In its July 27, 2010 guest blog, Scientific American published an article by R. Douglas Fields entitled, “Of Two Minds: Listener brain patterns mirror those of the speaker.” In it, Mr. Fields discusses a study (published in the July 26, 2010 issue of Proceedings of the National Academy of Sciences) showing that simply by speech, a speaker “. . .can project her own brain activity onto another person” such that the neural activity of the listener will closely mirror that of the speaker. (Id.)

Using functional magnetic resonance imaging or fMRI, the researchers examined both the speaker’s and the listener’s brain activity patterns while they communicated with each other. What they found was that:

“. . . when two people communicate, neural activity over wide regions of their brains becomes almost synchronous, with the listener’s brain activity patterns mirroring those sweeping through the speaker’s brain, . . .with a short lag of about one second. If the listener, however, fails to comprehend what the speaker is trying to communicate, their brain patterns decouple.” (Id.)

The researchers found that “the better matched the listener’s brain patterns were with the speaker’s, the better the listener’s comprehension. . . .” (Id.) Thus, if a listener truly comprehends what the speaker is saying, her brain imaginary will mirror the speaker’s. If, on the other hand, the listener hasn’t a clue about what the speaker is saying, her brain imaginary will show that as well: there will be absolutely no mirroring.

The researchers also found that when a listener is fully comprehending what the speaker is saying, her own neural activity preceded that which was about to occur in the speaker’s brain. That is, she anticipated what the speaker would say next!

As explained by the lead investigator, Uri Hasson, “communication is a joint activity, by which two brains become coupled.” (Id.)

This research intrigues me because one of the basic concepts in mediation is “active listening” (which means to listen carefully to what the speaker is saying and how it is being said and then use various techniques such as paraphrasing or restating the speaker’s remarks to make sure the listener understands what is being said. It is a continuous and interactive process of listening and providing feedback.) This research confirms that there really is an “active” in active listening: when we truly listen to someone and comprehend what she says, our neural activity will closely mirror the speaker’s to the point that our own neural activity may well mirror what is about to occur next in the speaker’s brain. We can anticipate what the speaker will say next.

And, I have learned that mirroring or mimicking is one of those great tools that can lead to agreement. If one mirrors or mimics the body language of another, that other person will tend to become more receptive to you, albeit, subconsciously. That is, the more similar you are to someone, the more agreeable she will become. And the more agreeable a person is, the more likely a resolution will be reached.

So,. . . there really is something to “active” in active listening: it epitomizes a joint activity through which resolutions can be reached.

. . .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

Benedict Carey has written another interesting article in the New York Times. Entitled “The Benefits of Blowing Your Top” (July 6, 2010),  Mr. Carey discusses the effect that our emotions have on disputes.

For example, some people, such as President Obama, deal with a crisis in a very calm, cool manner which exasperates others. In contrast, other people simply and quickly blow-up at the first hint of a dispute.

This emerging field is called “emotion regulation” and looks at how we function in social situations:

“. . .Research in the past few years has found that people develop a variety of psychological tools to manage what they express in social situations, and those techniques often become subconscious, affecting interactions in unintended ways. The better that people understand their own patterns, the more likely they are to see why some emotionally charged interactions go awry – whether from too little control, or in the President’s case, perhaps too much.” (Id.)

Emotion regulation falls into two categories: “pre-emptive, occurring before an emotion is fully felt” and then “responsive” which occurs afterward. An example of the latter is feeling an emotion but, immediately, suppressing it. Two different studies showed that those who suppress their emotions encounter more stressful situations. One of the studies revealed that incoming college freshmen who “. . .scored highest on measures of emotional suppression had the hardest time making friends.” (Id.)  An often-used pre-emptive technique is to simply focus on the good and ignore the bad. One study found that:

“. . .people over 55 were much more likely than those aged 25 and under to focus on positive images when in a bad mood – thereby buoying their spirits. The younger group was more likely to focus on negative images when feeling angry or down.” (Id.)

Another study found that older persons were more adept at regulating their emotions; their mood would bounce back quickly to a good one after dealing with depressing thoughts. Consequently, the senior citizen’s ability to shrug off feelings of disgust or outrage may “strike younger people as unauthentic, even callous.” (Id.)

Lastly, but of most interest to me as a mediator, Mr. Carey points out that “people may choose the emotions they feel far more often than they are aware – and those choices, too, can trip up social interactions.” (Id.) That is, “. . .people subconsciously prime themselves to feel emotions they believe will be most useful to them in an anticipated situation.” (Id.) Such emotions are called “instrumental emotions.”

People have “an exceptional capacity to track whether the timing and morphology of an emotion is correct.” (Id.) Thus, the most socially adept individuals are able to project the emotions they want to, when they want to, using varied strategies to fit the situation at hand. (Id.) Thus, a good negotiator will display anger when appropriate and conciliation when that, too, is appropriate.

Disputes are full of emotions; in their creation and in their resolution. While most of  us dwell on the “facts” and who is “right” and who is “wrong” in our attempt to resolve a dispute, we must also focus on the “instrumental emotions” of the dispute. The use of the wrong emotion at the wrong time can cause the whole situation to blow up, or be “misread”. (Just think of the public’s reaction to Mr. Obama’s unemotional response to the BP spill: the critics urged he did not care because he did not get angry.)

So, while the substance of a dispute is important, so are the “instrumental emotions”  we bring to the negotiations: we must pause and give thought of how to present them. What emotions do we really want to display when?  Are they  in sync with the situation? With  our body language?  And, with what we are saying? Are  our emotions aligned with our underlying needs and interests? Or our they sabotaging them and thereby making the situation worse?

In truth, there is a lot more to think about than simply the “facts’ in any negotiation!

. . .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 August 2008, I posted a blog entitled “Make the Deal: You Are Better Off,” discussing a study which concluded that settling was better than going to trial.

Last week, I came upon another study which indirectly supports this earlier conclusion. Entitled “Insighful or Wishful: Lawyers’ Ability to Predict Case Outcomes,”(study) the researchers concluded that “overall, lawyers were overconfident in their predictions . . .” about success at trial and that the accuracy of their predictions “. . . did not increase with years of legal experience.” (16 Psychology, Public Policy, and Law, pp. 133-157, 133 ((No. 2.) 2010) “Study”).

The researchers were Jane Goodman-Delahunty, Charles Sturt University, Manly, New South Wales, Australia; Pär Anders Granhag, University of Gothenburg, Gothenburg, Sweden; Maria Hartwig, John Jay College of Criminal Justice, New York and Elizabeth F. Loftus, University of California at Irvine,California (“Researchers”).

The goal of the study was to assess “the degree of accuracy in lawyers’ forecasts of case outcomes.” (Id. at p.134). To do this, the Researchers interviewed 481 litigation attorneys including new lawyers and very experienced lawyers, in 44 states across the United States, representing both plaintiffs and defendants in civil and criminal matters. The civil practitioners comprised about 70% of the study while the criminal practitioners represented the remaining 30%. (Id. at pp. 138-140.)

The Researchers interviewed each participant approximately 6 to 12 months prior to the date that a case was expected to go to trial and then interviewed them again after the date that the case was expected to go to trial. The goal was to compare the lawyer’s prediction about the likelihood of success at trial with the actual outcome. (Id.)

Although, at the beginning, the study consisted of 337 civil cases and 144 criminal cases, the Researchers found, not surprisingly, that a large number – 59% – of the cases settled prior to trial (e.g., about  284 cases)  while only 31% were actually tried (e.g., about 149 cases). The remaining 10% were resolved by means of summary judgment, dismissal or some procedure other than trial. (Id. at pp. 139-140).

As might be expected, prior to trial, more than 50% of the lawyers opined that a favorable outcome would be reached. In reality, the outcome matched the expectation in only 32% of the cases. The outcome exceeded the expectation in 24% of the cases. But, in 44% of the cases, the lawyer was overconfident; the outcome did not meet the lawyer’s prediction. (Id. at pp. 140-141).

The Researchers also looked at the lawyers’ predictions in terms of gender: men outnumbered women four to one in the study (361 male attorneys vs. 90 female attorneys). When asked initially to predict the outcome at trial 6-12 months away, the female attorneys were just as optimistic as their male counterparts. (Id. at p. 141-142).

However, when the Researchers compared the prediction with the outcome, they found that more female attorneys achieved their minimum goal than did their male counterpart (64% vs. 55%) (Id. at p. 143). In general, what the Researchers concluded was that female attorneys were overconfident about their chances of winning at trial only when their prediction of success was high overall. Female attorneys had a much better ability (than male attorneys) to discern whether they had a moderate versus a high probability of success in winning at trial. (Id. at pp. 143).

The Researchers also determined that years of experience did not make much of a difference. The range of experience of the lawyers in the study was from 0 to 45 years. Both the less experienced lawyers and the more experienced lawyers were prone to be overconfident about their chances of winning at trial. (Id. at pp. 143-144).

Similarly, the Researchers determined that the confidence of the attorneys did not differ depending on whether  the case was a civil or criminal matter: the prediction of success at trial was about the same for both groups. (Id. at p. 145). However, where the crimes were victimless, that is, against property, the Researchers found that the lawyers were more realistic in estimating their chances of success than lawyers involved in crimes against persons. (Id. at p. 145).

In sum, when a lawyer predicts the outcome of a trial, there is a 44% chance that he is being too optimistic, . . .unless she is a woman – then chances are that she will be less overconfident and more discerning of her likelihood of success at trial.

So. . . when you are at a negotiation and your lawyer tells  you that you have a “great” chance of winning at trial. . .  take it with a grain of salt. According to this study, there is a good chance that the lawyer is being overly optimistic and overconfident!

. . . 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

       Last week, I discussed a legislative bill, AB 2475, introduced into the California legislature which, if passed, abolishes quasi-judicial immunity for mediators and other alternative dispute resolution professionals.(ab_2475_bill_20100408.) As President of the Southern California Mediation Association (“SCMA”), I sent a letter to the sponsor of the legislation, posted it on my blog and urged everyone to make their voices heard.
 

      It seems those voices were heard as the legislation was amended on April 22, 2010 to abolish quasi-judicial immunity only for matters falling within California’s Family Code. (ab_2475_bill_20100422 .) Thus, while this legislation no longer effects mediators handling civil, commercial, contractual or personal injury disputes, it still effects private mediators handling family-law matters. Given that its purpose is apparently aimed at evaluators (i.e. not mediators) who submit findings and recommendations to a court, this latest amended draft still sweeps too broadly: Family law mediators are bound by mediation confidentiality and so do not submit any findings and recommendations to a court.

       So, once again, I have written to the sponsor of the legislation ( letter) and urge each of you to do the same and make your viewpoint known and heard.

       . . . Just something to think about.

Postscript:   It seems that this draft legislation has once again been amended. On April 28, 2010, it was modified drastically  so that it now abolishes”… quasi -judicial immunity… [for] any private third  party … appointed by the court …who provides a report or findings to the court in a proceeding under the Family Code, with the intention that the court act in one way or another based on the  report or findings….” (ab_2475_bill_20100428.) Success! The Assembly Member heard your voices!  Have a great day!

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 searching for a topic for this week, I reviewed my colleague Linda Bulmash’s “Negotiation Tips” published monthly by the Los Angeles County Bar Association. Her topic for this month is using respect and grace in negotiation. (Negotiation Tips ) Her point: Civility, respect and grace do much towards reaching an agreement.
 

      These words hit me like a ton of bricks and/or struck me like a bolt of lightning. Although written two weeks ago for a different purpose, they suddenly seemed extremely appropriate in describing Richard Millen, – the “great great grandfather of the mediation movement” in Southern California – who passed away last week at the young age of 89. (Richard Millen ) Although I had the pleasure of knowing Richard for only the last few years I, along with the rest of the mediation community, mourn his passing and will greatly miss him. I am only sorry that I did not meet him sooner and get to know him better.

       To Richard -  it was very important to discover what each party wanted and to help the parties achieve their respective goals. He looked beyond the deal and he did it with civility and grace which is why Ms. Bulmash’s article struck me. She was describing Richard Millen without realizing it.

       As Ms. Bulmash suggests, Richard understood that each issue in a settlement held a different value to each party and as a negotiator and mediator, he sought to satisfy this “value” of each of the parties. He took the time to find out what the needs and interests of each of the parties were and see what he could do to assist the parties in fashioning a resolution that met those needs and interests and thus provided benefit to each party.

       Ms. Bulmash’s next point – negotiation is not a competition – was well understood by Richard. In fact, he railed against the ultimate legal competition – litigation – always commenting that the attorney mediators have taken over or kidnapped the practice of mediation, to its detriment. To Richard, mediation must remain true to its roots: community mediation. Lawyers as mediators were an anathema to him.

       Richard was the epitome of Ms. Bulmash’s next point – “show respect and acceptance of each party’s position.” He was always friendly and never got personal: he was the ultimate professional.
 

      And with respect to Ms. Bulmash’s last point (be persistent) – he was, indeed, persistent – and it is because of his persistence that mediation in Southern California has blossomed and gained so much recognition. Without Richard, mediation would not be ubiquitous or a word used as often as “litigation”. Most importantly, without Richard, there probably would not be a Southern California Mediation Association of which he was one of the founders. Today, I am the president, carrying forward his vision and inspiration of 22 years ago into the future, to hand  off to  the next generation of ADR professionals. Without his inspiration and vision, I and so many others would not be where we are today.

       We owe  Richard Millen a lot and I only hope that my tribute does justice to him and  to that debt.:

       Richard H. Millen – 1920 – 2010.

       . . .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