ADR Prof Blog by Andrea Schneider, Michael Moffitt, Sarah Cole,Art Hinshaw, Jill Gross and Cynthia Alkon.
From FOI Kristen Blankley (Nebraska):
“Don’t put yourself in a bad situation.” This phrase was one of my dad’s favorite pieces of advice for me growing up (and still is to this day). What he meant was: “Don’t go to that party with underage drinking,” or “Don’t be alone with that boy in his dorm room,” or “Don’t go for midnight walks outside by yourself.” He always claimed that, although he trusted my judgment, he thought it wise to not test that judgment by being surrounded by temptation and potentially bad actors.
My dad’s constant concern became my first lesson in the ideas of contribution and blame, although I would not use these labels until much later. Perhaps the best encapsulation of these ideas comes from Difficult Conversations: How To Discuss What Matters Most by Douglas Stone, Bruce Patton, and Sheila Heen. The basic idea is that contribution is an acknowledgment of one’s involvement in a situation, whether or not that involvement is wrongful or otherwise blameworthy. The following example illustrates the difference:
Eliza sits at a traffic light being the first car in line in the turn lane. She diligently looks left and sees an opening in traffic and she gets ready to make a right-on-red turn. Eliza nudges forward and makes a small move indicating that she is going to turn right, but then she stops as she sees that she misjudged the opening in the traffic. Then BAM!?! Eliza’s new SUV has been rear-ended by the old sedan behind her driven by a 17-year old kid. Eliza is furious! She gets out of her car, walks to the sedan and begins screaming at the kid who just rear-ended her. Eliza wants him to be sure that he is 100% to blame because he ran into her while she was doing nothing wrong.
What happened in this situation? Legally, Eliza might be correct. The kid in the sedan might be blameworthy for the accident and might be 100% “at fault” for running into Eliza’s new SUV. But what about Eliza? Even if she did nothing that was blameworthy, she still contributed to the situation. Eliza contributed to the situation by making confusing moves at the intersection regarding whether she was going to turn right on the red light. At a more basic level, she contributed to the situation simply by being in traffic at that point in time. Had Eliza recognized her own contribution to the situation, she might have been more open to a conversation regarding the accident instead of immediately playing the blame game.
The most poignant example of contribution I have experienced came a few months ago when I heard the personal story of a man who was exonerated from death row by DNA evidence. Curtis McCarthy spent 19 years on death row in Oklahoma. What surprised me most about his story was that he keenly understood his contribution to his situation. He knew that if he had made better choices in his life – had stayed away from drugs and petty crimes – then he never would have been a suspect in the first place. He also knew that if he had not picked fights and antagonized the questioning officers, then they might not have tried him as the perpetrator among other suspects. Certainly, Curtis knew that he was not to blame for the murder. He did not murder anyone or have any part of it. But he still recognized and acknowledged his contribution to the situation. This acknowledgement blew me away. If a man could acknowledge his contribution to his wrongful conviction, then certainly I could reflect on this powerful distinction and put it into practice.
As a mediator and teacher, the concept of contribution versus blame is a powerful one. Humans, by nature, are quick to judge and become defensive. I recently heard that humans can become defensive in less than a second, but not be released from the defensive mindset for up to an hour – thus impairing our ability to think in a problem-solving manner. Humans simply do not want to be wrong. And for those of us trained in the law, we keenly understand the implications of admitting “fault” and counsel our clients to never do so, if at all possible.
Mediators have a unique opportunity to explain to the parties the difference between contribution and blame. They can encourage the parties to acknowledge (not admit) their contribution to the situation and generate a conversation based on mutual understanding. By shifting the focus away from blame and on to contribution, parties to a dispute can have a more open, learning conversation – one that does not trigger defensiveness in the participants. If the parties remain reasonable and non-defensive, then they can engage in a problem-solving discussion that is more likely to lead to settlement than a finger-pointing and blaming shouting match.
So maybe Dad was right after all. I guess that’s why they say, “Father knows best”!
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