How (16 page)

TOO MANY RULES BREEDS OVERRELIANCE

We think, “If it mattered, they would have made a rule.”

This presents us with a question: In a fast-changing world, is there a way to govern human behavior that proactively embraces change?

Despite Winston Churchill’s quip that democracy is the worst system of government except all the others, it does work. But it works as a social contract because democratic countries are not founded on a set of rules, but rather on a set of shared values, on constitutions. Constitutions are powerful documents because they are filled with the values and principles of the people they govern, such as free expression, liberty, enfranchisement, fairness, justice, the pursuit of happiness, or the rule of law. These core, foundational values can be interpreted and reapplied to new situations as they arise. The more profound the document, the more durably it can adapt to changing times.
The key to long-term, sustained success does not lie in breaking all the rules; it lies in transcending the rules and harnessing the power of values
.

ON THE TIP OF YOUR TONGUE

To fully understand how limited we can be by our overreliance on rules, let’s examine for a minute how they affect the way we think. To do that, we must consider the process of language. When you invest yourself in a relationship to rules, you invest yourself in their language as well, and language exerts a powerful influence on the way we think. Most people believe, for instance, that words follow thought: Something occurs to you and then you find the words to express it. In fact, studies have shown that the exact opposite is true; we think in language. The greater our vocabulary and command of the syntax of language becomes, the more refined and nuanced becomes our cognition. If, for instance, you knew only two words to describe a surface,
hard
and
soft
, you would be likely to classify it only in one of two ways. The whole world would be hard or soft, and all the degrees of hardness—firm, rigid, stiff, supportive—and all the different kinds of softness—spongy, fleecy, downy, satiny—would tend not to occur to you. You conceive of those qualities mostly because you know the words for them, or, to be more precise, according to linguists,
you are more likely to make certain kinds of assessments because of the nature of the language you speak
. Although Indian philosopher Bhartrihari first argued this idea in the fifth century C.E., modern linguists call it the Sapir-Whorf hypothesis, derived from the work of linguist and anthropologist Edward Sapir and his colleague and student Benjamin Whorf.
¹¹
They posited a systematic relationship between the grammatical categories of the language a person speaks and how that person both understands the world and behaves within it. As Sapir put it, “We see and hear and otherwise experience very largely as we do because the language habits of our community predispose certain choices of interpretation.”
¹²

To see how language influences the way we solve problems, consider these two examples and the way a predisposition to certain language shaped their outcomes:

In the 1970s and 1980s, during the Cold War, East German athletes won a slew of Olympic medals, far out of proportion to the size of their population. After the fall of communism, what the world widely suspected quickly became well known: They built their success on a regimen of enforced use of performance-enhancing drugs, more commonly known as anabolic steroids.

These drugs later wreaked havoc on the health of the athletes forced to take them, and in 2005, a small group of these former East German Olympians banded together to seek restitution and compensation for their progressive medical problems and expenses.
¹³
Since the East German government no longer exists, they sued JVE Jenapharm, the company that manufactured the drugs, seeking $4.1 million to pay for medical costs.
¹⁴
Jenapharm is an old-line, family company dating back to the nineteenth century, that is now owned by pharmaceutical giant Bayer Schering Pharma AG. The firm is known today for its expertise in reproductive medicine, and manufactures a line of oral contraceptives and postmenopausal hormone replacement therapies.

Jenapharm’s response to the lawsuit was clear, immediate, and unambiguous. The company argued that, under the command economy of East German communism, the state forced it to manufacture the drugs and then distribute them to athletes without warnings or options. Facing the shadow of potentially bankrupting legal action from the nearly 10,000 other athletes who were similarly harmed, Jenapharm said, essentially, “It’s not our fault and we’ll see you in court.” Given international and German legal precedent, this position contains potentially strong legal merit, and fighting the suit was clearly an option, something, they seemed to say to themselves, they
could
do.

On the other side of the globe, the University of Michigan Hospitals and Health System (UMHS) in Ann Arbor consists of three hospitals, a medical school, and numerous other health facilities. In 2001, UMHS, like many similar institutions, suffered under a budget-busting load of medical malpractice litigation that had seen exponential growth nationwide over the preceeding decade. Given the increasingly transparent nature of medical care, better-educated patients, and opportunistic personal injury lawyers, it realized that it was going to incur liabilities in some percentage of cases despite doing everything it could to eliminate systemic errors. That year UMHS fought many malpractice claims and lawsuits in court, but also settled more than 260 others at a cost of $18 million.
¹⁵

As the administrators at UMHS considered ways reduce their potential liability, they realized they could do little about lawsuits stemming from catastrophic errors that result in loss of life or limb. They focused instead on suits involving less serious consequences, like a patient with epilepsy admitted for surgery whose doctor forgot to note his postoperative need for antispasmodic medication. When that patient had a seizure in the bathroom and bumped his head, requiring a few stitches, typically a lawsuit quickly followed. In cases like these, they asked themselves, what
should
we be doing for our patients?

Continuing to fight malpractice claims in court remained an option, but they chose a different course of action. They encouraged their doctors to say, “I’m sorry.” Using their established doctor/patient interaction education program, they developed scenarios to help doctors understand how to step up and promptly admit when a mistake was made. Now, when they discover an error like the prescription oversight for the epileptic patient, the doctor apologizes on the spot. Unlike Jenapharm, when UMHS announced this new approach, the strategy was widely ridiculed as legal suicide.

It is critically important to realize that in a hyperconnected world, where information about your actions travels instantly to any interested party, people watching you will judge not just
what
you do, but
how
you do it. They’re not going to sit back and wait to see if you win or lose; they’re going to watch the manner in which you pursue the case. If these two companies were people—your colleagues or potential business partners—the opinion you form about them would certainly affect the way you choose to interact with them. So let me ask: Given just what you now know about these two similar legal situations, what judgment have you formed about the character of these two companies? Do you think that Jenapharm took a reasonable, prudent, and legally defensible position that represents a legitimate strategy to save the company from bankruptcy and that UMHS must be out of their legal minds for admitting liability immediately when mistakes are made? Or do you think that Jenapharm made the situation all about impersonal legal rights, potentially alienating its customers by acting strictly within legal limits, while UMHS upheld its values and put the best interests of its patients first and the risk of higher legal costs second?

Here is where things stand in the marketplace. In late 2006, Jenapharm agreed to pay 184 of the thousands of affected athletes 9,250 euros ($12,200 each) and donate 170,000 euros ($224,000) to organizations providing support to victims of East German doping.
¹⁶
Admitting no wrongdoing, Jenapharm CEO Isabel Rothe said in a statement that “the agreement will avoid a drawn-out legal argument.” The long-term effect on Jenapharm’s reputation and relationship with the market is unknown. (Interestingly, a week before Jenapharm’s announcement, the German Olympic Sports Union and the federal government announced they would pay a similar amount to 167 victims. Striking an altogether different tone, union president Thomas Bach said, “We take the moral responsibility and we want to make sure that something like that cannot happen again.”) In the three years following UMHS’s decision to apologize, in contrast, medical malpractice claims and lawsuits against them dropped by nearly 50 percent and the per-case cost of defending against the remaining suits dropped 50 percent as well, saving UMHS millions of dollars. One company attempted to limit its exposure by shutting down all challenges, while the other opened itself up to challenge and, in so doing, actually reduced its exposure.

How did UMHS arrive at a counterintuitive solution like apologizing, a choice widely seen at the time as legal suicide? UMHS employs a values-based approach to pursuing corporate goals. Respect, compassion, trust, integrity, and leadership—the stated values—inform everything from the way they treat their patients to the way they treat their staff, and they articulate these values in their Seven Strategic Principles.
¹⁷
As an organization whose very core was grounded in the language of values, they tackled their mounting litigation problem by asking themselves not “What
can
we do?” but rather, “Based on our values, what
should
we do?” This train of thought led them to see that medical care is fundamentally an interaction between two people—the doctor and patient—just like any other business relationship, and to examine what was “sick” in the cases that resulted in litigation. They quickly learned that the overwhelming majority of plaintiffs were generally able to forgive the error itself—doctors are only human, after all—but that the doctors who had betrayed their trust by denying culpability filled them with rage. The real illness in these cases lay in the interpersonal synapse between doctor and patient. Armed with the knowledge that the destruction of trust was contributing to retributive consequences for unavoidable mistakes, UMHS looked for ways to heal this core dysfunction; healing, after all, is what they do best. The new approach realized unexpected additional benefits as well. With the working atmosphere now free of retribution, doctors no longer have to duck and dodge to avoid the appearance of guilt when errors occur. They enjoy greater opportunity to explore what went wrong and devise innovative solutions to prevent future occurrences. The culture of transparency bred by UMHS’s new openness has brought error rates down throughout the hospital and measurably improved the quality of patient care.
¹⁸

All organizations of people need a way to govern (companies, societies, and even families are alike in this way), and most governance systems benefit from the inclusion of at least some rules. In our workgroup-as-stadium metaphor, we might agree, for instance, that everyone needs a ticket to get in, people will sit in their own seats, and the game will start at 9 A.M. Without some rules, anarchy rules; fans rush the gates and sit where they please, and people come to work when they feel like it with little regard for the work schedules of others. The game is never played. Most groups articulate their system of governance as a code of conduct. Some of these codes read like the tax code, a set of rules designed to anticipate, prescribe, and proscribe certain behaviors. “Clean your cubicle at the end of every day.” “Always wear blue pants.” They, like all aggregations of rules, seem at first blush to be an efficient way to codify and communicate the floors of human conduct throughout the hierarchy of the company. Other codes of conduct read more like constitutions, filled with the values and principles that propel the company’s efforts. Clothing maker Levi Strauss’s code of conduct states, “We are honest and trustworthy. We do what we say we are going to do. Integrity includes a willingness to do the right thing for our employees, brands, the company, and society as a whole, even when personal, professional, and social risks or economic pressures confront us.”
¹⁹
These general statements of principle can, at first blush, seem vague and not immediately or easily applicable to the various day-to-day decisions a worker must face. The nature of the language a group chooses, however, exerts a remarkable and powerful influence on the conduct that follows from it.

The language of laws and rules is the language of
can
and
can’t
,
right
versus
wrong
. It’s a binary language with little room for nuance or shades of meaning. That is why it is inadequate to describe the full richness of human behavior. We are, as people, so much more than right or wrong. When you get stuck in the language of permissibility and prohibition (
can
versus
can’t
) you get stuck thinking in relation to rules rather than in the realm of true human potential. You can discuss a lawsuit in terms of utility—“
Can
we fight this effectively in court?”—but it is quite another thing to discuss it in terms of your values—“Given what we believe,
should
we fight this in court?” The first approach prompts thinking in relation to rules and codes; the second opens up thinking in relation to what is most important to an organization’s or individual’s core values and long-term success. In that difference—the difference between
can
and
should
—lies an extraordinarily important step toward thriving in a world of HOW:
True freedom lies not in the absence of constraint; true freedom lies in the transcendence of rules-based thinking
.