Why do we keep making the same mistake over and over again? Every time it happens, we tell ourselves that we should learn from our mistake and do it “correctly” the next time.
 

      While this logic seems rational, it is not borne out by research. A Live Science article posted on April 23, 2008 by Jeanna Bryner entitled “Why You Make The Same Mistake Twice,” explains that our failure to learn from our mistakes results from a phenomenon called “tip of the tongue” or TOT.
    

        “A tip-of-the tongue state occurs when your brain has accessed the correct word, but for some reason can’t retrieve the sound information for it. . . .”

        “The reason. . . is that the time spent not remembering causes our brain to reinforce that “mistake pathway.” (Id.)  (Emphasis original).

        Simply stated, when we try to remember a word, what we, in reality, are doing (once again) is going down the wrong pathway in our brain, or “error learning.”
    

         The article suggests that the way to correct “error learning” is to repeat the word – out loud or in our heads – once we find the right word and the next time, simply look it up or ask a colleague rather than allow our brain to go down the wrong path, yet another time.
     

       The article concludes that this phenomenon has been found in music and in sports. That is why we are told to practice music slowly – so as not to reinforce the mistakes.
       

       Could this phenomenon apply to negotiation and dispute resolution? There is no reason why it should not. How many times have you found yourself in the same situation or fact pattern but with different people involved? It is what makes you think that it is you. . . not them.
     

        In negotiation, it is always wise to take it slowly and not “rush” to the bottom line. Experts will say it is not “wise” to rush the process: that the parties must conduct the “negotiation dance” to obtain the desired result; if they rush it, they will not reach the desired end.
     

       This study provides a more simplistic reason for not rushing the negotiation dance: so that you won’t keep making the same mistake over and over and over again.
      

      . . . Just something to think about.
 

      The art of negotiation can present ethical dilemmas. As explained in the April 2008 (Vol. 11, No. 4) issue of Negotiation published by the Program on Negotiation at Harvard Law School, at times, negotiators  will make decisions that clash with their own ethics. Such clashes can arise in a myriad of situations.
 

      For example, a negotiator may attempt to create value at the expense of others. The scenario given describes two pharmaceutical companies settling a patent-infringement suit. As part of the out of court settlement, the defendant company agreed to delay marketing its generic drug while plaintiff agreed to pay defendant a large sum of money for unrelated products. The U.S. Federal Trade Commission filed a complaint against the two companies urging that plaintiff’s payment to defendant was for the purpose of keeping defendant’s generic product off the market. Although the Administrative Law Judge disagreed with this assessment, the Commission, itself, found that the two companies settled (i.e. created value) at the expense of potential consumers of the generic drug.
 

      A second example involves stereotyping some, thereby favoring others. While everyone wants to believe that he/she treats all others equally and favorably, the results of an online test – the Implicit Association Test at http://implicit.harvard.edu/implicit - will reveal that each of us have certain attitudes or biases toward race, gender and other traits. Thus, as much as a negotiator may think she is being “neutral,” the potential for bias and/or favoritism is there. It is something to be mindful about during each negotiation.
 

      A third example is when negotiators ignore conflicts of interest. “Psychological research shows that when decision makers have a motivation to interpret data in a certain way, they are incapable of being truly objective.” (Id. at 3). Conflicts of interest will most often exist when a person is negotiating as an agent for another. In such situations, the interests of the client and those of the agent (i.e., an attorney or real estate broker) will not be in perfect alignment. An example of this is the issue of attorneys’ fees in any litigation. During the mediation, the interest of the attorney on this issue often conflicts with reaching a

      The article then discusses ethics in terms of the behavior of others. It suggests that we should not overlook or forgive unethical behavior by others, because by doing so, we, implicitly, approve such behavior. For example, we should not overlook behavior that would harm us if exposed. The example given is the use of performance – enhancing drugs in Major League Baseball (“MLB”). For many years, the wide use of such drugs was an “open secret,” and never questioned by management or by the union. Why was it overlooked? According to research, “MLB leaders succumbed to motivational blindness, or the common tendency to overlook others’ ethical lapses when confronting the behavior would harm us. . . .” (Id. at 3). Think of the great single season homerun race between Mark McGwire and Sammy Sosa or of Barry Bonds’ chase for the all time homerun record. Each of these brought much attention and revenue to MLB. To confront the issue of steroid use could have jeopardized both. 
 

      Further, we should not excuse those who delegate unethical behavior. Examples are the Chinese factory owners who, to make greater profits, subcontracted out certain parts of their production for  pet food or toys which, ultimately, led to deadly pet food and lead-painted toys. Not only should the subcontractors be held responsible, but the factory owners should also be held culpable.
 

      The final example of an ethical lapse is judging by outcomes rather than by processes. That is, making the result more important than the process and employing the attitude that if the result did not harm anyone, then the fact that an illegal or unethical practice was used is of no moment. Referring to the above example of lead paint in toys, suppose the toys are sold and (1) harmed many small children, or alternatively, (2) harmed no children at all. Should the difference in result dictate our view of what the factory did to increase its profits? It should not.
 

       So. . .while everyone attends mediation with the hope of resolving the dispute, perhaps each of us should keep in mind that settlement should not be reached at the expense of ethics.
   

          . . .Just something to think about.    

      Every so often, I am told by a party and/or an attorney participating in a mediation that she/he must leave by a certain time; that is, she/he has only but so much time to negotiate. Sometimes, the party or attorney will tell me this at the start of the mediation; other times, she/he will tell me this in the later stages of the mediation.
 

      In response, I silently wonder if she/he is telling me the truth or using a negotiation tool that, hopefully, leads to resolution. As explained in this month’s edition of Negotiation (Vol. 11, No. 4, April 2008) published by the Program on Negotiation at Harvard Law School, many negotiators will set a deadline, as a strategic tool, to reach an agreement. Research on this topic revealed “. . .that negotiators who revealed their own deadlines to their counterparts achieve better outcomes than those who keep their deadline secret.” (Id. at 4). By disclosing the deadline, a party motivates the other party “to make quick concessions with the goal of reaching a deal.” (Id.) It can help each party to “avoid costly stalling tactics and conduct” negotiations more efficiently. (Id.)
 

      The author also notes that time deadlines should not be confused with mounting costs. For example, one party’s mounting attorney’s fees will not have the same effect on the opposing party as the fact that the mediation must terminate (for example) by 6:00 p.m. so that a party can catch a plane. The attorney’s fees issue is the concern of only one of the parties, not both of them.
    

         Finally, if a party does set a time deadline, it is not always wise to provide a reason or explanation for it, especially if the reason is a weak one. The example given is having to sell a car by a date certain, explaining that the seller is moving out of the country. Explaining the reason may actually work against a party’s best negotiated deal. In essence, in some situations, less is more.
       

      So. . .the next time you are at a mediation, and the other party advises she/he has a time deadline and must leave by a certain time, proceed with caution: is she/he telling you the truth or is she/he using it as a negotiation tool to reach resolution  more efficiently?
 

      . . . Just something to think about.    

        Most of the cases that I mediate are in litigation. They are lawsuits in which each party has hired an attorney to represent him/her zealously, if not, aggressively. Many of these attorneys approach litigation as they would war: take no prisoners, scorching the earth as they “fight” their way to victory!
 

      However, a recent Harvard study reveals that these attorneys and the parties they represent may gain a lot more by playing nice. That is, “nice guys do finish first.” (Id.)
 

      The Harvard study, published in the March 20, 2008 issue of Nature (Volume 452, No. 7185), involved a 100 Boston-area college students playing “a punishment-heavy version of the classic one-on-one brinksmanship game of prisoner’s dilemma.” (Id.):
   

         “Common game theory has held that punishment makes two equals cooperate. But when people compete in repeated games, punishment fails to deliver. . . .” (Id.)

       The study found that those who used punishment were the losers. “Those who escalate[d] the conflict very often wound up doomed.” (Id.)
     

        In contrast, those who turned the other cheek and continued to cooperate with a nasty opponent received more rewards.
 

      When considered in the context of a mediation, the results of this study make sense. The purpose of mediation is to reach a resolution that meets the needs and interests of all parties concerned. Mediators (including me) often take an integrative bargaining approach (i.e., win-win) in mediation rather than a distributive bargaining approach (i.e., win-lose). If the parties accept the former approach, they often find that the deal struck in settlement is more satisfying as it meets more of their needs and interests than a deal stuck using distributive bargaining (or a zero-sum game approach). In essence, by working with the opponent (rather than against the opponent) in a cooperative manner, both parties gain more.
     

       In my day-to-day life as a mediator, I have seen this cooperative approach work, over and over again, resulting in settlements that meet the parties’ needs and interests. I am now happy to learn that this everyday experience has been confirmed by academia and scientific study.
   

         . . . Just something to think about.