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.

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Sometimes, the goal of a mediator is not to settle the case but simply to prevent the dispute from escalating into all out war. I was reminded of this recently by getting into the middle of a dispute between two friends who have been separated for many years and now wanted to finalize it by a divorce. The only issue was the property settlement. To be noted well, I am not trained in family law, am not licensed to practice law in the jurisdiction in which my friends lived and being close to both of them, I have a huge conflict of interest (“Disclaimer”).

To maintain confidentiality,  I will call my male friend John and my female friend Jane. John and Jane had been separated for many years. Periodically, I would speak with each of them as I remained friends with them both despite their separation.  Lately though, what I was hearing from each of them was that he/she wanted to work out a property settlement so a divorce could be obtained but that the other was either  not cooperative and/or not responsive. John complained to me that while he made a proposal to Jane, she had rejected it but never made a counter-proposal. Jane, on the other hand, told me that she had told John what she wanted but that John wasn’t listening and/or was avoiding dealing with it.

This back and forth went on for about a year. It finally came to a head when Jane filed for a divorce to force the issue. Jane warned me she was going to file because she got tired of the purported non-responsiveness of John.

It was a good thing she warned me as I soon got a telephone call from John who was extremely upset about being served with the lawsuit and demanded that I choose sides.

Being the neutral that I am, I told John that I was on no one’s side but only wanted what was “fair” to both of them. I did not have a personal stake in how this ended but only wanted the outcome to be “fair” (whatever that means!)

I listened to John for quite awhile, letting him vent and get it out of his system. I discussed the notion of perception with him; i.e. how he perceives something may be different than how Jane perceives it and vice-versa.

As might be expected, John stated that he would escalate this to  all out war, defend himself to the utmost and go on the offensive. In response, I suggested that he not let his emotions take over but that he try to rise above them and view this lawsuit dispassionately.   The only issue was a property settlement and if he played “tit for tat” and blasted back with “everything he had”, the only people who would benefit would be the attorneys whose fees would greatly increase.  I told John that Jane really did not want to litigate but rather to settle quickly; she filed suit  because she perceived him as being non-responsive; she wanted to get his attention so that he would focus on this!

After awhile, John calmed down and begin to view this dispassionately.  He admitted that he, too, wanted to settle it and do so quickly.

So, I became the “accidental” mediator and called my friend Jane (with John’s permission) to advise that John was served, was upset but wanted to settle it and to do so quickly. I asked her for a proposal.  She told me she needed certain information from John before she could give me a proposal. She gave her permission for me to discuss this with John.

So, I then called John relaying Jane’s request for more information.  John provided it to me in great detail. Again, I called Jane and provided the information. I found that a large unstated issue was trust.  Purportedly, when John had given some of this same information to Jane previously, she was not sure that he was telling the truth. But, because of my relationship with each of them, they each trusted me and believed that the other would be honest with me. So, when I conveyed to Jane the same information that John had told her directly in the past, Jane felt more comfortable believing it. Jane said she would gather some information and get back to me with a counter-proposal.

Although by now, each of my friends had attorneys, it seemed that the attorneys were not always communicating with each other.  On more than one occasion, this created unnecessary conflict and potential escalation of this dispute into World War III. Over the next couple of weeks, I checked in with each of them, and one of them would tell me what they had instructed their attorney to do. More times than not, the attorney had not yet done it or communicated it to the other attorney.  So with the party’s permission, I would convey it to the other, giving the other party a “heads-up” so as to prevent the lack of communication from causing that party to become upset.

Variously, each of them would tell me that they had to check with their attorneys to which I responded with great encouragement that they do so, reminding them of my Disclaimer.

In all of my conversations, I continuously reminded each of them that the other party did not want major warfare, but wanted to settle and to do so quickly, and since the only issue was a property division, settlement should not be difficult. I kept reminding each of them that only the attorneys would make money from any escalation of this dispute. I tried my best to remind them to not let their emotions take over but to keep moving toward the goal: a quick and painless division of the property.

My discussions with them also encompassed a general framework of any potential settlement: what, in general, it might look like.

Last week, my friends, accompanied by their lawyers, met with each other and worked out a settlement using the general framework I had discussed with them. While I was not there, I would like to think that my accidental mediator role played a part in that I listened to each of them, let them vent, kept them in communication with each other so that they did not let misassumptions or lack of communications run amok in their imaginations and continued reminding each of them  that each of them wanted to settle, to do so quickly and that the only ones to benefit from a long drawn out battle would be the attorneys.

Did I get paid any money for the hours I spent on the phone helping my friends contain this dispute? Of course not! But did I obtain satisfaction from helping them? Yes! and it was “Priceless!”

. . .Just something to think about.

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       It is often said that the purpose of mediation is to resolve disputes. Parties attend a mediation session hoping that, in a few hours, their dispute will be resolved. But, as is true with all aspects of mediation, sometimes we have to think “outside the box” in terms of why the parties are even attending a mediation session.
 

      Sometimes, the purpose of mediation is not to resolve the dispute then and there but simply to break the impasse or stalemate that has already occurred by getting the “conversation” going. Many times, parties attempt to discuss settlement prior to attending mediation but “life” gets in the way, and the “conversation” gets interrupted. By attending a mediation session, the parties are in the same place at the same time and, at least, for a few moments or hours, can shut out life with its myriad of interruptions and converse with each other about settlement.

       I had such a  mediation last week. In a separate session, defense counsel told me she had been trying to settle the matter prior to mediation, but was unable to get any counter-proposals from plaintiff’s counsel. Thus, she was looking forward to the mediation session so she could, at least, start the settlement discussion, and perhaps, even settle the case.
 

      At first, the thought went through my mind  that the parties were not ready and/or not prepared for mediation. But then, I realized that mediation serves many purposes, only one of which is to resolve disputes. Another purpose is that exemplified here: to get the “conversation” started because the over taxed schedules of the parties and/or counsel had prevented that. Sometimes, the simple beauty of a mediation session is that it gets everyone in the same room at the same time focusing on the same issues. Given how small the world has become, how interconnected we are and how easily and quickly reachable we are be it by e-mail, texting, twitter or even an old fashioned mobile telephone call – this subtle aspect of mediation is wondrous. It forces people to stop, think, look and listen. It is a conversation “starter” rather than a conversation “stopper.”
 

      Did the parties in that mediation settle that day? No – their “conversation” was just beginning, and it had some way to go before it could end. But the mediation session served its purpose; it enabled defense counsel to start the conversation with plaintiff’s counsel and hopefully, they will be able to resolve the matter without a trial.
 

      For mediation to work, sometimes, we have to think outside of the box ….

       . . .Just  something to think about.

        On Friday, February 5, 2010, I helped a colleague who teaches a mediation clinic in a local  school by coaching some of her students conducting a mock mediation. That is, I observed the students conduct their first  mediation  (using a fact pattern given out by the professor) and provided suggestions.

      The particular fact pattern was, in essence, a collection action. A quick reading of it showed that Plaintiff did not have a very good case and would probably lose in small claims court, were the matter actually tried.  The issue for the student mediator was how evaluative, if at all, should she be in her discussions with  Plaintiff. Should she say anything to Plaintiff to the effect that she faced an uphill battle and if so, how mildly or strongly should such a “ suggestion” be  worded.

      Each of the student mediators approached the task differently, but, they were all evaluative–telling Plaintiff she did not have much of a case and would lose. They each just conveyed  this sentiment differently.

       In driving back to my office, I reflected on this in light of a recent mediation. There, the parties reached an agreement that involved the participation of a third party who was neither a party to the lawsuit nor to the mediation. Implementing the settlement was not going smoothly as the third party was not responding in the manner envisioned by the parties. So, much communication was occurring in trying to keep the settlement on track. More and more, our discussions focused on the cultural differences of the parties and the third party. Plaintiff and the third party were Asian while the defendant was “American”, (that is, Anglo-Saxon.)  

      Suddenly, I had an epiphany or ‘ah-hah” moment. Both the students that day as well as me, must take into the account the cultural background of the participants in deciding whether to be evaluative. Why? Let me explain. In my mediation, the Plaintiff was from a country that followed Dutch law or the civil code tradition in which the judge also investigates, asks questions and prosecutes. That judge has a lot more power and control over the matter than do our American judges under our adversarial system. The system used in this Asian country is not at all  adversarial but  rather, inquisitorial.  
   

       In the later stages of my mediation and with the blessing of her counsel, I became evaluative with the plaintiff advising plaintiff that because her english was very difficult  to understand,  she might well lose the attention of the jury and thus lose her case.  I noted that using an  interpreter may also cause her to lose because again, she may well lose the jury’s attention.

       Subsequent to the mediation, plaintiff’s attorney  advised me  that after my discussion with plaintiff, plaintiff used her mobile phone and told the other party that “she had lost” her case.  At the time, the attorney did not think much of it, but suddenly, amid all of our discussions about cultural differences, he had his own epiphany or  “ah-hah” moment as well, and realizing that given plaintiff’s cultural background, (and even though I told plaintiff  that I was neither an arbitrator nor judge and was not deciding anything), she cloaked me with  authority, Thus, when I warned her that her inability to speak English could adversely impact her case, she understand that to mean that I was deciding her case and telling her that she had “lost”! 

       I have taken many training classes focusing on cultural differences.  But, the discussions have always been in the abstract. This mediation brought it home; be careful about the cultural differences.  What I say as a mediator with the intent that it be received one way may well be taken completely differently by the listener in light of her cultural background. While I wanted my “evaluation” to be taken with a grain of salt, this plaintiff, because of her culture and her country’s legal system, took it as “gospel.”

      …..  Just something to think about.

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       On November 23, 2009, the Fourth Appellate District Court of the California Court of Appeal upheld the collateral source rule. In Howell v. Hamilton Meats & Provisions, Inc., Case No. D053620, 2009 Cal. App. Lexis 1874 (Howell) the appellate court determined that plaintiff was entitled to recover the actual amount charged by her medical providers even though those medical providers took far less from her insurer in full satisfaction of their bills. By making this ruling, this San Diego appellate court diverged from its brethren in the Third Appellate District (Sacramento) in Hanif v. Housing Authority of Yolo County (1988) 200 Cal App. 3d 635, 246 Cal Rptr. 192 (Hanif) ( Hanif) and the First Appellate District (San Francisco) in Nishihama v. City and County of San Francisco (2001), 93 Cal App. 4th 298, 112 Cal Rptr. 2d 861. (“Nishihama”)(Nishihama) 

      These latter courts held that a plaintiff was entitled to a judgment in the amount of what was actually paid to and accepted by the medical providers, (rather than what was billed) in full satisfaction of the debt.

       But what is the “collateral source” rule? In Helfend v Southern California Rapid Transit District (1970) 2 Cal 3d 1, 6,( Helfend) the California Supreme Court explained:

      “[I]f an injured party receives some compensation for his injuries from a source wholly independent of the tortfeasor, such payment should not be deducted from the damages which the plaintiff would otherwise collect from the tortfeasor.” (Id. at *20-21)).  

        The rationale behind this rule is that “. . . a person who has invested years of insurance premiums to assure his medical care should receive the benefits of his thrift” and “the tortfeasor should not garner the benefits of his victim’s providence. (Helfend, supra, 2 Cal 3d at pp. 9-10)””
(Id. at *21).

       In the present case, Rebecca Howell sustained personal injuries caused by the negligent driving of an employee of defendant Hamilton Meats & Provisions, Inc. Luckily, she had personal health insurance. She incurred medical expenses of $189,978.63 which by means of contractual arrangements between Scripps Memorial Encinitas (“Scripps”) and CORE Orthopedic Medical Center (“CORE”) and her insurer, PacifiCare, this amount was adjusted downward to $59,691.73 which Scripps and CORE accepted as payment in full satisfaction of this debt. 
 

      At trial, the jury (who cannot be told that plaintiff has medical insurance) awarded plaintiff the full sum of $189,978.63. The defendants citing Hanif, supra, and Nishihama, supra, urged that this award should be reduced to what was actually paid – $59,691.73.

       The appellate court rejected Hanif, supra, and Nishihama, supra, as not being applicable, and instead applied the collateral source rule:

      “As a result of the admitted negligent driving of Hamilton’s employee, [Howell] entered into the financial responsibility agreements with Scripps  and CORE and became contractually obligated to pay those incurred charged by means of her own cash payments, a collateral source such as her health care insurance, or a combination of the two.”
. . . 

      “We conclude that the extinguishment of a portion of Howell’s debt to Scripps and CORE in the amount of the negotiated rate differential ($130,286.90) was a benefit to Howell because she was no longer personally liable for that portion of the debt she personally incurred in obtaining medical treatment for her injuries.”

      “We also conclude that this benefit to Howell was a collateral source benefit within the meaning of the collateral source rule because it was conferred upon her as a direct result of her own thrift and foresight in procuring private health insurance through PacifiCare. . . .Under California’s collateral source rule. . . Howell, as a person who has invested insurance premiums to assure her medical care, should receive the benefits of her thrift; Hamilton, as the party liable for Howell’s injuries should not garner the benefits of Howell’s providence. The law allows Howell to keep this collateral source benefit for herself because. . . she was responsible for the benefit by maintaining her own insurance. . . .”  (Id. at *24-*26)).

        Seemingly, this appellate court felt constrained to adhere to the rulings of the California Supreme Court which established the collateral source rule, rather than follow two other appellate court decisions. It noted that if this rule is to change, the legislature should make that change, not the appellate court:

      “We conclude that any further abrogation of the collateral source rule. . . is best left to legislative enactment rather than piecemeal common law development. . . . “(Id. at *36).

      No doubt this case will be appealed to the California Supreme Court as it conflicts with the decision of the First and Third Appellate Courts. But, in the meantime, it presents an interesting quandary as to what exactly is the proper measure of damages in instances where insurance is involved: is it the amount billed? Or the amount actually paid?

        Needless to say, it will make for an interesting mediation!

       . . . Just something to think about.

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