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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      The February 2, 2010 science section of The New York Times has an interesting article by Natalie Angier entitled “Abstract Thoughts? The Body Takes Them Literally.” Evidently, there is a field of science called “embodied cognition” which studies how the brain’s abstract thoughts are manifested in body movements. For example,

      “Researchers at the University of Aberdeen found that when people were asked to engage in a bit of mental time travel, and to recall past events or imagine future ones, participants’ bodies subliminally acted out the metaphors embedded in how we commonly conceptualized the flow of time.”

      “As they thought about years gone by, participants leaned slightly backward, while in fantasizing about the future, they listed to the fore. . . .” (Id.).

       Embodied cognition studies have shown that “. . .the brain is not the only part of us with a mind of its own.” (Id.) That is, we process information with our entire bodies and not just our brain.

       In one experiment, researchers had one group of students hold a cup of hot coffee while a second group held a cup of iced coffee. Each group was then asked to evaluate an imaginary person based on a packet of information.

       As you might guess, those who had held a cup of hot coffee were more likely to find the imaginary person to be warm and friendly than those who had held a cup of iced coffee.
 

      Similarly, in another experiment, participants were asked to answer a questionnaire attached to a clipboard. In one group, the researchers added weight to the clipboard so that it weighed 2.29 lbs. In the other group, the clipboard weighed 1.45 lbs. Again, in response to giving the value of six unfamiliar foreign currencies, those participants who were using the heavier clipboards, “. . .judged the currencies to be more valuable than those with the light clipboards.” (Id.)

       In short, our body takes into account physical cues in deciding what to do, even though those physical cues are unrelated. That is, “. . .the body takes language to heart and can be awfully literal-minded.”(Id.)

       One of my recent blogs (January 22, 2010, “Initiating The Dance“) discussed the concept of anchoring. Perhaps this research fits into that: using physical cues in mentally processing what to do next or how to approach an issue. If someone is holding a heavy book – will they think the issue is “weighty”?  Probably so.

       Or, perhaps “embodied cognition” is simply a fancy word for body language; that is, our physical actions reveal what we are thinking. We have all read about this, seen it in action, attempted to interpret it in others and even engaged in it ourselves.

       No doubt, this field of embodied cognition ties into negotiation and mediation. I just haven’t quite figured out all of the details. If you do – I would love to hear from you. Drop me a line.

       . . .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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       As I have mentioned in my blog, I mediate a lot of “lemon law” disputes filed under the Federal Magnuson – Moss Warranty Act, 15 U.S.C. §2301 et seq. and under California’s Song-Beverly Consumer Warranty Act, Cal. Civil Code §1790  et seq. and/or California’s Commercial Code §2313 for breach of express warranty, Commercial Code §2314 for breach of implied warranty of merchantability and Commercial Code §2315 for breach of implied warranty of fitness for a particular purpose. Usually, these disputes involve automobiles. That is, plaintiff believes that her automobile is a “lemon” and wants the manufacturer to repurchase it.
 

      But, last week, the U.S. Ninth Circuit Court of Appeals issued an opinion in which the alleged “lemon” was an Apple iPod! Yes – an iPod!
 

      In Birdsong v. Apple, Inc., Case No. 08-16641,(Birdsong v Apple,Inc. ) plaintiffs-appellants Joseph Birdsong (who bought 2 iPods in 2005)  and Bruce Waggoner (who bought one iPod in 2005) filed a class action complaint against Apple, Inc. alleging that the iPod “. . .is defective because it poses an unreasonable risk of noise induced hearing loss to its users.” (Id. at 16870). Plaintiffs did not allege that they suffered actual hearing loss but only that this possibility exists. They sued to force Apple to make a safer iPod. As might be guessed, the district court dismissed plaintiffs’ third amended complaint from which dismissal, plaintiffs appealed.

       According to the third amended complaint, the iPod is capable of producing sounds as loud as 115 decibels. Apple does include a warning about avoiding hearing loss or damage, both in the instructions provided with each iPod and on its website.
 

      As noted, neither plaintiff alleged actual hearing loss or damage but only that such was possible. Apple, Inc. filed motions to dismiss the previous amended complaints to which plaintiff responded by filing new amended complaints. However, its motion to dismiss the third amended complaint was heard and granted by the court.
 

      In assessing each of the legal theories alleged, the Ninth Circuit agreed with the district court. For example, the implied warranty of merchantability (under California’s Commercial Code §2314(2)), implies that goods “are fit for ordinary purposes for which the goods are used.” That is, it ““provides for a minimum level of quality.”” (Id. at 16872). It is breached when
“. . .the product lacks “even the most basic degree of fitness for ordinary use.”” (Id. at 16872-3)
 

      Because plaintiffs did not allege an actual malfunction or history of malfunction, much less actual injury, but only made suggestions on how the iPod could be made safer, the Ninth Circuit agreed with the district court that plaintiffs failed to allege any beach of an implied warranty of merchantability.
 

      As plaintiffs abandoned their claims of breach of an express warranty and implied warranty of fitness for a particular purpose, the appellate court did not address these claims.
 

      However, the appellate court did address plaintiffs’ claim filed under California’s Unfair Competition Law which prohibits unfair competition by means of an unlawful, unfair or fraudulent business practice. (Cal. Bus. & Prof. Code §17200-17210). Once again, because plaintiffs did not suffer an injury in fact as required by California’s recent adoption of Proposition 64, the court agreed that plaintiffs lacked standing to bring the claim. Further, the court rejected plaintiffs’ assertion that they did not receive the value of their bargain and thus lost money or property as a result of unfair competition. The court reasoned, once again, that the plaintiffs have not alleged a cognizable defect, but merely the potential for one. Thus, the court determined that the iPod is worth not less but exactly what plaintiffs paid for them.

       In short, “. . .plaintiffs’ alleged injury in fact is premised on the loss of a “safety” benefit that was not part of the bargain to begin with.” (Id. at 16879). Plaintiffs admitted that Apple, did, indeed, provide warnings against listening to music at loud volumes. Consequently, the appellate court concluded that as plaintiffs’ claims are only hypothetical in nature, the trial court did not err in dismissing the third amended complaint.
 

      Two days before Christmas, I bought a new iPod because my old one crashed. Until I saw this case, I never thought about “the law” when listening to my iPod. Rather, I connected the simple pleasure of enjoying music or podcasts to listening to my iPod. Now. . I know better! The law “works in mysterious ways”. . .everywhere . . .leaving no stone unturned!

       . . .Just something to think about!
 

      Happy New Year! May 2010 bring you peace and prosperity!

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      Recently, LiveScience.com published an article entitled “Why ‘Sleeping On It’ Helps” by John M. Grohol, PSYD. The thesis of the article is that “the brain makes good unconscious decisions when we let it” (p. 2).

      According to Dr. Grohol:

      “Previous research suggests that sometimes the more consciously we think about a decision, the worse the decision made. Sometimes what’s needed is a period of unconscious thought – equivalent to “sleeping on it” . . . in order to make better decisions” (p. 1).

        To study this phenomenon, researchers conducted experiments. The results led them to believe that unconscious thought is actually an “active, goal-directed thought process.” But unlike conscious thought, the usual biases are absent, so that we weigh the different components more equally; our preconceptions are not considered by our unconscious. That is, “unconscious thinkers seem to be better at using appropriate information to arrive at” (p.2) their decision:

      “The researcher hypothesize that conscious thought can lead to poor weighting in decision-making - the more you think about something, the more your biases interfere with good decision-making” (p. 2).

       A moment’s reflection will reveal how this relates to mediation. “Sleeping on it” is actually counter-intuitive to the mediation process. Typically, the parties attend mediation with the goal of settling or resolving the dispute at the mediation so that the final part of the session is spent drafting and signing the settlement agreement.

      Many parties and mediators are uncomfortable with the prospect of a party walking out of a mediation and taking the final offer home “to sleep on it”. They fear that if a party walks out of a mediation to “mull” it over, the matter will not settle.

      This research though  indicates that “sleeping on it” is not such a bad idea: to the contrary, it may be rather productive. A person’s unconscious is the better decision maker and thus a person will make a good decision, unconsciously. That decision most likely will be one that is much more rational,  much less biased and  much less dependent on preconceived notions than one made consciously at a mediation.

      So, counter-intuitively, perhaps it is not a bad thing to let someone walk out of a mediation with an offer in hand “to sleep on it”. Chances are, the matter will settle once the unconscious decision-maker takes over!

      . . .Just something to think about.

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