In her July 2011 edition of One Minute Negotiation Tips (published by the Los Angeles County Bar Association) ( Volume IV, No. 6) my colleague Linda Bulmash, Esq. discusses cognitive traps. She notes that, when negotiating, each of us has a tendency to be a bit irrational and agree to something that may not make the most sense or be in our best interest. Then, when challenged, we dig in our heels and become even more committed to our irrational stance. Consequently, we find ourselves agreeing to do something that our “right” brain would never have allowed; our “left” brain got caught up in the moment, causing us to make a foolish decision.

            Ms. Bulmash suggests several ways to avoid being undone by our “left” brains.

“1.        Be very aware of your competitive inclinations and what triggers them to escalate. Focus on getting the best deal and not beating the other side.”

“2.        Avoid focusing on the “sunk costs”/the amount of time, money and effort you have already invested in getting what you want. Those costs have little bearing on the current market/settlement value.”

“3.        Strategically focus each of your responses on getting the other side to make the next move that will bring them closer to your desired outcome. The more you stay away from escalating and irrationally committing the less they will feel a need to escalate and overly commit to a course of action.”

“4.        Keep your demands in the high but realistic range.”

“5.        Remember, people only agree to a deal when there is something in it for them so make sure you focus on answering their WIIFM (What’s In It For Me).”

            This last thought is key – What’s In It For Me – ! Most everyone (excluding the late Mother Theresa and other saints) – whether or not they are willing to admit it or are even aware of it – always have their own best interest at heart: they will agree to do something usually because they see a benefit – direct or indirect – to them. This point is an excellent one to remember when negotiating – figure out what is the other person’s “What’s In It For Me”, negotiate with that point in mind and you can most likely reach a resolution.

            . . . Just something to think about!

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           Somewhere in my mediation training, I was introduced to the American Bar Association’s Model Standards of Conduct For Mediators (“Model Standards”). While these Model Standards are not the “law”, they are principles that should guide my actions as a mediator.

            The very first standard is entitled “Self-Determination”.

            Subpart A, in part, states:

“A mediator shall conduct a mediation based on the principles of party self-determination. Self-determination is the act of coming to a voluntary, uncoerced decision       in which each party makes free and informed choices as to process and outcome. . . .”

            The more interesting subpart is B:

 “A mediator shall not undermine party self-determination by any party for reasons such as higher settlement rates, egos, increased fees, or outside pressures from court personnel, program administrators, provider organizations, the media or others.”

             I raise this issue of self-determination because recently, I have mediated some matters in which a party and/or counsel has asked me what would I do? The counsel or party was not asking for a mediator’s proposal but simply for my opinion on what she ought to do. Take the offer? Make a counter-proposal? Or, what?

            My usual response is that I have no opinion. I explain that while counsel/party has been involved in this dispute for quite a long time,  I have been involved for only a matter of hours and so do not know enough to have an opinion. Moreover, to quote a old saying, “I do not have a dog in this hunt”, that is, it is not my dispute. The outcome does not affect me; the implications of any decision have no bearing on me.

            No doubt, my response frustrates a lot of people because while everyone enjoys autonomy and the ability to make their own decisions, at the same time, they look to “authority” figures (i.e. the mediator) and will tend to obey them. People also want to be liked and will tend to do what others are doing. (See, Robert B. Cialdini, Influence: The Psychology of Persuasion). In sum, the principle of self-determination in the Model Standards creates a tension with the psyches of individuals.

            My colleague and friend, Marie Simpson, PhD devoted her June 21, 2011 Two Minute Training Tip to the theme of letting the parties make their own decision. Entitled “The Decision Is Entirely Yours,” (This Week) Dr. Simpson notes that, in essence, some folks are such control freaks or are so competitive to the point that they do not know “. . .when to stop persuading, [and] to put resolution before winning or being right.” Similarly, she notes, some mediators are such control freaks that they too, do not know, when to stop talking and to be quiet and allow the parties to work out the deal, and to prioritize for themselves, what is and is not important. Again, they (ie, the mediators) forget they are “new” to the deal and so do not know all of the intricacies: what may seem important to the mediator may, in fact, be irrelevant to the parties due to other considerations.

            In short, it is not always about winning: it is about resolving disputes. . . on terms with which the parties are comfortable and can accept.

            It is all about self-determination. . . and I definitely do not have a dog in that hunt!

            . . .Just something to think about.

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            From time to time, I have addressed the issue of bias in this blog. It is an important issue because bias is a very subconscious if not unconscious driving force in our lives. It controls much of what we do and how we act, and we do not even realize it most of the time.

            Recently, my colleague Maria Simpson, PhD wrote a “Two Minute Training”  Tip entitled “Perceiving Bias” (June 14, 2011.) (www.mariasimpson.com) Her thesis is that each of us have biases which are inescapable and of which we should be aware. She states her thesis in a very eye-opening way:

“My point of view is that bias is in the eye of the beholder and may be based on assumptions that are incorrect or information that has been misunderstood. But that is just my bias. That is also not to say that there is no bias in the world, but sometimes bias comes out in odd ways. Two examples of that bias appear in today’s New York Times.”

“The first example relates to the court’s decision reversing Prop. 8, the California ballot initiative that outlawed same-sex marriage….”

“Proposition 8 was overturned in court, and that ruling has been appealed based on the claim that the judge who decided the case did not make it known that he was in a same sex relationship himself. Since he would personally be affected by his decision, it is argued that he should have recused himself based on his personal interest in the outcome. Many legal scholars who have read his opinion comment on its sound judicial reasoning and lack of bias.”

“My response is that, if you agree with that logic, then almost no one is neutral enough to have heard the case. A heterosexual in a committed relationship could also be biased, just in the opposite direction. Maybe people not in relationships at all should judge the case. But if they are not in relationships, then maybe they are biased against all relationships of any kind and, therefore, also not neutral….”

…

“We interpret new experience based on past experience that has created a certain lens or framework through which we understand everything, but sometimes new information is distorted by the old frame. This framework might be an experience such as being the victim of violence, or it might be an ethnic or religious heritage. It might also be a lifetime of being the victim of prejudice and knowing that it is very real and directed at you.”

“Sometimes the old framework still has you focused on the field but cuts out the beautiful tree that has grown up just beyond the frame….”

“… we make decisions every day [and try] to persuade people to a certain course of action, and that decision may be biased. When considering your response, think first of whether you have a bias for or against what is presented and why. Then ask questions that clarify your own thinking and eliminate any misinformation you may be using….”

(Emphases original)

            I have quoted Dr. Simpson extensively because I could not put it more succinctly: each of us have biases – this is a given and a fact of life – based on our own life’s experiences. To negotiate effectively, we must be aware of our own biases, question our own biases and eliminate them as best we can. . . !

            . . .Just something to think about!

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            This week’s blog has absolutely nothing to do with mediation but in a very indirect way, has everything to do with conflict resolution. It is about a group of women who have taken it upon themselves to ease the conflicts created by bureaucracy; they take one week out of their own lives to build a house from start to finish in New Orleans for Katrina victims under the auspices of Habitat for Humanity.

            Although I know only one or two of them, these ladies are my college sorority sisters who were seniors or then just recent graduates when I first started pledging Sigma Delta Tau Sorority (SDT) at H. Sophie Newcomb Memorial College for  Women at Tulane University in New Orleans in 1969.

            After graduating college, I did not give SDT much thought until last fall when I bumped into a sorority sister at my husband’s fraternity reunion in New Orleans. She told me about these sisters and asked if I would be interested. I said “yes” and got on the e-mail list.

            But I did not fully understand what their mission was all about or their commitment to it until I read the Reader’s Digest  article (June-July 2011) that was just published about their extraordiness. They are truly awesome! (NewOrleans)

            Twelve baby boomers who as college students at a private university were as far removed from the hard knocks of life as one can get, trade their “easy” lives for saws, hammers, drills, tape measures and the other tools of construction to help the victims of Hurricane Katrina obtain one of the most basic needs: shelter. Why? Because it is New Orleans and simply sending a charitable contribution was not enough.

             The first house that they built in 2006  went to Kewanda Baxter, a single parent with three children. These ladies did not simply build the house and walk away. To the contrary, they  wanted to meet Ms. Baxter and have been “there” for Ms. Baxter and her children ever since. They have provided Ms. Baxter and her family with both tangible and intangible support, helping her and her family  put their lives back together after the devastation of Katrina. They are truly incredible! 

            Having lived ten (10) years in New Orleans, I understand their mindset and why my sorority sisters are doing what they are doing. I am proud to call them my sorority sisters and my “construction” hat is off to them! Next November, I plan to join them!

            . . .Just something to think about!

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            As a mediator, (and even as a practicing lawyer), I have heard a lot of parties make a promise combined with a threat (e.g. “I promise you that if plaintiff does not take my client’s offer of $20,000 now, she will never see it again.”) Do such combined promises/threats work?

            According to studies, if such promises/threats are done correctly, they can be highly effective. In her Negotiation Tips (Vol. IV, Number 4, May 2011) published by the Los Angeles County Bar Association, my colleague Linda Bulmash explains that such a tactic must not be used to punish or teach a lesson to the other party. Rather, this tactic should be used as part of a “carrot and stick” approach; otherwise this tactic will backfire.

            Ms. Bulmash offers some tips to insure the effective use of this tactic:

            “  1.         Make sure your threats/demands are within the realm of what is realistic and feasible for the other side so they can comply.

          2.         Make sure your threat is not based on your emotional reaction to the other side.

                    3.         Make sure your threat will not incite a counter-threat that dwarfs your own threat.

                    4.         Calculate whether your threat will cost you more than it does the other side.

                    5.         If you decide that you should make the threat, state the threat in terms of how compliance will benefit your counterpart: e.g. “If you don’t agree, I promise you’ll never see your money” vs. “If we are forced into bankruptcy, it’s unlikely that you will see your money and we all lose.” ”

            In short, couch the threat in a non-emotional, reasonable “win-win” manner. Otherwise, you may make the negotiations worse, and not reach a resolution.

            . . . Just something to think  about! 

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