Have you ever made a decision because it “felt” right? That is, you can’t explain the rationale or logic behind how and why you decided what you did, but deep in your “gut”, you “know” you made the “right” decision simply because it “felt” right.
 

      It turns out that you are not alone. All of us have made such decisions because we are “wired” to decide things, using not just our rational and logical brain, but our emotional brain as well. Our most “logical,” and “rational” decisions are emotionally based.
 

      All of this and more is explained in a book that I just finished reading entitled,  How We Decide by Jonah Lehrer (Houghton Mifflin Harcourt 2009). In it, Lehrer explains that we do, indeed, use emotions to make decisions.
 

      How? Each of us have dopamine neurons. These are the molecular source of our feelings. (Id. at p. 47). It is the release of the dopamine that makes us feel good; it is “chemical bliss”, flooding the brain with a “feel – good chemical” (Id. at p. 61). To achieve this “chemical bliss” on a repeat basis, we will engage in the behavior that causes it, again and again. Similarly, to the extent that these neurotransmitters tell us to be wary, we will listen to them and avoid similar situations in the future: The dopamine neurons immediately stop firing and as a result we experience a negative emotion. (Id. at p. 47) which “teaches” us – not to do “that” again!
 

      In short,

      “Dopamine neurons automatically detect the subtle patterns that we would otherwise fail to notice; they assimilate all the data that we can’t consciously comprehend. And then, once they come up with a set of refined predictions about how the world works, they translate these predictions into emotions.” (Id. at p. 48).   

 
       Thus, they will get excited by predictable rewards and get even more excited by unpredictable rewards:

      “The purpose of this dopamine surge is to make the brain pay attention to new, and potentially important, stimuli. Sometimes, this cellular surprise can trigger negative feelings such as fear. . . .

      “Most of the time, the brain will eventually get over its astonishment. It’ll figure out which events predict the reward, and the dopamine neurons will stop releasing so much of the neurotransmitter. . . .” (Id. at p. 60).

       For example, as Lehrer explains, suppose you have to make a decision on whether to purchase a stock. You review all the financial data but cannot keep it all straight, much less process all of the information. But you have to make a decision – and so you do so – based on what “feels” right. In truth,

      “. . . your emotions will ‘reveal a remarkable degree of sensitivity’ to the actual performance of all of the different securities. The investments that rose in value will be associated with the most positive emotions, while the shares that went down in value will trigger a vague sense of unease. These wise yet inexplicable feelings are an essential part of the decision-making process. Even when we think we know nothing, our brain know something. That’s what our feelings are trying to tell us.” (Id. at p. 48).

       The author goes into a lot more detail than I am able to in this blog: it is quite fascinating and has taught me that even the most “rational”, and “logical” decision is emotionally based.
 

      During a mediation, I sometimes implore the participants to “think with their heads, not with their hearts.” After reading this book, I will no longer do so as I know this is impossible: sometimes our best decisions are emotionally based!
 

      . . .Just something to think about.

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       Recently, I read Robert B. Cialdini’s  book Influence: Science And Persuasion (4th ed., Allyn & Bacon  2001). It was an excellent book, and I highly recommend it.

       In it, Mr. Cialdini lists six “weapons of influence” or six principles by which we can influence and persuade people not only in high stakes negotiations but in every day transactions.

       Mr. Cialdini starts with the premise that because life is so complex, most of us operate on autopilot. Rather than think long and hard about each and every action we take during the day, we use “short cuts” or almost mindlessly repeat the action patterns that we tested long ago and found to be tried and true. Otherwise, we would never get anything done.

       With this premise in mind, the author explains the six principles:

      1. Reciprocity – “The rule says that we should try to repay, in kind, what another person has provided us . . . .By virtue of the reciprocity rule,  then, we are obligated to the future repayment of favors, gifts, invitations and the like” (p. 20 - italics original).

      2. Commitment and Consistency – Each of us desires to be and to appear to be “. . . consistent with what we have already done. Once we make a choice or take a stand, we will encounter personal and interpersonal pressures to behave consistently with that commitment. Those pressures will cause us to respond in ways that justify our earlier decision” (p. 53 – italics original).

      3. Social Proof –“  This principle states that we determine what is correct by finding out what other people think is correct. The principle applies especially to the way we decide what constitutes correct behavior. We view a behavior as correct in a given situation to the degree that we see others performing it ”  (p. 100 – italics original).

      4. Liking – “…as a rule, we  most prefer to say yes to the requests of people we know and like” (p. 144). Thus, an astute negotiator will use “the liking bond between friends . . .to produce assent” (p. 147).

      5. Authority – “Follow an expert” (p. 179-italics original). We each have a deep sense of duty and authority. Thus, we will obey orders of authority, even, if, those orders do not make sense (p. 183). There is “…  the extreme willingness of adults to go to almost any lengths on command of an authority. . .”  (p. 183).     

      6. Scarcity – “Less Is Best and Loss Is Worst” (p. 204). An item that is rare is more valuable. Thus “. . .opportunities seem more valuable to us when they are less available… ” (p. 205 – italics original). Similarly, “… [p]eople seem to be more motivated by the thought of losing something than by the thought of gaining something of equal value.” For this reason, “… the threat of potential loss plays a powerful role in human decision making” (p. 205).
 

       It is easy to see how using these principles in a negotiation or mediation can work to a party’s advantage, and thus assist in resolving the dispute.

       The book is fascinating and a very good read! Try it!

       . . . Just something to think about!

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       On several occasions, I have discussed the importance of preparing for a mediation. I have noted that if a party comes to mediation with the idea of “winging it” or simply “going with the flow,” chances are, a resolution of the dispute will not be reached. Rather, the parties will leave frustrated and wondering why the matter did not settle.

       In her monthly column entitled “One Minute Negotiation Tips,” posted on the Los Angeles County Bar Association’s website (Vol. II, July 2009), Linda Bulmash approaches this issue by noting how Dennis Ross, one of the best negotiators in the world, approaches this task.

       As many of you are aware, Mr. Ross served as the Middle East envoy and chief peace negotiator in both the Bush senior and Clinton administrations. In his book, Statecraft – How to Restore America’s standing in the World (Farrar, Straw & Girout 2008), Mr. Ross provides 12 steps for effective negotiation. As you might expect, many of them involve preparation, or doing your homework beforehand. They are:

      1. “Know what you want and what you can live with.
      2. Know everything there is to know about the decision makers on the other side.
      3. Build a relationship of trust with the key decision makers.
      4. Keep in mind the other side’s need for an explanation.
      5. To gain the hardest concessions, prove you understand what is important to the other side.
      6. Tough love is also required: understanding and empathy is good but only goes so far—make sure they understand also there are consequences.
      7. Employ the ‘good-cop, bad-cop’ approach carefully.
      8. Understand the value and limitations of deadlines.
      9. Take only calculated risks.
    10. Never lie, never bluff—you risk too much damage to your credibility.
    11. Don’t avoid differences: get differences in the open and discussed to eliminate future hard feelings over the resolution.
    12. Summarize agreements at the end of every meeting.”
     

      Take a moment and reflect on each of these steps, and how you can incorporate them into your mediation advocacy. If they have helped Mr. Ross in negotiating peace in the middle east, just think what these steps can do to help you in resolving your disputes.

       . . .Just something to think about.    

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 In her monthly column entitled “One Minute Negotiation Tips,” posted on the Los Angeles County Bar Association’s website (Vol. II, July 2, 2009), Linda Bulmash approaches this issue by noting how, Dennis Ross, one of the best negotiators in the world, approaches this task.
 As many of you are aware, Mr. Ross served as the Middle East envoy and chief peace negotiator in both the Bush senior and Clinton administrations. In his book, Statecraft – How to Restore America’s standing in the World (Farrar, Straw & Girout 2008), Mr. Ross provides 12 steps for effective negotiation. As you might expect, many of them involve preparation, or doing your homework beforehand. They are:
1. “Know what you want and what you can live with.
2. Know everything there is to know about the decision makers on the other side.
3. Build a relationship of trust with the key decision makers.
4. Keep in mind the other side’s need for an explanation.
5. To gain the hardest concessions, prove you understand what is important to the other side.
6. Tough love is also required: understanding and empathy is good but only goes so far—make sure they understand also there are consequences.
7. Employ the ‘good-cop, bad-cop’ approach carefully.
8. Understand the value and limitations of deadlines.
9. Take only calculated risks.
10. Never lie, never bluff—you risk too much damage to your credibility.
11. Don’t avoid differences: get differences in the open and discussed to eliminate future hard feelings over the resolution.
12. Summarize agreements at the end of every meeting.”
Take a moment and reflect on each of these steps, and how you can incorporate them into your mediation advocacy. If they have helped Mr. Ross in negotiating peace in the middle east, just think what these steps can do to help you in resolving your disputes.
 . . .Just something to think about.

       “Who are you?” What an interesting question! Are you competitive? Accommodating? Avoiding? Collaborating? Or Compromising?  How you answer these questions reveal your approach to conflict. Each of these personalities approach and manage conflict very differently.

       For more than thirty years, the Thomas-Kilmann Conflict MODE Instrument (“TKI”) has been used to assess how individuals handle conflict which, in actuality, affects their negotiation skills, styles and the outcomes.  (See, http://www.kilmann.com/conflict.html)

       According to this testing device – TKI – there are two types of people in the world in terms of behavior: assertive and cooperative. The assertive person “. . . attempts to satisfy  his  own concerns.”(Id.)  The cooperative person, though, “attempts to satisfy the other person’s concerns.” (Id.)

      Using these two behavior patterns, a person could fall into one of five patterns in terms of   how she handles conflict:

       The first is competitive. Here, a person is both assertive and uncooperative. She will “pursue [her] own concerns at the other person’s expense”. (Id.) This person is very “power-oriented”, using “…whatever power seems appropriate to win. . .” for the simple sake of winning. (Id.)

       The second is accommodating. This person is unassertive yet cooperative. She will neglect “. . . her own concerns to satisfy the concerns of the other person. . . .” (Id.) She self-sacrifices as might be evidenced by “selfless generosity, or charity . . . or yielding to another’s point of view.” (Id.)

       The next behavior pattern is the avoider.   She is both unassertive and uncooperative. She “neither pursues [her] own concerns nor those of the other individual.” (Id.) She simply does not deal with the conflict. Rather, she will sidestep the issue, or postpone it until “later” or simply withdraw altogether.

       The fourth behavior pattern is the collaborator (aka the mediator). She is both assertive and cooperative. She will “attempt to work with others to find some solution that fully satisfies their concerns.” She will look for “the underlying needs and wants. . .” of the persons involved. She will explore the disagreement, looking for insights “. . .or trying to find a creative solution to” . . . the problem. (  Id. ).  ( Sounds just  like a mediator, doesn’t it?)

       The final behavior pattern is the compromiser. She “is moderate in both assertiveness and cooperativeness.” ( Id.) Her “. . .objective  is to find some expedient, mutually acceptable solution that partially satisfies both parties.” (Id.) A compromiser will give up more ground than a competitor but not as much as an accommodator. The compromiser will also confront an issue, unlike the avoider, but will not deal with it in as much detail or depth as the collaborator.

       According to this testing device, each of us, at different times, may use one or all of these behavior patterns. We do not use the same behavior pattern or a single sole style of behavior   all of the time. Rather, we will mix them up, depending upon the situation.  However, one or more of these behavior patterns may feel more comfortable to us so that it becomes the one we use most often or the pattern of choice.

       In sum, people approach disputes differently and so, will negotiate their resolution differently. By understanding the behavior patterns of the negotiators (aka parties) to the dispute (both yours and theirs), you will have a much greater understanding of the dynamics of the conflict, of the parties involved (i.e., what is really going on) and how to resolve it.

       . . . Just something to think about!

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       Last week, my blog discussed the Nash equilibrium which states that “. . .in every situation of competition or conflict in which the parties are unwilling or unable to communicate”  “. . . both sides have selected a strategy. . . [which] neither side can then independently change. . .  without ending up in a less desirable position.” Fisher, Len, Rock, Paper, Scissors: Game Theory in Everyday Life (Basic Books 2008) at p. 18. (Emphasis original.)

       This week, I conducted two mediations in which I witnessed the consequences of this game theory. More importantly, both mediations showed me the importance of communicating with the other side prior to the mediation so that the mediation process is more effective.

       The first was a business dispute. Plaintiff was suing to collect a referral fee based on what it believed had been a referral of close to 3,000 clients to the defendant. The alleged agreement provided for a $10 referral fee for each client to be paid on a monthly basis for so long as the defendant retained the client. In calculating its damages, plaintiff assumed that for the last 3 plus years, defendant had retained these clients. It, thus, calculated its damages to be more than a million dollars.

       Evidently, the parties had not conducted discovery, and the defendant had not shared any sort of accounting records with the plaintiff prior to the mediation. During the mediation, I asked the defendant how many clients were still using defendant, only to learn that over the last three years, defendant lost more than 75% of these clients. Thus, the actual alleged damages were, in reality, far less than $100,000 ( much less the more than the over one million dollars sought by Plaintiff.)  With defendant’s permission, I shared this information with plaintiff but to no avail. Plaintiff was in disbelief and refused to discuss settlement in the amounts being offered by defendant. At this point, the “equilibrium”  was obtained: neither plaintiff nor defendant  could keep going their separate ways without escaping further loss. They must now cooperate with each by sharing accounting records to determine the best solution possible under the circumstances.

       The second mediation met the same fate: it did not settle because, like the first, it reached the “equilibrium” during the mediation. This matter was a “lemon law” case or one brought under California’s Song-Beverly Consumer Warranty Act (California Civil Code §1790 et seq) and the Federal Maguson-Moss Warranty Act (15 U.S.C. §2301 et seq).  Defendant was of the view that plaintiff’s vehicle did not qualify under California law, and the federal statute had only limited applicability to the situation. However, counsel chose not to share this view with plaintiff’s counsel until the mediation. Needless to say, when defense counsel explained her client’s position for the first time at the mediation, plaintiff’s counsel (and plaintiff) became quite upset. While both parties did continue to negotiate in hopes of resolving the matter, it was clear that  this issue was the sticking point because if defense counsel was correct, plaintiff did not have much of a case, but if plaintiff was correct, plaintiff believed the vehicle to be a strong candidate for repurchase.

       Again, the “equilibrium” was obtained. Neither side could continue with its independent strategy without being worse off.  Each must now cooperate with the other to find a solution that provides the best solution possible to their respective clients under the circumstances.

       In both instances, I believe that if the critical information had been shared prior to the mediation, the Nash equilibrium could have been successfully handled during and as part of the mediation process.

       In short, given the Nash equilibrium, it is difficult to switch from a competitive to a cooperative strategy during a mediation with any degree of success. Like everything in life, strategy “shifts” need to percolate for a bit to become effective. If a tectonic shift in strategy is in the winds, it should be implemented  prior to the mediation so that the Nash equilibrium does not thwart reaching a resolution during the mediation

       . . . Just something to think about.

      Many of you have recived information regarding the “Argus” offer. For a limited time, it is still being offered. To read more,  click here:   http://www.pgpmediation.com/argus/   

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