In the last few weeks, I have published blogs about the way we think. That is, while we use System 1 throughout most of the day, it is intuitive, lazy, and emotional and does not always lead us down the correct path. In contrast, our System 2 is analytical, deliberate, slow, effortful and rational. It takes effort to use it, uses up energy, and being the lazy souls that we are, we tend to default to System 1 thinking as much as possible.
Once again, another study has connected sleep deprivation with cognitive function. And, it provides some good news and some bad news. The bad news is that if a party witnesses an event while sleep deprived, and then is asked later to recall the event while still sleep deprived, she will recall it inaccurately; that is, she will have a false memory of it. However, the good news is that if she witnesses an event while sleep deprived but is allowed to get some sleep so that the event can be encoded in her brain, and then is asked to recall what she saw, her memory will be more accurate.
With the upmost respect and acknowledgment to Hamlet's famous soliloquy in Shakespeare's Hamlet, (Act 3, Scen3 1, lines 55-87), the question often arises of when should the parties attempt to negotiate a settlement, through mediation or otherwise.
Some weeks, I am able to settle each matter that I mediate while other weeks, I am unable to settle even one. Like everyone else, I think in terms of "streaks"; that is, I am on a good "streak" or a bad "streak".
n a recent post entitled "Listening for the Emotions", I discussed that the best way to calm someone down is to address the emotion and not the words. I learned this in a training session with Douglas E. Noll.
In his bestselling book, Thinking Fast and Slow, Daniel Kahneman (Farrar, Straus and Giroux, New York, 2011) notes that our brains contain two systems of thought: System 1 which "... operates automatically and quickly, with little or no effort and no sense of voluntary control" (Id. at 20) and System 2 which "...allocates attention to the effortful mental activities that demand it, including complex computations...." (Id. at 21.)
Have you ever attempted to calm down an emotional person? Our natural inclination is to deny the emotional content of what the speaker is saying by using logic and/or facts such as, "There is no reason to get upset", "Calm down", "You are over-reacting", "You have misunderstood", "Maybe it is because...."; "Don't be so sensitive", "Let's look at the facts...", "If you really think about it....", et cetera. (Micro-Interventions in Mediation, by Douglas E. Noll at pp. 15-23 (2014))
Once again, the Program on Negotiation at Harvard Law School has published an interesting blog by Katie Shonk (In Business Negotiations, Dress the Part, June 24, 2014) discussing what we all know but do not always think about: as part of any negotiation, one must dress the part. As she explains, if one is negotiating with an apparel company, the worst thing one can do is wear a competitor's clothing to the negotiation! Also, one may not want to show up in business attire but rather the apparel typical of the company with whom one is negotiating.
As a mediator specializing in "lemon law" cases, I work with many of the same plaintiffs' and defense counsel over and over again. They also work with each other over and over again, as well. These two points can be good... and can be bad as I quickly found out recently.