Bill and Alan have been equal business partners since they started their consulting business, Dynamic Advisors, Inc. 15 years ago. Their business venture began with enthusiasm, high hopes and a pooling of emotional and financial resourc3s. Originally both were engaged in all aspects of consulting. Over time, though, Alan has gravitat3ed toward employment and compensation issues, while Bill has focused on corporate strategy and marketing. When they incorporated 10 years ago, Michael, the Company's lawyer, joined the other two on the board of directors. According to the articles of incorporation, decisions concerning important business issues required unanimity; other matters could be decided by majority vote.
In recent years, Bill and Alan have disagreed over a number of matters, many of which have remained unresolved. Their relations have progressively soured, to the point where it is difficult for them to hold a civil conversation, let alone formulate business strategy for their company. The most recent dispute was over whether or not the company should take out a large bank loan to expand the business by opening offices in two nearby cities. Bill wanted it. Alan did not.
Bill managed to convince Michael to side with him at the board meeting and, following this meeting proceeded top contact the bank for the loan. Alan countered with a lawsuit to enjoin them from going ahead without a unanimous vote. Feelings were running high. The two partners were no longer speaking to each other.
The judge advised the partners that though he could decide the legal question concerning the requirement for a majority vote, his ruling would probably only make matters worse between the two of them. They had a larger issue of trying to run a business without being able to talk to each other. He recommended that they seek mediation to find a way out of their morass. They decided to heed his warning and sought out a mediator. In this situation a business divorce is common. The authors suggest that through the application of legal and psychoanalytic tools reconciliation is a viable alternative.
Can Psychoanalytic Thought Be Applied To Mediation
Psychoanalysis is most familiar as a one-on-one therapy for emotional difficulties, but is also a methodology that can be applied to deepen our understanding of many kinds of human interactions and relationships outside of the psychoanalytic hour. Psychoanalytic theory has several basic tenets that are central to its usefulness in its broader applications. It holds that the mind is multi-layered and charged with simultaneous, conflicting ideas and emotions that coalesce in conscious experience and manifest behavior. When conscious attention is brought to bear on these areas of unconscious divergent feelings, new resolutions occur. People function better, are happier, and are more adaptive when they understand more about themselves.
But what does this have to do with mediation? Law is very different from psychoanalysis. Where law emphasizes rationality and logic, psychoanalysis emphasizes emotion. Where law is linear and focuses on what is conscious, psychoanalysis focuses on multiple, simultaneous, conscious and unconscious processes. Where the lawyer is trained to be adversarial and oriented toward task completion, psychoanalysis is collaborative and process-oriented. How could psychoanalytic thinking have anything to contribute here? Some of these can be highlighted by returning to the case of Dynamic Advisors, Inc.
The Psychology of Divorcing Partners
What went wrong for Bill and Alan? They began with a merging of their aspirations and a shared dream. Eventually their business marriage was tested against reality. It has to be re-worked when their dream was so tested. The causes could be many. Maybe the business plan was conceived without enough attention to reality requirements. Maybe the business environment has taken an unexpected turn. Maybe success itself made new demands on the partners and their business. Maybe they began to realize that they didn't share in the same dream after all, or that their dreams have grown in different directions. One way or another, their dream has floundered on reality. Regardless of the source of the problem, the partners became disappointed. They are no longer mutually identified and merged in their hopes. When reality hits, can the partners pull together as a team and retain their dream or form a new more realistic one that can continue to inspire them? In fact, the psychological dynamics are not far different from those involving disappointed lovers. A new romance - a crush - is often inspirational, but when the loved one falls short of other's hopes and expectations, the disappointment can be devastating. The disappointed lover has to find a way to cope with this let down - the distance between the peaks of love-about-to-be-fulfilled and the valleys of disappointing reality can be immense.
The parties coming to mediation are comparable to disappointed spouses, with the difference being that it wasn't so much the partner that was loved, it was the shared dream that the partner made possible by their collaboration in the business. The dream may not be given up. It's plausibility may not be questioned. It is too personal and precious to be lost. The preserve the individual's dream, the partner is blamed. Personality characteristics that were minimized or overlooked in the excitement of getting started, now loom large. The partner is no longer identified with. The psychology of "the enemy" comes into play. The partner becomes the enemy. To preserve the dream, to protect it from being questioned and, thereby, risk losing it, the anger at one's partner needs to be justified and vouched safe. When parties come to mediation, there is an absence of recognition of the virtue of the other side. The other side is flattened into being the problem. The other side is demonized. The early feelings of unity and collaboration are gone. It is replaced by anger, blame, and suspicion. It is as if the partners have forgotten that they ever invested so much hope in each other. They are like divorcing spouses. Their dream of finding something elevating from their unity has been dashed.
A Psychoanalytically Informed Mediation Process
Most mediation begins with a joint session where the parties state their claims. Often mediators consider this phase, the airing of grievances, something to bear until the parties are ready for the real work of the mediation. From a psychoanalytic point of view a difficult emotional climate, rather than presenting an obstacle to be overcome in mediation, is both the cause of the problem and the source of the solution. Instead of waiting for the emotional intensity to die down enough to be ignored, it can be explored in mediation to define the feelings that underlie the interpersonal conflicts. Working on that level can free up creative and cooperative energies that facilitate alternative solutions for either re-organization or division of the business.
A mediator listening to the parties during the opening session where grievances are aired nay ascertain that since they are not talking explicitly about the stated issue that brought them into court, they are not really interested in solving their problems and, therefore, a split-up is indicated. Psychoanalysts expect that the patient's stated reason for seeking treatment is merely a "presenting problem" or a "red herring", and that the real reason will emerge if you listen for it. From that perspective, in the case of dynamics Advisors, Inc. the "red herring" was the legal question concerning the majority vote of the board that brought the partners into court. The judge recognized this as a red herring when he told them that his ruling on this would not solve their problem.
By going to court the partners were saying, in essence, that their problems had gotten too far out for them to be able to control them or solve them on their own. They were reaching out for professional help. They did not go to court to seek a divorce but to resolve a conflict. When they came to mediation they opened Pandora's box in its full emotional intensity. They did so because they trusted the authority and expected the mediator to know what to do to best help them. Form this point of view the first order of business is to listen to the parties grievances to understand as deeply as possible what they are really fighting about. After formulating some ideas about this and using the opportunity to build an initial feeling of trust with them the next task is to show them how their psychological issues are impeding their communication. Then it is possible to help them to decide for themselves if they think it's worth sorting out the emotional issues so they can re-establish a better alliance and find practical solutions to their business problems. Otherwise if they have given up, a split-up can be mediated using a fuller knowledge of their relationship problems.
If the parties opt to try to work out their problems, the techniques commonly used to mediate a split-up do not apply. There is a new goal and it requires a different strategy. The method of pressuring compromises is inconsistent with the re-establishment of an open communicative, adaptive working relationship. The new goal may require psychological, as well as legal, and procedural reorganization, and these areas may overlap. The psychological issues of the stored-up anger and distrust are usually first and foremost. No progress can be made toward an improved working relationship until trust and mutual understanding are improved and the parties hope for renewing their shared dream is reigned. Then, the mediator needs to keep alert for and manage the inevitable resurgences of anger and distrust that are part of the realignment process. Recognizing this possibility and working sensitively with the legal and psychological issues can make the difference between a business divorce and reconciliation.