Every week I write this blog, discussing mostly cases in court or published decisions. Such emphasis may give the impression that what I write about does not involve or apply to everyday events. Oh, but it does – very much so.

Case in point. In 1991, my husband and I moved to our present house. Being an exercise nut, I joined the local health club, which I will call “The Gym”. The annual dues were reasonable. Year in and year out, I paid my dues, even as they increased based on the cost of living index. But over the last few years, I have not really been going to The Gym; I get my exercise by walking my dog for 4 – 5 miles a few times a week and using my stationary bike on the other days. But, I kept sending in my annual dues (increasing each year) on the rationale that the rate was too low to pass up. (This is, if I quit and rejoined later, the rate would be much higher), and it had a pool which I sometimes used when swimming became the only exercise available to me due to injury (even though I dislike indoor pools!)

So, this past April, I received my renewal notice and promptly sent in my check. By doing so early, I was to be given two extra “free” months.

About six weeks later – in late May, I received a phone call from “Jane”, part of The Gym’s sales staff, asking if I was going to renew. I told Jane that I had sent the check in, in mid-April, giving her the check number and date. Jane said The Gym had not received it. I suggested she make inquiry again in the corporate office because in the past, The Gym had been slow in processing my payment. I told her that I would not be surprised if it was “lost” somewhere in the corporate office as I used The Gym’s self-addressed return envelope, placed a stamp  and a return address on it, and it has neither been returned to me nor negotiated. (I checked with my bank). Jane asked me if I wanted to put a “stop payment” on the check and write a new one. I told her that I really did not want to bear the $30.00 expense of a stop payment as that would mean, in effect, my renewal would increase by $30.00. I asked Jane if The Gym would bear the expense so that I could write another check for $30.00 less. Jane advised me that normally The Gym does not agree to such things, but she would ask.

The next day Jane called me to advise that she had asked the vice-president of sales who said “no”. Jane asked me if I wanted to put the renewal on my credit card. I said “no”; this fortuitous event made me stop and think about whether I really wanted to renew when I have not been using The Gym more than 3-4 times a year for the last few years. Upon reflection, I wasn’t inclined to renew. Jane said she would call me in a few days to see if I changed my mind.

A few days later, Jane called and told me that The Gym still had not located my check. I mentioned that while I had been a member for nineteen (19) years, I was not inclined to renew as I had not been using it that much. I stated that if The Gym found the check, that was fine, but if not, that was fine, too! (I was ambivalent).

When I hung up, I mentioned the call to my husband who asked if I told Jane that The Gym’s lack of loyalty to me really bothered me. I said “no, but you can tell her” and gave him the telephone and the number. He called Jane and told her how surprised he was that The Gym would not underwrite a $30.00 stop payment fee for a 19 year member and what a poor business decision it was.

And he is right. In their book, Beyond Reason, Roger Fisher and Daniel Shapiro (Penguin Books 2005) point out that all negotiations involve emotions and fall into one or more of five core concerns: Appreciation, Affiliation, Autonomy, Status and Fulfilling a Role.

By being a member of The Gym for nineteen (19) years, I have shown loyalty and appreciation to that organization. As Fisher and Shapiro note, “everyone wants to be appreciated.” (Id. at 26). I certainly did not feel any reciprocal loyalty or appreciation when The Gym refused to underwrite the $30.00 stop payment fee on my check but, instead, in a very cold and business like fashion, asked if I wanted to put the full amount on my credit card, leaving it to me to pay the extra $30.00.

In my conversations with Jane, she certainly did nothing to build affiliation with me, that is, attempt to work with me to find a mutually satisfying outcome. Rather, she just wanted my money for the twentieth (20^th) year.

And most importantly, Jane did nothing to acknowledge my status as a member of nineteen (19) years. As my husband pointed out, even the airlines do better. . . according  status – by way of certain privileges – to its loyal customers (aka frequent fliers)!

About an hour later, the phone rang.  It was Jane. Even though it was a Sunday of a holiday weekend, she “spoke” with the vice president of sales who now suddenly agreed to underwrite the $30.00 stop payment charge. I thanked her and gave her a credit card number as Sunday was the last day to renew.

I suspect my husband’s bluntness and directness provided her with an “ah-hah” moment. Perhaps, The Gym’s sales staff should be taught that good business is all about relationships ➔ appreciation, affiliation, autonomy, status and fulfilling a role.

. . . Just something to think about!

If you enjoy this blog, and want to receive it weekly via RSS Feed, click here:http://www.pgpmediation.com/feed/ or via FeedBurner email subscription, then enter your email address under the word “Subscribe” to the above right and click on the “Subscribe” button

       As a mediator, I hear a lot about the value of apologies and how apologizing can make a difference in resolving (or not resolving) a matter and/or doing so for far less monetary value than would occur without an apology.

       So, I decided to pick up a book on the topic. In On Apology, Aaron Lazare (Oxford University Press 2004) discusses the many different aspects of an apology. While at first glance, one might think this is a simple topic, Mr. Lazare shows it is really quite complex. As he explains, the apology process is actually a paradox: although it is seemingly simple and straight forward to say “I apologize” or “I am sorry”, it is, at the same time, a remarkably complex process. (Id. at p. 22-23). 
 

      It seems that apologies have an anatomy or a structure:

      ““Apology” refers to an encounter between two parties in which one party, the offender, acknowledges responsibility for an offense or grievance and expresses regret or remorse to a second party. . . .”

      “Some scholars suggest additional criteria for apology, such as an explanation for the offense, an expression of shame and/or guilt, the intention not to commit the offense again, and reparations to the offended party. . . .” (Id. at p. 23).

       Thus, it seems, the simple words “I am sorry” to be effective as a true apology must: (1) acknowledge the offense; (2) accept responsibility, or, provide an explanation; (3) express various attitudes and behaviors such as remorse, shame, humility, and/or sincerity; and (4) offer reparations. (Id. at p. 25, 35). Quite a lot of work for 3 simple words!
 

      In pointing out that an apology is a four step process, the author notes that this process can occur over a broad spectrum of situations; on an individual level (one to one), on a cultural or societal level (from one nation or culture to another), explicitly (verbally) or even implicitly (a brief nod or a handshake) or publicly or privately. The apology can be just a few words or a lengthy speech given by a head of state on behalf of or to a nation (e.g. President Lincoln’s apology for American slavery. (Id. at p. 78)). That is, its circumstances can be as varied as one’s imagination.
 

      But, for all of these different types of apologies to work, each must successfully satisfy certain psychological needs of the offended party. To heal the damaged relationship with the offended party, the author explains that the apology must satisfy the offended party’s following needs:

      • “Restoration of self-respect and dignity
      •  Assurance that both parties have shared values
      •  Assurance that the offenses were not their fault
      •  Assurance of safety in their relationships
      •  Seeing the offender suffer
      •  Reparation for the harm caused by the offense
      •  Having meaningful dialogues with the offenders.”
          (Id. at p. 44).

      In the simplest of terms, most offenses are viewed as an assault on one’s dignity or self-respect or honor. They are viewed as insults or humiliations. (Id. at p. 45).
 

      By the offender acknowledging she made a mistake, she affirms that her values are the same as those of the offended person, – i.e. that they both have shared values – and that it will not happen again. (Id. at p. 53). By doing so, the offender also acknowledges that the offended party is blameless who will then feel exonerated, if not validated in her innocence. (Id. at p. 58-59).

       The author notes that for some apologies to be effective, “the offended party needs to see the offending party suffer.” (Id. at p. 61). This suffering may simply be the offender expressing shame, guilt, remorse, et cetera or it may be a bit more complex by the offended party waiting awhile (hours, days, weeks, years) before accepting the apology to insure that the offended party is suffering (also known colloquially as “tit for tat”, “eye for an eye” or “retributive justice.” (Id. at p. 62)).
 

      Mr. Lazare points out that there is a difference between “reparation” and “settlement”:

       “Reparation refers to repairing, undoing the damage, making amends or giving satisfaction for an acknowledged wrong or injury. (When the party makes redress without acknowledging remorse, we tend to refer to this process as a “settlement”, not “reparation”). . . . Reparation is the central or dominating feature of the apology.” (Id. at p. 64).

      And finally, and what many mediators have learned, for an apology to heal, it must be an interactive process: there must be dialogue or negotiations between the offender and the offended party. The victim must be able to express her distress, its meaning, nature and severity, to the offender. She must be able to tell her story: “the mere act of telling what happened [is] a healing emotional release.” (Id. at p. 67). It is a catharsis of sorts. . . and with the telling, the offended party can move past the offense and allow the apology to have a healing effect.
 

      Mr. Lazare further discusses why some people are able and/or willing to apologize while others are unable and/or willing to do so. The first group acts in response to either strong internal feelings (they need “. . .to resolve and maintain their own dignity and self esteem”) and/or to strong external pressure (“. . .they want to influence how others perceive and behave toward them.” (Id. at p. 134)).
 

      In contrast, the second group – those who are unable and/or unwilling to apologize – act out of fear, embarrassment and/or shame. They fear the reaction of the offended party (rejection) and/or they are embarrassed and/or ashamed of the self-image it creates. (Id. at p. 160).
 

      Before I read this book, I thought an apology was a pretty simple thing. But, as you can see, it is not: it is rather complex. So, the next time, I suggest its use in a mediation, I will tread a lot more carefully: there are a lot more ramifications to saying “I’m sorry” than I ever imagined!

       . . .Just something to think about.

If you enjoy this blog, and want to receive it weekly via RSS Feed, click here: http://www.pgpmediation.com/feed/ or via FeedBurner email subscription, then enter your email address under the word “Subscribe” to the above right and click on the “Subscribe” button

      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.

If you enjoy this blog, and want to receive it weekly via RSS Feed, click here: http://www.pgpmediation.com/feed/ or via FeedBurner email subscription, then enter your email address under the word “Subscribe” to the above right and click on the “Subscribe” button

       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!

If you enjoy this blog, and want to receive it weekly via RSS Feed, click here: http://www.pgpmediation.com/feed/ or via FeedBurner email subscription, then enter your email address under the word “Subscribe” to the above right and click on the “Subscribe” button

       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.    

If you enjoy this blog, and want to receive it weekly via RSS Feed, click here: http://www.pgpmediation.com/feed/ or via FeedBurner email subscription, then enter your email address under the word “Subscribe” to the above right and click on the “Subscribe” button

 
 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.