Patent Law

An Interview with Bruce Patton

By Rob Reaugh

Eric van Ginkel and Bruce Patton, Tijdshrift Conflicthantering (Conflict Management Magazine) October 2010.

In October of this year, Eric van Ginkel had an opportunity sit down with Bruce Patton, co-author of the books "Difficult Conversations" and "Getting to Yes", Distinguished Fellow of the Harvard Negotiation Project and Partner of Vantage Partners.  If you would like to see the unabridged interview including an interesting story about Camp David, please click here.

EvG: This issue of Tijdschrift Conflicthantering is devoted to the subject of
mediation as a profession. Generally, in the Netherlands, mediations are
conducted without attorneys present, even in litigated cases. Do you know
whether this practice exists in other countries? Or is this unique to the
Netherlands?

BP: It varies by country and by context. In the United States, in a commercial
context mediations have lawyers present, although not always. But in family
mediation and small claims mediation, it is quite rare to have attorneys at the table.
Elsewhere it depends. Also, the United States has many more lawyers doing
mediations than most other countries.

EvG: It is striking to see for example how often psychologists become
mediators in other countries, whereas that is quite rare in the United States.
How has mediation developed as a profession in the United States?

BP: Mediation has developed in several completely unrelated paths, is my
observation. There is peer mediation in schools, where kids are trained to mediate,
that has been incredibly successful. It started out as a violence management and
reduction program.
Then there is small claims and community mediation, which I think partly grew
out of legal training. We started a small claims student mediation program at Harvard,
back in 1979. It also grew out of the community dispute resolution programs, such as
the one started by Bill Lincoln and such folks [1].
I think commercial mediation was driven in significant part by Endispute,
whose founders decided to make a business out of this. Then there was the Center
for Public Resources, which created their list of high-profile folks [2]. I think much of
commercial dispute resolution has evolved, because it made money for somebody. In
places like Florida, Minnesota and Michigan, where they have passed some semimandatory
mediation requirements, lawyers looking for a new business or more
satisfying work thought to themselves, 'I can do good and make money at this.' And
JAMS, which Endispute and the Bates/Edwards Group merged into, has a lot of
retired judges who are making money as mediators [3]. Unfortunately, they are not
in many cases doing something that you can really call high-quality mediation, except
by the most extended definition.

EvG: What do you mean by that?

BP: Well, there is a lively debate about styles of mediation and what mediators
ought to be doing, with so-called transformative mediation on one end, and
evaluative and directive mediation on the other. Even years ago I remember there
was a study in New Hampshire of mediation being done mostly by retired judges who
encouraged the parties to address them as ‘Your Honor', and whose methodology
was similar to what I think is still a common strategy in commercial mediation. It is
basically positional mediation, trying to hammer people into making concessions until
they meet somewhere in the middle. It's not very creative. It may be better for people
than litigation, but it does not leave people feeling very good.

EvG: Yes, I tend to agree with you, but generally that type of settlement
assistance is much in demand, at least here in California.

BP: It is, and not just in California. But you have to believe, even when the parties
don't have an ongoing relationship, that there are many missed opportunities for
more creative solutions. I remember a commercial litigation that Professor Roger
Fisher and I were asked to mediate. It was four days before trial. The parties were
enmeshed in a private antitrust action in California. The plaintiff was a former
franchisee of the defendant. He claimed that the defendant had violated the franchise
agreement by opening stores in competition with him, and he was suing for more
than $1 million. Each of the parties had already spent about $1 million in legal fees.
They were anticipating $350,000 as the cost of a three and one-half week trial each.
And their decision-tree litigation analysis was nonexistent. In fact, I use this story as a
teaching tool to show students why they need to know at least the rudiments of
decision analysis. We asked the defendant how much they were willing to offer. They
responded, '$350,000, because that's what we think the trial will cost us.' 'Wow!', we
said, 'so you anticipate a 100 percent chance of success?' 'No, no, we didn't say
that.' 'Well, that's what it sounds like, since you are not allocating any cost to the risk
of having to pay a judgment.' The defendant then admitted that they thought they
had a 30 to 35 percent chance of losing.
So we asked what they would have to pay if they lost, and they said probably
only symbolic damages of $1. 'But even if the damages are only $1, wouldn't you
have to pay their legal fees?' 'Well, yes.' 'And how much do you think their legal fees
have been? Is there a reason to assume they were any lower than yours?' The
defendant had to admit that was not very likely. 'So that could cost you 35 percent of
another $1,350,000, including plaintiff's cost of going to trial.'
'And what if the damages turn out to be more than $1? What if the plaintiff
wins $1 million?' The defendant's counsel conceded that there would also be treble
damages to pay. 'So maybe there is a 5 percent chance of having to pay $4.35
million?' At that point the defendant's lawyer – from a very prestigious New York law
firm – blurted out, 'So that is how you do it, first you multiply and then you add!'
Then we went to the other side, also represented by a very prestigious law
firm. With the client in the room, we asked the plaintiff's lawyer what he thought his
chances of success were. 'Oh, we have a very good case', he responded, which is
what the client had heard. So we asked him, 'What do you mean by that? Is that 90
percent?' 'Oh, I never put odds on that. In fact I believe that is not appropriate.' 'But
what does it mean?', we insisted. '25, 50, 75 percent?' The lawyer responded, 'As
the former chair of the ABA Ethics committee, putting a percentage on the likelihood
of success would be unethical [4]! My client is as qualified as I am to say what a
jury will do.' So we asked, 'Suppose this case was tried before a judge instead of a
jury, and the judge understood everything you argued and everything the other side
argued, then as an expert on the law, what would you think your chances of success
would be?' The lawyer hemmed and hawed, and then finally said, 'Well, at least 50
percent.' The plaintiff's jaw bounced off the floor! It had never crossed his mind that
that was what ‘very good' meant.
In the end, Roger asked, 'What could the defendant do for you other than
paying you money? What else do they have that you might want?' 'Well,' the plaintiff
said, 'their product would be nice.' Roger said, 'You mean you used to sell their
product, and you wouldn't mind selling it again?' 'Yes', the plaintiff responded.
'That's interesting,' Roger said, 'I thought the defendant was competing with you?'
The plaintiff replied, 'Oh, yes, they were, but their stores went bankrupt.'
So these parties set up their own structured settlement, which enabled the
plaintiff to obtain the defendant's products at a highly reduced price. Both parties
were very happy with the result. The plaintiff was a really good franchisee and the
defendant's stores had gone bankrupt. But it took unusual confidence, even
chutzpah, for Roger to ask the question that opened up this possibility! And yet, as
he suspected, there was a creative solution waiting to be found. I think too often
mediators aren't helping parties look for and find such solutions.

EvG: In September a new edition of your (co-written) book Difficult
Conversations will be published. The first edition, dated 1999, became quite
popular in the United States and around the world [5]. What are ‘difficult
conversations'? And why are they important in both personal and business
settings?

BP: We defined difficult conversations as anything you find difficult to talk about.
When we started down this path, we were actually thinking we could do a study of
what were the ten hardest things to talk about. We had that as a working title. It
caused the Psychiatry Department at Massachusetts General Hospital to have me
over immediately for a talk, because, as it turned out, they wanted to know what were
the ten hardest things to talk about! Unfortunately, by that point we had figured out
that it was entirely idiosyncratic. What is difficult for one person is not for another.
What makes a conversation difficult has to do with your own history and the way you
construct the world, how you feel about yourself and yourself in relationship to others.
Not necessarily the topic of the conversation.
Difficult conversations are important because people worry – rightly – about
the consequences. In most cases, whatever the subject is, people are worried that if
they have the conversation it may damage the relationship, it may in fact make the
situation worse because the other side won't react well, or it may put you at risk as
the other side may attack you or may seek to get retribution even for raising the
subject or for trying to deal with it. So people end up being very concerned about the
potential consequences. And it turns out that their concerns are justified. Those kinds
of consequences often do happen if they have the conversations they are imagining.
What is somewhat less apparent to people, but equally true, is that you get
most of the same consequences eventually even if you don't have the conversation.
Because the problem doesn't go away, and every time you see the person you think
about the fact that you haven't raised it and they are doing it again, and what kind of
a wimp am I that I cannot deal with this. So if you continue not to raise it you start to
avoid the person. And lo and behold, the relationship withers.
I remember a young woman who wanted to talk about her former boyfriend in
an exercise we were doing. She told us that they had had these conflicts over various
kinds of things, but she always said to herself, 'It is not that important to me, and it
seems important to him, so we will just do what he wants.' So they always did what
he wanted. And then he left. She couldn't understand why he left, because they
always did what he wanted. I remember the psychiatrist turned to face her and said,
'Well, of course he left. You cannot have a relationship with only one person in it!'
In business, the problem is that we live in an environment where conflict is a
growth industry. To deal with competitive pressures that are unprecedented,
businesses are doing two things that promote conflict: one is to grow. To eke out
maximum economies of scale, and not be bullied by competitors, businesses in every
appropriate industry are growing to the largest size possible, which in most cases is
global. Just to have enough market share and clout to survive. Second, to be
adaptive and responsive, and to stay out in front, these companies have to be fleet of
foot, so typically they have to flatten the hierarchy. So you get global businesses with
flatter hierarchies, which means essentially that they have more people who think in
more diverse ways thinking they ought to have more of a say in the decision making.
That is a recipe for conflict.
To appreciate just how important difficult conversations are to business,
consider how many management fads have come and gone, such as re-engineering
the corporation, total quality management, you name it. They come with these
persuasive studies showing enormous value at stake. Yet after huge investment,
they always seem to peter out with a whimper, at which point people look around
saying, 'Well, that didn't work!' And only a tiny fraction of the potential value gets
achieved.
It's not because the value isn't there. In our view, the problem is that in every
case implementation requires people with a lot at stake and very different views
about what is the best way to implement the initiative, to reach agreement. That's a
difficult conversation! Their job may be at stake, or their status, and they disagree
about what to do, usually for good reasons, because each has important and relevant
insights. But they don't know how to have that conversation productively, so they end
up either having it unproductively or not having it.
So all these incredible potential value drivers break down at the
implementation phase. And in the end, not much changes.

EvG: In your book, you indicate that within any difficult encounter, there are
usually three distinct conversations present. Can you talk a little bit about
that?

BP: Well, if you compare how people deal constructively with conflict with what
happens if they don't, we found that whatever the topic is that someone finds difficult,
they get into difficulty by acting in a certain way. Yet from the individuals' point of
view, they don't see themselves as acting differently. They think they are acting
appropriately in response to the situation.
As observers, we can see that when our colleagues are having a difficult
interaction, they behave differently than they usually behave. The rest of the time
they are productive.
But when we are the protagonist, we don't realize that our behavior has
changed. We just see ourselves responding appropriately to the other party and don't
see any interactive effect. But it is there.
When we dug into why people's behavior changes into these patterns that are
predictably unproductive, we found that behavior is driven by your thoughts. And we
found that in people's heads, in their internal voice, they are talking to themselves
about the conversation they are having.

EvG: Is that so-called ‘self-talk'?

BP: Yes, it is self-talk, and it's always there. We found there were three categories
of thoughts that people were having. And that there were characteristic patterns that
were unproductive and characteristic patterns that were much more productive in
each of them. They correlated very closely with what kind of behaviors and what kind
of outcomes you were getting out of conversations.
The first category is all about the story. 'What is going on here? What's the
story? Who caused this to happen? Who is responsible for this? Who should do what
about it? Why did this happen?'
The second category is about identity. 'What does it say about me that this
has happened? Are they accusing me of being a bad person, or a bad manager?'
And the third category is about feelings. What to do with the strong feelings that
perceived threats to my identity often produce. 'I am feeling really angry. Should I let
him have it or should I try and stifle it?' Or, 'They are crying! My God, what do I do?'

EvG: You talk about outcome. There seems to be a gap between the typical
outcome of a difficult conversation and what people would like the outcome to
be, what should be possible as an outcome. In November you are coming to
Amsterdam to conduct a workshop. Does your upcoming workshop touch on
this issue, this gap?

BP: Yes, absolutely. And not only the gap, which is generally a huge gap. The real
dilemma that people face is that they will get the bad outcome they fear, whether
they have the conversation or not – if they go into it thinking the way we typically do
when we are in a difficult conversation. We tend to want to change the other person.
That may or may not be possible, but it certainly won't happen until we change
ourselves and change the stance from which we approach the conversation. That is
something we definitely will talk a lot about and practice in the workshop.
There are two things you need to be able to do to get more productive
outcomes, and to make yourself more comfortable in difficult conversations.
The first one is to recognize when your thoughts have the characteristics of
toxic waste. You know that if you say them they are likely to be provocative, and you
know that if you don't say them they are likely to be corrosive inside of you. When I
ask people, they say, 'Yes, I can tell when my thoughts are toxic.'
The second thing you need to be able to do is to talk to yourself. I ask people
to think of a time when they were on the edge of doing something unproductive and
when they were able to persuade themselves to take a deep breath and think of
another way to go forward. Everybody has examples of that, so we know we can talk
to ourselves. And that is what it takes.
What we talk about in the workshop is: all right, what do you say to yourself?
What are the things to watch out for? And we take a look at where the toxicity comes
from. And what kind of shift you need to make in your thinking that doesn't take
anything away from the importance of what you have to say. Because if you are
upset, you have something that needs to be shared and is valuable. But it is like
radioactive gold. You need to get rid of the radioactivity so that people can use the
gold.
So we take a look at the theory. It is simple, and easy to see it in other people.
The challenge is to be aware of it when you do it yourself. We take a look at the ways
in which we put radioactivity on our stuff, such that whatever we say we are going to
get in trouble if we are starting from that point. The shifts we can make are relatively
subtle in some ways, but they can have a huge, huge impact.

EvG: So is it fair to say that the common trap that makes a conversation
difficult is that we are all self-obsessed?

BP: I wouldn't put it that way. I would say that if we are trapped by anything it is the
fact that we have eyes in front of our head. So for us, the problem is always out
there. If we are watching two colleagues that are in trouble, we understand that they
are both part of the problem. But if we are one of the two colleagues that everybody
is watching, there is a tendency, since our eyes are in front of our head, to see only
the other person as the problem and not to be able to appreciate what we might be
doing, what we might be contributing. It doesn't even mean that we are to blame,
because often people get in trouble by doing things that are in no way blameworthy.
They are just different, and they intersect badly.
Take time, for example. Some people get really bent out of shape if you are
two minutes late. They feel it is disrespectful, that their time is worth more than that.
Half the world feels that way. But the other half feels that you can't possibly know
when a meeting is going to start until it starts.

EvG: So how can we stop the blame game? What are some of the techniques
that we can use?

BP: The first step is the realization that when anything serious goes wrong,
especially in an organization or within a relationship, there are always multiple
contributions. Not necessarily blameworthy ones. But multiple things that everybody
did or didn't do that helped things come out as they did.
Take for example a company that made the strategic decision to build a new
plant, because they thought they needed to be bigger in order to bully the market.
And they built this new plant at a cost of a billion dollars, and it lost money. And the
company continues to lose money. So they fire the plant manager and put in another
one. And then they fire that one and put in their best plant manager, and it still loses
money. They are about to fire that guy.
Then they decide to hire a consultant, who points out that the market price in
that industry is determined by supply and demand. The company built the largest
plant on earth, so it substantially increased supply, and therefore the market price
went down. When comparing the company's production costs with those of its
competitors, the consultant finds that the company is not the low-cost supplier. In
fact, the company is a medium to high-cost supplier. And the company was barely
breaking even when it started to build this plant. In sum, the consultant points out,
'So you built a new plant, you lowered the market price, and it is below your cost of
production: you killed yourself!'
In the meantime, the person who had proposed building the new plant has
been promoted to CEO. You look at that situation and say, 'Whom do you blame?'
And you know, if you have lived a corporate life, that if you start to play the blame
game, it'll be like musical chairs. 'Somebody is going to get squashed, let's make
sure it is not me.' And everybody starts thinking, 'Not me, not me!' It does not matter
who gets squashed. You can fire the CEO, the plant manager, it does not matter. It is
not going to increase your confidence in that company. It is not going to take away
any of the dysfunction of the company.
Instead, you can ask a different question: 'Who contributed in some way, by
action or inaction, that you can imagine if they had done something different the
outcome might have been different? And let us list all of the people who might have
done something.' There must have been a ton of people who had their doubts about
that strategy. But then why didn't they express them? Undoubtedly, there were those
who made it uncomfortable for people who said things like that. So everybody who
made it difficult to raise doubts also contributed. As did the Board of Directors that
approved that strategy, and promoted the guy whose idea it was, and the auditors
who reviewed it. Obviously, there were a lot of people involved, and a lot of things
would have to change to fix that company.
When things go wrong in a complex system, it is the result of multiple failures.
If your goal is to fix it, you need to ask a different question than who is to blame:
'How did we collectively do something stupid without realizing it?' It did not seem
stupid at the time.

EvG: So would it be correct to say that it involves an analysis of the causes
rather than linking them to the particular behaviors of people?

BP: Yes. You are looking for multiple causes. And the truth is that if you have a
real screw-up in your company, they are easy to get rid of. You get in trouble when
smart people do things that appear stupid in retrospect. Then you know you have a
systemic failure. And those are the conversations where we tend to waste an
immense amount of time figuring out who is to blame.
Or take another example. A strategic alliance. Things always go wrong. You
know, something gets delivered late, or it takes longer. You can kill an alliance and
all its potential value if the reaction, which you know will be the reaction of executives
at some level or another, is, 'Whose fault is it? Make them pay for it!' You can literally
fall into a black hole arguing about that. And it is inevitable that you will have a whole
string of these kinds of mishaps.
An alliance works reliably only if the people at the interface are competent
enough and confident enough that when these kinds of things happen, they stop and
say, 'Let's figure out how we got into this situation without worrying about blame. And
what do we need to do to fix it?' When executives come down and say, 'You make
them pay for this!', the good relationship managers reply, 'You know what? We will
make sure that costs are allocated fairly.' 'Oh, but this is going to screw up my
numbers for this quarter!' 'Well, if that is the way it comes down, I am sorry about
that. But let's see what we can do, because I guarantee you your numbers will be a
lot worse next quarter if we don't handle this right.' And that is what it takes.
In any kind of complex relationship, whether a strategic supplier relationship or
a strategic alliance, if you don't handle the inevitable flood of conflict that pops up
every single day in a sensible side-by-side approach of let's figure it out, let's fix it,
you will never reap the benefit of complex relationships. They will die. And yes,
indeed, if somebody should pay, then let's figure it out fairly on the merits.
You could say that businesses have spent the 90's and now most of the
2000's trying to deal with competitive pressure by doing cost cutting and other lowhanging
fruit kind of things to make themselves more productive. Yet I know very few
people who work in organizations where they say, 'This is a place that is perfectly
run.' Anybody in a large organization is thinking about all the ways that are crazy
about the place.
For the next ten or twenty or fifty years the really hard work is going to be to
figure out how we make conflict within our organization not a cost center or a
potential killer, but actually an engine of innovation and a competitive advantage.
Because conflict inevitably means there is something we are missing, there is an
opportunity for getting ahead of the curve faster than our competitors by seeing
something coming. The question we should be focusing on is, 'How do we make
managing conflict routine, low-cost, and safe enough for people to take it in stride?'
Because the measure of a good relationship is the degree of conflict you can
take in stride, whether it is a personal marriage or a business relationship. There is
always conflict and in a bad relationship it blows up, and in a good relationship you
take it in stride. We have to make dealing productively with difficult conversations a
routine core competency.

EvG: I like the comparison you make between a marriage and an employment
relationship in business. Somewhere in the mid to late 80's, the commitment of
companies towards their employees shifted dramatically, and it became a
much looser relationship in which it was acceptable to let people go if the color
of their hair was no longer attractive enough. I believe that is part of the
problem that you are signalling, and one of the reasons why these
conversations have become more and more difficult.

BP: I believe that too. It dates back to the moment when personnel became
‘human resources'. A lot of people seem to like the term ‘human resources'. I like
‘personnel' or ‘people' myself. The expression ‘human resources' dates from a time
when there was a dominant metaphor for organizations that took hold in academia
and in the business world of ‘organizations as machines'. It not a very good metaphor
in many different ways.

EvG: What is new in the new edition of Difficult Conversations coming out in
September 2010?

BP: We answered ten questions that extend the ideas into different areas that
people find challenging. For example, how do you deal with conversations that are
going on by e-mail, or over the phone? How is that different? There is a lot of
research about how that is different and what to do about it. Also how do you take
account of different cultural contexts and expectations?
And, what do I do when I know that I'm stuck in my identity? I keep having the
same bad conversations. Afterwards I can figure out exactly how I got triggered and
why I did what I did, but I cannot seem to change it. I keep doing this thing that gets
me in trouble. So where do I go from here? In other words, it is a number of
questions that we get asked a lot, so we know they are of interest. It adds up to
almost 60 pages of new material added as a new section at the end of the book.

EvG: When are you coming to Amsterdam?

BP: On November 10 and 11, I am putting on a two-day Difficult Conversations
Workshop for business leaders, and the night before I am doing a three and one-half
hour session for the general public. That will be broader in its applicability. It is an
overview for people who are unable to take the full two-day workshop.

EvG: Bruce, I want to thank you for this interview. I wish you much success
with the new edition of Difficult Conversations and with your workshops in the
Netherlands.

-End-

End Notes
1. Bruce Patton is a co-founder of the Harvard Negotiation Project, and as Deputy Director of
HNP led it from 1979 until 2009. He is still Distinguished Fellow of the HNP. He is also a
founder and partner of Vantage Partners, where his work focuses on negotiation and
relationship management in supplier, alliance, outsourcing, and merger contexts; managing
internal executive teams or cross-matrix conflict; and on negotiation advice and capacity
building. Bruce is also a founder and Board member emeritus of the nonprofit Conflict
Management Group (now part of Mercy Corps). His many publications include GETTING TO
YES: NEGOTIATING AGREEMENT WITHOUT GIVING IN (with Roger Fisher and William Ury) and
DIFFICULT CONVERSATIONS: HOW TO DISCUSS WHAT MATTERS MOST (with Douglas Stone and
Sheila Heen).

_____

End notes

1. Bill Lincoln is the Executive Director of the Conflict Resolution, Research and Resource
Institute, Inc. (CRI), see www.cri.cc. Bill's early experiences include direct intervention in riots
within adult correctional institutions, public school desegregation crisis and Native American
affairs. His work began in 1967 when he spontaneously mediated a racial disturbance in
Rochester, New York. He played a leading role in community mediation in the 1970s and
1980s.
2. Now called the International Institute for Conflict Prevention & Resolution, see www.cpradr.org
3. Formerly an acronym for Judicial Arbitration and Mediation Services, JAMS is the world's
largest for-profit dispute resolution provider. Especially initially most of its neutrals have been
retired judges. In 1994, San Francisco-based Bates/Edwards merged with Boston-based
Endispute, which in the same year merged with JAMS.
4. Formally called the Committee on Ethics and Professional Responsibility of the American Bar
Association.
5. D. Stone, B. Patton and S. Heen, Difficult Conversations, How to Discuss What Matters Most
(with a foreword by Roger Fisher), Viking/Penguin Books, 1999; second edition 2010. The
(sold out) Dutch version appeared in June 1999 under the title Moeilijke Gesprekken,
Handleiding voor het voeren van gesprekken waar je als een berg tegenop ziet, Spectrum,
1999.

-EvG

Full post as published by IP ADR Blog on February 16, 2011 (boomark / email).