Len Fromm’s lawyer shares what he’s learned.
Positively Conflicted is the right book for any lawyer seeking a rich and fulfilling life, which is a larger category than one’s career.
According to the author, lawyer-meditator Sam Ardery, we get to this highly desirable endpoint by getting good at conflict. On one level, this makes sense, as we’re all in the conflict business. But Ardery’s definition of conflict is remarkably broad and includes the tensions and traumas of our personal, professional, and familial relations as well internal conflicts, where we stew over our inadequate supply of power, security, esteem, and comfort.
Ardery, who is a partner at a 16-lawyer firm in Bloomington, Indiana, passed the bar in 1983. Twelve years later, he mediated his first case. Since then, he’s done 4,000 more. Obviously, one doesn’t attract that volume of work without developing a reputation for results. And plenty of wisdom in Positively Conflicted flows from what Sam has observed. Yet, during the early part of his career, nothing seemed to be going Sam’s way, as he was hounded by his own internal conflicts that resulted in a persistent pattern of self-sabotage.
“Far less happy than my reality”
As a 2L at Indiana University, Sam had a lackluster work ethic that landed him in the broad middle of the class. In chapter 8, which is titled “Fear,” Sam tells the story of drinking beer and shooting pool one Friday night with his law school buddy Ron, who shared Sam’s disdain for law school.
Over the course of the evening, they hatched a plan to skip out of school to witness the launch of the space shuttle in Florida and then drive to Edwards Air Force Base in Southern California to witness its landing. Sure, they’d miss some classes and have to sleep in the car, but the school year would be over in a few weeks anyway.
By morning, Ron had forgotten about the plan, but Sam stayed up all night convincing himself that his personal misery demanded not a road trip “but a much more dramatic move: quitting law school and leaving town.” (p 82). The next day, Sam sells his car, says goodbye to his girlfriend (and eventual wife) Patty, and heads west via a four-week Greyhound pass. By the time it expires, Sam’s in Lake Tahoe living in a flophouse and working as a barback at Harvey’s Casino.
Unfortunately, Harvey’s is not a particularly easy gig, at least for Sam, who lacks the speed and agility to keep up with the wait staff. In less than a month, Sam goes “from a passing law student to a failing barback.” (p 84)
As Sam settles into this new life, “uncomfortable, ashamed, and feeling like I’ve been backed into a corner,” a letter arrives from Len Fromm, Indiana Law’s Dean of Students. The letter notes that Sam had clearly been thinking about his situation for quite some time and that Fromm regrets that they have not talked. Rather than criticize Sam or spell out any consequence, Fromm let Sam know that he had been given a one-year leave of absence with no requirement to reapply. The letter ends, “The unexamined life is not worth living.” (Id.)
As a professor at Indiana Law and a resident of Bloomington, I have the benefit of some additional inside knowledge. If you polled alumni from the 1982-2013 time period on their closest and most cherished law school connection, the landslide winner would be Len Fromm, in part because of his tireless work ethic and deeply wise and empathetic nature, and in part, because he had the advantage of getting to know every entering student at orientation, intoning each of their names at commencement, and signing the character & fitness portion of their bar application.
In 2012, Fromm was stricken with aggressive cancer and a terminal diagnosis. During his tenure, roughly 6,000 students graduated from Indiana Law. Thus, it is noteworthy that when it came time to wrap up his affairs, Len Fromm asked Sam Ardery to serve as his lawyer. He could have picked anyone. But he picked Sam. Positively Conflicted helped me understand why.
(For more on the late, great Len Fromm, see Henderson, “Introducing the Fromm Six,” Nat’l Jurist, May 2013.)
The leading theory for how professionals learn is reflective practice, which is a concept most fully developed by the late Donald Schön in his 1983 book The Reflective Practitioner.
In brief, Schön argues that the most difficult problems faced by professionals (doctors, lawyers, ministers, psychologists, etc) seldom yield to simple, pat solutions. Unfortunately, learning is not an automatic byproduct of experience. Instead, to make maximum progress, we must reflect on our experience, particularly our failures. Cf. Post 097 (social psychologist Linda Ginzel observing that “digested” experience, through self-reflection, is the path to effective leadership). If we do this well, and we do it routinely, we develop the ability to improvise solutions to progressively more difficult problems, including those deeply interwoven with human foibles such as pride, ego, fear, greed, envy, and sloth.
Positively Conflicted is basically 40 years of reflective practice—a full career—put into book form, albeit the net of experience is extraordinarily wide, including Sam’s personal life, the travails of friends and close associates, his legal work, and more than 4,000 mediations.
If you read Positively Conflicted, what you’ll remember most are the stories. Many are funny, insightful, and worth recounting, and all of them are used to illustrate several key frameworks and principles that Ardery has devised or borrowed (with attribution). But for the purposes of this review, it’s worth starting with this one.
The turning point in Sam’s life comes early in the book, and 12 years into practice, when Sam is drinking a quart of vodka a day, slipping up at work, and failing as a husband and father. Running out of answers, Sam accepts an invitation to take a long drive to Michigan with Red, a gruff old man with many years of sobriety.
They are not even to the county line when Red asks, “Do you love your wife? Your kids? Your job?” Not waiting for an answer, Red continues, “Of course you do. But not one thing about your behavior suggests that. You can’t be honest with yourself, so how can you be honest with anyone else?” (p 12)
Red’s monologue continues until they stop for lunch in Fort Wayne. After placing their order, Red grabs a napkin to draw a little exercise for Sam to complete. With a chart similar to the one below, Red informs Sam, “Everything in life—I mean everything—falls into one of these categories.” (p 13)
After explaining the contents of each category, Red instructs Sam to use the left side of the chart to rank his priorities from 1 to 5, with 1 being his highest priority. After completing that portion of the exercise, Red asks Sam to imagine someone following him around for several days with a video camera. Red then tells Sam to use the right side to rank his priorities based upon what the video evidence would reveal.
Unsurprisingly, Sam’s numbers do not match up.
Red then leans in close, lowers his voice in a way that approaches actual kindness, and says:
Sam, every conflict begins with you. There is the person you claim to be and the person your behavior shows you to be. You probably don’t even realize the way that disparity affects you and the people around you. You feel fear, stress, anger, anxiety, but you don’t know why. You can’t acknowledge your internal conflict, so you lie to yourself and others. Until you are aware of this, you cannot have honest relationships with yourself or other people. (p 16)
Red pauses and looks at Sam. “OK,” Sam replies, “let’s say you’re right. What next?”
According to Sam, that was the day when he “began to stop blaming others for my problems.” (p 8). He also threw in the towel and accepted help for his alcoholism. He’s been sober ever since.
Engaging with conflict
The key insight of Positively Conflicted is that conflict is present in all facets of human life, starting first with the internal conflict that shows up if we do nothing more than sit alone in an empty room. Thus, we’re better off acknowledging its omnipresence and formulating ways to navigate it more effectively.
Note that nothing about the above insight is designed to benefit lawyers or legal professionals. Rather, it applies to anyone seeking a rich and fulfilling life. Yet, we (Legal Evolution readers) are in the conflict business, so it’s worth our time to slow down and consider what Ardery has to say.
From the bottomless ocean of conflicts that arise among people on a daily, weekly, and monthly basis, a small portion metastasize into lawsuits. Because the financial and emotional costs of litigation are high, very few get resolved through motion practice or trials—i.e., the stuff we emphasize in law school. Rather, most settle, including some with the aid of a meditator.
For the last several years, I’ve invited Sam to lecture in my 1L Legal Professions class, invariably introducing him as “Len Fromm’s lawyer.” (The course’s competency model is called the Fromm Six, so the students are intrigued by the connection.) Recently, Sam used the following two diagrams to explain why satisfying outcomes for clients will be elusive if the lawyers involved lack the life skills to effectively navigate pre-legal disputes.
It turns out that really good outcomes in the yellow and orange boxes have a lot in common with good outcomes in the two blue boxes, albeit they become less likely if the lawyers involved lack blue-box skills.
Orange box outcomes
Positively Conflicted tells the story of several interesting mediations that end well, though sometimes at the price of extraordinary pain.
1. Property line dispute
Gene and Casey are two widowers who live next store to one another. When both of their wives were alive, they regularly socialized. As Gene prepares to sell his house, the survey reveals that Casey’s backyard fence is encroaching on Gene’s land by 12 inches. Thus, Gene, “thinking there would be no issue,” sends Casey an email showing him the survey. He ends the email, “Please let me know if you can move the fence by the end of the month when I put my house up for sale.” Sam notes, “Gene thought he was being generous.” (p 46)
Unfortunately, the message is not well received, as Casey is upset that Gene has not come to talk with him. Casey replies, “My fence has been there for 40 years. I have no plans to move it now or in the future. I’m happy to discuss it with whoever buys the house from you.”
Gene then threatens to have his son take down the fence. If that happens, responds Casey, he’ll call the sheriff. He also hires his own surveyor, who shows that the fence encroachment is a mere two inches, but also that Gene’s driveway is two feet on Casey’s property. As the conflict escalates, Gene and Casey head to court-ordered mediation, as both ignore their lawyers’ advice to work things out.
This story appears in chapter 3, “The Problem of Circumstance,” which discusses how each of us tends to get wrapped up in our own interpretation of events, often not wanting to face the possibility that someone else might have a differing, and potentially equally valid, view. Convinced of the plainness of our truth, we lay it out in an email, which has the hidden benefit of avoiding direct, face-to-face conflict. Conversely, the lack of face-to-face communication is viewed by the recipient as an unforgivable affront.
By the day of mediation, Gene is a wreck. In the opening session with his lawyer, Gene tells Sam, “I have no interest in talking to Casey, but give him whatever he wants. He can leave the fence, I’ll move my driveway. I’ll buy him a Big Mac and a bus ticket just to be done. This process is so miserable. If I had had any idea of the amount of anxiety this would cause, I would never have begun. I’m tired of lawyers arguing.” (p 46)
2. CEO versus the Little People
For many years, Sam has used his five-finger model to explain the process of litigation and mediation. Finger 1 is the percentage of winning or losing. Finger 2 is a conservative jury outcome. Finger 3 is a generous jury outcome. Finger 4 is the cost of litigation. And Finger 5 is about intangibles, such as personal priorities, unintended consequences, and risk, which is an area where most people, including lawyers, tend to struggle.
Sam learns the supreme value of getting the intangibles right—and more importantly, what to do about it—from the CEO of one of his clients, a large company locked in a dispute with several of its customers. Although the company has ample resources to continue to fight, the CEO concludes that the bad press is more costly than vindicating his views in court. Hence, the goal is to settle during mediation.
This story appears in chapter 6, “Power,” which discusses how power, which all of us crave, can backfire if not used with proper discretion and restraint. During the opening session, the plaintiff’s lawyer lays into the CEO:
You and your company should be ashamed of yourselves. It is not just the company but how you personally behaved. And every step of the way you could’ve stopped this, but instead you stepped on all the little people, with no regard to the impact on their families. You just hoped that no one would take their case, and you were wrong. (p 99)
Remarkably, the CEO embraces the discomfort. Rather than letting Sam (his lawyer) respond, the CEO replies, “Thank you for being so candid about the way you and your clients feel.” Looking directly at the plaintiffs’ lawyer, and then the customers, he continues, “It is clear that you have suffered. We may not agree on everything, but I don’t want to insult you by having my lawyer tell you how we see things differently. We are here today to take another shot at selling this case and I hope we can.” (p 100)
According to Sam, his client did not make a single argument to counter the lawyer’s claims. Sam observed that once his client decided to settle, any talk of legal defenses would have denied the customers a face-saving way to settle. “Without saying anything about ‘principles,’ he was willing to let the customers have theirs without challenging them. It was a remarkable display of setting aside power.”
3. Getting the whole story
Chapter 7, “Bias and Stereotype,” is about the costly conflict that occurs when, despite our best efforts and intentions, we are unable to put ourselves in the shoes of people different than us.
To illustrate, Sam tells the story of Donna, a woman of color released from a rigorous training program that she had worked for years to qualify for. Because the program had very few women, and only one person of color (Donna), the case was high stakes for everyone. Sam served as the meditator.
At the request of Donna and her lawyer, Sam starts the process with the defendant. According to Harrison, the program manager, “we wanted her to succeed. I put my reputation on the line. In fact, we so wanted her to succeed that we hired a mentor devoted exclusively to her to ensure her success. Donna missed tutoring sessions, ignored the mentor, and underperformed at every level.” (p 125)
Sam asks, “Did you meet with her before she was released?”
Harrison replies, “Briefly. She cried for about 20 minutes without saying much, and left. I reviewed all the evaluations and talked to the mentor. I had to be objective and not swayed by emotion.”
Sam then heads into the other room. Before he can say anything, Donna begins:
I am so embarrassed. I never sued anyone. I worked incredibly hard to get into this program. I pride myself on my independence, and when I went in to talk with the director, I started sobbing and couldn’t defend myself. I was determined to make it on my own, but they treated me from the beginning like I was different. No one else had a mentor. No one else was getting special attention. I knew I was different because I’m a woman of color. They treated me like I was incapable of making it without special help. My classmates didn’t think I was I was one of them, so I had no friends in the program.
In the middle of all this, my daughter got sick. I was missing scheduled meetings. I was so short on money that my phone was periodically turned off, and I lost calls and confused schedules. Since they already seemed like they had an eye on me, I didn’t tell anyone about my daughter or my financial struggles. I didn’t want to be the “special woman” who couldn’t make it without help.
Then I became the woman of color who failed. I’m devastated. (p 126)
They all sat silently in the room. Recalls Sam, “It seemed like a circumstance where money would not be a good fix.”
Sam asks Donna, “Do you have any interest in sharing that story with Harrison?” After discussing this option with her lawyer with Sam out of the room, Donna’s lawyer weighs in, “I don’t think I’ve ever done this before, but if Harrison is willing to meet only with Donna and with no one else in the room, she’d like to have a conversation.”
Sam passes along the invitation to Harrison. Not surprisingly, Harrison’s lawyer reacts with skepticism. “What’s going on? Are they just looking for another way to create more liability for us?” Remarkably, and fortunately, both sides agree to let Donna and Harrison meet privately.
“Without lawyers or a mediator,” Sam writes, “Harrison and Donna work out a way for Donna to return to the program which she successfully completed. She no longer had an assigned mentor, but she had Harrison’s cell phone to call if issues arose. Donna did not need to call for help, but she continued to stay in touch with Harrison about issues surrounding the successful inclusion of people of color who had been overlooked in the program.” (p 129)
A green box outcome
At least half of Sam’s lessons on conflict are derived from his own personal struggles or those of close friends and associates. Most of the rest have at least a passing brush with the law. This one, from chapter 4, “The Justice Gene,” comes from one of Sam’s clients, Frank, who visits Sam shortly after the death of his wife. Fortunately, it resolves without a lawsuit or meditation,
Frank and Gloria had been married more than thirty years, though it was the second marriage for both. Frank and Gloria lived in Gloria’s home, where she had raised her two children, Nick and Sarah. By the time Frank and Gloria married, both were grown and out of the house. Frank had no children of his own, but over the course of three decades enjoyed a trusting and harmonious relationship with Nick and Sarah.
Although Frank and Gloria mostly kept separate finances, to make things equitable, Frank transferred funds equal to half the house’s value into Gloria’s account, which was used to pay for a variety of things, including help with the grandchildren’s college. This arrangement was never discussed with Nick and Sarah. Gloria’s will gave “her half of the home” to Frank; the rest of her assets (“much more significant than the value of the home”) went to Nick and Sarah. (p 64)
Several months after Gloria’s passing, Frank decides to move. After putting the house up for sale, Nick and Sarah come to see him to make sure that they will be receiving “their half” after it’s sold. Frank is stunned and explains how he and Gloria had decided to handle the house in the event one of them would die. Nick and Sarah are indignant, claiming “there is no way” their mother would have wanted that. Further, they struggle to believe it because they were never informed of the arrangement.
With his relationship with his stepchildren in tatters, Frank comes to see Sam.
Frank asks, “What do you think?”
“What do you mean?” replies Sam, trying to delay his response.
“You know what I mean. Who’s right?”
“Do you really want to know what I think or do you just want me to be on your side?”
Sam writes, “I knew that Frank was grieving and also suffering from the sense of loss coming from a conflict with Gloria’s children. If I agreed with him I would be helping him confirm his judgment of them. If I disagreed with him, I would be aggravating the conflict in his mind.” (p 66)
When asked what he wants, Frank replies, “what Gloria and I agreed, and for Nick and Sarah to accept that and get over it so we can go back to what it was before.” Because that option may not be available, Sam asks Frank to decide whether the purpose of engaging with Nick and Sarah is to convince them of what was fair in his mind or to explore the possibility of repairing their relationship.
Frank chooses the latter. In meeting with Nick and Sarah, he apologies without explanation or excuse. He also says that he loves them both and is sorry something came between during this time of grief. Frank is willing to answer their questions or say nothing at all. But regardless, “I’ll accept whatever you decide is the best thing to do with the money.”
Sam writes, “Frank had decided what was most important to him and also decided that he would work to surrender his resentment rather than demand that Nick and Sarah get over theirs. The three of them still have a relationship.” (p 67)
A framework for doing conflict well
Sam Ardery’s signature framework comes toward the end of the book. In his experience, parties in conflict generally fare better when they can do three things:
- Embrace the Discomfort (ch 10). This is hard because the pain is often palpably physical. Yet, denial, escape, and attack will take us to a worse place.
- Listen Radically (ch 11). This is setting aside our agenda to listen to another point of view. Any attempt at response negates the listening.
- Accepting Responsibility (ch 12). There is no conflict without us.
Most of the underlying principles in the above framework are illustrated throughout the book, including in the stories recounted in this review. Yet, Accepting Responsibility warrants one more story.
A few years after getting sober, Sam and Patty are struggling with the challenges of raising three pre-teen girls. (Patty and the girls make many appearances throughout the book.)
Hoping to get some sympathy, Sam accepts an invitation from his friend Michael for a friendly chat. They head to a nearby deli. As they collect their sandwiches and head for a table, Sam begins a long monologue about how Patty barely notices him when he gets home from work. Often, the girls have already had dinner, leaving Sam to fend for himself. The house is always a wreck, with Patty expecting Sam to step up and help.
Michael listens patiently, eventually asking, “Are you done?” Sam replies, “I think so.”
Michael continues, “For the purpose of this conversation, I’m willing to accept that Patty is ninety-five percent of the problem; from this point forward, we’re only going to talk about your five percent.” (p 224).
Sam claims this to be the biggest “aha moment” of his life, revealing that whatever fraction of “rightness” he might possess, “I could never say I was blameless—ever.” But more than that, Michael’s brutal honesty helped him see that however big or small his part, it was the only part he could do anything about.
As Sam’s stories reveal, taking responsibility for our 5% is one of the most powerful solvents for diffusing conflict. When we start there, the options for favorable resolution start to multiple.
Len Fromm’s lawyer
I am very grateful that Sam Ardery took the time to engage in a few decades of reflective practice and then write this book. Likewise, I’m grateful that I took the time to read it and give it its due. Fortunately, being Len Fromm’s lawyer was one helluva clue.
PS, some variation of this review will be used in my Legal Profession class when I attempt to teach reflective practice. (H/T Anthony Kearns.)