Part II: Extended Interview with Bruce Patton, Author of “Difficult Conversations” and “Getting to Yes”

Previously published at “Tijdschrift Conflicthantering” (Conflict Management Magazine), Volume 5, Issue 6, pp. 5-11 (2010)

Eric van Ginkel, international mediator, speaks with Bruce Patton, co-author of Getting to Yes and Difficult conversations, about the development of mediation in the United States, missed opportunities, and difficult conversations. He states that there’s “toxic waste” in our thoughts. When you recognize this, difficult conversations can be less difficult. The other thing that helps in difficult conversations is talking to yourself.

Bruce Patton is a co-founder of the Harvard Negotiation Project (HNP), and as Deputy Director of HNP led it from 1979 until 2009. He is still Distinguished Fellow of the HNP. He is a founder and partner of Vantage Partners, where his work focuses on negotiation and relationship management in supplier, alliance, outsourcing, and merger contexts; managing internal executive teams or cross-matrix conflict; and on negotiation advice and capacity building. Bruce is also a founder and Board member emeritus of the nonprofit Conflict Management Group (now part of Mercy Corps). His many publications include Getting to Yes: Negotiating Agreement Without Giving In (with Roger Fisher and William Ury) and Difficult Conversations: How to Discuss What Matters Most (with Douglas Stone and Sheila Heen).

Published Interview
Eric van Ginkel (EvG): This issue of Tijdschrift Conflicthantering is devoted to the subject of mediation as a profession. Generally, in the Netherlands, mediations are conducted without attorneys present, even in litigated cases. Do you know whether this practice exists in other countries? Or is this unique to the Netherlands?

Bruce Patton (BP): It varies by country and by context. In the United States, in a commercial context mediations have lawyers present, although not always. But in family mediation and small claims mediation, it is quite rare to have attorneys at the table. Elsewhere it depends. Also, the United States has many more lawyers doing mediations than most other countries.

EvG: It is striking to see for example how often psychologists become mediators in other countries, whereas that is quite rare in the United States. How has mediation developed as a profession in the United States?

BP: Mediation has developed in several completely unrelated paths, is my observation. There is peer mediation in schools, where kids are trained to mediate, that has been incredibly successful. It started out as a violence management and reduction program.

Then there is small claims and community mediation, which I think partly grew out of legal training. We started a small claims student mediation program at Harvard, back in 1979. It also grew out of the community dispute resolution programs, such as the one started by Bill Lincoln and such folks [11].

I think commercial mediation was driven in significant part by Endispute, whose founders decided to make a business out of this. Then there was the Center for Public Resources, which created their list of high-profile folks [12]. I think much of commercial dispute resolution has evolved, because it made money for somebody. In places like Florida, Minnesota and Michigan, where they have passed some semi-mandatory mediation requirements, lawyers looking for a new business or more satisfying work thought to themselves, “I can do good and make money at this.” And JAMS, which Endispute and the Bates/Edwards Group merged into, has a lot of retired judges who are making money as mediators [13]. Unfortunately, they are not in many cases doing something that you can really call high-quality mediation, except by the most extended definition.

EvG: What do you mean by that?

BP: Well, there is a lively debate about styles of mediation and what mediators ought to be doing, with so-called transformative mediation on one end, and evaluative and directive mediation on the other. Even years ago I remember there was a study in New Hampshire of mediation being done mostly by retired judges who encouraged the parties to address them as ‘Your Honor’, and whose methodology was similar to what I think is still a common strategy in commercial mediation. It is basically positional mediation, trying to hammer people into making concessions until they meet somewhere in the middle. It’s not very creative. It may be better for people than litigation, but it does not leave people feeling very good.

EvG: Yes, I tend to agree with you, but generally that type of settlement assistance is much in demand, at least here in California.

BP: It is, and not just in California. But you have to believe, even when the parties don’t have an ongoing relationship, that there are many missed opportunities for more creative solutions. I remember a commercial litigation that Professor Roger Fisher and I were asked to mediate. It was four days before trial. The parties were enmeshed in a private antitrust action in California. The plaintiff was a former franchisee of the defendant. He claimed that the defendant had violated the franchise agreement by opening stores in competition with him, and he was suing for more than $1 million. Each of the parties had already spent about $1 million in legal fees. They were anticipating $350,000 as the cost of a three and one-half week trial each. And their decision-tree litigation analysis was nonexistent. In fact, I use this story as a teaching tool to show students why they need to know at least the rudiments of decision analysis. We asked the defendant how much they were willing to offer. They responded, “$350,000, because that’s what we think the trial will cost us.” “Wow!”, we said, “so you anticipate a 100 percent chance of success?” “No, no, we didn’t say that.” “Well, that’s what it sounds like, since you are not allocating any cost to the risk of having to pay a judgment.” The defendant then admitted that they thought they had a 30 to 35 percent chance of losing.

So we asked what they would have to pay if they lost, and they said probably only symbolic damages of $1. “But even if the damages are only $1, wouldn’t you have to pay their legal fees?” “Well, yes.” “And how much do you think their legal fees have been? Is there a reason to assume they were any lower than yours?” The defendant had to admit that was not very likely. “So that could cost you 35 percent of another $1,350,000, including plaintiff’s cost of going to trial.”

“And what if the damages turn out to be more than $1? What if the plaintiff wins $1 million?” The defendant’s counsel conceded that there would also be treble damages to pay. “So maybe there is a 5 percent chance of having to pay $4.35 million?” At that point the defendant’s lawyer – from a very prestigious New York law firm – blurted out, “So that is how you do it, first you multiply and then you add!”

Then we went to the other side, also represented by a very prestigious law firm. With the client in the room, we asked the plaintiff’s lawyer what he thought his chances of success were. “Oh, we have a very good case”, he responded, which is what the client had heard. So we asked him, “What do you mean by that? Is that 90 percent?” “Oh, I never put odds on that. In fact I believe that is not appropriate.” “But what does it mean?”, we insisted. “25, 50, 75 percent?” The lawyer responded, “As the former chair of the ABA Ethics committee, putting a percentage on the likelihood of success would be unethical [14]! My client is as qualified as I am to say what a jury will do.” So we asked, “Suppose this case was tried before a judge instead of a jury, and the judge understood everything you argued and everything the other side argued, then as an expert on the law, what would you think your chances of success would be?” The lawyer hemmed and hawed, and then finally said, “Well, at least 50 percent.” The plaintiff’s jaw bounced off the floor! It had never crossed his mind that that was what ‘very good’ meant.

In the end, Roger asked, “What could the defendant do for you other than paying you money? What else do they have that you might want?” “Well,” the plaintiff said, “their product would be nice.” Roger said, “You mean you used to sell their product, and you wouldn’t mind selling it again?” “Yes”, the plaintiff responded. “That’s interesting,” Roger said, “I thought the defendant was competing with you?” The plaintiff replied, “Oh, yes, they were, but their stores went bankrupt.” So these parties set up their own structured settlement, which enabled the plaintiff to obtain the defendant’s products at a highly reduced price. Both parties were very happy with the result. The plaintiff was a really good franchisee and the defendant’s stores had gone bankrupt. But it took unusual confidence, even chutzpah, for Roger to ask the question that opened up this possibility! And yet, as he suspected, there was a creative solution waiting to be found. I think too often mediators aren’t helping parties look for and find such solutions.

EvG: In September a new edition of your (co-written) book Difficult Conversations will be published. The first edition, dated 1999, became quite popular in the United States and around the world [15]. What are ‘difficult conversations’? And why are they important in both personal and business settings?

BP: We defined difficult conversations as anything you find difficult to talk about. When we started down this path, we were actually thinking we could do a study of what were the ten hardest things to talk about. We had that as a working title. It caused the Psychiatry Department at Massachusetts General Hospital to have me over immediately for a talk, because, as it turned out, they wanted to know what were the ten hardest things to talk about! Unfortunately, by that point we had figured out that it was entirely idiosyncratic. What is difficult for one person is not for another. What makes a conversation difficult has to do with your own history and the way you construct the world, how you feel about yourself and yourself in relationship to others. Not necessarily the topic of the conversation.

by Eric van Ginkel

Read Part I: Extended Interview with Bruce Patton, Author of “Difficult Conversations” and “Getting to Yes”

Read Complete Interview »

End Notes
11. Bill Lincoln is the Executive Director of the Conflict Resolution, Research and Resource Institute, Inc. (CRI), see www.cri.cc. Bill’s early experiences include direct intervention in riots within adult correctional institutions, public school desegregation crisis and Native American affairs. His work began in 1967 when he spontaneously mediated a racial disturbance in Rochester, New York. He played a leading role in community mediation in the 1970s and 1980s.
12. Now called the International Institute for Conflict Prevention & Resolution, see www.cpradr.org.
13. Formerly an acronym for Judicial Arbitration and Mediation Services, JAMS is the world’s largest for-profit dispute resolution provider. Especially initially most of its neutrals have been retired judges. In 1994, San Francisco-based Bates/Edwards merged with Boston-based Endispute, which in the same year merged with JAMS.
14. Formally called the Committee on Ethics and Professional Responsibility of the American Bar Association.
15. D. Stone, B. Patton and S. Heen, Difficult Conversations, How to Discuss What Matters Most (with a foreword by Roger Fisher), Viking/Penguin Books, 1999; second edition 2010. The (sold out) Dutch version appeared in June 1999 under the title Moeilijke Gesprekken, Handleiding voor het voeren van gesprekken waar je als een berg tegenop ziet, Spectrum, 1999.

Eric van Ginkel is an international arbitrator and mediator, and an Adjunct Professor of Law in Dispute Resolution at the Straus Institute of Pepperdine University Law School. In addition to intellectual property matters, he handles a large variety of matters, including complex business and commercial real estate disputes. Eric was the co-editor of the IBA Mediation Newsletter until December of 2010. He serves as arbitrator and/or mediator for several US and international dispute resolution institutions.