A Q&A Session With Richard Birke

Helping organizations mitigate and navigate conflict

Richard Birke
Richard Birke
JAMS Senior Vice President & Executive Director of the JAMS Institute

Published May 4, 2022

JAMS recently launched JAMS Pathways, a customizable service for addressing and preventing conflict. We sat down with its chief architect, Richard Birke, to learn a little more about him and how this service can help with avoiding conflict or resolving it at its earliest stage.

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

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

As a professor, I worked on disputes within organizations that needed help but didn’t have the money to pay for a private mediation service provider. I did a unique blend of dispute resolution work, always focused on quickly identifying the submerged problems and interpersonal issues getting in the way of the core business. I had great mentors, and was raised in the ADR field at a time when there weren’t very tight strictures. I tried to find the edges of the envelope and break through them, thinking that that was part of the obligation of practicing as an academic.

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

Organizations rarely have the bandwidth or time to study a broad scope of conflict resolution modalities. And they don’t have the spectrum of experiences that allow them to pick and choose from different aspects of the academic literature to apply to a particular situation. That’s where I come in. Like a long-practiced doctor, I can see presenting symptoms and locate the two or three tools best suited to resolve the problem, and then we consider interventions/treatments that make the most sense.

What is one piece of advice you would like to share regarding effective dispute resolution and conflict negotiations in the workplace?

One piece? That’s hard. I’ll extrapolate from Danny Kahneman’s book Thinking, Fast and Slow and advise that the best decisions are made fast, slow, fast. People need to learn to value their first impressions and to parse out if those are the product of learned/expert or inherited/emotional experience, with the former more reliable than the latter. That’s the fast part. The next thing is to record and honor that instinct. Then put it aside and go into deep research mode and examine data and alternatives. That’s the slow part. Then it’s critical to walk away, take a break and, after enough time passes, blink again. Fast, slow, fast. When all three moments produce reactions that line up, that leads to an optimal decision.

If I can give a second piece of advice, I’d note that people who adjust their baselines more quickly are better calibrated, happier and make better decisions. Imagine if somebody allegedly 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? That’s a matter of framing. If you don’t adjust your baseline from the million-dollar loss, you’ll be seeking 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 assessment. Helen Keller reportedly said, “Turn your face toward the sunshine, and you will not see the shadows.” It’s a matter of accepting where you are. If you can take a hit, absorb it right away and then look at your choices. You’ll 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 instead of problems in isolation. Some organizations have a myopic view of conflicts. There are enormous benefits to bringing in somebody whose concern is to understand not just how to resolve a specific conflict, but also how to prevent similar conflicts from arising in the future.

Since the onset of the COVID-19 pandemic, retaining employees has become increasingly difficult. From your experience, how can JAMS Pathways assist in addressing employee-related issues, especially turnover and employee happiness?

People want to feel like their job has meaning and impact. We try to honor people’s contributions toward outcomes that happen at work—contributions that are detached at times from salary and titles. Every one of our interventions requires that every person have a voice. That kind of recognition positively impacts retention, satisfaction and engagement. And internally, at JAMS, we walk our talk. We listen to each other, value 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 ongoing issues. Why would you recommend training, systems design and facilitation as proactive measures that should be embraced by organizations of all sizes and industries?

When people don’t know what they don’t know, it can lead to radical overconfidence. Bringing somebody in for training is a safe way to be educated about what you don’t know that 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 walk away with a similar lesson I learned after taking a tax class, which was knowing when to call an accountant. There’s value in bringing in a person who has spent decades resolving conflicts and studying negotiation and agreement.

Diversity, equity and inclusion (DEI) is an important issue. What training does JAMS Pathways offer in terms of addressing DEI-related matters in the workplace, and how are these services effective in moving the needle?

It’s not optional for us to be good at this; it’s mandatory. One of the core values of dispute resolution is equal respect for everyone. Every time Pathways has intervened, we’ve found that there seem to be emergent DEI issues. Again, this is another area where we walk our talk. We continually educate ourselves on language and culture in ways that most organizations don’t. For us, it’s a required part of being a full-service dispute resolution organization. We understand what DEI in action should look like, and we know how to train our people to treat everyone with respect, including every client and lawyer who walks through our door.

What can an organization with problems expect once they bring Pathways in to help? 

We offer a phased approach, so organizations who hire us understand exactly what we will deliver each step of the way, and how much it will cost. The first parts are very economical and designed to ensure that clients bring us on only if we both agree that we can add value. The basic model involves four phases. Phase one is a discrete way for us to learn the scope and nature of what’s going on and to give some feedback about what needs to happen before an intervention can be designed. Theoretically, an engagement with us could end there. If it doesn’t—and it hasn’t ever ended there so far—phase two is often a much more substantial investigation, ending with a statement of what we see as the core problems and a custom-designed process with fees and costs for the execution of that process. Again, an engagement could end here—but it never has. Phase three is the facilitation of that process, and phase four, of course, is “the fix” and the wrap-up.

Here’s an analogy: Phase one might be driving your car to our shop so we can listen to the noise it’s making. We tell you what we think it might be—the transmission, the brakes, etc. But we need to take the car apart and inspect further to know more. After diagnosing what’s wrong with the car, we’ll tell you what needs to be fixed and how much that will cost. With this approach, you are not obligated to use our services. You are free to do the work yourself, go to another shop or comparison shop. This phased approach allows people to safely ratchet up their investment and know what they’re buying.

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