Victimology 101: Helping the Victim in Conflict Resolution

Distinguishing Between Sympathy and Empathy

"The mill cannot grind with the water that's past". (George Herbert, d. 1633)

It is a fact that in many conflict resolution settings, such as mediations or settlement conferences, you will experience someone cloaked in the mantle of what I refer to as "victimology". Regardless of the nature of his experience, i.e., from the most horrific to the merely inconvenient, he is lost in the victim paradigm. This means he either cannot -- or will not -- advance from that position. Or, if he's not lost, per se, he's using his victim hood, consciously or unconsciously, as a negotiation tactic. In my experience, this can present a difficult and unwieldy situation for all involved.

On the one hand, you don't want to appear unsympathetic and cold-hearted. On the other, it's important that you be able to navigate your path somehow through the conflict to ultimate resolution. What lies in between?

First, note the difference between the notions of sympathy and empathy. Sympathy occurs when one shows sadness or regret, commiseration, for another's position or experience. Empathy, however, activates through your intellectual identification of another's experiences without commiseration. The key to interacting with someone who is in victim mode is to first, take an empathetic stand with him. He must know that you truly understand and are concerned about his experiences.

Ways of Showing Empathy

The idea is to listen very carefully to what the person is saying and then acknowledge his experience, his position, his pain, if appropriate. One of the ways in which this can be done to to paraphrase, in your own words, what he's told you and then repeat them back to him. Not parrot-like, but in a sincere, meaningful way. Another empathic strategy is to ask him appropriate questions about his experience. What was it like? How did he deal with it? How is he coping now?

It is critical to carve out sufficient time for this empathic dialogue. The length of time needed, of course, will depend upon the nature of the person and his circumstances. So, allow sufficient time to establish empathy.... make sure that he has experienced your empathy -- and then move on.

Moving On: Focus on the Present

People who are suffering from "victim hood" are stuck in the past. Generally speaking, they are not fully present. I realize this might sound cold, but from the standpoint of conflict resolution and negotiations, you simply cannot reach resolution in the present moment if one of the parties is stuck in the past. Regardless of whether the "victim" lost a leg, sustained a head injury, or lost a loved one, the fact is that the past cannot be changed. You can only resolve a dispute in the now, the present.

I have found that most people who are "real" victims (for lack of better terminology) do want their losses to be acknowledged and they do want your empathy. And, in very real ways, they really do want to move on, inasmuch as such a thing is possible. In contrast, those who are consciously or unconsciously using their "victim hood" for purposes of negotiation, want to stay in the past as much as possible. They want to keep the focus on themselves and their misfortune(s). This is not conducive to emphasizing what needs to be done now to reach resolution.

There's no Magic Wand

Sometimes the best approach with these people, after the appropriate empathic strategies have been utilized, is to re-focus them in the present. In some mediations I have said that if I had a magic wand I would have used it so that none of the events that transpired had ever occurred. But I don't have such a wand -- and neither do they. We cannot change what took place in the past. We can only face it now and deal with it -- or not.

Put another way: the point of power is in the present moment. We cannot change what transpired. We cannot obviate the events that occurred. We cannot undo the damage that has been sustained. But we can use dialogue to explore some appropriate remedies that may, in some ways, compensate the person thus aggrieved.

And we can only engage in such exploration in the present moment. The present transcends the past as it relates to reaching an accord.

Clear Communication: Avoiding a Serbian Bog in Negotiation

William Shakespeare Had the Right of It

"...And then is heard no more; it is a tale Told by an idiot, full of sound and fury, Signifying nothing". [Macbeth V,v,17].

Be honest: does this or does this not describe an experience you've had with someone with whom you were trying to communicate? Perhaps it was a negotiation of some sort, or you were trying to engage in some clear communication with another. (And if there was significant emotion involved, add an entire other layer). At the end of the exchange, assuming you wanted to understand what was being said, you scratch your head, pause, and ask yourself, "What the heck did he just say?" And if you or any other participant does not try to clarify what was said and/or meant, well, then, you have just taken the first step into what I refer to as the Serbian Bog of communication. Just remember: it's easy to get in and very difficult to get out.

Serbian Bog?

This is a descriptive term for communication -- actually conversation, now -- that occurs when one or more persons does not understand what another has said, but continues with the conversation as if she did. The other side is is usually talking rapidly without pause. The other person may rightfully assume that he has been heard and understood, and will likely rely on that assumption. Meanwhile, she will proceed to nod her head, or show with her body language that she is on track with what he's saying. They might continue in this vein for awhile until someone says something that jolts the other into the recognition that there's been a fundamental misunderstanding somewhere. Now, if they care to clarify, they have to return to the beginning of the dialogue to discover where they went wrong. Sometimes when this occurs, one of the participants even accuses the other of being dishonest, as in, "You deliberately tried to mislead me". Good will evaporates, mutual distrust arrives, and emotions may get out of hand. All of this, of course, could have been avoided if one of them had said something like, "I don't understand what you just said. Try it again, I need to comprehend". Or words to that effect....

Serbian Bogs are ubiquitous: board meetings, negotiations, classrooms, and in every environment where one or more persons is hesitant or afraid to ask questions. Why? Not always, but usually, because she or he does not want to appear "less than" the others. Or stupid.

Crawling Out....

I have observed many, many Serbian Bog occurrences in my career. The best approach, obviously, is to prevent them from happening in the first place, although depending upon the participants' personalities and emotions, it's not always possible. Here are some practical strategies for both avoiding the Serbian Bog, or once there, crawling out of it as quickly as possible:

1) Start at the beginning. Make sure the premise(s) that everyone is operating from are correct. State them clearly. Ask for assent and clarification from everyone. Obtain their agreement on the premise(s) before you proceed any further with the negotiation.

2) Ask plenty of questions during the negotiation. As in, "Did I understand you correctly that you will ....", or, "Explain that to me again. I want to make sure I can commit to it". Anecdotally, I have never met anyone who was offended by being questioned by someone else. (Police investigations and cross-examination excluded). Instead, I have found that most people are flattered that you care enough to understand what they say.

3) As you proceed, continue to obtain "buy in" from all of the participants to the negotiation. If there's a snag or stall in the negotiations, try to tackle it as it occurs. If that's not possible, agree that you will address it later in the communication and get their assent.

4) Acknowledge the fact that everyone is doing a good job of staying on track and discussing the difficult issues. Everyone likes acknowledgment.

5) Postpone the negotiation if necessary. If more research, facts, experts or any other objective criteria is pertinent, agree to continue the session to another day and time. Give each other the requisite time within which to gather appropriate facts and figures.

Know that your desire for clear, competent communication will really assist you in avoiding communication's Serbian Bog.

Who Are You, Anyway? - Disingenuous People in Negotiations

All is Not as it May Seem

This posting is about the false fronts, hidden agendas and/or secret motivations that others may possess and try to use -- to your detriment -- in negotiations or conflict settings. Contrary to what our parents told us about being honest, upfront and truthful, many persons' parents skipped that lesson with their kids... apparently. I think that one of the most difficult, yet important aspects of negotiations is to learn to detect, (sometimes it's "just" your gut instinct), the inconsistency or falseness in the other person. It's difficult, I sincerely hope, because most of us come from a place of relative good will toward others, even in a competitive negotiation session. But not all of us. In fact, some people are truly wolves in sheep's clothing, as the saying goes. And they know it. And they don't care to change: they will defend their judgment and position mightily once you call their bluff. And these people maintain their dysfunctional persona even in what we might call "normal" day-to-day interactions. These people must "win" at all costs, even in unimportant exchanges, so that they can feel better than you ... or me.

Who You are Speaks so Loudly I Cannot Hear what You're Saying

Have you ever heard that expression? I confess it had little meaning for me until I began to observe, in earnest, others' behaviors and words, while comparing such to their actions or their history. There are people walking around who will espouse one thing with a perfectly honest face, while their body language, energy or actions belie and counter what they've said. You've met some, I'm sure. They're the ones that you encounter and try to believe or understand, but something inside of you is screaming that you're a fool if you buy into their story. Sometimes your insides are telling you just to get away -- as fast as possible.

In my mediation practice, and to a lesser extent in my law practice, I have met and have had to experience these people. As I write this, I remember some of their faces that pass through my mind's eye. I invariably felt the same reactions to each of them, regardless of gender, age or situational environment: first, I took a long, hot shower (as soon as possible) to clear my energy, and second, I spent some time ruminating about how they could wander/stumble through life like that.

The point of this is not to judge others, necessarily, but to show that sometimes, all is not what it seems. If you encounter such a situation, especially in conflict resolution or negotiation settings, please don't tell yourself that you're imagining this dynamic. Be aware that not everyone you will encounter cares about principled negotiations or even honesty. And not everyone has good will toward others. John Adams said that "All governments depend upon the good will of the people". But not all people have good will. Perhaps that's why government is flawed.

The Moral of This Posting is....

Focus on your purpose and your goals in negotiations and conflict settings. Have all of your factual research at your fingertips. As often as possible, be of good will. Be generous with what you have (and can) share. Ask lots of questions and endeavor to build solid rapport with the other. Have faith in positive outcomes, but do not be naive. Listen to your instincts. When in doubt, always follow your instincts. The unfortunate fact is that some people are simply not what they seem.

Avoiding Hobson’s choice in Mediation: Five Proven Strategies

The decision to mediate was an easy choice. It was faster, more expedient and less expensive then going to trial, and the upcoming mediation seemed to portend a positive result. Our hypothetical 5-year litigator has spent hours reviewing the case, both alone and with his client. He seems to have the “right” amount of client control. Although he hasn’t been before this mediator previously, his colleagues at his law firm assure him of the mediator’s competence. His client seems anxious to settle – within appropriate parameters, of course. The lawyer is prepared, anxious and ready, and he needs to be. A good result from this mediation will guarantee acknowledgement and acclaim for hard work from the “partners that matter” and secure future litigation work from the client.

As he glances at his watch while walking into the 26th floor conference room, he doesn’t realize that both he and his client are about to experience a “Hobson’s Choice” in this mediation. What is this ubiquitous Hobson’s choice? The term has its genesis in Cambridge, England in 1544 –1631, with one Thomas Hobson. To make his living he maintained a livery stable and required that every customer take either the horse nearest the stable door – or none at all. [Similarly, in 1914 Henry Ford offered his customers of the Model T a famous Hobson’s choice, making it available in any color “so long as it is black”]. Although similar to the “take it or leave it” ultimatum, it is more understated and less discernible to the uninitiated. Regrettably, it has become a familiar negotiation tactic by some attorneys in mediations. The purpose of this article is to both expose this ploy and discuss certain strategies and techniques that can be used to either prevent it altogether or minimize its consequences.

Seasoned lawyers as well as their naive clients have faced a Hobson’s choice in mediation when they have been given an apparent free choice by the opposite side, (as it relates to the ultimate resolution), when in reality it was no choice at all for them. [For example, in a situation where a widow in ill health sells an office building primarily so that she can fund her medical and retirement expenses, her opponent’s unwavering insistence on rescission of the property, as opposed to other breach of contract remedies, may very well constitute a Hobson’s choice for the retiree]. One side’s demand or counter offer of what really is a Hobson’s choice too often sounds the death knell for the mediation, replete with a panoply of comments such as “a complete waste of time”, “lack of good faith” and “hidden agenda.

There were five strategies our litigator could have used that would have mitigated the possibility of this occurring or would have avoided it altogether. Bear in mind that what transpires between opponents in mediation is usually a by-product of the quality of their relationship pre-mediation, especially in litigated actions. Said another way, encountering a Hobson’s choice tactic in mediation is less common when the lawyers initiate and litigate the case with the goal of reaching a settlement in mind.

First, remember that it’s the client’s case – not the lawyer’s. At first glance this might seem pedestrian, but the truth is that lawyers may forget that it is the client’s life and future at stake, his occupation, his property and money, his investment, his debt – not the lawyer’s. When a lawyer consistently focuses on the client and his needs and objectives, balanced against the merits or lack thereof of the case, sound litigation decisions are more readily orchestrated. Another way of saying this is that form follows function. If and how the litigation strategy should be employed should begin and end with a white-knuckled analysis of the client’s needs and goals, individually and collectively with the client. The onset of litigation is the time and the place for the ultimate reality-check and perhaps a “come to Mecca” approach. It bears repeating: it is the client’s case.

Second, maintain objectivity. After identifying and understanding a party’s needs and objectives, the lawyer must analyze the facts of the case and relevant case law, statutes, rules and regulations without emotion. He should be dispassionate in his examination of all of the pertinent information because emotion on his part or his client’s is what often produces a flawed assessment of the risks and benefits inherent in the action. It also manifests unreasonable, unrealistic and ludicrous demands for settlement in the mediation, which, in turn, produce equally unrealistic or hostile responses from the other side. Negative emotion on the part of the client or the lawyer, or both, contributes to an uncooperative mediation atmosphere …and leads to the disappointing Hobson’s choice. A lawyer should be passionate about a cause where appropriate, but be able to maintain an objective and unemotional stance where his client’s case is concerned.

Third, develop a “probabilities decision tree” with the client prior to the mediation. Identify the possibilities of disappointing “moves” by your opponents and how to best preempt them, or thwart them, especially if suspicion exists that such will be experienced in the mediation. Identify and explain to the client his BATNA, (best alternative to a negotiated agreement), as well as his WATNA, (worst alternative to a negotiated agreement). Jointly predict what is most likely to occur in the mediation, next likely, marginally likely, and least likely to occur. Achieve a consensus with the client that your part in the mediation’s negotiations will begin with the end in mind and will therefore be positive and constructive – regardless of the other side’s posturing and pretensions.

Fourth, adhere to the “Partner Principle”: remember that opposing counsel and his client will be your and your client’s “partners” in the latent settlement. Treating your opponents, as theoretical partners before and during the mediation will certainly assist in preventing any Hobson’s choices later. It will also help to both facilitate and ensure that the post-settlement obligations of both parties proceed smoothly.

While this does not mean abandoning enthusiastic advocacy of the client’s action, it does mean advocating common sense, courtesy and professionalism, the same qualities one would want a partner to have and extend. For example, exchange the mediation briefs prior to the mediation. Omit the truly confidential information beforehand but exchange them. Extend a reasonable opening demand that can later be substantiated by jury verdicts, reported cases, and other objective and historical criteria. If you make an opening statement in the mediation, do so mindful of the fact that this is not the trial in the case – this is the mediation. Fire and brimstone need not apply. Emphasize your client’s interest in pursuing settlement if at all possible. De-personalize your censure of the other party and his positions. Do not argue – illustrate. A plausible explanation is more effective and accepted than arguments and accusations.

Finally, abide by this simple rule: no hidden agendas. Do not participate in mediation for any other reason other than a good faith undertaking toward resolution. This means avoiding the obvious transgressions: no information gathering or informal discovery, cross-examination and harassment, or bare “compliance” to satisfy a contract or statute or to generate attorney’s fees or churn the case. Any of these motives will be readily apparent to the others, including the mediator. Most importantly, your client’s case will not be served by such misleading practices.

When confronted by a Hobson’s choice in the mediation, how should our hypothetical litigator respond? First, enlist the aid of the mediator privately in caucus. Ask for her thoughts, perspectives and assistance in getting past the blockage. Second, analyze the additional information and possibilities, if any, with your client and the mediator. Leave no stone unturned when it comes to brainstorming. Third, if the other side refuses to shift its position, don’t give up on the mediation and don’t let the client give up. Remain stalwart in your commitment to resolution. Fourth, ask for more time. Even if it means continuing the mediation for a few days or weeks, very often the additional time will provide a more leisurely opportunity for the parties and counsel to examine other options and possibilities for resolution. Remember that statistically, if parties and counsel maintain their efforts toward resolution, as many mediations successfully resolve within weeks or even months following mediation as settle at the mediation itself.

Finally, remember that choices abound at every phase in the life a case, whether litigated or not. Educating and assisting the client in making reasoned and intelligent choices early on and throughout the life of the case will help in avoiding the legacy of Mr. Hobson.

Click here to send email to me. This link will open a new page using and it will create an email to me via your email program.

For more information on Conflict Resolution, please visit our web site.