Reflecting Again on the Thomas Kilmann Model of Conflict Resolution


How Do You Deal with Conflict? Use of the Thomas Kilmann Conflict Mode Inventory in Mediation

Thomas-Kilmann Model of Conflict Resolution http://www.edbatista.com/2007/01/conflict_modes_.html

Sometimes we have to relearn a lesson we thought we knew. I attended a mediation training program last week, and one of the presenters used a model similar to the Thomas-Kilmann Model of Conflict Resolution, which I wrote about on September 24, 2012, in one of the more popular posts on this blog.

The labels on the model last week were a little different. The Thomas-Kilmann model labels the five styles of conflict resolution as avoiding, accommodating, compromising, competing, and collaborating. The model last week labeled them (in the same locations on the grid) as avoidance, accommodation, negotiated compromise, competition, and interest-based bargaining. Clearly the same ideas.

I made the point in my earlier post that we each have conflict resolution styles that we prefer. Some people want to avoid conflict, others seek out competition, others are natural collaborators.

What I had to relearn was that each style of conflict resolution has its place.

The presenter last week advocated interest-based bargaining (which the Thomas-Kilmann model calls collaboration) as the highest and best method of conflict resolution. I don’t necessarily agree.

Interest-based bargaining (collaboration) may be best if the parties are interdependent and want to build an ongoing relationship. In cases like these where a conflict develops between two or more parties, searching for their mutual interests and creating a solution that fosters their future relationship is likely to be the longest lasting and most successful resolution of the conflict.

But in many cases that mediators handle (including most situations already in litigation), the parties only want to resolve the dispute in front of them. In these cases, negotiated compromise will probably work just fine. The parties may decide to move toward collaboration, if they can find mutual interests that offer more opportunities for settlement. But most of the time, it’s a matter of reaching agreement on how much one party will pay the other, and spending the time and energy to look for mutual interests is probably a waste. (Clearly, I lean toward the evaluative form of mediation, not the transformational.)

Some situations are set up to be competitions. When several businesses are bidding for a job, only one can win. The businesses are in conflict, and they are not expected to collaborate (in fact, such collusion might be illegal).

In other cases, avoidance or accommodation might be the best option. I got my car washed last weekend, and they did a lousy job, which I didn’t discover until I was back home. I weighed the merits of returning to argue that they should wash my car again for free against the time, aggravation, and $7.00 cost of getting another car wash in a couple of weeks. I avoided that conflict. I feel a bit like a schmo, but I think I did the right thing.

When have you used each style of conflict resolution? Why did you approach the situation the way you did?

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Favorite Firing: Terminated for Lying About Leave


police-officer-clipart-black-and-white-nTXoX7MTBYears ago, I used to discuss employment cases I worked on with my kids at the dinner table. I didn’t use names, but I did describe the circumstances. “Don’t ever lie to your employer. You can get fired for lying,” I told them.

A recent court case from Ohio proves I’m still right. In Mattessich v. Weatherfield Township (Ohio Ct. App. Feb. 8, 2016), a police officer who had taken leave for depression was later terminated for lying about his medical leave. This is yet another “favorite firing” case involving law enforcement personnel.

The Facts: After Richard Mattessich, a police officer with the Weathersfield Township Police Department in Ohio, applied for a promotion to sergeant, he alleged that another applicant had been late to work. A video proved that Officer Mattessich’s allegations were false. The Chief of Police considered terminating Officer Mattessich at that time, but gave him a second chance. The Chief did require Officer Mattessich to undergo a psychiatric evaluation. A health care provider concluded that Mattessich needed sick leave, and he was off work for nine months.

Officer Mattessich passed a fitness-for-duty exam and returned to work. Nevertheless, others on the police force thought he lacked confidence and even seemed “dazed” and “out of it.” Officer Mattessich said he was fine and denied having any mental health counseling while on leave.

A few weeks later, his superiors learned that Officer Mattessich had in fact been treated for depression with counseling and medication. He admitted he had lied earlier about not receiving any treatment. Shortly thereafter, his employment was terminated for lying. The Chief of Police indicated that he could not trust a dishonest employee, because honesty and integrity were essential parts of the job for police officers.

Mattessich filed a disability discrimination lawsuit alleging that he had been discharged because of his mental health condition. The trial court granted summary judgment to the employer and dismissed the case, ruling that dishonesty—not disability—was the motivation behind the termination.

On February 8, 2016, the Ohio Court of Appeals upheld the termination. Although Mattessich’s “depression” was mentioned during the termination discussions, it was only mentioned because it was related to the plaintiff’s deception. There was no evidence that his mental health status was the cause of his terminaiton. Just because the employer knew about some mental health condition did not mean that any subsequent adverse decision was the result of discrimination.

The Court of Appeals found that the police department had provided a legitimate, nondiscriminatory reason for Officer Mattessich’s termination. It therefore became the plaintiff’s responsibility to prove that the reason was pretextual. The Court stated:

To establish pretext for a claim under the Civil Rights Act, “a plaintiff must demonstrate that the proffered reason (1) has no basis in fact, (2) did not actually motivate the employer’s challenged conduct, or (3) was insufficient to warrant the challenged conduct.”

Officer Mattessich failed to provide evidence to support pretext under any of these three categories.

One of the three judges on the Court of Appeals did dissent. She argued that the employer regarded Officer Mattessich as disabled and that there were questions of fact about the officer’s dishonesty that should have survived summary judgment.

The Moral: What I told my children is still good practice at work—do not lie to your employer.

This case involved law enforcement, where honesty is critical for the success of the police department’s work with the public and in courts. But honesty is critical in every employment relationship. Every employee owes his or her employer a duty of loyalty, which encompasses veracity. Every employer should have a policy prohibiting employees from lying to their supervisors.

And every employer should investigate allegations that an employee has lied—not only when the lies involve things as critical to the employment relationship as fitness for duty and leaves of absence.

Of course, communicating employment policies and consistency in applying those policies are critical. In this case, the Court of Appeals found that the Weathersfield Township Police Department had disciplined other officers caught committing acts of deception. So consistent application of the policy was important.

As noted above, there was a dissent in this case. These situations can go either way for the employer. The more the employer can distance the termination from the finding that the employee is disabled, and the more similar situations involving employees not in the same protected class as the discharged employee, the better the case is likely to go for the employer.

Involving Human Resources professionals and employment attorneys in these situations prior to discharging the employee is always a best practice.

But in this case, the biggest issue is that it took five years to get an appellate ruling that the employee could legitimately be discharged for dishonesty.

When have you had to deal with dishonesty in the workplace?

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Filed under Human Resources, Law, Uncategorized, Workplace

My Political Quandary: How Do I Choose the Good?


american-politics party imagesLike many Americans, I find myself in a quandary, now that it appears that the two main presumptive Presidential candidates are Donald Trump and Hillary Clinton. I find myself wanting neither of the above.

I do not see Mr. Trump as an acceptable Presidential personality, I do not think he has sufficient political experience, and I do not trust that his positions will match most of my own. I do not find his bullying braggadocio attractive, and I do not want to listen to it for the next six months, let alone four (or eight) years after that.

I have disagreed with most of Mrs. Clinton’s positions for more than two decades, I do not think she is a trustworthy candidate, and I despised her husband’s peccadilloes in office and don’t want him anywhere near the White House again. Although she has a good political pedigree, she is as paranoid as Richard Nixon and about as charismatic.

I don’t typically write about religion in this blog, but I find myself reflecting on a bit from Thomas Merton this week:

“We find ourselves more and more backed into a corner in which there seems to be no choice but that of a ‘lesser evil’ . . . . But an evil choice can never have wholly good consequences. When one chooses to do good irrespective of the consequences, it is a paradox that the consequences will ultimately be good.”

Merton continues:

We must recover our inner faith not only in God but in the good . . . In the power of the good to take care of itself and us as well.”

From Conjectures of a Guily Bystander, part 2.

And so I have decided that my task over the next several months is to decide what the “good” is. I will not stoop to picking the lesser of the two evils.

I don’t know yet what the “good” will be for me.

Can I find one of these candidates acceptable? Will one of the two contenders rise above “lesser of two evil” status and make me think he or she will be a good President?

Will a third option become appealing? Who are the other candidates, and what do they have to offer?

Should I choose not to vote in this election? I can’t allow my dissatisfaction with the top of the ticket to harm other candidates for state and local races, but I can choose to leave the first spot on the ballot empty. That may be the “good” this year.

I have until November 8 to decide. Whatever I decide, however, I will remember that I do not need to choose the lesser evil. If I do, it will not have wholly good consequences.

When have you faced only unfortunate choices?

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Workplace Culture and Psychological Safety


teamwork-383939_1920

Photo from Pixabay

One of the Human Resources topics I follow is workplace culture. I was struck this past week by an article discussing Google’s Project Aristotle, which analyzed what workplace culture best leads to high-performing teams. In this post, There’s No Quick And Easy Fix To Building A Successful Workforce, by Carol Anderson, April 26, 2016, on TLNT.com, the author discusses another blog post by Aamna Mohdin that concluded:

Google now describes psychological safety as the most important factor to building a successful team.

In short, just be nice.

See After years of intensive analysis, Google discovers the key to good teamwork is being nice, by
Aamna Mohdin, February 26, 2016, on Quartz.

Ms. Anderson disputed this conclusion, arguing that psychological safety and “niceness” are not the same thing. I agree.

I once worked in an organization where people were almost always “nice” to each other, but the important decisions did not get made, or did not get made in a timely fashion, or were not communicated effectively to the people who needed to know. In fact, “niceness” got in the way of good communications and decision-making. People were too afraid of hurting others’ feelings to make the tough calls and then explain their decisions to each other. The problem began in the executive suite and trickled down through most divisions in the organization.

According to a New York Times article entitled What Google Learned From Its Quest to Build the Perfect Team, by Charles Duhigg, published February 25, 2016, in Project Aristotle, Google realized it was important for teams to have norms and to communicate those norms.

The right norms . . . could raise a group’s collective intelligence, whereas the wrong norms could hobble a team, even if, individually, all the members were exceptionally bright.

But which norms made for the best teams? Google found two important behaviors that good teams shared:

First, on the good teams, members spoke in roughly the same proportion, a phenomenon the researchers referred to as ‘‘equality in distribution of conversational turn-taking.’’

. . .

Second, the good teams all had high ‘‘average social sensitivity’’ — a fancy way of saying they were skilled at intuiting how others felt based on their tone of voice, their expressions and other nonverbal cues.

To sum up these traits,

. . . all the team members speak as much as they need to. They are sensitive to one another’s moods and share personal stories and emotions. While [the successful team] might not contain as many individual stars, the sum will be greater than its parts.

In the Quartz article cited above, Aamna Mohdin summarized the Project Aristotle conclusions as follows:

the best teams respect one another’s emotions and are mindful that all members should contribute to the conversation equally. It has less to do with who is in a team, and more with how a team’s members interact with one another.

These traits are part of “psychological safety,” which has been defined by Professor Amy Edmonson of the Harvard Business School as:

a ‘‘shared belief held by members of a team that the team is safe for interpersonal risk-taking.’’

‘‘a sense of confidence that the team will not embarrass, reject or punish
someone for speaking up,’’

‘‘. . . a team climate characterized by interpersonal trust and mutual respect in which people are comfortable being themselves.’’

The reason that Carol Anderson believed that these conclusions have nothing to do with “niceness” is that

. . . psychological safety, at its root, means that team members feel comfortable to say what they need to say, because they trust that their team will not shut them down, humiliate them or otherwise ignore their words. It is about getting all of the issues on the table in an environment where the team members can focus on solving the problem rather than on being defensive.

As I noted above, “niceness” can in fact interfere with the communications necessary for good decision-making.

Psychological safety wasn’t the only norm found to be important in Google’s Project Aristotle—having clear goals and a culture of dependability were also important—but this safety was critical. And it has to be forged through experience and gaining trust in your team members.

In my opinion, the conclusions of Project Aristotle relate directly to diversity issues as well. As the NYT article by Mr. Duhigg describes, Google learned that

. . . no one wants to put on a ‘‘work face’’ when they get to the office. No one wants to leave part of their personality and inner life at home.

That feeling of leaving a part of one’s self at home is what many workplace minorities describe—whether their “difference” is based on their race, ethnicity, gender, sexual orientation, introversion, or any other category. A psychologically safe environment is critical to true progress on improving diversity in the workplace.

What difference has feeling a sense of “psychological safety” at work or lack of it made in your career?

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Filed under Diversity, Human Resources, Leadership, Management, Workplace

How Trends in Corporate Governance Vary for Smaller Firms


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Flickr photo from reynermedia on Creative Commons

I work mostly with smaller organizations, especially family-run companies, but I’m interested in corporate governance trends at larger institutions. I’ve written before about why privately held companies might want independent boards of directors. What is good for large institutions is often also helpful in small companies. And sometimes smaller organizations are ahead of stagnated large companies—they can change more rapidly when the need arises.

Here are some recent trends in corporate governance, together with how I think the trends may work differently in large and small companies:

  • Focus on independence and diversity

The Council of Institutional Investors (CII) states in its Corporate Governance Policies that at least two-thirds of a board’s members should be independent. Most small businesses rely primarily on company management to serve as directors. When most of the shareholders are also managers in the organization, this makes sense.

However, as a business grows, a focus on independence becomes more important. Large institutional shareholders will demand a voice on the board, and their opinions might or might not agree with what management wants. Because shareholders are the ultimate decision-makers, their voices should decide who is on the board.

Diversity may or may not be a focus in both large and small companies. Public sentiment desires more diversity in corporate decision-making, and greater racial, ethnic and gender diversity can keep consumer products, entertainment, and other companies with a public base more in tune with its customers. However, shareholders at some institutions may feel less strongly than others.

Here is another trend where small and large companies may diverge. Shareholders at family-run companies are more likely to want continuity and consensus than larger companies with institutional owners. Board diversity is particularly likely to be important where the shareholders are public entities, such as government worker pension plans or universities.

  • More scrutiny of the board, through self-assessment and shareholder assessment

The U.S. National Association of Corporate Directors (NACD) recommends that the Governance Committee of boards should have a process to routinely assess its own performance, the performance of its Committees, and its individual directors. Moreover, a Nominating and Corporate Governance Committee is one of three standing committees—along with an Audit Committee and a Compensation Committee—that the NYSE requires be composed entirely of independent directors.

This self-assessment is a growing trend in corporate boards. Along with self-assessment is an increased scrutiny of the board by institutional shareholders. With only independent shareholders on the governance committees of publicly traded companies, these large shareholders have the opportunity to assess the board and make changes when necessary.

At smaller and privately held companies, self-assessment and shareholder assessment may be less rigorous. But all companies should develop some form of board member assessment. For these smaller companies, it might be an outgrowth of internal succession planning and leadership development.

  • Increased transparency and disclosure

Along with board assessment comes the need for transparency in board activities. Shareholders cannot assess what they cannot see. The NACD expects boards to disclose sufficient information to shareholders to enable them to assess whether the Board is functioning effectively.

What is sufficient information will vary from organization to organization. In larger organizations, what is material to the company’s functioning will be much greater than at smaller companies. But as the number of independent board members increases and there is less involvement of management directors (who presumably know what is going on internally), the amount of disclosure will increase.

  • Attention to a broader array of risks, such as cyber-attacks

It used to be that boards only needed to worry about the corporate balance sheet and CEO succession (and they could avoid the succession issues for years at a time). However, in today’s environment, cyber-crimes will only become more sophisticated, and every organization needs to consider its vulnerabilities, along with those of its suppliers and customers.

Now, not only must directors focus on financial threats, but other existential risks as well. These risks might come a wide variety of causes even beyond cyper-attacks—natural or environmental disasters, terrorism, and public relations debacles.

A good board of directors at any institution, large or small, thinks about these threats. Each organization will need to undertake its own risk assessments, then educate its board of directors about its conclusions.

* * * * *

Flickr photo from thetaxhaven on Creative Commons

Flickr photo from thetaxhaven on Creative Commons

Institutional investors at large organizations will continue to demand greater influence not only on financial strategies, but also on risk assessment and board member assessment. As these demands grow, shareholders at smaller organizations, including family-run companies, need to analyze what makes sense in their companies.

Furthermore, managers interested in developing themselves to be board members someday—regardless of the size of institution on whose board they might serve—would be well served to educate themselves in these areas of corporate governance. To be a serious candidate for any corporate board, an individual needs to be savvy about what shareholders expect in today’s environment.

What other corporate governance trends do you see? Which trends that I mentioned do you think are most important?

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When Is Mediation NOT a Good Idea?


handshakeI was recently scheduled to mediate a case, but the day before the mediation was to take place, the plaintiff’s attorney called to tell me the case had settled. What? I thought. Without me?

But from the parties’ perspective, this was the best result possible—the case was resolved and they didn’t have to travel to the mediation or pay me. In fact, I suspect that the scheduling of the mediation is what prompted the parties to get serious about settlement. So I believe I had an impact in the case as a mediator, even though I didn’t get paid a dime.

In what situations do parties to a dispute not need a mediator?

As a starting point, let’s look at what mediation is. Mediation is a process in which a neutral person (the mediator) assists the parties to a dispute in reaching their own mutually agreed upon resolution of their differences. The parties—not the mediator, nor the judge or jury in a lawsuit—decide the outcome of the problem.

Given this description of the process, mediation is not necessary when

  • The parties have already agreed on how to settle their dispute

At that point, there is no need for a mediator, although the parties might need an attorney to help them put their agreement into writing. Or if a lawsuit has been filed, they probably need attorneys to get the case dismissed. But a mediator is only of assistance when there is a pending dispute.

  • Both sides are able to discuss the matter rationally and emotion is not an issue

Of course, no one is ever completely rational and unemotional when a significant dispute is pending. But in many business disputes, the two parties (and/or their lawyers) can resolve the matter without the need for third-party intervention (such as a mediator).

This is what happened in the situation I described at the start of this post. The parties were perfectly able to negotiate without me, and they did.

  • The matter at stake is not subject to compromise or negotiation (although most disputes do involve issues that can be negotiated)

Sometimes, there is a matter of principle on which one party wants a court to rule, such as the constitutionality of a statute. While mediation might narrow the issues in such a case, it is unlikely to resolve the whole dispute. The parties, even with the aid of a mediator cannot resolve these matters of principle, where the result desired is bigger than the dispute between the specific parties to the case.

Apart from these situations in which mediation is not needed, mediation is also not appropriate when:

  • The parties don’t know enough about the facts yet

Sometimes mediation is attempted too early in a dispute. If both parties don’t know their own facts and evidence, then it is difficult for them to negotiate and reach agreement. But it is a good idea to attempt mediation prior to investing a lot of time and money into discovery of the other side’s position. Good mediators can draw out enough facts from the parties to define the contested issues and enable a reasonable settlement.

I would not rule out early mediation in a case, but I would advise parties to know as much as possible about their own position in the dispute. And I would encourage candor during the mediation itself. Hiding facts and evidence is not likely to improve the chances of a good settlement.

  • The dispute deals with the rights of someone who is not competent to enter into a legal agreement or physically or mentally unable to participate in the process

If one party is a minor or mentally disabled, then that person is not able to participate in negotiations without a legal representative.

Also, mediation can be a long, tedious, and frustrating process. If one party does not have the physical or mental stamina to participate, then either the mediator should make allowances in the timing of mediation sessions or mediation should not occur. It’s important to be upfront with the mediator about the parties’ capacity to participate in the process.

  • There is an overwhelming imbalance between the two sides

If one party holds all the cards in the lawsuit, it might be difficult to reach a fair settlement. A good mediator is skilled at dealing with imbalances of power, but it is possible that one side might feel pressured into accepting a poor settlement.

I am inclined not to forgo mediation when I sense an imbalance of power, but I might well stop the mediation if I sense the process is unfair. I would suggest that the parties get attorneys or family members to assist them, or I would recommend they let the case proceed to litigation. Thankfully, these situations are rare.

When has mediation helped you? When has it not?

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Celebrate “Be Kind To Lawyers Day” on April 12, 2016


gavelIt’s a surprising “holiday” but one we need—Be Kind To Lawyers Day, celebrated on the second Tuesday of April each year.

Most of us—lawyers included—enjoy a good lawyer joke. On Facebook just the other day, I found a Herman cartoon from August 13, 2010, depicting two divorce attorneys and their hapless client. (Click here to view.)

I admit that I chuckled when I read the cartoon, though many lawyer jokes strike me as tasteless. Kind of like blonde jokes.

Despite my own desire for more respect as an attorney, I was surprised to learn about Be Kind To Lawyers Day. There’s even a Be Kind To Lawyers website that explains the day as follows:

“INTERNATIONAL BE KIND TO LAWYERS DAY was established as a holiday celebrated annually on the second Tuesday in April. This date was chosen because it is strategically sandwiched between April Fool’s Day (April 1st) and U.S. Tax Day (April 15th).

So now lawyers of every stripe can be honored and treated like regular people for at least one 24-hour period every April.”

We all know some of the quotes about lawyers:

  • “The first thing we do, let’s kill all the lawyers.” – Shakespeare, Henry VI (though the character making this statement intended to eliminate the lawyers who might prevent revolution)
  • “He who is his own lawyer has a fool for a client.” – Anonymous

But have you heard the following:

  • “Nobody has a more sacred obligation to obey the law than those who make the law.”  – Sophocles (most lawyers I know follow this aspiration)
  • “Discourage litigation. Persuade your neighbors to compromise whenever you can. As a peacemaker the lawyer has superior opportunity of being a good man. There will still be business enough.” – Abraham Lincoln (the good lawyers I know agree with Lincoln)
  • “Law is nothing unless close behind it stands a warm living public opinion.” – Wendell Phillips (which is why some judicial opinions are not respected—public opinion is not close behind)

In my experience, the law is generally an honorable profession, and most attorneys are honorable people who try to do the right thing for their clients. It’s too bad we forget it so often.

Like most professions, it’s the bad apples who make the news. The lawyers who disobey the law or court rules. The lawyers who create causes of action to garner more in attorneys’ fees than the underlying dispute is worth. The lawyers who want publicity more than a good result for their client.

Still, I’m glad there’s a Be Kind To Lawyers Day. Here are a few suggestions on how to participate:

  • Take your favorite lawyer out for a drink or a meal (make sure you’re not being billed!).
  • Send your lawyer a “thank you” or “just because” greeting card, or send a gift of appreciation like flowers or fruit or chocolate.
  • Abstain from telling lawyer jokes for 24 hours. (You can do it!) If you can’t abstain, switch out the lawyer with your profession. It’s probably still funny.
  • Try to write up your own contract, Articles of Incorporation, or draft your own will. It’s harder than it looks.

Lawyers are helpful—even necessary—in a society based on laws. Show a little respect. Respect is what attorneys want most, even more than kindness.

What will you do on April 12 (or any day) to be kind to a lawyer?

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