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<xTITLE>So You’ve Got a Beef. Now What?</xTITLE>

So You’ve Got a Beef. Now What?

by Gary Weiner
June 2008 Gary  Weiner

Imagine that, a couple months ago, you bought a house in a nice new development. The house is only ten years old or so and looked good when you bought it. You paid more than you had thought you would have to in order to live in the area, but you're sure it’s going to be great for your family and you're sure you’ll be able to make ends meet.

After the big move, you and the family have pretty well settled in. The kids are getting used to their new rooms and you’ve been able to start to do some of the painting that you thought would make the kitchen look better. While you are prepping the walls, you notice, for the first time, that there's a crack around the window over the kitchen sink. You're not sure if that crack was there when you bought the house, but it doesn’t appear to be a big deal. It looks like if you chip away some of the sheet rock and apply a little spackle, there shouldn’t be anything to worry about.

Unfortunately, when you start to cut away at the wallboard you notice that the back is kind of dark and it’s a little crumbly. You decide to check it out further so you remove a few inches more of the sheetrock. To your shock and dismay, you find that the studs around the window are damp and there’s something weird and fuzzy growing on the wood. You call in a contractor to look at the wood. He tells you that this situation is serious and that there has been something going on for a long time, since at least before you bought the house. He doesn’t know exactly what, but he knows that it’s going to take some more “demo” work to find out. Yikes! Demo work?

Scenario 1

Who you gonna call? Like most folks, you call your realtor first. Here’s what happens: your realtor calls their realtor and their realtor calls them. They tell your realtor that they have no clue about anything being wrong around that window, there were no leaks and they don’t have anything to offer. Their realtor tells your realtor that nothing will be done. Your realtor calls you and tells you that nothing will be done. You call your second cousin once removed, who you’ve heard is a good real estate attorney.

The attorney tells you: “Sue the Bastards.”

Several years later, after the demo work, $55,000 for the repairs to the leaks from the bathroom upstairs ($25,000 in labor and $15,000 for a new window, new bathroom fixtures and some other stuff for a total of $40,000) and a few other non-threatening framing issues he discovered when the sheetrock was off that you think the seller should have known about ($15,000), $25,000 in lawyers’ fees, and a whole day wasted in a deposition, you have a meeting with your lawyer.

At the meeting, the lawyer tells you about the defense that the seller is putting up. He didn’t know anything about any leaks, never saw any problems at all and seems to “make a pretty good witness.” You don’t know exactly what that has to do with anything, but you didn’t ever talk to the guy so you have to rely on what your lawyer tells you. Oh, and by the way, the sellers’ insurance company isn’t covering this thing.

Then the lawyer finally asks you what you want. You figure you're due at least $80,000.00. Probably more because of all the aggravation. After all, your case is strong and the lawyer says you’ll probably win at trial. How much is it going to cost to go to trial? Another 15 to 20? Yikes again! Total cost to you so far: $80,000.00 and counting. Likelihood of success? Who the hell knows??

Scenario 2

You’ve just heard a horror story about some poor schmo who had a case just like yours and wound up winning enough at trial to pay his attorney fees and a few thousand left over. The contractor can’t really say when the damage began. It could have been after you bought the house, but then it could’ve been before. Plus there really wasn’t any sign that there was a problem. Hell, even your own property inspector didn’t see anything. There’s no good way to know. You decide to bite the bullet and pay for the work yourself. The contractor fixes the leak upstairs and puts things back together. You decide not to fix the framing issues because, after all, they aren’t threatening although they weren’t really up to code when the place was first built. Cost to you: $40,000.

Scenario 3

You actually call the guy who sold you the house. You invite him over to show him the problem. You give him a beer and a turkey sandwich. He seems like a pretty nice guy. He looks at the damaged wood and seems worried. He tells you he didn’t know anything about it but he feels real bad and wants to do something so he can prevent any trouble. You actually tend to believe the guy when he says he didn’t know anything about the problem when he sold you the house.

After you talk about the problem some more he mentions that he has a brother who owns a home improvement center. He tells you he will get his brother to supply the materials for the repairs at cost. The savings will be around $7,500.00 because you won't have to pay retail plus the contractor’s markup. In fact, the brother puts you in touch with another contractor who discounts his work by 10% as a favor to the sellers’ brother saving another $2,500.00. Total cost to you: $30,000.00.

Okay, so this is a little over simplified, but you get the point. If you want things done right, sometimes it’s just best to do them yourself. On the other hand, you know what they say about the lawyer that represents himself? Yes, he’s got an ass (and fool) for a client. But, still, negotiating a good resolution to a conflict isn’t rocket science. There are a few things, though, that you should know if you want to do a better job in settling disputes on your own.

Okay, here it goes. Negotiation Psych 101. The shrinks have figured out that each of us has a primary conflict type. It’s the usual way we react in a dispute, more or less. In fact, you can take a paper and pencil test to find out just what your general conflict type is called the Thomas Kilmann Mode Instrument . Look it up on the web. There are tons of sites that talk about it and you can probably find a place to take the test if you're interested. This is the gold standard test that managers of big companies and university researchers alike use in studying the way people handle conflict. Hundreds of thousands of people have taken the test and the shrinks have learned a lot about what how different people work and when their “modes” are useful and when they do more harm than good.

Why is this important? Because, when you find yourself face to face with any ordinary everyday dispute, the more you know about yourself, your tendencies and the way your mind and brain work, the more you will be able to control the outcome of the dispute.

This is no different than what, for example, a golfer does. After years of practice, a golfer learns that if he hits a five iron, the ball will go about 125 yards. With a 3 iron, he can get up to 140. But he also knows that his accuracy with a 3 iron ain’t so great. So, knowing his tendencies and his ability, he can choose a five iron if he just wants to get close to the green but doesn’t want to wind up in the dark and spooky woods just off the fairway. Go for the accuracy; take a little less on the distance. Play it safe. Now, sure, if he could hit the 3 iron with as much precision, he wouldn’t mind being closer or even on the green, but, on balance, best to play it safe.

When you find yourself in a dispute, how do you usually handle yourself? Are you your own worst enemy? Which sounds most like you:

  • Do you try to find a compromise?
  • Are you firm and do you try to get your way?
  • Do you try to buy time in order to think it all through?
  • Do you ask the other guy what he really wants and why?
These are some of the things you would be asked if you took the “Thomas Kilmann” test.

There are five different types of conflict responders when it all gets boiled down. Of course, no one is just one type. No one is really just one type and everybody has a little of each of the types in them. But the types do stand for something real. Here are the five types:

1. The Competitor
2. The Accommodater
3. The Avoider
4. The Collaborater
5. The Compromiser

Now, these words all sound pretty familiar, but the devil is in the details, especially when it comes to us humanoids. Here’s the skinny on the stereotypes:

The Competitor: “Might Makes Right”

This guy is a power user. He goes for the gusto – his own, not yours. Sometimes this looks like he’s just standing up for his rights and other times the guy looks like a pit bull, just clawing and gnawing and biting and scratching for the sheer joy of it. You would want this guy on your side if the times called for quick, decisive action. If the going is going to get tough, this guy is going to get going and won't get hung up on how other people will feel about the decisions that he makes. He’s the enforcer of rules, the vice principal in charge of discipline and is terrific at cutting costs.

The Accomodater: "Kill ‘em With Kindness”

Imagine a bald headed man in a saffron robe holding a stick of incense. The Accomodater knows when he is wrong and will actually listen to the other side. Goodwill gestures, concessions and harmony are his stock in trade. Fights with this guy don’t usually last very long.

The Avoider: “Leave Well Enough Alone”

The Avoider is a duck and cover dude. At the first whiff of conflict you can find him…well, actually he might not be that easy to find after all. The shrinks say he may be “diplomatically sidestepping the issue…postponing the issue until a better time or …simply withdrawing from a threatening situation.” Here’s a man you should listen to when the other side has a lot of big guns. Sometimes wimpiness in the face of assured destruction can be a real virtue. Live to fight another day!

The Compromiser: “Split the Difference”

The Compromiser is pretty goal oriented and wants to get the job of solving conflict done right away. Whatever works. Let’s get right to brass tacks. How about we split the difference, cut the baby in half or go for the middle ground. Screw the principle of the thing and let’s not waste time on a lot of touchy feely talk.

The Collaborater: “Two Heads are Better than One”

Although this sounds a lot like the name used for Nazi sympathizers in World War II France, on the Thomas Kilmann test this refers to the type who tries to work through conflict with the other side to try to find the best way to solve the problem. He won't run and hide and will sit down at the table, roll up his sleeves and dig right in to the hard stuff. Not the Scotch, the knotty and thorny issues!

Does any of this sound familiar? I'm willing to bet that you can relate to all of these types. That’s because, in reality, no one is really just one of these things. Well, maybe, once in a while someone comes along like, say, Saddam Hussein, who pretty much does one thing and does it really, really well. Usually, though, these folks find themselves hanging from a rope of one sort another.

So, here is Secret Number One: KNOW YOURSELF. When trouble pops up, if you’ve done a little self assessment and can take a moment to remind yourself of where you fit in this rogue’s gallery of conflict managers most of the time, and the best uses for each style, you should be able to make a better decision on how to begin with the other side.

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The Thomas Kilmann Conflict Mode Instrument is copyright 1974, 2002 Xicom Incorporated, a subsidiary of CCP, Inc. You can license the test by ordering it online at www.cpp.com. This section contains occasional paraphrases of some of the materials that are contained in the book. Direct quotes are shown in quotation marks.

Biography


Gary A. Weiner serves as mediator and an arbitrator, as collaborative lawyer and settlement counsel, as special master and referee, as trainer, facilitator and dispute resolution systems consultant. He was the Director of the Sonoma County Superior Court Office of Alternative Dispute Resolution from its inception through June 2004. For 4 ½ years he called the Case Management Conference calendar in every civil case in the Court. From the most complex construction defect, intellectual property and personal injury matters to the most intractable easement disputes to the simplest consumer collection cases, Gary Weiner has helped counsel and their clients get their cases moving toward resolution.



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Website: garyweinermediation.com

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