Many months ago, I wrote a blog on “Fairness”, noting that there are several different ways to define this term. My blog did not address how basic this concept really is.
 

      In her article “Monkeys Fuss Over Inequality”, in LiveScience.com (November 13, 2007), Jeanna Bryner discusses a study revealing that Capuchin monkeys, who are very much like us humans, will throw “. . . fits when their companions get better treats.” (Id.)
    

         In a study conducted by psychologist Sarah Brosnan at Georgia State University, Megan Van Wolkensten and Frans B.M. de Waal (both of Emory University in Atlanta, Georgia), these researchers trained 13 Capuchin monkeys to play a game: “each of a pair of monkeys would hand a small granite rock to a human in exchange for a reward, either a cucumber slice or a grape.” (Id.) The grape was the more desirable treat.
 

      The researchers found that when both monkeys in the pair received cucumber slices, there was no problem. But when one of them received a grape while the other received a cucumber slice, the latter monkey let her displeasure be known. She would either drop or throw the cucumber slice on the ground or simply refuse to accept it and turn away.
       

      As  Capuchin monkeys are New World monkeys and more distantly related to humans than chimpanzees, these results show that the innate sense of fairness developed at a “. . .  different evolutionary spot on the tree of life” (Id.) than was previously thought:
       

           “The latest findings suggest that a sense of fairness is deeply ingrained in human evolutionary history rather than the idea that it’s a more cultural response, and thus, learned from other humans.” (Id.).

        Further, the researchers found that the Capuchin monkeys were concerned only with fairness to themselves, and not to others: “While humans regard fairness as equal treatment of themselves and others, the Capuchin monkeys only care about number one.” (Id.) Or, in modern terms, they follow the “what’s in it for me” (WIIFM) motto.
 

            In many mediations, I have heard a party exclaim that she wants what is “fair”. Oftentimes, the party has defined “fairness” in the same terms as the Capuchin monkeys: “what is fair to me?” Up until now, I assumed that this sense of fairness was a cultural trait and of recent evolutionary vintage. Now, I know better: putting No. 1 first in terms of fairness dates back thousand of years.
   

         So, the next time a party exclaims that she wants what is “fair”, I will smile to myself and put her plea into the proper perspective by acknowledging it has nothing to do with her individually, but with her ancestors. Her plea is not an individualistic selfish demand, but is primordial in nature, dating back to the Capuchin monkeys. In short, her selfishness is not cultural but genetic.
  

       . . . Just something to think about.

“. . . Everybody wants a thrill
Payin’ anything to roll the dice
Just one more time
Some will win
Some will lose
Some were born to sing the blues
Oh, the movie never ends
It goes on and on and on and on. . .”
(“Don’t Stop Believin’”, Journey© 1978)  

      In mediation, the subject of what will happen if the dispute does not settle almost always comes up. In negotiation lingo, this issue is known as BATNA — Best Alternative To A Negotiated Agreement — a term coined by Roger Fisher and William Ury in Getting To Yes: Negotiating Without Giving In (1981). If the dispute is in litigation, one of the consequences or BATNA’s to not settling may be going to trial. Both the mediator and counsel will invariably discuss the positive and negative aspects of trial. But, chances are their own discussion will be more sophisticated and not nearly as lyrical nor as cryptic as Journey’s song: “Everybody wants a thrill. . . some will win, some will lose. . .oh the [trial] never ends. . . it goes on and on and on. . .”
 

      I do not write this tongue-in-cheek but in a serious vein. I read these lyrics the other day and suddenly realized they apply equally to a trial: Some will win, some will lose . . and trials can go on and on and on. . . . Just think about all of the appeals and remands.
     

       The purpose of mediation is to resolve the issues: to obtain certainty in the results, to take the “. . . roll of the dice” out of the situation, to stop the movie from going “on and on and on. . . .”
 

      Without knowing it, Journey pinpointed what BATNA is all about, in words that we can all understand. . . .and to a tune that we can all hum.
  

           . . . Just something to think about.    

Thanksgiving will be soon upon us. On that day, each of us will give thanks but to whom? and for what? Many of us learned in grade school that this holiday originated in 1621 when “. . .the Pilgrims invited the neighboring Indian tribes to join them in a feast for God’s blessings.”  

But did you ever think as Thanksgiving as the equivalent of a settlement agreement documenting the successful resolution of a mediation with the Almighty and the elements of nature? As another website explains history:

“In the winter of 1620, one hundred two English colonists, around 35 of them being Pilgrims, had landed for settlement in southeastern Massachusetts. . .”.

 “. . . On December 26, 1620, the Mayflower anchored safely in Plymouth harbor and stayed there until April of 1621. This harbor was chosen due to its cleanly cleared fields by the native inhabitants, recently planted corn and vegetables, and most importantly for its “brook of fresh water”. But [the Pilgrims] mistook the Wampanoag Native settlements as being “wilderness” through their European eyes, mainly because the original village of Patuxet had been devastated from the severe plagues of 1616-1618. The Pilgrims’s supplies had been depleted from the tiring, gruesome voyage. Unsanitary conditions and a monotonous diet of molding cheese, pickled beef, stale bread, and dirty water had plagued them after nine long weeks at sea. They couldn’t plant crops due to it being winter. Many in the group died or perished in the remaining countryside. Come April, only 55 out of the original pack of 102 settlers were still alive!”

“Yet the Mayflower served to provide shelter, refuge from the elements, and support for the Pilgrims while they built and occupied their dwellings amid passing winter snows. But exposure and disease had indeed displayed their wrath. Rampant plagues such as smallpox and influenza had cursed and consequently dwindled much of the Native populations as well on both the North and South American continents. It was only with the assistance of the Wampanoag indigenous tribe that the colonists ever survived at all. It came to be their sôle salvation. . .”.

“Now, through these somewhat amicable, newly found friendly relations with the neighboring Wampanoag Indians (whose name means “People of the First Eastern Light”) in the springtime of 1621, the Pilgrims met Tisquantum, later to be renamed Squanto, (? -  1622). . .”.

  “In 1611, Captain Thomas Hunt captured over 30 Wampanoag men to sell as slaves in Spain: twenty of them were from Squanto’s native village of Patuxet, and seven others hailed from the hamlet of Nauset. By 1619, Squanto sailed back to Cape Cod with a Thomas Dermer, bypassing his original plans to return to North America vía Newfoundland. Hence, he had spoken the English language well with the Pilgrims, for he had learned much of it in England. Furthermore, he had taught the settlers how to grow maize (corn), squash, and shown them how to hunt and fish in a quite alien and unfamiliar territory. Squanto was one of the first valiant members of the Wampanoag people to reach a neutrality and peace with the Pilgrim colonists. In all, Squanto had traversed the Atlantic Ocean six times perhaps, twice as a British captive, once as an indentured slave in Spain, and taken altogether had lived in England, Newfoundland, Maine, Spain, and in Massachusetts.

As a benevolent translator, mentor in the  harvest of gardens and fields, as international ambassador who had traveled and encountered much more of the 17th Century world than had any Pilgrims at the time, Squanto had become the necessary ingredient and quintessential survival seed of Plymouth, especially during the first two years of its inception….. William Bradford had called Squanto “an instrument of God sent for our good beyond all expectation.” Another Massasoit Indian named Hobbomok was sent to live among the Pilgrims for several years to serve as guide and ambassador in the summer of 1621, having set up trading outposts for them at the mouths of the Penobscot and Kennebec Rivers in present-day Maine. The Pilgrims, indeed, had good reason to feel grateful.”    

“. . . By autumn of that year when the Wampanoag people were honoring their observance of the harvest season called Keepunumuk, the colonists had reaped a ripened bumper crop of corn, had acquired a flourishing fur trade, a fledgling tobacco industry down south in Virginia, and had accumulated an ample supply of lumber for shipment. To honor and celebrate their having survived the ordeals of a harsh and rigorous winter, they held a three-day harvest feast and jamboree in the honorable company of their sachem or Chief Massasoit and in the presence of the Wampanoags themselves. This one historically prototypical event provided the inspiration for what has since become our mythical traditional holiday of Thanksgiving. And without Wampanoag corn or maize, there never would have been a harvest celebration in 1621. . .”.

Happy Thanksgiving: enjoy the day as each of us has much to be thankful about.

       The other day, I came upon an article in the June 2005 Harvard Negotiation Newsletter (Vol. 8, No. 6) entitled “Negotiating Under the Influence” by Jennifer S. Lerner. The thesis of the article is that our emotional state does, indeed, directly effect our decisions, often for the worse. I found this interesting because while this thesis makes sense to me, it contradicts another study that was the subject of an earlier blog entitled “Anger Leads To Better Decisions.” In that study, the researchers (Wesley Moons and Diane Mackie) found that being angry helped people make more rational and analytical decisions.
 

      So. . . back to Ms. Lerner’s article. In it, she describes how she and fellow researchers Roxana Gonzalez, Don Moore and Linda Babcock at Carnegie Mellon University conducted experiments in which the participants had a financial incentive to do well. In one study, some of the participants were induced to feel anger at the party that they would later be negotiating with while a second group of participants were induced to feel anger towards a non-participant in the later negotiations. Finally, a third group of the participants were given tasks designed to induce a neutral emotional state.
 

      As you may guess, the participants who were induced to be angry at their opponent “. . . had trouble separating their anger about the opponent’s past unfairness from the new negotiation.” (Id.) These angry negotiators were significantly less adept at perceiving their own interests than the “neutral” negotiators or third group of participants who were emotionally neutral. More interestingly, the anger created a “hangover for negotiators who were angry about an unrelated event.” That is, those participants (i.e. the second group) who were angry at an unrelated party or event “took their anger out” on their opponent even though she had nothing to do with it. These participants “. . . still made significant more errors in perceiving their own interests. . .”  than did the “neutral” negotiators. (Id.)
 

      Another study showed that the angry negotiators made errors that cost them money. That is, anger caused errors that directly translated into a loss of dollars. This cause and effect occurred without the awareness of the participants. In fact, “. . . despite earning less money, the [angry] negotiators were happier with their own performance than were [the neutral] negotiators.” They were simply not aware that their anger (much less how much their anger) had effected their judgment and choices.
 

      So. . . what does this all mean? It means that if you arrive at a mediation having just sat in bottleneck traffic for an hour or just having been rear-ended or worried about some other event, this anger or worry will affect your ability to negotiate. As Ms. Lerner puts it, you will  truly suffer from an “emotional hangover.”
 

      But, there are ways to prevent this “emotional hangover” from impairing your judgment and thus not getting the best results at mediation. First, be accountable for your decisions. Use the mediator or the neutral and impartial third party to discuss and justify your decision making process. Having to account for (and thus explain) the accuracy of your judgments and decision making process will help you see which decisions stem from anger.
     

       Second, recognize and defuse the “hangover emotions.” Identify your own emotional triggers. Become aware that you are, indeed, angry, of what got you angry and talk about it. Start the mediation with small talk about how bad the traffic was or that you were just rear-ended, et cetera in order to vent and diffuse your anger. Engaging  in such “small talk” for a few moments will allow you to calm down. If you sense the other side is suffering from an emotional hangover, ask open-ended questions to draw out her tale of woe, thereby minimizing her emotional hangover, as well.
       

      Last, but not least, take a break, if need be. If you suspect that you and/or others in the mediation are suffering from an emotional hangover, suggest a lunch break or just a short break for some “fresh air.”
 

      As Ms. Lerner concluded:
     

      “It’s important to recognize that emotions such as anger motivate us to take immediate action. Without attempting to suppress the emotion itself, resist the urge to act on impulse.  . . .Negotiators who recognize the influence of incidental emotion on themselves and others have already gone a long way toward improving their outcomes.” (Id.)

 Whether Ms. Lerner is correct in her thesis that anger leads to bad decisions or whether researchers Wesley Moons and Diane Mackie (discussed in my earlier blog) are correct in their thesis that anger leads to better decisions, I do not know. Perhaps, the answer is different with each of us. But it is noteworthy to find two studies reaching contrary conclusions on the same subject.
 

      . . . Just something to think about.          

       In one of my earlier blogs, I discussed an Ethics Opinion issued by the Ethics Committee of the Colorado State Bar determining that collaborative law is per se unethical because it creates a conflict of interest that cannot be waived.
 

      Recently, the Standing Committee on Ethics and Professional Responsibility of the American Bar Association (“ABA Committee”) issued its Formal Opinion 07-447 (August 9, 2007) determining that a lawyer may represent a client in the collaborative law process:
     

       “Before representing a client in the collaborative law process, a lawyer must advise the client of the benefits and risks of participation in the process. If the client has given his or her informed consent, the lawyer may represent the client in the collaborative law process. A lawyer who engages in collaborative resolution processes still is bound by the rules of professional conduct, including the duties of competence and diligence. (Id. at 1).

       In reaching this conclusion, the ABA Committee noted that collaborative law “is a type of alternative dispute resolution. . . [having] its roots in, and [sharing] many attributes of, mediation.” (Id.) Created in Minnesota in 1990, collaborative law practice has spread throughout the United States, Canada, Australia and Western Europe. While different protocols of this type of practice exist, they all share the key element of using a “disqualification stipulation” or “four-way agreement” in which “. . . the parties commit to negotiating a mutually acceptable settlement without court intervention” (Id. at 2) by using open communication and sharing information. If the matter is not resolved, the attorneys withdraw so that the clients must obtain new counsel to pursue the matter in court.
            

       The ABA Committee noted that with the exception of the Colorado State Bar, most state bars which have issued opinions have analyzed collaborative law practice as a “species of limited scope representation,” discussing the duties of lawyers in such situations.
 

      Taking its lead from these other state bar opinions, the ABA Committee agreed that collaborative law practice and the provisions of the four-way agreement represent a permissible limited scope representation. The ABA Committee specifically rejected the notion (of the Colorado State Bar) that collaborative law presents a non-waivable conflict of interest.
 

      Rather, the ABA Committee concluded that as long as the lawyer meets his obligations of competence, diligence and communication, the limited representation of a client in a collaborative law setting is permissible. Among other things, the informed consent of the client must be obtained. This requires
     

       “. . . that the lawyer communicate adequate information and explanation about the material risks of and reasonably available alternatives to the limited representation. The lawyer must provide adequate information about the rules or contractual terms governing the collaborative process, its advantages and disadvantages, and the alternatives. The lawyer must also assure that the client understands that, if the collaborative law procedure does not result in settlement of the dispute and litigation is the only recourse, the collaborative lawyer must withdraw and the parties must retain new lawyers to prepare the matter for trial.” (Id. at 3).

       The ABA Committee then noted that when a client gives her informed consent, the lawyer’s agreement to withdraw if the matter is not resolved, is actually consistent with the scope and purpose of the limited representation. Thus, as long as the attorney fulfills his ethical obligations of competence and diligence, he has fulfilled his obligations within the scope of the limited representation. In this light, no conflict of interest arises and the client is free to pursue all available alternatives should the collaborative law process not resolve the dispute.
     

       . . . Just something to think about.