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You Never Can Tell

George Bernard Shaw never ceases to amaze me with his observations; especially his psychological insight and perception of mankind. He is right up there with Dickens and Shakespeare with respect to analysis of conflict and disputative dialogue. His play, “You Never Can Tell”, does not disappoint in this regard, even though Shaw wrote it with the intention of writing a comedy that would be more popular than profound. However, Shaw was Shaw and he could not resist his own acute insight.

It is a story about a divorcee, Mrs. Clandon, who returns to England with her three late adolescent/early adult children after spending several years abroad and with all of them being estranged from her husband and their father, a man named Crampton. Typical of many of Shaw’s characters, Mrs. Clandon is progressive beyond her time. She is an “advanced woman, accustomed to defying public opinion and with no regard for what the world might say of [her]”. She has written and published numerous “How to” pamphlets and books and is extremely liberated and free thinking for her Victorian times and culture. In Act III, her solicitor, a Mr. McComas urges her to reintroduce and reconcile the family with her estranged husband. She wants to have nothing to do with her ex and deplores his false propriety and convention.

The solicitor nevertheless encourages her to at least attempt civil contact and end the years of estrangement. In so doing he speaks to her in terms that appeal to my mediator’s mind, since he touches upon some key elements that I use in my ADR practice to help parties get through and past some of the personal and usually irrelevant issues that may be preventing them from addressing the tougher ones, if they indeed actually exist beyond the personal clutter. In imploring Mrs. Clandon, McComas tells her:

“But was it altogether his fault? . . . Let me make one last appeal. Mrs. Clandon, believe me, there are men who have a good deal of feeling, and kind feeling, too, which they are not able to express. What you miss in Crampton is that mere veneer of civilization, the art of shewing worthless attentions and paying insincere compliments in a kindly, charming way. If you lived in London, where the whole system is one of false good-fellowship, and you may know a man for twenty years without finding out that he hates you like poison, you would soon have your eyes opened. There we do unkind things in a kind way: we say bitter things in a sweet voice; we always give our friends chloroform when we tear them to pieces. But think of the other side of it! Think of the people who do kind things in an unkind way – people whose touch hurts, whose voices jar, whose tempers play them false, who wound and worry the people they love in the very act of trying to conciliate them, and yet who need affection as much as the rest of us. Crampton has an abominable temper, I admit. He has no manner, no tact, no grace. He’ll never be able to gain anyone’s affection unless they will take his desire for it on trust……”

There are two important negotiation and mediation messages or lessons here. First, don’t get hung up on personal baggage and who is presenting an idea or how it is being presented; and second, it’s not necessarily only what you say, but also how you say it.

What we personally often yearn to see in dispute resolution and negotiation in terms of personality and expression from opposite parties and their representatives is usually not there. We seek, even sometimes presume, kinship in terms of personality, values and approach even with our adversaries, and have difficulty understanding when it is not automatically present. Finding no similarity or commonality on a personal level with our opponents – perhaps seeing only dissimilarity – we are hard pressed to then explore the merits of the dispute. In fact, we oftentimes use these personal and perceptual differences to fuel our differences on substance, and in turn, the controversy. Our personal standards and preferences are ours and understanding that not everybody is going to embrace and manifest those standards is essential if we want to get to the core of the dispute that needs to be resolved. You can’t judge a book by its cover, and as problems solvers we have an obligation to get beyond the cover and into the text

As a neutral I relate to Shaw’s words. I am constantly reminding disputants in mediations that I conduct that what they’re seeing and hearing and experiencing is not necessarily what is being expressed. It is the job of the neutral/mediator to assist the parties in what may be the hidden, or less obvious meanings or the more subtle renderings of what is going on with the other side. Fisher and Ury, in their seminal work resulting in “Getting to Yes, Negotiating Agreement Without Giving In” (Boston: Houghton Mifflin, 1981), understood that physical, cultural and personality distinctions and behavior oftentimes get in the way of negotiated resolution because such behaviors and characteristics might be so dissonant to what we are personally conditioned to that we can’t get past them. It is part of the neutral’s job to help surmount such issues so that the parties can see those factors that may be (more) relevant to the dispute at hand.

As usual, Fisher and Ury hit it on the head. “A basic fact about negotiation [and] . . . easy to forget . . . is that you are not dealing with abstract representatives of the ‘other side,’ but with human beings. They have emotions, deeply held values, and different backgrounds and viewpoints; and they are unpredictable. So are you.”. Remember, first and foremost, negotiators and disputant representatives are people.

Reaction to a stated position in a negotiation or mediation does not exist in a clinically pristine environment. The points and counterpoints of any negotiation are built upon an architecture that includes personality and perception as part of its framework. This goes for both sides of the equation. We not only have to be aware of this factor in our opponents: we must also be vigilant with ourselves. We need to ask certain key questions in any dispute when we find ourselves reacting in a de-constructive manner to a personality or individual characteristics.

What can we do to separate the negative effect of “people differences” from the substance of the dispute? Here’s a short list of suggestions, each of which would merit an article by itself. First, one needs to understand that most such differences are not absolute roadblocks to getting it done. We need to get beyond them, even if it entails a slight detour. Furthermore, these differences are rarely, if ever, personally aimed at us. They may be there for a multitude of other reasons. Once we understand these two points we can employ certain techniques to overcome the problems described above. We can use such things as open discussion. Yes, diplomatically discussing what we think may be obstructing the negotiation. It isn’t a bad thing. To some of us, it may seem a little bit touchy-feely, but if indeed it is getting in the way, then why not talk about it? Furthermore, one can benefit a negotiation by acting inconsistently with the other side’s perception and demonstrating how the interests of the disputants may actually be consistent. What does this mean? Many times we react to what we think the other side is thinking or doing, which in a conflict may often be the worst kinds of things that we can imagine. Why not respond with something that is the best of what might be imagined and point it out to the other side. For example, if we think that the other side is expecting that we are going to continue to scorch the Earth and batter them, why not let them know that you don’t think the negotiation and mediation is the time to be doing that and that you are really there to see whether there are any commonalities and similarities that you can mutually build upon by speaking with, instead of at each other.

We also should not react to emotion, even though it’s hard not to, and it takes a lot of discipline, and integration of this point into our personal repertoire to prevent it from happening with ourselves and the other side. Parties walk out of mediations over the strangest things, which in my experience usually have nothing to do with the substance of the dispute. We litigators like to win and can be awfully stubborn about that point alone. We need to look at the “stubbornness factor” to see if it has surpassed the substance and merits of the case as far as a driving force of the negotiation is concerned.

Communicate, communicate, communicate, and by all means, show them you are listening. This also means communicating with ourselves. During the course of any mediation or negotiation parties and their representatives must constantly ask themselves whether they are separating the relationship from the problem and whether they understand the other side’s perception. Importantly, we must ask whether we are separating our concerns/fears from their intentions, since the two rarely have any meaningful relationship. Of course, this all presumes that you are there to resolve the dispute.

It is part of the neutral’s mission to help disputants do something they often can not do by themselves: separate the substance from the relationship. With the help of a skillful neutral, parties can craft and explore the more positive messages and deal with the issues at hand. Shaw was right. You never can tell what the message is from the appearance of the messenger; and with the help of the neutral and a healthy share of cooperation and patience from ourselves, you never can tell how boundless the possibilities of finding common ground and resolving disputes may be.


Jerome Weiss

Jerome F. Weiss founded Mediation Inc (an Ohio corporation) which is devoted entirely to ADR activities. He has been mediating cases for 23 years. Jerry is a Distinguished Fellow in the International Academy of Mediators (IAM), the leading professional organization for active mediators worldwide. He was recognized as Best Lawyers’©… MORE >

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