Every Fight Is a Disguised Bible Story

Big thoughts, quick talk, flip facts, tick-tuck, level up your mind, every single line. Alright guys, welcome to another episode of Anatomy of Conflict Podcast. Today we have with us Arthur Presman, who is, I will just say, one of the key players in the country in mediation, generally specifically, franchise mediation, and it is a pleasure to have 30 minutes of your time today, Arthur, welcome. Well thanks, I appreciate being here. I'm not going to waste any time. I'm kind of in one of those feisty moods, so I'm just going to go for it. You and I have spoken before, I know a little bit about you from that conversation.

I know enough about you to know that you've done a ton of franchise mediation, and so that's why I want to start. I have an obsession with what do people who have lots of reps at a certain task, lots of at-bats. What do they gain that those who don't have that many at-bats don't have or can't appreciate? That's a good impression. That's a good question. Well, I think there's an old expression doing the same thing over and over again, and expecting a different result is the definition of craziness or insanity.

And so I don't see it as doing the same thing over and over again. Of course, everybody in my mediations is a different animal. They're all, you know, sewage enters, as lawyers say. But they come into it with their own, I would think, frankly, just like husbands and wives come into what you do. They all come into it with their own expectations, known and unknown, and their own concerns. The one thing that franchising, and my experience with franchising gives me is that I know very well what all the pushers and polls in the relationship generally are for people.

Not so much the legal, I mean, I know the legal issues, but it's really the business issues and where people get jammed up, whether where franchises get jammed up, where franchisors, particularly newer franchisors, have issues that are at the forefront of their minds that are not the same as franchisors who have been at it for a long time. I mean, if you're McDonald's, how you think about a dispute with your franchisee is entirely different than if you're Joe's frozen Italian ice that's just started and you've got 10 units or five units. I mean, companies like big companies like McDonald's have very few disputes with their franchisees.

They work it all out because they all speak the same language and have the same expectations. Younger companies don't have that on either side of that equation and so it's harder to work it out because they're not sharing the same view of what the dispute is. So how does Arthur Pressman walk into a room with people who have different, they've gotten there, they've gotten there because they haven't been able to get to an agreement by themselves. One way or another, they're stuck, they're at an impasse, they can't agree on something. I'm making that assumption. How does Arthur Pressman help people with potentially different perspectives, point of views, values, etc. How do you close the gap?

In other words, personally, you have to identify what the gap is. I mean, I think you may not know, although this would actually be interesting if there were such a thing as a marriage contract. In a franchise contract, when somebody buys a franchise and they get a written franchise agreement, chances are that agreement says, if we have any disputes, that dispute has to be submitted to mediation before we do stupid things like suing each other.

And so people end up in lawyers offices because they're unhappy about something. They may not have really explored that something with their counterparty. They just know they're unhappy. And so what comes from that sometimes is a demand for mediation. And I might really be the first person who sort of helps them work through what it is that's of concern. Many new franchisees have no business being franchisees. It's wrong for them. And they didn't realize it until they spent hundreds of thousands of dollars and realized that they had to work 12 or 15 hours a day at a physical job that they hated.

And many new franchiseors who think their grilled cheese sandwich is literally the greatest thing since sliced bread and that everybody ought to be selling them all over the world, maybe they shouldn't be franchiseors either. It takes a while. I mean, you know, it takes a while for anybody to really become comfortable in what they have and have a good sense of its long-term potential.

So I'm able to tell with their input whether this is a relationship they want to be in or not in. And if it's not in, there's every legal impediment in the way because the franchise agreement actually doesn't contemplate people buying a franchise and quitting much less buying a franchise quitting and getting any money back.

And so, or having borrowed hundreds of thousands of dollars to get a prize that they don't really want. You know, I know what the building blocks are. And so I help rearrange those, I guess. That's what I think I do. And so I have to identify what is, you know, is that really what's it? Or, you know, do they have some misconception about what was promised to them? Can we work that through in some way? It's a very much sort of, it's not a cookie cutter kind of thing. It's a one at a time kind of thing. And unlike your model, I mean, my, I would say that the average time for my cases is well north of eight hours, well north of eight hours, eight to 12 hours. Sometimes they don't end that first day.

Sometimes they just don't end that first day. And so we have a, you know, another day, we'd come back to it again and we take the progress we've made and try to apply it. It's a, it's very difficult to know what you want going into, you know, for some people going into something like a mediation.

So let me ask you, I'll follow up on that. It's very difficult to know what you want. Is that to suggest that, I mean, I'm assuming they have some conception of what they want. They want money or they want in or out or whatever. They have their position, we could say. Do you think it's true to say what I'm helping them understand is you're pulling them out to a broader perspective or to say it differently. You're, I'm trying to distinguish this between therapy, but I'm having a hard time distinguishing this between therapy. Another words, I'll just leave it at that. You know, how do you see that? I don't consider therapy in any sense. I mean, being in therapy and it's a, I know that's all different animal.

Okay, let me, let me, let me, let me push. I'm not talking about the mother, but you might be saying, boy, you really had a lot invested. You're the front, you really had a lot invested in making this thing work. It was a dream of yours since you're a, that must, that must feel hard. It must feel hard to now get to this place, half a million dollars in debt. Man, that must.

So for, you're absolutely right. You're absolutely right. You have to, I mean, it's a, I mean, it may sound entirely presumptuous and it is in some ways entirely presumptuous, but it's tempered by the fact that we have no authority as meteors. So I can't make anybody do anything.

But even when I was a divorce lawyer going, you know, way back, people would come to me and they were just messes and you could tell that they were messes and they had all these incredible demands that they were making of their partner in the context of their marriage falling apart. And, and some of those demands were just sort of totally out of, not just the realm of possibility, but just were beyond asking. They were really crazy.

And so, and I always saw right or wrong. I saw part of my job as a lawyer was helping them come from where they were, which was a mess and not able to deal with anything to where they needed to be, which was much less of a mess and able to deal with the sorting out that needed to be done.

And so, um, So what I'm asking you is that process, the de-messing, I know we don't like to say it's therapy because we like to draw these clean lines between oh god, no, that can't be doing therapy because that's the therapist. But I, if I'm being, if I'm being very critical with my very critical mind, I have a hard time distinguishing therapy. In this case, from coaching, from mediating, I mean, it all seems to be helping people. Well, there's a whole other reason that's different too, because you work with people who are not accompanied by their lawyers. All of, as I understand, correct.

Okay, so, you know, the intervention of a lawyer in real time is a, is a big differentiator, a big ban. And, um, you know, sometimes it is for the good, sometimes it is not particularly for the good. And you have to, and, and, you know, lawyers sometimes have a real problem figuring out whether it's all about them or whether it's all about the client.

And so, um, um, some of them just got a little off path here. No, we're right where we need to be because, okay, I want to come back to this. You said, I was just thinking about this as you were talking. So, yes, the lawyers sometimes think it's about them because they have egos. You said it's not therapy and you know it's not therapy because you've been through a lot of therapy.

Now, check this out. I've been thinking about this and I've been talking to, I just talked to Sam, um, what Sam's last name? What's his last name? Armory. Armory. Yes. And I interviewed, um, Claude AI, the AI model, about, I asked them both the, like, what is the secret sauce to an expert mediator? What does the expert mediator do? What does the expert mediator not do?

Right? And one of the things that was a through line between those conversations was the following. The expert mediator, bar above all else, knows him, her or their own selves. They've done enough self-work, work, self-work, yeah, self-work to know when the room is heated, they know how to say, hey, the room's heated right now. They've looked at their own shit in their own relationships and how their own triggered in their own marriage and with their kids and like, they have that muscle that they've built because they've built it on our foundation, which is your relationship with your partner. And that is, and I believe that is equally true.

Um, if you're a lawyer who has spent a career dealing in a sort of a closed-accus ecosystem like I have, like franchising, I only did for 40 years franchise cases. How did that happen? Longer story, but I only did franchise cases and, and knew, and knew, I can't ever know everything about it, but I knew an awful lot about it, I knew the players, I myself had been a franchisee for a short and horrible time for me.

And, um, so, um, I know what's going, I have a pretty good sense of what's going on, but which is different from sort of reading the room and sensing what's going on because, and I also have, I have that sense as well, though, I believe, not just from all the mediations and the training, but, um, but I think the whole experience.

Yeah, I don't, it's so, I mean, it's, yeah, so there's reading the room, there's subject matter expertise, but then there's also, I Arthur Pressman, um, the, the Arthur that you're seeing here today, I'm not wearing a mask, I'm wearing a thin mask, I'm, there's not a Delta, the theory is that if there's a difference between the person, if, if people smell that you're fake, they're not going to feel safe, and it's a prerequisite for them to feel safe for them to engage.

Right, exactly. Safe and heard and respected, and I, and I, I can't pull that off. I can't pull off faking any of that, um, and, and, and have never tried. Um, I mean, I so believe that mediation is, is preferable by a long shot, by a long, long, long shot, to any other way of resolving big commercial disputes, that, um, my investment in it working is enormous. Why else would I spend all this time after people tell me, you know, go fuck yourself, I'm not pan him a penny, I'm not whatever, why would I, why would I not take that as an invitation to leave the room?

Um, I don't, I go out into the elevator lobby and bring them back in, because, um, I am convinced that the one thing I do know is that mediation is better than what they're, what they're otherwise going to experience, um, if they go about it in a more traditional lawyer-bound way. And, and, you know, I love lawyers, I love being, I love being a lawyer. Um, why do you think that, so my, my response to that would be, I want to see if you think, so mediation is better than litigation for the following reasons. It's more predictable, you can control the costs. If you win, and I don't know if this is the case in franchise or, but let's just say it at divorce.

So tell me if it sticks here. If you win, you go to court, you win. You don't really win, because the other party is your co-parent, and now they're going to resent the hell out of you. So, in, in a commercial litigation or franchise, you franchise or litigation, the party that says, hey, my position's superior. I've done the analysis. I know the case law. I know the jury. I, my chances are better. There's nothing, position, but, but this is not about position. If, if it's all about position, go to court and you win your position. It's not about position. It's about why people do what they do. And what, what does that mean? I don't do that. And that's not, that's the why of, of why that is my position.

So it's about principles? Now, now, it's about, it's about sort of what goes on in somebody's core. And that's the, and that's the why, you know, the position is what the lawyer comes out with. You know, I can justify it because of case A, case B, case C. But why, why the client embraces that is, has nothing to do with what the position is, the client embraces it because it, it, it feels a particular way about it. And that's the way that, you know, they're trying to get closer to them. They're true selves, I guess. Even in, you know, I, I think I still told this to you. Every commercial dispute, I think, is a, is a disguised Bible story. There's always a good person. There's always a bad person.

And whether they're actually bad or actually a bit good is all other subject. But if I'm in a dispute with somebody, I have, you know, that dispute, even if it's about widgets, that dispute takes on certain good and bad can enable kinds of, kinds of dimensions. So, so how do you push back on, I mean, these are lawyers who are extremely well educated, extremely talented, paid extremely well, have very kind of, notoriously robust egos and competence. How do you, and they're competent in their position by definition? How do you soften it? Well, the good ones know exactly what I'm talking about.

The good ones, meaning what, that the good ones have a sense that we're dealing with people here and people have feelings. And that it's more about more than winning and losing because they, they've all won and lost and winning and losing, they will tell you does, does nothing for no one. Nothing for and no one because it, it, everybody, the winner is disappointed because it costs so much money and still they feel empty and whatever and don't have exactly what they want. The loser, you know, the whole world's against them, et cetera, et cetera, ended cost them so much money. And there's also no finality.

I mean, the thing that I offer people that they can't get from winning and losing in a courtroom is finality. When we reach a conclusion, that dispute is over. You know, we put it in as small a package as necessary or as possible because I'm not a, I don't ever end the mediation and then say to people, go write a 40 page settlement agreement. They'll never come back if I tell them to do that. That, that gives them 40 pages to argue about.

So, so I, you know, I try and, and generally succeed in having like a, a one page handwritten resolution of the, the key issues. Do they sign them? Yeah, of course they sign them. I mean, they say, I only write it. I don't even write it, frankly. They write it. I almost never write it.

But I make the lawyers. That's what I want at the end of the day. Okay, you've reached an agreement. I know from past experience, if I send you off to do it, you're going to screw it up. So, I want you to do it right today, tonight, before you leave this room. I don't want it to have a choice of venue provision. I don't want to have, I don't want you to lawyer it up. I want you to have the five things that matter and then there's a release at the end. And then the second, the second last thing says, and if you want to, um, you know, knock yourselves out and have a more complete settlement agreement, go knock yourselves out.

But if you don't, this is it because this is legally enforceable. Hmm. I like it. So the good lawyers know that people are people and people, they sort of know these things. Um, the lawyers who don't have anything to prove to themselves or aren't you trying to prove something about themselves to somebody else.

So interesting, right? Because this is never a class at law school that I, that I was aware of like how it's like, it's like, we have contracts, criminal law, criminal procedure, all the rest of it, courts, but we didn't have, um, be careful of the trap about proving something to yourself, 101, right? Well, that's right. Sure. I mean, all the reasons that, I mean, the reasons, I mean, so, you know, picture my arm as an, as an arc.

And so all the way over here is a solution that people speaking to each other through negotiation can resolve. All the way over here is you've gone to court because you haven't been able to figure it out yourself. Um, and the more, the more people you involve in it, lawyers, even mediators, arbitrators, the more expensive it becomes. And then you get to, you know, a judge in a jury, it's crazy expensive. You have no input. No, the rules are not yours. You can't even ask, you can't even say what you want because you can only answer a question as asked. Um, it's, everything gets in the way of a result, everything gets in the way of a resolution. Um, I like it. I didn't, right?

People themselves get in the way, but what you were just, you just said about lawyers, lawyers not realizing that they're the painter and not the picture. Um, um, um, which I will credit to Jerry Spence, quite frankly. Um, um, um, you know, who's Jerry's, did you know who Jerry Spence was? A great, great lawyer, dead for 15 years. Guy who were, uh, ride, lived in Wyoming, did the, um, the, the Aaron Brockovich case. I mean, he was one of, one of a million, one, one in a million. And, um, um, the, the, the reason people can't don't reach agreement is, is not in the stars. It's in themselves. They, they, they don't listen to people. They only listen to things that support their positions.

Um, you know, they're very selective in, in what comes in. And, um, and so those are all the reasons, you know, if, if you take a negotiation class, that's where you learn why people don't come to agreement. Um, one more, uh, I've, I've like three more questions for you. First one, you have a mediation. Let's say tomorrow or the next day or today, whatever. Do you think you can take pressure off yourself and say, look, all I have to do is show up and be present and pay attention and be curious and provide that space. That's it. I don't have to be smart. I don't have to be clever. I don't have to know the law. I don't have to, I don't have to, I don't have to do any intellectual bench pressing here.

That's not my job. My job is to stay with them and, and, and give them the rare gift of attention. That is the, that is the most important part of the job. I will credit. I will certainly say that. I mean, when people say to me, even when a case doesn't work out in their favor, they, they, they, they say to me, you know, I feel heard. You have made me feel heard. You're the first person he was made me feel heard. I really appreciate that. It's all, the mediation is, is all process. It's not, I hate to say it, but it's not outcome. It's process. And, and so all the other things help. It helps if you know the subject matter.

It's help, it helps if you have some sense of how people operate in these circumstances, how other people operate in these circumstances. It helps if you have some sense of assessing the validity of somebody's position, which often sounds like what a lawyer says. But, generally, being present is the most important thing. It's not amazing. I just find that so, like, comical and it observes in an absurdist sense, right, that like, of all the skills and tools and TED Talks and books and, and, and that the thing in the world with the one you worked on and, and developed for yourself. Yes.

Right. All right. And I don't know that mediators shares that. I don't know. I know that there are mediators who think I've done this for my whole life. I can go tell people what to do. That is not a mediation. That is telling people what to do. It's been an amazing conversation. I want to end with what we're establishing as a tradition, where the guest before you Arthur, who is Sam Arthur, asks, posits a question that the guest after Sam Arthur will answer.

So, his question for you is, what role does your own fears play in your performance as a mediator? So, I have, I, I, I, I don't like to get things wrong. I know myself well enough to know when I do get something wrong. Either I've read somebody wrong. It's usually that I've read somebody wrong, or maybe even that I've done something wrong in the context of a mediation. This is a hard enough job as it is to have the sense of one's own value without, without also having a sense that you fucked it up in some way.

I mean that, and so, I have had a couple occasions, and then I have a couple occasions where I may have fucked it up, or I've come close to fucking it up, and then I've had other occasions where people have taken out, this is a different subject, where people have taken out their wrath on me and ascribe to me responsibility for the position that they find themselves in. You know what a mediator's proposal is? You may not actually, because it may not come up in your line of work. I mean, it doesn't, but it doesn't, but let me take a stab at it for the listeners.

Is it essentially a compromised position where both, where both things are possible, or is it the mediator's evaluative position about, what's the mediator's evaluative position? Well, it's very evaluative, and it comes, some mediators do it often. I have done it twice in my entire career. It is the, it is the, it is at nine o'clock at night, the last gas, the last gas. Everybody's collective last gas, and I don't ever suggest it to people, but they suggest to me, how about if you make a mediator's proposal? And the rules of that are that if you're willing to do it, you, you, you, you make a proposal for settlement, you present it separately, but simultaneously, to each side.

If you get, you get, there are only two answers possible, yes and no. If, if you get two yeses, the case is settled. If you get one no, the case is not settled, and the no never learns what the other side's position was. Oh, interesting. And so, so that, that requires the mediator, at least in the two cases that I did it, and these were very big ticket cases. I mean, millions of dollars of cases. And, and, and I knew both sides so well and what their expectations were. And this was, it's not, I don't do it as this is the correct result. Or this is what the law will do. I do it from my perspective is, this is what it's going to take in my view, having heard you all for 12 hours, for both of you to agree.

You may be with kicking and screaming, but you know, perhaps. And so that, and so, sometimes that means that, you know, a party who has spent the whole day saying this case is worth X to a party who's demanding 10 X. I will say, in my, I will say this case, here's the mediator's proposal. I don't know. Six X or three X. It doesn't make any difference what it is. It's something substantially larger than one side has thinking, and something substantially less than one side is, is thinking.

So both sides have to work themselves up to, to, to, to answer yes. I mean, if either side who answered, anybody who answers yes has to really work themselves up to it. They've got to do with all the reasons that they were stratospheric, or all the reasons they were low, and then bring themselves to a whole other position.

So if they do that, and then the other side says no, well, then sometime they're hugely pissed, the effort they put into it. And, and I think sometimes they may, having only done this twice, once more successively than the other. You know, they, they, they are angry at me for making them go through the exercise of going to a much higher place than they were, the wanted, than they wanted to go to. It still wasn't high enough to get the job done. I mean, these people had a trial in only two months, and they went to that place at higher. That was, that was them, and this is now, you know.

So, so it's a, so my, I don't, I, I try not, I, I want to get the case settled. I'm, I'm desperate to get the case settled. I don't, yes, hear how the case gets settled. If it's okay with the two of them, who am I to say it's not okay with me? I don't ever say one more or the other.

But if they, if it works for them, it totally works for me. Yeah. And, um, I, um, you know, I'm, we're all creatures of something. I don't like, I don't like the sense that I have, I have, uh, really, failed nobody. Yeah. So that, that, that, that I don't like. Would you do us the closing favor now of for the next guest, positing a question for them to answer that personally and professionally fascinates you. In other words, if you could design a conference topic or, or something, what's something that perplexes you that you don't have quite figured out that you'd like to ask some future smarty pants. And do I know the same know that I was the next figure? No.

The only thing you know is that they have some dealing in conflict, whether it's couples therapy, commercial mediator, FBI negotiator, some sort of something, something in the space. Okay. What, uh, well, I would like to know, I mean, because, because people, you know, the students come and do a dispute, um, um, with their own sort of eggshell cells. And, and, um, um, because of those cells, they may be, they may be disposed to accept a proposal that is objectively very unfair, uh, to them. Um, and this is true whether they have lawyers or not. I mean, I think it's particularly more true or likely to be more true when they don't have lawyers.

But when they, when they, even when they have lawyers, sometimes I see this and, um, and I, and I wonder what the, both the neutral on the lawyer. I mean, I think the lawyer has the, the lawyer's first duty to the client is to, is to make sure that the client is satisfied, but that, that satisfaction is, uh, has some reasonable relation to, to, uh, uh, a continuum of satisfaction that you can imagine. It's not like way off the reservation, where no one in the right mind would ever agree to never see their children again until they're resolved. Great. Great. You know, she's like that.

Um, and so I do wonder how people handle how professionals, whether they be lawyers or, or, or, or mediators, handle, handle decisions, resolutions that are based upon somebody taking a, an unhealthy position, a position that is unhealthy to themselves and an object, an objective sort of way. Very good. And, and, and, and in your business, unhealthy to third parties like children. It shall be done. It shall be passed on to the future guest as it was spoken. Um, Arthur Pressman, thank you very much for your time, expertise. I think this was a fascinating conversation, not necessarily so much about the wrinkles and avenues of the logistics of franchisee franchise or the lesson.

Yeah, I take it to be more, this is a anatomy of conflict as the name of the podcast is, but this is more, this is the anatomy of the conflict. This is what is, what are we doing in conflict? And then I, uh, that's the conversation. What are we really doing? Really? Well, thank you very much.

Yeah. Uh, letting me talk with you about it. I really appreciate it. Of course, guys, if you're interested in this and future conversations, please like, follow, share, subscribe, share with a friend. And that is a podcast. Hey, every single line.