Tag: Negotiation

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Jefferson v. Patent Trolls: Postcolonial history

In the last post, we took a look at the She-Hulk’s patent confrontation. In this post, we will move away from superheroes and look at Thomas Jefferson’s own encounter with patents, according to Jeffrey Matsuura, the author of the book Jefferson vs. the Patent Trolls.

Before we begin, it’s important to mention that Thomas Jefferson was in many ways full of contradictions, most notably as a slaveholding believer in natural rights. If Jefferson were in a comic book, we wouldn’t be sure whether he was a hero or a villain. We will see that even Jefferson’s interactions with patents were at times inconsistent.

Patent Perspective

Jefferson viewed patent rights as a means to disseminate knowledge. In other words, for Jefferson, patents provided legal rights designed to encourage collaborative creativity and place inventions into society as quickly as possible. So in exchange for accessibility to inventions, Jefferson believed in granting limited monopoly rights to inventors. With this in mind, let’s take a brief historical tour of Jefferson’s varied encounters with patents, followed by a suggestion.

Jefferson the Non-Patenting Inventor

Many of the nation’s founders were citizen scientists, and Jefferson joined their ranks as a seminal innovator. Jefferson was a polymath who not only began his career as a trial lawyer but also was an inventor of many devices, including a plow. We could apply the traditional saying to him:

A jack of all trades is a master of none, but oftentimes better than a master of one.

As a renaissance figure, when Jefferson contemplated his own innovative endeavors, he believed that inventions should be useful in daily life. For example, his plow was focused on improving farm production. He put a lot of effort into documenting his invention, complete with mathematical formulas, so that farmers could build his plow for themselves. And to make his plow accessible to all, he did not patent his invention, even though he could have thanks to the federal Constitution.

Jefferson the Influencer of Patents in the Constitution

The Constitution (drafted 1787-89) summarizes the relationship between innovation accessibility and patent monopoly. Within Article One, the obligation of the government is to “promote the progress of…useful arts, by securing for limited times to…inventors the exclusive right to their respective…discoveries.” Although Jefferson was in Paris as Minister to France (1785-89) when the Constitution was drafted, it’s thought that he had an influence on its drafting based on his correspondence.

The Constitution tells the government what it is supposed to do but does not say how patent rights are to be implemented. As we will see next, Jefferson played a large role in defining that implementation when he returned to the US.

Jefferson the Patent Examiner

After Jefferson returned from France, he was appointed the country’s first Secretary of State (1790-93) by George Washington. In this role, he was an examiner of patent applications. As a patent examiner, he rejected some patent applications due to what he perceived as a lack of social benefit. For example, he thoroughly examined a sailing vessel’s onboard desalination system to provide drinking water for sailors. But he did not grant a patent because he was skeptical that this invention was the most effective system possible.

As a patent examiner, Jefferson felt the friction between ensuring that an invention deserves patent protection and lacking sufficient time to review a patent application. While Jefferson leaned towards a thorough review process, a simple registration process was implemented after 1793 that generally granted allowance to all patent applications, leaving it up to the courts to resolve patent validity. Eventually, in 1836, the patent system that we generally recognize today was enacted that created a balance between the prior registration slackness and Jefferson’s earlier examination strictness.

Jefferson the Alleged Patent Infringer

When Jefferson retired as the third US president in 1809, he returned to his plantation at Monticello. Later, he installed a new flour mill, which caused Jefferson to experience firsthand the tension between providing inventors enough incentives to disseminate their knowledge and giving patent owners too much power that effectively prohibits society’s use of inventions. Specifically, in 1813, Jefferson and other farmers were accused of using milling technology that was patented by Oliver Evans. Jefferson strongly objected to the validity of Evans’s patent, which was ironic because Evans’s patent was the third US patent ever granted—by Jefferson himself back in 1790. So Jefferson originally granted Evans the patent rights that, years later, Jefferson said were improper when he was accused of patent infringement.

Just to be clear, despite the title of Jeffrey Matsuura’s book, Oliver Evans was not a patent troll under a modern definition of that term. For example, although Evans did not sell mills, Evans’s invention was a practical improvement to milling, as opposed to being directed to a separate technology that mills utilized. So under today’s standards, Evans’s patent infringement claim would likely have been considered defensible, as the arguments against Evans’s patent had more to do with what was patentable in the early nineteenth century, as opposed to how Evans was asserting his patent rights.

Jefferson the Patent Licensing Negotiator

When Jefferson was president (1801-09), he negotiated the doubling of the size of the country with the Louisiana Purchase. So it should be no surprise that Jefferson was a skilled negotiator, who used those skills to resolve his dispute with Evans. Despite their differences, Jefferson and Evans were willing to communicate directly with each other to try to reach a resolution. In 1814, Jefferson explained to Evans his position that Evans’s patent was not novel based on Jefferson’s interpretation of patent law. Evans had an impassioned response explaining to Jefferson his business difficulties of monetizing his invention. Jefferson and Evans listened to each other carefully and eventually resolved their differences outside of the courtroom when Jefferson acquired a license from Evans that ended the litigation.

Super Listening Suggestion

The title of the book Jefferson vs. the Patent Trolls has a comic-book sound to it, but of course it’s not about superheroes. It’s clear that Jefferson did not have superpowers, as explained in the book Thomas Jefferson: The Art of Power. The author, Jon Meacham, describes Jefferson as “a breathing human being who was subject to the passion and prejudice and pride and love and ambition and hope and fear that drive most other breathing human beings.”

Yet the author points out that Jefferson developed one particular skill to an almost super level. That skill was listening, a skill that we can all improve. Jefferson recognized early in his political career that he was not a compelling public speaker, and so he overcame his speaking deficiencies by developing his listening abilities. He became attentive to others by caring about their perspectives. Thus he guided conversations to topics that he knew were interesting to others, and then followed their thoughts wherever they led.

Everyone likes to be heard, and we can all learn from Thomas Jefferson’s dedication to improve listening. In this way, we can strive to become super listeners ourselves.

Image: “freemont troll” (CC BY-ND 2.0) by MFer Photography.

Source: Matsuura, Jeffrey H. Jefferson vs. the Patent Trolls: A Populist Vision of Intellectual Property Rights. University of Virginia Press, 2008.

Source: Meacham, Jon. Thomas Jefferson: The Art of Power. Random House, 2013.

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She-Hulk: Patent smash!

Like it or not, the Incredible Hulk smashes stuff. The Hulk at his core wants to defend the innocent from harm, but he also causes an enormous amount of suffering as he lays waste to anything in his berserk path. Patent litigation can feel like a collision with the Hulk. Both patent owners and alleged infringers will often feel smashed by patent litigation, regardless of who prevails. As patent litigation plods forward, it can abruptly careen out of control in startling ways. It’s kind of like the Hulk, who gains more gamma-radiation strength the angrier he gets. And like litigants trying to manage patent proceedings, Bruce Banner (the Hulk’s alter ego who is a brilliant scientist) cannot constrain the Hulk no matter how hard he tries.

Would you have guessed that Bruce Banner’s cousin, Jen Walters, became embroiled in patent litigation? By day, Jen is an attorney juggling client matters, but off the clock she’s the She-Hulk kicking bad guy you-know-what. While the Hulk behaves as a raging brute, Jen retains her intelligence and controls her temper as the She-Hulk, who gained her gamma powers from a blood transfusion with Bruce.

In the graphic novel, She-Hulk: Law and Disorder, Jen agreed to represent a patent owner, a widow of an independent inventor. The emerald heroine thought that she could quickly negotiate a settlement with the alleged infringer, the distinguished Tony Stark of Iron Man fame. However, Jen didn’t get to meet with Tony. Instead she was intercepted by Tony’s lawyer, who gave her the run-around. Jen abandoned negotiations, saying, “I’ll just see you in court.” But in court, things did not go well for Jen as she got inundated with motions from her opposing counsel, and each motion required her response. Later, the jade giantess felt discouraged and confided to her client, “I was thinking that the scope of this thing is getting a little out of control—I thought this would be a two-minute chat with Tony Stark.”

Disagreeing Without Being Disagreeable

Before the chaos began with out-of-control scope, the She-Hulk had the right idea to try to negotiate early. But if she had followed the Understanding Method of conflict resolution promoted by Gary Friedman, her goal would have been more than just a two-minute chat. If she and her client had really desired to understand the problem and work to a solution, three discussions could have occurred in patent mediation. Patent mediation can be especially effective when attorneys, managers, and technologists all participate to discuss law, business, and technology.

First, Discuss the Applicable Law

With the Understanding Model, the first discussion is about the law. For the She-Hulk, this discussion would focus on intellectual property. As Gary Friedman points out, the purpose of discussing the law is for the attorneys to educate the managers about the impact of the law on their case. This discussion is preferably done in three stages:

  1. Each attorney explains the strengths of each side’s legal position. The emphasis here is the impact the law will have on the parties, more than the substance of the law.
  2. Each attorney then explores the risks of each side’s legal position. This makes the law understandable for the managers who are already experienced with SWOT to strategically analyze business weaknesses.
  3. Next, each attorney describes the practical consequences of going to court if an agreement is not reached. Often, this is a description of the costs to attempt to reach a favorable ruling.

This systematic legal conversation could have provided the She-Hulk with an opportunity to share with her opposing counsel a cooperative, rather than an adversarial, view of the legal reality facing her client and Tony Stark. Such a cooperative view would have helped her client and Tony find a mutually favorable outcome.

Second, Discuss the Business Issues

After the managers understand the legal realities facing their companies, they discuss their business realities. Depending on the relationship between the parties, this discussion can take many forms, as mangers explain their business situation to each other. For the She-Hulk, her client could have explained to Tony Stark that she was in possession of additional repulsor technology from her deceased husband, and that she would like to license the trade secrets to Stark Industries, which could have significantly benefited Iron Man.

Third, Discuss the Technology

In patent mediation, it is not enough to understand the legal and business realities. Everyone should also understand the realities around the technology. To do that, technologists from both companies meet together to understand the technologies as presented in the patent disclosure and as implemented in the alleged infringement. In the She-Hulk’s case, there was a lot to understand around the repulsor technology that technologists could have clarified.

Negotiate Based on Understanding

After these three discussions have occurred, the parties can negotiate together to find a resolution. Of course, this patent mediation process is significantly longer than a two-minute chat that the She-Hulk had anticipated. While the process may appear time consuming, it could have avoided her client’s courtroom confrontation and empowered her client to determine beneficial settlement proposals.

Calm the Rage

Patent litigation is hard on everyone, even for someone as tough as the She-Hulk. Before getting too entangled in such a clash, it is prudent to try to reach an agreement through patent mediation as early as possible. But even with early mediation, both plaintiffs and defendants may feel Hulk-like rage at the patent enforcement process. Please remember that while patent litigation is often a grueling course of action to have a patent case decided, our patent system has historically been a world-class empowerment of citizens from all walks of life to be inventors. According to Marshall Phelps, a former VP at Microsoft:

The world’s first democratized patent system bequeathed to us by our Founders was the crucial engine that powered our industrial growth in the nineteenth century and made us the preeminent economic super power that we are today.

Speaking of our country’s Founders, in the next post we’ll look at a Founder’s own ravaging encounter with alleged patent infringement. His name? None other than Thomas Jefferson.

Image: “Universal She-Hulk” (CC BY 2.0) by JD Hancock.

Source: Friedman, Gary, and Jack Himmelstein. Challenging Conflict: Mediation Through Understanding. American Bar Association, 2008, pp. 137-69.

Source: Phelps, Marshall, and David Kline. Burning the Ships: Intellectual Property and the Transformation of Microsoft. Wiley, 2010, pp. 153-67.

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Everest: Traverse intellectual property licensing routes

“Yeah, mate, I know, but you’ve got to keep on moving.” These were the words from Mount Everest’s Basecamp to Rob Hall, an expedition guide who was out of reach of rescuers. Rob had radioed that his hands were freezing and that he had to de-ice his mask. Basecamp, searching for ways to get Rob to safety, responded, “That’s good, you’ve got to get that mask working; the sun’s going to come up, you know; you can get warmer, you can get moving.” Alone and having expended all his energy to assist a fatigued client who did not survive, Rob now needed assistance himself. After determining that Rob was taking shelter in a depression at an outcrop just below the south summit, Basecamp implored, “All right, you can do this. You’ve just got to pull yourself out of that dip and slide the rest of the way. You’ve just got to come on down, mate. Come on down.”

The film Everest depicts this heartbreaking communication as well as the next day’s tender farewell between Rob and his pregnant wife patched in from home. As imperiled as Rob was by an immobilizing blizzard, words of hope nevertheless permeated the radio waves. Not only did Basecamp and Rob’s wife send encouragement to try to keep Rob alive, but Rob himself conveyed hope to his wife when he rasped, “I love you–sleep well, my sweetheart–please don’t worry too much,” as he signed off before his second and permanent night a hundred meters below the mountain’s summit.

Tie in to the rope of hopeful thinking

Hope is more than just wishful thinking. To use mountain climbing as a metaphor, hopeful thinking involves choosing your desired destination, believing you are capable of selecting a route to reach that destination, and having the self-determination to persevere in your traversal of that route. These three elements are described by C.R. Snyder with hope theory:

  • Goals (destinations) – Knowing where you want to go
  • Pathways (routes) – Staying flexible and figuring out alternative ways to get to your goal
  • Agency (determination) – Believing in yourself to achieve your goal and tolerating disappointments along the way

You can think of hope theory as a climbing rope that you can tie in for safety by setting a goal to pursue, visualizing different plans to guide you there, and resolving to make strategic changes to stay on course as you overcome obstacles and challenges.

Route selection for intellectual property licenses

Although scaling the world’s highest peak is an extreme example, it can inspire us to apply hope theory to negotiating IP licenses for technology transactions. In its most simplistic form, IP licensing can be thought of as paying for a permission. For example, a patent license can grant permission to use a patented invention in exchange for a royalty payment. In negotiations, both parties to an IP license are determining the valuation of the IP, as can be seen from the equation: permission = payment.

Unlike Mount Everest, which has few routes to the summit, you have the flexibility to define permissions and payments your way to meet your business aspirations. For example, you can define how the IP will be implemented (field of use), how long a license will last (duration), and what will happen to new ideas (improvements). In other words, there are many routes to an IP deal that gets you to your licensing destination.

Licensing flexibility is good news because IP is meant to foster innovation, and you can be innovative with each IP license. To use hope theory’s terminology, there are many pathways in the terms and clauses of an IP license, and your passion for innovation gives you agency to propel you toward your goal of an IP deal. So, stay hopeful in negotiating a technology transaction as you confidently assess workable routes to making an innovative deal that grows your business.

Pack hope theory to reach ambitious heights

Mount Everest is unattainable for most of us, but if you enjoy hiking in nature, then it is useful to follow the Survival Rule of Threes. Basically, this rule can help set priorities when lost in the wilderness. The numeral three is a memory aid for the rule that you won’t survive three minutes without air, three hours without shelter from extreme cold or heat, three days without water, or three weeks without food. We can add one more component to this rule: you won’t survive three seconds without hope. Whether you are navigating wilderness hikes or negotiating technology transactions, start your journey to success by packing hope theory’s goals, pathways, and agency with your gear.

Image: “Everest” (CC BY 2.0) by Mário Simoes.

Source: Snyder, Charles R. Handbook of Hope: Theory, Measures and Applications. Academic Press, 2000.

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Bridge of Spies: Pre-mediation conference avoids being left out in the cold

In Stephen Spielberg’s movie Bridge of Spies, Tom Hanks portrayed Jim Donovan, an attorney who engaged in an historical negotiation. During the Cold War, Jim was enlisted by the CIA to be the negotiator in an exchange of accused spies. This exchange took place on the Glienicke Bridge spanning between East Germany and West Berlin. However, before the prisoner exchange occurred, Jim had to enter into negotiations with the USSR and East Germany. These negotiations had a frosty start.

As portrayed in the movie, the negotiations were preceded by Jim’s sleeping in a damp and cold cottage on the outskirts of West Berlin, instead of in a welcoming and warm hotel. On February 3, 1962, the day Jim was to make contact with his Soviet counterpart, he walked alone through the icy streets of East Berlin, only to be robbed of his overcoat before finding his way in the snow to the Soviet embassy. There, while trying to regain his composure and warmth, he was accosted by a cacophony of confusion from three KGB imposters who claimed to be the relatives of Rudolph Abel, the accused Soviet spy. Jim quickly realized that the clamorous family was fake. While Jim needed to overcome his body’s chill, he did not lose his cool as a negotiator.

Pre-mediation conference call is a warm up for negotiation

This movie scene illustrates the importance of pre-mediation conference calls. The purpose of having a phone call with a mediator is to remove as much uncertainty about the negotiation process as possible before the mediation begins. In the movie, Jim would have benefited from a call with a mediator to at least discuss with whom he was negotiating, confirm the exact time and place of the meeting, and receive specific directions to the conference room.

A goal of a pre-mediation conference call is to start a mediation with everyone being prepared to work hard and put their best thoughts forward. To reach this goal, here is a brief checklist of things that you can expect to be covered in a pre-mediation conference call:

  • Disclosure of any issues uncovered during a mediator conflicts check.
  • Explanation of the case status, such as last offers made.
  • Format of mediation, including expectations and goals.
  • Exchange of documents, including submission of summaries to the mediator.
  • Listing of who will participate in the mediation.
  • Description of any telephonic attendance requests.
  • Time and place of the mediation session.
  • Arrangement for snacks or meals and a discussion of any special accommodations due to health or schedules.
  • Decision of what each party is to bring as support materials.
  • Confirmation of mediator compensation.

The pre-mediation conference call addresses issues in advance so that, once the mediation session starts, everyone can focus on reaching a settlement. In other words, think of the pre-mediation conference call as a time to become educated about the upcoming mediation.

Advice from JFK about difficult negotiations

While we are thinking about the Cold War, it’s good to remember a quote from John F. Kennedy, who was president during Jim’s negotiations. JFK admonished the nation in his inaugural address:

Let us never negotiate out of fear. But let us never fear to negotiate.

Just as the Glienicke Bridge spanned the Havel River between West Berlin and East Germany, mediation is a process that can help parties span the dispute that is between them. Because the process is voluntary, even if a court orders parties to mediation, they don’t have to settle. To take JFK’s advice, knowing that you have control over your negotiated decisions, you don’t need to enter into mediation in fear. Nevertheless, because mediation is a confidential process that enables you and the other party to make informed decisions, you also don’t need to fear offering proposals that meet your needs. It’s as good a time as any to imitate Jim Donovan’s savvy determination to reach an agreement that you can live with and that puts the dispute behind you.

Image: “Bridge of Spies” (CC BY 2.0) by David Stanley.

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Pirates of Penzance: A most ingenious conflict paradox

In Gilbert and Sullivan’s comic opera The Pirates of Penzance, Frederic, a pirate apprentice, was faced with a “most ingenious paradox.” A paradox is a situation with two competing sides that appear as a contradiction. The Pirate King explained the paradox to Frederic. Frederic was bound by contract to serve the Pirate King as an apprentice until he reached his “twenty-first birthday.” But Frederic was born on a leap day, the 29th of February that only appears on the calendar every four years. So although Frederic could count 21 years of his life, he could count only 5 birthdays. His paradox was that his age was 21 and 5 at the same time, depending on the method of calculation. Here’s how Frederic explained his situation:

How quaint the ways of Paradox!
At common sense she gaily mocks!
Though counting in the usual way,
Years twenty-one I’ve been alive,
Yet reckoning by my natal day,
I am a little boy of five!

This paradox placed Frederic in a conflict with the Pirate King over the interpretation of the contract that defined his freedom. When we are in conflict, we may also experience our own paradoxes. In fact, Bernard Mayer describes seven conflict paradoxes in his book, The Conflict Paradox. Let’s take a look at these through Frederic’s eyes.

1) Competition & Cooperation Paradox

In negotiation, offers can be considered either competitive or cooperative. For example, when Frederic was faced with the news that his indenture with the pirates was to last another 63 years, he took a cooperative approach by playing nice and asking, “You don’t mean to say you are going to hold me to that?” He sought to cooperate with the Pirate King to find a solution. In contrast, when Frederic’s love interest, Mabel, got the news, she took a more competitive stance by acting tough and asserting that the pirates “have no legal claim.” She appeared ready to challenge the pirates. Choosing between competition and cooperation can be a tricky balancing act. As Bernard Mayer teaches, cooperation tends to yield better results, yet without competition there may be no motivation to cooperate. In this case, Frederic would have benefited from balancing his cooperative approach with Mabel’s competitive approach, rather than simply telling Mabel that “when Duty calls, I must obey.”

2) Optimism & Realism Paradox

An optimist may be confident that everything will work out. A realist might say, “Don’t believe everything you think.” Bernard Mayer points out that optimism without realism is not meaningful, while realism without optimism is a dead end. When motivated by optimism and guided by realism, one can wrestle with uncertainty and doubt. In Frederic’s case, he displayed optimism with laughter as the Pirate King described the paradox. But the optimistic outlook soon vanished when Frederic was faced with the reality of his contract with the Pirate King, leaving Frederic in a state of confusion. Bernard Mayer recommends approaching such confusion under the assumption that a way can be found forward that will make a difference, but with the full knowledge that there is no guarantee that there will be a successful conclusion to the conflict.

3) Avoidance & Engagement Paradox

We pick our battles by choosing to raise a conflict or ignore it. Before learning the news about his contract, Frederic enlisted the police to hunt down the pirates. Mabel tried to encourage the police to engage against the pirates by exhorting, “Go, ye heroes, go to glory, though you die in combat gory.” In comic display, the police avoided the pirates by staying in place while saying, “Yes, yes, we go.” Such avoidance, while frustrating to Mabel, may have been the prudent course of action in this case. For example, Bernard Mayer recommends waiting a bit before confrontation and, in the meantime, asking for more information in order to prepare for constructive engagement when the time is right.

4) Principle & Compromise Paradox

Compromising on principles can be considered cowardly, while being unwilling to compromise for practical reasons can be considered arrogant. Bernard Mayer recommends that in order to advance our principles that are based on our most important values and beliefs, we have to be willing to compromise on those principles. He put it another way with the phrase: Never let your values get in the way of doing what is right. Frederic would have benefited from this advice. Instead, he clung to the principle that “duty is before all—at any price I will do my duty.” In contrast, Bernard Mayer might have told Frederic that his approach to conflict could have improved by distinguishing interests from principles.

5) Emotion & Logic Paradox

Traditionally, emotion and logic are kept separate under the belief that logic is an aspect of the left-brain and emotion is an aspect of the right-brain. However, Bernard Mayer believes that emotion and logic are best integrated as part of the same conflict resolution process of expression and analysis. For Frederic, he logically told Mabel that he will return to her in 63 years, while Mabel responded emotionally (and accurately), “It seems so long!” Frederic would have benefited by integrating some of Mabel’s emotional expression into his own logical analysis.

6) Neutrality & Advocacy Paradox

While most disputing parties are willing to have a neutral third-party assist with conflict resolution, parties ultimately hope that a neutral third-party will be an advocate for their position. In Frederic’s case, Mabel went to the Sergeant of Police and imploringly advocated that Frederic was acting nobly by returning to piracy, because of his “heroic sacrifice to his sense of duty.” Comically, the Sergeant wanted to concur, but he did admit, “This is perplexing.” Bernard Mayer acknowledges the perplexing nature of the tension between neutrality and advocacy, especially in relation to the contrasting styles of transformative and evaluative mediation.

7) Community & Autonomy Paradox

Bernard Mayer defines community as interdependence with others in our lives and autonomy as independence with individuality. Both community and autonomy give one a sense of identity of who one is. Frederic wanted his autonomy by breaking free from the pirates. He explained, “Individually, I love you all with affection unspeakable; but collectively, I look upon you with a disgust that amounts to absolute detestation.” Bernard Mayer explains that both community and autonomy are necessary in life. Specifically, independence is established by having a healthy attachment to others, and one can become truly autonomous by having a healthy network of social relationships. Of course, Frederic recognized that his relationship with the pirates was unhealthy, and so he attempted to free himself from them.

Taste for paradox

Before Frederic was faced with his paradox, Mabel’s father, Major-General Stanley, introduced himself by asserting that “I am the very model of a modern Major-General.” He further exclaimed that “I’ve a pretty taste for paradox.” Bernard Mayer shows his taste for paradox by saying that both sides of a conflict paradox “are not really polarities” because “each element of the paradox is dependent on the other.” Bernard Mayer acknowledges that finding the unity of each polarity is difficult to do, but teaches that “embracing paradox is a core method of dealing with conflict.” Have you ever dealt with conflict by embracing a paradox?

Image: “Jolly Roger Pirate Grunge Flag” (CC BY 2.0) by Nicolas Raymond.

Source: Mayer, Bernard S. The Conflict Paradox: Seven Dilemmas at the Core of Disputes. Jossey-Bass, 2015.

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Finding Vivian Maier: Exposing conflict like a street photographer

Street photographers have an eye for seeing reality from new perspectives. Just as film is exposed to light, street photographers can teach us how to expose our understanding to the reality of our conflicts. The documentary Finding Vivian Maier from John Maloof gives an inside look at a 20th century street photographer, Vivian, who was a full-time nanny. Ready with her Rolleiflex camera, Vivian would stroll throughout Chicago with the children under her care in tow. A Rolleiflex is a film camera for the street because it has a viewfinder on top, which lets you hang the camera from your neck and look down to take a picture. In other words, you don’t have to hold this type of camera up to your face. Because the camera is at waist level, a street photographer can trigger the shutter without being noticed. However, street photographers aren’t disengaged. Rather, they briefly enter into a street scene, take a picture in an unobtrusive way, and then walk away. This is what Vivian would do.

Joel Meyerowitz, a street photographer featured in the documentary, had this to say about street photography:

Street photographers tend to be gregarious in the sense that they can go out on the street and they’re comfortable being among people, but they’re also a funny mixture of solitaries at the same time as being gregarious. You observe and you embrace and you take in, but you stay back and you try to stay invisible.

In particular, Joel described Vivian’s photographic style in this way:

As [Vivian] was photographing, she was seeing just how close you can come into somebody’s space and make a picture of them. That tells me a lot about her. It tells me that she could go into a space with a total stranger and get them to accommodate her by being themselves and generate this kind of moment where two presences were actually kind of vibrating together. And then she’s gone.

He also stated about her pictures that:

Vivian’s work had those qualities of human understanding and warmth and playfulness. . . . I think her pictures show a tenderness, instant alertness to human tragedies, and those moments of generosity of sweetness. I see her as an incredibly watchful, observant, caring person. And probably why she was a nanny was that she had those capacities.

When it comes to conflict, it’s possible for us to learn to be watchful, observant, and caring. We can observe like a street photographer, but instead of shooting a picture, we can ask a question. A question can help you take a snapshot of your situation the way Vivian took snapshots of the people she saw on the street. You can ask a question to discover whether your perceptions are accurate, kind of like focusing a camera. Asking a question allows the other to clarify what was meant and provide an explanation, giving you a focused view into your situation.

To ask good questions, or to take good street photos, it helps to be in the present moment. In his book Getting to Yes with Yourself, William Ury describes embracing the present. He writes that we “can visit the past from time to time to learn from it and we can visit the future to plan and take necessary precautions, but we make our home in the only place where we can make positive change happen: in the present moment.” He goes on to say that it “is by being present and spotting the present opportunities in our negotiations that we can most easily get to yes with others.” Like having a flash on a camera, by being in the present moment, you will be able to see things that you might otherwise have missed, and ask questions that lead you to resolution.

Vivian was able to be in the present moment for her street photography. As Joel Meyerowitz said, she took pictures with “an authentic eye and a real savvy about human nature.” You can do the same with your questions.

Image: “Rolleiflex” (CC BY 2.0) by Oreste Pantegani.