Negotiation Law Blog

Even the Evangelical-Pie-Expanding-Negotiation-Collective (which awards this week's Exploding Pie Trophy to Diane Levin's Brilliant Post on the Inefficiencies of Trickery, Force and Persuasion) occasionally needs to resort to deception, influence and naked power plays.

So it is that we turn to Robert B. Cialdini's Six Rules of Influence that Could Make or Break Your Next Commercial Negotiation. 

Rule of Reciprocity

The rule of reciprocity is descriptive rather than prescriptive. When one person freely gives another something of value -- time, information, goods, or, in negotiations, concessions -- the receiving party inevitably feels an obligation to reciprocate.

Studies show, for instance, that the peppermint candy your waiter leaves with the check for dinner, dramatically increases the tip you give him. The same principle is used by charitable institutions whenever they send you return address labels bearing logos for -- pick one -- Amnesty International; the Red Cross; Habitat for Humanity, the Union Rescue Mission, and the like.

If unaware of this principle, the recipient of unasked for "favors" can be induced to enter into drastically unequal exchanges. To rid ourselves of the discomfort arising from an unpaid debt, for instance, we often agree to a request for a substantially larger favor than the one bestowed upon us.

Included within this rule is the "rejection-then-retreat technique," which relies heavily on the pressure to reciprocate concessions. By starting with an extreme demand that is certain to be rejected, the negotiator can profitably retreat to a smaller request--one that was desired in the first instance.

No matter how outrageous the opening offer, the second request is far more likely to be accepted because it appears to be and is a tempting concession (so long as the opening "outrageous" offer doesn't cause the termination of the negotiations at the outset).

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III.VALUING THE INVALUABLE  

A great part of the mediator’s task is helping the parties value losses for which there is no common metric. The desire to quantify losses in a numeric fashion against a standard metric has resulted in the publication of hundreds, if not thousands, of academic articles attempting to further “standardize” the irrational process juries bring to the valuation task. [1]

Recently, a highly influential law review published an article suggesting that “lost welfare” or well-being value for the death of one’s spouse might be “rationally” calculated against a hypothetically constant monetary value that a widowed individual would be willing to pay (the “WTP”) to avoid a spouse’s loss of life. “Because studies show that married people are happier than unmarried people,” argued the authors  

and that this happiness is in part a result of emotional closeness and companionship . . . the difference between the happiness of a married person and a widowed person can be quantified using simple scales based on subjective assessments of one's emotional well-being. To [determine what a person would be willing to pay – the “WTP”] to avoid grief from a spouse's death, one would need to (1) determine the average length of time that the grief persists (for example, until remarriage); (2) find an equivalent happiness difference in an area of life that has been reliably monetized (for example, WTP to avoid disease or depression);   (3) convert this difference into annual units; and (4) multiply (1) by (3). [Because married people] ha[ve] a level of self-reported happiness equivalent to that felt by a widowed person who receives an extra $100,000 per year . . . , [i]f the average number of years before remarriage or the "natural" termination of the original marriage (from divorce, or normal mortality) is, say, five years, then the . . . loss [of well-being for the surviving spouse] is equivalent to about $500,000.” 

Though the article at issue represents a laudable attempt to formalize and standardize a jury’s tendency to operate without any real guidance, the suggestion is an attempt to prevent the jury from doing that which only it can effectively do

1. act as a collective conscience and “gut feeling;” and,
2. weigh the nearly infinite number of variables pertinent to the valuation of loss and punishment for breaches of the minimal standards of care we expect in our civil relations with one another. 

Among the variables a jury will bring to bear on its decision to recompense plaintiffs for their injuries are the credibility of the parties (and their counsel); the coherence and appeal (believability) of the conflicting “stories” told by the parties ^[2]; the apparent balance or imbalance of power between the parties (i.e., the relative responsibility of all parties to the dispute); the type of social ill being addressed; the severity of the harm caused; the historical context in which the injury occurred and, the moral or political issues highlighted by the dispute.

  Once the opening legal skirmishes among counsel have been completed and the case is ready to be settled or tried, every “irrelevant” detail that has been stripped from the parties’ lived experience, must be put back into place. It must be given life again; made three-dimensional and its causes multi-determined, displayed in all of its particularity, texture, subtlety, nuance and drama. 

Recognize this?  

No, not the money shirt.

The single issue monetized shuttle no intake lawyer controlled mediation.

A  friend and LL.M. candidate at the Straus Institute, Monique McKay passes along law professor John Wade's term for a negotiation process most lawyers all know too well.  

Anyone interested can find an excellent article by Professor Wade discussing the SIMSNILCM process and its alternatives  here . 

The Supreme Court has defined the issue before it in Simmons v. Ghaderi after its December 20, 2006, grant of review as follows:   

This case presents the following issue: In an action to determine whether a valid oral settlement agreement was formed during mediation, was one party estopped to claim confidentiality for the mediation proceedings (Evid. Code, sections 1115-1124) because she had voluntarily declared the facts to be true, stipulated that she did not dispute them, submitted evidence of them, and litigated their effect for more than a year?

Hat tip to our favorite Neuroscience-for- Dummies blog -- Neuromarketing -- for directing us to Time Magazine's recent article on the intersection of marketing and neuroscience.  

(N.B.  There's a permanent link to Neuromarketing in our own left-hand column if you'd like to follow these developments yourself).

Time's article Marketing to Your Mind, tells us about P. Reed Montague's work on the way trust, altruism and feelings of obligation  can divert and modify the steps we ordinarily take to make decisions.  

Of the speed with which neuroscientists are increasing our knowledge of how and why we think the way we do, Montague is quoted as saying,  

The capacity to use brain responses and relate them to behavior has accelerated at a breathtaking pace over the past four years and yielded an incredible amount of information.

That's exciting news for the Negotiation Law Blog because "being inside the other guy's decision cycle" (Colin Powell) is the best way to maximize your negotiating advantage.  

As the simplistic chart above confirms, most of us already know what questions to ask about our negotiating partner before and during any bargaining session.  To whom does he report; what is his personal stake in the outcome; why does he (or his organization) need the advantages he's angling to obtain; what damage to his personal/professional interests or his organization's well-being would be done by walking away from the bargaining table; under what time and other pressures are he and his business operating, who are the true "stakeholders," both internal and external, and the like.  

(Remember -- google everyone and search every public source of information on your bargaining partner and her organization before any negotiations begin).  

Adding to these largely business considerations, an understanding the way all people tend to make decisions could well be the difference between negotiation success and failure.  That's why your Negotiation Blog follows developments in neuroscience and evolutionary biology so closely.  So you won't have to.

Look for our next post on the way  Dr. Montague's insights can assist you in closing your next deal.   

Jan 18 (Reuters) - The United States has invited the quartet of Middle East peace negotiators to meet in Washington on Feb. 2, boosting efforts for wider international involvement in the stalled peace process between Israelis and Palestinians.

For the chronology, click here. and click here for update on prisoner exchange.

Mock Trials and Diverse Teams

I judged a collegiate mock trial competition yesterday at the Anderson School of Management,  UCLA.  

I had the great good pleasure of watching Berkeley's and UCLA's teams mix it up -- both astonishingly talented and UCLA's a recent National Champion.  

I'm hoping that these talented students' rhetorical, critical thinking, performing arts and persuasion skills will be put to beneficial use in a future with fewer and fewer actual trials for anyone to try.  

Not only were these young people ridiculously impressive, each team was a self-selected meritocracy blind to gender, race, and nationality in all ways other than personal style -- which is what trial advocacy is all about -- style.  

Of course we have monumental civil rights advocate, Martin Luther King, Jr. largely to thank for this.  The man whose holiday it is today.

We Have Much Work to Do

I know there's much work to do, particularly since I mediate, from time to time, employment discrimination cases.  We shouldn't forget the distance we have travelled nor rest on some presumed laurels for our efforts.  

As late as the early nineties, Columbia Law School Professor Patricia J. Williams in her groundbreaking legal memoir The Alchemy of Race and Rights had this to say about the impetus for her book.  

I don't know how to find something to write about in the panic of this deadly world.  There is more in the news than even my depression can consume.  Then I see it.  A concise, modular, yet totally engaging item on the MacNeil/Lehrer News Hour: Harvard Law School cannot find one black woman on the entire planet who is good enough to teach there, because we're all too stupid.  (Well, that's not precisely what was said.  It was more like they couldn't find anyone smart enough.  To be fair, what Associate Dean Louis Kaplow actually said was that Harvard would have to "lower its standards," which of course Harvard simply cannot do.)

"We have gone so far beyond that," I am thinking, before Professor Williams reminds me that I do not need to be race conscious because society doesn't define me by the color of my skin.  

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Since I'm using the cover of one of Julie Schumacher's great novels for this post, I'm linking to her web site here.  You can also find her bio and  more of her great books by clicking on the image itself.   If you're a creative writer, you might also think about sending your work to the r.kv.r.y. quarterly literary journal, for which I serve as Editor-in-Chief, website designer, manuscript reader and chief bottle washer.

Introductions over, welcome to memetag.

A memetag is the blogosphere's equivalent of a chain letter. It requires a blogger to request another blogger to post on a particular topic.  This memtag post is Five Things You Didn't Know About Me.  The tagged recipient must "tag" others to pass it along.

No dire warnings of misfortune or promises of great wealth accompany these requests.  They are their own reward.

This memetag comes from my blogging mentor, Diane Levin at the Online Guide to Mediation.  Diane asks.  I cannot say "no."

Five Things You Don't Know About Me MemeTag Post

I'm teaching an employment ADR course at the Straus Institute, Pepperdine University School of Law this semester with master employment mediator Stefan Mason.  One of the class assignments is to write regular self-reflective journal entries on employment issues.  

I am journaling along with my students on the class ADR blog .  The linked One Page Identity Journal Assignment  requires the students to dig under the surface of their own experience and write about the way in which their identity is intertwined with their status as law students or lawyers, business people or teachers, writers, doctors, academics, etc. 

The journals are necessarily personal. I'm certain my entry includes at least five things you didn't know about me.

I tag Blaine Donais, Diana Skaggs,  and Paula Lowhon.

Bertolt Brecht once asked

what times are these

when a poem about trees

is almost a crime

because it contains silence

against so many outrages?

As America prepares to send 21,500 more young men and women into harm's way in Iraq, I am asking all Blawgers to observe at least one day of mourning this month over lives lost in Iraq.

In whatever way seems appropriate.

 (click on painting to see more narrative artwork by Jacob Lawrence)

Mediation to Correct the Epistemological Error in the Adversarial Legal Narrative

We tell ourselves stories in order to live, wrote novelist and essayist Joan Didion.

The princess is caged in the consulate. The man with the candy will lead the children into the sea. The naked woman on the ledge outside the window is a victim or an exhibitionist, and it would be "interesting" to know which. We tell ourselves that it makes a difference whether she is about to commit a mortal sin or is about to register a political protest or is about to be snatched back to the human condition by the fireman in priests clothing. We look for the sermon in the suicide, for the social or moral lesson in the murder of five. We interpret what we see, select the most workable of the multiple choices. We live entirely, especially if we are writers, by the imposition of a narrative line upon disparate images, by the "ideas" with which we have learned to freeze the shifting phantasmagoria which is our actual experience.

Joan Didion, The White Album

The Rat Litigation

The small man in the incongruously meticulous three-piece suit and skullcap is sitting behind an enormous desk strewn with files, photos, pleadings, paper-clips and crumpled Styrofoam coffee cups. There is even evidence of yesterday’s lunch or last night’s late snack – a Fiestaware salad plate smeared with the congealed remains of something unidentifiable.

Mr. Segal’s face reddens as he stabs his finger repeatedly into a yellow legal pad that carries his firm’s embossed name.

“They disrespected my niece,” he is repeating, his voice rising with each iteration. “She grew up in Budapest. She knows something about rats.” He is sputtering now, on the verge of losing the professional demeanor I am certain he values.

“And that fake Jew,” he snarls, “The Company’s lawyer. His client disrespected her and now they’re disrespecting me.”

It is nine o’clock on a warm Los Angeles morning and my business day has just begun. Mr. Segal’s Santa Monica law office has one of those unexpectedly magnificient ocean views – the kind that make you feel guilty about an unmerited grace. The counterpoint between ocean, swaying palms and joggers in brightly colored sweats on the Palisade and Mr. Segal’s claustrophobic office is unsettling.

Open boxes spill out exhibits from his last trial and colorful graphic boards lean against the wall. He has already explained the trial victory these graphics helped him achieve – one of numerous injustices rectified by a Los Angeles Superior Court jury.

The Adversarial Legal Narrative

I used to be in the business of telling these stories myself – pushing the square pegs of my clients’ actual experiences – the shifting phantasmagoria – into the round holes of the pre-determined American legal conflict narrative. Duty, breach, proximate cause, damage. Now, as a mediator, I listen for character and plot, theme and moral, reliable and unreliable narrators, and, most importantly, character.

Writers have long known that we impose narrative lines on our often random experience. Told with hope, these stories weave nets to catch us when we fall; braid ropes to throw out our prison windows; forge keys to unlock the doors that separate us one from another.

Fake Jew. The raw emotion of this epithet startles me, though it doesn’t surprise me. I’ve met with Mr. Segal, counsel for his Eastern European niece, once before. We exchanged pleasantries about the neighborhood in which we both live – one with a large Orthodox and Ultra-Orthodox population. He knows my husband is Jewish and that I am not. According to Mr. Segal, “with all due respect,” I and those of my cross-marrying kind will eventually be responsible for the destruction of world Jewry. I’m easy-going on this topic and have not taken offense.

Meta and Master Narratives

With Mr. Segal's "fake Jew" accusation, I've hit mediation pay dirt. He'd already alerted me to the “meta” or “master” narrative that might have transmogrified this small claims case into a hotly contested Superior Court action. A narrative of a community splintered and in danger of destruction.  This additional comment reminded me of just how important this interest was.

The “meta” or “master” narrative is the national and religious story that shapes the way we think and live. It acts as a lens through which the “dominant” culture perceives itself and in opposition to which ethnic, religious and other sub-cultures are defined.

Social psychologists tell us that we all make use of this cultural stock of stories. In novel situations, we browse more or less consciously through them to find one or more narratives that fit -- or can be adjusted to fit -- our own experience.

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Over at Harvard Business School Working Knowledge (one of our favorite resources for what's new in negotiation studies), Jim Heskett, the Baker Foundation Professor at Harvard Business School, heralds the arrival of an avalanche of materials in neuroscience in Neuro Economics: Science or Science Fiction? 

We post a brief excerpt here, but recommend reading the entire article by clicking on the link above. 

Among the propositions advanced from this work thus far, for example, are that risk and return are assessed in different parts of the brain, thereby questioning theories regarding expected utility on which a great deal of decision theory has been based up to now. Thus, according to this research, different qualities of, say, investment decisions are made when perceptions of risk or greed (return) prevail in terms of heightened brain activity.

Another line of work involves the study of the best locus in the brain, conscious or subconscious, for making various decisions. For example, it is thought that more complex decisions involving hard-to-quantify factors are best made in the subconscious after some amount of preparation. That is, study the problem, sleep on it, and decide without further analysis. It's the type of decision making described by Malcolm Gladwell in his book, Blink.

According to this line of thinking, questions involving more quantifiable, straightforward considerations are best answered in the conscious portion of the brain, presumably after considerable conscious thought. Work in neuro marketing at Ludwig-Maximilians University in Munich now claims that strong brands create more excitement in decision-influencing areas of the brain than weak brands, even for mundane products.

Does this influence purchase decisions? Stay tuned.

For more on this topic, see Free Will:  Now You Have It, Now You Don't by Dennis Overbye from the New York Times.

A beautiful thing is happening in India and Pakistan. The children of both nations are writing heartfelt letters to one another in an effort to build lasting bridges of friendship. This effort is being run by a group called Friends Without Borders.

The hope is that when this younger generation grows up, a much saner world will take over. This video captures the story of this campaign up to the point of delivery of the first round of letters in Pakistan.

It's an amazing story that features "The World's Largest Love Letter" and the famous public service announcement that played on most every network throughout India and Pakistan.

This is a Video of the Peer Mediation Invitational held at the Ninth Circuit Court of Appeals (the extraordinary Justice Dorothy Nelson -- who appears in the video -- Justice presiding) and the Western Justice Center next door in Pasadena, California.

I've participated as "coach" at this invitational and it is quite extraordinary to see these young people do what adults (including lawyers and business people) were never taught to do -- follow the mediation "procedure" to resolve conflict.  Create hope and safety; communicate; listen; reflect the disputants' conflict back to them in their own terms; distinguish the parties interests -- what they want or fear -- from their positions -- why they're right -- develop options for mutual gain; evaluate potential solutions; strive for closure, resolve.  

It's an amazing experience.  If you're looking for a new community activity in which to devote your passion for peace, you couldn't do much better than becoming involved in (or helping support) the Western Justice Center.

After all -- think of what this generation will have to communicate about and resolve -- global warming; diminishing fuel resources; and, major shifts in geo-political power structures.  Let's give them the tools they need to find a way out of the mess their parents' and grandparents' technology created. 

Mediation is one of the few human technologies that has any possible chance of meeting these challenges successfully.

The California Court of Appeal for the Fourth District held in Jeld-Wen v. Superior Court today that parties may not be ordered to attend and pay for the private mediation of complex litigation.

After a thorough review of the law applicable to the appointment (and pay) of referees for the purpose of settlement conferences and discovery disputes, the Fourth District held

While trial courts may try to cajole the parties in complex actions into stipulating to private mediation (see Super. Ct. San Diego County, Local Rules, rule 2.3.7), they cannot be forced or coerced over the threat of sanctions into attending and paying for private mediation as this is antithetical to the entire concept of mediation. In any event, we suspect that in a large majority of complex cases most parties will agree to private mediation; as such, we foresee no apocalyptic consequences from this decision.

The case is worth reading for its coverage of the differences between mandatory settlement conferences and mediation, as well as the scope of the Court's authority to require the parties to pay a retired judge or mediator for the proceedings.

That's the Fuller Brush Man and if you're old enough to recognize him, it's time to quit practice and go on the bench or start mediating (or, if you've been very very very good, retire) 

My dad was a milkman before he began selling life insurance door-to-door in the late fifties and early sixties.  If he didn't make a sale, he didn't get paid.  Door-to-door.  Taking home a draw against future commissions. 

That takes, well, as Alec Baldwin says in David Mamet's Glengarry Glen Ross -- brass balls.

So I market.  Selling is for people who are made of tougher stuff than I am.

This, however, IS AN ADVERTISEMENT for my Negotiation Seminar. 

Dad would say "that's not selling" since I give this seminar away for free with MCLE credits.      

He asks me why I do this with the same perplexed look on his face that my mother has when I tell her one of my poems was published.  "That's nice," she says, before asking again, "who reads poetry, honey?" and I repeat, "just other poets mom, just other poets."

But I digress.  

I give this seminar away for free because it gets me work. 

Most lawyers need to experience what I can do for them before they'll hire me.  Without this seminar, the pro bono work I do, and a growing circle of people who recommend me to their colleagues, I'm just another retired lawyer who took up mediation (as a hobby some wonder) after a couple of decades of practice.  (and no, it's not a hobby).  

There are some decent kudos on the linked page about just how great the seminar is, but you really have to experience it yourself. 

Did I mention that it's free? 

And if you really really want, there are a couple of sitting judges who like talking to the people whose cases they sit in judgment on day after day.  Two of these seminars were made to go with Judges.  Because I know how much you like it when they come along.

Doesn't that sound like a good deal for the new year?

If I could, I'd bring along some of these Fuller Brush letter openers & everyone over 50 could get all nostalgic but all I have are a bunch of Dad's old Prudential "salesman of the month" lapel pins and I wouldn't part with them for anything in the world!