The other day, I was coming out of a department store with my child. A driver, impatient with the fact that the car in front of her had stopped to let us cross the crosswalk, pulled around the stopped car and came very close to hitting us. When I glared at the driver, a mother with children in the car, she was unapologetic and glared back. I wanted to ask her how much of her time was worth our lives. She lost her humanity in that moment. I like to think that, after her defensive reaction, this encounter might have startled her into thinking about her conduct. Lucky for both of us, that momentary loss of her humanity had no irreparable consequences.
Why we distance ourselves from others
We also regularly lose our humanity when we walk into our respective places of business. When we are faced with the stresses and strains of business life, with having to make difficult business decisions affecting other employees, or with conflict, we find it easier to distance ourselves from others. We create distance using a variety of tactics.
I see examples of this distancing in negotiations. Members of the opposing negotiating team taking a hard stance in negotiations are often criticized on a personal level behind closed doors. I can recall one team I was on developing a nasty nickname for the female lawyer on the other team.
In litigation, the opposing party is often demonized and denigrated. When we need to make decisions to terminate the employment of employees, we justify this by focusing on the person’s shortcomings and failings. As we focus on these shortcomings, our fears around the termination event escalates and there is unfounded speculation about what the person might do in response to the news that his/her employment has been terminated. This speculation leads to fear and poor decisions about how to contain the damage the person might do.
The importance of the voice of reason
In group settings, without a strong voice of reason, fear can spiral causing terrible decisions to be made.
When the Canadian Bar Association made the decision to oust the volunteer Canadian Corporate Counsel Association board (of which I was president) in January 2011, I believe the decision was based on fear and unfounded speculation about what the CCCA volunteers might do if they could not persuade the CBA to allow in-house counsel more autonomy and a greater share of the fees paid by its members.
Could there have been a strong voice of reason in the room when the CBA board made the decision? It appears not as, from the outside looking in, the decision lacked a sense of humanity and reflected a profound misjudgment of the motivations of the in-house volunteers on the other side of the table. The result of the decision was the sullying, in the eyes of some, of the reputation of the CBA as a proponent of the rule of law and an advocate for all Canadian lawyers, and a fracturing of the Canadian legal community.
Negative emotion leads to bad decisions
Operating out of anger, anxiety, or fear causes us to lose objectivity — when objectivity goes, our humanity goes with it. In-house lawyers are regularly involved in difficult situations and in crisis management. At the same time as we are offering legal advice, we are in a position to ground our colleagues, objectively assess the risk, “de-personalize” the transaction, articulate the fear, and constrain it so that it does not spiral out of control.
While we are not the only ones, in-house counsel can be the strong voice of reason in the room. Retaining a sense of humanity in all business dealings is the right thing to do. It also makes sense as a fundamental and simple way to reduce business risk.
How is risk reduced by retaining your humanity? Here are some specific situations in which retaining your sense of humanity and sharing it with your colleagues will serve your organization well.
Improving negotiations: Holding on to negative thoughts about those on the other side of the negotiating table gets in the way of understanding their interests and position, and thus interferes with the progress of negotiations. You are much more likely to be heard by the other party if you can reflect back to them an understanding of what it is they are trying to achieve and can demonstrate that you have considered this in coming up with a proposal. Your proposal is much more likely to be seen as a resolution to a joint problem when presented in this light.
Avoiding litigation: Treating an employee with dignity and respect lays the best possible foundation for negotiating a termination package acceptable to both sides and avoiding litigation. I have been on both sides (representing employees and employers). Employees will necessarily have an emotional reaction to the difficult news of a termination. However, the manner in which the termination is handled will either fan or contain the flames. An employer who is constructive and respectful will face lower risk of litigation.
This basic tenet is true of all interactions whether they are with employees, suppliers, or customers and is particularly crucial at times when the relationship is in crisis. As have many of you, I have been negotiating with the same key players for years now — people remember respectful treatment and integrity and the second time you meet them you start off further ahead. If the relationship between your companies breaks down, you’re much more likely to receive a call from the other party and much more likely to be an effective facilitator of resolutions.
Improving litigation outcomes: You may fight to the end to defend or advance something important to your organization. Never forget that how you fight is important. The law of fair dealing aside, judges who perceive one party to be heavy-handed, disrespectful, or worse will view the offending party in a bad light. We see this most often in employment cases but the rule applies in all cases, whether the dispute is between your organization and its suppliers, customers, or shareholders. Mistreatment of the opposing party will set your client back in one way or another. Focus on the substance of the case and avoid the emotion and drama.
Effectively communicating: In conflict or crisis situations, we may avoid communications or go to the other extreme and engage in hostile communications. When these types of communication patterns occur between colleagues and fellow employees, we can be pretty sure the recipient of the communications is going to be more focused on how the communications made him or her feel than on the substance of the message. Maintaining civility takes the emotion out of the dialogue allowing both parties to focus on the message and not how it’s delivered. Civility should be the norm in your dialogue with all levels of colleagues. Retaining your humanity preserves and builds relationships thereby making you more effective in the long run as people trust your judgment and integrity, and will come to understand that your integrity and sense of fairness protects them as well.