Overconfidence Bias. Conflict Counsel No 2

A scientific study discovered that 94% of college professors thought that they were better than average teachers.  My experience is almost every person involved in a conflict believes that they have a better than 50% chance of being vindicated OR winning their “case”.   It is not statistically possible that all these beliefs are accurate.   They are, however, perfectly normal.  What assists people in conflict is not to doubt beliefs, rather to work to understand (and if possible acknowledge) the “other sides” belief.  My extensive mediation experience is that there are almost always different perspectives, even of the obvious.

Suspend judgement and blame. Conflict Counsel No 1

When conflict first occurs seek to engage and understand “what is going on” for those involved. Suspend judgments and blame so as to offer those involved, and the organisation, time to explore and understand the concerns and values that are being expressed.  Conflict is a great teacher.  Properly managed conflict is an opportunity to learn and grow, and can contribute to the success and productivity of a positive workplace.  Review policies to allow for learning and resolution first and judgment and punishment only if other ways of dealing with conflict are exhausted.

Use conflict to support a positive workplace, not like the dogs below.

Australian Managers Lack Skills in dealing with workplace conversations

A recent survey has made the following findings.

1.2 Summary Findings
The 2012 R U OK? Australian Workplace Relationships Survey results have confirmed many of the trends that various independent research bodies have found over recent years1, such as:

  • Many Australian managers are lacking the ‘micro’ skills to hold meaningful and sometimes difficult conversations with staff about their work and performance;
  • Only half of employees surveyed feel they can talk to their colleagues or managers about personal issues at work; and
  • For a large majority of our workplace population, an individual’s ability to be emotionally resilient, to handle pressures and demands, and to bounce back from adversity, is low.

We also found that when people took action to resolve a workplace relationship issue, they were twice as likely to seek outside support (i.e. from a health professional like a General Practitioner, or psychologist) rather than raise the issue with Human Resources.

These skills can be learned and Negocio Resolutions are expert at designing custom learning intervention to assist workplaces develop skills.

The report can be found at;

http://www.ruokday.com/assets/Misc-PDF-files/2012RUOKAWRSReport.pdf

Why Slipper and Ashby cannot settle

This week Peter Slipper and James Ashby tried to settle their long running Federal Court litigation.  The public were witness to the spectacular failure of both the spin doctors and the courts to successfully manage a conflict that has become a mountain built out of a molehill.

The mediation, however, did not “fail”.

Mediation was never going to resolve the long running soap opera being played out in the Federal Court.  Not even the desperate wishes of the Commonwealth and the pleading of Justice Rares provided enough motivation to support the main protagonists find an outcome for the future. They decided it was better for them to continue their very public legal slanging match of claim and counter claim exaggerated by lawyer and PR spinner to intentionally paint “the other” as evil and untrustworthy.

The very public Law Courts building in Queens Square, Sydney, an edifice to the public administration of justice, was a strange choice of venue for a “private” mediation that had already generated far more public interest than the sordid details of the case warrant. That choice of venue did not assist Mr. Slipper and Mr. Ashby and his team of advisers to resolve their differences, if that is what they really wanted, but the venue was not the problem either.

The inevitable failure to achieve a mediated resolution of the dispute was because of what had already occurred.  The win/lose dynamic began as soon as Mr. Ashby called in the lawyers to file the case and the PR spinners to tell his story to the press.  There was apparently no attempt before hand to speak to Mr. Slipper or their employer (the Commonwealth of Australia).

The response was to seek to “strike out” the claim as being an abuse of contest.  Part of the “factual matrix” relied on by Slipper to support the strike out was that Mr. Ashby had not sought to discuss the issues before going to court.  Mr. Slipper of course did not seek to facilitate the discussion that he accused Mr. Ashby of avoiding.  The Commonwealth of Australia was fighting in Mr. Slipper’s corner.  The role of being Mr. Slippers “cut man” was only abandoned by the Commonwealth after over $700k had been spent.

How much has Mr. Ashby spent?  Plenty I am sure. Same for Mr. Slipper, so much that he can no longer afford a lawyer (and that is on the Speakers wage!)  And Mr.Ashby has gone on record as saying that the outcome means that he will never be able to work in his chosen profession again. The same result was achieved for Kristy Fraser-Kirk as a result of her very public “stoush” with David Jones.  And despite a private settlement with her employer the former principal of MLC in Melbourne is unlikely to gain similar employment anywhere after that very public dispute.

Why all the damage and the trouble reaching a resolution?  Because once battle lines are drawn in the public space, supported by a court action and the media that understandably lap up the soap opera, it is almost impossible for protagonists to resolve for fear of it looking like they lose.  Instead, both lose as in the Slipper/Ashby case.

Mr. Ashby now says (in contrast to his actions) that what he wanted all along from the dispute was for the behaviour to stop towards him and for others to be protected.   What Mr. Slipper says he wanted was to vindicate his “reputation”.   Neither of these goals can be achieved through the courts (as they now both recognise).  If it was such motivators that drove them then they drove all parties to the wrong venue.  An early discussion, whether with a mediator, a trusted friend or in private with the assistance of common sense and good communication skills, if occurring before the spectacle of the pugilism of a public court case, might have achieved the outcome but we will now never know.  What public court proceedings do, especially when the media scrutiny is so intense, is to fan the battle flames as each party allege and counter allege the very worst about the other.  Who can risk being seen to give in after such public vitriol and allegation?  No one is the answer, so the cycle of focus on the sins of the past continues.  The cost, financial, reputational and to health rises.

It is sad that Mr. Ashby will not be able to work in his chosen profession and that Mr. Slipper is moved to tears as a result of the financial and personal pressure of the court case.  It is sad that the taxpayer has had to bear the obscene cost of legal representation AND the cost of the Court in its judicial function and of its mediator/registrars.

It is sad, as Justice Rares identifies, that the integrity of the Court was damaged when Mr. Slipper “slipped in the through the car park” making the slightest suggestion of more favourable treatment to one litigant than to another.

All of this cost is because the litigants (and I suspect the Court) profess to want to make a better future through litigation but behave in ways that will make that better future impossible to achieve.

Mediation is not for all cases.  Who knows if it would have created an outcome for these poor people if attempted six months ago?   This case must now be heard.  We will never know if it was inevitable because no body took the time or devoted the energy at the outset to explore a solution that may have achieved an outcome that creates the least damage and seeks the most benefit from a damaged relationship. No one took the first step, let alone a genuine one!

The outset of a conflict when egos are bruised and people are feeling damaged and blamed is the hardest time to think rationally about how to achieve collaborative outcomes.  All the more reason why professional advisors need to be expert in steering their clients to processes that might achieve outcomes that are less destructive than the cut and thrust of the court room and the public humiliation of the front page. All the more reason why governments should support that behaviour!

Steve Lancken

Sydney, October 2011

 

Steve Lancken