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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            I received an interesting e-mail from a colleague (thank you, Gary Weiner, Esq.!) the other day passing along a new theory about confirmation bias. In the words of my colleague, confirmation bias is “a mental shortcut that makes us seek out evidence that confirms our views, and overlook and/or fail to notice evidence that contradicts our views.” In day to day terms, what this means is:

“. . . when [people] have an idea and they start to reason about that idea, they are going to mostly find arguments for their own idea. They’re going to come up with reasons why they’re right, they’re going to come up with justifications for their decisions. They’re not going to challenge themselves.”

“And the problem with the confirmation bias is that it leads people to make very bad decisions and to arrive at crazy beliefs. . . .”

(Edge 342- May 3, 2011, The Third Culture, “ The Argumentative Theory: A Conversation with Hugo Mercier”(http://www.edge.org/documents/archive/edge342.html at p. 3.)

            Hugo Mercier and Dan Sperber, two researchers in cognitive psychology and social cognition, have developed a theory about “ “ why are humans so amazingly bad at reasoning in some contexts, and so amazingly good in others?” ” (Id. at p. 2).

            The rationale is to provide the critical and very necessary ability to argue with each other. Pursuant to their argumentative theory, Messrs. Mercier and Sperber contend:

“. . .[I]f you take the point of view of the argumentative theory, having a confirmation bias makes complete sense. When you’re trying to convince someone [i.e. being argumentative], you don’t want to find arguments for the other side, you want to find arguments for your side. And that’s what the confirmation bias helps you do.”

 “The idea here is that the confirmation bias is not a flaw of reasoning, it’s actually a feature. It is something that is built into reasoning; not because reasoning is flawed or because people are stupid, but because actually people are very good at reasoning – but they’re very good at reasoning for arguing. . . .”

 “People mostly have a problem with the confirmation bias when they reason on their own, when no one is there to argue against their point of view. . . . [W]hen people reason on their own, they’re unable to arrive at a good solution. . . or to make a good decision. . . .”

 “On the other hand, when people are able to discuss their ideas with other people who disagree with them, then the confirmation biases of the different participants will balance each other out, and the group will be able to focus on the best solution. . . .” (Id. at p.3-4).

             In sum, our confirmation bias requires a group dynamic in which we can argue our way to the “best solution” which may not always equate to being the “right” or “most correct” solution. (Id. at p. 4).

            Two examples are education and politics. Educators have noticed that when it comes to teaching abstract topics to kids such as mathematics or physics, they learn much better in a group dynamic. That is, “. . .[i]f you take a group of kids and you give them a problem to solve together,. . . you obtain a much, much deeper understanding than you would ever obtain if the kids were on their own.” (Id. at p. 4).

            Similarly, this group dynamic works well in deliberative democracy – people discuss and argue their ideas, sharing their own viewpoints and criticizing each other’s viewpoints, to arrive at a “best solution”. (Id.) (Indeed, President Obama uses this dynamic by inviting open discussion and contrary viewpoints in his conversations with his advisors.)

            Consequently, argument is not such a bad idea. Arguing is actually a very good way to get disputes resolved. I know a lot of mediators who cringe at the notion of allowing the parties to argue or debate with each other. But, according to this new theory – arguing is precisely what is needed for the parties to reason their way to a solution.

            . . .Just something to think about!

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            When I decided to become a mediator, I never realized that I would need to know a little bit about neuroscience to settle disputes. Indeed, the basic training classes I took never mentioned the notion that neuroscience has a lot to do with resolving disputes. But the reading I have done in the past few years has shown this to be true. A paper by Richard Birke entitled Neuroscience and Settlement: An Examination of Scientific Innovations and Practical Applications published in 25 Ohio State Journal on Dispute Resolution at pp. 477-529 (2010) explains in simple terms what is going on in our brains during a mediation. It is fascinating! (neuroscience_and_settlement_ )

            For example, Professor Birke discusses the notion of whether to have a joint session at the start of a mediation. The trend among mediators is not to begin with a joint session but to start with and use separate sessions throughout the mediation.

            Professor Birke explains that the fear response (i.e. fight or flight) is deeply ingrained in our brain. In fact, the fear response “. . .travels two paths – one directly to the body (the “low road”) and one that was mediated by the amygdala (the “high road”).” The “low road” is faster: “. . .by the time the “mind” knew it was afraid, blood had already reached the legs” which were ready to start running. (Id. at  509).

            So, does it make sense to ask a party to retell a painful or traumatic event? Chances are that to do so will evoke the “fear” response in the storytellers. But, at the same time, it may provide the storytellers with “great satisfaction in telling their story, uninterrupted by objections or exhortations to only discuss what is legally relevant.” (Id. at  510). The storytelling allows “the emotional “elephant in the room”” to be recognized and acknowledged so that settlement does not feel empty and hollow. (Id.)

            Consequently, perhaps the story should be told in a joint session, but then a break taken to allow the “fear” response to dissipate (perhaps with the help of a little deep yogic breathing) before the negotiations begin (Id. at  512).

            The negotiation process itself is also grounded in neuroscience. For example, it has been proven that “we do not hear information with neutral ears.” (Id. at  512). According to the concept of “reactive devaluation”, we discount the value of things offered depending on who is doing the offering: the opposing party or the neutral mediator. (That is, we view the offer more favorably if proffered by the neutral.) Further, we will discount the value of something simply because it has been offered. Or, to put it another way, we value those things we cannot have more than those that we can have. (Id.)

            Professor Birke further explains that when we do receive information, we tend to process it “with a strong bias towards retaining and strengthening preexisting views.” (Id.) Thus, we value information that supports our beliefs very favorably and downplay contradictory information. (Id.) ( i.e., “confirmation bias.”) When we do receive this contradictory information, it activates the “animal” side of our brain while positive information activates the “civilized exterior person.” (Id. at 513). To harmonize this discordance, the brain will shut down distress through faulty reasoning. “ “The neural circuits charged with the regulation of emotional states” shut down distress quickly and easily by recruiting “beliefs that eliminated the distress. . . .” “ (Id. at 514). Consequently, the brain works so that we “feel” good like the addict who gets her “fix.” (Id.) 

            In simpler terms, our “gut” or emotional brain will often control our “brain” or cortex, to insure that we “feel” good about our decisions. As a result, our decisions are often emotionally based. Thus, for a solution to work, it must not only “feel good” but must be one that our cortex approves of, as well. To reach a durable settlement, both the “gut” and the cortex must agree to it. Or, at a minimum, the gut must be on board; otherwise, our “brain” will not be persuaded to agree! (Id. at 515-516). 

            Professor Birke’s article is quite extensive and detailed. But, by the above, I hope I have provided a glimpse into the notion that there is a lot more to negotiation that simply bargaining – our “guts” or emotional brain has a starring role, as well.

            . . .Just something to think about!

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             Imagine the following hypothetical: while John Smith and Jane Doe were dating, they had intimate relations. They have since broken up. John discovers that he may have contacted the deadly DONS (Deficiency of the Nervous System) virus from Jane. (This is a hypothetical incurable disease that eventually leads to death within 5 years.) Evidently, Jane just notified him that she tested positive while they were dating and suggested he get tested. John follows her suggestion and takes a home test: he tests positive. Being quite upset, he threatens to sue her. She responds by suggesting mediation to work-out a financial settlement as she is not disputing liability.

            Prior to the mediation, John is tested by a doctor and finds that he is actually negative for DONS. That is, the home test was a false positive.

            John attends the mediation with his attorney. Just prior to the mediation starting, John tells his attorney that he was re-tested by a doctor and the results were negative. However, he asks his attorney to refrain from revealing this new information because he is still very angry with Jane and wants to punish her for being so sexually reckless.

            What should the attorney do: obey his client’s wishes and not reveal? Or, be candid with Jane?

            These were some of the questions posed in a study by Art Hinshaw and Jess K. Alberts published in a paper entitled Doing the Right Thing: An Empirical Study of Attorney Negotiation Ethics (and soon to be published in the Pepperdine Dispute Resolution Journal). (Doing The Right Thing) (The  above hypothetical appears on pp. 25-26 of the paper.) Professor Hinshaw discussed the results at a session of the recently held ABA Dispute Resolution Section Spring Conference.

            For their study, Professors Hinshaw and Alberts used two sets of practicing attorneys: 528 from metropolitan Phoenix, Arizona and 206 from metropolitan St. Louis, Missouri. The 528 Arizona attorneys consisted of 354 men and 163 women (with 11 declining to identify their sex), whose average length in practice was 19 years. The 206 Missouri attorneys consisted of 169 men and 37 women whose average length in practice was 24.75 years. ( Id. at  pp. 24-25.)

            The results were eye-opening. Only 62% (452 respondents) said that they would not agree to John’s request to conceal this critical information. However, 19% (142 respondents) said that they would agree while the remaining 19% (140 respondents) said they were not sure how they would respond. (Id. at p. 29).

            The Professors then asked those attorneys who either refused outright to follow John’s request or were unsure how they would respond a follow-up question: Suppose the facts were slightly changed such that John permitted his attorney to disclose his true negative test result only if directly asked about it? That is, if directly asked: “does your client have DONS” etc.? Only then, could the attorney disclose John’s negative test results. (Id. at p. 29).

            In this scenario, of the total 592 respondents, who had either declined John’s initial request or were unsure, 64% (376 respondents) indicated they would refuse John’s request while 13% (79 respondents) stated they would agree to it and 23% (137 respondents) stated they were not sure what they would do. (Id. at p. 30).

            In sum, it seems that under one or the other of the scenarios, only 50% (366 respondents) of attorneys selected the proper or ethical course of conduct: they would refuse to assist John in a fraudulent scheme. Sadly, 20% (147 respondents) were not sure what they would do. (Recall that these are all attorneys with an approximate average of 20 years of experience!) (Id.at pp. 30-31).

            The study also looked at the degree to which attorneys learn by watching and following (mimicry) what their colleagues do. When asked how they thought their colleagues would respond, those who stated that they would agree to keep mum, believed that 41 to 60% of other attorneys would also agree to keep mum and withhold this important information. (Id. at p. 59).

            With respect to gender, the researchers found that more men (54%) than women (40%) would outright refuse John’s request to keep silent. Based on the results, the researchers believe that women “. . .may feel more equivocal or less certain of their positions when applying ethical principles in context. . . .” (Id. at p. 63).

            Finally, the researchers found “. . .no clear pattern of relationships exists between years since licensure and respondents’ propensity to . . .” to remain silent on a critical point. (Id. at p. 64).        

            There is a fine line between what is honest and what is not in negotiating and how candid must one be. Sadly, if we believe the results of this study, many attorneys appear not  to know where to draw this line!

            . . .Just something to think about!

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