1 March 2020
The Case for Structured Mentoring in the Legal Profession
Setting up junior lawyers to succeed
The Jamaican Bar Association has been trying for a while now to encourage established and senior lawyers to volunteer in the mentoring of newly called attorneys. A good and worthwhile effort. However, is volunteerism really the way to go? In this article, I briefly outline the merits of propagating a more structured and professional approach that should be rolled out nationwide in the profession.
Whether we call it mentoring, pupillage, articleship or internship, the terminology is less important than the introduction of a guided intervention where seniors in the profession, trained by professionals, in the art and science of mentoring or coaching, not only impart knowledge, professionalism and ethical competence to freshly minted attorneys or law school leavers, but they also support their dreams and aspirations by helping them to navigate the inevitable emotional and psychological challenges of personal and professional growth, all the while guiding them on their journey to professional self-actualisation. They are able to do this because they are trained by a professional, in how to do it.
The typical law degree offered whether by local or overseas Universities excludes the many practical skills required for lawyering. This is the case in law schools in most countries. For example, the intricacies of client care and ethics, guarding against being a foil for or unwittingly participating in money laundering and even the essential skills of business development and professional networking, are just a few of the areas typically excluded. Yet these are required for a well-rounded legal professional to practice according to the high standards espoused by the Bar, whereby any transgressions or falling below standards might well lead to disciplinary action being taken by the General Legal Council.
There is very little practical knowledge obtained before being called to the Bar since law graduates are not required to do any further formal training beyond just 10 weeks in a law firm (and there the quality of exposure varies dramatically) as well as a stipulated number and type of court room observations. To compound matters, the number of firms that do actually have good training schemes, (by which is meant formal class room sessions and on the job training in both technical knowledge and skill-building) is few and far between. The sheer oversupply of law graduates in the profession means that way too many enter the profession without any handholding whatsoever. Of course, commercially available mentoring can be made available to the many who miss out, but the cost element may be prohibitive for many new entrants.
So, what else does it take to become a good, effective mentor? There are several, though three are highlighted below.
23 April 2018
What is coaching?
What is coaching, and more particularly, what is conscious coaching?
I have always been fascinated by successful people. I would muse about what makes some people successful, positive, healthy, and what is the magic that makes them different from those persons who repeatedly complain that their lives are not going the way they want them to. I wondered also why some people are driven to take on the task of solving the world’s problems and others barely seem to care.
I had long realised that success doesn’t only include material success, but again, I wondered why there seemed to be such a preoccupation with material success and the accumulation of material wealth, when not only did it appear to me that money alone cannot make you happy, so many persons with a lot of money were also saying it and giving away millions and yet seemed to be still wealthy.
Happiness is a universal goal of human beings: although there may be disagreement as to what it takes to attain this state, most agree that it is a desirable state to achieve.
From over 30 years of involvement in transformational work, I am confident in saying that many people, though desirous of achieving happiness, are unclear as to how to go about achieving it. My role as a coach is to help people to get in touch with what they want, why they want it, and to implement a plan that will help them to achieve it. Experience has taught me that the insight that a trained individual, with an objective perspective who is supportive of the client tapping into their own reservoirs of wisdom and capability for success can be just what is needed to get someone off ‘stuck mode’ and out of an uncomfortable and unproductive place. Often the client knows they need help of sorts, but they don’t know where to get it or what sort of help they need.
To go further, when persons reach a certain stage of their development (which may not even be related to age), I’ve noticed that there is often a passionate desire to give to others. Moreover, that giving state appears to be at levels that incorporate the material, but are differentiated by seemingly higher states, described by some as spiritual or even mystical. It is to these higher states that consciousness work appeals, and is how the word conscious coaching earns its relevance.
From my membership in the legal profession I appreciate the benefit of careful and serious study, excellent training and independent verification of a practitioner’s professional practice. Hence I believe that it is important for ‘would be’ clients to seek out qualified professionals who take their practice seriously. Accreditation by an independent body brings peace of mind that a coach has attained a standard of knowledge and skill; and the client can tell from the level of certification, just how knowledgeable and skilled that practitioner is.
Last but not least, the combination of skills of lawyer and coach means that legal clients have the benefit of higher level communication and negotiation skills from coaching and coaching clients have the benefit of expertise in law and structure from my legal skills: what can be better than that? ♣
31 March 2017
Commercial Contracts: Law, Psychology or both?
Have you ever wondered why it is that even when you’ve paid your lawyer for a cleverly worded contract you and the other party still find things to quarrel about?
Do you sometimes think that given the cost, time, hassle etc of negotiating a contract you might as well take your chances with a simple handshake? After all, you both know what you want from the business relationship, don’t you?
If you’ve ever thought these things, you are not alone. Many people wonder about the value of a written contract when in the real world of commerce and business, so many deals still collapse into disarray, argument and litigation.
On the other hand there are those people who when they think of contracts, they imagine a very formal document, drafted by lawyers with expertise in a highly respected craft; a craft that bestows a certain magical quality into their client’s endeavours. Such persons might believe that a written contract is a cast iron guarantee that things will go the way they have imagined, even using the term “watertight” when describing it.
These thoughts and suppositions relate to the knotty cross section of two disciplines: law and psychology. This intersection raises some interesting questions about the nature of something that is integral to commonplace commercial activities i.e., entering into written agreements, but one to which very little attention is placed. Legal contracts often ignore what is in the nature of human beings, and so sometimes fail to meet the parties’ expectations.
In this two part paper I will look at what is meant by ‘the Psychological Contract’ and its implications for the success or failure of contractual transactional endeavours.
The Psychological Contract
It is true that the process of negotiating and agreeing the content of a written contract will help to clarify the parties’ understandings of their own and each other’s obligations and expectations. However, an increasing body of academic research shows that for every written contract, each party also has, what academics are calling, a corresponding “psychological contract”.
The psychological contract is made up of each party’s understanding of:
- the legal system that corresponds to the governing law of the contract;
- the social and moral norms of their own culture; and
- the other party.
Note that I have said that the psychological contract is made up of each party’s understanding of the elements listed above. The subtlety here is the use of the term “understanding”. The psychological contract is made up of the parties’ subjective understanding, even if that understanding is incorrect and the parties’ are told as much. The parameters of the psychological contract are guided by human thinking and behaviour and are usually unstated and maybe even subconscious.
This is in stark contrast to the parameters of the written contract, which is the law, having (for the most part) the benefit of clarity and predictability. It is the written contract that the legal system recognises. Research shows, however, that it is often the psychological contract that the parties recognise; even in preference to the written one. Moreover, each party’s psychological contract can be either in conflict, be complementary or be exactly the same as the written contract.
Overlap
A psychological contract that exactly overlaps with a written contract can sometimes happen in large value contracts between two multinational companies. For example, a large cross border acquisition will inevitably use two sets of lawyers and two sets of experienced senior representatives from each party. Generally, these parties are well-versed in the legal systems, the social and moral norms of international business and are often familiar with the behaviours and conventions of the other party. Given that each party is represented by a group of experienced individuals the negotiation process tends be intensive and thorough with each party already having a deep understanding of the other. Quite often, therefore, the psychological contract between the parties can overlap significantly with the written contract.
Complementary
A psychological contract that is complementary to the written contract on the other hand can occur where, for instance, an employee of a company has the skills, attitude and ability to do what her employer expects and the employer in return provides the rewards, benefits and working conditions that the employee expects.
You may be asking yourself ‘How many contracts fall into either of these two categories’? If you are, it’s a good question. Many contracts are simple agreements between two parties or two organisations; they are local, not international, and the contracting parties may be highly skilled in their discipline but they are certainly not knowledgeable about social and moral norms and how their own understanding or lack thereof may impact their legal relationship. When this is the case, a psychological contract can be said to be conflict with the written one.
Conflict
A psychological contract that is in conflict to the written contract is missing concurrence in some crucial area of expectation of either or both parties, the absence of which naturally results in dissatisfaction or even a dispute. In a recent case involving my client’s dispute with another party, both parties described themselves as being in a joint venture even though the words ‘joint venture’ appeared nowhere in the written contract. Both parties had privately defined the meaning and remit of their ‘joint venture’ differently so that the party believing himself to be wronged by the other was in disbelief when he found out that his co-venturer was misrepresenting himself and the venture but found himself liable for the deeds of the co-venturer because of his own representations as well as the co-venturer’s. This dispute spoke to a lack of psychological congruence as between the parties themselves and between the parties and their contract!
Clearly, the psychological contract has a level of importance in every day commercial activities that is often overlooked. If the purpose of the written contract is to facilitate the success of the parties’ endeavours then perhaps more attention should be paid by clients and their advisors to the existence of a psychological contract and understanding some basic principles that have emerged from the study of the phenomenon.
The importance of the psychological contract
Clearly, not every permutation of possibility can be covered in a written contract. This is where the psychological contract becomes important. A party’s psychological contract will dictate how that party will behave in circumstances not covered by the written contract or how she will behave in the case of a breach of contract.
This means that lawyers must seek to understand the parties’ psychological contracts in order to be able to predict what will happen if the contract breaks down. This is so even where the parties themselves are partially aware or even completely unaware that they have these un-expressed requirements. The challenge is that although some lawyers may be doing this type of “counselling” with their clients, how many consider this to be an essential aspect of their work when drafting and negotiating contracts for clients? I wonder too how equipped lawyers are to ask the questions that will elicit helpful responses? Similarly, how many clients realise that the need to be forthright in the information they submit to their attorneys is essential to their lawyer properly protecting their interests?
Are there some general principles to guide us?
At this point, it is worth asking whether the body of research in this field will yield general principles that can be applied to all contracts to guide contracting parties and their lawyers. To date, much of the research has been focussed on the psychological contract where parties to the written contract are individuals rather than organisations.
However, useful nuggets can be gleaned from this research that apply generally. The research shows that, at its most basic, people will take a common sense view of a written contract. That is, they see a contract in the same way they see a promise. That it is good to “keep” that promise (perform the contract) and wrong to “break” that promise (breach the contract).
While basic, this is an important starting point. However, it is always worth even questioning this basic assumption. If a counterparty comes from a cultural background that is unfamiliar, then it is important to question whether general cultural attitudes toward contract coincide with this basic starting point. Perhaps one party may see the contract purely as a formality in order to be able to apply for work, or to satisfy some regulatory requirement or obtain what is perceived by them as a “plum” contract, rather than as a “promise” that must be kept. More than once I’ve encountered one party who regards his written contract with another as little more than a piece of paper which is observed more in its breach than its adherence, much to the frustration and sometimes surprise of the other!
Another general principle that arises from the research is that parties will include in the psychological contract aspects that are specific to the relationship between the parties and the history of their dealings: the research shows that this is the case, even when these are in conflict with the written contract.
A good example of this occurs where the parties have a high level of familiarity with one another and who instruct their respective lawyers that they have an understanding with each other and that the contract is merely to be considered as “paperwork”. Lawyers routinely include an “entire agreement” clause as standard in contracts, the purpose of which is to indicate that nothing other than what is written in the contract will form part of the agreement. In these circumstances, if it is not made clear that unspoken behavioural norms and verbal agreements that have formed part of the history of interaction between the parties will no longer form part of the contract, a party may be surprised to learn that what he considered an undisputed norm is the subject of a disagreement that has not been addressed in the written contract.
More is required. Lawyers need to dig down into the client’s expectations. If the client is relying on some unspoken behaviour pattern, then this needs to be made clear and drafted into the contract.
Enforceability becomes an issue
Interestingly, a party may break the psychological contract while still performing the written contract. However, unlike the written contract, the method of enforcement for a psychological contract is self-help, based on an understanding of the breaching party’s psychological contract.
For example, an employee may have agreed to start a new job at a new company at a lower salary because of the perceived wide range of opportunities for career advancement the employer offers. If these opportunities do not materialise then the employee may perceive that his or her psychological contact has been breached even if the written one has not.
Yet this does not mean that a psychological contract is unenforceable. If both parties are relying on social and moral norms to underpin the written contract and have a clear understanding of each other and a desire to remain in contract with each other, then a party can investigate how to ‘pressure’ the breaching party into compliance. In the example above, provided both parties understand that the employer prides itself on providing opportunities for its employees, then the employee can create a record of the opportunities actually provided to him or her. The employee could present this record to the employer to demonstrate that, in this case, the employer has fallen short of its own standards and ask for rectification.
Knowledge is power
Knowledge of human behaviour in this context may be used as a strategic tool for lawyers concluding certain deals for their clients. Lawyers already know, for instance, that clauses that set out punitive damages for breach of contract are generally unenforceable. However, the research shows that individuals who read a contract with a punitive damages clause in it are less likely to sue, even despite being given advice that the clause is unenforceable. While lawyers have always been informally aware of the effect of certain aspects of human behaviour on the negotiation and performance of a written contract, it may be that this knowledge will take on greater importance as the psychological research progresses, with lawyers drafting in clauses strategically, taking into consideration their knowledge of human behaviour in addition to their knowledge of what the law provides.
Moving forward
It is my belief that lawyers have always had varying levels of awareness of the existence of a psychological contract: after all drafting and negotiating a contract is in part the process of trying to codify the client’s psychological contract into a written one. However, since it is rarely the case that the psychological contract and the written contract will overlap exactly, it is important that parties and their legal advisors take the time to investigate properly the elements that make up their client’s psychological contracts. This will not only aid the drafting and negotiating of a written contract that coincides as closely as possible to the client’s psychological contract but will also help in the management of parties’ expectations as to what can ultimately be achieved by a written contract. ♠
15 September 2017
Psychological Safety: Helping Your Team Perform
The recent results of Google’s 2 year study on team performance has yielded some surprising results. The study, code named Project Aristotle, looked at what makes an effective team at Google. The study looked in detail into all aspects of this question including analysing what a team is and what is meant by the “effectiveness” of a team. However, for my purposes, I want to focus on another aspect of the study, that of “psychological safety”.
Up till now, a huge amount of research has gone into the question: what constitutes the perfect team? That is, what type of skills and personality traits should be included in the optimal team? This research is of course, important to help any team function smoothly. However, what makes Google’s study so interesting is that it concludes that who is on a team is less important to the team’s performance than how the each team member feels. In particular, the study showed that the most important aspect of a team’s effectiveness is whether team members feel, “psychological safety”.
What is psychological safety?
The concept of team psychological safety was first introduced by Amy Edmondson of Harvard 199[1]. Edmondson defined the term “psychological safety” as, “a shared belief held by members of a team that the team is safe for interpersonal risk taking.” A psychologically safe team exhibits various cultural traits including,that team members:
- feel able to make a mistake or ask for help without fear;
- accept and embrace difference within the team; and
- believe that nobody on the team is trying to undermine them.
Psychological safety and team effectiveness
Why is psychological safety so important to a team’s effectiveness? Various commentators have posited that, due to the evolutionary development of our fight or flight response, our brains process any type of criticism as a life or death/fight or flight situation. Consequently, when our brains have a fight or flight response, our analytical reasoning and perspective shut down. In fight or flight mode, the only strategic decision a brain must make is to fight or fly.
In today’s workplace, strategic thinking requires collaboration, innovation, thoughtfulness and questioning. These are attributes that a brain in fight or flight mode cannot, and should not, possess. Taking time to carefully consider and collaborate is not recommended in a life or death situation where decisions made in split seconds will determine survival. Psychological safety is a brain state that means that a team’s mode of operation does not trigger this fight or flight response.
The learning model
Whilst the Google study showed that a team’s psychological safety is the most important attribute to its success, criticism, testing theories, questioning, etc. are all still important aspects of coming to an optimal solution. So how can a team test theories, question each other and carry out constructive criticism without triggering each member’s fight or flight response, thereby compromising psychological safety?
Many commentators and academics, including Edmondson, recommend that in order to successfully have the robust give and take required in a team, a team learning culture should be fostered. That is, every challenge should be framed as an opportunity for all team members to learn; rewarding curiosity, suggestion and acknowledging that every team member is on a learning journey together. This learning model takes away the attack on the individual when solutions are tested or questioned, bypassing the fight or flight response. The learning model views potential solutions as a curiosity issue and a learning opportunity.
To introduce a learning model into the team dynamic and foster psychological safety, Google introduced some practical steps to all team dynamics including:
- treat solutions to conflict as a collaborative effort;
- foster empathy;
- anticipate reactions and prepare for them; and
- frame questions/suggestions as curiosity rather than blame.
The introduction of these steps is having a positive effect on team performance at Google including higher levels of engagement and motivation.
Follow up
Once these cultural changes have been made to a team to foster psychological safety, it is important not to be complacent. Paul Santagata, Head of Industry at Google, recommends periodically measuring a team’s psychological safety through both informal discussion and formal questionnaires. Ensuring that a team’s psychological safety is constantly monitored and adjusted accordingly, allows a team to succeed by focussing on learning and curiosity rather than individual ego driven success. ♦
[1] Edmondson, A, Psychological Safety and Learning Behaviour in Work Teams, Administrative Science Quarterly, Vol. 44, No. 2 (Jun., 1999), pp. 350-383.
10 September 2017
An Introduction to Conscious Leadership
As a practicing professional, business owner and social entrepreneur I find it important to situate myself within a philosophy and practice that provides guidance and support for my endeavours. Over the years, I have continually fallen back on principles which are very similar to those expressed by the Conscious leadership movement, so much so that I now consider myself a member. The Conscious leadership movement’s primary aim is to require leaders to create the optimum conditions in an organisation for innovation, creativity and collaboration. Conscious leadership does not focus on these conditions as end goals. Rather, it asks leaders to examine their own attitudes and approaches to life vis-à-vis their organisations. Conscious leadership asks leaders to change, if necessary, in order to create a culture in which innovation, creativity and collaboration thrive. I have found this approach to be rewarding and for the results to be abundant, in large part because the emphasis is less on the team, and more on the leader and because if the leader is hungry for change and success, it is often experienced dramatically and in short order!
Proponents of the conscious leadership movement explain that humans have evolved to perceive and react to threat. This is what has enabled us to survive. However here we are now in the information age, where threats to our ego, such as a questioning of our point of view, are still perceived by our brains as threats to our survival: and our hard wired reaction is a defensive one. Haven’t we all experienced the fear and discomfort of tip toeing around a boss or colleague who is defensive and brittle in the face of criticism?
Many leaders (and, indeed, people in general) therefore have an inclination (perhaps natural) to be defensive in the face of questioning or alternative views. With this defensive attitude, comes a commitment to being right. Right thinking and defensiveness however suffocates an open culture of collaboration, curiosity and questioning. Before I explain further, watch the short video below and then read on.
The conscious leadership movement asks a leader to continually question what state they are in at any time in order to understand the effect of their state on the wellbeing of their organisation. The attitudes and attributes of a leader who foster an open culture include a:
- sense of curiosity and a desire to learn, without fear;
- belief that the people in their organisation are a team of allies;
- desire to hear what other people have to say; and
- good sense of humour that is applied to difficult situations to create perspective.
The attitudes and attributes of a leader who on the other hand stifle innovation, creativity and collaboration in their organisation include a:
- belief that they don’t have enough hours in the day to do their job;
- belief that their perspective is the right one;
- belief that their organisation is under serious threat; and
- desire to assign blame.
Which of the attributes does your boss demonstrate most of the time? What about you? Clearly, not every leader can be in a “perfect” state at all times. The purpose of conscious leadership coaching or mentoring is to give leaders the tools to recognise when they are in an unproductive state and how to change that state to a productive one quickly.
Once leaders begin to practice conscious leadership, they can start to recognise any triggers that make them potentially unproductive. Recognising patterns and triggers is the first step for leaders to understand the actions they have to prioritise to bring them to a state that fosters innovation, creativity and collaboration in their organisation.
Conscious leadership brings a holistic approach to leadership rather than an outcome driven approach. At its simplest, an open, optimistic, forward looking leader who is enthusiastic about listening to his or her team and excited to work together towards success is likely to achieve it. ♥