Negotiating With Fallible Memories: Buyer Beware

When it comes to relying on our memories in negotiation, the cautionary tale is buyer beware! Once again, another study has been published demonstrating that our memories are quite fallible. They are simply not nearly as reliable as we think they are, and consequently, we should not rely on them in the courtroom (or in everyday life, for that matter.) ( See, “The Neuroscience of Memory: Implications for the Courtroom” by Lacy, J. W. and Stark, C. E., Nature Reviews, Neuroscience (August 2013)).

In a blog discussing new research, entitled, Debunking Denialism (http://debunkingdenialism.com/2013/08/28/neuroscience-memory-and-the-courtroom/), Emil Karlsson explains that our memory is NOT like a video camera: it simply does not record and store perfectly everything that happens to us, to be retrieved at a later date. Further, there is not much of a correlation between the accuracy of a memory and our confidence about it. That is, we can be very confident about a very inaccurate memory! And, as the article explains, hypnosis does not really help to recall memories accurately.

Unfortunately, the above summary applies not only to the general public but to those in law enforcement as well; both groups are about as equally ignorant on how the memory actually works.

So, how does the memory work, and in turn, get distorted? The author explains:

Post-identification feedback: memory confidence tends to increase if exposed to positive feedback by law enforcement personnel after the identification or decrease if exposed to negative feedback. Because they are often perceived as authorities, their feedback is taken into account by eyewitnesses in making an estimate of accuracy. This kind of effect can occur even if the post-identification feedback is non-verbal e. g. facial expression and body language if the person conducting the line-up is not blinded to who the police suspects for the crime. Even repeated questioning can increase the confidence in the accuracy of a memory.

Misinformation effect: distortions of memory can occur after being exposed to misleading information about that memory. Just subtle variations in the wording of a question (e. g. “smashed” versus “hit” related to a car crash) can cause memory distortions, not just about the speed at impact, but also about peripheral details of the scene, such as presence of broken glass.

Passage of time: memories can be distorted by merely the passing of time. The classic study demonstrating this asked people were when they first heard about the events of 9/11. Years later, when asked again, around 40% of people had different memories of the situation. In line with previous research showing a weak correlation between confidence and accuracy, the confidence of the study participants was still high.

Filling in the gap: people have a tendency to fill in the gaps i. e. remembering details that did not actually occur, but fits the general expectations of a certain crime situations.

Leading questions: something similar occurs when lawyers ask leading questions. The information provided by the lawyer can bleed over into becoming a memory of what was said by the eyewitness testimony. This effect still occurs even when jurors are told to focus on what the eyewitness is saying and not the lawyer. (Id.)

As Mr. Karlsson further explains, a memory is either strengthened or weakened depending upon the strength of the signal between two neurons. When the certain neurons at issue that are wired together do NOT fire together, the synapse is weakened, leading to a weak memory. And, if the memory is not updated through reconsolidation, it is weakened, if not distorted. And, during this process, old memories and new memories can interfere with each other.

So… what to do? Write the events down when they happen and are fresh in your memory so that you can later rely on your writings and not on your memory. And, in any negotiation – be skeptical of your memory and of your confidence that it is accurate.

…. Just something to think about.

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By |2017-05-13T07:30:36+00:00October 4th, 2013|Negotiating|Comments Off on Negotiating With Fallible Memories: Buyer Beware

About the Author:

Phyllis Pollack
Phyllis G. Pollack, Esq. the principal of PGP Mediation (www.pgpmediation.com), has been a mediator in Los Angeles, California since 2000. She has conducted over 1700 mediations. As an attorney with more than 35 years experience, she utilizes her diverse background to resolve business, commercial, international trade, real estate, employment and lemon law disputes at both the state and federal trial and state appellate court levels. Currently, she is the in­coming chair of State Bar of California’s ADR Committee. She has served on the board of the California Dispute Resolution Council (CDRC) (2012­2013), is a past president and past treasurer of the SCMA Education Foundation (2011­2013) and a past president (2010) of the Southern California Mediation Association (SCMA). Ms. Pollack received her BA degree in sociology in 1973 from Newcomb College of Tulane University and her JD degree from Tulane University School of Law in 1977. She is an active member of both the Louisiana and California bars. Pollack believes that it is never too late to mediate a dispute and recommends mediation over litigation as it allows the parties to decide their own solutions.