Category: Mediation

Civil disagreement

Jennifer RomigLeave a comment

In a recent Time editorial, Yale Law Dean Heather Gerken lionized the law school as a bastion of civil disagreement. She cited the uninterrupted speech of Charles Murray at Yale as an example of civility:

Law school conditions you to know the difference between righteousness and self-righteousness. That’s why lawyers know how to go to war without turning the other side into an enemy.

A student group collectively responded, arguing that Gerken mischaracterized their protest during Murray’s visit to Yale and suggesting limits on law’s social and political influence:

If anything, our legal training has taught us that civility has its limits, and that disruption, creative protest, and rule-breaking are valid and often necessary tactics to effect change.

Amidst this debate and much, much more, a new class of law students is arriving at law schools across the country right now. Thus I was grateful to hear some excellent advice on promoting discussion and civility in legal education, shared at the recent Southeastern Association of Law Schools’ Conference.

Professor Suzanne Rowe of Oregon Law spoke on a panel about building character in the classroom. She briefly stated the character values law school seeks to instill—integrity, trust, respect. And then she focused on specific tools and methods for discourse within the classroom. That may not be all we need right now, but it definitely can help.

What do students need? They need to hear other views, respect other viewpoints, share their convictions with other classmates, and engage across the spectrum of ideas.

But what happens when this “spectrum of ideas” leads to a truly difficult conversation—where someone offers an opinion that fundamentally attacks the integrity, worth, and humanity of another person? Professor Rowe offered a roadmap for responding in these moments:

1.  Recognize what happened.

For example, the professor might describe reactions: “I’m seeing eyebrows raised and people seeming very uncomfortable.”

2.  Share what you feel and believe.

After an objective assessment of what has happened, the professor can share her reaction. For example, “I believe you can say that in a more professional way” or “I feel that the words you’ve used are harmful to members of our community.”

3.  Act

If the professor has prepared for this type of disruption, she might immediately lead students in a discussion of the unprofessional or harmful comment. If not, she might ask the class to take a break and regroup in a few minutes or the next day to engage in that discussion.

Professor Rowe also talked about teaching the value of disengaging. Students can engage more fully when they know they do not have to continue engaging no matter what they may hear. Some students might chose to step out of the classroom during a discussion.

There are no easy answers, but the framework for recognizing, sharing, and acting—plus disengaging at times—may help.

Mindfulness without meditation

Jennifer RomigLeave a comment

They had me at “hello.”

Actually they had me with the title of the handout:

“Mindfulness without Meditation.”

Last week I attended the 2017 meeting of the Southeastern Association of Law Schools, a.k.a. SEALS, in beautiful Boca Raton. The SEALS meeting lasted all week but included a two-day Conference on Mindfulness in Law co-sponsored by SEALS, the AALS Section on Balance, the Mindfulness in Law Society, and the Fredrick P. Lenz Foundation.

Day two featured a session on “Emotional Intelligence and Mindfulness in Law.” That’s where the elusive promise of mindfulness without meditation came in. There were several speakers, and I hope to blog about each of them. This post focuses on remarks by William Blatt of the University of Miami.

Professor Blatt has seven years’ experience teaching a law-school course on emotional intelligence and mindfulness. He acknowledged that mindfulness as a concept can be difficult to effectively communicate. Being mindful helps people to be at peace with themselves, to be more productive, and to have better relationships. But it’s like a neutral gear or a general state. It’s universal, but subtle. Telling someone to gain emotional intelligence by being mindful is like telling a triathlete to get better by exercising.

Professor Blatt uses his mindfulness class to delve into more specifics:

  1. Attention regulation

Students are drawn to techniques that help them concentrate better because they know it will help them academically. To help students see how they must intentionally focus, Professor Blatt draws a parallel to focused intensity in body building. He walks students through a bicep curl exercise. No weights are needed. The first time you just lift your arm. The second time, you imagine a marble in your bicep and you place a finger on your bicep, lifting your arm with focused intensity.

  1. Body awareness

Becoming more aware of your own body can help with mindfulness. The bicep curl exercise above is one way to do it. But Professor Blatt showed some more energetic ways to do this. First, breathe for 30 seconds but forcibly exhale. Let your breath be heard. By breathing out so strongly, you gain more body awareness.

Beyond that, you can get up out of your seat, put your arms over your head, bend your knees, and jump. Like 20 times. Your attention will come back to your body. Yes it looks strange to see a hotel ballroom full of law professors doing this, but it works.

  1. Emotional regulation

One barrier to mindfulness is repetitive thoughts. Professor Blatt shows students how to take a word—maybe “stress”—and repeat it over and over again. The key is to distort it. Repeat it so fast that it sounds like gibberish. Or slow it down and say it in a deep, slow, movie-trailer voice. Or say the word in a mouse voice. These techniques can break the association of such repetitive thoughts.

Professor Blatt also talked about ways to reframe certain feelings. Stress may feel like a threat, but perhaps it can be reframed as an opportunity. This is easy to say and hard to do. Professor Blatt suggested a good technique which is to change a problem into a question beginning “how…” For example “I’m feeling stressed about maintaining this blog” could become “How can I continue to find and post good content on this blog?”

Building on this interrogative technique, Professor Blatt talked about the broader “release technique” which walks through a series of questions about deciding whether to release a current emotional state—or not. The hyper-rational among us who find themselves dealing with an unwanted emotional state may like this pragmatic series of steps.

  1. Perspectives on the self

Does an individual have just one personality—one mood, one approach, one way of being in the world? “I contain multitudes,” Walt Whitman wrote. Professor Blatt discussed a technique for mindfulness in which you try to acknowledge these different “sub-personalities.” The examples he gave were the controller, the seeker, the skeptic, the big mind, and the big heart. Allowing yourself to “hear” the voice of these sub-personalities builds compassion for yourself and is connected to mindfulness more broadly.

I enjoyed Professor Blatt’s remarks about mindfulness because they spanned a wide range of mindfulness techniques from active (jumping up and down) to practical (using a checklist for deciding whether to let something go) to linguistic (articulating a difficult word in an exaggerated way) to conversational (practicing “talking and listening” to your own sub-personalities).

As he said, mindfulness is a general state. But there are many paths to reach—or at least to seek—that state.

Facilitating Dialogue Across Difference

Jennifer RomigLeave a comment

SilversteinMany thanks to Gail Silverstein, Clinical Professor of Law at the UC Hastings College of the
Law, for this guest post about the ABA Section of Dispute Resolution’s recent conference. Gail co-directs and co-teaches an Individual Representation Clinic and a Mediation Clinic at UC Hastings.

 

The 19th Annual Spring Conference of the ABA Section of Dispute Resolution took place in my hometown of San Francisco, California, on April 19-22, 2017. While participants in the March for Science gathered nationally, conference attendees on Saturday morning learned about facilitating dialogue across difference from the team at the Harvard Negotiation and Mediation Clinical Program at Harvard Law School in a session entitled “Dialogue through Difference: Expanding the Legal Skill Set.”

Harvard’s political-dialogue initiative came out of observing both a national need for dialogues across political differences since the 2012 election and a need at the law-school level as students seemed unable to engage politically in the classroom beyond one standard “liberalish” viewpoint. The three goals of the initiative include:

  1. Educating students to skillfully facilitate and participate in dialogues across difference
  2. Serving the community by providing facilitation services
  3. Creating and sharing pedagogy in this area to build the field

The session described how the initiative is faring thus far and also introduced a new educational video, available soon, entitled “Police-Community Dialogue: A Facilitated Conversation Featuring Commentary with Harvard Law School Professor Robert C. Bordone.” (See trailer for this video here.)

Bookmark Side 2

Session speakers described how the skillset needed for facilitating dialogue across difference contrasts with those of the traditional lawyer. Three of these skills include building connection, unlearning control, and creating comfort with discomfort. Despite the contrasts with the traditional lawyer archetype, all of these named skills relate to listening as both a skill and value that is essential for today’s lawyers.

Building connection

In these dialogues, there is often not a particularized set outcome. Rather, facilitators need to help people connect to one another and their different perspectives and to try to understand where people are coming from in their viewpoints. For Tobias Berkman, who facilitated the police-community dialogue featured in the video, the most important questions used in this sensitive dialogue were ones that engaged the participants personally—for instance “How have these issues impacted you personally?” and “What to do you bring to this?”

Even more important than asking the right questions, listening is the key way we help to build connection with others. The kind of listening that these difficult facilitations require is likely the same type of listening that is helpful to lawyers in early client interviews or during emotionally laden conversation with clients: an open-ended, compassionate listening. I often refer to the work of Peter Elbow on “methodological belief” when I teach my students this type of connection-building listening.  To Elbow, methodological belief is the discipline of listening with the intention to believe what the speaker is saying.  This type of listening, Elbow advances and my experience confirms, allows the listener to feel the power of the other person and his or her ideas, which creates the connection and understanding to which we aspire.

Unlearning control

Second, political-dialogue facilitators need to unlearn that they need to control the process to have a smooth external appearance. Tobias Berkman shared that what looks and feels like a safe place to some participants is actually a “delusion” that privileges a certain kind of engagement. While some appreciate calm and rational conduct, anger and hostility are important for others to express, in order to command respect and power. To maintain a composed exterior on the dialogue does not indicate success for a facilitator as it may be clamping down on important emotions and modalities of expression.

Again, listening is a core component of unlearning control as it is the manner by which we allow the outside world to affect us. In comparison to speaking, which is one of the primary tools by which we impose ourselves on the world, when we listen we allow ourselves to be affected by others. As such, listening is a type of ceding control over ideas, emotions, and narratives to others. All lawyers need to find a good balance between speaking and listening to be effective.

Creating Comfort with Discomfort

Third, political-dialogue facilitators need to build their own comfort with discomfort as they work to move toward the disagreements, instead of shying away from conflict and the multiplicity of emotions. Berkman, along with his co-facilitator Danielle Bart, emphasized that being able to maintain and sustain vulnerability while facilitating can be incredibly powerful and can function as a model for participants. At the same time, it can be demanding for a facilitator to show up authentically as a whole person, particularly in high stakes situations. Rachel Viscomi who teaches Harvard’s “Lawyer as Facilitator” class to law students finds instructive Brené Brown’s vulnerability motto in helping others learning to be genuinely present in these situations:

“Don’t shrink. Don’t puff up. Stand your sacred ground.”

One barrier to effective listening can be our discomfort with our own internal emotions or those that others are expressing to us. Instead of being able to focus on the other person, we become distracted internally or shut down. This lesson of leaning in to the discomfort, which I learned in my mediation training years ago, is a key piece in the internal work necessary to be an effective and skillful listener.

To conclude, in this increasingly polarized world, augmenting lawyers’ skillset to both lead and participate in political dialogue is an incredibly important effort. It harkens to Professor Anthony’s Kronman’s “lawyer-statesman ideal”—that he believed to be failing—where the lawyer possesses qualities such a great practical wisdom, sympathy for others, and a devotion to the public good.

Kudos to the Harvard Negotiation and Mediation Clinic for responding to society’s needs and keeping this ideal alive.

Additional resources:

Anthony Kronman, The Lost Lawyer: Failing Ideals of the Legal Profession (Harvard University Press, 1995).

Peter Elbow, “Methodological Doubting and Believing: Contraries in Inquiry,” in Embracing Contraries: Explorations in Learning and Teaching (Oxford: Oxford University Press, 1986).

Harvard Negotiation & Mediation Clinical Program’s Blog

Access to Harvard Law School’s Police-Community Dialogue Case Study (fee based)

Stuck in the Middle with Everyone

Jennifer Romig1 Comment

DSC_0866-Version-2-258x300Thanks to Lainey Feingold for this guest post. Lainey is an author and disability civil rights lawyer. Her book, Structured Negotiation, A Winning Alternative to Lawsuits, was published by the Dispute Resolution Section of the American Bar Association in 2016.  She is the 2017 individual recipient of the Section’s John W. Cooley Lawyer as Problem Solver Award.

Later this week I will be presenting at the annual conference of the Dispute Resolution Section of the ABA. The Section published my book last year and I’m excited to be sharing my ideas and meeting and learning from leaders in the field.

Many of those I’ll meet are professional neutrals—private mediators and arbitrators or court-based neutrals.  Many others are academics, teaching the next generation of lawyers how to be collaborative amidst the conflict-based culture of our profession.

I’m not any of those things.

I’m a disability civil rights lawyer who represents blind people seeking access to technology and information.  Before I became a disability rights lawyer over 25 years ago I represented labor unions and women and minorities in civil rights employment cases.  I’ve never been a neutral.  Never been in the middle.

Or have I?

Advocate as Peacemaker

For the past two decades, my clients, co-counsel, and I have negotiated national accessibility agreements with large organizations like Bank of America, Walmart, Major League Baseball, and the City and County of San Francisco.  Enforcing rights guaranteed by the Americans with Disabilities Act and other laws, we reached these agreements without any lawsuits on file, using a dispute resolution process called Structured Negotiation.

Structured Negotiation, the subject of my book, gives parties the tools to talk—and listen—directly to each other.  Third-party help from a mediator can integrate well with the process, but is not required.  In close to 75 cases I’ve negotiated with Structured Negotiation (and without lawsuits), I’ve called upon a mediator just a handful of times.

In all my cases I was, metaphorically, on one side of the table with my clients.  But over time, I discovered the table was round.

9.28-StructuredNegotiations_CV-200x300In writing my book about Structured Negotiation I was introduced to a book that proved crucial to my thinking about the work my clients and I had done for two decades:  Bringing Peace into the Room: How the Personal Qualities of the Mediator Impact the Process of Conflict Resolution edited by Daniel Bowling and David Hoffman.

The book explores the qualities that allow mediators to “bring peace into the room.” Although I’ve never been a neutral “in the middle,” it struck me that lawyers practicing Structured Negotiation also “bring peace into the room.” Reading the essays in Bowling and Hoffman’s book I realized that “bringing peace” and being a strong advocate are not mutually exclusive.

To the contrary, being a peacemaker can serve the advocate’s goals just as it serves the mediator’s.

Understanding that participants in Structured Negotiation are peacemakers gave me new insight on the process my colleagues and I had nurtured since our first cases on accessible banking services in the 1990s.

And a new understanding of the possibility of the middle.

The middle is not a mythic center, but a place of common ground

Perhaps the “middle” is not only a place for a skilled neutral seeking compromise from reluctant advocates.  Instead, maybe the “middle” is the common ground all parties seek in a dispute.  As an advocate, my role is to help the parties get there, never losing sight of my clients’ goals.

Looked at in this new way, the middle is not a precise center point between two opposing views.  When my blind clients needed ATMs that talk so they could use them independently, the middle had Talking ATMs, although my clients may have compromised on the timing of particular features.

It was the same during Structured Negotiation with the nation’s largest pharmacy chains for prescription labels that talk, so blind people can safely take medication. As an advocate in Structured Negotiation, my job was to convince our negotiating partners in the pharmacy industry that the middle has talking labels.

The elements of Structured Negotiation made that convincing possible.  An opening letter that invites participation instead of demanding.  Collaborative meetings instead of one-sided, often bullying depositions.  Relationships that emphasize trust instead of distrust; patience instead of its opposite.

Of course, sometimes there is no middle, no common ground.  Sometimes collaborative peacemaking must step aside for a judge’s order. In the new political reality of Muslim bans, attacks on public schools, and threats to freedoms of every sort, traditional litigation has already proven an indispensable tool.  And it always has been.  But it is not the only tool in the advocate’s toolbox.  Peacemaking in its various forms is in there too.

Fear keeps people from common ground; listening gets them there

In my years of negotiating without lawsuits, I have seen fear as a key obstacle in an advocate’s ability to be a peacemaker. In my cases about website and mobile app accessibility, fear that the law will change, technology won’t work, or the cost will be too high are common.  In other fields the fears will be different but the tools to dissolve those fears are the same.  Talk openly.  Listen carefully. Don’t make the lawyerly mistake of assuming the ‘other side’ is hiding the ball or withholding the truth.  Provide a forum for clients to get to know each other.  Show don’t tell.

I’ve seen firsthand that helping everyone around the table get past fear is not reserved for a neutral positioned between opposing parties.  It is the job of the peacemaking advocate as well.

All this leads me back to this week’s ABA conference this week.  It reminds me to listen carefully to the words of the traditional peacemakers—the private and court-based neutrals—and to the law professors and clinical directors.  I know they will be helpful to my clients and to me as we continue to be the best advocates we can be, seeking a middle that works for everyone. 

Visit Lainey’s website or follow her on Twitter for more information. The title of this piece came from the theme song of her favorite TV show, Grace and Frankie. The song was written by the Stealers Wheel and covered for the show by Grace Potter.

 

A Winning Approach to Negotiations: Self-Awareness, Flexibility, and Practice

Jennifer Romig1 Comment

lee-headshot-2-1Guest post by Katrina June Lee, Associate Clinical Professor, The Ohio State University Moritz College of Law

On September 21, the Moritz College of Law hosted the incomparable Marya Cody Kolman as its 2016 Lawrence Lecturer, named in honor of lawyer and law school educator James K. L. Lawrence (Moritz ‘65).

A Yale Law grad, Kolman is a long-time adjunct professor of negotiations and coach for The Ohio State University’s ABA mediation advocacy team. For more than 30 years, Kolman has helped train OSU law students to be, in her words, “high-quality ethical representatives.” Kolman’s full-time day job, since 1999, is Director of Mediation Services at Franklin County Domestic Relations Court in Columbus, Ohio.

In giving this year’s Lawrence Lecture, Kolman drew from her deep negotiations experience. The Lecture took place in the law school’s large auditorium and was attended by students, professors, and practitioners.

Kolman’s main theme for aspiring effective negotiators could be summed up as follows: reflect on and identify your own negotiating tendencies, build into your repertoire styles that do not come naturally to you, and practice so that you can adapt to any type of negotiating situation.

She started the lecture with a very telling story that revealed her main theme.  Over the years, as a coach for OSU’s ABA mediation advocacy student team, Kolman noticed that OSU’s team regularly beat teams that had practiced for months and months (sometimes years). Yes, OSU law students were (in Kolman’s words) “simply amazing” and benefited from education in an outstanding law school dispute resolution program. Still, Kolman wondered if there was something about their competition preparation that made OSU law students especially effective.

A winning approach

After some reflection and investigation, Kolman discovered that the OSU teams benefited from not being scripted and not being coached to follow a fixed protocol. Kolman learned that some law schools tried to script the roles for their students or require that they negotiate in a certain way. This approach to preparation differed significantly from Kolman’s approach.

Kolman described the OSU team approach, which emphasized self-awareness and flexibility. Coaches first watched the students and observed their negotiation styles. The coaches noted the students’ strengths and challenges as negotiators. They then helped the students build on their own style and be more effective negotiators using existing strengths. This approach proved to be much more effective than giving students a script or a fixed protocol on how to negotiate.

OSU team coaches had identified a winning approach. The approach focused on developing self-awareness about students’ “natural” negotiation styles and tendencies, and helping students build on their strengths and develop the ability to use other styles when situations called for them.

Raw talent is not enough. Be prepared.

Kolman emphasized that “raw talent” is not enough to be a successful negotiator. Lawyers need to learn about different styles and skills and practice them. Only through that exploration and practice can a lawyer learn what works best for him or her. Kolman coached the audience: Develop strengths and expand on them. Avoid “forcing yourself into a style that does not work for you.”

Even though everyone has negotiated before law school, whether at the grocery store or with family members at home, Kolman cautioned, lawyers should not enter negotiations without training, forethought, and preparation. As I tell my negotiations students, preparation is key.

When Kolman practiced law as a domestic relations attorney, she negotiated with opposing counsel on a daily basis, with 95 percent of cases settling before trial. Most opposing counsel were well-prepared, but some were not. Those who were not would come into the negotiation and start flipping through their files trying to figure out what was going on in the case. Not surprisingly, in those instances, Kolman was usually able to negotiate a very favorable settlement for her client.

Steps to effective negotiating

Kolman offered these steps for any law student or lawyer to become a better negotiator:

Analyze your personal negotiation style and preferences.

One place to start is the Thomas-Kilmann Conflict Mode instrument. For a price, a person can assess which conflict-handling modes he or she is overusing or underusing. The five conflict-handling modes are competing, accommodating, avoiding, compromising, and collaborating. Kolman noted that, without paying for the T-K Conflict Mode Instrument, you can still assess your conflict-mode tendencies through honest hard reflection.

“Think about what’s you” and work on styles that are “not you.”

Once a person has identified personal preferences and tendencies, Kolman urged audience members to “think about what’s you,” maximize your own tendencies, and work on other styles that may not come naturally. Bringing together the strengths of “natural tendencies” and an ability to use other styles as needed will help a lawyer become a well-rounded negotiator. For example, the lawyer who naturally tends to use an accommodating style will find it helpful to learn how to use a competing style so he or she can use it when needed.

Learn about different negotiation styles and practice.

Training and practice help build effective negotiation skills. Kolman commented that “the beauty of a negotiation class” is that “you can try things out.”

Always be willing to learn the interests of your client and the other party.

Kolman emphasized the importance of learning the interests of a client and the other side. This can help with problem-solving and collaborating to find a solution that all parties are happy with. In our negotiations courses at OSU Moritz College of Law, students learn skills that help with exploring interests, including active listening, asking helpful questions, and achieving an optimal balance of empathy and assertiveness in a negotiation.

Kolman encouraged all aspiring negotiators to work on being more self-aware about personal tendencies, understand that raw talent is usually not enough to be an effective negotiator, and to practice styles that do not come naturally.

After reading this post, consider what your personal style is in handling conflict, and try a different one.

 

Sources cited in the 2016 Lawrence Lecture (arranged alphabetically here):

Roger Fisher, William Ury & Bruce Patton, Getting to Yes, 2nd Ed. (Penguin Books 1991).

Gary Goodpaster, A Primer on Competitive Bargaining, 1996 J. Disp. Resol. 325.

Carrie Menkel-Meadow, Toward Another View of Legal Negotiation: The Structure of Problem Solving, 31 UCLA Law Review 754 (1984).

Robert H. Mnookin, et al., Beyond Winning: Negotiating to Create Value in Deals and Disputes (Belknap Press 2000).

Andrea Kupfer Schneider, Shattering Negotiation Myths: Empirical Evidence on the Effectiveness of Negotiation Style, 7 Harv. Negot. L. Rev. 143 (2002).

Richard Shell, Bargaining Styles and Negotiation, 17 Neg. J. 155 (2001).

Listen Like a Lawyer is grateful for this post by Katrina June Lee, Associate Clinical Professor and a member of the Dispute Resolution faculty at The Ohio State University Moritz College of Law, where she teaches Legal Negotiations and Settlements. Moritz’s DR program is No. 1 in the 2017 U.S. News & World Reports ranking of law school DR programs. Professor Lee notes her thanks to Marya Kolman for her insightful Lecture and for sharing her notes and slides for use as background for this post, and to Professor Ellen Deason for her review and comments on this post.

 

Listening and legal tech

Jennifer RomigLeave a comment

I have followed Mike Whelan, Jr., on Twitter for a while now but only recently discovered his blog, Lawyer Forward. Mike is a Texas family lawyer and law-practice coach for lawyers who founded a CLE conference, also called Lawyer Forward. Whelan says his “ninja thing” is “teaching and cultivating relationships.” It’s therefore not surprising his blog has touched on both practical and personal aspects of listening, such as his appreciation for legal tech vendors who actually listen to lawyers speaking about their needs.

Mike’s most recent posts were inspired by social-media chatter about the Canadian legal tech conference, LexTech16. He wrote about it here and here. In his first post “It’s Not That We Hate Tech, It’s That We Hate Your Tech,” he  describes a simple method for deciding whether to spend on tech:

[T]ransactions happen under fairly simple dynamics: you give me something that I want more than the money in my pocket. If you don’t, there’s no sale.

Thinking about the payoff of legal tech brought up similar questions about the potential value to lawyers of time spent working on their listening. Also: does legal tech itself hold any promise for helping lawyers with listening and communication more broadly?

As far as the value of working on listening, I started writing this post with the idea of claiming there is no opportunity cost to better listening. There is no tradeoff! Effective listening should enhance any other choices a lawyer might make, whether the lawyer’s niche is in virtual drone lawyering with alternative fee arrangements based on social-media marketing or trusts-and-estates lawyering in a brick-and-mortar setting with retainers and billable hours based on marketing at the Rotary Club.

But that idea is not really right. There is an opportunity cost to the effort of improving the skill, even if the skill itself has no downside.

To use the most obvious opportunity cost I could think of, what about going to mediation training for 40 hours? Mediation and listening aren’t exactly the same thing, but any good mediation training should be spending a good chunk of time on effective listening.

So, to use Whelan’s value question in a broader hypothetical sense, would abandoning all other activities for 40 hours of mediation/listening training be worth it for a lawyer? This assumes the lawyer isn’t seeking an official mediation credential but rather thinking of investing in better listening more generally. Competing lawyers may be winning and keeping clients (as well as prevailing in negotiations and cases, etc. etc.) because they have better listening skills. But it’s very hard to prove that’s actually happening. So how should a lawyer or firm invest for effectiveness over the long term?

Here, additional parallels with legal tech emerge. Assuming a lawyer has decided in principle to work on listening via mediation training, how does that lawyer go about selecting the most effective training? One article from Mediate.com on how to select mediation training notes several challenges:

  • Potential participants don’t know the right questions to ask to select appropriate mediation training.
  • There’s no uniform regulation (nationally) over mediation training, although many states do regulate mediation training.
  • There are different theories within the field about what mediation even is and how it should work.
  • “Although the majority of organizations that provide mediation training are legitimate and are staffed by qualified trainers, there do exist mediation trainings that fall far short of accepted standards . . . .”

I’ll note that Georgia is strict in regulating mediation training. And I had a wonderful experience with 28 hours of mediation training towards a Georgia certification. It was fast-paced, well-supported, both practical and theoretical, and—most of all—immediately useful.

But beyond the challenge of selecting quality training, another challenge (threat?) is the idea that investing in listening training just wouldn’t help. In essence, a lawyer might think it would be harmless but probably also be a waste of time and resources. This attitude is likely to overlap with a “fixed mindset” about listening—the (mistaken) belief people’s listening skills are fundamentally set and cannot be appreciably improved with effort. When I started this blog, someone told me, “I’m a bad listener and always will be. People who work with me get used to it.” Just as some lawyers may resist even good legal tech because it doesn’t seem to them like it would really make a difference, lawyers might resist good methods for improving their communication skills for the same reason.

This resistance leads back to legal tech itself, on the merits. Whether you think listening is a fixed or learnable skill, is it possible that legal tech somehow revolutionize, disrupt, or at least modestly improve communication among people in the legal field?

Some tech startups—particularly those that facilitate online negotiation or online lawyer-matching—actually seem designed to replace face-to-face contact and perhaps thus diminish the importance of listening. The classic definition of listening requires the presence of “spoken and/or nonverbal messages,” both of which online communication excise from the interaction—perhaps for good reason in some situations. This roundup post on LexTech16 mentioned online dispute resolution for resolving family disputes in England. Likewise, the coparently app helps separating and divorcing parents “have less conversations with your ex and reduce conflict.” (Coparently and a number of other legal tech startups are listed on Bob Ambrogi’s recent, updated list of legal tech startups on LawSites. Click the link in his post to see the list.)

Other startups hint at the idea they could free up a lawyer’s time for other tasks. “Ross,” the AI-driven research startup based on IBM’s Watson, suggests it “lets you get back to being a lawyer.” So, to take a positive view, improved efficiency through excellent legal technology should mean less time spent manually reviewing bills or doing legal research, etc. etc. In turn, legal tech could mean more time for other professional or personal activities. And at least one possibility for what to do with such freed-up time has to do with listening—namely, more face-to-face contact and other human interaction.

Legal tech has potential to help lawyers (and others) with their communication more directly. For example, when we will see a commercial “sociometric device” that would report social metrics—such as a lawyer’s rate of listening versus talking? Kenneth Grady talked about these devices on the Seytlines blog:

Alex “Sandy” Pentland, who directs MIT’s Human Dynamics Laboratory and the MIT Media Lab Entrepreneurship Program, is one of the leaders in the people analytics field. His team developed sociometric devices—smartphones using special software—that teams of employees would wear during the day. The devices measured proximity to other employees, who was talking, engagement levels, and other data points. They did not capture what was being said. But, from this data Pentland’s team could determine which group dynamics led to more creativity or productivity. By altering the work situation, such as aligning work breaks rather than staggering them, Pentland’s team drove performance improvement along many metrics.

We’ve all heard “if you can’t measure it, you can’t manage it.” The idea of these sociometric devices opens new possibilities for measuring listening, generating data previously available only to communication scholars with extensive research support. Commercializing a device like that would be quite the marriage of listening and legal tech.

Post script: I mentioned above that Whelan’s blog talks about listening from several angles. One of those angles is pretty personal. Whelan has done readers a service with a series of open and honest posts on his wife’s ongoing struggle  with chronic illness, and how he manages his practice while supporting his wife and maintaining their relationship. As he says, it’s a story of “pushing through difficulty.” Here’s part 5 of that blog series; check out Lawyer Forward to see the earlier posts.

Listening from ignorance to mastery

Jennifer RomigLeave a comment

The Farnam Street blog has this, this morning on becoming a lifelong learner:

When assessing our competence in any particular discipline, we can place our level of ability somewhere along a continuum moving from ignorance, to conversational competence, to operational competence, then towards proficiency, and finally all the way to mastery.

The quote is from Laurence Enderson, Pebbles of Perception: How a Few Good Choices Make All the Difference, a collection of wisdom inspired by Charlie Munger, lawyer and vice chair of Berkshire Hathaway. I haven’t read the book, but Farnam Street extensively quotes its exhortations to move beyond “coasting,” and rather to embrace lifelong learning. The passage on this continuum of learning was of particular interest.

What would this continuum look like as applied to listening?

Ignorance

It seems like many are operating in a state of ignorance about listening as a concept and an improvable skill. Yet they may be decent or even very strong listeners. In the same way, a talented self-taught writer may not use the vocabulary learned at the Iowa Writers’ Workshop but still produce great prose. On the other hand, many others are ignorant of listening and/or ignorant about how bad they are at listening. (This is the Dunning-Kruger effect, a delusion of competence that applies to listening as to any other skill and has been discussed on the blog here and here and here.)

Conversational Competence

For the rest of us—the coachable who haven’t yet been coached—a state of ignorance about listening seems inexcusable, although common. I say it’s inexcusable in part because “conversational competence” can be reached without a lot of effort. A bit of time spent learning active listening could be sufficient.

Operational Competence

The operational competence is harder. Actually practicing active listening is much more of a challenge than talking about it. And what if active listening isn’t even the right strategy?

Professor Neil Hamilton, in a formative law review article on listening, talked about passive listening as well. (Here’s the link: “Effective Requires Listening: How to Assess and Improve Listening Skills.”) Passive listening has three components, according to Hamilton (citations omitted):

First, the attorney should place an emphasis on silence in conversations. “[A] brief but definite pause in a conversation” can be an effective tool, allowing the client to collect his or her thoughts and then provide information in a more comfortable fashion.The failure to allow periodic silence can interrupt a client‟s stream of association and make the client feel cut off, hurried, or pressured. Effective lawyers will often pause and allow the client to reflect before continuing with their dialogue.

The second key to passive listening is the use of “minimal prompts.” While silence can make some clients and lawyers uncomfortable, “minimal prompts” can let the client know that the lawyer is listening and understands what is being said.

The final passive-listening technique is the use of open-ended questions.

Of these three techniques, the first—using silence—seems by far the hardest. The role of silence is a challenge for many, perhaps especially for lawyers. Legal Zoom CEO John Suh recently offered the following statistic:

//platform.twitter.com/widgets.js

Before one becomes operationally competent in tolerating and even encouraging real silence, one must first be operationally competent in remaining silent while someone—such as a client—is talking.

Proficiency and Mastery

What makes a listener not only competent, but even proficient and, eventually, masterful? Malcolm Gladwell profiled “gifted listener” Konrad Kellen, the Vietnam consultant who was able to listen to interviews with the North Vietnamese without bias. This meant he did not allow the prevailing theory of the war to shape his perception of what they meant.

Listening without bias is closely connected to hearing what isn’t being said:

The most important thing in communication is to hear what isn’t being said.

-Peter Drucker

In other words, great listeners overcome the “availability bias” of paying attention to what is on the list or what the witness is saying, instead of what is not.

So proficient listening is in part a set of technical skills such as appropriate body language, recall, notetaking, compensating for cognitive biases such as the availability bias. Professor Neil Hamilton’s article provides a variety of self-assessments and exercises. Taken together, the questions on the self-assessment provide a sort of schematic of a masterful listener. Here’s an excerpt:

  • I use head nods and facial expressions to indicate that I am listening to a speaker.
  • I establish and maintain eye contact with a speaker.
  • I maintain strong posture and avoid slouching during conversations.
  • I notice changes in a speaker’s volume or tone of voice or nonverbal expressions.

But masterful listening can be—and at least sometimes should be—more than a set of techniques. Hamilton ultimately approaches listening as a virtue. He writes that “listening requires the ability to empathize and relate authentically to a speaker, in addition to technical skills.”

One difficulty lawyers face with the “virtuous listener” theory is what to do with those who act and speak in bad faith. Even with their own clients, lawyers may need to “trust, but verify.” 

If the true sign of genius is being able to hold two opposing truths in mind at the same time and still function (paraphrasing F. Scott Fitzgerald), then the lawyer-as-listener who reaches mastery is indeed a sort of genius. The lawyer uses all the technical tools of listening. More broadly, the lawyer achieves the virtues of empathy and connectedness—but only when appropriate. Sometimes, as communication consultant Jennie Grau pointed out in her recent interview here, the lawyer-as-listener just has to “listen to respond” (not to understand). The mastery lies in knowing the difference.

I was going to end on that note, but that’s not quite enough. Sometimes a situation that begins with hostility and distrust can be transformed into a real opportunity to resolve a dispute, such as in mediation. Listening has a key role to play here. It’s certainly not easy, and listening may seem at times like a zero-sum game with many players. For example, what if the client (who may not be an advanced listener) perceives the lawyer has somehow empathized too much with the mediator or “the enemy”? The difficulty of these situations is exactly why there’s a difference between the lawyer with competence and the one with mastery. When the conditions are right, the masterful listener can use the tools and virtues of listening not just to encounter and understand a situation, but to change it.