A Q&A with Richard Birke – Arbitration and Dispute Resolution

JAMS recently launched JAMS Pathways, a customizable service for handling and preventing conflicts. We sat down with its chief architect, Richard Birke, to find out a bit more about him and how this service can help avoid conflicts or resolve them at an early stage.

Tell us about your background and how you got involved in conflict resolution.

My parents were Holocaust survivors, so peaceful conflict resolution has been important to me all my life. When I started teaching conflict resolution in 1992, it was the first time in my life that a work path truly and fully matched my skills and interests.

As a professor, I worked on disputes within organizations that needed help but didn’t have the money to pay a private mediation service provider. I did a unique blend of conflict resolution work, always focused on quickly identifying overwhelmed issues and interpersonal issues that impede core business. I had great mentors and was brought up in ADR at a time when there weren’t very strict restrictions. I tried to find the edges of the envelope and puncture them, thinking it was part of the requirement to practice as an academic.

Why should organizations consider hiring an external professional trainer for training and development purposes? What are the benefits?

Organizations rarely have the bandwidth or the time to explore a wide range of dispute resolution modalities. And they lack the range of experience that allows them to choose from different aspects of academic literature to apply to a particular situation. This is where I come in. Like a long-time doctor, I can see the symptoms that arise and spot the two or three best tools to address the problem, and then we consider the interventions/treatments that make the most sense.

What advice would you like to share regarding effective dispute resolution and conflict negotiation in the workplace?

A piece? It’s hard. I will extrapolate from Danny Kahneman’s book Think, fast and slow and advise that the best decisions are made fast, slow, fast. People must learn to value their first impressions and analyze whether these are the product of learned/expert or
inherited/emotional experience, the former being more reliable than the latter. This is the quick part. The next thing is to save and honor that instinct. Then set it aside and go into deep research mode and examine the data and the alternatives. This is the slow part. Then it’s essential to step away, pause, and after a while blink again. Fast, slow, fast. When all three moments produce reactions that align, this leads to an optimal decision.

If I can give a second piece of advice, I would say that people who adjust their baselines faster are better calibrated, happier, and make better decisions. Imagine if someone wronged you out of $1 million. A year later, you’re in mediation and they offer you $500,000 to settle. If you accept, are you up or down? It’s a matter of framing. If you don’t adjust your baseline from the million dollar loss, you will seek to avenge the perceived loss. If you adjust to “I have zero dollars now. What are my choices?” you’ll make a better, more risk-neutral valuation. Helen Keller reportedly said, “Turn your face to the sun and you won’t see the shadows.” It’s a matter of accepting where you are. If you can take a puff, take it right away and so look at your choices. You will do better.

Can you help explain systems design and how organizations could benefit from a systems design assessment?

Systems design looks at problems in context rather than problems in isolation. Some organizations have a myopic view of conflict. There are huge benefits to bringing in someone whose concern is to understand not only how to resolve a specific conflict, but also how to prevent similar conflicts from arising in the future.

Since the start of the COVID-19 pandemic, retaining employees has become increasingly difficult. In your experience, how can JAMS Pathways help solve employee issues, especially employee turnover and happiness?

People want to feel that their work has meaning and impact. We try to honor people’s contributions to the results that happen at work – contributions that are sometimes detached from pay and titles. Each of our interventions requires that everyone has a voice. This type of recognition has a positive impact on retention, satisfaction and engagement. And internally, at JAMS, we follow our conversation. We listen to each other, appreciate each other’s contributions, and tend not to be particularly hierarchical. We live our values.

Some organizations do not feel the need to institute external dispute resolution processes, especially if there are no apparent persistent problems. Why would you recommend training, systems design and facilitation as proactive measures that should be adopted by organizations of all sizes and in all sectors?

When people don’t know what they don’t know, it can lead to radical overconfidence. Bringing someone to training is a surefire way to get educated on what you don’t know you don’t know. An expert is someone who has made or seen all the mistakes that can be made in their field. People who hire me as a trainer tend to come away with a similar lesson I learned after taking a tax course, which is when to call an accountant. It helps to bring in someone who has spent decades resolving conflict and studying negotiation and agreement.

Diversity, Equity and Inclusion (DEI) is an important issue. What training does JAMS Pathways offer in terms of dealing with IED-related issues in the workplace, and how effective are these services in moving the needle?

It’s not optional for us to be good at it; it is obligatory. One of the core values ​​of dispute resolution is equal respect for everyone. Every time Pathways intervened, we found that there seemed to be emerging DEI issues. Again, this is another area where we are moving forward. We continually educate ourselves on the language and culture in a way that most organizations don’t. For us, this is a mandatory part of being a full-service dispute resolution agency. We understand what DEI should look like in action and we know how to train our employees to treat everyone with respect, including every client and attorney who walks through our door.

What can a struggling organization expect once it calls on Pathways to help?

We offer a phased approach, so the organizations that hire us understand exactly what we will deliver at each stage of the process and how much it will cost. The first parties are very cost effective and designed to ensure that clients only engage us if we both agree that we can add value. The basic model has four phases. The first phase is a low-key way for us to learn the scope and nature of what is happening and to give feedback on what needs to happen before an intervention can be designed. Theoretically, a commitment with us could end there. If not – and it has never ended there so far – the second phase is often a much more in-depth investigation, ending with a statement of what we consider to be the fundamental issues and a custom designed process with fees and costs for performing this process. Again, an engagement could end here, but it never did. Phase three is the facilitation of this process, and phase four, of course, is “the fix” and the conclusion.

Here’s an analogy: the first phase may be to drive your car to our workshop so that we can listen to the noise it makes. We tell you what we think it might be – transmission, brakes, etc. But we have to disassemble the car and inspect further to find out more. After diagnosing what is wrong with the car, we will tell you what needs to be fixed and how much it will cost. With this approach, you are not obligated to use our services. You are free to do the work yourself, go to another store or a comparison store. This step-by-step approach allows people to safely increase their investment and know what they are buying.

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