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Key Words:
Dialogue Mindfulness Judaism Spirituality Consult Insight Negotiation Tradition Wisdom
As a consultant and executive coach, Erica works with businesses and organizations to build
consensus, improve communication, facilitate change and mediate disputes. In recent years she
has worked extensively with organizational leaders and work teams to address conflict and improve
collaboration and performance.
For almost a decade, Erica has been affiliated with the Harvard Negotiation Project and with
Harvard Law School's Program on Negotiation. In addition, Erica was a Lecturer on Law at HLS,
where she taught negotiation and conflict management to law students, lawyers, judges,
executives, and others.
Erica serves on the Harvard Mediation Program's Advisory Board and the Board of Directors of
MWI. She is currently researching a book which will build on her article, "Alone in the Hallway:
Challenges to Effective Self-Representation in Negotiation," which appeared in the first issue of the
Harvard Negotiation Law Review. Erica's research focuses on barriers to self-advocacy in difficult
negotiations, and ways to overcome these barriers.
Erica is a graduate of Princeton University and Harvard Law School. After graduating from law
school, she was an attorney with Hill & Barlow, a Boston-based firm.
OK, the hard part: Sometimes you simply need to say no. My friend and colleague Erica Fox
suggests the "yes-no- yes" approach. Affirm the relationship, say no to the request, and express
appreciation for having been asked. |
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In the growing field of mediation, attorneys help clients resolve disputes, not through
showdowns in the courtroom, but through sessions geared toward finding solutions that satisfy
each side. The non-adversarial approach of mediation is gaining popularity with courts and
clients, who find it an efficient and cost effective way to resolve disputes. And its luring recent
graduates like Roshni Paul and Erica Fox into the field. “An effective advocate often feels like
they are hurting another person, and if you can destroy the adversary, then you did a good
job,” Fox said. “In mediation, you have to keep in mind the well-being of both parties.” Before
graduating from Harvard Law School in 1995, Fox learned mediation skills through clinical
programs and served as a court mediator and liaison. She went on to spend a year as a litigator
in a law firm before becoming deputy director at Mediation Works Inc., a nonprofit dispute
resolution center in the Boston area. Paul was introduced to mediation and got hooked before
she graduated from law school. Now she manages the Americans with Disabilities A Mediation
Program at the Key Bridge Foundation for Education and Research in Arlington, Va. “My job
is to help facilitate communications and to help develop options and proposals for a solution,”
said Paul, a 1992 graduate of George Washington University’s National Law Center in
Washington D.C. “They (the clients) are the ones who make the decisions about how they
want it to go. I don’t make any decisions about the conflict, and I like that. The goal for the
whole process is win-win for both sides.”
Fox and Paul agree that one of the benefits of working as a mediator is the opportunity to use
communications skills on a more personal level – to discuss issues through dialogue rather than
legal briefs. “I found law school in general to be a fairly sterile experience,” Fox said. “I found,
in the mediation community, people who where balancing the mental stimulus of law with
personal relations, and I got to help people at a personal level not just a doctrinal level.” Fox
said that many disputes involve personal issues that extend beyond the case and cannot be
solved through litigation. “I handles a case once where a claim was brought for $14 and it cost
them $19 for them to file it in court, and they both had to miss a day of work to come to
court,” she said. ”You know that in these situations there’s more going on than the $14. The
$14 is a shorthand way of saying, ‘I’m mad at you.’” A judge could have ordered both parties
to pay $7 Fox said, but that would not have addressed the underlying anger. The landlord-
tenant dispute that brought the $14 claim to court was resolved after an hour-and-a-half
mediation, Fox said. “Mediation allows them, through a guided conversation, to figure out why
they are there and how they can move forward from there,” she said. “When people really
communicate and come to a solution, you feel like you’re doing something really important to
help them.” Paul said her work as a mediator requires intense observation and good
communication skills. “You have to be able to understand where parties are through their body
language, how the mediation develops, and listening really closely to what they’re saying,” she
said. “It keeps you on your toes.” Mediation may seem less like a battle between two armed
combatants than litigation, but Paul and Fox say there’s still plenty of conflict. “Each side
doesn’t see the other’s perspective generally and I have to get them communicating to bridge
that gap,” Paul said. But mediators must remain neutral, despite their close involvement with the
parties, which can sometimes be a challenge. Establishing clear boundaries for herself helps
Paul keep her cool. “I know that it’s for the greatest good for the parties, and for me, to be an
impartial observer and for them to work out their disagreement,” Paul said. “I acknowledge my
feelings in myself and don’t let it affect the mediation, because I know this has to be a safe
space for these parties to work out their problems.” Mediation can sometimes have therapeutic
benefits – but it is not psychotherapy. “You’re entering conversations with people about their
feelings and their perceptions, and sometimes it’s a tricky line to walk,” Fox said. “You need to
clarify for yourself that this is not a long term, ongoing relationship you are entering into with
these people and that this isn’t therapy.”
Mediation has been growing in popularity as a less expensive and more expedient alternative to
trying cases, but its still developing as a profession. Most mediators with law degrees enter the
field after working as attorneys, and most mediate on the side. Those, like Fox and Paul, who
move into the field full time generally work for one of a growing number of private mediation
firms. Some law firms also maintain mediation practice groups, but potential conflicts of interest
have turned many law firms off the idea of supplementing traditional practice with mediation.
Mediators tend to earn relatively low starting salaries, Paul said. She said mediators right out of
law school can expect to earn about as much as public interest attorneys. The starting salary for
a public interest lawyer ranges from $30,000 to $35,000, according to the National
Association for Law Placement. The lower salaries are accompanied by reasonable work
hours, however. Paul’s typical day is 9-to-5, although 12-hour days are not uncommon,
depending on the dispute she’s mediating. She also puts in weekend hours when necessary.
“The pressure is there if something is happening in mediation and a complainant needs
information sent to them,” she said. “It can be stressful, but I think <other> attorneys have
more pressures relating to time.”
Because mediation requires clients to place a lot of trust in the mediator, breaking into the field
can be tough for young attorneys, said Jerome Bagnell of Divorce Mediation Service In
Chester, Va. “If you’re handling a custody case and the clients look at you as no older than
their kids, you lose credibility as a mediator,” Bagnell said. “People typically picture mediators
as wise, and they picture wisdom as someone older, with gray hair, who’s experienced life.”
But mediators don’t have to have gray hair to succeed – they just need good training. Gary Gill-
Austern, a mediator and associate at Nutter, McClennen & Fish in Boston, said the best way
to learn mediation skills is to be trained by a good mediator, usually through fee-based training
programs offered by mediation centers. “The way you learn in this field is to sit at the feet of
those who do it well,” he said. After training, working with community centers and local courts
is a good way to gain experience, Gill-Austern said. “The first mediation I started doing was in
community programs that were affiliated with the local courts,” he said. I'd handled feuding
families, landlord-tenant disputes, divorce, employment termination, assault and battery, etc.”
Gill- Austern said attorneys interested in mediation must be creative in finding their niche. “You
have to care about mediation, believe in the process, and be willing to go out there and create
your own path,” he said. Fox says she has no regrets about leaving her career as a litigator. “I
make less than half of what I made as a corporate attorney, but I wouldn’t call it a sacrifice,”
Fox said. “Here I have autonomy over my time, a good balance of my personal life and work,
and on a regular basis I get confirmation that I’m doing good work in the world. That’s
personal satisfaction that money can’t bring you.” |
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You won't find Harvard Law School negotiation best sellers "Getting to Yes" or "Difficult
Conversations" in the spirituality, poetry or philosophy sections of your local bookstore. But
according to Erica Fox '95, that's where we might look for additional insight on solving conflict.
Last spring, Fox started the Harvard Negotiation Insight Initiative at HLS's Program on
Negotiation to explore "what mindfulness and the great wisdom traditions have to teach us in
the negotiation and dispute resolution field."
Negotiation and conflict management are already interdisciplinary, says Fox, drawing on fields
including law, economics, business, psychology and international relations. But it's time, she
said, to bring "the philosophers and sages and poets and mystics into the conversation."
Negotiators in areas from business to international affairs can draw on centuries of thought
about how to act wisely and justly.
Overseen by HLS Professor Frank Sander '52 and Harvard Business School Professor
Michael Wheeler LL.M. ' 74, the initiative has launched a leadership forum, bringing negotiation
and dispute resolution experts together with philosophers, meditation teachers and religious
scholars. Other events are open to the public, including a dialogue series, a working group and
a weeklong workshop in June on mindfulness for mediators.
Fox, a faculty associate at the Program on Negotiation, sees the initiative as a natural extension
of developments in the field, many of which were pioneered by members of the program:
"We've talked about win-win solutions, we've talked about core communication and now we're
adding on to that by going one layer deeper."
The initiative comes, she said, at a time when people are hungry for new models and new
frameworks for decision- making: "People have been negotiating based on their rights and
based on their interests. Increasingly, they want to ask not only, 'Do I have the right to do this?'
but also 'Is this the right thing to do?'"
--Emily Newburger |
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is the Director of the Harvard Negotiation Initiative for Spiritual Intelligence which explores the
place of spirit and ancient wisdom in the modern world. She teaches in the Program on
Negotiation at Harvard Law School. At home in Boston she co-founded and led the vibrant
Traveling Minyan. Erica serves on the Board of Directors of both ALEPH, the Alliance for
Jewish Renewal and Bayit Chadash, a spiritual community in Israel. |
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About Hill & Barlow:
Hill & Barlow is an independent firm of more than 130 attorneys, based in Boston, Massachusetts.
Established in 1895, the firm has earned a reputation for its passionate pursuit of the most
complex legal issues, its creativity for finding new solutions, and its careful marshaling of resources
to contain costs. Hill & Barlow's leadership emphasizes the use of technology to deliver the highest
level of legal services efficiently. Hill & Barlow is rooted in New England, where its clients and
activities are concentrated, although in many fields its practice is national and international in
scope. Hill & Barlow's clients range from large, national companies to individuals and small
businesses. The firm's principal areas of expertise include: emerging companies and private equity;
real estate; employment law; energy and telecommunications; public law; intellectual property;
legal malpractice litigation; major business litigation; mass torts; and private clients.
Law Firm’s Demise Serves as a Wake-up Call for the Profession
By David A. Hoffman
A month has passed since the announcement that Hill & Barlow, one of Boston’s
oldest and most respected law firms, is dissolving, and lawyers around the country
are still shaking their heads in disbelief.
“It felt like a death in the family,” said one lawyer, far removed from the firm but
who has tried cases against it. As a Hill & Barlow alumnus, recently departed after
seventeen years of practice there, I share the shock and dismay.
I arrived at Hill & Barlow, fresh out of law school, and grew up there. The firm
gave me the best training that any lawyer could have wished for. My mentors served
as presidents of state and national bar associations. They insisted – some gently,
and others not so gently – that we adhere to the highest standards.
Perhaps the most appealing aspect of law firm life was the sense that we were as
much a family as a business. However, with the news of the firm’s demise, I found
myself looking back as if mom and dad had just announced that they are not only
getting a divorce but have also decided to level the family homestead because they
could no longer agree on how to manage their finances.
Why, I ask myself, was it necessary to dismantle a law firm with one of the best
reputations in the U.S.? Why was it necessary to hand pink slips – with no warning –
to more than 250 attorneys and support staff?
The news is too recent for definitive answers, but a few tentative ones come to
mind.
First, even relatively cohesive law firms, such as Hill & Barlow, feel far more
like businesses today than families. Fifty years ago departures of successful
partners were rare. When I joined Hill & Barlow in 1985, the firm boasted that no
partner had ever left to join another downtown firm.
However, during the last few years, several of Hill & Barlow’s busiest partners
received attractive offers from larger firms – offers that in the not- too-distant past
would have been considered predatory and swiftly but politely declined. Today,
predation has become the norm in the world of law, and therefore it should not have
been such a surprise when Hill & Barlow’s real estate group decided to leave,
precipitating the firm’s collapse. The harsh winds of commerce, fed by a collapse in
the demand for legal services, have thus blasted apart not only Hill & Barlow but
many other equally admirable large and mid-size firms around the country.
Such firms are vulnerable because they have adopted the unrealistic expectation
that a regionally-based, general practice law firm with 140 lawyers should offer
nearly the same salaries that a national firm with 800 lawyers can provide.
Second, most law firms are astonishingly under- capitalized businesses. In the
last month of every fiscal year the partners scurry like mad to collect nearly a third
of the firm’s revenue for the year. The firms then empty out their cash drawers to
pay bonuses, and start the cycle all over again. Hill & Barlow was no exception.
There, and at other firms, the competitive drive to pay top salaries – not only to
retain the most productive partners but also to attract the best law students – has
consistently trumped the need to accumulate reserves that would enable firms to
ride out inevitable storms.
Third, only a few law firms are managed with the vigor, leadership, and sense of
direction that their business clients employ. Law students are not taught
management, and the fierce, often counter- productive, independence of the average
lawyer makes us difficult if not impossible to manage.
For years Hill & Barlow succeeded - despite its tradition of fiercely
independent lawyers, or perhaps because of it - in creating a sense of community.
The firm excelled in public service, with three governors, several judges, and awards
for pro bono work for the poor as outward signs of a deeper commitment. Sadly,
that shared sense of commitment to the practice of law as a higher calling than the
quest for wealth has eroded at Hill & Barlow and elsewhere.
A law firm that could rekindle that spirit, while setting realistic expectations
for lawyer compensation, might just have a chance to carry forward the spirit that
made Hill & Barlow, for most of its 107 years, one of the most stimulating, indeed
inspiring, places where I could ever imagine working.
The stakes in this endeavor are high. We need such a renaissance in the tradition
of law as public service not only because of underserved communities but also
because it will help restore respect for the profession. And such respect is needed
more than ever, as the widespread contempt for lawyers in our society makes it all
too easy for the public to lose respect for the law itself.
Hill & Barlow's demise is as alarming as it is sad. Perhaps the only good that can
come of it is the wake-up call that it provides for a legal profession faced more than
ever with the need to reinvent itself in hard times. |
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ABOUT INSIGHT PARTNERS
Insight Partners is an association of conflict management professionals and academics who
provide a full range of alternative dispute resolution services to non-profit and for-profit clients.
We focus on effective negotiation, mediation and communication consulting, training and
intervention. Our consultants have worked with thousands of executives, managers, and public
officials throughout the United States, Canada, Europe, Asia, Australia, Central and South
America. In addition, we have hundreds of hours of corporate mediation experience.
Our Mission
As a global leader in training, consulting, and mediation services, it is our mission to:
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Maximize our clients’ ability to create value and improve working relationships;
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Develop the most creative and practical theories, pedagogy and materials relevant to
effective negotiation, communication and mediation; and
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Provide a wide range of opportunities for the professional development of
our conflict management academics and professionals.
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Methodology
Our approach to conflict management is based on the ideas developed in the Harvard
Negotiation Project and outlined in Roger Fisher, William Ury and Bruce Patton’s best-seller,
Getting To Yes. Over the past decade, our consultants have worked through the Harvard
Negotiation Project and affiliated consulting firms to develop leading theory and advice on
negotiation, mediation and conflict management. At the heart of our methodology is the
assumption that good substantive results in negotiations do not need to come at the expense of
strong working relationships.
What we do
Insight Partners offers a range of training, consulting, and intervention services. We maintain a
large roster of trainers, consultants, mediators, facilitators, and coaches. Our customized
workshops typically run two to four days and focus on developing essential conflict
management skills. Through a combination of theory, case studies, role plays, and discussions,
we examine the core elements of effective negotiation, mediation and communication. Our
workshops address the specific challenges of our participants and are highly interactive,
informative and skill- based.
Benefits of our workshops
Although customization inevitably produces benefits unique to each client, certain benefits are
common to nearly all of our trainings, including:
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Exposure to theory designed for real-world application.
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Practice recognizing and dealing with difficult tactics and challenging situations.
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Advice on how to prepare for a negotiation, mediation or difficult conversation.
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Opportunities for individual skill-building.
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Tools to manage complex negotiations, mediations or difficult conversations.
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Insight in dealing with multi-party negotiations, mediations and communication.
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Experience
Insight Partners consultants have worked with dozens of Fortune 500 companies in the fields of
financial services, technology, retail, insurance, and pharmaceuticals. We have also consulted to
governments, foundations, and other non-profit organizations in Canada, the United States and
around the world. Our consultants hold or have held teaching positions at Harvard Law
School, Georgetown University Law Center, Boston College Law School, Suffolk University
Law School and Northeastern University. We have also taught at Dartmouth College, the
University of Toronto, the University of Windsor, Haiffa University, and Queen’s University.
Patrick M. McWhinney, co-founder and Chief Executive Officer of Insight Partners Inc., is a
consultant, trainer and professor in the fields of negotiation, mediation, and conflict
management. Mr. McWhinney has advised professionals and government officials across the
United States , Canada , South and Central America , the Middle East , Asia , Australia and
Europe . He recently began working extensively with the Chief Prosecutor at the International
Criminal Court in the Hague . He is an Adjunct Professor at Georgetown University Law
School , and is a former Training Co-director of the Harvard Mediation Program and Adjunct
Professor at Northeastern University . He serves as a consultant and trainer on behalf of
several dispute resolution organizations, including CMI-Vantage Partners, Conflict
Management Group, the Harvard Negotiation Project, Mediation Works Incorporated and
Stitt Feld Handy Houston ADR Ltd. He specializes in advising corporate executives on
negotiation theory and skills in the financial services, pharmaceutical, insurance and technology
sectors. Mr. McWhinney earned a bachelor's degree at McGill University and a master's
degree from the Harvard Divinity School with a focus in conflict management and alternative
dispute resolution through the Harvard Negotiation Program.
Erica L. Fox is a management consultant and attorney who specializes in leadership
development and conflict intervention. Ms. Fox's expertise lies in building leaders' capabilities
and relationships, so that they are able to navigate significant organizational change and the
conflicts that accompany them. Before establishing her own consulting practice, Ms. Fox was
the Director of Mediation Works Incorporated, and taught negotiation and mediation as a
Lecturer on Law at Harvard Law School. In addition to designing her own workshops, Ms.
Fox has served repeatedly as a teaching assistant for Roger Fisher and the Harvard
Negotiation Project he directs, both in the basic and advanced negotiation sessions of the
internationally attended Program of Instruction for Lawyers. Her expertise in mediation and
alternative conflict resolution has taken her around the globe, teaching and advising people in
Asia, the Middle East, Latin America, and Europe. Ms. Fox sits on Mediation Works
Incorporated's Board of Directors and the Advisory Board of the Harvard Mediation Program.
Over the past several years, she has collaborated with Diana Smith of Action Design and The
Monitor Group on integrating theories of organizational change with theories of meditation. Ms.
Fox worked as an attorney at the Boston law firm Hill & Barlow where she practiced in the
litigation and corporate departments as well as the firm's Alternative Dispute Resolution
Practice Group. She received her BA from Princeton University and her JD from Harvard Law
School, where she published in the Harvard Negotiation Law Review. She is the Founder and
Director of the Harvard Negotiation Insight Initiative. |
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The Program on Negotiation was the first, and remains the foremost, interdisciplinary research
center on negotiation in the world. Drawing from numerous fields of study, including law,
business, government, psychology, economics, anthropology, and education, PON works to
connect rigorous research and scholarship with an understanding of practice. Founded and
based at Harvard Law School, PON is a consortium of faculty, students, and staff at Harvard
University, Massachusetts Institute of Technology, and Tufts University.
Mission:
The Program on Negotiation at Harvard Law School is an applied research center committed
to improving the theory and practice of negotiation and dispute resolution.
Founded in 1983 and based at Harvard Law School, PON is an interuniversity consortium
involving faculty, graduate students, and administrative staff from a range of disciplines and
professional schools at Harvard University, Massachusetts Institute of Technology, and Tufts
University.
In all projects and activities, PON focuses on creating innovative ways to:
- Serve the mission of PON's consortium schools to provide comprehensive and
enlightened training and prepare graduates to assume a leadership role in the world
community
- Encourage new thinking in negotiation theory
- Nurture the next generation of teachers and scholars
- Provide a forum for the discussion of ideas and practices
- Increase public awareness of successful conflict resolution processes, and
- Connect the discussion of conflict resolution with current events and real-world
contexts.
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Dialogos is a world leader and pioneer in the theory and practice of dialogue, organizational learning and
collective leadership.
Through structured consulting services, leadership education programs and coaching, Dialogos focuses
on igniting and sustaining profound change in complex systems.
Our proprietary “generative spiral model” of complex system change has been developed and proven
through large-scale interventions in Fortune 50 companies, as well as some highly influential
governmental and non-profit organizations. The Dialogos model is unique in its power to unleash the
creative potential of individuals, teams and organizations.
Our products include the design and facilitation of dialogue, dialogic process consultation, collective
leadership capacity development, and “learning at scale” (design and delivery of leadership education for
large numbers of people). We are highly competent at producing multi-party dialogues to solve complex
business problems. We know how to produce distinctive “step change” results in situations often
deemed intractable.
We specialize in helping organizations make visionary transitions –to build a core of leaders who can
discern and actualize the emerging potential and greatness of their organization. |
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1. Tales of Rabbi Nachman Monday,...
