By

I. Introduction

Under Section 7 of the Federal Arbitration Act, arbitrators are empowered to subpoena third parties. When a subpoenaed third party objects, however, courts are enlisted to resolve the objection—and, when appropriate, to enforce the subpoena. Should these courts allow arbitrators to manage such disputes at the outset, considering the objection only after an arbitrator has ruled unfavorably to the objecting party? This approach is not clearly the norm under the FAA, but it is nevertheless appropriate under a fair reading of the FAA and the Federal Rules of Civil Procedure. Moreover, it is advantageous from a policy standpoint.

II. Statutory Framework

Section 7 of the FAA grants arbitrators the power to “summon . . . any person . . . as a witness.”[1] This provision further allows arbitrators to enforce such a summons “in the same manner provided by law for securing the attendance of witnesses or their punishment for neglect or refusal to attend in the courts of the United States.”[2]

Accordingly, Federal Rule of Civil Procedure 45, which deals with subpoenas in traditional litigation, also governs a Section 7 summons, or arbitral subpoena. Rule 45 protects subpoena recipients by precluding the issuing party from imposing an undue burden.[3] The rule also allows, and sometimes requires, courts to quash subpoenas under certain circumstances.[4] Finally, the Rule specifies that a court must quash a subpoena if it subjects a person to undue burden or requires disclosure of privileged matter.[5]

III. Objections to Third-Party Arbitral Subpoenas: Not “Ripe” Until a Party Seeks Judicial Enforcement

Despite Section 7’s provision allowing enforcement in the “same manner” as litigation subpoenas,[6] arbitral subpoenas operate differently from litigation subpoenas. Importantly, an arbitrator’s subpoena is not self-enforcing,[7] meaning that an objecting non-party recipient need not comply, leaving the requesting party to seek judicial enforcement.[8] The FAA does not require objecting third parties to move to quash,[9] but it is unclear whether they may be allowed to do so.[10] Nothing in the statute expressly requires courts to hear such motions to quash,[11] though perhaps a court must do so because an arbitrator’s subpoena is governed by Rule 45.

Yet, precisely because an arbitrator’s subpoena is not self-enforcing, such a dispute is arguably not “ripe” until the arbitrator seeks to enforce it over the non-party’s objections. Because a federal court may only hear “ripe” disputes,[12] a court should refuse to hear a motion to quash until a party to the arbitration petitions the court to compel compliance.

That is, the arbitrator should hear the objection in the first instance, and if his (non-binding) determination is not to sustain it, he should then move to compel. At that time, a court would make a de novo ruling on the objection. Full judicial review, in a form analogous to interlocutory appeal, allows a court to benefit from the arbitrator’s knowledge of the merits while maintaining protection of third-party rights.

IV. Why Adopt This Approach?

As a general matter, this approach is advisable for some of the same reasons that administrative law often imposes an analogous exhaustion requirement—specifically, promoting judicial efficiency and protecting the authority of the body deciding the merits.[13]

More importantly, the arbitrator is uniquely competent to resolve objections that often raise issues closely related to the merits of the dispute. Two common grounds for challenging a discovery subpoena under Rule 45 are relevance and privilege, both of which require reference to the underlying dispute. In typical litigation, for example, relevance[14] is inextricably related to the pleadings,[15] suggesting that in arbitration, these objections are best resolved by the arbitrator. Similarly, when privilege[16] is invoked in litigation, a court will balance the need for the subpoenaed information against the public interest protected by the privilege.  This balancing inquiry will necessarily reference the merits of a dispute.[17] To be fair, courts may be better positioned, for reasons of consistency and accountability, to properly protect the interests underlying various privilege doctrines; nevertheless, courts would certainly benefit from an arbitrator’s insight into the merits and the evidentiary needs of the dispute.

V. Statutory Authority for The Suggested Approach Under FAA

The FAA does not clearly proscribe the suggested approach. Some trial courts have adopted this approach,[18] while others have heard motions to quash in the first instance.[19] The issue is complicated by the common practice of taking these disputes to court on cross-motions to quash and compel,[20] a practice which suggests a generally held assumption that a court may hear a motion to quash in the first instance.

Of course, the suggested approach requires that arbitral subpoenas not be self-enforcing, which seems statutorily inappropriate in view of Section 7’s provision that, upon petition, a court may punish a person for contempt if the person neglects or refuses to comply with the arbitral subpoena.[21]

However, this provision should be read as allowing a court to punish for contempt only after issuing an order compelling compliance. This reading comports with the framework of Rule 45, which provides certain excuses allowing a person to ignore a subpoena.[22] The rule allows a person commanded to produce documents to reply to a subpoena with a written objection,[23] which excuses obeying the subpoena.[24] Similarly, the rule excuses production of electronically stored information from sources that are not reasonably accessible.[25] A requesting party may respond to these excuses by asking the court to compel compliance,[26] not unlike the FAA’s approach for compelling compliance with arbitral subpoenas.

Thus, Rule 45 establishes a framework where, if the court has the power to compel compliance, punishment for contempt may occur only after exercise of that compulsion power.[27] Reading Section 7 as mimicking this framework—requiring a successful petition to compel before a person may be punished for contempt—makes good sense. Indeed, the Fourth Circuit seems to have adopted this interpretation, holding that the recipient of an arbitral subpoena is under no obligation to challenge the subpoena,[28] implying that the person cannot be punished for contempt if he does nothing.

VI. Current Trends

Despite some earlier decisions in which the court ruled on relevance,[29] the emerging consensus is deference to arbitrators on this question.  The Sixth Circuit has noted the limited nature of a court’s power to disturb an arbitrator’s judgment as to relevance.[30] The Eighth Circuit has stated that second-guessing an arbitration panel’s judgment as to materiality is “antithetical to the well-recognized federal policy favoring arbitration, and compromises the panel’s presumed expertise in the matter at hand.”[31] The Northern District of Georgia has ruled that the determination of materiality to the underlying dispute belongs to the arbitrator.[32]

As discussed above, a court has a greater role to play in resolving privilege objections. Accordingly, even as courts seem willing to defer to arbitrators on relevance, some are more active in their review of questions of privilege.[33] Others, however, have deferred to arbitrators on this point.[34]

VII. Conclusion

The FAA intends to encourage and foster effective arbitration. The proposed scheme serves this goal by broadening the implementation of arbitrators’ power to subpoena third parties. Because the scheme is not contrary to the text of the FAA, its adoption need not wait for legislative action. While the proposed approach has already been accepted in some measure, arbitral outcomes would benefit from further judicial adoption.

“Where there are two Jews, there are three opinions.”

When I first read Bob Bordone’s e-mail describing the symposium on “The Negotiation Within,” I was of two minds. Part of me wanted to attend. The subject was intriguing, the panelists included many old friends, and a trip back to Cambridge would be enjoyable. Yet another part of me knew that I would not go. For roughly two decades I have observed the Jewish Sabbath, and this conference, like many others, was to meet on a Saturday. My inner dialogue was brief (or so I thought at first). A Shakespearean actor might have put it thus, “To go or not to go – that is the question.” My answer: not to go.

Life, however, can be more complex than first appears, and the next morning I awoke with a number of thoughts racing through my head – specifically, ideas I might have shared had I gone to the conference. What was I to do with them? In the language of negotiation, “going” and “not going” are, of course, positions. But what interests underlay those positions? Could those interests be addressed creatively through inventing options? Yes, it was possible to observe the Jewish Sabbath and it was possible to be involved with the conference, at least in part. Perhaps I could write some ideas and send them along. Perhaps I would later read what others wrote about “The Negotiation Within” and discuss their ideas with them on different occasions. My original inner dialogue had been built around positions, but after a night’s sleep it shifted to exploring interests and options.

I suspect that in many negotiations each party is of multiple minds. Sometimes such internal division is easy to observe, as when bilateral negotiations involve principals who are groups. When a union negotiates a labor contract with management, there may be different factions within the union, each vying for different ends. Part of the union may want this. Part of the union may want that. How is the union representative to proceed?

I suspect the conventional wisdom (if such exists) is that, before entering “across the table” negotiations with management, the union should try to resolve its internal conflicts.[2] Not only would it be difficult for the union’s representative to know what to say to management if such “behind the table” conflicts are not resolved, but if such fissures are not addressed proactively, the potential exists for the other side to exploit them. Perhaps management can gain a strategic edge through offering a deal that benefits both itself and one, but not both, of the union’s factions – divide and conquer, if you will. It is not uncommon for parents of small children to encounter a similar challenge. Before deciding upon a rule for a child, it is important for both parents to be “on the same page” lest the child play the forum-selection game of shopping for rules by seeking the more lenient parent.[3]

Now let us take up the more interesting case – for it is the more common case – of when such internal fissures are not readily observable. What happens when a party entering a negotiation, or more generally making a decision, is of two (or perhaps even three or four) minds? How then is that party to proceed?

Sometimes people approach such internal negotiations in a combative way, and an internal battle of the wills ensues over which side will triumph. One might think by analogy of the famous problem of Ulysses and the Sirens, or, more generally, the “intimate contest for self-command” as Thomas Schelling put it.[4] When two parts of ourselves are in conflict with one another (in Ulysses’ case, because his current self fears that his future self will be seduced by the sound of the Sirens and thus opts to bind himself to his ship’s mast to prevent his future self from departing), the question becomes which part will prevail in the battle over what to do. Think of the dieter’s dilemma when confronted by a bowl of chocolates. “Oh, they look so good … I want to eat some,” says the voice of indulgence. “Don’t touch them,” barks the voice of restraint. The inner discourse, in other words, is built around positions.

My suggestion here is that we take some of the qualities and ideas we have learned from external negotiations and apply them to our inner dialogues. “Why do you want to eat the chocolates?” the voice of restraint might ask. “Because I’m bored,” “because I’m upset,” and “because I’m hungry” are all possible answers. Each of these answers reveals a different interest and points to different possible solutions (e.g., finding a fun activity in which to engage, finding a different way to soothe oneself, or finding a healthier food to eat). As with so many of our external negotiations, the critical question becomes whether our inner dialogues will be problem-solving ones or positional ones.

Could it be that, when all is said and done, how we talk and negotiate with other people and how we talk and negotiate within ourselves are deeply connected? I do not mean to suggest that this connection is simple. If the data point I know best – me! – is any guide, one’s outer negotiation style and one’s inner negotiation style can be quite different. The Myers-Briggs introvert that I am, it is not uncommon for my inner negotiations to be very long, but my outer negotiations brief. Nevertheless, I suspect that often there is much consistency to how we do what we do, so that how a person conducts inner conversations and how he or she approaches outer conversations will be similar. Am I optimistic that solutions can be found to difficult situations? Am I capable of listening to seemingly-incompatible views and probing for what is valid within each? Do I express myself in measured language or am I prone to hyperbole? If a person has an attitude like optimism or habits such as open-minded listening and measured speaking in one realm, I suspect it is much more likely, though not inevitable, that he or she will have them in the other realm, too.

Suppose the hypothesis is true that there is a significant connection between how we talk and negotiate within ourselves and how we talk and negotiate with others. If so, a number of lessons follow for those who teach and practice negotiation. Let me mention two. First, getting people to think about their internal negotiations may be extremely valuable in helping them to change their approach to external negotiations. Books such as Difficult Conversations (with its emphasis on examining the impact of internal identity conflicts on external negotiations) and research on topics such as the role of emotions in negotiation and mindfulness in dispute resolution have already started us down this path.[5] It is a path we should pursue further. Second, as we teach people to approach their outer negotiations in new ways, we may also indirectly be teaching them to approach their inner negotiations in new ways. Internal transformation, is not, of course, the primary aim of most negotiation courses. However, if internal and external negotiation styles are deeply linked, then as we influence the latter, we may also be influencing the former. How distinct, after all, is the internal from the external? Viewed from afar, the line between them is only skin deep.

For more on the 2010 HNLR Symposium: The Negotiation Within, click here.

By

I. Introduction

The field of law is experiencing a gradual evolutionary movement, as practitioners eschew the traditional adversarial approach in favor of cooperative methods which produce more beneficial, integrative outcomes.  Recently, interdisciplinary collaborations between the fields of law and social science have endeavored not only to optimize substantive outcomes, but also to create a more therapeutic experience for the parties involved.  This involves determining the psychological, emotional, and physical effects certain legal processes exact on attorneys as well as clients, and adjusting those processes to reduce adverse consequences in those areas.  For legal practitioners, this therapeutic approach can help reduce stress, job dissatisfaction, and other problems associated with the practice of law.  For clients, optimized resolutions and minimized adverse psychological effects are achieved through the attorney’s increased receptivity to their client’s interests, and greater client involvement, which acts as an empowering tool, enhancing the client’s overall well-being.  The result is a more gratifying interaction and overall improved satisfaction with outcomes.

II. The Adversarial Style

The methodology of negotiation has long been associated with aggressively adversarial tactics.  This competitive, attacking, often ego-driven style, known as the adversarial style, is characterized by hard-bargaining, aggressive techniques.  Most adversarial negotiators view the process as a zero-sum, win/lose prospect, and opposing counsel as a warrior opponent in a battle of wits.[1]

The adversarial negotiator’s typical approach involves making high demands, stretching facts, attempts to outmaneuver the opponent, intimidation, and an unwillingness to make concessions.[2] Some lawyers advocate this style, professing its effectiveness in increasing their clients’ gains and avoiding exploitation.[3] It does in fact have numerous advantages; in certain negotiating situations such as pure commodity purchases, lowest-bid transactions, and primarily distributive bargains,[4] the adversarial approach produces optimal results.[5]

The adversarial approach is not the optimal method for all situations, however.  The adversarial style can create tension, mistrust, and misunderstanding, and can often result in fewer settlements, lower joint gains, and provoke costly retaliation from the opponent.[6] It also tends to remove the client from the negotiation equation, which may result in the attorney’s placement of monetary goals above such interests as happiness, well-being and respect (which may be of greater importance to the client).[7] Furthermore, an attorney’s adversarial approach can lead to declining professionalism, overzealous advocacy, and violations of the ethics codes.[8]

Studies by Andrea Kupfer Schneider found that over the past twenty-five years adversarial styles have become more extreme, and are perceived by other lawyers as less effective: “effective negotiators exhibit certain identifiable skills . . . . [A] negotiator who is assertive and empathetic is often perceived as more effective.  The study also reveals distinctive characteristics of ineffective negotiators, who are more likely to be stubborn, arrogant, and egotistical.”[9] Additionally, Kupfer found that “over 50% of the adversarial bargainers were ineffective. . . . As these negotiators become more irritating, more stubborn, and more unethical, their effectiveness ratings drop . . . . As adversarial bargainers became nastier in the last 25 years, their effectiveness ratings have dropped.”[10]

In addition to these results-based disadvantages, the adversarial style of negotiation presents numerous problems that affect the psychological and physical well-being—as well as the effectiveness—of both the attorney and the client.  The adversarial approach is often characterized as “attacking.”[11] When an individual feels attacked, a neurological reaction takes place.  In the brain, the hippocampus induces a heightened sense of alertness (described as the “fight or flight” reaction), affecting the prefrontal lobe in a manner that shuts down executive functioning.[12] This reaction causes extreme stress and anxiety.[13] The amygdala, when stimulated in this way, causes the release of certain stress hormones, including cortisol, which “heightens the senses, dulls the mind, and steals energy resources from working memory and the intellect so that such energy may be used to prepare the individual to fight or run.”[14] High levels of cortisol also produce distraction, mental errors, and “impairment in the ability to remember and process information.”[15]

A. The Source of the Adversarial Mentality

The American legal system is undoubtedly based on the concept of adversarialism.[16] Attorneys generally have been found to possess pre-existing personality traits related to competitive behavior such as dominance, leadership, a heightened need for attention, decreased interest in the emotional concerns and needs of others, and a lower tolerance for assuming subordinate roles.[17] A majority of law students enter law school with the same personality traits as other professionals, but go through a substantial psychological transformation during the first year.[18] The sense of competition inherent in the law school experience causes significant changes in students’ attitudes, values, and motivations, reduces students’ desire for cooperation, and diminishes overall personal well-being.[19] The common teaching style instills in law students the binary, win/lose mindset that naturally gravitates toward the adversarial negotiation style.[20]

B. Effects of an Adversarial Approach on The Client

There are many aspects of the legal process which may produce a strongly negative reaction in the client.  These aspects are called psychological soft spots.[21] For example, sometimes the legal issue confronted by the client—which brought her to seek an attorney’s services in the first place—or the process of reminiscing and openly discussing the issue can cause the client to experience anger, anxiety, fear, stress, or sadness.[22] These feelings may manifest themselves in the form of psychological resistance, minimization, rationalization, denial, or a host of other psychological defense mechanisms,[23] inhibiting the attorney/client relationship, preventing the attorney from learning the full extent of the client’s concerns, goals, and needs, and consequently preventing the attorney from proposing an appropriate course of action to resolve the issue.[24]

Clients are typically in the midst of extremely stressful circumstances when they seek attorneys’ counsel, whether regarding criminal matters, contract disputes, divorces, etc., and often experience physical or emotional pain, guilt, regret, frustration and hatred of their circumstances.[25] The adversarial perspective fails to address these feelings because it operates in a binary, win/lose fashion.[26] This failure may result in less than optimal results and decreased client contentment with the services rendered.[27]

C. Effects of an Adversarial Approach on The Attorney

The adversarial approach tends to promote egocentric behavior and a lack of balance between personal and professional lives.  This often leads to unhealthy levels of stress, feelings of isolation, absence of meaning, and ultimately to the rendering of inadequate or inappropriate legal counsel.[28] Professor Susan Daicoff notes that attorneys’ sense of dissatisfaction with their profession may be due to an overall decline in professionalism fostered by an increasingly adversarial ideology.[29]

These feelings of professional dissatisfaction unsurprisingly also affect attorneys’ quality of work, impairing work productivity and interfering with relationships with colleagues and clients.[30]

The adversarial mindset can cause attorneys to misread their clients’ needs; “[o]ften clients have needs and interests that cannot be addressed through litigation or through an adversarial perspective.”[31] The adversarial approach encourages attorneys to “transform complex, human situations into a dry set of facts that fit into legal rules.”[32] Locked into a win/lose mentality, the adversarial attorney is incapable of assessing the client’s true needs, maximizing value, or addressing underlying sources of dispute.[33]

III. Developments in Negotiation

Negotiation need not be a deleterious process.  In fact, it has the potential to be a healing process which brings disputing parties together to discuss and analyze their differences, resolve conflict, and reconcile disagreement.[34] Numerous alternatives to the adversarial approach have developed in the field of negotiation, many of which appear to be evolving toward a more therapeutic result for all parties involved.  Among these approaches are the cooperative style, integrative bargaining, and collaborative lawyering.  These styles are not mutually exclusive, and often different styles can be used in combination during a negotiation to achieve optimal results.

A. Cooperative Style

Cooperative negotiation can be described as an exploration searching for a mutually acceptable resolution.[35] The cooperative negotiator “communicates to establish a common ground, emphasizes shared values and objectives, and demonstrates a genuine interest in the other side.”[36] A cooperative negotiator generally presents realistic and reasonable opening demands, offers concessions equal to or greater than those offered by the other side, readily shares information, asks many questions to ascertain the other side’s needs, interests, and concerns (through open questioning and active listening), and makes fair, objective statements of facts.[37]

While the cooperative style lends itself to a less confrontational process, it is vulnerable to exploitation.  If matched against an adversarial negotiator, the cooperative party will openly share information, including the weaker aspects of their position.  The adversarial opponent will accept this information, offer nothing in return, and use that information against the cooperative party.[38] When presented with a cooperative opponent, an adversarial negotiator will often “increase their demands and expectations about what they will be able to obtain.”[39]

B. Integrative Bargaining

The integrative negotiator focuses more on “interests” than “positions,” using both competitive and cooperative tactics to expand the pool of resources available to the negotiation, in her attempt to capitalize on “opportunities to create additional value in a phase of the negotiation that will satisfy parties in addition to the negotiator and the client,”[40] essentially allowing all parties to reach a more advantageous resolution than might have been previously possible.

However, critics contend that in negotiations of more limited scope, such as those with primarily distributive issues of contention, often value-creating options do not exist.  In such situations, “rigidly adhering to an integrative framework despite situational factors that do not promote the generation of added value is potentially done to the detriment of the client.”[41]

C. Collaborative Lawyering

The collaborative style of negotiation directly involves both attorneys and their clients, and sometimes incorporates other relevant professionals (e.g. financial advisors, social workers, etc.) in the process.[42] Its objective is “to change the context for negotiation itself, and to provide a strong incentive for early, collaborative, negotiated settlement without resorting to litigation.”[43]

Although each party retains separate, independent counsel, the process differs from traditional negotiation in a number of ways.  First, clients actively participate in the process and retain ultimate decision-making authority.  Second, both parties openly share all information relevant to the dispute.  Third, both parties agree that their current attorneys will be disqualified from representing them in litigation should negotiations fail to reach resolution.  Additionally, any litigation pending at the time negotiation is commenced must be suspended during the process.  Also, the threat of litigation may not be used to coerce settlement.  Fourth, any necessary experts (e.g. financial advisors, accountants, counselors) are jointly retained by the parties.  Finally, both parties must agree to act in good faith to reach a mutually beneficial settlement.[44] Similarly, the participating attorneys, though remaining advocates for their clients, are committed to “keep[ing] the process honest, respectful, and productive on both sides.”[45]

Proponents of the movement suggest that it expedites resolution, reduces legal costs, leads to more integrative resolutions, and enhances both personal and commercial relationships.[46] Lawyers who practice Collaborative Lawyering derive more satisfaction from their work, experience less stress, and have more satisfying relationships with their clients.[47]

Collaborative Lawyering is not without its disadvantages, however.  There are concerns that the process may violate the ethical requirement to zealously represent a client’s interests.  Also, because the collaborative method is based on communication and trust, parties are vulnerable to deception and manipulation.  Furthermore, since the participating attorneys are disqualified from representing those same clients in litigation of that disputed matter, there exists a potential for coercion to settle.

IV. Therapeutic Jurisprudence

Therapeutic Jurisprudence is the “study of the role of the law as a therapeutic agent,” focusing on “the law’s impact on emotional life and psychological well-being.”[48] The movement represents the idea that the law—including the rules of law, legal procedures, and the roles of legal actors—serves as a social force, producing both behaviors and consequences, the effect of which may be interpreted as therapeutic or anti-therapeutic.  It strives to maximize awareness of this fact and attempts to apply the law in a more therapeutic fashion while maintaining the integrity of other legal values such as due process and justice.[49] Incorporating theories and treatment ideas from such fields as psychiatry, psychology, clinical behavioral sciences, social work, and criminology, inter alia,[50] Therapeutic Jurisprudence encourages lawyers to “attempt to create the most beneficial and emotionally satisfactory solution given a particular client’s interests and circumstances,” thus providing a therapeutic outcome.[51] Since its original application to mental health law, Therapeutic Jurisprudence has also been applied to family law,[52] tort law, criminal law, and contract law.[53]

V. A Therapeutic Jurisprudence Application to Negotiation

The emerging styles in negotiation, and the practice of law generally, may be viewed as an evolution toward a more therapeutic process for the parties involved.  A Therapeutic Jurisprudence approach which takes into consideration clients’ interests, needs, and concerns, coupled with a dedication to problem-solving, professionalism, and civility, increases the probability of success in negotiations: “[w]hen lawyers are able to maximize their problem-solving skills balancing assertiveness and empathy, they are more effective on behalf of their clients.”[54]

Clients also play a more substantial, participatory role in the negotiation process under the Therapeutic Jurisprudence model.[55] Attorneys more frequently consult with their clients during the process, exchanging information and devising strategies.[56] Also, rather than dictating whether a settlement offer is optimal, attorneys advise whether the proposed offer is fair compared to the expected outcome at trial, and reasonable in light of the previously-ascertained interests and needs of the client.  This effort can have a significant impact on the client’s satisfaction with the resolution and the legal counsel received.[57]

Therapeutic Jurisprudence is certainly not a cure-all for adversarialism.  There are still many uncertainties and problems surrounding its application.  For example, Professor Christopher Slobogin has contended that Therapeutic Jurisprudence terminology may be too vaguely defined,[58] and its effects too difficult to measure accurately.  Furthermore, conflicts may arise in balancing Therapeutic Jurisprudence with other important factors such as the client’s constitutional concerns, the attorney’s ethical concerns with regard to confidentiality and conflicts of interest, zealous representation, avoidance of paternalism, and attaining therapeutic outcomes for a client without producing anti-therapeutic outcomes for others.[59]

VI. Conclusion: A Measured Approach

A complete transformation to a Therapeutic Jurisprudence model might prove inefficient, wholly ineffective, and ultimately contrary to our traditional notions of justice.  It is important to consider that Therapeutic Jurisprudence need not be an all-or-nothing endeavor; small, measured changes to current negotiation techniques could significantly affect the field in positive ways.  To have the greatest impact and stamina, this change must be initiated early.  Law school clinical programs represent an excellent opportunity to experiment with Therapeutic Jurisprudence approaches to negotiation.  Within the professional legal community, CLE programs, trade magazines, and professional associations could promote more therapeutic approaches to negotiation and report feedback from participating practitioners.

Given the limited effectiveness of the adversarial style, and the trend in negotiation (and legal practice) toward more therapeutic processes, it appears inescapable that subsequent approaches will incorporate elements of the social sciences.  While the integration of law and social science leaves many questions, the interdisciplinary concept does not necessitate that social science theories immediately assume the authoritative position of legal doctrine.  Such theories may simply aid attorneys in tempering their approach and shifting their focus at times in order to represent clients more effectively.  Clients in turn will benefit from a more satisfactory experience, efficient service, and more appropriate, long-lasting resolutions of conflict.  Consequently, attorneys may experience increased job satisfaction, lower levels of stress, and improved morale, and the public perception of the legal profession may return to the level of prestige it commanded in earlier times.[60]

By Donald R. Philbin, Jr.

ESPN recently dubbed baseball umpire Tim McClelland’s missed calls in Game 4 of the American League playoffs as “the worst umpiring performance at an Angels games since Leslie Nielsen in ‘The Naked Gun.’”¹ While his mistakes were not outcome determinative, they rekindled calls for the use of instant replay.

Those of us who have spent time with disputants were not surprised.  As New York Yankee Derek Jeter put it: “Umpires are human.  They make mistakes sometimes.”² We routinely anticipate errors and design systemic checks to identify and address them.  Appellate courts and appellate arbitration panels, like instant replay, owe their existence to the need for second (or third) looks.

In fact, the ultimate second-looker famously analogized the roll of judges to umpires in his confirmation hearings.  Chief Justice John G. Roberts of the United States Supreme Court said, “Judges are like umpires . . . Umpires don’t make the rules; they apply them.”³

In a takeoff from Malcolm Gladwell’s best-selling book Blink, Professor Chris Guthrie drilled into judicial error rates in Blinking on the Bench: How Judges Decide Cases, 93 Cornell L. Rev. 1 (2007).  There, law professors asked a large group of trial judges to respond to a three question survey at a judicial conference. Each question has an intuitive, snap answer (a “blink”) and another analytical answer that might be the result of a reasoned opinion. Perhaps unfairly, the questions were not application of law to fact questions that judges might face at work, but analytical quizzes reminiscent of the SAT:

1.       A bat and a ball cost $1.10 in total. The bat costs $1.00 more than the ball. How much does the ball cost?  5 (not 10) cents

2.       If it takes 5 machines 5 minutes to make 5 widgets, how long would it take 100 machines to make 100 widgets?  5 (not 100) minutes

3.       In a lake, there is a patch of lily pads. Every day, the patch doubles in size. If it takes 48 days for the patch to cover the entire lake, how long would it take for the patch to cover half the lake? 47 (not 24) days

The authors reported a 1.23 mean, but parties unable to settle out of court may be more interested in the fact that 31% of the responding judges did not get any of the questions right. There may be inherent problems with this and any survey. The judges may not have put much effort into the break-time quiz at their information packed conference and the questions do not approximate what they are asked to do on the bench. But that is little consolation to those on the “wrong end” of a judgment they forced by not making their own deal in mediation.

Another major study concluded that even parties advised by experienced litigators are not above error.4 Comparing actual trial results with rejected pre-trial settlement offers in more than 4,500 cases and 9,000 settlement decisions made during a 44-year period, the study found that 61% of plaintiffs and 21% – 24% of defendants obtained an award at trial that was the same or worse than the result that could have been achieved by accepting their opponent’s pre-trial settlement proposal. Yet while plaintiffs tend to make more errors in their estimates more frequently, defendants do so with greater severity. When a plaintiff misses the mark, she is only off by an average $43,100. The defendant misses less frequently, but the verdict is 26 times the last offer when he does: $1,140,000.

Psychologists have long taught us that people with exactly the same information reach different conclusions.  Buyers rarely want to pay as much as sellers demand, whether negotiating the sale of a house, car, or lawsuit.  It’s largely a matter of assigned position. But the magnitude of the decisional error is telling.  Subjects asked to price a generic coffee cup for sale assigned it a value of $7.12. Buyers initially offered $2.88 for the same cup – 2.5 times less.⁴

These studies confirm and quantify what we know intuitively:  people (including umpires, judges, litigants, and others) make mistakes and when litigants are wrong, sometimes they are very wrong. The barrier preventing resolution may not be that litigants can’t see the same solution; it may be that they cannot see the same problem.

Mediation is a commonly used to debias positional assumptions that lead to impasse.  The reality is that we reactively devalue everything our enemy says, even if it would be helpful to us – “that can’t be good for us, or they would not have offered it.”  In fact, a Cold War experiment quantified the magnitude of this reactive devaluation bias. Soviet leader Gorbachev made a proposal to reduce nuclear warheads by one-half, followed by further reductions over time.  Researchers attributed the proposal to President Reagan, a group of unknown strategists, and to Gorbachev himself.  The surprise was not that the group reacted differently to the same proposal depending on its source, but the wide range of difference. When attributed to the U.S. President, 90% reacted favorably. That dropped marginally when attributed to the third-party (80%), but in half (44%) when attributed to the Soviet leader.⁵

So the surprise is not that an umpire missed a call, it’s how to deal with it systemically.  Like litigants, baseball stakeholders have options, and a quick appellate ruling from the pressbox may be the most expedient here since the full record is easily available.

Donald R. Philbin, Jr. is an attorney-mediator, negotiation consultant, arbitrator, and Adjunct Professor at Pepperdine University School of Law — Straus Institute for Dispute Resolution. For more info, see http://www.adrtoolbox.com/.

Originally published to HNLR Online on Nov. 1, 2009.

Participants in MWI’s Collaborative Negotiation Trainings often ask how they should handle significant power differentials. Most frequently, this question is asked by those who perceive themselves to be in a position of lower power. “A collaborative approach is all well and good,” they say, “but what happens when the other side doesn’t need to buy into that approach because they have the upper hand?”

My first approach is to challenge them on the assumption that they have little or no power in their negotiations. Negotiators often see the “grass as greener on the other side” and, in our experience (having worked with both sides of the table), we find negotiators most often buy into the false assumption that they are the more vulnerable party.

It’s essential to point out that, even if one party has less power by certain standards (resources, level of influence, etc.) they still have some power which can be leveraged. When we consider that the entire purpose of a negotiation is to create and extract as much value as possible from the combined experience or resources of all players, this becomes more apparent. After all, if either party could go it alone, why would they be negotiating with each other in the first place? They’re negotiating because they need each other (or could at least see the possibility of benefiting from each other) in some form or fashion. In other words, they’re already aware that the value that can be created between them is greater than the value they can create on their own.

Our challenge is to make this understanding explicit. We must confirm that both parties recognize the value of taking a collaborative approach to negotiating and, through this confirmation, incentivize them to continue conversations in a productive manner that enables both parties to benefit from the interaction. We build our capacity to do this through systematic pre-negotiation preparation that takes the following into account:

Effective preparation begins with an analysis of your and their Interests (i.e., their needs, concerns, goals, and fears). Define what’s important to them and ask yourself - how does working with you meet those needs better than working with any of your competitors? Though many choose to focus on price, I’d caution you against this. Price wars tend to do little but drive down the bottom line for your entire industry and train your negotiating counterpart to threaten to walk so you’ll give in. Rather, shift the focus to the other matters that are important to them: customer service, access, time to market, quality of product or services, payment terms, and other tangible or intangible aspects of the deal that make up the total value of the arrangement.

It’s vital to find out what’s important to your counterpart and to articulate, however you can, how you meet those needs better than anyone else they might work with. This is essentially your value proposition. In this way, you make yourself as indispensable as possible and limit their power as they realize that they need you as much as you need them or that they benefit more from your involvement and contribution than from anyone else’s. You’re no longer a “commodity;” you’re a rare exception that brings more value to the partnership than anyone else in the field.

Second, at the same time that you’re articulating your value proposition to them and therefore limiting the attraction of their Alternatives (i.e. what they’ll do to meet their needs if they don’t come to agreement with you), you should be researching and improving your own Alternatives. Who else could you meet with and work with that would satisfy your Interests as well as your counterpart can? Unfortunately, in instances such as business development in which you’re already pursuing other business regardless, Alternatives seem limited. In these instances, you can’t necessarily find a replacement (as you could in a negotiation over a car). Admittedly, however, should you happen to win all other business pursuits, you become much less “desperate” for theirs.

Knowing how you define success, and what you’d do if you don’t reach agreement, can prepare you to walk away if the proposed outcome does not meet your needs. Furthermore, if they’re pushing unfavorable terms (such as unreasonable risk or liability without appropriate rewards), knowing you have the Alternative of walking away and turning down business that’s potentially harmful to you can be empowering in and of itself.

This brings us to our third source of power in negotiation – Objective Standards. Objective Standards are benchmarks, industry norms, precedents, and other ways that negotiators determine if an idea or potential resolution is fair. Researching Objective Standards and raising them at appropriate times can protect you from susceptibility to unreasonable requests. You should know what’s fair – as determined not by you or your counterpart, but by others – your industry, laws, expert opinions, and other facts aren’t capable of being manipulated by either you or your counterpart. Understanding what’s fair and reasonable and having the capability to inform yourself and your counterpart on what’s “reasonable” is a source of power.

In conjunction with the Objective Standards you raise, it’s important to Communicate your level of Commitment and the consequences for them and for your Relationship should they try to coerce you to accept unfavorable terms. Help your counterpart take a long-term view, pointing out the short-term benefits of their taking advantage of their power as well as the long term consequences – which can include but are not limited to: a damaged relationship, your looking to extract value elsewhere in the process, both of you developing a damaged reputation for business in your industry, etc. It’s important for your counterpart to realize that a bad deal for you is essentially a bad deal for them.

Once it’s clear that you’re interested in a deal that’s fair, reasonable, durable and sustainable, together you can generate the Options that satisfy both of your needs. Your success depends not only on your ability to prepare for the negotiation and to execute it effectively, but also on your ability to engage with your counterparts and to educate them on the value of taking a collaborative approach. Securing a commitment from your counterpart to negotiate collaboratively is a critical first step in dealing with perceived power imbalances. Negotiations should be viewed as an opportunity for sustained partnership generation and long-term value creation. Failing to persuade your counterpart to negotiate collaboratively with you will result in outcomes that are based not on the strength of your combined ideas, but rather on who can exert more power over the other. Whether either of you realize it at the time or not ,this results in multiple casualties over the long-term.

Originally published to HNLR Online on Oct. 21, 2009.

By Robert C. Bordone & Matthew J. Smith

Recently the Justice Department announced that it had entered into a $2.3 billion settlement agreement with pharmaceutical colossus Pfizer, bringing to a close a four year investigation alleging that Pfizer had illegally marketed and promoted the painkiller Bextra as a remedy for conditions that had not been approved by the FDA. As the federal and state prosecutors involved in the case celebrated the largest health care fraud settlement in U.S. history, a small but vocal contingent of legal academics, prosecutors, and citizen groups lambasted the outcome, insisting that only a proper trial and jury verdict could do justice in such an important and high profile case.

We disagree. The Pfizer case underscores how negotiated settlement – when executed wisely and in good faith – can serve the public interest, produce just outcomes, and save millions of taxpayer dollars by avoiding lengthy courtroom battles.

In decrying the increasing use of settlement over full-blown trial, many opponents of negotiation worry that fewer trials mean fewer legal precedents and a lack of transparency. They argue that large public jury verdicts fulfill an important deterrent role and that allowing big companies to simply settle out-of-court gives them a chance to buy their way out of justice.

While poorly conceived out-of-court settlements do pose dangers of sweet back-door deals for corporate heavyweights, anti-settlement grumblers should take a close look at their position in light of the Pfizer deal, which demonstrates that well-crafted negotiated settlements can preserve the merits of trial while also creating value and saving money. Indeed, when well executed, settlement rivals the courtroom for delivering high quality and efficient justice and serving the public interest.

The deterrent effect of the Pfizer settlement is powerful. Both the Justice Department and Pfizer actively disseminated details of the settlement via press releases. Within moments of these announcements, virtually every major print, internet, and broadcast news outline reported the details. The news quickly found its way into water cooler conversations across the nation. It is hard to imagine that there is a single pharmaceutical executive in the country who is unaware of the facts of the case and the nearly-crippling record-breaking settlement figure. Given the widespread publicity, we can be assured that corporate titans have received a powerful message about the costs of unethical behavior when it comes to hawking their products.

By entering into a deal with Pfizer, the Justice Department was also able to conclude a case that would have absorbed the Department for years to come, costing taxpayers millions of dollars while consuming the precious resources of an already taxed federal courts system with countless motions, hearings, and mountains of testimonial and documentary evidence. Perhaps justice would have been vindicated, but in an all-out trial, Pfizer would have enlisted a daunting army of high-powered attorneys to curtail liability and delay the process. And, as we all know, justice delayed is often no justice at all. Government resources that would have been spent waging this legal battle can now be diverted to other prosecutorial endeavors. And the money garnered from the settlement will be used to help fund severely depleted state Medicare coffers instead of lining the wallets of white-shoe big city lawyers.

More than honoring principles a court might champion, the negotiated settlement with Pfizer allows the Justice Department to secure commitments from Pfizer that would have been unlikely in a court verdict. In addition to the enormous cash payment, the settlement agreement allows for closer monitoring of Pfizer by Justice Department officials in the years ahead, ensuring corporate accountability and providing an extra measure of protection for consumers. As part of the deal, Pfizer entered into a Corporate Integrity Agreement with the Office of Inspector General of the Department of Health and Human Services and will be required to maintain a corporate compliance program for the next five years. While a judge might choose to retain judicial oversight in a particular case, federal courts typically lack the expertise or resources to provide the kind of enforcement needed to ensure a systemic and long-term remedy in a technical or highly specialized case such as this.

The Pfizer settlement represents the best kind of transparent, efficient, and wise government law enforcement. It holds Pfizer wholly accountable for its actions, sends a strong and clear message to the public that corporate malfeasance will not be tolerated, provides for ongoing enforcement, and it does it all at a fraction of the cost of trial. While many cases should proceed to trial for reasons of precedent and public policy, negotiated settlement – when approached with wisdom and aplomb – can be a most efficient and effective means of law enforcement.

Originally published to HNLR Online on Sep. 25, 2009.

By Brian Bloch, David Miller, and Mary Rowe

The phone rings in the Ombuds Office[1]. A Ms. Lee is telephoning the ombudsman from far away. Lee is a department head in our organization who is temporarily assigned overseas. She says that a colleague, Ms. Dula, insisted that Ms. Lee call the Ombudsman immediately. Ms. Lee says that Ms. Dula noticed her crying in the bathroom, listened for a while, and then Ms. Dula insisted that Ms. Lee must consult with someone. The Ombudsman seemed to be the least threatening option.

In the Ombuds Office we do not know what we will hear. A case introduced in such a way might be about any very delicate issue. The central concern could be cruel, closed-door humiliation by a supervisor or mentor. It could be racial or religious hatred or sexual abuse or someone with an obsession. It might be suspicion or knowledge that a powerful person has misused resources, embezzled money or committed fraud. It could be fear of violence or gross safety violations. Most delicate cases include several different issues; perceived humiliation, intimidation and conflicts of interest are often part of a complaint, and so are allegations of multiple infractions of policies and rules.

It is also possible that we will hear perceptions of fact that turn out not to accord with reality. As one of our colleagues, Howard Gadlin, says, “If an organization has an Ombuds Office that is really trusted, and whose confidentiality is actually believed in, then you get people coming forward who have ‘no case’ at all.” So we try hard to maintain professional discipline and due caution.

The caller is often afraid, very upset and feeling trapped in her or his situation. For example, the alleged offender may be powerful and charismatic, with many connections. The alleged offender might be a senior leader, a major donor or customer, or someone who controls the future of the complainant. A complainant may be afraid to let her family know about her problem if it seems to reflect on her own behavior, for example her chastity. A complainant might be a temporary worker or contractor who risks his visa and his family’s future if he loses his job.

A caller may believe that she cannot realistically make a formal complaint, because she lacks conclusive proof of the offense. Or a caller may feel humiliated even to talk about what happened, if he thinks he should have been able to deal with a problem on his own. Many callers blame themselves. Many callers can see no way out, and can feel things getting worse and worse. “I have let this go on far too long,” says one or another caller, and sometimes the ombudsman silently agrees.

Ombudsmen know that people are often puzzled that they or others have not taken action in apparently egregious circumstances. Our experience is that only a relatively small proportion of the population is comfortable with formal actions (although, importantly, some in this group are satisfied only by formal investigations and formal action.) But most people, most of the time, are quite reluctant to act on the spot, or report unacceptable behavior, if they believe this will result in formal action. This is one of the reasons why options are needed in a complaint system.

What might the ombudsman do? One would be as empathic as possible and set aside whatever time was necessary to listen and talk with Ms. Lee. At whatever moment the ombudsman begins to speak—sometimes one simply listens for a period of time—an ombudsman would often begin by explaining confidentiality, neutrality, the informal nature of the Ombuds Office—we almost never make management decisions—and the independence of the office.

Typically we make a major point about confidentiality with a caller, and we think a lot about it, ourselves. The International Ombudsman Association’s Code of Ethics[2] states: “The ombudsman, as a designated neutral, has the responsibility of maintaining strict confidentiality concerning matters that are brought to his/ her attention unless given permission to do otherwise. The only exception, at the sole discretion of the ombudsman, is where there appears to be imminent risk of serious harm.” We will always be thinking whether there may be imminent risk of serious harm to the caller, or to someone else. And we will always be thinking about the options that exist within our conflict management systems.

Whatever Ms. Lee’s concern may be, we would try to help her to consider that she does in fact have options and some hope. However insufficient to her account of fear and perhaps injury, there may be some options to help her at least a little, in dealing with her situation. Together with her, we would look for ideas, perhaps including:

1. Possibly Ms. Lee does not have to take any immediate action. She may be able to find informal support from Ms. Dula or others—perhaps from a member of her family back home; from social workers, health care, legal and religious advisers; a mentor in the organization. We would ask if she has consulted anyone else, and will try to develop ideas about other trustworthy people who could help her if she wants time to think about her options.

2. Ms. Lee and the ombudsman might discuss possibilities for her to get a little time off, if that would be helpful, or to come back home if she is away from home. If she says her situation is untenable, and also is unwilling to choose another option below, Ms. Lee and the ombudsman could discuss possibilities for a transfer, in case that is possible, perhaps to another department or another country. In some situations Ms. Lee might consider a formal complaint after she has safely left the situation. (If the complainant feels strongly about having to leave, the ombudsman may be mentally adding this issue to the list of concerns to consider in the case. That is, is it possible that the complainant is being driven out? Or that she is fleeing a situation where she herself has behaved badly? Or both?)

3. In some situations, the ombudsman may be able to help by explaining relevant policies or procedures that were unknown to Ms. Lee, or hard to understand. In our experience very few managers and employees actually know the rules and policies of their organization. In addition, many do not understand the local cultures and cross-cultural “common laws” that obtain in most organizations. Thus a discussion of norms and expectations and rules may be helpful—in affirming her feelings, or helping her understand why some kinds of supervisory behavior are in fact considered acceptable—or both. (Please see also the accompanying article by David Miller on the importance of codes of conduct.)

4. In some situations, the ombudsman—with permission—may be able to help by making a quick phone call to a relevant compliance office. (See, as examples, Audit, Ethics, HR, EEO, General Counsel, Waste Hazards and other compliance offices on the Chart attached.) It may be possible to alert the relevant compliance office to the facts of the concern, without any mention of Ms. Lee.

5. Ms. Lee might be able to write the facts of a situation or call a Hot Line, without betraying who she is. Anonymous complaints can sometimes bring attention to safety problems, financial misbehavior, and other issues, and the ombudsman or Hot Line will know which person in the organization might do some fact-finding and take action, and where Ms. Lee might direct a factual letter. Some organizations say that they do not act on anonymous complaints. However, in our experience most organizations do take note of truly serious, anonymous communications, at least with respect to issues where investigation is compulsory.

6. We might help Ms. Lee to think about drafting a formal letter to the person she sees as the offender. She might set forth relevant facts as she sees them, and the effects of relevant events. She might state whatever she thinks should happen next, or ask for a remedy, if there is anything for which she would wish to ask. (An example might be to ask for setting things right in the situation she describes.) Just drafting such a letter may help her to deal with grief, and to think through her possible options, and to prepare for any formal option that she may choose.

7. We might also help Ms. Lee to think about writing a letter to her supervisor, if this is not the same person as the offender, setting forth the facts as she sees them, and the help she needs, and also, any concerns about her work. Drafting such a letter might help her to prepare, if eventually she wishes to talk with her supervisor. Discussing such a draft with Ms. Lee may provide the Ombudsman with a chance gently to explore how others might view the situation. And of course, if Lee is willing to communicate with her supervisor, this may help that person and the organization; supervisors can act much more effectively if they have the information they need.

8. Ms. Lee might also consider drafting a formal complaint to appropriate senior managers or compliance officers. This process often takes a little while. As noted above, this may be useful both for collecting the facts, and for being able to cope emotionally with what has been happening. From the ombudsman’s point of view this is also a process that may help Ms. Lee see other sides of the story in cases where that would be appropriate.

9. Ms. Lee and the ombudsman might also discuss what she would wish to say to the (alleged) offender, her own supervisor or to relevant senior managers—if she were to meet with any of them. We could help Ms. Lee to consider what she might want to accomplish at any such meeting and the possible things that the other person might say or do. We might role-play the meeting, with the ombudsman playing the role of the other person. Ms. Lee might consider, at such a meeting, handing in the letter described above. If the organization permits an accompanying person, we might talk about whether she wishes to ask a workplace associate to accompany her.

10. In some cultures and with respect to certain problems, it is possible that Ms. Lee would wish to think about some form of mediation. If Ms. Lee wants to make a request, mediation may be helpful. She might choose the ombudsman as a neutral, or some other person, like a mentor, or a revered older person, or a designated mediator from a Mediation Office.

11. In some situations it might be helpful for the Ombuds Office to ask an appropriate office for an immediate training program, in the region or department where Ms. Lee is working. There might be training about relevant codes of conduct. The training might be about harassment or safety policies; about relevant laws of the country; about resources available for people who perceive unacceptable behavior; or about options for bystanders. Generic actions like these may stop inappropriate behavior. Generic actions sometimes make it easier for people to act on the spot, or come forward, and may thereby help to prevent harm in the future.

12. In some situations the ombudsman might offer to talk with the alleged offender, or with Ms. Lee’s supervisor, or with a relevant senior manager.

13. In some situations, Ms. Lee could register a formal, written complaint with the most senior organizational leader or manager in the country where she is working.

14. We could seek relevant resources that might be available in the country that Ms. Lee is in, for example, resources for women, to see if she wishes to consult with them.

15. Ms. Lee could go to relevant organizational security or outside police officers. Ms. Lee might register a formal complaint with the relevant judicial system.

16. While considering the options above, Ms. Lee might decide, to “wait and see if anything else happens.” In such a case we might suggest that she consider keeping a careful log, with dates and times, noting witnesses, if any, and any additional evidence of events that cause concern. As with option five above, a log of this kind may help someone assess what is happening, may contribute to evidence, and may help the person regain some sense of control over his or her life.

17. Occasionally a person will ask about “how to make a formal record” without using any of the formal options above. The Ombuds Office keeps no case records for the organization, but a person can mail a securely sealed letter to him or herself, or even send such a letter by registered mail, to him or herself. This might later serve as a record.

18. If Ms. Lee mentions other parties in her discussion of concerns, the ombudsman might explore with Ms. Lee what the options might appear to be for these other stakeholders—and to try to think ahead what they might choose to do under various circumstances. In relevant cases, the ombudsman might also ask whether Ms. Lee would want her own call to be disclosed, if another stakeholder were also to call—or whether Ms. Lee would prefer not to give such permission.

Usually it will appear that there are shortcomings for every possible action. It may take Ms. Lee a little time to reach a decision on how to proceed. Ms. Lee might choose more than one option, or plan to try several options sequentially if needed. Maybe none of these options will do, and we are likely to continue to search for another. Especially if Ms. Lee chooses “wait and see,” the ombudsman may follow up and follow up, many times.

Complex cases are often challenging for an ombudsman. We would constantly be trying to maintain objectivity since we often cannot be sure about any of the facts of a situation. We would try to think if we were affirming Ms. Lee’s feelings enough for her not to feel alone, or in despair, without actually being drawn so far into the situation that we have lost objectivity about the facts. Such objectivity is needed both to help her, and to consider the rights and interests of others, and to consider the interests of the organization itself. There are many questions to consider, especially if different nationalities, religious groups and cultures are involved.

The ombudsman must think about whether, if Ms. Lee’s story is true, there may be risk to any other person, and if so is there imminent risk of serious harm. We must also think, whether the story is true or not, about the rights and interests of the alleged offender. And what needs to happen, in the very rare case that the alleged offender does not exist—or has been in another country entirely, and the alleged offense cannot have taken place? It will be clear that we must listen with great care.

The ombudsman will likely consider the role of Ms. Dula—is her knowledge important in a formal sense, for example to back up Ms. Lee? Does she know more than we know she knows? Does her having heard Ms. Lee’s story constitute “notice” to the organization? Will she make trouble or be helpful, if Ms. Lee gets back to her, and ought the idea of getting back to Ms. Dula be discussed with Ms. Lee? Are there others like Ms. Dula with whom Ms. Lee has spoken? Does Ms. Lee know of others who have faced the same kinds of issues? We will try to be thinking about everyone whose interests in our organization (and perhaps outside it) might be affected, and any possible options for meeting those interests.

It is likely to be important to Ms. Lee that our organization provides options for dealing with conflict within our conflict management system. As mentioned above, there are likely to be compliance offices. And, like most organizations, our system has an internal grievance channel that is available to deal with formal complaints, so Ms. Lee has rights-based options available. Although Lee may have little trust in formal grievances against persons of high rank, the high rank of an (alleged) offender will not necessarily influence an investigatory procedure—people in high positions have been brought to justice in the past. However, if Lee believes that she lacks “enough” evidence, this may deter her from lodging a formal grievance. And even if more evidence is forthcoming, she may feel she will be faced with fallout afterwards.

Although she may have little trust, a rights-based option may in fact protect Ms. Lee, especially if it turns out that other people share Ms. Lee’s concerns. And a rights-based option may help to protect the interests of others, which may matter to Lee. And of course, on the other side of the picture, if the alleged offender is innocent, his or her name might get cleared, a fact that is important to a neutral observer.

Ms. Lee’s interest-based options may seem limited if she fears loss of privacy, loss of relationships—and retaliation. However, writing a factual letter to deliver privately to the alleged offender, may appeal to her, especially if she wishes to ask for a remedy. Being able to prove that she delivered such a letter, (for example by registered mail) of which she has kept and mailed herself a copy, may also add a little to “evidence.” Having more evidence might prove helpful to management, if Ms. Lee were later to need to bring a formal complaint.

Ms. Lee’s power-based options may seem risky to her. What if the apparent offender’s boss sides with the offender? What if the superior asks Ms. Lee for evidence and Ms. Lee tells him/her there isn’t any, beyond her own word, and the fact that she spoke with Ms. Dula? But there is also the possibility that Lee’s own supervisor, and the people that know her, may be a source of power for her. She may not have to face her situation alone—others may be able to support her.

Whatever options Ms. Lee chooses, we must also think about the systems implications of her complaint. Presumably we will follow up. Sooner or later there will be an opportunity to address the issues raised above, either through the immediate option chosen by Ms. Lee; or through a training program; via 360 performance evaluations, organizational surveys, and focus groups; or quite likely with permission from Ms. Lee after she is safely out of the situation.

It will be apparent that multi-issue, multi-cohort, cross-gender, cross-culture, multi-jurisdictional cases require great care. Imagine a few facts changing either way, or imagine the case in a different context, and a conflict may change or the options may change.

Organizations need to have a way to let the facts emerge, if only privately, while different actions are considered. This task is, realistically, daunting in modern organizations; many managers are very insulated. However, the complexity of the modern workplace has fortunately led to complaint systems that provide options—for care and fairness and justice—for complainants, for respondents, and also for managers.

Just “having a choice of options” seems to help people to come forward. Brian Bloch’s accompanying article illustrates an example of developing various options, how they may be used, and how they may help individuals and groups.

The existence of an Ombuds Office that is independent and neutral, and off the record, and which knows all the components of the conflict management system, may be able help people in distress take a responsible first step. The accompanying article by Mary Rowe develops these ideas in greater detail.

Click here to download the full article (pdf)

Originally published in 14 Harv. Negot. L. Rev. 239 (Winter 2009).

Introduction

Click here to download the full article (pdf)

Ideas about conflict are compelling topics for those of us who in work in organizations. We think about workplace justice, alternative vs. appropriate dispute resolution, and how to help leaders and teams deal effectively with the concerns and conflicts that preoccupy them. We think about organizational systems for dealing with conflict and learning from conflict. The present authors prefer this concept to the conventional term “conflict management systems” (CMS) although, for simplicity, we also use the conventional term.

It is not clear to us that all conflict can or should be “managed” — managed by whom? One of the major questions in this series of articles is: who should decide how to deal with a conflict? In particular, the Bloch, Miller and Rowe articles explore appropriate dispute resolution within an organization: who determines what is “appropriate” in this complex world, and on what basis?

The need for shared norms in complex cases. Multi-issue, multi-cohort, multi-context, cross-boundary, cross-gender, multi-ideological, multi-cultural, multi-generational, multi-law-regulation-policy conflicts are now common in organizations. Many organizations are also structurally complex. The workforce may work within virtual structures and under widely differing contractual arrangements; employees are of very unequal power, and often do not share norms and values. Organizations now must work hard and consistently if they wish to be effective in teaching values, standards, policies and rules. This work begins with setting standards.

David Miller writes that multi-cultural organizations need standards of conduct that apply to all persons in the organization; the standards should be linked to the mission of the organization; standards are essential when adhering to them is required to accomplish the mission. Miller writes that standards are required for a workforce to understand what is “appropriate” behavior and appropriate conflict management.

The need for options. Implementing standards, policies and rules is not easy in conflict management. In real life it is often ineffective to think about a complaint or conflict just in terms of its “issues,” without regard to what the stakeholders want. Different stakeholders seek different ways of dealing with a conflict: some do nothing, some leave the situation, some make matters worse, some seek formal complaint channels, and others seek informal resolution for their complaints and conflicts.

It is a common belief that different issues suggest or require certain specific methods or venues for dealing with those issues. (Think, respectively, about how to deal with criminal behavior, other illegal behavior, offenses against the organization’s policies, offenses against personal values, and the complaints people have with administrative services.) However, despite the common belief that the issue will determine the method of conflict management, in the face of an actual conflict or complaint, many employees and managers simply act in accord with their own beliefs, rather than following the apparent norms about how a given issue should be addressed.

In reality, there is no single, effective way to decide which problems should go to which conflict management options, because people so often vote with their feet. Both managers and disputants often 1) ignore a complaint or conflict, or 2) think they alone own it, and 3) may want to deal with it in ways that are different from ways that would be chosen by the other stakeholders.

New laws and standards, combined with very diverse values held by people in conflict have, therefore, led to the need for options in conflict resolution and complaint handling. Providing a variety of options in turn suggests the need for a systems approach.

A relatively simple way to think about conflict management options within a system is to define them in terms of dealing with conflict on the basis of interests, and rights, and power, (please see the Chart attached). In reality, of course, interests, rights, and power overlap to some extent, within almost all options. And, in reality, all conflict management offices use some interest-based, rights-based and power-based ideas to deal with problems. However for simplicity we will use these rubrics, in discussing elements of conflict management systems.

So, different issues and differing values lead to the need for options, and having options suggests building a system. As it happens, it is not a simple thing to develop a coherent system. There is a fundamental issue about “who owns” a conflict or a complaint. Who has the right to choose which option or options to use?

As a first example, a multi-issue, multi-cohort case may present a problem within a systems approach. A given case may seem relevant to many different offices and functions on the Chart attached. Each office might think it should “own” the case, because it appears to “own” one or another of the many issues in the case, and it provides one or more functions relevant to the case.

As a second example, supposing the individuals engaged in conflict do not take the problems to any manager or office on our Chart? Conflict managers and dispute system designers sometimes talk as if “all” disputes might surface into the system. In real life most concerns and conflicts most of the time are addressed by the individuals involved, (or these parties suffer in silence). Resolution by the parties involved may often be a good thing—think for example of a well-functioning team. However, does this mean that in real life individuals are part of a “conflict management system?” What are the implications for system design?

Design and implementation In his paper, Brian Bloch illustrates the process of designing and building a system “to deal with conflict and to learn from conflict.” He records how he added interest- and rights-based options to an organization that previously did not provide those options, in order to meet the needs of individuals and groups. (Bloch, Miller and Rowe in their articles all wryly attest to the fact that this process is often less than elegant and that there is much to learn. Conflict management systems “happen,” however much we try to design them.)

As it turns out, taking a “true” systems approach to dealing with conflict within an organization is difficult, for many theoretical and practical reasons. These articles outline some problems in conflict management system design:

• Conflict management systems are difficult for managers and employees to understand. Different managers often feel naturally attuned to one or another option in the system, but various disputants may be drawn to other options. Added to this confusion is the fact that most employees and managers do not understand all the relevant policies and procedures—let alone how each option in the system actually works. Sometimes it is not even obvious which offices would be considered part of a given CMS.

• A system must try to balance the rights and interests of the organization, of its different conflict management offices—and of all the individuals involved in a conflict. These needs are sometimes at odds with each other. (A classic dilemma of this kind is illustrated in the Case attached.)

Mary Rowe discusses the important contributions that an organizational ombudsman—a zero barrier office—offers in dealing with major dilemmas of systems that are meant to deal with conflict and learn from conflict. Indeed, the key role of the organizational ombudsman is discussed in all three of these articles on conflict management system design.

David Miller, Staff Ombudsman, World Health Organization

Click here to download the full article (pdf)

Conflict management requires recognition that conflict is occurring. However, often there is no such recognition. Boundaries are often violated, behaviourally or verbally, by apparent abusers, harassers or aggressors unaware of the effects of their actions. And some people perceive no constraint on their actions. Sometimes also, those who are injured are not able to understand — or find it hard to name – what has happened. They may not be able to imagine any option for response (see the accompanying Case). Conflict management therefore requires common recognition of principles, standards or codes in which conflict is characterized, and from which solutions, resolutions or remedies may be found.

In organizations founded on the engagement of all cultures and peoples — in the United Nations organizations these are “member states”— and in private or public corporations with international constituencies and offices, conflict management necessitates an architecture of principles upon which, by common assent, behavioural boundaries can be asserted and, from which, behavioural violations of those boundaries can be inferred and characterised. These principles should embody elements that persons of all cultures can recognise, understand and to which they may legitimately aspire. These principles should be reasonably achievable on an individual level. These principles should also inform and guide the various elements of a conflict management system (CMS) — see the attached Chart for examples. The principles are also necessary to enable coordination of such functions into a coherent and functional system.

In 1954, the International Civil Service Advisory Board published the “Standards of Conduct in the International Civil Service” (hereafter referred to in this and their later revision as “the Standards”), with the intention that they,

“…become an indispensable part of the culture and heritage of the [participating specialised and related agencies participating in the UN Common System and other] organizations…” (ICSC, 2002).

As described on their website[2],

“The International Civil Service Commission (ICSC) is an independent expert body established by the United Nations General Assembly. Its mandate is to regulate and coordinate the conditions of service of staff in the United Nations common system, while promoting and maintaining high standards in the international civil service. The Commission is composed of fifteen members who serve in their personal capacity. They are appointed by the General Assembly for four-year terms, with due regard for broad geographical representation. The Chairman and the Vice-Chairman are full-time members and are based in New York. The full Commission meets twice a year.”

The 1954 Standards were updated and completed in 2001, following a three-year process of review in consultation with participating organizations and staff representatives and, following acceptance by the United Nations General Assembly (resolution 56/244), the Standards were then re-published in 2002.

In the preamble of the 2001 revision, it is stated that the Standards are based on the aim of the United Nations and the specialized agencies “…to save succeeding generations from the scourge of war and to enable every man, woman and child to live in dignity and freedom.” (para.1). The preamble adds that

“…international civil servants have a special calling: to serve the ideals of peace, of respect for fundamental rights, of economic and social progress, and of international cooperation. It is therefore incumbent on international civil servants to adhere to the highest standards of conduct…” (para. 2).

Among the guiding principles then explicated are those vaules

“enshrined in the United Nations organizations [that must] …guide international civil servants in all their actions: fundamental human rights, social justice, the dignity and worth of the human person and respect for the equal rights of men and women of nations great and small.” (para. 3).

Additional guiding principles include: loyalty to the vision of organizations of which the person is a part (para. 4); integrity (”…qualities such as honesty, truthfulness, impartiality and incorruptibility”) (para. 5); impartiality (paras. 8 and 9); tolerance and understanding (”…respect all persons equally, without any distinction whatsoever”) which, “…in a multicultural setting calls for a positive affirmation going well beyond passive acceptance” (para. 6); “international loyalty” (para. 7); and an “international outlook”, implying,

“…respect for the right of others to hold different points of view and follow different cultural patterns. It requires a willingness to work without bias with persons of all nationalities, religions and cultures…It requires punctilious avoidance of any expressions that could be interpreted as biased or intolerant…International civil servants should not be wedded to the attitudes, working methods or work habits of their own country or region.” (para. 13)

Although the Standards describe expectations for the conduct of international civil servants, international organizations also have internal policies determined by member states, and staff rules determined by their executive heads. These policies and rules move from general, aspirational statements — as in the Standards — to specific procedures for administrative decisions. The Standards are designed to apply equally to all staff, irrespective of grade or seniority.

Consequently, cultures and nationalities are not formally recognized in delivery of administrative decisions or the application of conflict management systems. Instead, international organizations recognize international civil servants commonly bound by the Standards and equally subject to the policies and rules of the organizations.

The Standards form a foundation of values upon which issues raised in conflict management may be assessed and addressed. The Standards provide boundaries and parameters for acceptable conduct and, because they speak to allegedly universal values (i.e., culturally non-specific values which are also the basis for common law in many countries) they act as a referent for both the construction of CMS’s and for the subsequent conduct of each of the CMS elements. The Standards are the platform for administrative decisions occurring in the context of policies and rules of each institution. These Standards may also provide parameters within which options for conflict management may be rehearsed, including within the Office of the Ombudsman.

Challenges to Implementation

i. Contractual differences. One of the signal challenges to implementation of CMS’s based on the Standards is the diversity of conditions under which people are employed within organizations, and across organizations. Differing contracts — e.g., short-term versus fixed-term, three months to five years, with or without educational and health benefits — lead to differing levels of dependence and thus very different power dynamics within disputes.

ii. Logistics. Offices in some organizations have colleagues working in different languages, and the base language varies across regions. The question of language may limit access to “being heard” at a headquarters office.

Access to internal justice mechanisms varies according to grade and seniority, simply because such considerations can determine access to information and to technology (e.g., the use of email to reach a CMS located in another time-zone).

Time zones are another challenge, e.g., if the CMS is directly reachable by telephone only at the end of a local working day and at the very start of the CMS office’s working day.

iii. Expectations of staff versus priorities of the organization. Inconsistencies may be evident, in the application of appropriate internal justice procedures or responses to demonstrated misconduct or mismanagement, according to political or programmatic considerations, or simply according to conditions on the ground at the time of the alleged incidents.

iv. Awareness of options. Staff in different locations may have very different understandings of or information about their rights in respect of access to CMS options. This includes informal options such as recourse to the Office of the Ombudsman, particularly where contractual arrangements are diverse and language may act as a barrier. Many international organizations are addressing this issue by provision of mandatory training (and, in some instances, certification) of all staff on the Standards. Hierarchy in organizations may also act as a barrier to accessing available options, e.g., where access to communications technology is at the discretion of a problematic supervisor.

v. The range of potential internal and external actors. It is axiomatic for organizations within the broader United Nations family that equity and rights-based approaches underlie our work. Following a rights-based process for dispute resolution may require the involvement of multiple partners and players. For example, in the context of the attached Case, the range of internal potential actors may include at least the following:

· Internal security services

· Human Resources department

· Chief Executive’s Office

· Legal Department

· Internal Oversight Service (equivalent to OIG)

· Health and Medical Services

· Counselling and Psychological Services

· Protocol and External Affairs Office

· Directly and indirectly affected colleagues

· Staff Association

· Ombudsman

· The Executive Board of Member States

External potential actors may include at least the following:

· National police and/or security services

· National diplomatic missions

· Hospitals and medical/health practitioners

· Government departments of member states, including, e.g., health, foreign affairs, defence, and finance

· Social organizations and cultural groups

· Private legal representatives

· The media

Consequently, questions arising for the appropriate implementation of an ethical, just and humane response to conflicts — such as may be presented in the attached Case — include the following:

· What are the legal obligations on managing the issues? (for example, diplomatic immunity and its waiver);

· What lessons from previous experiences does the organization have to help manage such situations? (for example, ensuring timely staff care and support, what precedents are involved, what led to ‘successful’ or least damaging outcomes in the past);

· How is a balance struck between the interests of the individuals involved, and those of the organization? (for example, ensuring the safety of all who may be affected, and mitigating organizational vulnerability — if, for example, the protagonists are nationally highly regarded and highly visible emissaries from an important donor country);

· How can the situation be addressed expeditiously? (considering, for example, the impact of armed conflict, of time zones, of language, of religion, multiple administrations, multiple actors, multiple cultures, multiple agendas, of committees);

· How can responses be coordinated without compromising the confidentiality of the staff involved, the independence of the Ombudsman Office, the reputations of all elements, the relevant Standards of Conduct and the law?

· How does the organization characterise and represent the issue to itself, its constituencies, and how does it demonstrate the values and culture it espouses, in doing so?

vi. The impact of culture. All parties may be cognisant of the Standards, but behaviour is interpreted through cultural lenses and these will vary considerably. At the very least, conflict management requires an Organizational Ombudsman to be sensitive to how culture may affect the perceptions and behaviour of those involved. Nevertheless, in the contexts of international organizations in the United Nations family, staff have, in a practical, work-based sense, subordinated their culture to the Standards-based values — and resulting organizational culture — of their employer. Accordingly, in the context of international organization conflict management systems, the norms of national cultures no longer constitute a defence of untoward behaviour.

How can an Organizational Ombudsman add value to a CMS in such circumstances?

As explicated in the accompanying article by Mary Rowe, an Ombudsman Office can add significant value in dealing with conflict and learning from conflict, rather than aiming simply at finding a single resolution, or containing fallout. Ombudsman interventions can help healing by enabling organizations — at an institutional level — to reassert and model core values that problem-solving or dispute resolution alone might not address. These values may — like those embodied in the Standards — reflect ineffables: dignity, genuine respect, trust, motivation, pride, to name a few.

Indeed, by their adoption by international organizations under the United Nations family umbrella, the Standards form a foundation of values, and sets boundaries for acceptable behaviour. This platform enables Organizational Ombudsmen to refer to those values as well as to the policies and rules governing organizational conduct. Each office of the CMS suggested in the list of “Some Conflict Management Offices” in the attached Chart may use the same platform. And, as Rowe’s article highlights, Organizational Ombudsmen may help the other offices to work for ethical, just and timely conflict management.

But an additional and crucial consideration is whether the organization has the maturity genuinely to integrate an Ombudsman function genuinely within its structures. Will it be able to use an Ombudsman office in addressing situations that may result — in the short term — in possibly uncomfortable levels of necessary self-reflection? Organizational Ombudsmen have significant added value in such circumstances — and they may also create the circumstances in which the organization can effectively respond — because they:

· Work on the basis of International Ombudsman Association professional standards of practice and ethical principles which give priority to independence, neutrality and impartiality, confidentiality and informality[3]^,[4]

· can facilitate informal responses

· are truth-tellers to the organizations

· have principles for conduct and practice that protect those we serve (see below)

· can keep the temperature low for all parties

· can work with all the above-named, internal actors equally and alike.

Additional Observations

Conflict management systems are not linear, either in design or in practice — most usually evolve through trial-and-error and/or as circumstances dictate. It is not uncommon to hear Organizational Ombudsmen and other experienced practitioners in conflict management confess that many of their tools are constructed on an ad-hoc basis.

“Designing” a system to deal with conflict therefore has an inherent contradiction — that much of what causes conflict is novel. Dispute system design, while having much to learn from a wide diversity of traditions and bodies of research scholarship in fields of anthropology, psychology, sociology, theology, and law (to name but a few) continues to fascinate because it is constantly being challenged by new experience. It may fittingly be said that we are in the early adolescence of CMS design, in all sectors.

In addition, in implementing conflict management systems in many international organizational settings, a number of key issues are still the subject of exploration and experimentation:

• How to establish accountability for CMS, and Ombudsman practice;
• How to implement evaluation of efficacy and impact without compromising independence;
• How to identify the universalities in practice, and to assert standards in implementing these;
• How to define and assert boundaries with key partners in CMS’s;
• How to demonstrate that our constituencies can trust us;
• How to decide who makes the decisions about all of the above — again, without compromising independence, neutrality, confidentiality, and, for the Ombudsman, informality.