Decisions, Decisions, Decisions: Why “bad decisions” may not be your fault

Emu (Dromaius novaehollandiae) looking backwards at Auckland Zoo
When I was teaching philosophy, one of the hardest things for my students to wrap their heads around was the concept of unintended consequences.

This came up whenever we discussed the theory of Utilitarianism. According to a Utilitarian, the best ethical decision is the one that results in the best outcomes; that is, the highest levels of happiness and pleasure for everyone involved.

The problem is that, even with the best intentions, things don’t always turn out as planned. An action meant to help can harm. An action done for selfish reasons can end up benefiting others. The success or failure of our decisions can depend on factors we haven’t considered or even imagined.

Hindsight Bias

My students (perhaps because of their youth) had trouble with the idea that the best-laid plans could go wrong. The flip-side of this difficulty is hindsight bias. This is the prejudice that, when something goes wrong, we should have been able to predict it in advance.

We see this kind of “Monday morning quarterbacking” all the time. After a terrorist attack, an unexpected election result, or other unforeseen events, all kinds of people step forward to say that they saw it coming all along.

What happens is that we treat the information we have as though it is all the information there is. Then we construct a story in which various participants made bad decisions. We forget that we don’t have full information, and that the success and failure of decisions are likely attributable to factors we haven’t considered.

The (somewhat chilling) reality is that we may never know why our actions have the consequences that they do. Accidents happen and people get lucky. Just because things have gone poorly doesn’t mean that we can trace events back to a particular decision. (Conversely, just because things go well doesn’t mean that we can always take credit.)

Making it Relevant

Hindsight bias affects our evaluation of our past actions, rather than decision making in the moment. When evaluating past decisions, it is good to try to learn from your mistakes and especially to spot patterns of thought that might be holding you back. But be compassionate with yourself. Just because things have gone wrong, doesn’t mean that your decision was flawed.

Source

Daniel Khaneman, Thinking Fast and Slow, Doubleday, 2011.

Note: Most of us make a huge number of decisions each day. A few are momentous; most seem trivial at the time. And yet trivial decisions, made over and over, can take on huge significance. This is the fourth in an occasional series on the psychology (and philosophy) of decision making. I’m interested in this topic because in my work as a mediator I help people make good decisions (or at least, understand the implications of their decisions).

About the Image: An emu (Dromaius novaehollandiae) looking backwards, at Auckland Zoo by Avenue (Wikimedia Commons).

Condo Law Digest – November 2016

Allainville dans les Yvelines le 18 août 2012 - 15.jpgMiddlesex Condominium Corporation No. 229 v 1510231 Ontario Inc. et al., 2016 ONSC 6325
Decision Date: October 11, 2016
http://canlii.ca/t/gv2jt

The defendant numbered corporation (hereafter 151) owns property adjacent to the MCC #229. They share ownership of a retaining “gabion wall.” (This is a wall made of cages or boxes filled with rocks, sand, concrete, etc. See the photo above.) The wall, which was constructed in 1989, provides support to easements that MCC #229 has over 151’s property. The wall has deteriorated since a “major collapse” in 2003 and neither side has repaired or maintained it. In this action, MCC #229 seeks a summary judgement that 151’s negligence in maintaining the wall has interfered with their easement rights and therefore caused them damages.

So the question is, does the servient tenement (in this case 151) have a duty to repair with respect to easement rights of the dominant tenement (in this case MCC #229)? The short answer is no: the obligation of a servient tenement is always negative (that is, not to do something). A positive obligation (for example, to repair) can  be imposed only by a positive covenant. Justice Mitchell dismissed the claim.

Comment: I have not summarized claims against two additional defendants and counter-claims. MCC #299 made two previous claims against 151 regarding the wall, in 2004 and 2009. I can only wonder whether legal proceedings have cost more than repairing the wall would have.

Kamal v. Peel Condominium Corp. No. 51, 2016 HRTO 1282
Decision Date: Sept 30, 2016
http://canlii.ca/t/gv0g7

Three Muslim unit owners brought an HRTO claim against their condominium corporation and property management company. They accuse the defendants of discriminating against them on the basis of creed by holding a special owners’ meeting on the religious holiday of Eid-ul-Azha in 2013. The applicants belong to a group of Muslims who celebrate Eid 10 days after the sighting of the crescent moon (Oct. 16), rather than on a fixed calendar date (Oct. 19). The date of the meeting was arranged a couple of weeks before the sighting of the crescent moon. By the time the date of Eid was announced, PCC #51 claimed that there was not enough notice to change the date of the meeting.

In order to be successful in their application the applicants would have to show that the respondents treated them in a “distinct and disadvantageous manner” because they are Muslim, or that the respondents’ actions had an adverse effect on them because they are Muslim. The Adjudicator dismissed the applications against both the property management company (who played no part in setting the meeting date) and PCC #51. There was no evidence that the scheduling of the meeting was meant to exclude Muslims; the opportunity to vote by proxy was an adequate accommodation.

Comment: As the Adjudicator said, “In a condominium corporation with 169 units, there will almost always be someone who is unable to attend a meeting for Code-related reasons, such as disability, family status (i.e. childcare and/or elder care), or creed.”

TSL-75956-16 (Re), 2016 CanLII 71241 (ON LTB)
Decision Date: October 17, 2016
http://canlii.ca/t/gv8hc

The applicant owns a unit in a residential condominium, which she rents. In May of this year the police raided the apartment, breaking down the door in the process. The repairs cost $7000 and the applicant seeks an order requiring the tenants to reimburse her this amount. According to the Residential Tenancies Act, 2006, a landlord is entitled to the cost of repairs if the damage was caused by the willful or negligent actions of a tenant, another occupier of the rental unit, or a person whom the tenant permitted in the residential complex.

The Chairman dismissed the application. First, the police were not individuals permitted in the complex by the tenants. Second, as the police officers who raided the unit were not present at the tribunal, there was no way to know if they broke down the door because the tenants refused them entry. (In which case the damage would have been caused by the tenants’ willful or negligent actions.)

Comment: The landlord did not supply a police report, and the questions of who or what the police were looking for and what actually happened on the night of the raid, are shrouded in mystery.

About the Image: A gabion wall, Yvelines, France by Lionel AllorgeOwn work, CC BY-SA 3.0, Link

Condo Law Digest – October 2016

1920 electric washer adHadani v Toronto Standard Condominium Corporation No. 2095, (ON SCSM)
Decision Date: June 30, 2016
http://canlii.ca/t/gsx74

Ruling on Costs
Decision Date: August 24, 2016
http://canlii.ca/t/gtm75

Mr. Hadani owns a penthouse unit in TSCC No. 2095. Sometime before October 2013 flooding occurred in the unit below his. The Corporation determined that the source of the flooding was a leak from the washing machine in Mr. Hadani’s unit. In October 2013 the Corporation place a lien in the amount of $16,600 on the unit to cover the cost of the damage. The lien was paid by Mr. Hadani’s mortgagee. In this Small Claims Court action Mr. Hadani seeks a return of the lien plus interest, on the grounds that the flooding had nothing to do with his washing machine.

Deputy Justice Marr reviewed the evidence and found that, on the balance of probabilities, the flooding was indeed caused by Mr. Hadani’s washing machine. The Corporation’s actions were not unreasonable and he dismissed Mr. Hadani’s action.

Justice Marr made a subsequent ruling on costs. The Corporation asked for costs of $30,823 on a full indemnity basis, and $2170 in disbursements. Normally an award of costs in Small Claims Court shall not exceed 15% of the amount claimed, unless the court considers it necessary “in the interests of justice” to penalize unreasonable behaviour. The Corporation argued that Section 85 and Article 7.1 of the Condominium Act entitles them to seek full costs, and that Mr. Hadani “unreasonably prolonged” the proceedings. Justice Marr disagreed; just because Mr. Hadani’s arguments were unsuccessful, does not mean that they were unreasonable.

Justice Marr awarded $2490 costs to TSCC No. 2095 (15% of $16,600) and reduced disbursements to $600.

Comment: To quote the judge, “A cost claim that is almost twice as much as the amount sought by the Plaintiff in damages is not proportionate and accordingly is not fair or reasonable.”

Condo Law Digest – September 2016

Frank W. Benson, The Open Window, 1917.jpg
Pylon Paving (1996) Inc. v Arrow Lofts Inc. et al, 2016 ONSC 4660
Decision Date: July 21, 2016
http://canlii.ca/t/gsmj2

In Fall 2011 Pylon Paving did some paving for the Arrow Lofts parking structure, a condominium development in Kitchener. Pylon wasn’t paid for the work, and so they started a lien action for the unpaid balance (around $20,000). Arrow responded with  counterclaim for $175,000 on the grounds of breach of contract and breach of express warranty. Arrow charges that Pylon’s work was defective and must be removed and replaced.

Experts for both sides agreed that the asphalt in the parking structure has deteriorated. Pylon’s expert (whose opinion was preferred by Justice Flynn) argued that the deterioration stems from an original flawed design, and that Pylon did their best with the unpaved project they were given. Pylon was supposed to install 50 mm of asphalt; however the design permitted them to install only 42 mm. While Pylon should have alerted Arrow in writing to this issue, the fact that they failed to install 50 mm of asphalt does not amount to a breach of contract.

Justice Flynn dismissed Arrow’s counter-claim but found that Pylon was not entitled to the full amount of their claim. He reduced the amount owed by Arrow to Pylon by $10,000 because of their failure to address the paving deficiencies in writing once they became aware of them.

Comment: Justice Flynn stressed the importance of prompt resolution and of putting things in writing: “Too often in these construction disputes an ounce of writing could prevent a pound of trouble.  That simple exchange in writing may have produced a shouting match ending with “I told you so”, but it most likely would have avoided a three day trial.”

TST-72521-16 (Re), 2016 CanLII 52980 (ON LTB)
Decision Date: July 25, 2016
http://canlii.ca/t/gt02j

This is a judgment from the Landlord-Tenant tribunal. The rental unit is in a condominium building that required work on its pipes from Feb 25 to March 5, 2016. During some of this time the water was turned off from 9 am to 5 pm. While their water was off, the Tenants were rehoused in the condominium’s guest suite, which did not have a working kitchen. The Tenants alleged “substantial interference of their reasonable enjoyment” of the rental unit and asked for an abatement of rent. The Chairman found that the Landlord took “all reasonable steps” to minimize impact on the Tenants. Nonetheless he agreed that the Tenants were entitled to an abatement of rent (25% for 10 days, amounting to about $144), and also to $380 to cover meal expenses during the work.

Nicholas v Toronto-Dominion Bank and Carleton Condominium Corporation No. 336, 2016 ONSC 3824
Decision Date: August 12, 2016
http://canlii.ca/t/gsx2g

This sad story begins in 2011 when CCC No. 336 decided to replace the exterior windows of all condominium units. Mr. Nicholas disagreed with the Board’s choice of window, refused entry to his unit to change the windows, and stopped paying his monthly common expense fees. CCC 336 obtained court-ordered access and changed the windows at added cost. A September 2011 court order determined that Mr. Nicholas owed over $17,000 in common expenses (including the Corporation’s legal costs and the added cost of window replacement.) When Mr. Nicholas refused to pay, the Corporation registered a lien of about $20,000 against his unit. In March 2012 the Corporation’s lawyers issued a Notice of Sale under the lien. In the spring of 2013 the TD Bank (holder of Mr. Nicholas’s mortgage) paid about $30,000 (cost of lien, legal fees, ongoing monthly common expenses and compounding interest) to CCC 336. The Bank issued a statement of claim against Mr. Nicholas for possession of his unit and about $74,000 for indebtedness, (roughly $44,000 of principal owed on the mortgage, the $30,000 paid to CCC 336, interest and some incidentals). TD Bank obtained default judgment in October 2013 and Mr. Nicholas was evicted in January 2014. The unit sold for $205,000 in June 2014 and TD paid into court the net proceeds of over $99,000 which were paid to Mr. Nicholas in January 2015.

In this action, Mr. Nicholas seeks damages for financial loss due to his unlawful eviction and the sale of his unit, damages for his costs of accommodation, moving, etc., and damages for the negative financial impact on his credit rating. Justice Kane dismissed most of these claims by summary judgment, and scheduled a 2-day trial for some remaining issues between TD and Mr. Nicholas.

Comment: Just about the worst thing an owner can do during a dispute with a Condominium Corporation, is to stop paying common expense fees. The legal fees and interest simply balloon. Better to pay the fees “under protest” and seek legal advice.

About the image: By Frank W. Benson, 1917 – http://www.the-athenaeum.org/art/display_image.php?id=162751, Public Domain, https://commons.wikimedia.org/w/index.php?curid=32012315

Decisions, Decisions, Decisions: Important Decision? Take it Slowly

Korea-seoul-Namsan-slow sign.jpgThe idea that our decisions are strongly influenced by unconscious factors is very popular. (Malcolm Gladwell, I’m looking at you.)

We’re sometimes advised to go with our “gut feelings.” The implication is that decisions made in this way will be better – or at least not worse – than decisions that we spend more time on.

However the evidence is more complicated.

What Kind of Decision are you Making?

For relatively minor matters, going with your gut is likely to be fine. If you’re choosing between different colour Tshirts or scarves, for example, the first one that caught your eye is often the one you choose on longer reflection.

For decisions involving skilled assessment and expert knowledge, however, longer deliberation, within a structured framework, will yield better decisions.

In one study, experienced doctors were asked to assess twelve real-life cases, presented in a booklet. For four of the cases, the doctors was asked to read the cases and give an immediate diagnosis. For another four, they read a case, performed a task designed to distract them, then provided a diagnosis. For another four, the doctors were asked to read the cases and then to follow a structured procedure in which they analyzed the case, offered several hypotheses, and then made a diagnosis.

How did the quick diagnoses and the distracted diagnoses compare with the slow, deliberate diagnoses? Conscious deliberation resulted in a 50% gain in diagnostic accuracy.

I suspect – and I’ve seen evidence – that something similar is true of hiring decisions. Having a list of objective criteria and going through a standard procedure for each candidate results in better outcomes than having the hiring manager “go with her gut.”

And interestingly, old advice about not changing your answer in a multiple choice test turns out to be invalid. Changed answers are more likely to be correct.

Making it Relevant

Think about what kind of decision you’re making. If it is one where expert knowledge is relevant or analysis of evidence is required, then take it slow. If the decision has more to do with your feelings or preferences, going with your gut is fine.

Source

Ben R. Newell and David R. Shanks, “Unconscious Influences on Decision Making: A Critical Review,” Behavioral and Brain Sciences 2012.

About the image:  GPL, https://commons.wikimedia.org/w/index.php?curid=267165

Note: This is the third in an occasional series on the psychology (and philosophy) of decision making. I’m interested in this topic because, as a mediator, one of the things I do is to help people make good decisions (or at least, to understand the implications of their decisions).

Most of us make a huge number of decisions each day. A few are momentous; most seem trivial at the time. And yet trivial decisions, made over and over, can take on huge significance.

Breaking up a Business Partnership Doesn’t Have to Be a Trial

Men fightingA few months ago I wrote about Sam and John. They built a successful app together but personal conflict lead to a break-up of their business relationship. A large portion of their profit went to pay legal fees.

The legal mess cost them in other ways, too. It took up so much time and energy that other projects each wanted to pursue had to be put on hold. There were personal costs as well. The constant stress caused both men’s personal relationships to suffer.

Even if Sam and John had decided that they didn’t want to work together anymore, things could have ended differently. Too many business partnerships end up in costly litigation. It doesn’t have to be that way. Doing things differently can save money, time, preserve relationships, and protect your reputation.

Most people now know that, if your marriage breaks down, you don’t have to fight it out in court. But there is less awareness about alternative dispute resolution (ADR) for business partnership break-ups.

The two main forms of ADR are mediation and arbitration. Both are private, and both are likely to save you time and money.

In mediation, the parties sit down together with a neutral third party whose role is to facilitate discussion.  Mediation is very flexible and allows for creative solutions.  In the best case, mediation is a collaborative process; the parties exchange information and work towards a solution together.  Because the parties are working together to reach common goals, mediation can preserve and even strengthen relationships.

Arbitration is like a private trial, with the arbitrator acting as a private judge chosen by the parties.  (If the parties cannot agree on an arbitrator, one side may be able to ask the court to appoint the arbitrator.)  An arbitrator’s judgment is binding, like a court’s judgment, and can be appealed only in very special circumstances.  The arbitrator also has the power to decide costs.  This means that he or she can determine that one of the parties (usually the losing side) will have to pay the other side’s legal costs as well as their own.

Arbitration is more risky than mediation, because a third party is making the decisions. In mediation, the parties have control over the outcome, and you don’t have to agree to anything you don’t want to. Arbitration also tends to be more expensive than mediation.  Arbitrators charge more for their time than do mediators, and legal costs tend to be higher because it takes lawyers longer to prepare for an arbitration than for a mediation.  The advantage of arbitration over mediation is that, at the end of the process, there is an enforceable judgment and the dispute is over.  If mediation fails the parties may be left without a resolution.

As in the case of marital separation, each business partner should have independent legal advice. This is to make sure that each person understands their legal rights and responsibilities. (A lawyer cannot give “independent” advice to two parties in the same dispute.) Finding the right lawyer is crucial, if you mean to stay out of court.  When you’re consulting a lawyer, make sure that he or she is open to options other than litigation. If not, then the lawyer may not be a good fit. (Not convinced you need your own lawyer – or any lawyer? Read my “I’m in mediation. Why do I need a lawyer?”)

Finally, “Begin with the end in mind.” When setting up a business partnership agreement, include a clause that, in the event that the partnership is to be dissolved, the partners will try ADR before heading for court.

About the Image: Drawing by George Fitch, Internet Archive Book Images [No restrictions], via Wikimedia Commons.

Condo Law Digest – Mid-summer 2016

parking signCheung v York Region Condominium Corporation No. 759, 2016 ONSC 4236
Decision Date: July 5, 2016
http://canlii.ca/t/gsdb7

YRCC 759 is part of the York Corporate Centre, a large area made up of several developments. Ms. Cheung owns three units in YRCC 759 and they are leased to Dragon Boat Fusion Cuisine, a popular restaurant. There is not enough parking on-site to accommodate all of the restaurant patrons during busy times. (In fact, there have been conflicts over parking and a “very toxic situation” regarding parking is said to exist between the restaurant’s employees and patrons, and other business owners.) Until 2009 the parking spots were allocated on a “first come, first serve” basis. In 2009 YRCC passed a by-law authorizing the lease of 2 common element parking spots to each unit. However this by-law was not registered on title and was therefore invalid. In 2015 YRCC passed a new by-law, authorizing the lease of 4 common element parking spots to each unit.

Ms. Cheung argues that the new by-law is also invalid, on the grounds that YRCC 759 may lease out parking spots only if their Declaration provides for it. Moreover, the by-law is unreasonable, oppressive, and discriminatory. Justice Goldstein rejected these arguments and dismissed the application. YRCC 759 passed the by-law in order to remedy an existing problem and be fair to all unit owners. It is not his job to second guess the Board, unless the by-law is unreasonable or contrary to the Condominium Act or to their Declaration. While Ms. Cheung feels that the parking situation is harming her tenant’s business, other unit owners also feel that the parking situation is harming their businesses.

Comment: Justice Goldstein found it not reasonable to expect that the restaurant patrons be allowed to use every single un-allocated parking spot, despite the fact that this was the situation before 2009.

Senchire and Lahashmi v Summerhill Property Management, MTCC No. 856 and three Board members, 2016 ONSC 3630
Decision Date: June 3, 2016
http://canlii.ca/t/grxqr

The applicants are unit owners and former Board members of MTCC No. 856. Every residential unit in the building is allocated one parking space. There are 50 additional parking “units” and the applicants each own one. A few years ago Summerhill Property Mgm’t took over managing MTCC No. 856 and they began charging $50/month in common expenses to owners of the parking units. The applicants (Board members at the time) requested access to documents, seeking evidence of past practices. Relations between the applicants (on the one hand) and the other Board members and management (on the other hand) became strained, to the point where communication took place through lawyers. (In the words of Justice Dunphy, “The result was significant expense to both sides with little productive dialogue towards dispute resolution.” It is perhaps symptomatic of this that the parties appeared before two different judges and twice before the Registrar before finding themselves in front of Justice Dunphy.)

Senchire and Lahashmi commenced this action midway through 2014, seeking access to financial documents and disputing the ability of MTCC 856 to levy the $50/month in common expenses. The respondents removed Senchire and Lahashmi from the Board in a special meeting. Justice Dunphy found: 1) Since coming before the court MTCC has been scrupulous in providing access to information; no need for any further order. 2) A previous order by Justice Stewart has already decided that MTCC has the right to assess common expenses to the parking units. 3) Based on his own reading of the Declaration, MTCC is both entitled and required to allocate common expenses to the parking units. 4) Conduct on both sides has aggravated the magnitude of costs. Each side asked for their costs, with MTCC requesting over $24,000 on a partial indemnity basis. Justice Dunphy ordered that each applicant pay $3500 in costs.

Comment: In coming to his decision on costs, Justice Dunphy took into consideration the applicants’ failure to have dealt promptly with the access to information issues, and that the applicants’ personal stake in the outcome was slight ($600/year).

Wong v Salivan Landscape Ltd., 2016 ONSC 4183
Decision Date: May 5, 2016
http://canlii.ca/t/gs8c

This decision concerns a motion to amend a statement of claim by adding three new defendants. In January 2014 Ms. Wong slipped and fell on the ice and broke her ankle while walking by the entrance to the condominium building where she lives. Her initial claim named the condominium corporation (YRSCC 1008) and Salivan, a landscaping contractor. In February 2016 Ms. Wong learned (though an email sent by defense counsel) that other parties may have had a role in keeping the property safe and so she applied to amend her statement of claim. One of these proposed defendants, G4S Security, opposed the motion, on the basis of the expired presumptive limitation period. Master Haberman granted the motion, saying that there is no indication that Ms. Wong was aware that G4S had any role in clearing ice and snow, and that there are limits to how far a plaintiff must go to ensure they have captured all possible defendants.

About the Image: By kallernaOwn work, CC BY-SA 3.0, https://commons.wikimedia.org/w/index.php?curid=10059919

When Mr. Spender Met Ms. Saver

All Night, Photoplay, Jan. 1919.jpgWhen Harry met Sally it seemed like their differences complemented one another.

He loved it that she was responsible and “good with money.” Even though he made a decent salary, Harry seemed to live from paycheque-to-paycheque and never knew where his money went. Sally helped him get things under control. And Sally appreciated Harry’s spontaneity and sense of fun. If she mentioned a play she wanted to see, he’d buy the best seats for the next available performance.

Now it is ten years later and they are parents of twins. Harry and Sally’s differences threaten to undermine their relationship. Each is frustrated by the other. Sally is anxious that Harry’s free-spending ways mean that they won’t have enough savings for retirement. And Harry feels judged whenever he buys something. Every time they try to talk about money it ends in accusations and bad feelings. And now the hostility is affecting other areas of their relationship.

Can a saver and a spender find happiness together? Yes – as long as they are honest about their differences, communicate openly, and share some core values.

Both Harry and Sally have legitimate points-of-view. Sally is correct that if the couple doesn’t put enough money aside, they won’t meet their goals of a comfortable retirement and helping the twins through university. And Harry also has a point when he says that their quality of life would be compromised if they focused too narrowly on these future goals. Yet if they have this conversation every time they need to make a financial discussion, frustration will set in.

Instead of frequent, frustrating conversations, Harry and Sally need a plan. If they can agree on some common financial goals and priorities, then their different attitudes to money shouldn’t undermine their relationship. They need to sit down, do the math and work out some numbers. They have to figure out how much they need to set aside for expenses and savings, and how much is left for “free” spending. After that, they can revisit the numbers on an annual basis, or whenever their financial situation changes.

If Harry and Sally have been arguing about money for the better part of ten years, this conversation might be very difficult. In order for them to reach a durable understanding, they might need help from a neutral third party. A good financial advisor should be able to help them arrive at appropriate numbers, and also help them explore their different attitudes to finances.

I spoke about this scenario with Rona Birenbaum, founder of Caring for Clients, a fee only financial planning firm in Toronto. She told me that In working with couples over the past 25 years, she rarely sees 100% financial compatibility.  She believes that one of the unheralded benefits of financial planning when done right, is in how it addresses money value differences:  “Only by facing the differences head on, constructively, lovingly and with determination, can they be overcome. It’s an essential aspect of our work.”

The practical issue – figuring out proper amounts for saving and spending – is actually the easy part. Harry and Sally also need to have a frank conversation about money and what it means to each of them. Sally needs to tell Harry that, when he makes an extravagant purchase, she worries about their future. And Harry should explain to Sally that he feels infantilized when she quizzes him on his spending habits. If each can understand the impact of their behaviour on the other, it will help both stick to the plan.

About the image: By Uncredited – https://archive.org/stream/phojanjun16chic#page/n71/mode/2up, Public Domain, https://commons.wikimedia.org/w/index.php?curid=45115032

How to Give Embarrassing Feedback

Adolf Friedrich Erdmann von Menzel 049.jpg

My husband came home from the gym the other day and told me that his trainer was briefly delayed. Apparently all employees had been called into a meeting to discuss a critical problem: How to tell a client that he smelled.

Giving sensitive feedback is never easy. When the message concerns intimately personal issues – bad breath, personal hygiene, unprofessional attire – it is even trickier.

As with other topics I’ve discussed, the internet offers rather indifferent advice. I found one expert who suggested an 11-step formula for imparting difficult feedback. To me, that sounds agonizing, not to mention how difficult it would be to remember each of the 11 steps. I don’t know who would find such a conversation more painful – the person imparting the information or the person on the receiving end.

You don’t need 11 steps. The key to giving difficult feedback well is to make doing so as painless as possible, both for yourself and for the other person. To do that, you have to give the message in a way that it will be readily understood. So don’t hint, don’t beat around the bush, and don’t draw out the conversation unnecessarily.

Try this instead:

Assume the person doesn’t know. “But how can he/she not know?” you will protest. “It is obvious to everyone else!” I can only reply that I’ve seen time after time that what seems readily apparent to outsiders can be opaque to ourselves. Unless the person’s embarrassing problem is the result of a medical condition, he is likely unaware of it.

Find a private place. Lower the risk of embarrassment by making sure the conversation won’t be interrupted.

Just say, “I have to tell you something” and then get right to the point. No small talk. Don’t ask the person how he thinks things are going, or if he feels he’s fitting in, etc.

Speak directly, but be kind. Again, don’t hint or make the person guess at what you mean. At the same time, don’t exaggerate or over-state things. Saying something like, “You have a noticeable body odor” is enough.

Be matter-of-fact and relaxed. If you are nervous or feel insecure, the person you’re speaking with will pick up on it and it may make him or her feel worse. Also, by being tense or dramatic, you give the issue excessive importance. Remember, the person you’re speaking with has personal hygiene issues, not a fatal disease.

Take responsibility. Don’t say that the issue is something that “came to your attention” or that you’ve “received complaints.” Don’t make the person feel worse by implying that he or she has been the subject of gossip.

If the person gets angry or defensive, stay calm yourself. As when responding to any angry person, let him or her speak as much as needed. Hear them out, then repeat back what they said. Resist the impulse to solve the problem or offer advice unless they ask you what to do. If you’re not sure what else to say, try: “I told you because if it was me, I would want to know.”

What to do next will depend very much on your relationship with the other person. Are you their boss, a colleague or a friend? If they ask for your help, offer practical advice suited to the issue in question. (More frequent changes of clothing? Stronger deodorant? A trip to the dentist?)

Finally, check your intentions. What is your motivation for confronting this person? Unless you sincerely want to help him or her, keep quiet.

About the image: By Adolph Menzel – The Yorck Project: 10.000 Meisterwerke der Malerei. DVD-ROM, 2002. ISBN 3936122202. Distributed by DIRECTMEDIA Publishing GmbH., Public Domain, https://commons.wikimedia.org/w/index.php?curid=155595

Condo Law Digest – June 2016

13-02-27-spielbank-wiesbaden-by-RalfR-093

Wu v Carleton Condominium Corporation, 2016 CanLII 30096 (ON SCSM)
Decision Date: May 16, 2016
http://canlii.ca/t/grsvw

This is another costs decision from the Ottawa Small Claims Court involving an unrepresented plaintiff owner. Ms Wu had brought an action to compel the Corporation to produce certain documents, including owners’ email addresses. The action was unsuccessful, and the Corporation now seeks to recover its legal costs of over $21,000 on a full indemnity basis. Their grounds are: 1) the indemnity provision of the Corporation’s by-laws; and 2) the alleged unreasonable behaviour of the plaintiff. In support, the Corporation cites Justice Gouin’s decision in Wexler v Carleton CC No. 28 (summarized above).

Justice Whitehall awarded costs in the amount of $490. His reasons were: 1) The indemnity clause is “at best is ambiguous” and regardless the court retains discretion to award costs. 2) The Corporation defended the action because it did not wish to live with the precedent that an agreement to provide the documents would have entailed. This was the “act” that caused it to incur legal costs. 3) Ms Wu had an honest belief that she was entitled to the documents she sought, and “vigorous litigation in asserting one’s claim is no ground to penalize a party by awarding more than ordinary costs.”

Comment: Litigation is risky for everyone involved.