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Think of a time when you – or a friend you were helping – was in a dispute, a disagreement, or some sort of dust-up. Maybe it was a conflict in your workplace. A family disagreement over an inheritance. A business dispute. Or a divorce. What were your questions?

Think back to the earlier stages of the situation. Think back, before you may have hired a professional or someone took some drastic action. What were the questions you had then?

In that early stage, if you had free and easy access to a network of professionals, what would you have asked them?

No more tarot card readings. No more conjurings. No more magic potions.

Darn. And I was just about to go buy me some digital JuJu.

Why did eBay stop? The answer warms this dispute resolution professional’s heart.

eBay will no longer serve as a marketplace for the sale of these services because they “often result in issues that can be difficult to resolve.”

Well, ya think?!

Let’s see just how difficult these issues could be to resolve. But first, let’s back up a bit and put some context around this.

Commercial Disputes: from $10 to $10 Billion

The scale of commercial transactions can be seen on a spectrum. From eBay transactions on stuff that in an earlier age would have been sold in a weekend garage sale, to customer relations on consumer goods, to disputes between businesses, to multi-billion dollar disputes between transnational enterprises.

The swing on the expensive end of that spectrum can fuel a lot of animosity. The potential risks and rewards can justify a lot of capital expense in lawyering-up and fighting. “Send lawyers, guns and money” Warren Zevon sings.

Commercial disputes can be accurately described as a difference in the parties’ expectations. One party thought the transaction was one thing; the other party thought it was going to be something else. It didn’t turn out that way, so one party – or maybe both – are disappointed.

Dashed Expectations

Yet it doesn’t take bank-loads of money at risk for people to get upset. It isn’t necessary for the numbers to have lots of zeroes for people to get very exercised about their conflicts. They can do that all by themselves over a pittance. All it takes is a small transaction – the scale of a item sold in a garage sale or on eBay – that doesn’t go as they expected.

That’s because all commercial disputes at base share the same conflict dynamic. What is that? All commercial disputes are conflicts among humans. Humans can become disappointed over relatively small things.

Agreements at the outset that set clear expectations are the best dispute prevention. When millions and billions of dollars are involved armies of lawyers and paralegals can be hired to create massive contracts that could fill rooms. On a smaller scale, two partners going into business together can benefit from even a two page contract.

Yet even one-page contract may not always be possible. Spending time for each buyer and seller to reach an agreement isn’t always in the cards. Front-loading a marketplace with measures to prevent conflict in all transactions isn’t always efficient.

What to do? Instead, back-load the system to deal with just the transactions that wind-up in disputes.

That’s what eBay did.

Online Resolutions to Low-Value Disputes

The millions of participants on eBay rivals the largest countries in the world. It faced having hundreds of thousands of disputes involving transactions over relatively small amounts. It used its expertise in the online world to address the challenge that all these disputes posed to its marketplace. It created what is probably the most extensive Online Dispute Resolution (ODR) system in the world to handle this high-volume of low-value disputes. It has been on the cutting-edge of ODR from the get-go.

eBay was able to do this because people doing transactions in consumer goods largely have the same expectations. Even millions of individuals from all around the world will all have similar ideas about how the deal should go down: The thing should work. It should be as described. It shouldn’t be broken. If it’s worn it should be cheaper. It should be delivered when promised.

It’s so much more likely for parties to have differing expectations when at the outset there isn’t any basis for even beginning to understand what the transaction is supposed to be.

Which brings us back to the warranty on that hex.

Resolving Disputes about Magic

How long should a voodoo curse take? How do you decide how whether a tarot card reading was accurate enough? How do you know if a healing blessing was effective?

How would you even begin to resolve these disputes?

I don’t have a clue. Apparently neither did eBay.

Maybe we’ll see the emergence of a new online marketplace for this stuff. CurseBay? I’ll be interested to see how they resolve their disputes.

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Even if they don’t use the word, they’re talking about Justice.

I tell my mediation clients they can do better than Justice.

Justice: a Societal Standard

Justice is the central value of our legal dispute resolution system. It’s the standard by which we judge the actions of the parties to see how they measure-up.

Yet Justice doesn’t exist for the parties. It’s not for them. It’s for the rest of us. The legal system serves Justice so the rest of us will continue to have confidence in it. When the rest of us are confident that our legal dispute resolution system is just and creates just results, we’re more likely to trust it with our own disputes.

Our legal system serves Justice so the rest of us can look at the result in somebody else’s case and say to ourselves “yep, they got that about right.”

That’s not to say that the people who are in the thick of a dispute don’t also have a sense of Justice. They usually do. Justice is a mantle that they can put on as a cloak to drape themselves and justify their positions. They adopt it to gain allies to support them, to tell them they’re right and are justified in holding their positions. They may us the language of Justice to try to persuade the person they’ve got the dispute with that they’re right (it rarely does). They may think appealing to Justice will convince me, the mediator, that they’re right (that never happens).

Yet Justice begins as a value that comes from outside the parties. It is external to them.

Justice can become part of the parties’ beliefs. It shapes their internal standard of Fairness. But it does not come from within themselves. It does not form the earliest, most deeply-seated beliefs about what’s fair.

Fairness: a Personal Standard

Fairness seems to be a central value we inherit genetically. Each of us starts with some innate sense of Fairness, which we then build-on to construct our own complex belief system. It’s based on our unique upbringing, social and cultural conditioning and life experiences. These ideas of Fairness form the parties’ most deeply-felt beliefs and values and shape their highest and most important goals. For each of us, our sense of Fairness is more nuanced and rich, more deeply-held and much more personal than Justice.

We do best in mediation when we get beyond the external ideas of Justice that we may have taken upon ourselves. We do best when we dig down deep and get back to our uniquely personal sense of Fairness. When the discussions can be grounded in these deeply-held and personal values we can form more effective and sustainable resolutions.

When people with disputes are working toward an agreement in a mediation, and they focus on what seems fair to them – on what’s most important to them – they can do better than Justice.

Gears in a machine had meshed well before. They have shifted slightly. They are now grinding against each other.

The machine had once been working well: efficiently, smoothly and quietly. Somewhere there has been a change. It is now less efficient. More energy is needed to get the same amount of work done. There is friction. It now makes noise.

The rest of the machine reacts to the change. The gears spin, then they engage. Sparks fly. Teeth break. The machine lurches.

These are reactions. These are not intentional choices. They are not deliberate decisions.

We may try adding more grease to the machine to stop the annoying sounds it makes. At first it smooths things. It may quiet things down for awhile, but the noise will come back. We can keep adding grease to the machine indefinitely. Even so it may still all come to a grinding halt. Greasing the squeaking wheel does not address the underlying change that causes the sound it makes.

Or we can make deliberate, intentional choices about how we decide to respond to the change. It may require other changes in response. It may require fundamental readjustments of all the parts. Parts may need to be fixed or replaced. The whole machine may need to be retooled. It may need to be refurbished, rebuilt or even redesigned. Or maybe just a tweak in the position of one gear will get things running smoothly again.

Conflict is a sound that change makes.

Conflict resolution is the process of making deliberate decisions and intentional choices about how we respond to change.

They both want something the other has. That alone isn’t really a problem. The problem is they’re both afraid they won’t get it.

Mediators can help them find a solution even if they only focus on what they see as their own side of the problem. Yet if they are able and willing address their common problem they can create many more possible solutions.

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“Don’t talk religion or politics. It’s not polite.”

That was the conditioning I received growing-up. Of course as children we heard the adults doing exactly that: talking religion and politics. They did it after the kids had gone to bed, in veiled but intense tones. Their vowels were hushed in stage-whispers, yet we heard them spit out their consonants at those who thought differently than them.

So we learned not to talk religion and politics. And we learned we cannot not talk about religion and politics. They are too important not to talk about. Religion speaks to the manifestation our spirituality and our deepest desires for connection and meaning. Politics speaks to how we interact and structure ourselves in a civil society. They point to things that have to be talked about.

But some of us were told not to. Yet we can’t stop talking about them. There is a part of us that still feels guilty when we talk religion or politics. Yet we do. We must. To try to resolve this conflict within ourselves we have a number of strategies.

How We Speak About the Unspeakable

We have learned to talk about touchy subjects, but only with other people who we know – or at least suspect – think the same way we do. People who won’t challenge us.

So we gather together to talk only with other like-minded people. In union halls. In chambers of commerce. In service clubs. In churches and synagogues and mosques. In precinct meetings. On Facebook. We gather together to talk with others what we need to talk about. To talk about the things we feel guilty talking about. With people who think like we do.

We may withdraw from political action. It becomes to us dirty politics, the refuge of lying politicians all of whom are on the take. We still have our beliefs about what government and public officials should do, of course. But now we can talk dismissively about politics as something we would never do. So when the political debate gets heated we can dismiss the whole affair and smugly claim all politicians are liars and scoundrels and criminals.

Similarly, we may withdraw from anything that smacks of religion. From there it’s easy to dismiss anything that tries to put words to our inner voice as irrational or superstitious.

We may continue to talk about religion, but not as religion. It becomes morals. We’re not talking about religion anymore, but about the right way of doing things. It’s no longer a matter of “I do this because of my religious beliefs.” It has become “this is the way I do things and the way all things should be; this is the right way moral people should act.”

We may talk of political things similarly, in absolutist, and ideological terms.

In this way our views on religion and politics become entrenched. By talking only with others who agree and won’t challenge us, our already ideological beliefs become even more accreted and solidified. Now we talk about “what’s right,” the way things ought to be done and even The American Way. We are no longer able to question them. We no longer see they came from somewhere else and have deeper roots. They just are. They are unquestionable. And they are right.

The Trouble in Talking with Others

“It’s my opinion and it’s very true.”

These are not great strategies for priming one’s participation as an informed citizen in our body politic. They’re not great ways to interact with others in a civil society.

There are other people in our world who in working to resolve the same or similar conflicts in themselves reach very different conclusions than we did. They’ve come to their ideas about “what’s right,” the way things ought to be done and even The American Way. And their ideas are not our ideas.

Trouble comes when we find ourselves talking to these people. Not only are their ideas different, they seem contradictory to ours. It seems we cannot have our ideas when they also have theirs. We feel threatened. So when we and them come together and start talking about our different ideas, it often doesn’t go very well.

We have a hard time talking with anyone who expresses different ideas. Conversations between ideologues about absolutes are hard to start. Once started they’re hard to keep from turning into verbal fistfights.

We see this in the Point-Counter-point style of debate. They’re not informative. They’re rarely persuasive. At best they only satisfy the speakers that they, and they alone, are right.

We have morphed the unspeakable – religion and politics – into the unquestionable. We’ve converted them into ideological beliefs so we can talk about them among ourselves. It means that we can no longer talk about them with others.

Practice, Practice, Practice

We don’t get a lot of practice talking with others who think differently than we do. Because we don’t get a lot of practice, we’re not very good at it.

It’s not just the conflicts over religion and politics we have a hard time talking about and that we don’t practice much. There are other conflicts that are as much borne within us and come from our conditioning and our different experiences. They can be conflicts within our other communities and societal structures, like work and family. These difficulties we also convert to immutable beliefs and don’t talk about with others who may think differently. So we’re not good at it.

The solution is to practice. Practice talking about them. Practice talking with others who think differently than we do. It may not always go well. But we’ll get better at it the more we practice.

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Don’t settle.

Do anything else.

Work it through. Hash it out. Roll up your sleeves. Get down to business. Get real. Talk. Tell your truth. Stick with it. Describe. Declare. Dig. Explore. Expose. Listen. Hear. Unpackage. Understand. Dialog. Discuss. Cooperate. Collaborate. Investigate. Integrate. Envision. Encourage. Fix. Focus. Prioritize. Plan. Acknowledge. Agree. Accept. Decide. Design. Restructure. Revise. Restart. Recognize. Resolve. Construct. Create. Build.

Just don’t settle.

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Don’t do it. And don’t act like you’re doing it when you’re not.

You’ve got something better you can do.

In adversarial negotiations concessions are often made in the face of more powerful claims. It’s often rightly seen as an act of weakness. Even when it’s not done from a position of weakness, it’s often wrongly seen as an act of weakness. So either way, that’s not a message you usually want to convey in an adversarial negotiation.

Not exactly negotiating from one’s source of power. It’s so strange to see it used so often.

Concessions usually are made unilaterally. Yet they often come with an implicit expectation that a concession must be made in return. There’s the unstated assumption that if I’ve made a concession you “owe” me one. The one conceding often can be heard later to say something like “we’ve already made so many concessions to you already it’s time for you to come closer to us.”

Think that by making concessions you can hide-the-ball and not let the other side know what’s really most important to you? Go right ahead. You’ll create an obstacle to trust. You’ll create an adversarial negotiation if it wasn’t one already. And do you really think the other people involved don’t know what’s most important to you? You’re not fooling anybody when you do it. And do you really think you can get what’s most important to you by acting like it’s not most important to you?

You’re giving up something that actually isn’t that important to you, but you’re acting like it is. Then expecting to get something in return when you didn’t ask for it. Then getting upset when you don’t get it. All around, not not a great foundation on which to build a negotiation.

The concession-charade doesn’t build trust in the negotiation relationship – something that’s necessary for any negotiation – adversarial or collaborative.

Sometimes it seems that maybe concessions are thought to be a way of being cooperative without looking cooperative. Or maybe looking cooperative without being cooperative. They aren’t either. Giving-up or giving-in isn’t cooperative – it’s just appeasement.

Collaborative negotiation is about working together toward an agreement that best addresses what’s most important to everyone involved. Concessions don’t do any of that. They’re bad adversarial negotiation tactics. They’re bad collaborative negotiation tactics.

What to do instead?

In negotiations I coach my mediation clients to not make concessions. What to do instead? Make offers of exchanges of value. Always make them conditional:

I want your X; you want my Y. I’ll give you my Y for your X.

When you make offers of exchanges of value, you’re focusing the negotiation on what’s most important to everyone involved. You’re focusing the negotiation on what everybody wants most while not focusing on the things that aren’t as important. That’s what’s necessary to reach an agreement. To get others to agree to a solution that best addresses what’s most important to you they’ve got to think that it also best addresses what’s most important to them.

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My wife worked for an airline owned by a person who was larger-than-life. He was at the airport and overheard an obnoxious customer verbally abusing a gate agent. The man was demanding his way asserting “the customer is always right!” The owner approached the counter and addressed the man: “The customer is always right, but that doesn’t mean you have to be my customer.” He then told him not to fly on his airline anymore.

The cost in time, effort and money that it would take to make a collaboration effective may be too great for the likely benefit. In relationships people grow apart. At those times disengagement may be a very valid strategy.

“The squeaking wheel doesn’t always get the grease. Sometimes it gets replaced.” – Vic Gold

I know people in my business who are as knee-jerk about collaboration as some in my former work are about litigation. Either way, their professional recommendations are driven more by their ideology rather than what the client believes is most important.

There may a cost to disengaging; most choices in these matters do have their effects. So knowing when to engage and collaborate, or to disengage and withdraw, is an important decision. It requires clear-eyed discernment. You don’t want to mistake a momentary emotional frustration for a clear assessment that the outcome is not worth it. They are two very different circumstances. A mediator can help you find your answer to that question.

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