CHAPTER 1

YOU TALK TO PEOPLE FOR A LIVING?

Courage is what it takes to stand up and speak; courage is also what it takes to sit down and listen.

—JOSEPH A. LEFANTE

I LIKE TO START resolution discussions by telling people that logic, reason, and rationale are their worst tools. They all laugh. They’ve already tried them, and they haven’t worked.

Most of my deals start with people saying they want $100 million and the defendant saying, “Here’s ten grand, and go away.” Then both sides argue their points, trying to prove how right they are. Never in the history of the game has one side said to the other, “You’re right, I didn’t analyze the situation correctly. I didn’t research it correctly. I didn’t investigate it correctly. Your logic and reasoning are superior. You are right. Thank you for shouting or arguing away my ignorance. I’ll go away now.”

Most people do not communicate or listen well. Most do not listen at all, or if they do, they already know what they are going to say and are simply pretending to be polite and waiting for a moment to say it. This is when people just patiently wait and take turns talking. But listening—that takes maturity and receptivity, which are in short supply when we are in a disagreement or fight. When in conflict, we suffer from auditory exclusion and ocular inclusion. This is neuroscience’s fancy way of saying we stop hearing and stop seeing. Even if the other side shouts louder, threatens more aggressively, bribes, or withdraws, the conflict doesn’t resolve. It may get buried for a while, but it remains active.

I started mediating in 1983. I met a woman at an American Bar Association meeting and asked her what she did, you know, the typical lunch chitchat. She said she was a mediator. Surprised, I asked, “What’s that?” After she explained, I almost shouted, “You mean you talk to people and solve problems for a living?” I was enthralled.

I was a young woman trial lawyer then. These were the days when I was called “little lady,” and no one wanted to hear my opinion. I was simply tasked with taking a deposition or writing a brief for another lawyer. It didn’t matter how capable I was; opportunities for women were very limited back then.

My first job as a young lawyer was with a well-known law firm. I set up my office. I was excited to even have an office. I bought a gorgeous desk set, with two beautiful round coral marble paperweights. A male partner in the firm, who was opposed to hiring a woman lawyer, strutted into my office and grabbed one of my round paperweights, threw it up in the air, and arrogantly asked, “What the heck is this?” I smiled and said, “Every lawyer should have balls.” He glared at me, put it down, and never spoke to me again.

After I got pregnant, I think the firm was afraid to fire me. The senior partner was my main advocate because he saw real potential, but support was touch and go even with that. When I was fully nine months pregnant, I applied for a job as a judicial clerk to a federal judge. As I was waiting in his office for my interview, the judge arrived, saw me in my nine-month, huge tent dress, smiled at me, and then asked his secretary if his twelve o’clock interview was here yet. She nodded at me, and he blanched. Fortunately, the interview went well. I got the job. Apparently, pregnancy was going to work for me.

The amazing thing about the judicial clerkship was that I learned how decisions were made. I was naïve enough to think people would review the evidence and use deductive reasoning to come to a decision. Boy, was I wrong. All decision makers are human beings. Human beings have biases, preconceived notions, and filters. These observations were the beginning of my lifelong study of human decision-making.

Logic, reason, and rational thinking seemed to be extremely poor persuasive techniques. So many human factors came into play, including how the information was presented or the credibility of the witnesses. For example, people might think, that guy looks like Cousin Mike and we know Mike is a liar. We like big companies, we hate big companies, we trust the government, we distrust the government, and so on. The search for the “big T” Truth usually turns out to be many “little t” truths that come from different perspectives and use different standards and lenses. Human decision-making is complex and oh so interesting.

Getting a job, even with my great résumé, was still tough for a woman back in the early eighties. I ended up working for a small law firm where the male senior partner knew he could cheaply acquire great talent by hiring women since most firms wouldn’t hire women litigators, especially if they were outspoken. I learned a lot from him because he threw me into the deep end my first day and I was trying cases immediately.

After a few years of winning cases I should have lost and losing cases I should have won, I was very disheartened with “the game.” The more money you had, the more talent you could buy, the more expert witness reports you could manipulate, and the more judges you could contribute to—it didn’t seem fair. Win or lose, the clients were often just not satisfied. But now, mediation. Talking to people and trying to figure it out? That made much more sense to me.

MEDIATION OPENED ME UP

Back in the day, mediation was still largely unknown and thought of as some touchy-feely act or something labor unions did to avoid a strike. Now, thankfully, mediation is an integral part of legal systems throughout the world. It occurs in all US judicial and most business organizational systems and is commonly used to resolve, and even prevent, conflict. I helped draft the Texas law allowing courts to order parties into mediation more than thirty years ago. That law has been copied across the country, and now mediation is commonplace. Other countries have followed this example, and mediation has spread like the wind across the globe. How wonderful! The mediation process itself brings civility to humanity by helping extinguish rage, anguish, fear, injustice, and conflict.

I’ve been blessed to have a laboratory for more than thirty-five years in which to practice, experiment, play, and develop new techniques, tools, methods, and stories to help move folks closer to where a deal is possible.

HOW HOLDING THE CALM WAS BORN

Holding the Calm moves us forward, through, or above conflict in a way that will actually work—not a theory or someone’s idea of what should work but what does actually work with human beings. Holding the Calm is about being heard, understood, valued, and safe. Both the simplest, gentlest person and the roughest, toughest person you know need to know this method.

Learning about the interesting psychology of loss aversion was a game-changer for me, which I’ll go into more in chapter 9 “Winning? Or Not Losing.”¹

Want an interesting way to test the theory right now? Go ahead and practice it on your kids or grandkids. The following story is just a taste of what’s to come in this book. Let’s say I want my child to make her bed every morning. The normal strategy is to give her a quarter every day that she makes her bed. You might get compliance for a little while, but then the chore becomes boring to the child and the quarter isn’t worth it. The bed is a hot mess again. What if you give her seven quarters, one for every day of the week, and line them up on the window sill. Every day that she does not make her bed, you will take a quarter away. Now she owns the seven quarters, and you’re going to take one away from her? No way! Suddenly those quarters are highly valuable because they already belong to her. She may lose one quarter but will then make her bed every single day for the rest of the week. She doesn’t need to learn the lesson twice. It’s a much more potent message for compliance. Lest you think this only works with kids, au contraire—it works with all human beings. Once someone owns something, it is much more valuable to the person than something that someone else owns. This is even true of groups of people. You can apply this to all kinds of situations.

Would you like another example? Let’s say I have a lottery ticket. The winning pot is $1 million. The ticket cost me $1. How much would you pay me for my ticket? Now, change the scenario. You own the lottery ticket—same $1 million pot and it also cost you $1. What’s the least amount you would sell that ticket for? Are the two numbers the same? They should be. The math and logic are the same. However, for 80 to 90 percent of all people, across all cultures, genders, races, and socioeconomic groups, the two numbers are different.

I created this little game and have used it dozens of times in many different trainings, group meetings, and even mediations. The responses are always the same: 80–90 percent of people choose two different numbers. Why? Because something that belongs to me is always seen as more valuable than something belonging to you. I am more averse to losing something of value that I already have than I am to something I might obtain. Additionally, human beings tend to want more. We dislike things being taken away from us. We think more will make us happy. We think more will fill the holes in our psyche or heal wounds from our childhood. We want to feel valued and taken care of. This is true for the sweet, gentle spirit as well as the rough, tough type A personality.

Understanding this is a form of Holding the Calm. It’s setting up a situation so that it is perceived as favorable. It is letting people reframe what is theirs to avoid losing. This can work even during a power grab. Reframe the grab as a potential loss, and the valuation of the gain will reduce to allow other solutions to emerge.

Keep reading, you’ll be amazed at what can happen.