The January 2012 issue of the California Lawyer contains an article about tattoos in court. As the blurb intrigued me, I read the article, entitled “Tattoos as Evidence” by Ryan Lozar (pp 37-39) (Tattoos as Evidence ) in which the author discusses the existence of a tattoo on a criminal defendant as potentially biasing a jury:

It’s a fact of life that people make snap judgments about each other’s character based on discretionary aspects of physical appearance. . . . This is especially true when it comes to tattoos, whose bearers-depending on the nature of the tattoo itself – may be viewed as seedy, provocative, or downright dangerous. The consequences of such judgments can be serious for a tattooed criminal defendant. . . . (Id. at p. 37).

            The author goes on to describe how in a race-related murder trial in Florida, the court granted the defendant’s motion to have the state pay for a make-up artist to come each day before court to cover up a swastika and barbed wire tattooed onto his head. The court agreed with his counsel that such a tattoo was likely to offend, intimidate and/or frighten jurors to the point of losing their objectivity. (Id. at p. 37).

            There is no doubt that tattoos are a much more serious matter in a criminal matter than a civil one. The criminal defendant has much more at stake than does a civil plaintiff or a civil defendant. But, a tattooed civil plaintiff  or defendant still impacts the jury, and impacts the other party who is deciding what to do about settling the matter.

            I have conducted a few mediations in which either the plaintiff or defendant has tattoos – sometimes small, sometimes not so small. In such instances, I have, at times, taken his/her counsel aside and pointed out that the tattoos may give the wrong impression to a jury. While the response I often receive is that if the matter does go to trial, the party will wear long sleeves or other clothing to hide the tattoos, my comments are not lost on counsel; if counsel has not already had that conversation with her client, she proceeds to do so during the mediation.

            It is wrong to make snap judgments; but, as the author of this article notes, we all do: it is a fact of life! It is “appearance bias” about which I have previously blogged. But this time, it is quite specific: tattoos. We all have opinions about them, and probably strong ones: very much in favor or very much against. And, our views are probably generational. While the World War II and baby boomer generations are most likely to be against tattoos, the Generation X’ers and the “Y” Generation most likely think they are “cool” and see nothing wrong with them!

            So, I guess the point here is that “beauty is in the eyes of the beholder.” If you are a baby boomer or older person like me, be cognizant of your appearance bias against tattoos. Try not to make a snap judgment about the person simply by the tattoo being displayed. And, . . . if you are the person wearing the tattoo, be aware that everyone does not think tattoos are cool;  quite the contrary – they may be biased against you simply because of your tattoo! Opportunities may be lost simply because of the art being worn on your body!

            Tattoos and bias! A fact of life.

            . . .Just something to think about!

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              First and foremost, I want to wish each of you a very healthy, happy, prosperous and peaceful New Year. To obtain that peace and a peaceful resolution to all of your disputes, may I suggest something different and oxymoronic: trust. That is right, “trust”. Why?  Because, a lot of disputes (and lawsuits) arise because the parties no longer trust the other: an aura of distrust now exists.  Ironically, to resolve the dispute (and lawsuit), the parties, to some degree, must be willing to trust each other, what each says to the other, and what each agrees to do. Without some modicum of trust, the matter will never be settled.  

             Recently,  my colleague Linda Bulmash suggested ways to build up trust during a negotiation so that those negotiations will succeed. In her Negotiation Tips for November 2011 (Vol. IV, No. 10, Los Angeles County Bar Association), Ms. Bulmash pointed out that it is important to start building trust prior to the negotiations, as well as at the outset of the negotiations. As we are beginning a new  year, perhaps we should think about new ways ( i.e., using “trust”) to resolve disputes. Ms. Bulmash suggests five guidelines to build and maintain trust.

“1. Make maximum use of networks. We seldom have the ability to choose who we negotiate with but that doesn’t mean your network of professionals, colleagues and friends can’t help you assess your negotiating partner. With the advent of e-mail and social networking sites, there are many ways to check out your counterpart. The more you know about them, the better your chance of building rapport and the less chance you will fall into traps.”

“2. Build rapport before negotiating. Research in social science has proven that people respond positively to and more readily trust people that are similar to them and will respond to actions with similar actions. The more you know about your counterpart before you meet them, the more likely you are to find a common bridge that builds trust. And the reciprocal nature of trust underscores the value of building that rapport.”

“3. Set an appropriate “trust default”. The above is not to suggest that if you do these things both sides will implicitly trust each other. You have to calibrate how much to trust someone. One way to reduce the odds of betrayal is to begin the negotiation talks with a frank discussion of the ground rules of the negotiation as well as your basic beliefs about trust. Indicate that you take a cautious approach to building trust and it will develop over time. Ask them to agree with you that you will both act in a trustworthy way. This may seem axiomatic but actually stating this puts the issue squarely at the forefront of the negotiation and makes it more difficult for someone to violate the agreement. Of course that mean you have to do the same.”

“4. Win their trust. Most of us have to tendency to immediately devalue the other side’s concessions (reactive devaluation). Therefore, one way to win their trust is to carefully label each of your most important concessions. After making the concession, let them know the relative “cost” of these concessions to your side. They won’t reciprocate with a concession if they don’t know that you gave something that you value to them.”

 “5. Build trust by listening and acknowledging. The other side has to feel they are being treated fairly for them to trust and cooperate with you. Their satisfaction with the deal comes more from feeling they are being treated fairly than from the objective value. So be modest about what you are getting and compliment them on their achievements.”

            The first two suggestions remind me of the Chinese term “guanxi” – the art of building relationships. Doing business in China is all about relationships. One must build a personal relationship so that doing business is personal. As explained by Michelle Dammon Loyalka in her article “The Art of Chinese Relationships” Bloomsberg Businessweek (January 6, 2006):

““You have to spend a lot of time there building relationships. “. . .So that first contract is very expensive to make.” While the standard American approach is to get straight down to business, in China  the focus is first on forging a more personal relationship. “It’s a very different style of doing business.” “. . .Probably your first meeting you wouldn’t mention business at all.””

            In short – all business is personal. We could learn this valuable tip from the Chinese.

            The second suggestion also reminds me of the principle of “Liking” discussed by Robert Cialdini, Ph.D in his book, Influence – The Psychology of Persuasion (1984). In sum, people are easily persuaded by people that they like. If a person likes you, what you say to her will more likely influence her. It is through socializing that this “liking” comes about!

            The third suggestion relates to setting realistic expectations about the process of negotiation. By setting the ground rules and defining the playing field, no party will be mislead about the process of or how the negotiations will proceed and thus will not feel misled or betrayed.

            The fourth suggestion is based on another principle in Dr. Cialdini’s book: the principle of reciprocity which is that people tend to or feel obliged to return a favor. That is, if one party makes a concession, the other party will feel obliged to return the favor and so make a reciprocal concession. As this reciprocity continues, the parties’ demands and offers get closer and closer together until  they both agree on the same thing and settle their differences. Reciprocity can be powerful!

            The last suggestion is tried and true and a basic tenet of any negotiation: really and truly listen to what the other party is saying and reframe and acknowledge what the other party is saying so that the other party knows she is being heard and understood. As one of my early trainers explained to me: one can acknowledge another’s position without agreeing with it. This is an important concept that if followed, can build the trust and rapport needed to resolve a dispute.

            In sum. . . disputes are all about personal relationships, and trust – losing it and regaining it.  In 2012,  think about “trust” as your mantra for the coming year. 

            . . .Just something to think about!  

           In one of my very early blogs, I discussed the book, Beyond Reason by Daniel Shapiro and Roger Fisher. In it, they discuss five ways or core concerns to overcome emotions when negotiating. One of them is “appreciation: express appreciation of and to your adversary”. (The others are affiliation, autonomy, status and role.) Each one of us loves to feel appreciated and showing it to others, does wonders in getting issues resolved.

            I mention this because recently my colleague Maria Simpson, Ph. D in her Two Minute Training: Communications Tips for November 15, 2011 showed how appreciation of others works as a great motivator to get people to do things. She explains it so delightfully in terms of The Wizard of Oz (by L. Frank Baum), that I can only do it justice by quoting verbatim:

If I Only Had a Brain

 “The dilemma over motivation and rewards never ends. Most of us agree that using carrots instead of sticks works better at encouraging people to do their best, but we don’t all agree on what those carrots should be. Sometimes we are limited by the organization’s policies or resources, and sometimes by our own lack of understanding of what people need to be motivated and feel rewarded.”

“Ultimately, giving each person more of what matters to that person is the best motivator. Yes, money works, but after a while, even money doesn’t trump disrespect or lack of opportunity or lack of value in the work. People need more than money.”

“This isn’t a new idea. L. Frank Baum gave us the perfect example long ago in The Wizard of Oz. Each character talks – or rather sings – about a very basic need, and Baum was a genius for demonstrating how to reward and fulfill those needs.”

“Throughout the film Scarecrow sings about how much better his life would be “if I only had a brain.” He’d think great thoughts, he could solve puzzles. “I would not be just a nothin’ my head all full of stuffin’/ My heart all full of pain./ I would dance and be merry, life would be ding-a-derry/ if I only had a brain.” Scarecrow wants to be happy and he believes that if he were smarter, he would be happier because of the great ideas he would have and could talk about with others.”

“Tin Man desperately wants to be more human, to feel human emotion, and he thinks that would be possible if he had a heart. He thinks of himself as “an empty kettle” and says  “. . . I’m torn apart./ . .  I’m presumin’ that I could be kind-a-human/if I only had a heart. . .” He wants “Just to register emotion . . . and really feel the part.” We all long to connect with others and feel those emotions.”

“The Cowardly Lion wants to be brave like all the other lions, “ . . . I could show my prowess, be a lion not a mou-esse/If I only had the nerve.” Or “noive,” as he pronounces it.”

“And Dorothy just wants to go home, to be back with her family and the people who love her.”

“There are two lessons here about very basic needs and how to fulfill them. First, all of the characters already have the qualities they wanted; they simply didn’t recognize them in themselves, so helping them gain that recognition is the best reward they can receive and can change lives. Scarecrow thinks of clever ways out of difficulties. Tin Man feels emotions as he cries when they all first meet, almost getting rusty again. The Cowardly Lion was brave when it mattered; he overcame his fear and saved the people he cared about.”

Second, the characters didn’t think they had the qualities they wanted because they didn’t have the symbols of those qualities. Having symbols that are recognized by others goes a long way to convincing us that we really do have the traits we most desire. Remember Sally Field and her Oscar speech for “Norma Rae?” “You like me. You really like me.” She wasn’t sure before that moment that her peers liked her or her work, but that award made their affection real.

“The Wizard gives these characters those symbols, and maybe that was his real magic – making them believe in themselves. Want a heart so that you can feel emotion and be sentimental? Well, how do we know someone has a heart? They get awards, of course. The Wizard gives the Tin Man an award for being a philanthropist because philanthropists have generous hearts. To prove that the Cowardly Lion has “the noive,” the Lion is awarded a medal because bravery earns medals. And what do people with brains have? Why, academic degrees, of course. So Scarecrow gets a degree and begins to spout geometry.”

. . .

 “When you think about how to reward someone, consider something that matches an identity need for affiliation, competence, purpose or autonomy. The Tin Man’s need for affiliation can now be met because he can connect with people through his heart. Scarecrow is competent because he has a degree that says he is. The Lion is brave and has the medal to prove it; he can fulfill his purpose of being king of the jungle. And Dorothy is autonomous. She can go home whenever she wants to.”

. . .

 “Whether you give someone a plaque, or public recognition, or make someone feel part of the group, or acknowledge an odd idea from someone, you are demonstrating a clear understanding of what is important and helping that person to feel recognized and valued. And isn’t that what motivation is all about anyway?”

            Acknowledgment. . . . it goes a long way! In fact, it just may be “priceless”!

            . . .Just something to think about!

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             The second issue of ADR Times Perspectives (Vol. 1, No. 2, Nov. 2011, hit my e-mail inbox the other day. Having enjoyed the first issue, I eagerly thumbed through this second issue and found an interesting article by Jasper Ozbirn entitled “Generational Gaps in the Workplace” (at pages 8-9.) According to its author, the purpose of this article is “. . .to provide the briefest of primers on how generational differences can play out in the workplace to create a conflict.” (Id.) Drawing heavily from other sources, Mr. Ozbirne created  the following table:

 (“The table draws heavily from Dogan Gursoy et al., Generational Difference: An Examination of Work Values and Generational Gaps in the, 27 INT’L J. HOSP. MNGMT. 448 (2008) and Greg Hammill, Mixing and Managing Four Generations of Employees, FDU MAG. VOL. 12 (Winter/Spring 2005).” Id. )

            Looking and studying this table for a few moments, I had an “ah-hah” moment: it provides a key not only to the creation of conflict but, more importantly, on how to resolve conflict! By looking at a party to a dispute in terms of her generational anchor, a negotiator or mediator can use those generational traits to her advantage. For example, with a veteran (aka “The Greatest Generation”), the mediator/negotiator should be more formal, and direct and emphasize the paramount importance of “the law”. It is also advantageous to show empathy by acknowledging her loyalty and satisfaction.

            In contrast, if one or both parties to the dispute is much younger than the other party, the mediator/negotiator should be much more casual and informal in style, and rather than focusing on “the law” and its importance, the mediator/negotiator should be more collaborative or equal in approach.

            At the same time, his table is marvelous in helping one party stand in the shoes of the other. Let us suppose that the parties to a dispute consist of a Baby Boomer and a Generation Y’er. In a separate session with the Baby Boomer, the mediator/negotiator could use this table to explain to the Baby Boomer how the Generation Y party views life. . . and in talking with the Generation Y party, explain how the Baby Boomer views life. For there to be movement in a negotiation, the parties must be able to view the issues from the other party’s perspective. This table helps tremendously in this regard.

            The essence of all this is generational bias of which much has been written. Like all other biases – age, race, sex, religion, sexual orientation – it is real and it exists. It just has not had nearly the publicity or press as these others. But it is there. . . and is definitely  something that must to be considered in any negotiation.

            . . .Just something to think about!

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               In her Two Minute Training Tip for November 1, 2011, my colleague, Maria Simpson, Ph.D. looks at the words we use when we communicate. She points out that to be an effective negotiator – one must be careful of the pronouns she uses. “You” in any form – “you”, “your” – is accusatory and personalizes the comment; for example; you will not get off to a good start in your negotiations, by beginning your sentence with “you”. Similarly, phrases like “you need to”, “you ought to”, “you should”; or “I need you to” will also be disastrous. By highlighting the person – i.e., “you”, the words put the focus on the person, taking the focus away from the issue or dispute. The goal is to focus on the issue or the dispute, not the people, or in the words of one of my trainers: “Separate the people from the problem: be hard on the problem and soft on the people!”

             Dr. Simpson also notes that articles (e.g., a, an, the) and prepositions (e.g., to, of on) as well as conjunctions (e.g., and, also, but) can also lead to disaster if used to focus on the person, and not the issue or dispute. For example, others have suggested to use “and” instead of “but”, so that the thrust of the sentence will be far gentler. (“It is snowing outside but you cannot stay inside”. vs. “It is snowing outside and you cannot stay inside”.) While both sentences say the same, the latter is not as harsh. Or, “Don’t smoke here.” vs. “We thank you and appreciate your not smoking here.” Same message but gentler.

            Dr. Simpson notes that the only time you (one?) should start a sentence with these offending words, especially “you” is when you wish to compliment the listener. (“You look beautiful in that dress.”) Or, you want to learn about the other person. (“Where are you from?”) Everyone loves compliments and to talk about themselves. So, in such situations talking about “you” as the focal point is the issue.

             In sum, Dr. Simpson suggests three concepts to think about:

“1. Pronouns matter. Don’t start a sentence with the pronoun “you” unless it is necessary, such as when paying a compliment. You want your statement to be associated with a particular person. Even better, when paying a compliment, use that person’s name instead of the pronoun.”

“2. Other little words matter, too. Similar patterns of usage, both written and oral, indicate similar ways of thinking.”

“3. Self-disclosure is important to building and maintaining a relationship. It indicates trust and openness. People don’t have to disclose their deepest and darkest secrets, but they can’t be secretive either. People want to know about the people in their lives.”

            . . .Just Something to think about!