During his senior year, he was captain of UCSD’s National Team that went to Daytona Beach, FL to compete at the Intercontinental Intercollegiate Dance Sport Festival. Sean and his team won the Formation Team Competition, in which eight couples do a medley of dances while making patterns on the dance floor, similar to a marching band on the football field. Sean enjoys teaching Ballroom and Latin dancing at Hastings and occasionally to wedding couples, friends, and family, as well as taking advantage of dance opportunities in the City. Additionally, Sean has been playing soccer with the Hastings’ Soccer Club for the three years he’s been here.
Sean cites three professors who have been especially influential to him, Aaron Rappaport, Leo Martinez, and Grande Lum. To generalize, Sean admires the experience and expertise each of these professors has in their respective fields. “They know what they’re talking about.” What seems most important to Sean is how these gentlemen are able to make personal connections with students and colleagues, enhancing the quality of interactions in class and therefore enhancing learning.
Looking forward, Sean would like to carry on the family tradition and work for the Navy’s JAG Corps. The wide range of hands-on legal experience he would get in JAG attracts him the most, but Sean is also excited about the locations where he might work. If the Navy JAG doesn’t work out, Sean thinks he’ll check out employment law. Sean is drawn to the emotion and connection of the client-side interaction and thinks employment law would be a good fit.
Sean has really enjoyed his time at Hastings. From TA-ing for Moot Court and Appellate Advocacy, to competing in National competitions, Hastings has afforded Sean many opportunities to learn outside of class. “Hastings prepares us for the real world – much more than a place like Stanford – Hastings professors teach theory, but they teach toward a law career. Hastings offers so many things to prepare us how to practice law.”
Online Negotiation Coordination Project
Connecting Schools Throughout the World
Last year Hastings’ Center for Negotiation and Dispute Resolution launched a program in which it matched its negotiation courses with other school’s negotiation courses for email negotiation. Email negotiation has long been a part of Hastings’ negotiation curriculum, as business and other transactions are taking place more and more over email and other forms of digital communication. It’s important for today’s young lawyers to be familiar with the issues in negotiating over long distances, including differences in communication protocols and enforceability of agreements. Rather than having our students negotiate with each other, where there is a risk that they could find out who each other is and negotiate accordingly, it made sense to recruit other schools to negotiate with Hastings. “The goals are to give more students the opportunity to experience an e-mail negotiation with a stranger, to connect more negotiation professors with each other, and to foster innovation in negotiation teaching,” explains Center Director Grande Lum.
The program has been quite the success. Over the last two semesters, Hastings has collaborated with schools such as Cardozo School of Law, the University of Copenhagen, Suffolk University, University of Wisconsin, Georgia State University, Stanford University, UC Berkeley, McGeorge School of Law, Santa Clara Law and Duke University. The program has attracted such interest from so many that Hastings has expanded the program to include helping other schools partner with each other. It’s now officially called the Online Negotiation Coordination Project (ONCP).
Here’s how it works. Each semester, CNDR sends out an announcement for partnering with other schools for email negotiations about two months prior to the upcoming semester. Professors reply with information about their class size, when in the semester they would like to do the email negotiation, and their contact information. CNDR matches its negotiation courses with appropriate classes, and then distributes the list of remaining professors with their class information to everyone who signed up for the project about a month before classes begin. To allow more flexibility for each class, CNDR encourages the professors to work together on which simulation they’ll use, the protocols, the timing and the debrief.
As of this writing, CNDR has 10 different schools who have expressed interest in the project for Spring 2010. The ONCP announcement for Fall 2010 will go out sometime June 2010.
Team Spotlight: Lee Lam
Alternative Dispute Resolution Board Member, Lee Lam, went to Provo, UT last November to compete at the ABA Regional Negotiation. She enjoyed the trip, and found the people of Provo to be very friendly. She also gained more practical skills through the process of preparing for the negotiation competition. Lee competed at the ABA Regional Representation in Mediation competition last year in Eugene, OR, and found that where mediation focuses more on the interests of the clients, negotiation relies on the complex interplay of interests and negotiation strategy. “As an attorney, you need to speak to the client’s interests, speak to your goals in the negotiation, and know the ways to get the optimal package for your client. The negotiation competition helped prepare me to be a more zealous advocate for my clients.”
Lee came to Hastings from Lawton, OK via the University of Southern California. Lee’s parents owned a Chinese restaurant in Oklahoma, and moved to Los Angeles for their retirement around the same time Lee was at USC. Majoring in International Relations, and looking ahead toward law school, Lee wanted to explore more of California on her own, and wanted to focus on law in Asia. Hastings was a good fit in that it’s more geared toward the Pacific Rim region than other California law schools, and she likes San Francisco. “In LA, you’re so constrained by the traffic. San Francisco has a more European feel. There’s better public transportation, and so you have more freedom.”
In addition to being on the Negotiation Team the last two years, Lee has been involved in other activities at Hastings. Last year she served as a law clerk at Bay Area Legal Aid. Over the summer she worked in Hong Kong. This year she is also the Symposium Editor for the Business Law Journal. When asked about her law school experience, Lee talks a lot about learning how to deal with actual situations through simulations and reflection. The Negotiation Team and Donna Ryu’s Roles and Ethics class gave Lee the one on one attention to really analyze her performance in negotiating and interviewing clients. “There’s so much more to being an attorney than the legal elements of a case. You need to know the full picture of the client’s goals, along with their narrative, to be effective for them.”
Lee’s most memorable experience on the Negotiation Team occurred in Eugene, OR, at the ABA Regional Representation in Mediation Competition last year. She was eating dessert with her teammate, Lisa Hathaway, at the competition’s dinner, when the competitors for the final round were announced. “We were sitting there, talking about what we’d do after the dinner – check out Eugene, maybe get some coffee.” Lee and Lisa were announced as finalists for the competition. Lee was so shocked and excited that she screamed out loud. She remembers Clint, the Head Coach, saying, “I told you so,” and someone in the room saying that someone should calm her down. Lee and Lisa had to scrub their tentative evening plans and prepare for the next day’s mediation over night. They were narrowly defeated by Seattle University School of Law and took second place.
After Hastings, Lee would like to work for a small firm in LA that does business and transactional work, and to be near her family. “The skills that I’ve gained through the Negotiation Team are universal – not only for law, but for business too. No matter what your goals are, negotiation can help you.” Lee has been very impressed with CNDR, the resources it offers students, and the way it has created great interest among students. “People are truly excited about signing up for negotiation” reports Lee.
Lee is looking forward to the spring semester, when she will be competing at the National Law School Mediation Tournament in Chicago, IL. Her experience on the Team, with the one-on-one attention focusing on her skill development, the camaraderie between the students, and the opportunity to represent Hastings at major competitions across the world, has given her an immense sense of pride.
Faculty Spotlight: John Dean
When most of us think of the events of September 11th, we think of the people and their families who lost their lives. Hastings alumnus and Adjunct Professor John Dean has another perspective. He is the Senior Attorney/Contract Administrator for the Air Line Pilots Association (ALPA), a nation-wide labor union representing almost 60,000 professional airline pilots at over 40 airlines. After 9/11, 25 airlines were forced into bankruptcy, and some never re-emerged. John recalls speaking to a packed ballroom of Aloha Airline pilots and their families explaining to them the ramifications of Aloha’s Chapter 7 bankruptcy filing, which meant the airline was to shut down immediately. Pensions were lost, retiree health benefits were lost, not to mention the loss of employment. People were devastated, their lives turned upside down. John recalls this being one of the most traumatic experiences of his professional career.
John has been working for ALPA for the past 13 years. He started his professional career with a solo criminal defense practice in Oakland after graduating from Hastings. His wife’s family owned a bakery, and needing to switch gears, John worked at the bakery until he bought it. While owning the bakery, John negotiated contracts with suppliers, caterers, hotels and five different unions. He enjoyed the work and developed a reputation that earned him respect from the other side of the table. When he sold the business, it wasn’t long before ALPA was interviewing him for a job. His management-side labor negotiating experience, along with his criminal defense background made him an ideal candidate. In addition to negotiating on behalf of ALPA, John is lead attorney in labor arbitrations and serves as defense counsel for pilots involved in Federal Aviation Administration (FAA) matters.
John really enjoys his work. It’s affected by so many different things such as politics, the general economy, oil prices and how the various airlines are doing. “Negotiation always has twists and turns that I don’t expect.” John has seen the airline industry go through huge growth in the ‘90s to horrible times post 9/11 when pensions were lost, and wages were cut 30-40%.
Currently, John is stuck in Honolulu negotiating with Hawaiian Airlines over the pilots’ new contract after Hawaiian emerged from bankruptcy. These negotiations have been going on for two years now. Hawaiian is the first large airline to emerge from bankruptcy after 9/11. “The Hawaiian case is critical, everyone is watching this. Everyone wants to see that we’ve turned a corner.” Hawaiian is the most profitable airline right now, and the union is hoping to recoup some of what it lost post 9/11. This is also the first major labor negotiation for President Obama’s newly appointed National Mediation Board (NMB). If the NMB decides that the negotiations have reached impasse, they can release the negotiation for self-help and offer binding arbitration to the parties. If the parties refuse, then a 30-day countdown begins to a strike.
Recently, John was in Washington, DC and had opportunity to meet in person with the three members of the NMB. “All of them were familiar with CNDR and what we do here,” John reports. “CNDR’s team of adjuncts is amazing. They come from such different backgrounds and they bring their experiences to class. The students really benefit from that diversity.” John has been guest speaker in a number of negotiation courses, and he often invites other adjuncts to speak to his classes. “I tell my students on the first day that every lawyer negotiates. You can either learn this on the job, sometimes traumatically, or you can get a jumpstart and learn it in school.” John makes teaching a priority in his busy schedule, and is proud to say he hasn’t missed a class yet. He loves to watch his students struggle with their first “haggle” negotiation at the Farmer’s Market, and then see them using the theory and skills he’s taught them to calmly handle a complex negotiation at the end of the semester.
John and his wife own a place in Lake Tahoe, where he goes to unwind and relax. He likes to run, cook, and “be a bum” there. His son recently graduated from Hastings, and his daughter is finishing up at UCLA and applying to law schools. Perhaps they will follow in their father’s footsteps.