Responding to High-Conflict People During Disputes


On April 15, 2015, the Wall Street Journal ran an article by Cheryl Lu-Lien Tan entitled “Mind Your Email Manners.”  In this article, Ms. Tan recommended more formality in emails than many of us use, as well as brevity in what we say. A workshop I attended later that week on Approaches for High Conflict Disputes, offered by Bill Eddy of the High Conflict Institute, reinforced that message for me. Part of Mr. Eddy’s presentation dealt with how to send BIFF responses—Brief, Informative, Friendly, Firm responses—to persons who are difficult to deal with.

I think I generally follow these principles in my written communications. As an attorney, I learned early to be direct and accurate in my communications. In dealing with corporate leaders in a variety of contexts, I learned to be brief and to ask directly for what I needed from them. In all communications I strove to be courteous and respectful.

But as I lauded myself on my strong communications skills, I remembered the many first drafts I wrote to opposing counsel, in which I lambasted them for their stupidity in opposing my client’s position. I used to type these drafts so furiously my fingers hurt when I was finished. My later drafts usually sounded more reasonable, but I cannot say that I didn’t leave some caustic phrases in the final versions of these letters that got mailed.

I can still dash off an angry letter, which I have to edit before sending. Clearly, BIFF responses are not my default style, no matter how much I tell myself otherwise.

gmail iconIn today’s world, with communications flying back and forth in seconds, it is even more important that we step back before sending our initial drafts of correspondence, particularly when we are dealing with difficult people—whom we might define as anyone with whom we have a conflict. I have found that it is useful to draft my email responses in a Word document, and only past the final version into the email program before I push the “send” button. Another approach is to delete all the recipients’ names from the reply until I am satisfied with the message I want to send.

Although the workshop I attended was focused on “high conflict” individuals—who are often people with personality disorders or other psychological problems—it occurred to me during the workshop that all of us can at times become “high conflict.” All of us have times when we are emotionally involved in a problem and our flight/fight/freeze instincts take over our brains. Some people live in this state more than others, but we all go there at times.

So it is always important to keep all of our communications as rationally based as possible. We should be Brief, Information, Friendly and Firm in our letters and emails, regardless of the circumstances, to minimize the likelihood that we will escalate the situation rather than defuse it.

9781936268726_frontcover__50452.1419805581.500.659Mr. Eddy also recommends that we not Admonish, Advise, or Apologize in our responses to difficult people. While there might be times when apologies or advice are appropriate in normal business communications, his theories are worth considering when we are in the middle of a dispute, as I was in my communications with opposing counsel I mentioned.

The bottom line is a question that Mr. Eddy recommends we ask about our initial drafts—how is the receiving party likely to react? That question applies to any situation. We should reflect on what impact our communications are having while we still have a chance to change them. Seek advice from a good coach or colleague if you have doubts about what to say or how to say it.

For more on Bill Eddy’s BIFF responses techniques, see the High Conflict Institute website, which offers many free resources for mediators and other professionals engaged in dispute resolution. He has a book entitled BIFF: Quick Responses to High-Conflict People, which also provides more information.

When have you encountered a problem because of a communication you sent?

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Recognizing and Remembering Administrative Professionals This Week


Photo from clker.com

Photo from clker.com

This week is Administrative Professionals Week, and Wednesday, April 22, 2015, is Administrative Professionals Day. This recognition of the secretaries and other administrative professional employees that support our businesses began in the 1950s as National Secretaries Week (and Day). The name of the celebration changed in 2000 to address the changing nature of clerical roles in the workplace.

I don’t know of any manager or professional person in any organization who doesn’t rely heavily on a strong administrative support staff. In my own case, they have saved me from many errors and managed my life for the better on many occasions:

  • “Where’s Attachment C? I think you gave me last week’s version.”
  • “I had to move your appointment with the VP to 10:00. But I held 9:00 open so you can get ready for the meeting.”
  • “Your son called. He missed his flight. I re-booked him tomorrow.”
  • ”Did you really mean to copy so-and-so on this letter?”

When I published my novel,  Playing the Game, I wrote:

“This novel is dedicated to administrative professionals everywhere. They are the ones who keep businesses running.”

The administrative employees in Playing the Game are all named after secretaries I knew during my corporate career. I admired them all.

Today I remember and honor two of my admins who are now deceased—Deanna and Diane. Deanna, who passed away in 2006, was given a role in Playing the Game. My next novel will have to include an admin named Diane; the Diane I knew died this last year.

Deanna was the most competent all-around secretary I ever had, and she worked hard. Not only did she organize my work day, but she kept my boss on track as well. She was the only person he trusted to put together his complicated PowerPoint presentations and strategic planning manuals.

Diane was one of the fastest and most accurate typists in the law office where I worked. I barely had a brief dictated before she had it on my desk. I could trust her to make revisions accurately. She didn’t have any legal training, but she had a good editor’s eye.

I am grateful to these two women and to all the administrative employees who have helped me over the years.

Who are the administrative professionals who impressed you the most during your career? Have you thanked them?

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April is Workplace Violence Awareness Month—How To Address Potential Violence in Your Workplace


Image from the National Safety Council

Image from the National Safety Council

According to the Alliance Against Workplace Violence, April 2015 is the third year for a national observance of Workplace Violence Awareness Month. And April 28 is Workers Memorial Day, in remembrance of workers who have died at work.

I’ve addressed workplace violence before on this blog (for example, here and here), but the return of Workplace Violence Awareness Month is a good occasion to mention it again.

Workplace violence can result from actions of strangers, customers, employees, and relatives of employees. The best defense against workplace violence is awareness of the possible sources of conflict. Any strong workplace violence avoidance program should consider all these sources of violence.

 

1.  Recognizing Employees Who Might Become Violent

Obviously, businesses have the most familiarity with their employees. According to Exigo Business Solutions, here are seven behaviors to watch for in employees that can be potential warning signs of workplace violence.

  • A history of violence
  • Negative reactions to poor performance reviews
  • Drug or alcohol dependencies, which can lead to paranoia or aggressive behavior
  • Romantic obsessions which may lead to inappropriate behavior such as harassment or stalking
  • Requiring repeated instruction, repetition of errors and other concentration problems, which can indicate a troubled employee
  • Depression, which may lead to emotional or aggressive outbursts. Signs of depression can include a slowed work pace, blank facial expressions, inappropriate guilt/shame, etc.
  • Any verbal threats or other activity that is seen as ‘out of character’ for a co-worker

Note that some of these indicators are vague or difficult to determine. The best managers are familiar with their employees and notice when an employee’s behavior changes. They have a good relationship with their staffs, and employees in their organizations seek them out when there are conflicts or problems in the workplace.

 

2.  Developing an Effective Workplace Violence Prevention Program

An effective workplace violence prevention program should include

  • An assessment of the specific risks of violence at your particular workplace and an evaluation of the controls and policies already in place
  • Measures to ensure the physical security of offices and facilities, such as installing alarm systems, protective barriers, and routes for escape if danger occurs
  • Personal protective equipment, if needed, including personal-alarm systems and mechanisms for contacting security or law enforcement
  • A plan of action for responding to acts of workplace violence
  • Services to treat traumatized employees involved in an incident of workplace violence
  • Workplace-violence awareness training for employees.

See 6 Tips for Creating an Effective Workplace-Violence Prevention Program, by Tiffany Robertson, September 3, 2014, on WeComply.com (a Thomson Reuters compliance blog).

Training should cover the warning signs of a potential violent act, how to report any concerns and what to do if violence does occur. Training should cover employee’s responsibility not only for their own safety, but also for that of their coworkers, customers, and any members of the public who enter the workplace.

Workplace violence prevention is a crucial part of any crisis management program. Involve your HR and your risk management personnel in advance.

Don’t wait for the crisis to occur.

For more information on avoiding workplace violence, see:

OSHA website page on Workplace Violence

What Are You Doing for Workplace Violence Awareness Month?, by Erin Harris, April 23, 2014, Crisis Prevention Institute

Behavior Management Strategies, Crisis Prevention Institute

Spotlight on Workplace Violence Prevention and Awareness in April, WeComply.com (a Thomson Reuters compliance blog)

 

If you have experienced a threat of workplace violence, what was the most important lesson you learned?

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Resolving Conflict in the Workplace: The Earlier, the Better


Image from Forbes

Image from Forbes

As a litigator and as a mediator, I have frequently seen workplace conflicts that have escalated beyond repair. Once a manager is convinced that an employee cannot perform, it is hard to change that manager’s mind. Once an employee believes that a manager or co-worker has engaged in harassment or discrimination, there is little likelihood of salvaging the relationship. An amicable parting of the ways is usually the most that a mediator can hope for.

This was one reason I moved from practicing law into Human Resources—I wanted to move further up the process of managing workplace problems, with the hope of fixing more of them. To some extent, I was successful. But unfortunately, I found that Human Resources comes with its own baggage. Too often HR is seen by employees as in management’s pocket and by management as ineffectual or not focused on the bottom line.

Nevertheless, I came to believe that the best chance of solving workplace problems is with direct communication between managers and employees, with HR serving primarily as a coach for both parties and a referee when emotions run too high or one party or the other steps out of bounds.

But both managers and employees often do not have the communications skills needed to resolve their conflicts. A recent article on Mediate.com, Integrating Conflict Management and Workplace Mediation Practices: A Blueprint for Future Practice, by Daniel Dana, Craig Runde (February 2015), makes this point.

Messrs. Dana and Runde suggest that mediators learn to coach their clients in how to manage their differences. The skills needed, they say, include expanded self-awareness, enhanced emotional intelligence, and improved conflict communications capabilities. Here are their suggestions:

Expanding self-awareness is typically approached by coaching, interviewing, or using assessment instruments such as the Conflict Dynamics Profile or the Thomas-Killman Conflict Mode Instrument.  When people become more aware of how they typically respond to workplace conflict, they are better able to employ constructive approaches and avoid defaulting into destructive or ineffective ones.

The human experience of conflict is replete with complex emotions, and helping clients learn to manage those emotions is of great importance for conflict management practitioners.  This includes improving awareness of what triggers one’s negative emotions in the first place and developing personal practices for managing those emotions and regaining a sense of balance.

Enhancing constructive communications involves learning about one’s behavior patterns and working on lessening the use of habitual destructive behaviors.  Those habits often escalate or prolong conflict.  Improved patterns increase the use of constructive responses, which clarify issues and develop sustainable solutions that benefit both parties.

Yet Dana and Runde recognize that coaching alone will often not be enough to manage workplace conflicts. There is still a role for neutral third parties—either internal or external mediators.

Again, following the principle that resolving a conflict sooner rather than later is the best way to preserve a workplace relationship, then internal company mediators serve an important role. But bringing in an external mediator is more effective than litigating a dispute.

What has your experience been with resolving workplace conflicts? Can people learn to handle most conflicts themselves? When is a third-party essential to resolving the dispute?

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Have You Known Any Transformational Leaders?


I tend to be suspicious of anything labeled “transformative” or “transformational”. One theory of mediation says that mediation should seek to be “transformative” as opposed to “evaluative”. I am more of the “evaluative” school—rather than seeking to transform the relationships between the parties, I just want to get the case settled. So when I hear about “transformational leadership”, my first inclination is to roll my eyes.

But then, in most of the cases I mediate, the parties are not going to have an ongoing relationship. Where there is an ongoing relationship, maintaining—or even improving—the relationship is important. When I think about leadership—which presumes a relationship between the leader and followers—it occurs to me that perhaps the adjectives “transformative” and “transformational” make more sense than in mediation.

transformational_leadership

Image from AboutLeaders.com

The term “transformational leadership” was first used in 1973 by J.V. Downton in his book, Rebel Leadership.  A few years later, the author James MacGregor Burns, in Leadership (1978), defined “transformational leadership” as “A relationship of mutual stimulation and elevation that converts followers into leaders and may convert leaders into moral agents.”

This definition sets high aspirations for both leaders and their followers:

  • As leaders, do we really want to convert our followers into leaders themselves?
  • As leaders, do we really want to become moral agents?

These are important questions for leaders to ask. The best leaders would probably answer “yes” to these questions, but perhaps not all leaders would, and not in every context.

In most corporate settings, however, getting one’s followers to take on a leadership mantle—to act independently in furtherance of corporate goals—is a desirable thing, assuming that the followers understand the goals and have the knowledge to fulfill those goals.

Similarly, Mark McCloskey, in “What is Transformational Leadership?”  defines the term as

the process of creating, sustaining and enhancing leader-follower, follower-leader and leader-leader partnerships in pursuit of a common vision, in accordance with shared values and on behalf of the community in which leaders and followers jointly serve. In the context of this process of service and partnership, both the leader and follower, and eventually the entire community experience increasing levels of congruity with the ethos, vision and values of the community.

He says,

Transformational leaders are catalysts for a process of change in which leaders, followers and the community become more and more like who they aspire to be and act more and more in accordance with what they want to do. Leaders invite followers and the entire community to journey with them to a better future, which more fully embodies their personal and collective vision and honors their shared values.

The Transformational Leadership Report, (available at http://www.transformationalleadership.net/products/products.php), cites Bernard Bass for the proposition that that there are three ways in which transformational leaders transform their followers:

• By increasing their awareness of task importance and value.

• By getting them to focus first on team or organizational goals, rather than their own interests.

• By activating their higher-order needs.

Transformational leaders use their influence and charisma, their ability to inspire and motivate, their knowledge of the organization and its goals, and their attention to the individual needs of their followers to transform their followers into leaders.

As I read these articles on transformational leaders, I immediately thought of the various bosses I’ve had and other high-level people in organizations where I’ve worked.

Only two of my past bosses came close to qualifying as “transformational”. One worked very openly to develop his followers into leaders. I knew when he was coaching me and what he was trying to accomplish. The other was more subtle, but perhaps more effective. His coaching seemed more designed to address my personal development in ways that met the organization’s goals, and less designed to tell me that he was a leader and I should be also.

I also thought the more subtle boss came closer to becoming a “moral agent”, as Burns defined “transformational leaders”. I saw this boss as working better across divisions in the organization, whereas the more overt boss’s efforts seemed focused on his own and his division’s superiority over the rest of the company.

Have you known any transformational leaders? What makes you think they were transformational?

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We Race Together or We Race Apart


In the last week I’ve read several articles discussing race relations in the United States.

First, the Starbucks “Race Together” campaign has been in the news quite a bit. Howard Schultz, CEO of Starbucks, explained in a statement on the company website:

[‘Race Together’] is an opportunity to re-examine how we can create a more empathetic and inclusive society — one conversation at a time.

Despite this idealistic intent, both liberals and conservatives have dumped scorn on the Race Together campaign. Liberals mock it as capitalizing on the oppressive experiences of minorities to sell coffee. Conservatives mock it as not the province of a retail organization, which should focus only on satisfying customers.

So which is it—an attempt to increase profits or a failure at customer service? I doubt it can be both.

I tend to give Starbucks the benefit of the doubt. I think that the CEO’s heart was in the right place in launching this initiative. If we don’t talk about race, how will we improve race relations? And we might each ask ourselves, as apparently Starbucks employees did, “if I don’t start the conversation, who will?”

As Mellody Hobson, a Starbucks board member and an African-American, said,

Race today is still one of the most controversial and uncomfortable issues to discuss in America. . . . Let’s face it, racial discrimination is a long-standing problem that has plagued our country for centuries. But we all know the first step in solving a problem is to stop hiding from it.

After admitting that talking about race can be uncomfortable, Ms. Hobson continued:

It is time for all of us to get comfortable with an uncomfortable conversation about race—black, white, Hispanic, Asian, male, female—all of us.  If we truly believe in equal rights and equal opportunity, we can’t afford to be colorblind.  We have to be color brave.  We need to confront issues of race and diversity with courage, honesty, and understanding.

So how do we become “color brave”? Not by ignoring the problem, and not by ridiculing those who approach it differently than we might.

A second race relations article I read recently was a review in the Wall Street Journal of Shelby Steele’s new book, Shame. See “Shelby Steele’s Thankless Task,” by Joseph Epstein, March 20, 2015.

Mr. Steele is the son of a white mother and black father and grew up in a black neighborhood near the South Side of Chicago. Mr. Epstein writes of Mr. Steele:

He has described his biracial birth as “an absolute gift, the greatest source of insight and understanding. . . . [because] race was demystified for me. I could never see white people as just some unified group who hated blacks.” Although he doesn’t say so, being biracial has also allowed him insight into the hypocrisy of both blacks and whites on the subject of race.

I have heard biracial friends and blacks in interracial marriages make similar statements, as if it takes the closeness of family to overcome the racial prejudices society imprints on us.

Mr. Epstein summarizes Mr. Steele’s philosophy:

What distinguishes him is his openly stated belief that blacks in America have been sold out by the very liberals who ardently claim to wish them most good. He regrets that affirmative action, multiculturalism and most welfare programs purportedly put in place to show racial preference, far from liberating black Americans, have failed to advance their fortunes.

As I read this, what came to my mind was how, despite their similar birth circumstances, Mr. Steele came to a very different philosophy than another man born to a white mother and black father, Barack Obama.

Which brings me to a third race issue I read about this week—white privilege. See “Why White People Freak Out When They’re Called Out About Race,” by Sam Adler-Bell, on Alternet.org, in which he interviews Robin DiAngelo, professor of multicutural education at Westfield State University.

Professor DiAngelo has taught about white privilege and other race issues for years. She described “white privilege” and the perspective it brings to Mr. Adler-Bell as follows:

from the time I opened my eyes, I have been told that as a white person, I am superior to people of color. There’s never been a space in which I have not been receiving that message. . . . We are born into a racial hierarchy, and every interaction with media and culture confirms it—our sense that, at a fundamental level, we are superior.

And, the thing is, it feels good. Even though it contradicts our most basic principles and values. So we know it, but we can never admit it.

And that inability to admit the existence of white privilege sets up

. . . this kind of internal stew . . . . We have set the world up to preserve that internal sense of superiority and also resist challenges to it. All while denying that anything is going on and insisting that race is meaningless to us.

As a result, whites have difficulty talking about race. Professor DiAngelo uses the term “white fragility” to describe

a state in which even a minimum amount of racial stress becomes intolerable, triggering a range of defensive moves. These moves include outward display of emotions such as anger, fear and guilt, and behaviors such as argumentation, silence and leaving the stress-inducing situation.

There is a moral dissonance, because we know we are not superior to people of color, yet receive society’s constant messages that we are. She told Mr. Adler-Bell:

For white people, their identities rest on the idea of racism as about good or bad people, about moral or immoral singular acts, and if we’re good, moral people we can’t be racist – we don’t engage in those acts. . . .

In large part, white fragility—the defensiveness, the fear of conflict—is rooted in this good/bad binary. If you call someone out, they think to themselves, “What you just said was that I am a bad person, and that is intolerable to me.” It’s a deep challenge to the core of our identity as good, moral people.

So how do we learn to talk about race in ways that do not make anyone seem good or bad, accusatory or defensive, victim or persecutor?

Hands touching a globeOne conversation at a time. Between people who are willing one more time to put aside their defensiveness. Between people who are willing to listen with hearts and minds, who will look at the other as an individual and not as a representative of a race.

None of us is qualified to represent an entire race’s point of view. There is no reason I should expect Barack Obama and Shelby Steele to have the same outlook on life, just because of their parentage.

We can each only represent our own point of view. But because we each only have a single point of view, we have an obligation to listen to others on the subject—others like ourselves and others different than ourselves. We have an obligation to seek out opposing points of view.

The Starbucks “Race Together” program and Professor DiAngelo’s white privilege lectures are two brave ways to tackle the issue of race relations in this country. Both are difficult to do well, because most of us are not skilled in talking about race. Perhaps for that reason, these are necessary. Perhaps for that reason, we should not mock them.

What experiences have you had that taught you the most about diversity?

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Favorite Firing: Termination for Admitting Violation of Employer Policy Is Retaliation Under FLSA


policeman-146561_640I’ve mentioned before that retaliatory discharge claims under Title VII are hard to defend, but retaliation claims are equally problematic under other employment statutes. In Avila v. Los Angeles Police Dep’t, (9th Cir. 2014), a police officer alleged he was fired for testifying in a co-worker’s lawsuit claiming non-payment of overtime wages in violation of the Fair Labor Standards Act.

The Facts: Leonard Avila was a police officer for the Los Angeles Police Department. He testified in another officer’s lawsuit alleging unpaid overtime wages and admitted he had frequently worked through his lunch break without reporting the extra hours, in violation of the LAPD’s policy.

Shortly thereafter, Officer Avila was discharged for insubordination. The insubordination? His failure to claim overtime wages in violation of department policy.

The LAPD Board of Rights that recommended Officer Avila’s termination found:

“Prior to 2008, you [Officer Avila], while on duty, were insubordinate to the department when you failed to submit requests for compensation for overtime that you had worked, as directed through department publications.”

The Ninth Circuit opinion states the facts as follows:

“Leonard Avila, a police officer, periodically worked through his lunch break but did not claim overtime. According to his commanding officer, Avila was a model officer. The Los Angeles Police Department (LAPD), however, deemed Avila insubordinate for not claiming overtime and fired him.

“Not coincidentally, that termination occurred only after Avila had testified in a Fair Labor Standards Act (FLSA) lawsuit brought by fellow officer, Edward Maciel, who sought overtime pay for working through his lunch hours. Avila then brought this action, claiming that he was fired in retaliation for testifying, in violation of the FLSA antiretaliation provision, 29 U.S.C. § 215(a)(3). The evidence at trial was that the only officers disciplined for not claiming overtime were those who testified against the LAPD in the Maciel suit, notwithstanding uncontested evidence that the practice was widespread in the LAPD.”

The Moral: As the dissenting opinion in Avila stated, “retaliation claims based on federal statutes are increasingly a major part of employment litigation in federal courts.” That is probably the single biggest moral to be taken from this case.

The dissent focused on the fact that Officer Avila and the other officers discharged after their testimony admitted violating department policy in that testimony:

“the only officers singled out for discipline were those who testified at the Maciel action and who admitted under oath that for years they knowingly and repeatedly violated policies that they were specifically told would subject them to termination.” [emphasis in original]

The dissent argued that employees should not be immunized from the consequences of their admissions, but the majority upheld the jury verdict in favor of Officer Avila. The case focused primarily on jury instructions, and, finding no error in the instructions, the majority affirmed.

So another moral from this case is that employers cannot necessarily rely on admissions of wrongdoing by employees, if those admissions are made during lawsuits against their employer. Employers must be careful when seeking to discharge any employee who has raised any type of employment claim or participated in any way in another employee’s claim. As I’ve said before, the retaliation claims are often more difficult to defend than the underlying complaint, whether it be for illegal employment discrimination, unpaid wages, worker’s compensation, or any other employment action.

The Atkinson, Andelson, Loya, Ruud & Romo law firm, which represents employers, wrote on its blog:

“This decision is important as the Court of Appeals’ analysis suggests that an employer is restricted from exclusively using information obtained from an employee’s protected activity for purposes of initiating an adverse action.  Instead, the Court of Appeals focused on the fact that the City did not have other independent evidence of alleged wrongdoing beyond Avila’s protected activity when terminating his employment to avoid liability under the FLSA’s anti-retaliation provision. Ultimately, the Court of Appeals left open the question as to whether an employer is strictly forbidden from using any information of employee wrongdoing that is obtained during testimony in another lawsuit.”

And as Branigan Robertson, a plaintiff’s attorney, said on his blog:

“Avila v. Los Angeles Police Department is a win for employees as it shows employers that they need to be extremely careful when firing someone for complaining or being part of a legal proceeding against them.”

In my opinion, the LAPD would have been wiser to have documented a warning to Officer Avila and the others who admitted violating department policy and told them that any future violations would be grounds for termination.

Perhaps that shouldn’t be the case, but this was an expensive lesson for the department. Officer Avila received $50,000 in liquidated damages, and his attorneys were awarded $579,400 in attorney’s fees.

What do you think—should LAPD have lost this case?

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