Monday, June 7, 2010

Immunity to Change Mediation Decision Making

I attended an excellent legal education program earlier this spring (NCBA - The Resilient Lawyer) where Robert Keegan education professor from Harvard and author of the recent book Immunity to Change, led a three-hour program devoted to change. Based on more than 25 years of research and practical teaching, he explained how we continue to do things and not do things in opposition to our stated improvement goals because we actually have hidden commitments and big assumptions that drive our behavior.

For example your goal might be to lose 10 pounds yet you keep eating that muffin, doughnut etc. It turns out you are eating it because you have a hidden commitment, perhaps based in your childhood, that says "you will never go hungry." Thus, when you try to change, there is a push/pull, a foot on the gas and brake at the same time. Keegan explained that in order to change one must fully understand the "problem," by uncovering the hidden commitments and considering whether there is room to expand our big assumptions. Will we actually go hungry if we don’t eat that muffin?

While mediating cases, I consider decisions made one form of change. People, attorneys, insurance professionals state goals, they partake in activities to pursue those goals and they may encounter hidden commitments and big assumptions that get in their way.

In a workers’ compensation mediation, the injured worker might say, "I'll never work again." The carrier might say, “the claimant is not hurt as bad as they say.” These forces collide - commitments both hidden and open drive the actions of each. In mediation, we should explore these commitments. We can ask participants to consider beyond their big assumptions. For the worker, what might a return to work be like? For the carrier, what if the injury is more significant than thought?

In either case, as mediators, we should be willing to explore the human condition of our participants. What are the barriers to change, to settlement and resolution? How can we change "immunity to change" to an ability to change?