Conflict Competence

Exorcising the Presence of Absent People 

Anytime parties gather to discuss their issues, there are additional people who are not present but are still participating in their own way in the conversation. I call them ‘ghosts’. They are so prevalent, that I define a ghost as: some person(s) not present, whose role, opinion, or power are factors to be considered by one or more of the parties actually present in the session, before a decision can be made by those gathered. 

As the people in the session reveal their interests, the uninvited ghosts intrude. The question becomes, how does one exorcise these ghosts? Each ghost, and the following is not an exhaustive list, requires its own strategy for banishment. 

The precedent ghost is a common category. These ghosts are not parties, but they have the same cause at heart as one of the actual parties. Someone in the session will not want to make a decision out of fear the precedent ghost will learn about it, and want the same deal.  Being afraid of creating a precedent that other potential parties might rely upon can prevent an outcome the people in the room might agree upon. Banishing the precedent ghost is best done in a private and confidential process. Courts create precedents; conflict resolution sessions generally do not. The parties can agree to a non-disclosure term of their agreement, and avoid the publicity of open court.

Another type of ghostly personality is the party who should be there and is not. This party stays away from the session, and delegates limited authority to someone else, while retaining the right to make a final decision. The person who attends can speak but not decide. Every possible option has to be put on hold while the delegate confers with the person who should have been there in the first place. This is the executive ghost, whether it is the company president, a professional advocate, the politicians who will have to regulate the outcome, the police who will enforce the arrangements, or the financier who will fund the deal. The executive ghost has enough power to avoid being ordered to be present, yet controls the outcome from afar. In many cases, the executive ghost will deny being involved in the decision-making, but still has the power to veto any decision that arises. Dealing with an executive ghost many require a discussion about how fruitful the session can be. It may be necessary to adjourn the session until either the executive can be present, or the paths around the delegate’s limitations have been clarified.

The third ghost of our acquaintance is the adviser ghost, who has no place in this session, but whose specter is present nevertheless. The adviser ghost could be a spouse, relative, professional consultant, religious leader, business partner, or trusted friend. In this haunting, all the proper parties are in the session, but one of the parties has to check with this significant resource, whose judgment is sought by the party as affirmation that the decision is wise and appropriate. Sometimes the party wants to accept the decision, but as a courtesy, or obligation, wants to discuss the options with some person who has also suffered through the issue. It is human nature to want reassurance that a decision is correct. Denying this consultation is likely to frustrate everyone.

There are also many varieties of legal ghosts. The judicial ghost is invoked by some who claim, “every judge would agree with me.” The judge is unaware of being a player in the decision-making, even as the judge is relied upon to bolster the parties’ claim to correctness. The senior lawyer ghost stays at the office, leaving the session and hands of a junior lawyer who has some or all of the following: limited knowledge of the issues, or no experience in the area of law or the process, or no relationship with the client. Although the senior lawyer ghost does not do the work on a file, s/he will not give up control of it. The secret agenda ghost is a strange legal haunting. Perhaps a lawyer has told the client something in private that now ties the lawyer’s hands to prevent losing face. One example is a lawyer who tells a client, “You can’t lose in court, so you shouldn’t compromise.” Then, if the client wants to accept a negotiated offer, the secret agenda might prevent the lawyer from recommending it.

We try to work with the ghosts that are haunting the sessions, and make them as friendly as ghosts can be. We are always alert to their presence, and draw parties’ attention to them when they appear. Although we cannot see the ghosts at the session table, they are very real and present to the parties who are factoring them into the decision-making.