ROBERT HARRIS MNOOKIN:
As you all know-- in fact, Harvard's
program on negotiation, our instruction in
terms of negotiation, which began now, I
guess, some 35 years ago, has served in many ways
as a model for law schools all over the country. And indeed, we've
prided ourselves at viewing as part of our task
to teach young lawyers how to be problem solvers and how
to be part of the solution, not just part of the problem. And I think I've found
since I've been here, it's been a very
exciting opportunity to be blessed with our
extraordinary students and to teach with a remarkable
group of colleagues, a couple of whom, in fact,
are on our panel today. Now, I'm not going to spend any
time introducing the panelists, but I want to just
describe our process. Each of the five of
us is going to talk for no more than 10 minutes. It's going to be a short talk
and it's going to be personal, and it's going to be about
a remarkable range of ways that we had individually and
collectively participated in negotiation and
dispute resolution. After each presentation,
we're going to have time for a
couple questions focused on that presentation. But we're only going
to have five minutes. So my job is going
to be to make sure that we don't get
statements, but we get things with a question mark at
the end and that they're reasonably brief. After the five of
us have done that, and we've had these five
little mini sessions, we should have some
time at the end for a more open
conversation, where we could have cross-cutting topics. Well, without more
to do, I'd like to introduce first my
colleague, Jennifer Reynolds. Jennifer is a professor at
the University of Oregon, who's a visiting professor
this year here at Harvard Law School. She was an active participant
in the program on negotiation and the negotiation
training we did here. Jennifer, welcome. JENNIFER REYNOLDS: Thank you. Well, thank you guys
so much for being here. As Bob just said,
today you're going to hear a lot of
different stories having to do with negotiation
and dispute resolution. Some of these stories
involve powerful players, high-stakes deal making,
profound struggle and entrenched conflicts. AUDIENCE: [INAUDIBLE] JENNIFER REYNOLDS: OK,
maybe I could put this up. Is this better? All right, so there's
going to be some stories of big conflicts coming today. But not my story. What I want to talk about is
small disputes, the dust up, the minor argument,
the complaint that's not recognized
by the legal system, the low-dollar disagreement. Small disputes don't always get
a lot of attention from the law or in the academy, because
they don't seem very important. But small disputes matter. They matter in two ways
that are often related. First, small disputes
matter to the people who are involved in them. Maybe this is obvious. And second, small disputes
matter because of what they can tell us in the aggregate. Today I want to reflect on these
two aspects of small disputes by telling you about
an experience I had last year,
something that really made me think about small
disputes in a different way. As Bob said, I'm a
tenured law professor at the University of Oregon. Two years ago,
when I was getting ready to take my sabbatical, the
ombudsperson at our university suddenly left. The university wanted to do a
national search to replace him, but they needed someone
in the short term to take over the office. I delayed my
sabbatical for a year so that I could serve as
the interim ombudsperson. It sounded very exciting to me. Rather than spend time
in the library thinking abstract thoughts and writing
articles no one would read, I'd be going into the trenches
of workplace conflict. I'd never been an ombuds before,
but I knew the basic deal. An organizational
ombuds is someone who helps individuals and
groups manage conflict in the workplace. People who come to the
office are called visitors. And when they speak
with the ombuds, that conversation
is confidential. The ombuds is impartial as to
the rightness or the wrongness of the visitor's issue and works
independently of management and formal processes
and basically just helps the visitor
think through options. The ombuds has a
stewardship function too. University ombuds
provide feedback on trends and on
potential problem areas to the university leadership. And this feedback is usually
presented in the form of anonymous aggregate data. I ended up serving
as the interim ombuds for about eight months. Over that period I worked
on more than 100 cases, some involving just one person,
others involving two or more, working with people from
all over the university-- students, faculty, staff,
even the occasional parent. I learned many things about
universities and organizations from this work. For example, I learned that
bosses who are consistently mean are actually
less stress producing than bosses who shift between
being nice and being mean. I learned just how divisive
university politics can be. I learned that most
people don't know how to give feedback
or receive feedback, even if the feedback is good. I learned that
discrimination is pervasive, but not always easy to
see or even describe and certainly not easy to
figure out how to handle. I learned that
many problems that look like interpersonal
problems are actually just structural problems
when you dig into them. And they relate to things
like poorly written position descriptions or unclear
chains of command. But the most important
thing I learned from my time as an ombuds is that
small disputes matter. Let me give you an example. One of my first visitors was
an administrative assistant who was afraid to ask
her supervisor for a day off to attend a wedding. Let's call her Jane. Jane was a longtime
employee of the university. Her supervisor was a
relatively recent hire. In the few months they'd
been working together, they had not hit it off. Their relationship felt
very stiff and awkward. And in fact, the
supervisor had recently harshly criticized
Jane about some way that Jane handled an assignment. Jane wanted to go
to this wedding, but she was worried about
asking because she thought one, her supervisor would say no. And two, the act
of asking itself would worsen their relationship. So just pause for a moment. We're sitting in my office. Jane has told me this story
and is now dabbing at her eyes with a tissue. I feel some compassion for
her, because she's upset. But I'm also
thinking, seriously? This is the trenches
of workplace conflict? Just ask your supervisor
for the day off. Schedule a meeting,
explain the situation, problem-solve around
work-related issues that the day off might create,
and then just go from there. It looked like such an
easy case, I thought. Is this really such a big deal? And then it came to me. Yes, it actually was a big deal. It was a big deal to Jane. It didn't matter that
I would find it easy. It wouldn't have mattered
if every single person in the world other than Jane
would have found it easy. It wasn't how the
situation struck me, it was how it struck her. And in this case, under
these circumstances, Jane simply could not imagine
how to ask for what she wanted. So I decided that if she felt
that she had a problem, then we are going to give it
the same attention we would give any more important
sounding negotiation. We started with the
interests and alternatives at stake, hers and
her supervisors. For those of you who
took negotiation here, we did the seven
elements analysis. We thought through how
intention impact might be a helpful framework
for understanding some of the relational
dynamics at play and how shifting from
blame to contribution might be more productive
approach when reflecting on the failed assignment. Many thanks, of course,
to Sheila and Doug Stone for providing us with
these helpful approaches. We did role play. We did reverse role play, all
about asking for a day off. We tried out different
opening lines. We practiced various
responses based on what the supervisor
might say or how the supervisor might react. We thought about
what attitude Jane wanted to bring to the
meeting, and how she would keep that attitude throughout. This was a Thursday. Jane had a standing
meeting with her supervisor on Friday mornings. Before she left my
office that day, I told her that if she
decided to make the request that next morning, to
remember that she could always circle back with me and we
could debrief what happened. Regardless of what happened,
we could always debrief it. Jane called me the next
afternoon very happy. The meeting had gone well. The supervisor was much
nicer than she had expected, and she did get the day off. She also said she felt
like her relationship just felt better and more
professional with her boss. Now, I don't know if
Jane's boss was really as bad as Jane thought. Maybe the supervisor
was nice all along. Maybe she would have said
yes to this day off even without an hour-long
preparation before the meeting. Again, this was
objectively small potatoes in the big scheme of
things in the workplace. But for Jane, figuring
out how to bridge the gap between where she was
and where she wanted to go was really tough. She needed some support to find
out how to get from point A to point B. And
without that support, it's easy to imagine how
being unhappy, saying nothing, feeling stressed,
saying nothing, wanting something but being
afraid to ask for it and so saying nothing,
how all of this could build into significantly
potentially costly drains on workplace
productivity, team morale, professional development,
not to mention personal health and happiness. Over my term as the ombuds, I
had many cases just like this, just like Jane's-- small disputes over relatively
insignificant matters. Often these small
disputes just required attention, some
analysis, some coaching, something to reorient the person
or people involved to a more constructive approach. These small disputes mattered
in that first way I described. They were important to
the people involved. And then, after a
few months, I started to see more of the second way
that small disputes matter, as symptoms of bigger problems. When you've seen enough
visitors as the ombuds, you begin to detect
certain patterns in some of these visits that
provide insight into how the university is working. For example, based on the kinds
of small disputes I was seeing, I began to identify possible
areas of improvement around supervisor
and staff training. In addition, I began
to see fluctuations in disputes that appeared to
correspond with certain events on the university calendar. Occasionally, some
small disputes would even suggest
potential issues related to certain individuals
or certain departments, around what appeared to be maybe
persistent problems-- often, as I said before,
structural problems. These insights let me give
feedback to the organization. For example, I proposed
possible new trainings to address common deficiencies. I developed new materials
to support people in high-conflict times. And when the data suggested
potential issues related to specific individuals
or departments, I sometimes spoke with
university leadership about these possible trends. On this last matter, speaking
with university leaders about possible warning signs
or trends can be very tricky. You don't want to
bring trivial matters to the attention of
high-level administrators, but you also don't want
them to be blindsided if something's brewing. And it's sometimes hard
to tell the difference between trivial matters on the
one hand and something brewing on the other. In other words, when do small
disputes map to a big problem? At what point are they
evidence of a real trend? The Jane situation was
not, at least as far as I could tell, a small dispute
that was part of a larger trend, other than just sort of
a general trend around people being afraid to ask for things. But some visitors with
Jane-like problems-- that is, people having small
disputes with coworkers-- did seem to be part
of a larger problem. For example, in one case I
had heard from six employees all from the same
department, all complaining about the same supervisor. I ended up contacting
that supervisor's boss-- let's call him Tom-- and I let him know
what I was hearing. I would only make these
kinds of calls, by the way, if I could preserve my
visitors' confidentiality and I would be
very careful never to vouch for the
accuracy of their stories or advocate for them in any way. In this case, Tom asked to
meet with the people who talked to me. So I checked back with them. They were eager for
this conversation. So as it turned out,
they really liked Tom, but they hadn't thought that
they could directly contact him with their concerns. So they all met at my office. It was a very good,
candid conversation. Tom told me afterward he
really valued their input because, in his position, he
was so busy and overextended, it was really impossible for him
to keep his ear to the ground and know what was going
on on the front lines. He and I ended up having
several follow-up conversations at his initiation as he
worked through the next steps in his department. So that is my story. I went into the ombuds
office with grand ambitions, thinking I was going to be
working on university conflicts and controversies, and
I was right about that. But it was not what I expected. It was often about small
disputes and not big ones. Realizing that small
disputes matter, that they're
genuinely important, has been really good from
my research and my teaching. Dispute resolution scholars
often wonder, for example, how we can preserve the benefits
of private dispute resolution without losing the ability
to identify and work on larger problems. We want people to solve their
own issues as locally as possible, but not if
that means letting serial wrongdoers or system-wide
dysfunctions go unchecked. Perhaps we could call this the
Harvey Weinstein challenge. My experience has shown me that
one answer to this question, at least for
organizations, is to create an ombuds function
that is sufficiently empowered to help
individuals but also has the ear of management. These offices are
not a cure all, but they can be useful for
an organization seeking to manage conflict,
which includes preventing preventable disputes. So I'll just stop there. Thank you so much for listening. Do-- ROBERT HARRIS
MNOOKIN: Absolutely. JENNIFER REYNOLDS: We have
a few minutes for questions. [APPLAUSE] MARK IWRY: Those of
us in Washington D.C. who've been condemned to
attend too many cocktail parties and too many
political speeches have observed how much easier
it is for people to lie when they're standing. No reflection on my
colleagues, of course. It's a Monday
afternoon in Washington about three years ago. 2 o'clock sharp, the
House of Representatives, Chairman of the
House Committee is gaveling the hearing to order. Apparent purpose of the hearing,
in the glare of C-SPAN's TV cameras, is for the
majority of the committee to attack and to ridicule the
Affordable Care Act, which they called Obamacare, and anyone
who implements or supports that act. They have a single
Obamacare witness from the Obama administration. And their hope is that
over the next few hours that individual can be
tricked, bullied, harassed, worn out or otherwise goaded by
the 16 members of the majority, to make some
admission, concession, indiscretion that might
be taken out of context and usefully incorporated in
a political ad or TV news. I was that hapless
administration witness. When congressional
committees scheduled hearings to attack the Affordable Care
Act and its implementation, if it was implementation
I was involved in, I from time to time was
selected for my sins-- which evidently, were
quite considerable-- to be the witness representing
the administration in this relevant piece
of political theater. So on this occasion, I'm in
the waiting room 10 minutes before 2:00 at the committee. Somewhat to my surprise,
the chairman stops in and personally thanks me
for taking the time to come-- we didn't know each
other before that-- and to testify. I know how busy you are,
really appreciate it. And by the way, I hope you
won't take it personally if some of our guys come across
today a little bit feisty. Between you and me,
you know how they can get when it
comes to Obamacare, but we'll see if we
can rein them in. 10 minutes later
we're at the hearing. I'm at the witness table,
not unlike this actually. And the chairman gavels
the hearing to order, the TV cameras start
to roll, and suddenly that chummy vibe is history. He's got his game
face on and he's staring at me as if he's
never seen me before and intones in a loud
voice, the witness will stand, raise his right
hand and repeat after me. I, state your name do solemnly
swear to tell the truth, whole truth, nothing but
the truth, so help me God. Really? I testified before House and
Senate committees a couple of dozen times, and I
couldn't recall ever having been made to swear in. But here we were. It promised to be a long
afternoon, and it was. Although we ultimately escaped
unscathed to tell the story. How did I get there? What does it have to
do with negotiation? The answer relates to the most
peculiar negotiation experience I've had in government,
which illustrates not only the importance, but
the pervasiveness of negotiation and dispute resolution. When I was here as
a student, I wanted to contribute to public policy,
started out in law practice, was a partner at
Covington and Burling, invited to join the government,
and when I first did, we were on the
cusp of the biggest domestic initiative of our
generation-- health care reform. I was privileged to be a member
of the ultimately ill-fated Hillary Clinton Health
Care Reform Task Force of 1993, which
was a great effort, but did not produce
a law, as you know. And I later was out of
government, policy advisor to the Obama and Hillary
Clinton Presidential campaigns, and then joined the
Obama administration as Senior Adviser to the
Secretary of the Treasury for Health Policy and
Retirement Policy. That meant I was on the team
that oversaw implementation of the Affordable Care Act, the
development and implementation, rulemaking, et cetera. And this involved a
lead role, in my case, for the portion of
the effort dealing with employer-sponsored
health plans, especially the famous employer mandate. So recognizing that the
vast majority of workers get their coverage
from employers and that employers
pay most of the cost, typically the mandate,
as most of you know, was designed to expand
coverage and prevent employers from taking advantage
of these new subsidies in the exchanges, which
have been in the news the last few weeks, to
drop their health plans and shift their employees
over to the exchanges. The private sector,
Congress, and the press were all nervously
watching how this mandate would be interpreted. So was the administration. Would it all play out badly
and jeopardize the whole act? Would the rules be too complex
that we would develop around the mandate? Would they disrupt coverage? Would employers drop
their plans, et cetera? There were predictions
of job loss, of people being shifted
from full-time to part-time, a firestorm of criticism
from corporate America-- big business, small
business alike, for interfering needlessly
with the health care system-- was poised to occur
at the first misstep. Especially franchises-- fast
food, restaurants, retail, hospitality, hotels,
the places where there are a lot of part-time
seasonal shift workers and so on, whose hours
are hard to track. The law had a 30
hour a week cutoff, a definition of
full-time employee that was a little
counter-intuitive. Not 40 or 35, but 30 hours. And you had to cover, if you're
an employer above 50 employees, all those people, or
else it was a pay or pay. Pay a penalty. We went to the employers at the
beginning of this rulemaking and asked them, how do you
view the priorities here? What's the most
important set of issues that we should tackle first? And they came back with a
30 hour a week requirement. It came under fire immediately
from the business community. Hard to monitor, not standard. And so we decided that we would
not do a negotiated rulemaking but do a rulemaking that
would be a quasi-negotiation-- that the stakes were so high,
the situation was so fraught, and frankly Congress was
watching over our shoulder with the potential to maybe
intervene in whatever we did or override what we did. So we had an unusual
degree, I'd say, of consultation with the
regulated communities, with the stakeholders,
kind of quasi-negotiation. And my approach
benefited a great deal from my having taken
administrative law here with Steve Breyer,
who was terrific, and also having been privileged
to have Professor Richard Neustadt as my mentor in the
public policy program, who emphasized in his classic
work, Presidential Power, which was a kind of bible for JFK,
that the president needs to function not only
as a commander but very much as a persuader
and negotiator in order to really
wield power effectively. So we began by announcing
we wanted priorities from the stakeholders. We got them. This 30-hour issue,
top of mind for them. And we started to
discuss with them, how did they administer
their plans to screen out part-time people and cover
full-time people, which is typical corporate
practice, as many of us know. Turned out that that
was a happy beginning. They were delighted to explain
to us exactly how they did it. And they learned,
and we learned, that every company did it
a little bit differently and that the complexity that the
corporate community typically accuses the government of
unnecessarily fomenting, was present not
unnecessarily, generally appropriately, unavoidably
in each of their programs. It was just complexity that
they'd grown accustomed to, because they'd created
it for good reasons. After dozens of meetings
and conference calls, we created a
regulatory construct that permitted employers to
use a rough amalgam of what all these different
companies were doing, kind of put an umbrella
over it, and said, you can do something like this. And instead of putting it
out in the traditional way-- a proposed regulation, get
comments, final regulation-- we floated the idea in a notice. Invited feedback, just
a possible approach. And we got another
several dozen meetings with corporate America,
tons of written comments, issued a new notice
inviting comment on an improved version
of these concepts, floating possible approaches
on other key issues. And all told, we
did this six times. This is six rounds, instead
of just a proposed reg and a final reg-- four successive
notices, each one trying to improve on the
previous one, each one with oral comments
and dozens of meetings and scores of
written comments, so that by the time
we were done, we'd departed radically from the
classic two-step rulemaking model, and instead, had a
multiple round rulemaking process to maximize dialogue. It helped demonstrate we
were open to being educated. And the shareholders,
I think, felt it gave-- the stakeholders felt it
gave proof of our sincerity that we weren't indifferent
to their concerns. We were really listening, which
is something that Bob's books emphasize very appropriately. And we fostered a bit of a
"we're all in this together" spirit. In fact, we took it
to the point where when we came into
a meeting, I would insist that my staff
intersperse and not sit on one side of the table
opposite the other side, but get rid of that
kind of symbolism and instead, we're all
kind of on the same team-- more or less, within reality. Other things that worked were
that we tried to be consistent and tried to focus-- and
this is another Bob Mnookin piece of advice that I found
extremely valuable-- we tried to focus on the difference
between the agents' values and the principles' values. That is, when someone's
representing an organization, whether they're the head of
it or they're some officer or they're counsel
or what have you, where's the daylight
between if you're trying to understand the
other person's objectives and concerns, what's
the difference there? So we helped the heads of
hostile trade associations that were lobbying to
repeal our Affordable Care Act every day on Capitol Hill. We met with them
about the regs, and we tried to help them achieve their
personal objectives better, made ourselves accessible, gave
their members the opportunity to talk directly
to the regulators, gave them quick responses
to technical questions, put people on notice. As soon as we issued something,
one of these six issuances, we would brief the
whole community. 30, 40 telephone
conference calls within a day, including
weekend and night access. And so we ended up
really surprisingly, developing a certain trust and
consistency of expectations that we were able to fulfill. In the end, they really
appreciated those little things, like
being willing to speak at their conferences,
even when it was a hostile audience of 2,000
people in a hotel ballroom. Or to talk on the phone
with one corporate person who had a real problem. We didn't get job losses. We didn't get shifts to
part-time in any material way. We didn't get the kinds
of nightmare scenarios, dropping of employer plans, that
so many people had predicted. It seemed to work. And the lessons that I draw
are now basically what Bob has in his Negotiating with the
Devil book and in his other writings, including
finding the common ground, trying to add value
for everyone-- which I think we
were able to do-- and really thinking
hard and listening hard to figure out other people's
goals and your own goals. A little coda here. A couple of years
later they called another hearing,
a series of them, to talk about the
job-killing regulations that we were issuing on the
employer mandate, et cetera. I was the witness
scheduled to appear. We started preparing testimony. And the day the private
sector witnesses were about to be announced,
those whose role would be to blame the government
for its excesses, the hearing was
surprisingly canceled. The committee could not find
private sector witnesses, even rounding up their
usual suspects, who were willing to
blame the government or complain about
our process or even about our substantive outcome. It seems like a successful
exercise in dispute resolution at the time. Unfortunately, the
Affordable Care Act continues to generate dispute. And sadly, still no
definitive resolution. DAVID HOFFMAN: So
I'm going to talk about a medium-sized conflict. And I stand because I'm
vertically challenged, not because I'm dishonest. We have a problem in our
field of negotiation. And I hope in the 10 minutes
allotted for this discussion, and there will be a
little more for questions, to identify the problem
and offer you a tool for managing the problem. And the problem is the one
that's up on the screen. We've all read Getting to Yes. And we've operated
on the assumption that people will negotiate in
their rational self-interest. If we can help them
identify those interests, identify options to
serve those interests, why, we can come up with
a Pareto optimal solution, and we're all set. I have yet to encounter a
negotiation in which people behaved in precisely that way. And indeed, when I asked
negotiators and mediators around the country and
other countries, what has been your experience,
the universal experience is that getting the steam
out of the kettle, so to speak, allowing people
to vent their emotion, is actually not enough. Because emotion still drives
their decision-making. And so the question is, how
do we best understand not only their emotions but our own? Because we are people as well. And we have-- thank you-- and we have our own
feelings about what's going on in the room. One of my feelings that
I'm not proud of is that when people
give an unproductive comment in a mediation-- I'm serving as the mediator--
there's an angry part of me that rises up. And I call it my dumb
part, because it stands for don't mess up my mediation. And I have to remember, it's
not my mediation, right? It's their mediation. It's our mediation. So the way I got a better
handle on this problem of the role of emotion in
negotiation and mediation was from one of
my best teachers, my late wife, Beth Andrews. She and I were married 34 years. She died three years ago. A number of people in this
room met Beth, knew her. Bob was at her memorial service. And I met her when she
was a potter, which is why I show you this picture. At the time, I was a woodworker. We met at a craft fair. How '60s is that? I mean, really. And I was wearing bib jeans
and flannel shirts back also. And as I went on from being a
woodworker to being a lawyer, now mediator, she
went on from being a potter to being a
psychotherapist, and also an excellent photographer. And she introduced me
to a model that she had learned as a
psychotherapist, which I find extremely useful
for lawyers and mediators. Beth introduced me to
this guy, Dick Schwartz, who is the guy who came up with
the Internal Family Systems Model. And Family Systems,
it's a deceptive name-- even Dick regrets it-- because it's not about
families, it's about people. It's about individuals. It's about what goes on in
our heads, the many parts and sub-personalities
that populate our minds. And so I went on
to write an article to show what I hope is a useful
application of this model to managing the
negotiation within, because we have to do that,
not only for ourselves but help people manage
their own negotiation. I'll illustrate that
with a story in a moment. But first of all, actually let
me ask a question before I get into the New Yorker cartoons. Has anyone here in this room
participated in a negotiation today? And if so, what was your
very first, your earliest negotiation? Anybody? Yes. AUDIENCE: I participated
in many negotiations-- DAVID HOFFMAN:
Today, this morning. Anybody participate
in one this morning? Yes. AUDIENCE: I negotiated
with myself [INAUDIBLE].. DAVID HOFFMAN: Yes,
negotiated with herself. And who won that negotiation? The part that wanted to get
up and come to this workshop, right? AUDIENCE: Right. DAVID HOFFMAN: Yes, and there
was a part of you that thought, I could use a little more sleep. I had that same negotiation
when my alarm went off and I had to decide whether
to hit the Snooze button. And this is, in fact, a common
understanding for all of us about what goes on inside,
as illustrated in the New Yorker, which is the source
of all wisdom, I think, in the cartoons. Part of me wants to help you
with your crisis, Hargraves, but part of me wants
to go to lunch. Or this fellow in a bar. Part of me says, I need to
stop drinking like this. Then I think, don't
listen to him, he's drunk. [LAUGHTER] So we all have this
experience of complexity. And in fact, our internal
operating systems are described in recent
books by Bill Ury, Erica Fox. Gary Friedman has
written a book recently that helps us understand
the negotiation within. We even have an
Academy Award-winning movie that illustrates the
different parts inside us. And if you have not seen this
movie, I highly recommend it. I think of my internal operating
system as like my phone. I have all these different apps. Some of them pop up
without my asking them to, like my angry parts. There's an angry
part right there. I have a Jewish part. I have the fun-loving part and
other parts, as you can see. This metaphor, by the way,
comes from a psychiatrist here in Boston named Percy Ballard. We also have, as
one of our apps-- it's what we call self
energy, spirit, soul. In the wisdom
traditions, people think of this as our calm,
compassionate, curious, centered part. And another metaphor,
if you don't like the metaphor of
the phone and the apps, is the conductor
and the orchestra. There are no bad instruments. But if one is playing
disharmoniously or too loud or too soft, the
conductor, our self-energy, needs to coordinate those parts. And finally, I offer you
this metaphor of self-energy as the mediator within. So two problems that I have
experienced as a negotiator and as a mediator. One of them is, my clients
are often ambivalent. One day they say we
should stick to our guns, and the same client on the
next day says we should settle, and goes back and forth. And the Internal
Family Systems Model helps me understand
that ambivalence is part of the normal,
natural condition of people. We all have ambivalence. If we can access self-energy,
we can help manage the tensions between these different parts. And part of my job as a
lawyer, because I also work as a collaborative
law attorney, is to help my clients
manage that ambivalence. As a mediator, I want to share
with you a story involving a woman who was laid off. She was a high-level manager
in a pharmaceutical company, and she was replaced by a man. And she filed a claim
of sex discrimination. And represented by
an excellent lawyer. And she came to my
office with her lawyer. Pharmaceutical company brought
representatives and lawyers to mediate the conflict
of how much she would be paid on account of her claim. Now, as the primary
earner in her family, and having been out of
work for almost a year, there was a real
problem, because she was really under economic
pressure to settle the case. And at a certain
point, it became clear that the company
was willing to pay $250,000 to settle the case. That was much less than
her original demand. But this was really
the end of the day, and the question was whether
that would be good enough. I sat with her and her
lawyer in a separate room, and I had the following
conversation with her. It sounds like there's
a part of you that wants to go the distance,
because it feels you were treated unfairly. This is an idealistic part
of her that wanted justice-- not just for her,
but for other women. Absolutely, she said. And another part
of you that's being very practical about the
risks of going to trial. It would have been another
two years, maybe more with an appeal, not
to mention the costs. And she said, yes, that too. Now, before I tell you the
next part of the conversation, I want to share with you a
detail about the mediation, which is that one of
the drugs that she was responsible for in her
company was one of the drugs-- [SOBBING] Sorry, that my wife
used to take as part of her cancer treatment. And I discovered that
early on in the mediation. We made a personal
connection around that. I said, the drug that you
are responsible for managing lengthened my wife's
life by quite a bit. My wife struggled for four
years with her cancer. She expressed her sorrow, her
sympathy, and we kind of bonded around that fact. And I mention that fact because
I think that relationship matters so much in negotiation. So getting into an up close
and personal connection with people with whom we work
can sometimes be helpful. And we also have to be
mindful of boundaries, because sometimes
it's unhelpful. But as I sat across
from her at the end of this day of mediation,
I was about as far from her as I am from you. And I said, I think we all
have a mediator inside us that helps us manage
these different parts and helps us make
wise decisions. Can you feel that
mediator inside you? And I saw her get
a little teary. So as you can see, the
tears come easily to me. It's part of my operating
system, what can I say? And she said, yes. She said, I know that I need
to settle this and move on. And it was a very
touching moment. And she stood up,
and so I stood up. And she gave me a
big hug, and then she gave her lawyer a big hug. And we settled the case. But one of the lessons
for me is not only about how we manage the
negotiation within, but how we empower people
to make their own choices. Before I understood about
the Internal Family Systems Model and internal
operating system, I thought my job in
mediation was to be the advocate for settlement. And so as I would put out the
reasons for why settlement made sense, I would encounter,
because the laws of physics tell us this, an
equal and opposite force on the other
side explaining to me the reasons why settlement
was not a good idea. And instead now,
I help people find the internal mediator that will
help them make a wise decision. That's my story and
I'm sticking to it. Thank you. [APPLAUSE] SHEILA HEEN: David, I'm
particularly grateful to you, because it's been
a really long time since I've been
this nervous to get up and talk about something. Because what I decided I'm
going to talk about today is something I've never
talked about publicly before. So last January I
was in Stockholm, and I was listening to this
Finnish economist named Kjell Nordstrom. By the way, as a kid
growing up in Nebraska, that was not a sentence
I thought I would ever say in my life, right? Yeah. So anyway, he was
talking about something about European nations. I actually don't even
remember what it was. But he said in this offhand
way, I mean, not America. America isn't a
nation in the same way that European
nations are nations. America is an idea. Huh. I've thought about that
a lot this past year. I mean, he's right, right? America was founded on a
set of ideas and principles that say who we are and
how we relate to each other and to the government
and how we're supposed to figure things out together. And that part, the democracy
part, is really hard. It's a tall order that we have
to actually talk to each other and figure out how to go
forward to meet our challenges. Because everybody
in this room has a real sense of how much
easier it is for human beings to react to and
escalate conflict than it is for us to engage
it more productively, listen to and
understand each other, and find solutions
that we can agree on, at least agree on
enough, to try them out and then try to
keep improving them. So, you know, how are we doing
on this little American idea experiment here in
the 21st century? What do you think? There's been a lot
of talk about how we all need to get out of our
bubbles in this democracy. And to be honest
with you, frankly, I would like to actually be in
a bubble a little bit more, because it's way
more comfortable. Because actually, I married
across the political divide. Yeah. For better or worse,
for richer or poorer, till death do us part. But I have to say that there was
nothing in those vows 23 years ago about what to do if
Trump were elected president. So this little idea of America
greets me every morning at the breakfast table. And we've got to figure
out what to do about it. So in 2008, by the way, we had
an Obama sign and a McCain sign in our yard. We got so many
questions about it in that small New England
town just north of here where we live that
we finally slapped a his and hers onto them. Now in 2012, when you called
up the campaign office to get your sign, they would
send you the whole party slate. So now I've got a
dozen signs in my yard, lined up along the
road, cat-calling my neighbors for their votes-- [WHISTLING] over here. So we finally just
planted a stake in the middle that said
left and right to point to the appropriate signs. This, by the way, was the yard
the morning after the election. Let's cut to 2016. No signs. If we had had signs, they would
have said, not him and not her. By the way, did I mention
that I met my husband here at Harvard Law School? Did I mention that
we met because we were teaching assistants
for the negotiation course with Roger Fisher? And yes, as a matter of fact,
we both teach negotiation. These days, he's
teaching down the street at that other school, MIT, at
the Sloan School of Business. So here we are,
my husband and me, supposedly among the more
skilled at communication and difficult conversations
and conflict resolution, in our own little
two person microcosm of this American idea that we
call diversity and democracy. And I have to tell
you, it is not easy. Matter of fact, here
are a few actual quotes from a conversation that we had
last week about the NFL anthem controversy. I can't believe you're on
that side of this issue. You liberals, you hate America. Yeah, boo-hoo for your feelings. That was me to him, by the way. So what are we supposed to do? Why is this so hard? And where am I going with this? You know, I know all
of the good advice. I know that I'm supposed to move
beyond arguing about why I'm right to why we see
it so differently and to not attribute bad
intentions to each other and to think about
what we're each contributing to
the problem and how our identities may be involved. I know that advice. I wrote that advice. It's great advice. It really is. And it's really hard to do,
maybe particularly right now, maybe particularly when
my internal voice is yelling, that is ridiculous,
and how could you? How could we? So, I've been thinking
a lot about what feels harder now than it has
for the last couple of decades? And a couple of
things jump to mind. One is that we can't
even agree on what "it" is, if we're trying to
understand why we see "it" differently. In any one issue, we have really
different versions about what this is really about. Let's just take the
NFL controversy anthem set of issues. Turn to a person next to you. Pair up. I'm actually serious about this. I'm going to give
you 30 seconds. And with a partner
in 30 seconds, come up with as many
different things that different people
on different sides of this set of issues would
say this is actually about. OK? What is it about? As many different
ones as you can. Go. [SIDE CONVERSATION] SHEILA HEEN: OK. Let me have your attention. Let's just do a quick
list of as many as we can. What is this about? Who wants to start? What is? AUDIENCE: Free speech. SHEILA HEEN: It's
about free speech. What's it about? AUDIENCE: Police brutality. SHEILA HEEN: Police brutality
and unequal treatment. Nice, what else? AUDIENCE: Discrimination. SHEILA HEEN: Discrimination. What else? AUDIENCE: Patriotism. SHEILA HEEN: Patriotism, yeah. AUDIENCE: Millionaires. SHEILA HEEN: Millionaires,
yeah, absolutely. Keep going. AUDIENCE: Bullying. SHEILA HEEN: Bullying, yep. Yeah. AUDIENCE: Class struggle. SHEILA HEEN: Class struggle. AUDIENCE: Donald Trump. SHEILA HEEN: Donald Trump. AUDIENCE: Politics. SHEILA HEEN: Politics. What else? AUDIENCE: Military. SHEILA HEEN: Support for
the military and sacrifice. Thank you, that one
was really missing. AUDIENCE: [INAUDIBLE] SHEILA HEEN: It is
what it's about. It is about that. So here's part of
the problem, which is embedded in any one issue. There are at least a half
dozen-- in this case, more than a dozen-- different things that
we think this is about. Plus add to that, on any
list of current issues we've got going right now, that
list is, like, 100 issues long, each one of which has at least
half a dozen things embedded in it. So part of what I
feel is hard right now is that it's hard to get
traction actually talking about the same thing,
to get anywhere, because I say A and
you say B and then CNN and Fox and Twitter light
up with issues 21, 22 and 23. And we're all shouting
across each other and we're not talking
about the same things. Now, by the way,
the second thing is that, at least with the NFL
issues or the anthem issues, we're actually watching
the same broadcast, talking about the same behavior. So what we're debating
about is, what does it mean? Or what should or
shouldn't people do? But these days, we're not
watching the same things and we're not reading
the same things. So, our sources of
news and information have become incredibly
varied and with social media, less reliable. And so suddenly the
stories we're telling don't even have the
same components. In a lot of ways it
reminds me of the work that we were doing back
in the '90s in Cyprus with Greek and Turkish Cypriots. They grew up being taught
different histories. And so part of what was
hard about understanding their conflict
and moving forward is that they were telling
such different stories. We used to do this
exercise where we put a string down the middle
of the room as a timeline and we'd tell each side,
go away and write down the key events that
happened that tell the history of your conflict. And the Greek Cypriots
would come back, and their timeline tended to
start right around 1960, 1963. The Turkish Cypriots
started in 1453. And I feel like, at least in
this country, the storylines and the stories we're
telling across the country about our past and our present
and certainly our future, have become really different. And that's true not just
across party lines, that's true across regions of country. It's true across
socioeconomic lines, across more educated and less
educated, across racial lines, across native born
and immigrant lines. And so we're not living in
the same story these days. So what do we do? What would help? I think that's what I've been
wrestling with, which is, do we as a field have
something to offer? And to the extent that
we do, is it enough? Is it making a big
enough difference? The public dialogue,
which is really monologues yelling at each
other, each feeling unheard. It feels to me like they're more
and more-- of course they're getting more and more
vitriolic, but they're also starting to infect our private
conversations and relationships with each other. And when we talk
about the other, we characterize them with
these extreme descriptions. So all Trump voters are
racists and all Clinton voters don't care about corruption. It's very us-them. In fact, I was at the
Walker Museum of Art last weekend in Minneapolis,
and this captured some of it for me. Maybe me and my husband. But you know what? Any individual is not
that one-dimensional. Now I'm not saying there
aren't people in this country with extreme views. Let's not pretend
that they don't exist. But by and large, that
is not the majority of people in this country. That is not who's sitting
across the table from me. It's not who lives across
the street from me. It's not who lives across
the country from me in my hometown in
Nebraska, where my parents and many of
my childhood friends voted for Trump. So how do we see each other as
more nuanced and complicated individuals, and work to
understand each other? Because the us-them
rhetoric is not helping us see each other for
who we actually are. It's instead having us
see the other as extreme. I feel like the people in this
room and on this campus maybe particularly have a
responsibility to try to help and figure this out. I mean, whether you walked
off this campus five years ago or 40 years ago, or
maybe you'll walk off it five hours from now,
I think we carry a particular responsibility
to try to help the world figure out, how do
we talk to each other across these differences
in a more productive way, so that we can try to
find ways to engage more meaningfully with each other. And I don't have
all the answers. We could talk all week
about what that is, and maybe that's what
we should be doing. I don't know, I don't know. America's an idea. The Massachusetts Bay Colony
here was founded by immigrants. They were fleeing England and
an authoritarian King Charles, who had dissolved Parliament--
several times over, by the way-- and established
personal rule, meaning he could do whatever
the heck he wanted. So the Winthrop fleet left. And they arrived here
in 1630 with 700 people on board those ships. One of them actually
was Anthony Colby, who was the earliest in
my family to arrive here. My eldest son's
middle name is Colby. Also in that group, by
the way, was Jehu Burr. And partly because of my middle
son's high school history project a couple of weeks
ago, I learned that my husband is descended from the Burrs. So it would take 360 years for
us to bump into each other back here in Cambridge. But they came seeking the same-- our ancestors came seeking
the same ideas and ideals. And to me, the question
is, how do we help keep our eye on that question? How do we engage
more meaningfully? So here's my challenge to you. It's the 200th anniversary. Go out in the next
couple of weeks and the next couple of
months, find two people, find 20 people, find 200 people
who see something differently than you do, and see if
you can understand why. See if you can get beyond
whatever you assume is true about them to
understand what is true and move from "how
could you" to "how, could you-- that's interesting. It's hard for me
to imagine why." For me, the question
is shifting from what can I do for my side to what
can I do for our country. That's my charge to you. [APPLAUSE] SHEILA HEEN: Oh, by the
way, I do just want to add, it wasn't my family who
shot Alexander Hamilton. So I'm just saying. ROBERT MNOOKIN: I
have the enviable task of describing to you
an adventure I've had off and on during
the last 12 or 13 years, working on what I
think many consider among the most intractable
conflicts in the world today. Do we have a flipper? DAVID HOFFMAN: Yes. ROBERT MNOOKIN: The
Israeli-Palestinian conflict. In 2002, after the
collapse in the year 2000 of the Oslo Peace
Process, in the middle of what was called
the Second Intifada, I was thinking hard about
what I could do personally and what the program
on negotiation might do to contribute
towards this conflict. Although ambitious,
I assure you I had no illusions that somehow
we were going to find an answer. But I hoped that by
thinking hard about it, by bringing and
applying some theory, in a small way with colleagues
here, I might contribute to helping heal the world. There was something
very paradoxical about the
Israeli-Palestinian conflict. And I've got to
necessarily discuss it in very abbreviated terms. The paradox is
pretty well-known. If there's going to
be a deal in terms of a two-state
resolution, and it's clear that a majority of both
Israelis and Palestinians would like to make a deal. We all know what the
parameters of that-- we all know, those who have studied
it know the basic parameters of the deal. There are a lot of
intractable conflicts where it's hard to imagine what,
in fact, the deal might be. But if you put yourself in
the shoes of a mediator here, that's not the problem. President Clinton outlined
it during the Oslo process. Sophisticated Israelis
and Palestinians, those who have been involved
in the negotiations, they all know the
basic parameters too. Basically, the land
will be divided. Starting with the '67 borders,
there would be some land swaps so that a substantial proportion
of the Jewish settlers in the West Bank would find
themselves in Israel proper, and in exchange,
the Palestinians would receive an
equivalent amount of land. There would be
security arrangements that would give Israel
sufficient confidence that the new Palestinian
state wouldn't be used as a basis for
a continued terrorism. Jerusalem would be
divided and the capital of both nations, where
like a condominium, East Jerusalem would
in fact be subject the new Palestinian state. Much of the rest of
Jerusalem would be subject to be part of Israel. And the holy sites would be
managed sort of like a condo-- there are different ways
of doing it, some of which would be akin to a condominium,
where the holy sites might be either under
international jurisdiction or under some kind of shared
cooperative jurisdiction. Most of the other-- not that most. The settlers, the Jewish
settlers in the West Bank that weren't part of
what would now be Israel, would have to move back. And the Palestinians,
their right of return would be the right to return
to the new Palestinian state, not to Israel proper. Now, I asked myself-- and this was clear in the
early 2000s, 15 years ago-- what are the barriers? A question that, as a
negotiation analyst, I've written a lot about. It's very helpful when
there's a conflict that seems unresolved to see
if you can categorize what the barriers are. And the argument
and the conclusion I reached in terms
of the barriers is that the primary barrier
was not that the leaders who might be at the
negotiation table didn't know what
the deal would be, but that there were internal
conflicts on each side that made it extraordinarily
difficult to think about how the deal could be implemented
and how, as a leader, you can in fact put together a
winning coalition to implement the deal. Because there are
spoilers on both sides. So I decided what would
be interesting to sort of study is, not details
about the terms of the deal, but what might be done,
if anything, to deal with the internal conflicts. Now, I have to confess, as an
assimilated Midwestern Jewish kid who doesn't know
Hebrew, I had no illusions that I was going to somehow
single-handedly be able to make peace among the Jews in Israel. Because within Israel,
let me assure you, the internal conflicts
are very profound. But I thought that the key
internal conflicts were, of course, over the
future of the settlements, and there are a lot of them. And that conflict
is very profound because national
religious settlers believe that settling
in all of Eretz Israel is a religious mandate. God intended Jews to
have the West Bank. Biblical Palestine was not
along the Mediterranean coast where Tel Aviv is. It was in the West Bank. And in fact, the national
religious settlers who combine both
fervent nationalism and religious zeal-- they're not the ultra-orthodox-- have in fact, been driving
the settlement movement. On the other hand,
as all of you know, there are many,
many other Israelis who feel that the
settlements in the West Bank are a catastrophe. They rarely go to the West Bank. They feel that the state
is subsidizing them hugely. And in terms of demonization
within the Israeli community, there's lots of demonization. Now the same, of course, is
true on the Palestinian side. The reason many Israelis are
skeptical about the possibility of a negotiated resolution
with Abu Mazen-- who, by the way, I think is not
an entirely unreasonable guy-- is because they say he
has no control over Gaza. Is there going to be one
Palestinian state or two Palestinian states? Is Fatah going to be in
control, or is it Hamas? They have different objectives. And the internal conflict
among Palestinians, in fact, has at times led to bloodshed. Well, let me briefly say-- I'm not going to be able
to go into any detail-- is I've been involved in a
couple of different activities relating to this. One, which was one of the most
fascinating things I've ever been involved in-- was working on the issue
of the internal conflict within Israel. And I did this primarily
between 2002 and 2005. And it turns out that the
timing was fortuitous. I spent a year and a half
going there and seeing if I could recruit a
set of what turned out to be 11 Israelis representing
an extraordinary range of views, whether they'd
be interested in talking to each other,
believe it or not, about the West Bank, Gaza, and
the future of the settlements. And we met several times. And we had the good
fortune that I began it before Prime
Minister Sharon made his proposal for unilateral
withdrawal from the West Bank. But this process
continued during the time that was being implemented. We had five people who were
hardcore settlers, including this man, Rabbi Avi
Gisser, who became actually someone I enjoyed a lot. Gisser was eager to participate. He's the head rabbi
of a settlement called Ofra, which is one of the key-- it's where a lot of the leaders
of the national religious movement are. And he was interested
in mediation. And he knew some of my work. And he said, oh,
Professor Mnookin, this is a wonderful thing
you're trying to do. This was in translation. He said, I'd like
to participate, but on one condition. I said, what's the condition? And he said, everyone who comes
must accept as a ground rule this is our land. Well, because
another participant was going to be the founder of
an organization called Peace Now, a third was going to be
the chief Israeli negotiator during the Oslo
process, I thought, that's not too promising. But I had the wit. I internalized something I've
learned from Sheila Heen, and I said, I can tell you
feel very strongly about this. Could you say more? And he said to me, yes, if
someone would acknowledge that this is our land, I'm
prepared to talk about maybe this is not the time we
should be occupying our land. So I suddenly had
the sense, my God, this was a guy you might really
be able to do business with. In all events, had a very
interesting group of people, including former national
security advisor, two generals, a chief negotiator. And the key thing
about this process was I really spent
literally two years planning the process before
the initial meetings. The second thing I did in
terms of facilitating dialogue as a neutral, involved
Americans, Israelis, and Palestinians, many of
whom had been involved in negotiations along the way. And this was with the support
of the Norwegian government. And it involved the
Crown Center at Brandeis as well as the program on
negotiation and an Israeli and a Palestinian associated
with the Brandeis program. My colleague, Jim
Sebenius is here. And our objectives
were the following. We were going to get Israelis,
Americans, and Palestinians together to talk about their
internal domestic problems, if in fact there were a deal,
that you wanted to implement. In other words,
we invited people to come not to talk about
the substance of what the deal would be. Indeed, one thing we did
that was kind of unusual is we simply, as part of the
process, sent them the deal. And we said, you may assume--
and we're not going to discuss this at all-- this, in fact,
the highest level, the political leaders have
decided to buy onto this-- this agreement in principle. But what we're
going to talk about is what your problems would
be in implementing this deal. And of course, the Israeli
and Palestinian leaders would have plenty of problems. The Americans were
there too, because they figured they'd have
plenty of problems too, because it's not as if all
American domestic constituents would necessarily be supportive
of the deal we described. And what we wanted them
to do is rather than each of them spending
two days telling the others what they must do
to help them, we flipped it. And we asked them, we
want you to brainstorm after you hear what stakeholder
problems the other parties have. What could you do to
help them better manage their internal conflicts? A question that they were not
used to asking themselves. What lessons did
I learn from this? I learned a lot of
lessons, I think. A lot of them is a key
role that we lawyers play all the time is what I'd
call process architecture. That's certainly true
when we're mediators. We're designing a process to
help people resolve conflicts. It's what you were doing in
terms of your negotiations. You were trying to
figure out what process to involve the implementation. Ombudspersons all the times
are dealing with small issues, but they're thinking about how
do I manage this issue that's both helpful to the person
in the room, where I'm also alive to what the
broader implications for the institution might be. What Sheila is
figuring out how to do, although it's a very
successful marriage, is how can she more
effectively communicate with her husband,
whose political views might be somewhat different. But I think that helping
lawyers develop skills to think about how you
can design such processes can be helpful. The last point I just want
to mention, it's obvious. And that is, so often in
terms of dispute resolution, transparency is the enemy. I've been talking about
behind the table conflicts within a domestic constituency. Often many of us
have been involved in conflicts where
within a company there are huge
conflicts internally. It's very hard for
people publicly to talk about those things if
you don't create an environment where they feel safe, because
there are real political costs. And I think that,
in fact, that's certainly true in these
intractable ethnic conflicts where being able to have a
degree of confidentiality, where there aren't
leaks to the press, is essentially important. The tension and
paradox, of course, is that you also
at the same time have to be thinking about
in terms of implementation. How do you build
political support later for implementation? And there often is a tension. Does dialogue make a difference? Does conflict persist? I think that in a small way, we
might have made a difference. Indeed, although I can't go
into it in any detail now, 8,000 Jewish settlers
were successfully evacuated from Gaza
with no loss of life, notwithstanding what
people feared were threats of an internal civil war. There was civil disobedience. And indeed, in one article the
author claimed that the leaders of the settlement movement--
they're rarely given credit for this-- claimed that what they learned
through the dialogue process in terms of the value
commitments of people they had viewed as the
other side and the enemy led them to, in fact, work to
ensure there wasn't violence. It also led some
of those liberals in Israel to realize
that if they were ever going to successfully implement
a resolution of this dispute, these settlers
shouldn't be demonized, but they had to be embraced. And when they
returned to Israel, they had to be
treated with dignity. You had to worry
about compensation. You had to worry
about getting them jobs, something they didn't
do with complete success. Our time is up. But what do you think? A couple of questions? Not about this,
but more general. DAVID HOFFMAN: I was struck
by the similarity when you talk about the
internal negotiation, where you have these
different parts, so to speak, and trying to identify
a core mediative capacity within each
group, the personal and the political coincide. ROBERT MNOOKIN: They do indeed. Anyway, let me simply close by
saying thank you for coming. And most of all, what
I wish for all of you, building on what I
hope you saw today is, I think as
professionals, we lawyers can contribute so much to the
fair and efficient resolution of conflict. I think it can be done. You don't have to be a mediator. You could do it when
you're representing clients to make them feel heard,
to help them understand what their underlying
interests are, to do what's extremely hard-- and that is to help
them understand the perspective of their
adversaries on the other side. Those are things I think
we can do all the time and contribute to help
healing the world. Thank you very much. [APPLAUSE]
