Lee Jay Berman's EYE ON CONFLICT

“Seek first to understand, then to be understood.” – Stephen R. Covey

We are once again in the wake of a tragedy.  News outlets are filled with coverage, details are slowly emerging, and the cover of Time Magazine shows a frightened child in the aftermath of the Boston Marathon bombing.  Many runners were running in memory of the Newtown, Connecticut victims, meeting tragedy with tragedy.

It is so difficult to find the words to express thoughts and feelings when there are infinitely more questions.  How could someone do this?  Why would someone do this?  Am I at risk?  We’ve even caught one of the suspected bombers alive, but still the unfortunate reality is that the answers to these questions may never be known and will certainly never be satisfying, certainly not to a daughter-less mother, a son-less father or a victim missing a limb.

So, how did we get here?   Simply put, someone wasn’t listening and someone wasn’t being heard.  As of this writing, we don’t know much about why this horrendous act was perpetrated.  But what we do know is that it was a statement – a political statement from a disenfranchised party, be it a person or a group, during the busiest area of a highly visible race on a highly visible day.

When people lash out, whether it’s in line at the dry cleaner, via road rage or in acts of terrorism like school shootings or the occurrences at the Boston Marathon, they usually do so because nobody has listened to them.  People get stifled, ignored, pushed down, or just out shouted, and not enough of us are listening.  So, feeling unheard and misunderstood, they scream louder, through social media or any other outlet they can find, until they finally lash out with anger or violence, so that someone will be forced to pay attention and listen to them.

To be clear, it is not anyone’s fault when someone resorts to violence, other than the person who cannot or does not contain their own emotions.  But when we ask ourselves, what could we have done, perhaps there is one answer that may have helped.

As a society, we are so connected by technology: email, news feeds, Facebook, Twitter, Skype. There is so much talk. So much chatter and noise.  But nobody listens.  Most people are merely waiting their turn to chime in with their own woes.  As human beings we all want to be understood, we want to have that moment of satisfaction and that feeling that someone actually understands us, maybe even cares.  As adults, as citizens in our communities, and in our schools, it is incumbent on us to actively choose to listen, to show empathy and compassion, and to give to others the feeling of being understood.  We don’t have to agree with everything others are saying, but by listening and letting them know that they’ve been heard, we may remove their need to shout louder.  Otherwise, a tool of communication becomes a tool of separation.

Mediators do not have magic wands.  All we really do is convince people to come in for a day, disconnect from technology, and allow us to listen to them and address their concerns.  We ask them to do this for each other. We let them know we hear them and that they are understood, thereby hopefully reducing or eliminating conflict.  School counselors, therapists, human resource professionals and others in the mental health and services professions are trained to do the same thing.  But every person reading this can make a difference, too.

In the coming days, weeks, and months, I implore people to take a moment to truly listen.  Listen to a friend.  Listen to a colleague.  Listen to your children.  Check in.  Ask questions and seek first to understand as we are all trying to understand.  Maybe that will be the difference between conflict and resolution.  And maybe even it will be the difference between violence and satisfaction.

Tags: bombing, Boston, captured, conflict, listening, marathon, motivation, reason, resolution, suspect, violence, what made him do it
Posted in Current Events, Mediation Skills, Politics & World Events | 2 Comments »

December 20, 2012

The membership of the Association for Conflict Resolution mourns the tragedy in Newtown, Connecticut, along with all those shaken by it across the United States and around the world. We and many of our other colleagues stand ready to lend the full range of our professional expertise and devotion to processes that support healing, as well as those sustained efforts that will be required to facilitate dialogue, build consensus, and take action to address the deep rooted structural issues that contribute to this tragic pattern. Our membership includes thousands of dedicated and seasoned conflict resolution practitioners with a variety of specializations committed to the work that lies ahead.

Many ACR members, particularly those who are mediators, are also following a developing side story relevant to our field. News reports have disclosed some details of the mediated divorce of the perpetrator’s parents and provided comments alleged to have come from the couple’s mediator. ACR would like to make clear to the public that confidentiality is one of the basic principles of mediation, and that any mediator belonging to an organization, such as ACR, which has approved the Model Standards of Conduct for Mediators, is bound by that standard of confidentiality (http://www.acrnet.org/Educator.aspx?id=971). In addition, ACR endorses both the ACR Ethical Principles and the Model Standards of Practice for Family and Divorce Mediators which state “A family mediator shall maintain the confidentiality of all information acquired in the mediation process, unless the mediator is permitted or required to reveal the information by law or agreement of the participants.”

Each year in the United States, there are thousands of divorcing couples who choose to work together in mediation to find an outcome that is mutually satisfactory. ACR is committed to seeing that they and all mediation clients can be assured that they are protected from breach of confidentiality except where permitted by law or agreement of the parties.

ACR leadership and members continue to offer whatever support and care we can to the community of Newtown, the surrounding area, and the affected families, for whom we grieve.

Association for Conflict Resolution
12100 Sunset Hills Road, Suite 130, Reston, VA 20190
www.acrnet.org

Tags: ACR, association, confidentiality, conflict, Connecticut, divorce, Mediation, mediators, Newton, privacy, resolution
Posted in Current Events, Mediation Field | 2 Comments »

In Hawaii, a Molokai couple won a $3.9 million verdict against their Homeowners’ Association (HOA) and individual defendants when the Maui jury found that they had been subjected to bullying, threats, harassment and intimidation from their own HOA Board members and others in the complex.  Jim and Nancy Bevill were subjected to what their lawyer, Terry Revere, called a “campaign of intimidation” that spanned over 6 years and went as far as killing pets, vandalizing cars, death threats and constant intimidation at the Ke Nani Kai Condominiums in Maunaloa.  Revere compared the Bevills’ experience to the equivalent of a John Ford western, where an isolated town is run by a villain and his collection of thugs.  More details are here: http://aiminst.com/maui.

A nightmare, to be sure, the case lasted for 4 years – the trial alone spanning 8 weeks – and included an estimated $1.5 million in combined attorneys’ fees, with claims ranging from negligence to federal Racketeer Influenced and Corrupt Organization (RICO) Act violations.  The Bevills’ complaint says that the board members treated the complex like their own “personal fiefdom”, using the resident manager and handyman as the “thugs” to enforce their rule, with the latter having a criminal record and claiming ties to organized crime.

The Bevills, who relocated to Hawaii from California in 2004, were awarded damages including $500,000 in general damages and over $3 million in punitive damages against the HOA Board and Association (generally not covered by insurance), as well as by three individual board members, the former resident manager, and the handyman.

It seems that the trouble all began when the Bevills brought in an independent handyman to complete renovations to their unit, over the objections and pressure of board members, who seemed to trade protection with the handyman. When the Board’s intimidation was unsuccessful, the Bevills soon found themselves at odds with the board, labeled as “troublemakers” and the target of escalated harassment, which included the handyman making lude gestures with his genitalia toward Mrs. Bevill when she was home alone.

Former 2nd Circuit Judge Joel August, who heard some of the case’s early portions, said that the outcome should serve as a strong example of why condo associations should resolve their disputes early and avoid protracted legal action, when possible.  Apparently, Bevill made an offer to settle prior to trial for less than 10% of the eventual verdict, but the offer was rebuffed by the defense.  “This case,” said August, “if nothing else, should be the poster child for the idea that alternative dispute resolution is the way to go.”  He said that resolving this dispute through mediation or even arbitration would have been a “much smarter” choice.

California law has Civil Code Section 919 requiring homeowner certain disputes in associations to be mediated prior to filing any kind of administrative or legal action.  Perhaps if Hawaii had such a law, this situation could have been resolved much earlier and ended much better.

While mediation doesn’t always resolve all of the conflict between people, it does offer those in conflict the opportunity to sit down with a neutral person to facilitate the dialogue and keep it positive and results oriented. For more on mediation, please check out Stories Mediators Tell [http://aiminst.com/stories].

Looking at the Ke Nani Kai HOA conflict, there was an opportunity for the Bevills to request mediation with the offending board members and contractor.  Had mediation occurred early on, especially had it been required under the CC&R’s, things may have been manageable before they got out of control.

Once the lawsuit was filed, August said that both he and another judge tried to assist the parties in settlement discussions, but such attempts were unsuccessful.  This is not surprising, given that the early resolution of conflicts brings the parties together to have discussions before emotions escalate as fully as they did in this conflict.  The later the resolution attempt, the more difficult it is to get parties to see eye to eye and work together toward a resolution. As this case progressed, huge amounts of legal fees were expended, and the entire complex had divided down the middle.  Once a case has become this volatile, attempts at resolution require an extraordinary amount of de-escalation before resolution can be attained.

Tags: ADR, California, Civil Code Section 919, condo, condominium, conflict, dispute, harassment, Hawaii, HOA, homeowner association, intimidation, Jim Bevill, Judge Joel August, Ke Nani Kai, Maunaloa, Mediation, Nancy Bevill, RICO, Terry Revere
Posted in Current Events | 7 Comments »

Lane New, a 16-year-old Arkansas boy, convinced a local prosecutor to file misdemeanor harassment charges against his mother Denise for allegedly changing his Facebook password without his permission and posting personal information about him on his Facebook page.  Denise explained that she was exercising her parental rights because some of her son’s posting reflected what she believed was reckless behavior, including driving 95 miles-per-hour one night after a fight with a girl.  Denise is going to court on May 12.  See:  “Arkansas Teen Accuses Mom of Facebook Harassment”

As always, there is a story behind this conflict, although the facts are few.  Denise went through a divorce five years ago and after she wrestled with mental health problems, Lane moved in with is grandmother with Denise declaring that she could not adequately supervise him at the time.

After reading and being shocked by her son’s Facebook posts, Denise evidently decided to take strong measures by locking him out and impersonating him, including posting some things of her own and conversing with his friends.

Clearly this is a mother and son who suffer from a difficult relationship and little, if any, ability to communicate.  But there were many choices available to Denise.  When faced with choices, we have an opportunity to pause and consider, not just the short term relief we may feel by venting our own frustration, but the long term effects of our actions in this moment.  Upon discovering the disturbing posts, Denise had time to consider her actions.  Unfortunately, instead of pausing to allow herself a moment to think strategically, it looks like she reacted emotionally and probably drove a wedge between her son and her that will be very difficult to heal.

In this conflict, Mom’s real interest seems to be the safe care and protection of her son.  Her son seems concerned about his privacy, independence, and the respect he wants to be afforded as a young adult.  Mediation would help them address these issues, matters the criminal court would consider irrelevant.  And it would result in an agreement born from their better understanding each other and from their realization that the others’ motives aren’t as evil as they first feared.

Ironically, Facebook’s slogan, “Facebook helps you connect and share with the people in your life” in this case was the opposite.  Lane and his mother turned to facebook precisely because they were unable to connect and share with each other.  While I believe that Facebook and other social media outlets have many advantages and are excellent communication tools, they are, unfortunately, a poor conflict-resolution forum.

Tags: "connect and share with the people in your life", communication, conflict, Denise New, Facebook, family group counselling, harassment, interests, Lane New, Mediation
Posted in Current Events | 4 Comments »

Pink Floyd is suing its former record label EMI over how royalties are calculated on internet sales.  Among other things, the band is contesting whether its 1999 contract allows sales of individual tracks, as EMI contends, or mandates only complete album sales, which is how Pink Floyd interprets the contract.  “When Pink Floyd’s latest contract was crafted in 1999, iTunes didn’t even exist,” EMI attorney Elizabeth Jones sums up the label’s argument.  “Pink Floyd, EMI Brawl Over iTunes Royalties”.

Almost all contracts are ambiguous, and parties whose incentives cause them to interpret contract terms in their own favor will disagree about almost any contract.  Even the greatest transactional attorneys in the world can’t account for every contingency or every evolution of technology, biology or ecology.  This is why courts look at the intent of the contract.

Mediators bring disputing parties back to the contract’s original intent.  Really good mediators can bring parties all the way back to their relationship at the time of the agreement and the reasons behind their decision to do business together.  It’s not unlike reminding a divorcing couple about their courtship and their wedding to allow them to remember they didn’t always feel animosity toward each other.

In 1999, EMI no doubt courted Pink Floyd for its business.  Pink Floyd signed with EMI, even though the band likely had its pick of record label suitors.  Both of them would do well to remember their original motives and intentions that drove their choices.  In that light, they can view the disputed agreement (I find it ironic that people often fight over something called an “agreement”) with a less extreme interpretation, and each other as something less than the devil incarnate.

Ken Cloke wrote in his book Conflict Revolution that most people have to reduce the other to evil to sustain a fight at the high conflict or heavy litigation level.  Revisiting intent surrounding the original agreement can be a step toward humanizing the conflict.

In reality, these two entities (they are both businesses, after all) will necessarily have a long-term relationship for as long as EMI owns the Pink Floyd catalog.  What that means from a negotiation standpoint is that they can remain in a competitive state, they can settle the lawsuit with a compromise where each walks away still angry because they are anchored to their loss, or they can mediate collaboratively to a satisfactory resolution for both parties, thereby preserving their relationship.

Successful mediation in this case will require three elements:

1.)    Good lawyers capable of seeing the lawsuit as more than right or wrong litigation.  With all due respect to strict litigators, a creative deal-making lawyer at the mediation table is often helpful because transactional lawyers typically view negotiation very differently than a straight trial lawyer;

2.)    The right parties in the room.  We mediators are always making noise about why having all decision-makers in the room is important.  To have any kind of creative discussions, it’s required.

3.)    A mediator who can steer the discussion (often repeatedly) from destruction to a constructive business meeting where the parties explore all options.

For example, options in the Pink Floyd/EMI conflict could include exploring Pink Floyd buying back its catalog or allowing single-sales from all albums except the two top sellers, The Dark Side of the Moon and The Wall.  A monetary settlement amount could be funded with something other than cash, such as EMI stock, which would give Pink Floyd a greater stake in the label’s success and direction.  These conversations and other brainstorming around these issues can only take place when the table is set in a way that allows them to flourish.

Most settlement discussions in similar cases start with a sky-high demand and a nuisance-value offer, if any.  Where it goes from there depends on the lawyers and the mediator.  But contract disputes have the potential of becoming much more than just a compromise around the dollars.

Pink Floyd’s lawyer wants a finding determining what the contract says.  If every contract in the industry was written the same and a court ruling would set precedent, perhaps litigation is necessary.  But in the case of this unique contract, I submit that it’s not a verdict that is needed as much as a few creative minds.

Tags: Collaborative, Competitive, Compromise, conflict, Conflict Revolution, Dark Side of the Moon, EMI, entertainment, iTunes, Ken Cloke, Lee Jay Berman, Los Angeles, Mediation, Mediator, music, music business, Pink Floyd, record label, royalties, The Wall
Posted in Celebrities, Entertainment & Sports | 5 Comments »

The U.S. House Foreign Affairs Committee passed a resolution on March 5 publicly acknowledging and condemning Turkey’s Ottoman army for their role in the Armenian Genocide almost 100 years ago.  According to New York Times reporters Sebnem Arsu and Brian Knowlton, “Turkey reacted sharply, recalling its ambassador to Washington, Namik Tan, in a display of annoyance.  Turkey is a critical United States ally in NATO, but the question of Armenian genocide taps deep veins of national pride.”  Turkey’s Foreign Minister Ahmet Davutoglu told the reporters, “Each interference by a third party will make this normalization impossible.”  See “Turkey Criticizes Committee Vote on Armenian Killings.”

With all due respect to Minister Davutoglu because I know he means well, the U.S. government acknowledging the Armenian Genocide will not harm Turkey-Armenian relations and it should not add strain to Turkey’s relationship with the United States.

Minister Davutoglu doesn’t understand what mediators know to be true:  There are different levels of defining peace.  While many people, Americans mostly, define peace as a state of bliss where everything around us is good and everyone around us gets along, others, notably people in war torn countries, consider peace to be an absence of active war.

Mediators define peace (we call it “success”) differently, too.   One way is compromise that avoids expensive litigation through settlement, but doesn’t necessarily resolve the conflict.  The parties may still walk away believing their opponents are the enemies who intentionally injured them.  If the relationship continues, as it often must, the unaddressed, underlying conflicts resurface and manifest in a new dispute.  Take neighbors, for example, who dispute property lines or encroaching tree limbs.  Once the survey is done and the tree is trimmed, that immediate dispute is settled.  But unless the animosity and bad feelings between them are addressed, and the underlying conflict resolved for good, new disputes will likely erupt in a few months over parked cars, fertilized lawns, noise, lights or any other lever disgruntled neighbors can find to fight about.  That’s how unresolved, underlying conflict continues.

Turkey and Armenia are neighbors who will never have true peace until the travesties of the past are acknowledged, discussed and artfully apologized for.  My “Talk It Over” co-host Louise “Weezy” Palanker puts it this way:  Don’t just say “I’m sorry,” (or worse, “I’m sorry you feel that way”), you have to also say, “can you ever forgive me?” and “what can I do to make it up to you?”  The transgressor who asks these questions is taking responsibility for his or her actions and attempting to make things right.

Minister Davutoglu seems to believe that silence and a lack of unrest indicate that all is well when it fact, Armenians are merely tolerating the current situation while still holding a vey deep grudge, resulting in an unresolved underlying conflict.  Real peace between Turkey and Armenia will be achieved once Minister Davutoglu or another high-ranking Turkish leader delivers a public acknowledgement, complete with a responsible apology, and asks the “what can we do to make things right?” question.  Then, and only then, can discussions about forgiveness and peace begin.  And perhaps then, the world will have one fewer ticking time bomb ready to explode in that part of the world.  Permanently.

Tags: apology, Armenian Genocide, Brian Knowlton, conflict, defining success, Foreign Minister Ahmet Davutoglu, forgiveness, Lee Jay Berman, Mediation, Mediator, neighbors, New York Times, peace, Sebnem Arsu, Turkey, U.S. House Foreign Affairs Committee, underlying conflict
Posted in Current Events, Politics & World Events | 19 Comments »

Late last month, New York Times writer Steven Greenhouse reported that the Obama Administration will seek to “prod” companies to improve wages and benefits by altering how the federal government awards contracts.  Companies in violation of labor and environmental laws will be disqualified while those that offer “better” pay, pensions, health plans and other benefits will receive more favorable consideration.  The goal is “to lift more families into the middle class.”  See “Plan to Seek Use of U.S. Contracts as a Wage Lever.”

Isn’t that a pendulum swinging too far to the left in response to having swung too far right during the previous administration?

Any group who feels suppressed will eventually attempt to dominate its suppressors. Employees who felt their rights were neglected under Bush now will secure their immediate future by making business owners experience the same pain and frustration that workers did, ensuring that leadership rallies and flexes their muscles as soon as they regain power.  Today, the majority of our politicians perpetuate this “us vs. them” mentality through extreme rhetoric to ensure their own re-election, and what passes for the news media these days assists them because the conflict drives readership.

If management didn’t view laborers as nameless, faceless commodities, and if labor didn’t view management as greedy fat cats trying to amass wealth at the expense of the laborer’s health, security and dignity, then capitalism could actually thrive.  But when management exploits labor, causing — and I mean causing — labor to organize and elect a politician who is almost socialist-leaning whose followers believe that a CEO’s salary should be determined by a multiple of the average worker’s pay, then it’s no wonder we end up with lawmakers who believe restraints on commerce are good ideas if they can force business to conform to the latest political thought (and I use that term loosely).  It’s no surprise that management outsources work to third-world countries!

The problem is our leaders are trying to resolve conflict through power struggles, rather than collaboration (or even cooperation), using polarizing positions instead of reasonableness, and a process of trying to win over “them”, rather than trying to win them over.  This short-sighted self interest in taking back the hill just lost only ensures another battle over the same hill with renewed insurgency from the defeated.  But do our politicians recognize how entrenched they are?  No, they just know they need to take the hill, whether that hill is healthcare or taxes or a village in Iraq.

Operating this way without seeing the big picture guarantees that the pendulum will continue to swing wildly between extremes and that career politicians will continue to be extremists rather than leaders.  What we need is a leader who leads with reason, rather than one who simply turns the power of the position the opposite direction from his or her predecessor.  Perhaps then we will have less conflict (too often intentional) and more actual leadership.

Tags: CEO Salary, conflict, extremist, federal contracts, leadership, Lee Jay Berman, Mediation, middle class, New York Times, Obama administration, politics, power struggles, Stven Greenhouse, U.S. Contracts, wage lever
Posted in Current Events, Politics & World Events | 3 Comments »

The controversy surrounding the tragic death this week of SeaWorld trainer Dawn Brancheau reminded me of one of the foremost rules of conflict resolution:  You must listen to the other side’s argument with the goal of  understanding the opposing perspective.

Brancheau drowned when one of the Orcas, or “killer whales” held her underwater.  Eyewitness accounts say the whale jumped from the water, grabbed Brancheau and shook her violently before submerging.  See “SeaWorld Trainer Killed by Killer Whale”.

Some say that wild animals should never be in captivity because they will almost always respond to the less-than-ideal conditions in ways that will harm or kill their human caretakers.  Others argue that for scientific reasons, and to gain information about how to care for populations in the wild, the animals held in captivity contribute to the greater good of their species.  The benefits are worth the risks caretakers knowingly assume, they say.

When most people are in a dispute, the first thing they do is stop listening, or only listen with a view toward formulating arguments to prove their point.  While that might help win an argument (and possibly lose a friend), it won’t resolve the conflict.  The only way to settle a dispute or solve a problem of any kind is to listen carefully and with an open mind to what the other person is saying.  Perhaps his or her point is actually true or has a valid basis.

In mediation, I learn people’s underlying interests by encouraging them to tell their perspective until they disclose what is really keeping them from resolution.  That’s what listening accomplishes:  a better understanding of what your opponent believes you are doing wrong and how he or she wants you to help fix the situation.   If you listen the way a mediator does, you can also uncover a surprising number of commonalities and points of agreement.

If both sides of the whales-in-captivity argument would stop talking and start hearing, they might discover they have the same goal:  the assurance that whale populations in the wild remain healthy and safe from extinction.  Beginning from that point might allow them to resolve together the peripheral issues of how to provide the most natural and welcoming accommodations for whales in captivity and exacting safety measures for their trainers.

Tags: conflict, death, killer whale, listen, mediaotr, Mediation, orca, SeaWorld, tragedy, whale captivity
Posted in Current Events | 6 Comments »