For this week’s Guest Post Friday (on a Thursday) here at Construction Law Musings, Victoria Pynchon (@vickiepynchon) joins us for the 4th time. Victoria is an attorney-mediator with ADR Services, Inc. in Century City; an arbitrator with the American Arbitration Association in Los Angeles, California; and, a negotiation consultant and trainer world-wide. Victoria co-founded She Negotiates Training and Consulting in 2010 and writes for ForbesWoman at its She Negotiates blog. She is the author of one of my favorite books on conflict resolution, A is for A*@!#, the Grownups’ ABC’s of Conflict Resolution reviewed at Musings here.
First Let’s Talk About Anger
Please raise your hand if your clients — corporate clients — are angry about the burdens of litigation. Irritated with the document “demands” and interrogatories. Frustrated about the e-discovery. Ticked off at the way opposing counsel asks them questions as if they’re lying. Hot under the collar about the mounting attorneys’ fees and the distance between the day suit was filed and the probable day on which a trial might eventually be scheduled. Simmering about the time the litigation consumes, time they’d prefer to be spending doing their actual jobs — planning for and implementing business strategies for a profitable future instead of fighting about the unprofitable past.
And we’re not even talking about your clients’ anger at the defendant who has stolen their intellectual property or stopped worked at the construction site or refused to release the remaining funds in the construction loan account. And if you believe that powerful people in highly successful and profitable businesses do not fear that litigation might hurt their careers, think again.
Why I’m Talking About Anger
Dealing with anger is my job. As a negotiation coach, mentor, facilitator, and mediator, I need the parties to commercial and construction litigation to be thinking as clearly as they possibly can when challenged to resolve a dispute that’s been the primary thorn in the side of their business for months or years. Everyone arrives at the mediation in some degree of anger — from mild irritation to controlled rage. Because anger tends to prevent the parties from thinking clearly and from sharing information that would dramatically increase their ability to achieve the best possible negotiated resolution, I’m usually called upon to help the parties move from hostility to collaboration.
What’s “Fundamental Attribution Error” Got to Do with It?
Social scientists who study the reasons people act the way they do have discovered something fundamental about the way we explain our own conduct and interpret the behavior of others. What researchers have learned is this: Whenever other people’s behavior causes us harm, we tend to assume that they intended to hurt us. Short of evidence to support that conclusion, we assume that harm-causing behavior arose out of recklessness or a careless indifference to our own well-being.
If our spouse arrives home late on the evening we’ve scheduled an outing with our friends, we’ll reflexively blame their tardy arrival upon their desire to thwart our plans. Our spouse, on the other hand, will assume just the opposite – that his lateness has nothing to do with bad faith or ill intentions, but to external factors beyond his control – the traffic in Los Angeles, the hurricane warning in Biloxi or the blizzard in New York City. Though both spouses might be partially right, the “wrong-doer” will always err in diminishing his intentions and the injured party will always exaggerate the role of the perpetrator’s bad intent.
This error is one of attribution – the motive or circumstance we attribute our harm to. And the error is fundamental – Trobriand Islanders are as likely to make this error as Icelanders. If we didn’t err in this manner, we’d have given up on planning our own futures centuries ago. Attributing the cause of our own harm to the ill will of our fellows gives us a fighting chance to control our future by punishing wrongdoers. Ascribing harm to random circumstance leaves us helpless, continually vulnerable to forces far beyond our control.
So What Does FAE Have to Do With Settling Construction Litigation?
First, FAE makes us angry, preventing us from thinking as clearly as possible.
Secondly, FAE prevents us from seeing “our own part” in the conflict at hand. This latter effect has been found by researchers to prevent athletes from finding and addressing the causes of their substandard performance. When they chronically attribute their substandard performance to the fault of others, they fail to search for and find those causes over which they have actual control – the errors in judgment or imperfections of performance that contributes to their failures.
How many times have all of us blamed our loss on an unprepared judge, indolent jury, or the bad faith strategies and tactics of opposing counsel? Lots. And there’s no reason for us to be ashamed of it. Our “error” is universal, fundamental to the behavior of the human species.
Once we’re aware of this cognitive bias – this tendency to blame another – then we are armed against falling into its trap.
Giving Up Blame Eases Tension, Permitting Resolutions that are Collaborative and Effective
Now that you know about fundamental attribution error, you can never again be
quite so perfectly certain that your righteous indignation is justified. You might just be able to give your opponent the benefit of the doubt. He is not the malicious, cheating liar you believe him to be. And you are not the saint upon whom harm has been imposed without any fault of your own.
Most people are so certain that the conflict to be resolved is the other guy’s fault that they can’t even begin to see that resolving the dispute is a mutual problem that best resolved in concert. And it may sound unlikely, but learning about FAE made all of my relationships – most particularly the one with my husband – far better almost immediately.
I’m hoping it might make your legal practice happier and your skill in settling litigation more effective as well.