In searching for a topic for this week, I reviewed my colleague Linda Bulmash’s “Negotiation Tips” published monthly by the Los Angeles County Bar Association. Her topic for this month is using respect and grace in negotiation. (Negotiation Tips ) Her point: Civility, respect and grace do much towards reaching an agreement.
 

      These words hit me like a ton of bricks and/or struck me like a bolt of lightning. Although written two weeks ago for a different purpose, they suddenly seemed extremely appropriate in describing Richard Millen, - the “great great grandfather of the mediation movement” in Southern California – who passed away last week at the young age of 89. (Richard Millen ) Although I had the pleasure of knowing Richard for only the last few years I, along with the rest of the mediation community, mourn his passing and will greatly miss him. I am only sorry that I did not meet him sooner and get to know him better.

       To Richard -  it was very important to discover what each party wanted and to help the parties achieve their respective goals. He looked beyond the deal and he did it with civility and grace which is why Ms. Bulmash’s article struck me. She was describing Richard Millen without realizing it.

       As Ms. Bulmash suggests, Richard understood that each issue in a settlement held a different value to each party and as a negotiator and mediator, he sought to satisfy this “value” of each of the parties. He took the time to find out what the needs and interests of each of the parties were and see what he could do to assist the parties in fashioning a resolution that met those needs and interests and thus provided benefit to each party.

       Ms. Bulmash’s next point – negotiation is not a competition – was well understood by Richard. In fact, he railed against the ultimate legal competition – litigation – always commenting that the attorney mediators have taken over or kidnapped the practice of mediation, to its detriment. To Richard, mediation must remain true to its roots: community mediation. Lawyers as mediators were an anathema to him.

       Richard was the epitome of Ms. Bulmash’s next point – “show respect and acceptance of each party’s position.” He was always friendly and never got personal: he was the ultimate professional.
 

      And with respect to Ms. Bulmash’s last point (be persistent) – he was, indeed, persistent – and it is because of his persistence that mediation in Southern California has blossomed and gained so much recognition. Without Richard, mediation would not be ubiquitous or a word used as often as “litigation”. Most importantly, without Richard, there probably would not be a Southern California Mediation Association of which he was one of the founders. Today, I am the president, carrying forward his vision and inspiration of 22 years ago into the future, to hand  off to  the next generation of ADR professionals. Without his inspiration and vision, I and so many others would not be where we are today.

       We owe  Richard Millen a lot and I only hope that my tribute does justice to him and  to that debt.:

       Richard H. Millen – 1920 – 2010.

       . . .Just something to think about.

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      The Sunday magazine of the February 28, 2010 New York Times contains an interesting article entitled “Depression’s Upside” by Jonah Lehrer. Mr. Lehrer is the author of How We Decide  which is a great book and is the subject of my  January 15, 2010 blog.
 

      As Mr. Lehrer explains, it seems that depression may be a good thing, after all. While granted, depression has been classified as a mental illness which causes its victim either to stop eating or to start eating too much, lose his/her inclination for sex, have difficulty sleeping and in general be very tired even though he/she is doing less and less, its “rumination” feature is actually beneficial. 
 

      According to evolutionary psychiatrist, Andy Thompson (at the University of Virginia) and Paul Andrews, an evolutionary psychologist at Virginia Commonwealth University, the “thought process” of rumination defines this order. Those who are depressed “fixate on their flaws and problems, thus extending their negative moods” or “chew over” (i.e. ruminate) their thoughts continuously. (Id. at 2). Because rumination takes control of a person’s stream of consciousness, that person will perform poorly on “tests for memory and executive function, especially when the task involves lots of information.” (Id. at 3).
 

      But, perhaps there is a purpose to this rumination. This is what Thompson and Andrews wanted to determine. As evolutionary psychiatrists and psychologists, they believed that the mind is actually “a fine-tuned machine that is not prone to pointless programming bugs.” Thus, while rumination is a response to a specific psychological blow, such as a death, a job layoff or a divorce, they thought that perhaps some good comes out of rumination or that there is, indeed, a net mental benefit from rumination. (Id.) What they found is that it “leads to an extremely analytical style of thinking.” (Id. at 4):
         

        “. . .rumination is largely rooted in working memory, a kind of mental scratchpad that allows us to “work” with all the information stuck in consciousness. When people rely on working memory. . . – they tend to think in a more deliberate fashion, breaking down their complex problems into their simpler parts.” (Id.)

       Because the deliberative thought process is “slow, tiresome and prone to distraction,” our brains grow tired very quickly, and we give up. But the state of depression with its rumination feature allows us to discard all distractions – like eating, sex and sleep – and focus on solving a difficult, if not mind boggling, problems. In short, “wisdom isn’t cheap, and we pay for it with pain.” (Id.)
     

      As Mr. Lehrer points out, obviously, there are many who disagree with this theory that, from an evolutionary perspective, depression is a good thing because it causes us to avoid distractions and focus on solving complex problems.

      But, this theory led me to “ruminate” whether depression is a good or bad thing in the context of resolving disputes. In many of my mediations, I have witnessed parties go through the five stages of grief: denial, bargaining, anger, depression and acceptance (On Death & Dying by Elizabeth Kubler-Ross) and soon realized that the parties will not reach a resolution until they reach “acceptance.” But to arrive at that stage, they must pass through the “depression” stage. 
 

      This article on depression or the fourth-stage – explains that there is a lot more to “depression” than the “I don’t care anymore about anything” attitude that is its hallmark. It actually allows a person to focus on the issue, analyze it and come up with a solution that leads her to the next and final stage: acceptance.
 

      So, while superficially, depression seems to militate against resolving disputes, its rumination feature actually enhances the process, if not the outcome. I guess it is somewhat of an oxymoron.
 

       . . .Just something to think about.

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       Trust – for a mediator, this is a very important issue.  At the beginning of  each mediation, a mediator must gain and build the trust of the parties. If the parties do not trust the mediator, they will place no value in the assistance she provides to facilitate a resolution.  Her services and presence will be useless.

      Well, it seems that “trust” is nothing more than a chemical response.  In an article entitled “The Neurobiology of Trust”  by Paul J. Zak published in the June 2008 edition of the Scientific American, the author describes experiments conducted by researchers to determine how we decide to trust someone.  This research  showed “… that an ancient and simple molecule in the brain – oxytocin –plays a major role in the process.”  Id. at 88.  Oxytocin is a short protein or peptide which serves as a neurotransmitter or signaling molecule.  Somehow, oxytocin facilitates cooperation – which requires trust.  Id. at 89.

      To test this, researchers developed an experiment called the “trust game.”  In this experiment, each participant is given $10 for agreeing to participate.  Then the participants are randomly assigned into pairs, although they will have no direct communication with each other.  In each pair, one participant is designated “Subject 1” while the other is designated “Subject 2.”  Then a computer asks Subject 1 if she wishes to send some of her $10 to Subject 2.  The amount sent by Subject 1 is, in reality, tripled in the account for Subject 2 so that if Subject 1 decides to send $2, the account for Subject 2 will contain $6 + the initial $10 deposit or $16 total.

      Then, the computer asks Subject 2 if she wishes to return some of the money to Subject 1, advising that Subject 2 is not required to send any money back and that her identity will remain undisclosed.  If Subject 2 does decide to send some money back, only  that actual amount   is returned; it is not tripled.

       Immediately, after making these decisions, the participants’ blood was tested for oxytocin levels.  ( Id. at 90-91).

      Pointing out that the consensus “. . .among experimental economists is that the initial transfer measures trust, whereas the return transfer gauges trustworthiness” (Id. at 91), the researchers found “that being trusted by Subject 1s would induce an oxytocin rise and that those who received greater sums from subjects would experience the greatest increases.”  Id.  In fact, “. . .when people were shown greater trust in the form of more money, their brains released more oxytocin.”  (Id).  The researchers also found “. . .that Subject 2s with high levels of oxytocin were more trustworthy – that is, they sent more money back to Subject 1s who had trusted them.  Receiving a sign of trust appears to make people feel positive about strangers who have trusted them.”  (Id at 91).

       In short,

        “Oxytocin constitutes a positive side of personal interactions;  it literally      feels good when someone seem to trust you, and this recognition motivates you to reciprocate.”  (Id at 92).

      Concomitantly, distrust causes a chemical reaction which in men will cause aggression.  That is, “men have an aggressive response to being distrusted.”  (Id).   Women do not like being distrusted either, but their response is a bit “cooler” than those of men.  (Id at 94-95).

      So. . .how does this relate to mediation and resolving disputes. . ..  Simple!  To gain someone’s trust, one must give something of value (which could include giving of herself) so that the other person will deem her trustworthy, by reciprocating and giving something back.  This “trust game” applies not only to the mediator but to the parties themselves.  If the parties “trust” each other and/or deem the other as “trustworthy”, they will find it easier to settle their dispute.  So, they, too, should play the “trust game”; one party giving something to the other,  (including  giving of herself) so that the other party deems her trustworthy by reciprocating and giving something back.

      Thus it seems that our decision whether to trust someone is nothing more than a chemical response based on the level of oxytocin in our brain!

       . . .Just something to think about.

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      Often, during a mediation, I have asked a party if she wants to make the first offer. More times than not, especially if it is the defendant, the party tells me that she wants the other party to go  first on the rationale that it is a sign of weakness or some similar explanation for her to make the opening offer.

       In response, I often explain that just the opposite is true: she who makes the first offer often has the advantage: she sets the parameters of the negotiations as well as affecting the other party’s expectations. In sum, she has the “upper hand” or the leverage in the negotiation.

       This notion of “anchoring” was the topic of Linda Bulmash’s latest Negotiation Tips (Los Angeles County Bar Association Vol III, No. 4 – January 2010) entitled “Making the First Offer Can Be the Smart Move.”(LACBA “Negoiation Tips” (January 2010) )Ms. Bulmash notes that the best negotiators think in terms of affecting the other party’s expectations in deciding whether to make the first offer:

      “First offers act as an anchor point, drawing the other side into your suggested range. Studies have shown that 85 percent of the time, first offers correlate with the final outcomes. Even if the first offer is not within a reasonable range, it still affects the negotiation’s outcome.”

       ”For those of us who think we are hip to the game, savvy and sophisticated, the impact of first offers shows that we are still suggestible. As proof of that theory, participants in a college study were asked to state their Social Security number before estimating the number of physicians in Manhattan. They all picked numbers that correlated with and were close to their Social Security number.”

      ”Before deciding whether to make the first offer, ask yourself:
          

       1. What do I want to achieve by making this offer?
      

       2. Do I have enough information to make this offer?
      

       3. How do I want to affect the other side’s expectations?
     

       4. How will this offer affect the other side’s expectations?
     

       5. What kind of offers and counteroffers do I need to make to move strategically closer to my bottom line?
     

       6. Should my offer be firm or flexible?

       7. How can I propose the offers”

      So, in your next negotiation, instead of automatically rejecting the notion of making the first offer, take a moment and look at the long range effect of your going first: how will it affect the expectations of the other side. Will your first offer, effectively, act as an anchor so that you resolve the matter within your  range of expectations?

      . . .Just something to think about.

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       In the latest edition of the Los Angeles County Bar Association’s Negotiation Tips ( Negotiation Tips ), Linda Bulmash addresses an often reoccurring issue in mediations: how to keep a negotiation from collapsing when an impasse occurs.

       Her most import tip is to control your emotions and maintain your cool. That is, think with your head, not your heart. Her other tips include:

      1. Interrupt the process. Call for a time out that gives everyone time for tempers to cool.

      2. Explore the perspective of those seated at the other side of the table. Continually question yourself and put yourself in the position of the others to try to determine why they are behaving this way. Then you can focus on their underlying needs rather than reacting to their behavior.

      3. Paraphrase what you have heard. “What I heard you say…. Am I correct?”

      4. Inquire by asking open–ended questions that require the other side to elaborate.

     5. Name the issue and call it as you see it: “Criticizing me or attacking my client does not seem the best way to build an agreement to resolve our differences.”

      6. Ask a question directly about the behavior. For example, when someone presents a take it or leave it “offer,” respond by saying, “What do you hope to accomplish when you threaten to walk away while we still have so many issues to discuss?”

      7. Correct an impression. If others accuse you of not listening or being uninterested in their opinion, respond by saying, “I did not mean to seem uninterested. I am very interested and would like to hear more.”

      8. Divert and refocus. When tempers flare, you can respond by saying, “I think we are getting distracted. Let’s try to get back on track.”

     9. Advocate and present your own interests and needs to the opponents but frame it in terms of answering their WIIFM (What’s in It for Me). 

      The first tip is a familiar one: “Interrupt the Process” – take a recess from the negotiation and go for a walk or engage in some other activity. As I have noted in earlier blogs – sometimes – the “ah hah” moment comes precisely because and when we are not thinking about an issue but are focused on something else “Sleeping on it” often does wonders for issue resolving!

      The second tip is just as vital: look at the issue from the other’s viewpoint. Doing so will help you understand what is important to the other party and why. This then allows you to rethink your position and perhaps alter it so that common ground can be found.

      This tip leads to the next; repeat back to the person what she just said. By doing so, that person can verify that she did,  indeed, say what she thought and intended to say and you can verify that you heard it correctly.
 

        Further, by asking open-ended questions (tip 4), you gain a lot of information which is always useful on in reaching a compromise.
 

      Tip no. 8 is another crucial tip in overcoming impasse: divert and refocus. Point out that the parties are getting side tracked by their emotions and suggest strongly that everyone stays focused on the issues.

       From my own experience as a mediator, I have found that these tips do work!

       So, the next time your negotiations get bogged down, think about and invoke these tips. They will help get you out of the quagmire and on to firm ground.

       . . .Just something to think about!

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