Pastreich wanted to keep the existing pension plan, but for the first time he was open to other options. The pension experts went to work and ultimately agreed that the costs of funding two separate plans were too high. “It was a very tense moment,” Gilbert said. “It was not what we wanted to hear, obviously, and it speaks well of where we were at that point that the committee could accept it.” When one committee member expressed concern that some members of the orchestra would be disappointed, another member declared, “We’ll have to explain our thinking and show some leadership.” It is moments like this that a teacher lives for.
The final stages of the negotiation came down to salary and pension benefits.20 Management presented three different packages: alternative combinations of salary and pension. After a brief caucus, the committee chose the option that it believed best served the interests of the musicians. A great cheer went up in the room and a cork was popped. Everyone in the room knew the deal was done.
The proposed contract was presented to the orchestra on January 9. Three days later, the musicians overwhelmingly ratified it. At the time, the salary terms placed the SFS among the half-dozen best-paid orchestras in the United States.
The deal was announced at a euphoric press conference at which the key negotiators toasted each other with champagne. The San Francisco Chronicle hailed the new contract as “an astonishing turnaround” and credited our intensive seventeen-month project and the Hewlett Foundation’s support.21 At the press conference, Pastreich saluted the musicians on the Negotiating Committee by name and said how pleased and proud he was that this negotiation, his last on behalf of symphony management, had provided a foundation for the years to come.
But what did we really accomplish? Now, ten years later, I can better assess the results. We certainly demonstrated that individuals can change the way they manage conflict. No one illustrates this better than Pastreich. Since his retirement in 2000, he has created a new career as a consultant and mediator to orchestras throughout the country. His favorite work is to help rescue a symphony in deep financial trouble, where the musicians are being asked to make concessions. What I find most impressive is that it is not just the trustees and managers who want his help; the musicians, too, want him on board because they trust him as a straight shooter. He tells management and trustees that the musicians should not be asked to make concessions unless management has a plan to turn things around and the capacity to implement it. As he told me, “It’s not rocket science. I ask: How well has management mobilized community support for an orchestra? How well is the development work organized? What resources can be generated? I think it is wrong to ask musicians to make concessions unless the management and trustees have a thoughtful plan.”
As for the San Francisco Symphony, the results have been mixed. The good news is that there have been two further rounds of contract negotiation with no strikes. This is not trivial. With one exception, the twenty-year period before our intervention had featured a work stoppage every three years. Moreover, the most creative aspect of the 1999 contract—the string relief provisions—has remained. And Gilbert was right. They never had to talk about string relief again.
The bad news is that the parties have essentially reverted to their old pattern: a deadline-driven, hard-bargaining style that is nearly as adversarial as it was before. In both 2005 and 2008, the old contract expired without a deal. In both cases, the union voted to authorize a strike shortly before an upcoming tour. Both times, after protracted arm wrestling, traditional haggling led to a deal.
Why did they revert?
The simplest reason: too much turnover with no additional training. In the summer of 2004, I received a letter from the symphony inviting me to offer another negotiation program. (By this time Bechtle and Pastreich had moved on, but Chris Gilbert was chairman of the Players’ Committee.) I responded that I would be glad to do so on one condition: that those who would play leadership roles in the next round, including all members of the new Negotiating Committee, be “willing to participate in an initial joint workshop to learn more about negotiation and our approach.” The Negotiating Committee had not been elected yet, and I needed to know whether those musicians were interested in learning more.
I received no formal response, but word got back to me that a majority of the new Negotiating Committee did not want such training. In fact, they had become suspicious of interest-based bargaining.22
Why? In the aftermath of our program, the national union and its lawyers fiercely criticized interest-based bargaining. Attorney Leonard Leibowitz, Sipser’s successor and son-in-law, led the charge with an article in Senza Sordino, the newsletter sent nationally to all unionized symphony musicians, claiming that collective bargaining was “by its very nature” adversarial. His goal as an agent was to reach the “best agreement possible” for his client, he wrote, and such a deal could usually be made only at “crunch time,” when everyone was facing disaster.23
In response to that article, Pastreich wrote Leibowitz that he’d initially had the same emotional reaction to interest-based bargaining—or “IBB,” as some call it—but now believed that if you counted the financial impact of strikes on the musicians, they did worse with the traditional hard-bargaining approach. He concluded:
The greatest value of adversarial negotiation might be the opportunity it gives musicians to express anger and frustration accumulated during 3 years of doing a job that, by its very nature, allows them relatively little control over their working lives, while the greatest value of IBB might be the opportunity it gives musicians to work with managers and board members at solving problems in an atmosphere of teamwork and cooperation. I’ve changed my mind about which matters most, and perhaps you will too.24
Leibowitz didn’t come around.
The national union followed with a public broadside claiming that IBB “eliminates the union,” its members’ “sense of solidarity,” and their “ability to confer privately.”25 These claims were, of course, preposterous. Eliminates the union? Interferes with solidarity? I believe the sense of solidarity among the unionized musicians at the SFS was greater in the 1998–99 negotiations than ever before. But it’s true that the national union—the AFM—and its lawyers were not involved in the SFS negotiations, so their complaint was real, if not accurately stated. Leibowitz and the union further contended that IBB can lead to long-term agreements that are “dangerous” for musicians.
By 2004, this last argument fell on receptive ears at the SFS, which was nearing the end of its unusual five-year contract that had been negotiated long before. As it happened, the salaries provided in the last two years now fell somewhat behind those at some other major symphonies, which had recently renewed three-year contracts. If the economy had been weaker this might not have been the case, but the SFS musicians bought Leibowitz’s argument that this salary discrepancy was the fault of IBB and its proponents. It is always easier to blame someone else than to acknowledge that your own group participated in a decision that, although reasonable at the time, may not turn out to be optimal with the benefit of hindsight.
So what do I take away from the experience? First, an appreciation of how difficult it is for a musician, and perhaps any union employee, to play a leadership role in building a mandate for IBB. It’s hard enough to be an effective leader when IBB isn’t involved—to be responsive to one’s constituency while not being dominated by the most militant factions. IBB is counterintuitive and can be emotionally threatening. The concept of empathy—respecting the interests of the other side, even if you don’t agree—is hard for many people to accept. There is a natural “fear of empathizing,” as Gilbert put it. “Fear of hearing somebody else’s side. Fear that it is going to make it harder for them to disagree.” This puts negotiators on both sides at risk of appearing “too nice,” but the risk is far greater on the labor side, where the constituency is large and dispersed. Labor leaders are under constant pressure to show the rank and file that they’re being “tough.” W
ith IBB, the constituency doesn’t see you being tough—it sees you cozying up to management and giving away the store. (Or so it may appear.) It’s far easier to build solidarity by demonizing management and leading the troops into battle.
Second, I have a much deeper understanding of how difficult it is to change the negotiation culture of an organization. It requires not simply initial “buy-in” but constant reinforcement. There must be ongoing training for the negotiators, who change from year to year, and education for the rank and file, who, like everyone else, have to understand the approach in order to trust it. Without this reinforcement, their natural fears—the negative traps—may reappear.26
Change also requires motivation, which can’t be faked. In San Francisco the initial motivation was provided by trauma and crisis, as is often the case. But this kind of trauma is in no sense required. Organizations with less adversarial cultures may be able to improve the way they deal with conflict, as long as the key stakeholders are committed to the process. But there is no permanent fix. The motivation must be real, and it must be shared by those who come later.
PART IV
Family Devils
NINE
A Devilish Divorce
“Frankly,” Brenda Thomkins said, “it’s a relief to have Thomas out of the house.”1
Brenda was a slight, casually dressed woman of about forty who had come to see me about her divorce. Thomas was her soon-to-be-ex husband. I was surprised by her composure—she seemed more determined than worried, and not at all depressed.
But I had seen the case file. Brenda alleged that Thomas had struck her and she feared for her safety. A court had ordered Thomas to stay away from the family home. Thomas had responded by emptying the joint savings account and moving the money elsewhere. Although Brenda had filed on the no-fault ground of “irretrievable breakdown,” Thomas’s cross-complaint alleged adultery.
Naturally I wondered how many of these allegations were true and to what extent they were being used as bargaining chips, but that was none of my business. She had come to see me because she needed a new lawyer. Her attorney, a solo practitioner, had been seriously injured in a car accident and was out of commission. At a friend’s recommendation, Brenda had come to me for a referral. She’d been told I didn’t practice family law but could put her in the hands of a good lawyer who did.
“Tell me more,” I suggested, wondering if she would raise the sensitive issues on her own. Privately I was thinking that this case was off to a terrible start.
Brenda said she had been the one to end the marriage. Thomas, a vice president of a small high-tech start-up, was a “workaholic” engineer who traveled all the time. They had been married for twelve years, and she had been unhappy in the relationship for at least five. She described Thomas as a “clueless” and “insensitive” husband who had taken her for granted. Although she didn’t go into any details, she said the final breakup had been “explosive.” After a bitter fight over who should move out, Brenda had “won that round,” she said with apparent satisfaction.
What had happened since Thomas moved out?
Brenda’s smile vanished. “He’s trying to punish me,” she said. Thomas was providing no financial support except to pay the monthly mortgage on the house. Brenda had been surviving on their joint checking account, which was now nearly depleted. “He told me I should rent an apartment and get a job! I haven’t worked since the kids were born,” she said with indignation.
There were two children, now ages eleven and eight.
“And to top it all off, he’s asking for shared physical custody of the children.” She pursed her lips in apparent scorn. “Who’s he kidding? Until now he’s always been too busy to make it to a single one of Gabriel’s soccer games! He’s just trying to pressure me to take as little money as possible.”
Every divorce involving children raises four central legal issues: (1) child custody and visitation; (2) child support payments; (3) spousal support payments; and (4) property division. These are closely related and involve genuinely hard distributive problems. But they can also be used as strategic weapons, and spouses who don’t trust each other often suspect each other of evil motives.
As the financially dependent spouse, Brenda was understandably worried about the support she would get from Thomas, and I wondered if her bravado was partly a cover for fear. “His last offer was deliberately insulting,” she reported. “Only child support. No alimony.” His offer with regard to property division was equally parsimonious, she felt. “Half the proceeds of the house when it’s sold. None of the stock in the company he works for, and nothing from the million-dollar investment portfolio he inherited from his mother.”
I nodded, still trying to get a read on Brenda. I asked what she thought was a fair arrangement.
“Eleven years ago I gave up my job to stay home and care for the children,” she said. “Both of us wanted that for the kids.” Given how demanding Thomas’s career had become since then, she thought he should have reasonable visiting rights but doubted he could handle more than that. She expected sufficient alimony and child support to allow her and the children to maintain their standard of living. And she wanted half the value of all their combined assets—including Thomas’s inherited stock portfolio. As part of her half, she wanted ownership of the house free and clear. “I deserve nothing less,” she declared. “I’m not going to stand for this. Custody is not negotiable and I insist on financial terms that are fair to me and the children. Anything less would be giving in to extortion!”
When I hear words like extortion in a divorce case, I start to worry. Brenda and Thomas probably did not view one another as inherently evil people—few divorcing couples do. But their hostility toward each other bordered on demonization and could lead to all-out legal warfare.
Worse yet, their lawyers seemed to be egging them on. The lawyers had exchanged half a dozen venomous letters without managing to resolve the most urgent and basic issues of this early phase: interim custody and support while the divorce was pending. A court hearing to resolve such matters had been postponed because of the hospitalization of Brenda’s lawyer. No wonder Brenda seemed so brittle.
“How are the children handling all this?” I asked.
Brenda fell silent and looked away. When she spoke again, she sounded less sure of herself. “Thomas has the kids on weekends,” she said. “When they came back home last Sunday night, Amanda said to me, ‘Daddy says you’re the one who wants a divorce. Daddy wants the family to stay together. He says Mommy is the bad one.’ ”
Her eyes filled with tears of rage. “I want a lawyer who is really tough. What names can you give me?”
The Four Divorces
The Spock in me was on red alert. I wanted to warn Brenda about the negative traps. I wanted to give her my standard pitch: that it’s almost always wiser to negotiate a divorce settlement than to fight it out in court. I wanted to remind her, although she surely knew this, that legal warfare is terribly costly—both financially and emotionally—and usually hurts everyone, especially the children.
But I resisted the temptation. I wasn’t her lawyer and she hadn’t asked me for that kind of advice. Instead I nodded as empathetically as I could and offered a platitude: “The process of divorce is very tough for most families.”
“But why does it have to be so hard?” Brenda demanded. “Thomas knows the marriage is over. We separated three months ago! Why doesn’t he move on? I don’t even recognize him anymore. He used to be so logical. He used to call me the irrational one. Now he’s acting like a spiteful child. Why can’t we work out the logistics without all this melodrama?”
“That’s a great question,” I said. “It’s one I’ve thought and written about quite a bit. Why do otherwise sensible people seem to go half crazy—especially from the perspective of their spouses—when they’re going through a divorce?”
She nodded eagerly.
“I may be able to help you there,” I said.
; Some years ago, I explained, I teamed up with Eleanor Maccoby, a world-renowned developmental psychologist, to conduct a long-term study of divorcing couples. For four years, we followed about eleven hundred divorcing couples with children. The result was a book called Dividing the Child.2
“You followed them for four years? Don’t tell me getting a divorce takes that long!” Brenda said half jokingly.
It doesn’t take nearly that long to get a divorce decree, I reassured her. But Eleanor and I believe that divorce can be best understood not as a single event (like the issuance of a court decree) but as a continuing process that can begin long before a spouse files for divorce and continue long after the decree is issued.
The process of disengagement can be confusing—even profoundly disorienting—to divorcing spouses because divorce requires the transformation of not just one relationship, but several. Indeed, every divorce with children involves four different divorces:
The Spousal Divorce: The end of intimacy—sexual, psychological, and social—between husband and wife.
The Economic Divorce: The end of an economic relationship based on a single household.
The Parental Divorce: The end of one arrangement for raising children and the beginning of another, along with a redefinition of parental roles.
The Legal Divorce: The formalization of custodial and financial arrangements that will govern after the marriage is dissolved.3
Each of these dimensions affects the others.
Because Brenda had told me that she initiated the breakup, I began by explaining the “spousal divorce.” The end of intimacy and the process of spousal disengagement require psychological and social adjustments that take time—and the two spouses may be out of sync. One spouse may have been thinking about ending the marriage for months or years, perhaps without discussing it with the other. When the “initiator” finally announces a desire to leave, the other spouse may be blindsided.
Bargaining with the Devil Page 25