Inflation Alert: The Language of Violent Conflict

Around the time when Justin Trudeau announced his candidacy for leadership of the Liberal Party of Canada, I remember seeing an article that claimed that he had a good chance because he had “spent time in the trenches” during the previous federal election campaign.

Justin Trudeau in the trenches?  Had he been embedded with Canadian forces in Afghanistan?  How come I had not heard about it?  I continued reading.  Of course, Justin Trudeau has spent no more “time in the trenches” than I have.  The writer was referring to his door-to-door campaigning in Montreal.  Now, I realize that Montreal can get pretty cold, and that people aren’t always friendly to unsolicited visitors.  But this hardly amounts to “time in the trenches.”

Military metaphors and the language of violent conflict are a ready source of clichés for journalists and bloggers.  We have the “war on the car,”  the “war on Christmas,” “patent wars” between Apple and Samsung, and even an alleged “war against boys” in the education system.  It is commonplace to describe any dispute as a “battleground.” We often hear of the necessity to “open a new front” in some conflict.  (This usually amounts to something like filing a motion in court.)  Last week Bill Daly, deputy commissioner of the National Hockey League, made the ridiculous remark that the NHL’s demand to limit player contract lengths to five years would be “the hill we will die on.”  Please.  I understand that professional hockey is important to many people in this country, and if I were one of those people, I would certainly be very frustrated right now.  But holding fast to your position in a negotiation is not remotely like a heroic martyrdom in battle, no matter how much money or whatever “principles” are at stake.

The appeal of exaggerated language is not hard to fathom. Leaders speak of “rallying the troops” and “fighting the good fight” because doing so is motivational.  People need to feel that their actions matter, the consequences are significant, and that the conflict they’re engaged in is important.  Journalists present rather banal disputes and legal contests as “battles” in an effort to gain and hold our attention.  But not every conflict is worthy of a “fight to the death.”  The stakes are not always high. Even in a zero-sum type of conflict where compromise is impossible and only one side can prevail, the consequences of both winning and losing can be less momentous than the participants believe. The passage of time has a way of making both wins and loses less important than they seem at present.

The overuse of military metaphors is tiresome, but that isn’t the most important reason to resist it.  This form of language inflation has consequences.  If a conflict is a “battle” or a “war,” then it follows that one’s opponents are “the enemy” (and perhaps “evil” as well.)  If one side is the “victor” (who presumably is entitled to the spoils), then the “vanquished” side is shamed or humiliated.  If the other party in a dispute is not just someone you happen to disagree with, or someone whose interests are opposed to yours, but an “enemy,” then that makes compromise much more challenging.  It makes hearing their position more difficult, and opportunities for joint problem solving and mutual gain are likely to be overlooked.

Considering every disagreement, whether it is a civic dispute, a political difference, or a legal contest, as a “war” or “battle” is probably bad for your mental health, and maybe even detrimental to the public good.  Violent conflicts with life-and-death consequences are taking place now in Afghanistan, Syria, and Congo, to mention only a few.  Let’s not trivialize the experiences of people there by exaggerating the importance and severity of our own conflicts.

What is “constructive dismissal”?

Can you quit a job, and yet still be fired?  Can an employer fire employees even though they seem to have left the job of their own free will?  These questions are not riddles or zen koans, but refer instead to one of the trickiest concepts in employment law: “constructive dismissal.”

“Constructive dismissal” sounds like it might be a good thing – sort of like “constructive criticism.”  The reality is different.  “Constructive dismissal” may have occurred in the following scenarios:

Susan is employed as a sales manager in downtown Toronto.  Her boss tells her that, due to changing priorities in the company, she will have to re-locate to Inuvik.  Rather than make the move, Susan quits.

Bob runs one of the departments at Acme Co., and has twenty people reporting to him.  After a corporate reorganization, Bob is demoted, his responsibilities greatly diminished, and he is asked to take a 50% pay cut.  Bob quits, deciding to try his luck on the job market instead of accepting the new circumstances.

In both of these cases, the employer has unilaterally changed the terms of employment so greatly that the original employment contract seems to have been violated.  When she was hired, Susan was never told that her job could involve relocation.  Bob was hired into a managerial position and it was never indicated that his responsibilities and salary could be reduced.

“Constructive dismissal” may also be a possibility in the following scenario:

Jane is a receptionist in a downtown office.  Her supervisor, Sally, is very demanding and impatient.  If Jane makes the slightest error, Sally yells at her, even if there are other people around.  Jane is good at her job, but she gets so nervous when Sally is around that she makes errors.  Jane dislikes conflict and the situation is starting to get to her.  The stress is affecting her health.  She has tried to speak with the Human Resources Department, but they said that they couldn’t do anything.  It seems that Sally has a history of this kind of behaviour.  Rather than confront Sally and stand up for herself, Jane quits.

In each of these cases, I have said that constructive dismissal may be a possibility.  This is an important issue because it affects severance pay.  An employee who quits is not usually entitled to severance pay.  But an employee who is dismissed (or constructively dismissed) may be entitled to severance pay. 

I am not a lawyer and this blog is not intended as legal advice.  Constructive dismissal is a very tricky area.  If you think that you may be in a situation where constructive dismissal is a possibility, please get legal advice before taking any action.  You can contact the Employment Standards Information Centre, or to get advice about your specific situation, contact an employment lawyer. 

If you are an employer, please consult with a lawyer about your obligations under the Employment Standards Act before thinking creatively about how to “encourage” employees to move along.  Fulfilling your obligations under the law might prove costly, but not as expensive as losing in court.

Why to keep talking (even if there is “nothing to discuss”)

I recently read the Ontario Human Rights Commission’s Policy on Competing Human Rights.  One of the things that struck me was that they recommend mediation or some kind of facilitated discussion, even if it is clear from the outset that a complaint may have little merit.  Why would mediation or discussion be a good idea even if no one’s rights are violated, or even when it seems obvious that one party is in right and the other party is in the wrong?

Some reasons why it might be a good idea to keep talking:

Even if it does not result in agreement, a discussion can clear the air.  People involved in a conflict sometimes often have a need to express their point of view.  They want the other side to understand their position, even though they realize that it may not result in any concrete change.  A frank discussion, with or without the help of a mediator, can help them achieve that.

A discussion can be educational.  Sometimes conflicts arise because people simply are not aware of the rules or of others’ rights.  Just as crucially, people may have no idea how others feel, or just how important others might find something that seems trivial.  A discussion can reduce the possibility of future misunderstanding and inadvertent offense.

Even if the rules are clear, the details of compliance might require a discussion.   I used to live near a playground where a posted sign proclaimed a single rule:  “Respect Everyone.”  A lovely sentiment, to be sure, but what does that mean in practice?  By their very nature, rules do not contain the details of their application.  Two people might have very different ideas about what it means to “respect” others.  A discussion of the specific actions that the rules require and forbid can go a long way toward preventing misunderstanding and conflict.

Considering a different perspective can help clarify your own.  Even if you never change your mind about an issue, listening to a different perspective can be useful.  It can remind you of the reasons why you hold your own view.  It can make your own view clearer to you.

It is important to be heard.  Just as it is important to hear another party’s point of view, it is important to have your own position heard.  Even if no one changes their mind, it is important to have one’s own view attended to and acknowledged.  This is impossible without discussion.

Mutual understanding and respectful acknowledgement is not a substitute for agreement, but it may be the next best thing.  The next time you think to yourself that there is “nothing to discuss,” please reconsider.

Fall Newsletter Now Available

The 2012 Fall Newsletter for Principled Dispute Resolution and Consulting is now available on the Newsletter Archive page.  My lead article discusses some recent surprising research on the effects of rude behaviour.  You can also subscribe so you're sure not to miss future issues.  (The sign-up form is on the left - scroll down if necessary.)

Competing Human Rights at the Art Gallery

The Dowse Art Museum, a municipal art gallery in Wellington, New Zealand was recently the subject of a human rights complaint when it announced a “women and children only” exhibit.

The exhibit in question is a short (3 minute) documentary film called “Cinderazahd: Behind the Veil” by Qatari-American filmmaker Sophia al-Maria, and is being shown as part of the wider exhibition, “In Spite of Ourselves:  Approaching Documentary.”  The film, apparently shot on a hand-held camera, shows a group of Qatari women and children getting ready for a wedding.  Because the women are unveiled, al-Maria stipulated that the gallery could show the film only on the condition that men be prohibited from watching it.  Cam McCracken, the gallery’s director, agreed to the stipulation and has not seen the film himself.

The decision to exclude men proved controversial .  (“Dowse prepares for worst ahead of exhibit” read a headline in The Dominion Post.)  The case caught my attention because I recently read Ontario’s Policy on Competing Human Rights which is designed to offer guidance on exactly these sorts of cases.  What is to be done when one individual’s or organization’s rights conflict with – or appear to conflict with – those of another individual or organization?  While all rights are absolute and no rights are more important than others according to Ontario law, the courts have also recognized that rights may have limits in some situations where they substantially interfere with the rights of others.  The policy recommends mediation or some other form of alternative dispute resolution if parties cannot come to accommodation through other means.

New Zealand’s human rights policy also recommends mediation in the case of complaints, and a mediation was held between representatives of the gallery and Mr. Paul Young, the complainant.  The details of the mediation are confidential, so all I am able to report is that no decision was reached on the legality of the ban, and the gallery acknowledged that they should have, “worked harder to ensure accurate information about the work, its cost, content and intent, was available to the public earlier.”  (You can read their statement to the media here.)

While no one likes to be excluded, it must be admitted that being prevented from seeing a 3-minute film is a fairly minor violation of human rights on the scales of global injustice.  And I can’t imagine that the film will start a trend such that men need to fear that their access to art will be compromised.  The majority of artworld “gatekeepers” (critics, curators, gallery owners, collectors, etc.) are men and artists who want to be taken seriously will not make their work inaccessible to them.

Thinking about the controversy in New Zealand prompted me to think about some other ethical issues in the arts.  What is an artist’s responsibility to the people she depicts?  Did al-Maria inform her subjects that their wedding preparations would be the subject of a film that might be shown in an art gallery?  Did they give their permission?  Did she assure them that the film would not be seen by men, and if so, was this really something that she could guarantee?  Is there a tension between an artist offering something as a work and at the same time invoking her moral rights to exclude certain people from viewing it?

One final thought:  Displaying a work in a separate part of a gallery and restricting access to women and children is certainly one way of excluding certain viewers.  Are there less obvious ways in which viewers may be excluded by the artworld?  Do we give certain people the idea that “this is not for you” without saying so out loud?  Is the language used to discuss art exclusionary?  Some galleries (such as the Frick Collection and the Neue Galerie, both in New York City) deny access to children.  While I can see reasons for and against excluding children from art galleries, doing so makes it much more difficult for parents to visit.  High admission prices exclude those with limited disposable income.  None of these may warrant a complaint to the human rights commission, but they may be just as exclusionary as a “women only” exhibit.

“In any other workplace…”

When people learn that I work in conflict resolution, they are often eager to tell me about the conflicts in their workplace.  I hear about bad behaviour, bullying, rudeness, and the description usually builds to the following declaration:

“In any other workplace, this person would have been fired long ago!”

And at this point I have to smile, and suppress the urge to roll my eyes.

I have heard this claim from people in large organizations and small, unionized and non-unionized, industrial and academic.  Many people are under the impression that their workplace is uniquely dysfunctional and that the person they have told me about – whether a supervisor, co-worker, or employee – is distinctively awful.  The unfortunate reality is that bad behaviour in the workplace is widespread, and no matter how often I hear about it, my heart always goes out to those affected.  Workplace strife and conflict take a terrible toll, not only on the financial well-being of organizations, but also on the mental and physical health of everyone who must deal with it.

While the claim that things would be different in “any other workplace” is not literally true, it does point to an underlying fact about workplace conflict.  Although every unhappy workplace (like every unhappy family) may be unhappy in its own way, certain structural factors in organizations make workplace conflict particularly difficult to manage.  Let me just mention two:

First, the offending person is likely to be perceived as providing great value to the organization.  Maybe he or she is the top salesperson, or has some hard-to-replace set of skills, or is well-connected within upper management.  Whatever value this person brings is perceived as making up for or out-weighing the grief that he or she causes.

The key word here is “perceived.”  It is an open question whether the “value” that a conflict-prone employee brings to an organization really out-weighs their overall cost.  If someone took the time to crunch the numbers, they might be surprised at how they work out.  In his book, The No Asshole Rule, Robert Sutton tells the story of a men’s clothing store in which the top salesman was an overbearing jerk and made life miserable for the other employees.  When he was finally let go, the store’s overall sales actually rose.  Although this person was an effective salesman, his incivility and bad behaviour prevented others from succeeding.  Sutton has many similar stories.


Second, there is often a view that, since it is “impossible” to get rid of the conflict-prone person, there is no point in confronting him or her about their actions or in hoping for any kind of behavioural change. 

Is it really “impossible” for an organization to discipline or dismiss a conflict-prone employee?  Only your HR specialist or employment lawyer may know for certain.  As for the hope of behavioural change, I will say only that it will not happen if the employee in question is never confronted about his or her actions.  Conflict-prone employees often lack insight into the effect they have on others.  They may genuinely not realize that their behaviour is unacceptable.  If you are the supervisor of an employee who makes coming to work an ordeal for others and you have not discussed this with him or her, then (sad to say) you are part of the problem.

If a person in a position of power really believes that things would be different “in any other workplace,” then it may be time to ask what is holding your organization back from attempting positive change.

How to Respond to Criticism

How to respond to the co-worker who criticizes your presentation, to your spouse who disapproves of the way you load the dishwasher, or to the random stranger who passes judgement on your parallel parking?

Everyone has been on the receiving end of criticism.  If you’re lucky, the criticism was relevant, and delivered with sensitivity and tact.  Unfortunately this is often not the case. Criticism can be delivered so badly that any value it may have for the recipient is all but impossible to recover.  (See my previous post for some ideas about how to give constructive criticism.)  Yet attending to criticism, no matter how tactless or ill-conceived, is important.  We get better by attending to critical feedback.  One of the biggest differences between novices and experts in a given domain is that while novices pay more attention to positive feedback, experts hone their skills by attending more to negative feedback.*


Much of what I’ve seen written about responding to criticism is not very good.  Recipients of advice are told not to “take it personally.”  But whether or not it is useful to take criticism “personally” depends very much on what kind of criticism we’re talking about.  Certainly, a scientist should not take it “personally” if her methodology is criticized.  And a graphic designer should not take it “personally” if a client rejects one of his designs.  Yet some legitimate criticism is of a personal nature, and one can only learn from it if it is taken “personally.”  A customer service rep who is criticized for having an abrasive manner does in fact need to take the criticism “personally” if he or she wishes to change and be more effective in the job.

The most important thing about responding to any  criticism is to put yourself in the correct mindset so that you can learn from criticism. Think carefully about critical feedback.  Try to separate those aspects of the criticism that may be useful from those that are not. This can be difficult to do.  It might help to discuss the criticism with a trusted friend or mentor – someone who respects you enough to tell you the truth, even if the truth is hard to hear.

Another piece of advice I’ve seen regarding criticism is to “ignore the haters” – with the implication that anyone who offers criticism is a “hater.”  A more helpful suggestion is to consider the source of the criticism. Is it your boss delivering the criticism, a co-worker, your spouse, a stranger?  How seriously to take the criticism and how to respond will depend on the answer to this question.  Is the person criticizing you angry or upset?  This might mean that the criticism is unfair or inappropriate.  But it is impossible to be sure:  True words are sometimes be spoken in anger.  Again, discuss the criticism with someone you trust, or try to have a conversation with your critic when he or she is more calm.

When responding to criticism, even unfair or misplaced criticism, try not to be defensive.  Do not attempt to answer your critic on the spot.  It is much more important to make sure you understand what is being said.  Repeat back your critic’s words.  This will show that you have been listening, and it will also give you time to frame a response.  Ask questions to make sure that you have in fact understood.  As difficult as it is to hear criticism, walking away confused or unsure about what you may have been doing wrong is worse and more damaging in the long run.

Sadly, some of the people who criticize you (while perhaps not “haters”) will have questionable motives, and some may be acting from confused emotions.  But if someone genuinely wants to help you, or is in a role where giving critical feedback is appropriate, then listen, learn what you can, and be grateful.  It isn’t easy for most people to offer negative feedback, and when they do so out of a desire to help you, recognize that they have tried to do you a favour.

* Stacey R. Finkelstein and Ayelet Fishbach, “Tell Me What I Did Wrong:  Experts Seek and Respond to Negative Feedback,” Journal of Consumer Research.  June 2012.

How to Give Constructive Criticism

At the grocery store the other day I saw a great example of how not to criticize someone.  I have no idea what started it, but when I walked by the “Customer Service” desk an angry woman was berating the employee there:  “You don’t have the right personality to work in customer service!” she said.  The employee shrugged and mumbled something to the effect that she was trying her best.  There wasn’t much she could say.  How can you effectively respond to a stranger who criticizes your personality?

The incident made me think about the correct (and incorrect) ways to offer constructive criticism.  What was wrong with the customer’s actions?  She offered criticism when she was angry, in public, about someone’s “personality” (rather than say, about some specific actions), seemingly without any consideration for feelings or the impact that her words might have.

There are better ways to criticize, and a lot has been written on this topic.  I’ll keep this to a few suggestions.

Reflect on why you want to offer criticism.  There are many reasons to offer constructive criticism.  It might be part of your job description to offer critical feedback to others.  You might have a genuine impulse to help a friend who could benefit from the advice.  But the desire to criticize can also have a dark side, and taking a few moments to examine your own motives is a good idea.  Are you angry or upset with the person you are thinking of addressing?  Are your comments intended to be wounding?  Does criticizing others make you feel better about yourself?

Pick the right time and place.  Find a time when both you and the other person are calm and undistracted.  Don’t offer criticism (however well-meaning) to someone who is angry or upset.  Don’t criticize someone in front of others – wait until you can be alone.  (This holds true when criticizing children as well.)

Be transparent about your intentions.  What is the purpose of your criticism?  Is it part of a routine performance review?  Is it a response to a request for feedback?  Do you want to help the other person achieve some goal?  Are you trying to get him or her to change some specific behaviour?  Share the reasons for your criticism with its recipient.  Your remarks should not come “out of the blue.”  Constructive criticism is easier to take if it is put in a larger context.

Be nice.  Focus completely on the other person.  Although some people have had more practice than others at receiving critical feedback, I don’t think that anyone ever looks forward to it.  Be as tactful as you can.  Focus on the other person and stay in the moment.  Attending fully to others is a way of showing respect, and this is especially crucial if your message is likely to be unwelcome.

Criticize actions and behaviour – not character or personality.  Compare:  “You are often late for meetings,” and “You are so selfish that you don’t care if others have to wait for you.”  The first is a criticism of specific behaviour; the second is an attack on character.  Which do you think will make the other person defensive and possibly hostile?  (And remember – it isn’t always possible to read intentions from actions.  I have known several chronically-late people who were disorganized and overwhelmed rather than inconsiderate.)

Keep it positive.  When you give specific advice, make your suggestion positive.  If possible, focus on the actions that the person should do, rather than what he or she should refrain from doing.  For example, say you have single male friend who goes on a lot of first dates …. but not many second dates.  He asks for your advice, and you’re pretty sure that his tendency to speak at great length when given the opportunity is part of the problem.  Rather than telling him to talk less, advise him to listen more.  It is easier to initiate a new habit than it is to monitor and curtail an old one.

Start and end with a compliment.  (Sometimes called, “Hug them in and hug them out.”)  This is especially important if you are giving criticism as part of an official role, say as a manager, coach or teacher.  Find something nice to say about the person you are about to criticize.  Begin by complimenting him or her.  (Again, try to make the compliment about specific actions or behaviour; not about general characteristics.)  Then deliver the criticism as tactfully as you can.  Finally, repeat the compliment (or offer a different one) before ending the encounter.  Make sure that your compliments are sincere.  The other person will recognize it if they are not.

Next post:  How to respond to criticism.

Bill 168: A Recent Arbitration Decision

Bill 168 has been law now for just over two years, and we haven’t yet seen many decisions interpreting and applying the legislation.  A recent ruling by arbitrator David Starkman is of interest to labour and employment lawyers and HR professionals because it provides some guidance about Bill 168’s scope and application.  Below I briefly summarize and discuss this very interesting case.

Background:  In 2010 the Peterborough Regional Health Centre, faced with the need to reduce costs, took a decision to replace some of the Registered Nurses (RNs) in the Hemodialysis Unit with Registered Practical Nurses (RPNs).  RPNs have less education than RNs, earn less money, and have narrower scope of practice.  The Health Centre Management planned a 6-week orientation period for the RPNs when they would be mentored by the RNs.  However many of the RNs were unhappy about the introduction of RPNs, which would result in the layoff of RNs, and which they feared would compromise patient care.  Several RNs refused to volunteer to mentor their new colleagues.

Incidentally (or maybe, not so incidentally), the RNs’ concerns were later shown to be valid.  An Independent Assessment Committee found that the hospital failed to plan adequately for the staffing changes, and failed to evaluate whether the changes affected patient care.

Allegations:  Although there seemed to be a great deal of tension and bad feelings in the unit when the RPNs started, one of the RNs in particular was particularly hostile.  (I will call her Sally.)  She engaged in non-verbal behaviour designed to make the RPNs uncomfortable, including rolling her eyes at them, staring and flapping her hands as they walked by her work area, refusing to make eye contact, and on one occasion, walking directly toward an RPN and making contact with her shoulder.  Another RPN reported that, while she was washing her hands at a sink, Sally came behind her, tried to pull her hair in to a ponytail, and made remarks to the effect that, patients do not want hair in the way.

The Employer’s Response:  Reading the testimony presented to the arbitrator, there were clearly many problems on the unit.  Several of the RPNs quit and spoke of an atmosphere of bullying.  Morale was very low.  After a number of complaints abut Sally, the employer met with her to discuss their concerns.  Sally did not acknowledge any wrongdoing.  When her inappropriate behaviour continued, Sally was put on paid leave while the employer undertook an investigation.  The result of the investigation was that Sally was found to have engaged in a pattern of intimidation and harassment and was terminated for just cause.  Sally grieved both the decision to place her on leave and the firing.

The Arbitrator’s Decision:  Mr. Starkman found that the employer had just cause to discipline Sally and to put her on paid leave pending an investigation.  However, they did not have just cause to terminate her employment.  Although the employer had discussed their concerns with Sally she was never formally disciplined.  While Starkman acknowledged that Sally’s conduct was very subtle and therefore difficult to evaluate and discipline, he held that the principle of progressive discipline nonetheless applied, and that termination was too severe a penalty.  However, he also found that Sally’s conduct, her refusal to acknowledge that her behaviour was inappropriate, and her failure to apologize, meant that she should not be returned to the unit.  Instead, he directed that Sally be paid damages in lieu of reinstatement.

(Just an aside – some of you may be wondering, “Can Sally really not have understood that her behaviour was inappropriate?  I’m afraid that this is entirely possible.  For one thing, her co-workers were very reluctant to confront her about her actions.  And trying to understand it from Sally’s perspective, she likely saw herself as a strong advocate for patient care, not as someone who made the workplace a nightmare for others!)

Lessons for Employees:  If you disagree with management’s decisions, don’t take it out on others.  Even if you have a valid point, the organization’s code of conduct still applies.  And if management raises concerns about your behaviour, take it seriously.  If you are on the receiving end of inappropriate behaviour, speak up – either raise a concern directly with the offending party or if that is not possible, speak to management or HR.

Lessons for Employers:  Several of the people who spoke with the arbitrator reported that Sally’s behaviour in the workplace had been a source of tension for a long time.  When employers fail to deal directly with inappropriate behaviour, it rarely corrects itself on its own.  Inaction and delay result in greater costs down the line.  (See my post on the costs of workplace strife for more information.)

Lessons for Everyone:  Eye-rolling?  Flapping one’s hands?  Is this really intimidation and harassment, such that discipline is appropriate?  The answer is yes.  It is clear from the testimony that the RPNs felt bullied, harassed, and unsupported in their work.  As Mr. Starkman wrote in his decision, Sally’s actions were “extremely subtle, and in that sense were extremely insidious. Bullying and harassment can consist of a single incident, or a series of repeated incidents both of which can have great impact upon the victim of the behaviour.”

Note:  I offer investigations of complaints related to workplace harassment, bullying, sexual harassment, and other matters covered under bill 168.  See my website for more information, or contact me directly to discuss the situation in your workplace.

Drug Companies & Discontinued Products

A sign that one is getting older is that retailers start to discontinue your favourite products.  The Gap no longer carries the most flattering style of jeans; the LCBO stops importing the French rosé you prefer; and the hair conditioner you once swore by is now nowhere to be found.  It can be frustrating when a familiar product is discontinued for seemingly little reason other than changing tastes.  But when the product in question is a drug that one relies upon to control a serious medical condition, “frustrating” takes on a new dimension.

According to a recent article in the Globe and Mail, more than 1,000 Canadians rely on disopyramide (trade names Norpace and Rhythmodan) to control the effects of hypertrophic cardiomyopathy.  In this condition, the muscles of the heart walls become abnormally thick, causing chest pain, shortness of breath and sometimes fainting.  About half of the patients who try the inexpensive drug find it to be so effective that they can delay or even forgo open-heart surgery.  Disopyramide is made by Sanofi Canada, and this past February the company discontinued the drug, claiming weakened demand.  Patients who rely on disopyramide are scrambling to find supplies and at least one patient quoted in the Globe article, unable to track down a reliable supply, is booked for surgery next month.

Sanofi has promised to resume production, but they haven’t said when this will happen.  They have also committed to importing the drug from Europe and offering it for free (under Health Canada’s special access program) until production starts up again.

The Globe and Mail article quotes two cardiologists (Dr. Harry Rakowski at Toronto General and Dr. Lee Benson at the Hospital for Sick Children) who both expressed frustration with Health Canada’s current regulations.  Drug companies do not require any approval to discontinue their products, even when there is no alternative drug available.  And while companies are obligated to give 30 days notice before discontinuing a drug, they are not required to provide any rationale for their decisions.

The website of Sanofi Canada describes the company’s commitment to corporate social responsibility.  (For more on this vexed but possibly useful concept, see “Two Problems with CSR” by Chris MacDonald over at “The Business Ethics Blog.”)  And Sanofi takes ethical issues seriously enough to have a vice-president of evidence, value, and access.

Businesses need the freedom to discontinue products that are no longer profitable.  However, if a financially healthy company makes a decision to discontinue a product, and that decision has serious social ramifications, then considerations besides corporate autonomy come into play.  While Sanofi seems prepared to do the right thing and resume production of disopyramide, is it right that patients who depend on the drug have to rely on the company’s willingness to consider their interests?  Should Health Canada have some role in protecting patient access to vital but perhaps unprofitable drugs?  A month’s supply of disopyramide costs about $30.  What would be the comparable cost for even one patient to have open-heart surgery instead?

“Just War” and Targeted Assassinations (Part Two)

In my previous post I wrote about the U.S. program of targeted assassinations against terrorists and the “just war” tradition.  I focused on jus ad bellum.  These are the conditions that must be met before a country has a moral case to declare war.  In this post, I’ll discuss jus in bello – moral restraints on the way war is fought.

First, a war must not be fought in such a way that it is a greater evil than the evil it is intended to remedy.  (Remember that a “just war” is one that is fought in order to promote good or avoid evil.)  So the harm inflicted by military operations must be both necessary and proportionate to the ends sought.  There is a moral difference between targeting a daycare centre and targeting a munitions factory.  It would be difficult to make a case that demolishing a daycare centre was necessary for victory in war, while demolishing a munitions factory might well help bring a quicker end to an armed conflict.

Second, non-combatants should not be intentionally attacked.

One complication arises right away:  How to draw the line between “combatant” and “non-combatant”?  According to a New York Times article about the U.S. targeted assassination program, when calculating civilian deaths caused by the program, all military-age males in a strike zone are counted as “combatants.” The reasoning is that, “people in an area of known terrorist activity, or found with a top Qaeda operative, are probably up to no good.”

There is a further complication:  If  non-combatants are harmed as a foreseeable but unavoidable “side effect” of some proportionate and necessary military action, then, according to the “just war” tradition, the harm is morally permissible.  Philosophers in the “just war” tradition call this the “doctrine of double effect.”

For example, a leader decides that bombing a munitions factory is both a necessary and proportionate step towards military victory.  However the munitions factory is next to a daycare centre, and there is a risk that the bombs will strike the daycare centre as well as (or instead of) the factory.  The leader does not intend to harm anyone at the daycare centre, yet he forsees that this might be a possibility.  Although the leader must try to minimize the risk of harm to non-combatants (say, by bombing the factory at night when the daycare centre is likely to be empty), he is not morally obligated to spare the factory because of the risk to the daycare centre.

The “doctrine of double effect” is controversial.  Philosophers have argued whether the distinction between “intended” and “unintended, but foreseeable” actions really makes much sense.

The “just war” tradition does not provide a “formula” for getting clear answers on the morality of armed conflict.  It is best approached as a set of considerations for thinking through the morality of particular decisions and strategies.  Again, I leave it to readers to decide whether the U.S. program of targeted assassinations meets the criteria for “just war,” and even whether the criteria are themselves morally defensible.

“Just War” and Targeted Assassinations (Part One)

I just read a fascinating article in the New York Times:  Secret ‘Kill List’ Proves a Test of Obama’s Principles and Will.  The article recounts how U.S. President Obama has placed himself at the top of a secret process to designate terrorists for kill or capture.  The President approves of every name on the “kill list” and is said to be determined to limit the extent of the secret program, and to make sure that the fight against Al Qaeda is aligned with American values.  That such a program involves a number of difficult legal and moral issues goes without saying.  For example, the killings are often carried out by drone strikes and as a result innocent bystanders have also been killed.

The Times article refers to Obama’s reliance on “the ‘just war’ theories of Christian philosophers” and it occurred to me that perhaps not everyone is familiar with these doctrines.  I thought it might be useful to say something here about the “just war” tradition, since it remains one of the bases of international law.

With the exception of pacifist cultures that eschew violence, every culture has ways of thinking about the morality of war and observes some conception of “warrior’s honour.”  This is the idea that, even in war, some things must not be done.  The “just war” doctrine sums up the ways in which western Christian tradition has thought about the moral issues arising from war.  (Originally, these restrictions concerned only what Christians could do to other Christians.  Non-Christians were given protection a few centuries later.)  The “just war” tradition stands in contrast to the “political realist” point of view, according to which war is an instrument of foreign policy and its use is restrained only by prudence, not by morality.  The concept of “just war” is also different from what we might call the doctrine of “holy war”- the idea that attacking others is justified in the name of spreading some “faith,” whether that is a religious faith or a political ideology.

The “just war” tradition divides the moral questions about war into two groups:  Jus ad bellum, having to do with the reasons for going to war, and jus in bello, concerning conduct during war.  The targeted assassination program brings up both kinds of questions.  I’ll discuss jus ad bellum in this post and jus in bello in my next post.

Thomas Aquinas (1225-1274) formulated three requirements for the declaration of a just war.  Each is necessary, and taken together they constitute a justification for going to war.

1. Those who command the war must have the lawful authority to do so.  (There cannot be “private” wars.)
    
2. The war must have a just cause.  The enemy must deserve to have war waged upon it because of some wrong it has inflicted.
    
3. Those waging war must intend to promote good or avoid evil.  (War must not be fought for the sake of vengeance or self-interest.)

Does the U.S. targeted assassinated program meet these requirements?  I’ll leave it to my readers to think about that.

Next time:  Moral restraints on conduct during war.

Is it ever “too late” for mediation?

I was speaking with a potential client the other day.  He assured me that, as a reasonable person, he understood the many benefits of mediation.  But the conflict had gone on for so long, he said, that he feared it was “too late” for mediation.

His remark made me pause.  As mediators, we are eternally hopeful about the possibility of resolution.  (It would be hard to do this kind of work if we were not.)  Is there any point at which it is just “too late” for a negotiated agreement?

After thinking about this for a while, I realized that “is it too late?” is the wrong question.  Indeed, mediation may fail if it is attempted too soon as too late.  If a conflict is recent the parties may not yet be motivated enough to settle it.  In a long-standing dispute, the parties usually know exactly what the conflict has cost them and they may be eager to resolve things and move on.

Rather than ask when is it “too late” for mediation then, the right question to consider is, “under what conditions is mediation unlikely to be effective?”  I can think of at least two scenarios when reaching a mediated agreement is probably going to be particularly challenging.

First, mediation will be difficult if one (or both) of the parties has a strong psychological need for vindication.  Sometimes parties in a dispute feel it is important to be “right.”  (Of course, this is often combined with a desire to have the other party judged “wrong.”)  They want an authority figure – whether that is a judge, a member of the clergy, or the head of their family – to vindicate their version of events and proclaim their position the more compelling.

Second, mediation will be difficult if either (or both) parties disavow any responsibility for the conflict.  A party may see himself as a helpless victim who has done nothing to initiate or prolong the conflict.  If this is indeed correct – if we have a case of one-sided aggression rather than mutual hostility – then mediation is likely inappropriate.  The victimized party would be better off pursuing a rights-based approach.  While such one-sided conflicts exist, it is much more common that a conflict between two or more competent adults has been fed by contributions from both sides.  This does not mean, of course, that the contributions are necessarily equal.  Avoiding a conflict can prolong it, just as surely as can angry words.

Does the presence of either of these conditions mean that a mediated agreement is impossible?  I don’t think so.  A good mediator should be able to help parties reevaluate their priorities and question long-standing assumptions.  A mediator might help a party realize that an apology might be just as valuable (and more conducive to healing) than vindication by a third party.  A mediator can help both parties understand the origins of their conflict and accept shared responsibility.  These are just some of the ways in which mediation (and even good-hearted attempts at mediation) can empower parties and achieve more than the resolution of a conflict.

Cases that should have been Mediated: (3) The Sisters Upstairs and the New Hardwood Floors

Every now and then I hear about a conflict that wasn’t mediated but should have been.  Mediation would have saved the participants time, money and aggravation.  In this case, you do not even have to accept my judgement that the conflict should have been mediated.  Three Lord Justices of the England and Wales Court of Appeal stated that the dispute could have been resolved thorough mediation, without recourse to the legal system, for a fraction of the £140,134 (roughly $224,400 Cdn) that the disputants eventually spent.

The setting is “Eaton Mansions,” a tony block of flats in London, England.  The suit was brought by Mr. and Mrs. Faidi, who own and occupied Flat 6.  Sometime before 2006, the defendant, Elliot Corporation, acquired the lease for Flat 8, directly above the Faidis.  The new owners applied for and were given permission to carry out renovations, including removing the radiators, tearing up the wall-to-wall carpeting, putting a new radiant heating system in the floor, and installing new hardwood flooring.  They went through all of the proper procedures and got permission before doing the renovations.  In August 2010 the flat was leased to a couple with three daughters, aged 14, 12, and 5.

Sometime after the family moved in upstairs the Faidis brought a suit against the Elliot Corporation, charging that the day-to-day activities of their new neighbours caused noise and disturbed them.  They would be spared this disturbance, the claim argued, if the floors were covered by wall-to-wall carpets.  Indeed, each lease specifies that the floors (with the exception of the kitchen and bathroom) should be covered with carpet and underlay.  The defendant argued that when the renovation plans were approved the regulation about wall-to-wall carpeting became moot.  What would be the point of installing new hardwood floors, only to have them obscured by carpets?  Besides, the new heating system would not work effectively if the floors were carpeted.

Judge Freeland, who heard the original case, dismissed the Faidis’ claim.  He relied on expert testimony that the noise insulation installed when the new floors were constructed exceeded the minimum required by the building code.  The judge even went to the trouble of visiting Eaton Mansions to see the floor for himself.  The three judges who heard the appeal (Lord Justices Ward, Lloyd, and Jackson) concurred, finding that it would be “futile and absurd” to go to the expense of laying hardwood floors if they were destined to be covered up by carpets.  (You can read the full text of their judgment here.)

Litigation is adversarial by nature; outcomes are usually “all or nothing.”  Robert Pearce, the lawyer who presented the arguments for the Faidis’ appeal, proposed that a “moderate” amount of carpeting in flat 8 (say, in high traffic areas) would have absorbed some of the noise yet still allowed the residents to enjoy their new floors and benefit from the heating system.  The justices agreed that this would have been a sensible solution; however it was not one that the courts could impose.  The judges stressed that this outcome (strategically placed carpets) could easily have been achieved through mediation.  Justice Ward said it best:  “Not all neighbours are from hell. They may simply occupy the land of bigotry. There may be no escape from hell but the boundaries of bigotry can with tact be changed by the cutting edge of reasonableness skillfully applied by a trained mediator. Give and take is often better than all or nothing.”

Ironically, the Faidis no longer live in flat 6; their son lives there now.  And the family upstairs has also moved on.

Reproduced above:  The Daughters of Edward Darley Boit by John Singer Sargent (1882), currently in the Museum of Fine Arts, Boston.  Image from Wikimedia Commons.

Apprehension of Bias: When Should a Mediator Step Down?

I have been closely following the dispute between the British Columbia Teachers’ Federation (BCTF) and the BC provincial government over the appointment of Dr. Charles Jago as mediator. The teachers’ union and the government have been in disagreement for several months over wages and working conditions. The BCTF recently asked the B.C. Labour Relations Board to remove Dr. Jago because of an apprehension of bias.

One of the most important features of the mediation process is the mediator’s independence. Mediators are neutral parties, and not more or less sympathetic to any of the parties in a dispute. The ADR Institute of Canada’s “Model Code of Conduct for Mediators” is very clear on this point. Mediators are not supposed to have an interest in the outcome of the mediation process, or even in whether the parties reach a settlement at all. This is because mediation is meant to be a voluntary process in which the parties are self-determined. The success of mediation depends on the fact that people are more likely to respect agreements that they have entered into freely, and that they have had a hand in crafting.

The teachers charge that Dr. Jago’s links to the provincial government make it impossible for him to serve as an impartial mediator. According to the Globe and Mail, Dr. Jago told the union that he had agreed to serve as mediator in early February – before the BCTF was asked to put forth a list of acceptable mediators. (The union suggested two judges, neither of whom was available.) Dr. Jago also admitted to have seen and commented on the controversial new education bill before it was tabled in the legislature. These factors, coupled with Dr. Jago’s apparent lack of mediation experience, led the teachers’ union to suspect that the process as it has been structured is fundamentally flawed.

Dr. Jago, for his part, has refused to step down. As he wrote in a letter to the BCTF, “I assure you that I am impartial. From the outset, I have been clear that I will be fair and balanced in mediating this dispute.”

Dr. Jago’s unfortunate echo of the “Fox News” motto notwithstanding, he fails to show any realization that assurances of impartiality are beside the point. He may believe himself to be unbiased; he may in fact be completely impartial. But unless both parties in the dispute have confidence in his impartiality, it will be very difficult for him to succeed in mediating the dispute.

The Labour Relations Board has not yet ruled on the teachers’ request. (Indeed, it is not even clear that they have the jurisdiction to rule on it.) If the BC government is sincere in wanting a negotiated settlement to the dispute, they might do well to re-think the process of appointing a mediator. One possible strategy would be devise a list of three or more acceptable mediators and then invite the union to choose a mediator from that list.

Dysfunctional Condo Boards: (Part Two) Strategies for Getting Your Board Un-Stuck

In my previous post, I discussed ways of preventing condo board conflict.  This post discusses some typical problems that condo boards face, and offers some solutions.

The board is divided into two opposing cliques, with differing positions on every issue.  Discussions get personal really quickly.  We insult each other rather than discuss the problems in the building.  There is a real lack of civility, and nothing gets done.

There is nothing wrong with board members holding different points of view.  What is crucial, is how you discuss and debate the options before you.  Even if you have not already agreed to keep things respectful, it is not too late to discuss how you wish to interact as a group and to commit to some ground rules.

When any disagreements arise, focus on problems, not on personalities.  Keep the discussion related to the issues before you, and not on the personal qualities of the people involved. Your best strategy here is curiosity. Ask questions, and try to let go of assumptions you may have already formed.  Try to understand why others hold the views that they do. Is the other party drawing on different sources of information?  Do you have more fundamental disagreements, such as diverging opinions about the staff and the manager, or different views on what is most important in the building?  Once these disagreements are on out in the open, it may be easier to discuss them effectively and eventually to move beyond them.

Given that groups of people will always have points of disagreement, how can you disagree in a respectful, productive manner?  First, raise concerns about specific issues, not about the other person’s character or world view.  Second, speak from your own perspective.  Rather than say, “You are too stupid and short-sighted to understand the value of preventative maintenance;” try, “I am concerned that if we do not address this issue before the winter, we will have worse problems by the spring.”

Remember, you do not have to be friends with your fellow board members, just as you do not have to be friends with your co-workers.  All you have to do is co-operate on a limited number of tasks.

The board members don’t trust one another.

We are used to thinking of “trust” as a personal quality.  We feel that some people are worthy of our trust, while others are not.  But this is only one way to think about trust.  Another way of approaching trust is to see it embedded in rules, procedures and processes.  When you drive down a busy street, what makes you “trust” that the other drivers will stay in their lanes, stop for red lights, and (for the most part) drive with regard for the safety of others?  The other drivers are strangers, so it cannot be that you have personal feelings of trust towards them.  Instead, you have to put your trust in traffic laws and in the fact that the laws are generally enforced.

The rules and charters of your condo corporation are similar to the rules of the road.  Make sure that your policies, including your “Conflict of Interest” policy, are clearly written, and that all of the board members understand them.  Make transparency the norm, so that documents such as receipts, bids, and contracts are available to all board members.  There will always be specific individuals whom you may not trust, and others who may not trust you.  If everyone puts their trust in procedures and policies, you should be able to work together effectively even if you lack confidence in one another.

What to do if one or more board members consistently flout or disregard the corporation’s policies and resist transparency?  Condo boards sometimes control a great deal of money and, unfortunately, fraud may be a possibility.  Consider consulting with the condominium lawyer.

The board members get along well.  Meetings are very calm.  There are no insults or harsh words.  But there is also no lively discussion; no one asks questions or raises concerns.  In fact, no one says much of anything….

Your board may be well-mannered, but is it truly efficient and effective?  A board that seems harmonious and conflict-free might be as dysfunctional as the board that screams at one another.  The most effective teams are not necessarily always in agreement.  They may have intense discussions and disagree on any number of issues.  The difference is that they focus on problems, and not on personal differences.

Keep in mind that boards are accountable to condo owners and are supposed to act in the owners’ best interests.  Sometimes that might mean disagreeing with your fellow board members, raising concerns, and weighing the pros and cons of a number of different options.  Remember that questioning the advice of the condo manager or board president is not a sign of disrespect or disloyalty.  As long as you raise matters respectfully and refrain from personal attacks, bringing up legitimate concerns is part of being an effective and responsible board member.

The president dominates the board.  No one stands up to him, and some board members are even afraid of him.

It would be nice to think that we were through with bullies when we left school playgrounds.  Sadly, bullies can be any age and they are found in all walks of life.  Bullies rely on others being too afraid or too craven to stand up for themselves and for others.  If there is a bully on your board, you may have to tread very cautiously.  When you raise concerns, be extra-careful not to let the discussion get personal.  If someone gets personal with you, guide the conversation back to the issues under discussion.

Confronting a bully is hard, and you will have to decide yourself whether confrontation is the best strategy in your situation. We often focus on the costs and risks of acting, yet fail to consider the costs and risks of not acting.  Avoiding a problem almost always contributes to its longevity.  The longer you let others get away with bad behaviour, the harder it will be to call them on it in the end.

Finally, if you and your fellow board members are in conflict, think about what you might be doing yourself to contribute to the on-going poor dynamic.  Have you formed assumptions about the other members?  Do you fail to listen carefully, because you feel that you already know what they will say?  Are you so convinced that your own views are correct that you refuse even to hear about other options?  If you answered “yes” to any of these questions, you have taken the first step in realizing that conflict is two-sided, and perhaps the first step in turning around a dysfunctional board.

If the challenges seem too great for the board to turn things around on their own, consider bringing in a mediator.  Mediators are neutral third parties who are trained in conflict analysis and resolution.   They can help facilitate and manage discussion so that all parties are heard, tensions are diffused, and the board can get back to making good decisions.

Note:  I formulated these ideas with the help of Dr. Pamela Hudak, and a slightly different version of this article appeared in the Spring 2012 issue of The Condo Voice, a publication of the Canadian Condominium Institute.  Pam and I work together as Principled Dispute Resolution and Consulting.  Contact us if you’d like to learn more about getting your dysfunctional condo board working again.

Dysfunctional Condo Boards: (Part One) Preventing Harmful Conflict

The following are excerpts from letters sent to condoinformation.ca an independent website set up to help condo owners:

I was elected to the Board and was the first new member that this Board had had in 8 years. They never accepted me, never considered what I had to say, had meetings without me and I was totally isolated…

Myself and another Board member don't agree with what the others and especially the president are deciding because they're just throwing money at problems that could be solved with better communication and a bit of leg work on the part of our staff. But the two of us just vote with them, in my case because I am afraid of reprisals….

Our Board of Directors resembles mafia like boards controlled by a godfather president. The president of my condo has controlled the board for 20 years [… ] As well, he has installed the soviet style politburo cronies who don’t ask questions and only raise their hands when asked.

Does any of this sound familiar? Of the 1, 144 letters sent to the site, more than half discussed problems with condo boards.

When condo board members are caught in conflict the consequences can be far-reaching. Decisions are postponed and the property deteriorates as problems are not addressed. Owners wonder what’s going on and become frustrated with the lack of communication from the board. Meetings may be overly long and frustrating, causing stress for members and their families.

Why do some condo boards have engaged, hardworking members who protect the best interests of the owners, while others are mired in conflict and dysfunction? If you are a condo board member, what can you do to make sure that you and your fellow members can work together effectively?

Whether you are on a newly formed board, or your board has been together for some time, there are steps you can take to make sure that you work together effectively and respectfully.

Spend some time getting to know one another. You don’t have to become best friends with your fellow board members; you don’t necessarily even have to like them. But knowing a little bit about their backgrounds and about who they are as people can go a long way to insure that your interactions stay respectful. Knowing that Sally spends her weekends looking after her elderly parents, or that Jim did a tour of duty in Afghanistan, might help keep things in perspective when differences of opinion arise.

Knowledge is power. Familiarize yourself with the condo act, and with the rules and procedures of your own condo. Understand your rights as an owner, and your responsibilities as a board member.

Decide on ground rules for your interactions. Resentment can arise when people have different expectations for how meetings will be run. Taking a little time to work things out in advance can save a lot of time and effort down the road. Will all members agree to do their homework and be prepared for meetings? How long will discussions go on before a vote is called? When decisions are reached, will the board members support one another, even if they don’t agree with the outcome? Should members agree to keep their discussions confidential, and to avoid negative gossip about internal group dynamics? Committing in advance to respectful conduct helps to ensure that meetings stay focused and productive.

Next time: Some typical problems, and how to move beyond them.

Note:  I formulated these ideas with the help of Dr. Pamela Hudak, and a slightly different version of this article appeared in the Spring 2012 issue of The Condo Voice, a publication of the Canadian Condominium Institute.  Pam and I work together as Principled Dispute Resolution and Consulting.  Contact us if you’d like to learn more about getting your dysfunctional condo board working again. 

Conflicts that Should have been Mediated: (2) The Elusive Parrot

Photo credit:  SantaRosa OLD SKOOL (via flickr)

Every now and then I hear about a conflict that wasn’t mediated but should have been.  Mediation would have saved the participants time, money and aggravation.

What is the cost of breaking a rule?  If you live in a condo in Ontario the cost can be very high indeed.  One of the provisions of Ontario’s Condominium Act is that condo owners who fight compliance applications can be obliged to pay the condominium board’s legal costs, as well as management fees and surveillance costs.  An owner who doesn’t pay up might find a lien placed on his unit.  The reason for this extraordinary provision (which is not enjoyed by individuals or corporations) is to discourage owners from pursuing frivolous lawsuits against boards.  After all, the legal costs for a condo board are shared by all owners, and it would not be fair for the corporation as a whole to suffer because of one litigious owner.  Condo owners who go to court over compliance issues have to be pretty confident that they have a strong case.

(Please note that I am not a lawyer and the above paragraph is not intended to be taken as legal advice!  If you are a condo owner in dispute with a board, please consult a lawyer, preferably one with experience in this area.)

The cost of breaking the “no pets” rule for their condo building almost cost Michael and Margarita Bazilinsky more than $40,000.  At some point, late in 2010, judging by squawks heard in the corridor, a parrot took up residence in the Bazilinskys’ unit.  Mr. Bazilinksy claims that he was merely parrot-sitting for a friend, and he supplied affidavits from three independent parties (a personal trainer, a real estate agent and an electrician) affirming that there was no parrot in the unit.  The board inspected his unit in early 2011 and found no evidence of a parrot.  They were convinced, however, that Bazilinskys had smuggled the parrot out of the unit for the day, and pointed to what they deemed “suspicious” footage on a surveillance camera of the Bazilinskys taking a covered box out of their residence.  In August 2011 Mr. Bazilinsky consented to an order to remove the elusive parrot, and to pay the board’s court costs of $3000.

The board then exercised their right under the Condominium Act to recover “actual additional costs” related to their eviction of the parrot.  They placed a lien on the Bazilinskys’ unit for $41,599.  Last month a judge ruled that this amount was excessive, and ordered Mr. Bazilinsky instead to pay $6500 of the board’s legal fees, less the $5000 he had to spent in court costs to bring the recent motion.

I learned about this case from an article in the Globe and Mail by Ian Merringer, who mentions that both parties claim that the other party had waived opportunities for mediation.  The Condominium Act includes a mediation process intended to resolve disputes before legal costs become excessive for either party.  From the brief description and the outline of facts presented in the article, it would seem that both parties had something to gain from an attempt to mediate.  Even if the Bazilinskys had eventually to find another home for the parrot, a mediated agreement to that effect would have cost significantly less than the legal costs they eventually incurred.  Mediation would have saved money and probably also time for the board.  And let’s not forget that the Bazilinskys and the board members are neighbours who are likely to see one another in the corridors and other public areas of the building.  I can’t imagine that their interactions now are anything but tense.  While they might never have been friends in the first place, listening to each other and working towards a mediated agreement might at least have given them the dignity of mutual respect.





Read about another Conflict that Should have been Mediated (curiously, also involving an animal.)

Negotiations and Trust

Mediators typically hope that the negotiations they facilitate will be “win-win.”  This means that each party, while not perhaps getting everything they want, will get something of value or importance – something that they would not necessarily have gained through a different kind of dispute resolution process.  Mediators are encouraged to think broadly and help parties create value.  To use a robust cliché, we try to help the parties think about how to make the pie bigger before we help them portion it out.

So I was saddened to read (in the February 2, 2012 issue of The New Yorker) of negotiations that could be described only as “lose-lose,” with the parties ending up worse off than they were before.  Ian Frazier’s article, “Out of the Bronx:  Private equity and the cookie factory” tells the story of what happened when Brynwood Partners bought the Stella D’oro cookie factory.  A quick summary:  The new owners announced that they would reduce salaries and benefits.  Workers went on strike.  Eleven months later, Brynwood partners was ordered to reinstate the strikers.  They complied, but soon after sold the factory to another company which closed it down and moved production to Ohio.  The strikers lost their jobs; Brynwood Partners reports losing “upward of seven or eight million dollars”; and the community lost the benefits that come with hosting a profitable business (not to mention, a nearby reliable source of yummy cookies).

Frazier’s article does not say much about the negotiation process between workers and the new owners, and I do not know whether mediators were involved, and if so, what style of mediation they favoured.  But one detail from his account stood out:  The strikers distrusted the new owners and did not believe that they were telling the truth about the company’s financial situation.  And without an accurate idea of the company’s profitability, they had no way to judge if the salaries they were offered were reasonable or exploitative.  (The merchandise mart that took over the factory building will pay lower wages than Brynwood had proposed in the rejected contract.)

Lack of mutual trust is often a factor by the time parties come to mediation.  How can mediators get parties to trust one another?  The answer may surprise you:  They cannot and should not try.  Personal trust has to be earned over time.  Mistrust can be a protective response, and people sometimes have very good reasons for not trusting one another.  A mediator risks losing credibility if she encourages people who are mistrustful of one another to ignore these feelings.

But thinking of “trust” as a personal attribute is only one way to think about it. There will always be specific individuals whom you may not trust, and others who may not trust you.  In many disputes, trust can be “out-sourced.”  That is, both parties can agree to put their confidence in a neutral evaluator.  For example, in a strike situation where parties have different views of the organization’s financial prospects, a mediator might suggest bringing in an independent accountant or valuation expert.  Family members whose disagreements over the value of an estate are complicated by personal mistrust might agree to seek out several assessments and work on the basis of their average.
When people mistrust one another – and even when that mistrust is entirely appropriate – they can often continue to work together and negotiate effectively. When disagreement over some factual matter is driving a dispute, parties who can out-source trust might be able to come to a “win-win” agreement after all.

Is Your Workplace “Flourishing”?

There are a number of different words that could be used to describe a happy, productive workplace.  I chose “flourishing” because I want to emphasize the links between well-adjusted employees, dynamic teams, and organizational success.  (And yes, if you know about my philosophy background, you will probably have picked up on the nod to Aristotle!)

Flourishing workplaces share a number of features, whether the work environment is industrial or white-collar, academic or professional, generation-Y casual or established and staid.

These are some of the differences between flourishing and non-flourishing (withering?) workplaces:

In a flourishing workplace people feel free to speak their minds.  They share reservations about plans and projects.  They ask hard questions without fear of reprisal.  In a non-flourishing workplace, people feel they have to “tiptoe” around others and they keep their concerns about workplace issues to themselves.  The whole organization is weaker as a result.

In a flourishing workplace meetings are lively.  Everyone is engaged.  Employees understand that if they speak up, their concerns will be acknowledged, even if decisions do not always go their way. In a non-flourishing workplace, meetings are painful.  They may be boring, with “surface harmony” masking a lack of engagement.  They may be acrimonious and hostile, indicating a lack of mutual respect.  Or meetings may seem continually to cover the same ground, because a consensus about basic issues has never been achieved.

In a flourishing workplace “water-cooler talk” is social.  Employees do not engage in negative gossip about one another or about the organization.  When casual conversation is work-related, it is constructive and in a spirit of problem-solving.  In a non-flourishing workplace, casual conversation is fueled by rumours, back-stabbing, and fear of possible change.

In a flourishing workplace people deal with one another (and with other divisions) directly.  If a conflict arises, people try to solve it face-to-face rather than by e-mail or by phone.  (I’ve written previously about the dangers of email communication.)  They understand how to raise concerns in a respectful manner.  In a non-flourishing workplace, employees may turn to elaborate back-channel strategies rather than confront one another directly, wasting effort and time that could be spent more productively.



Most important of all, in a flourishing workplace employees are engaged by their work and motivated to do their best.  They feel that what they are doing is important and that their contribution matters.  In a non-flourishing workplace, morale is low.  Employees do not feel connected to one another or to the work that they do.  This may be evident in higher-than-average rates of sick leave, unexplained absenteeism or low employee retention rates.

Which better describes your workplace, flourishing or non-flourishing?

Note:  I formulated these ideas with the help of Dr. Pamela Hudak.  Pam and I work together as Principled Dispute Resolution and Consulting.  Contact us if you’d like to learn more about how to make your workplace flourish. 

Turning Around a Team (in the real world)

Last week Forbes published a widely read article (over 15, 000 views) called “Ten Ways to Turnaround a Dysfunctional Team” by Eric Jackson.  Much of the piece was solid, if unspectacular advice, such as, “Don’t have too many meetings,” “Hold people accountable,” and “Measure progress.”  Not much to argue with there.  However Mr. Jackson’s first two recommendations  - “Get rid of non-performers immediately” and (in so many words) “Fill the vacant roles with the best people possible” – merit some discussion.

“Get rid of non-performers immediately.”  Sometime hard decisions have to be made and individuals have to be let go for the sake of the company as a whole.  Yet it is rarely that simple.  There are many reasons why it might be nearly impossible (or spectacularly unwise) to “get rid” of a particular person.  Different jurisdictions and different workplace environments (unionized or not) have different rules and conventions around letting people go.  There are other things to think about as well.  What if you are working in a family business and the “non-performer” is the boss’s sister – or your own sister?  What if the person you have identified as a problem is an old fraternity buddy of someone higher up in the hierarchy?

Mr. Jackson writes that you will engender goodwill among the others if you get rid of the “cancerous” members of the team.  But there is a difference between a “non-performer” and a “cancerous” or difficult person who brings down everyone around them.  If the non-performer is well-liked, getting rid of him or her is bound to demoralize the others.  Forget about any “goodwill.”  On the other hand, the difficult, widely disliked person might in fact be your top performer.  Mr. Jackson performs a little rhetorical slight-of-hand when he identifies “non-performers” with “cancerous” members of the team.  (And don’t get me started on his choice of metaphor here…)

A better approach?  Find out why the non-performer or the weak performer isn’t doing better.  Maybe he has problems at home and this is a temporary setback.  Maybe she just isn’t suited to the role and needs some kind of change.  A friend who has worked for several years in the banking industry tells me that over the years she has moved many people from sales into administration.  All of these were good workers who simply weren’t comfortable in sales.  Once you have identified why non-performers aren’t doing better, you might have some idea of how the situation might be turned around.

“Fill the vacant roles with the best people possible.”  Every company wants to hire “the best people,” just as all parents wants their child to be the smartest in the class or the most valuable player on the hockey team.  But we all know that, in the real world, not every company will be able to hire “top talent.”  Your organization might be at a geographical disadvantage; you might simply not be able to afford  to pay the kind of salary that top talent can demand.  By all means, hire the best people you can find and the best people you can afford.  But you hardly need me (or anyone else) to tell you that.

I see another problem with Mr. Jackson’s suggestion.  It seems to assume that the way to have a great team is to make sure it is filled with the “best” people.  This seems like common sense.  If you want to  bake a cake, assemble the best ingredients and you will get the best results.  But a workplace team is not like a cake.  A group of excellent individuals might not be able to form a great team.  They may not be able to work together effectively.  They may undermine, rather than support one another.  They may be hesitant to share ideas or offer necessary critical feedback.  If you are in the position of having to turn around a dysfunctional team, it is not enough to make sure you have the best people.  You’ve also got to make sure that they are interacting in a productive and respectful manner.

Turning around a dysfunctional team is hard.  It is a real test of managerial skill.  If it could be done in ten easy steps, every company would be successful.

Apologies 101

You may have heard that Tuesday night’s performance by the New York Philharmonic at Avery Fisher Hall was abruptly halted because of a stubbornly loud and persistent cell phone.  The orchestra was playing the final movement of Mahler’s Ninth Symphony, considered by some to be one of the most emotionally rich and sublime pieces of music ever written.  Towards the end, at the worst possible moment, the insistent plinking of the iphone “marimba” ringtone completely shattered the atmosphere.  Alan Gilbert, the conductor of the Philharmonic, actually stopped the performance and glared at the offender until he managed to silence the phone.  (You can read an amusing account of the evening here.)

Blog postings and news articles about the event soon filled up with vitriolic comments.  What kind of a person forgets to turn off their cell phone before a concert, and then magnifies the error by failing to silence it promptly as soon as it sounds?  A New York Times article answered that question the next day.  The owner of the phone, far from being a thoughtless person who didn’t appreciate music, was a longtime subscriber to the orchestra and was absolutely mortified by what happened.  And there was an explanation:  The phone was new and he had indeed turned it off before the concert; but he hadn’t realized either that the phone’s alarm was set or that it would go off even though the phone was set to “silent.”

There is something to be learned here beyond the obvious lesson of “be familiar with all of the noise-making features of any device you carry.”  The day after the concert, an orchestra official called the owner of the cell phone (following the NYT, I’ll call him “Patron X”) and politely asked him not to do it again.  Patron X asked if he could be put in touch with Alan Gilbert, in order to apologize to the conductor personally.  Patron X, through a NYT reporter, also apologized to the whole audience.  Here is what he said:

 “It was just awful to have any role in something like that, that is so disturbing and disrespectful not only to the conductor but to all the musicians and not least to the audience, which was so into this concert,” he said by telephone.
“I hope the people at that performance and members of the orchestra can certainly forgive me for this whole event. I apologize to the whole audience.”

Patron X’s apology hits all the right notes.  Here’s why:

1. He accepts responsibility.  There is a world of difference between “I’m sorry that I disturbed you” and “I’m sorry that you felt disturbed.”
2. He does not try to justify his actions.  In making an apology, one must absolutely avoid the phrase, “I’m sorry, but…”
3.  He acknowledges the harm he has caused.  He does not try to minimize what happened.
4.  He apologizes to everyone effected – the conductor, the musicians, and the audience.
5.  His apology is sincere.  He is genuinely upset about what happened and really contrite.  An insincere apology can damage a relationship more than the absence of an apology.
6. The apology is well-timed. Patron X sought out the opportunity to apologize and did so at the earliest possible opportunity.  

Patron X gets extra points for apologizing in person, rather than by text message, email, or letter.  It isn’t easy to confront someone whom we have disappointed, and it cannot have been easy for Patron X to seek out the conductor who had been glaring at him only the night before.  But if a relationship is important, it is worth making the effort and setting aside one’s own discomfort to apologize personally.

Happily, the NYT reports that Mr. Gilbert accepted the apology.