Fixed Pies and Third Place

In this week's New Yorker, James Surowiecki reminds us that "business is not a sporting event [and] victory for one company doesn't mean defeat for everyone else."

Surowiecki's article, In Praise of Third Place, concerns the fight for market dominance in the video-game industry.  

The players?  Microsoft's Xbox, Sony's Play-Station 3 and Nintendo's Wii.  

The takeaway? Good news for those of us who continually hector our fellows about collaborative problem-solving and the real social, political and environmental dangers of fixed pie thinking.

By not competiting for the number one video-game slot, Nintendo is "beating" its Goliath competitors.

[Nintendo] has five billion dollars in the bank from years of solid profits, and this past year . . . saw its stock price rise by sixty-five percent.  Sony's game division, by contrast, barely eked out a profit and Microsoft's reportedly lost money.

How could this happen to the Big Boys?  Surowiecki explains:

Markets today are so big -- the global video-game market is now close to thirty billion dollars -- that companies can profit even when they're not on top, as long as they aren't desperately trying to get there.

Want to perform like Nintendo?

The key is to play to your strengths while recognizing your limitations.  Nintendo knew that it could not compete with Microssoft and Sony in the quest to build the ultimate home-entertainment device.  So it decided, with the Wii, to play a different game entirely.  Some pundits are now speculating, ironically, that the simplicity of the Wii may make it a huge hit.

Here's a question for the evolutionary biologists -- of Life's Top Ten Greatest Inventions -- multicellularity, the eye, the brain, language, sex, photosynthesis, death, parisitism, superorganisms and symbiosis, how many arose from competition and how many from collaboration (or is the question itself too simplistic?)

Unhappy Lawyers and the Cooperative Hard Wire

Why are We Unhappy?

Maybe it's Because We're Hard Wired to Cooperate

By and large, we're liberal arts majors, right? Theater, film, literature, and art history people. Political scientists, philosophers and sociologists. We like mental puzzles. Not the teasers that undid most of us in math class. No, we like problems that require us to be good at analogies and story telling. To sharpen our Hardy Boys or Nancy Drew detective skills. We're good at figuring out who killed Colonel Mustard in the drawing room. We're born litigators.

And the fighting part? Most of us complain. But it's part of the job so we roll up our sleeves and throw our natural competitive spirit at it. Still, all that good feeling about solving the complicated antitrust problem usually comes to a grinding halt just about the time the opposing brief comes in. I'll admit it if no one else will. I wince when I read these responsive briefs. I mean, I sit at my desk shaking my head and looking at the damn thing sideways as if it would be easier to take if I snuck up on it slowly. Then I pray that they've cited the wrong case, failed to shepardize their most compelling authority, been guilty of the shamelessly misleading ellipsis.

When friends ask me what it is I do during the day if I’m not giving closing arguments to a jury every week like William Shatner does on Boston Legal, I explain it this way: Every morning when I get up, someone else is also preparing for their day. And those people will be dedicating a large part of that day to making me look bad. To finding my mistakes and undermining my opinions. To suggesting that I am -- or directly accusing me of being -- a liar.

"Gee," they respond, "that sounds terrible," before I go on to assure them that I actually enjoy winning and, hey! if you want to win, you've got to suck up a fair amount of losing. At which point they understandably walk away figuring I deserve my lot.

We're Hardwired to Cooperate

So I don't know if it's good news I have to share with you or not. For those pursuing a more cooperative or collaborative legal process, I hope the news is good. Here it is. Neuropsychiatrists who have been taking MRI images of their students' brains during collaboration have discovered that the act of cooperating with another person makes the brain light up with joy. 

Sources:  Emory Brain Imaging Studies Reveal Biological Basis for Human Cooperation; Gintis, Bowles, Boyd & Fahr, Explaning Altruistic Behavior in Humans (2003) 24 Evolution and Human Behavior 153;  Stevens & Hauser,  Why Be Nice?  Psychological Constraints on the Evolution of Cooperation, Trends in Cognitive Sciences;  

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When a Negotiated Resolution Appears Premature . . .

. . . understanding cognitive biases can help the parties settle 

I've recently helped several small businesses work out the termination or renewal of business ventures in response to accusations of fraud and the usurpation of corporate opportunities. Although none of these mediations has involved Fortune 500 companies, the owners faced potential losses in the hundreds of thousands to millions of dollars.

Because the money expended on lawyers and forensic accountants hits the bottom line of small businesses faster and harder than those spent by larger companies, critical decisions must often be made in the absence of verified accounting and factual information.

When it would cost tens to hundreds of thousands of dollars to conduct the discovery necessary to truly know your best alternative to a negotiated agreement, what negotiation tools might help your beleagured and embattled commercial clients?

First the Hypothetical

With names and facts altered to protect confidentiality, consider the recent negotiated settlement of a corporate dissolution and accounting action.

The owners, Tom Jones and Bob Smith have been profitably importing restaurant equipment from Hong Kong since the early '90s. In the year prior to litigation, their business -- RSI -- began to experience difficulty in acquiring the same quality goods in a similar price range as it had in earlier years. At the same time high quality goods became scarce, Jones entered into a business venture with a restaurant supply wholesaler selling equipment similar to that imported by RSI.  Smith had also entered a new business venture with a restaurant equipment retailer. 

You don't need to understand the illusory correlation bias to see the lawsuit coming. 

The Business Dissolution Litigation

Smith sues for RSI's dissolution and seeks an accounting, accusing Jones of various business torts.  Jones files a cross-complaint accusing Smith of diverting to his new retail business imports that would have gone to RSI. The RSI warehouse is currently filled with goods imported from an inferior secondary market. Smith claims RSI will be unable to sell these goods for a profit. Jones claims they can be sold for a $500,000 and $600,000 profit.

The parties schedule an early mediation in an effort to avoid crushing legal fees.

Mediator Intervention 

At the commencement of the mediation, each party tells the mediator that he is "absolutely certain" that his valuation of the mechanise is "right." 

How do the parties calculate their potential damages (to analyze their Best Alternative to a Negotiated Agreement) or value the worth of the business for mutual buy-out offers in the face of such wildly competing claims?

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Research on the Art of Negotiation

In a year 2000 article published in the Annual Review of Psychology, Harvard Business School Professor Kathleen L. Valley and Senior Research Fellow Max H. Bazerman, with colleagues Jared R. Curhan and Don A. Moore, synthesized negotiation studies to date, and pinpointed five emerging areas of thought.  

For the full article on this effort, see the Harvard Business School Working Knowledge article The Emerging Art of Negotiation

We provide only the executive summary here.  

1.     Preconceptions Count

"Almost everyone who walks into a negotiation," say the authors, "already holds a fairly strong preconception of how they expect it to go down. How such . . . 'mental models' actually control the outcome of a negotiation is one of the important new areas of investigation." 

Experiments have shown that the degree of cooperation among participants was affected far more by what the game was called—the "Community Game" or "Wall Street Game"—than by the individual dispositions of the participants. 

2.  Ethical  Behavior

Laboratory research on negotiation ethics is beginning to reveal the flexibility and ambiguity in "standards" applied by negotiation "players."  

Once again confirming what common sense tells us, researchers are finding that people see themselves as more ethical than the next person, but justify their own ethically questionable behavior as self-defense.

Hence the term "defense budget" as we wage a preemptive war against, well, not against Iraq exactly, but against the present chaos there.

 

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Bargaining Strength

Negotiators have much to learn from game theorists. In the book, Higgling: Transactors and Their Markets in the History of Economics, edited by Mary S. Morgan (Duke University Press: Durham 1994) contributor Robert J. Leonard, lists six factors that affect bargaining outcomes as follows:

1. General bargaining dispositions. Tough bargainers are dogmatic, possess a strong sense of themselves and have a highly competitive orientation in regard to personal strength.

2. Payoff system. A negotiator's willingness to make concessions is strongly influenced by what he believes to be the minimum or maximum necessary to provide him with any benefit of the bargain. Other "payoff system" factors include time pressure, the cost of no agreement, the threat capacity of one's bargaining partner and the size of payoffs.

3. Social relationship with the opponent. Not surprisingly, negotiators tend to be more cooperative when they have a friendly social relationship or when there are reasons to be concerned about the other's interests. This is why hostage negotiators always ask captors to take food orders from, and inquire about the medical needs of, their captives. Once the captors begin to take care of their victims, they begin to actually care about their charges.  

4.  Moral Appeals.  Research has proven that moral appeals result in greater concessions by the one from whom concessions are sought. The negotiator who suggests that certain concessions are necessary to satisfy his basic needs or expresses the belief that his negotiating partner will treat him fairly does better than the negotiator who does not appeal to moral considerations. This is an example of "trading power for sympathy," a bargaining tactic often referenced in Ken Cloke's writings.

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Connections

Now that we have one foot (ok, two) in the blogsophere, we'll "hip" you to interesting blogs we come across.  Below is an entry (verbatim) from Bruno Giussani's blog Lunch Over IP.  Our friend and colleague, the brilliant and masterful commercial arbitrator and mediator Deborah Rothman turned us on to Fast Company's 100 Next Best Blogs where we found Giussani.

Thanks Deborah.  For everything. 

Giussani is a business writer and author in Switzerland who blogs about connections among a wide variety of sources, from Marx to Formula One pit crews, to illustrate how consumer-generated content is challenging the old notions of media, as "a thin layer of structure is put on an expanding boiling pot of ideas." 

You'll need to click on the link below and then scroll down to view the great video of Quadir that is mentioned her.  

Iqbal Quadir and the real power of the cell phone

Iqbal Quadir is the founder of GrameenPhone, the company that -- with the help of microcredit pioneer and recent Nobel Peace Prize laureate Muhammad Yunus -- brought cellular telephony to rural Bangladesh, and which is now the country's largest operator. I've told his story in my book "Roam. Making Sense of the Wireless Internet", and invited him to speak at TEDGLOBAL last year in Oxford. Here is his newly released full TEDGLOBAL speech (16 minutes) in video, where he tells about living in a village as a kid and having to walk for hours to alert a doctor just to discover he wasn't there, and about a similar experience years later, working as a banker in New York, which brought him to realize that "connectivity is productivity". He also discusses the triple impact of bringing phones to villagers - mostly women: "it provides the woman with a business opportunity, it connects the whole village to the world, and it generates over time a culture of entrepreneurship which is key for any economic development". It's a great, inspiring story. 

Iqbal, who's now at MIT, is currently working on using a similar approach for dotting developing countries with local micro-generators for producing electricity.

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Mediation in a Blink

In his book Blink, Malcolm Gladwell uses the term "rapid cognition" in reference to what most of us think of as intuition. Gladwell avoids the "i" word because he does not want his readers thinking he's referring to emotional responses. Rapid cognition, he stresses, refers to our rational thoughts and impressions. Though one suspects that Gladwell steers clear of emotion so he won't be called a "girlie man," he does in fact have a more serious purpose in mind.

Gladwell explains:

I think that what goes on in that first two seconds [of thought] is perfectly rational. It's thinking -- its just thinking that moves a little faster and operates a little more mysteriously than the kind of deliberate, conscious decision-making that we usually associate with "thinking."

According to Gladwell, our rapid cognition often produces far better results than our painstaking analytic analyses of the vast amounts of information we professionals routinely gather.

Diagnosing Heart Attacks with "Incomplete" Information

To demonstrate his point, Gladwell tells the story of one hospital's attempt to encourage its physicians to use their RC in diagnosing heart attacks. The hospital instructed its entire staff of emergency room physicians to gather less information concerning their patients' condition before attempting to diagnose a heart attack.

This information-limiting scheme, allowed the doctors to zero in on just a few critical pieces of information -- like blood pressure and the EKG -- while ignoring everything else, like the patient's age and weight and medical history. 

The physicians resisted of course, because they were committed to the idea that more information is always better.   When forced to rely upon limited information however, the accuracy of diagnoses in the ER increased dramatically.  

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Rationalizing Numbers


I won $200 at Morongo recently, accompanying my husband to one of his law firm's business development events. I always think gambling (excuse me, gaming) outings are good for lawyers and business people -- the litigation risk- taking analogies being so plentiful.

The lesson from this trip, however, was not about sunk costs or risk aversion. It was about my own subjective experience of money.

"Don't worry," I was saying to Mr. Thrifty, as I pulled three twenties from my wallet to pay for an afternoon gourmet picnic in Griffith Park. "I'm paying for it with the casino's money."

Thrifty gently reminded me that this was the third time I'd spent my winnings --the first on that spa visit before I hit the gaming floor; the second on a few Crate and Barrel essentials we picked up at the outlet stores so conveniently located next to the hotel; and, the third for our picnic in the park. Actually, by the time we were collecting our food tickets, I'd also "spent" my unexpected windfall on the gift I'd planned to buy for my father's birthday the following week. 

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The Tip of the Ice Berg

INTEGRATIVE OR INTEREST-BASED BARGAINING IN CONSTRUCTION DEFECT LITIGATION

I had the great good fortune to study construction defect mediation recently with two masters of the trade,George Calkins and the Hon. Kevin W. Midlam (Ret.). These two know their way around a construction site; a courtroom; an insurance policy; the law; and, ways to manage and resolve complex construction litigation better than anyone I've ever met.

Though we didn't engage in much "mediator speak" at the seminar -- integrative bargaining and the like -- it's clear that you need to know what Calkins and Midlam have to teach if you want to explore anything other than the tip of the CD iceberg. I did, however, tell one interest-based negotiation story in class that piqued the curiosity of a few classmates. Because it illustrates the potential to reach the parties' interests when you don't know what a cripple wall is, I repeat it here.

I dropped by Judge X's courtroom not long ago as she and Mediator Y were helping the parties settle up with the last couple of subcontractors involved in a Southern California residential development. The sub and his attorney were served late in the case; substantial attorneys' fees had already been expended; and, and the sub's attorney had promised not only complete victory, but reimbursement of all attorneys' fees in the process.

Mediator Y had reached impasse and Judge X was on the bench. They thought they could get the contractor to cut the sub loose for a dismissal with mutual general releases. The sub and his attorney were resisting this generous offer. Since I'd dropped by, could I help?

Sitting in the Judge's chambers, the sub's attorney immediately launched into a tirade about the injustice of his client's having being dragged into the litigation; his planned strategy for victory at the upcoming trial and the reasons that victory would be capped by a successful malicious prosecution action. The sub himself seemed enthralled with his pit-bull counsel and all discussion about the merits of their position made both men dig their heels in deeper.

I'm not certain when I began to realize that the attorney's bravado signaled something closer to a plea for help than a cry to battle. The thought surely originated when I started asking questions about the likelihood of victory in hard percentages.

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The Power of Beauty

Nature gives you the face you have at 20; it is up to you to merit the face you have at 50. -- Coco Chanel

A local judge who has four beautiful young law students working for him this summer asks me how to deal with inappropriate attorney comments about their youth and beauty. For those men over 35 reading this column, young women lawyers do not appreciate being told they are young or beautiful in a professional setting. And they particularly dislike being called girls.

More important is the whole question of beauty -- what it is and what magic it can perform. For negotiation purposes, we ask whether attractive attorneys and their clients can get a better deal than their less attractive peers. At least some of the answers to that question can be found in Coco Chanel's famous comment about beauty quoted above. But first the research.

Beauty is a Powerful Tool of Persuasion

Assuming that the "hits" a quality-describing word elicits from a search engine indicate the relative importance the quality described, I googled "beauty" and "intelligence" this morning. Beauty edged out intelligence by only a slight margin -- garnering 697 million to the 652 million hits generated by intelligence. For what it's worth, people apparently aren't so interested in coupling these two qualities. Searching both beauty and intelligence offered up only 26 million hits.

Because the young women law clerks I spoke to last week assumed that men fascinated by their beauty would not respect their intelligence, this morning's blog should cheer them up.

The Research

In the early 1980's, social science researchers found that physically attractive people are not only considered more intelligent and competent than their less fetching peers, but are presumed more competent in fields completely unrelated to physical attractiveness -- such as piloting an airplane. Other research studies followed, showing that we also expect physically attractive men and women to be more trustworthy, reliable and charitable than their less attractive peers, as well as better educated, stronger, and wiser.

Studies on electoral habits have shown that attractive candidates receive as many as two and a half times the number of votes as unattractive candidates and that voters do not realize their bias. Whether this confirms or disproves the adage that politics is show business for ugly people is up to you.

The influence of beauty does not stop at the political choices we make. Our judicial process is also susceptible to the influences of body dimension and bone structure. Researchers have found that attractive male criminal defendants are twice as likely to avoid jail time as unattractive miscreants. The relative good looks of civil litigants also influences juries, which award twice the damages when plaintiff is better looking than the defendant and half the compensation when the defendant is more physically attractive than the plaintiff.

As Robert Cialdini wrote:

Good looking people enjoy an enormous social advantage in our culture. They are better liked, more persuasive, more frequently assisted, and seen as possessing more desirable personality traits and greater intellectual capacities. It appears that the social benefits of good looks begin to accumulate quite early. Research on elementary school children show that adults view aggressive acts as less naughty when performed by an attractive child and that teachers presume good-looking children to be more intelligent that their less attractive classmates.

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Conspiracy Theories and Granfalloons

 

Every seasoned trial lawyer knows that in the absence of critical information, juries simply make stuff up to fill in the gaps. They, and we, do this semi-consciously and reflexively.

Psychologists tell us that we are not only "meaning making" beings, but that we are all born conspiracy theorists. Viewing a field of nonsensical, unrelated data, we naturally begin to "connect the dots" - to organize the information into a coherent, and often compelling, narrative.

Pattern making or conspiracy theorizing is a human survival mechanism. We have never been the fastest or the biggest creatures on the planet. We don't have the sharpest teeth or blend in all that well with the scenery. Our soft, easily punctured skin is not covered with a protective shell. In a pinch, we can't take a running leap and fly away from land-bound carnivores who might make us their prey.

We are, however, the canniest creatures on the planet. To avoid the tiger who made lunch of our best comrade, we surveyed the scene and committed the pattern of otherwise unrelated details to memory. Five banyan trees, a narrow stream, and, a pile of rubble left by a recent avalanche means "there are tigers here."

Couple this with Fundamental Attribution Error ("FAE") and you have all of the ingredients necessary to blame inadvertently caused harm on elaborate conspiracies cooked up by our untrustworthy companions -- FAE being our universal tendency to over-emphasize the role of others' negative personality traits to explain why harm befell us.

So it is with our legal adversaries. Once the channels of communication have been severed by the filing of a lawsuit, attorneys and clients alike begin to make up "what really happened" based upon predispositions; scattered conversations; faulty memories; and, scraps of documentation.

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Loss Aversion

 

Negotiating with a Full Deck

As we all know, negotiating isn't like gambling, negotiating is gambling. All negotiations require the bargainers to evaluate the potential risks and likely benefits of any offered deal -- whether it be a million dollar demand to settle a lawsuit or a $20 offer to try out a new internet service. Since we can can never truly know the mind of another nor predict the future, we should, at a minimum, know our own propensities in regard to risk as well as our best alternatives to a negotiated agreement ("BATNA").

Recent Research on Loss Aversion

Fellow legal blogger, law professor and commercial litigator Michael Webster reports on the most recent research on loss aversion as follows:

Over at the Neuroeconomics blog, they ask are we bad forecasters of loss? In the economic literature, loss aversion is described as turning down risks or gambles with large chance of loss, but with a positive expected value. For example, consider wagering $50 on a bet that returns $200 30% of the time and 70% of the time nothing. Even though the bet has an expected value of $60, which is greater than $50, most people will not play this bet. What is the basis for risk aversion?

Here is Neuroeconomics' conclusion:

Predications of emotional impact weigh heavily on decisions. In fact, people avoid risk even when faced with the prospect of large gain, predicting loss will hurt them much more than an equal gain will please them. If that is true, this phenomenon (termed loss aversion) is simply a rational product of accurate affective forecasting. Currently, research seems split on this question. Studies have indicated that loss induces more intense neural activity, indicating that our forecasting may be valid. However, behavioral economics generally proposes that we are bad forecasters, and studies show that we consistently overestimate the intensity of emotion from life tragedy.

In a new study, participants effectively minimized impact of loss after a game of luck using various coping mechanisms, such as dissonance reduction,self-affirmation, motivated reasoning, and positive illusions. Researchers found that "there was no evidence that losing actually had a greater emotional impact than winning," showing we are indeed poor loss forecasters".

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This is Your Brain on Neuroscience

Better Decision Making through Neurochemistry

OK, this is the stuff that makes me wish I had a science brain instead of a literature brain. Can you guys over at Decision Science News and the Neuroeconomics Blog please explain the firing of orbitofrontal cortex neurons or the dopaminergic system irregularities that account for science/math disabilities among literature majors and law school students while I compare and contrast semiotic decision science in Moby Dick with the new neuroeconomic historicism in Bleak House? You have twenty minutes. You may turn your papers over . . . . . . . . . . . . . . . . . . . . . . NOW!!

But seriously folks. The math/science/economics majors who stumbled their way into law school for reasons known only to their psychoanalysts (or here in California, their Kabbala teachers) shouldn't miss out on the new research being tracked daily by Steve Seletta, unsung summer research fellows like Nikki Sullivan, and Director Kevin McCabe along with their colleagues at the Center for the Study of NeuroeconomicsatGeorge Mason University.

It's heady stuff (no pun intended). Once in awhile I actually understand it and on fewer, but no less exciting occasions, I find it applicable to what we'll call negotiation "science" for 30 seconds so we can "teach the controversy" (could Darwinian natural selection theory explain the development of the rule against perpetuities or factual impossibility in criminal law? I don't think so!)

But don't stop there. Dan Goldstein at the London Business School, teaches and blogs about "Decision Science" in his capacity as Assistant Professor of Marketing. He's been mentioned by social, behavioral and cognitive science popularizer Malcolm Gladwell (Blink and The Tipping Point) so you know he must be easier to understand than the true scientists at George Mason U. And the photo on his web page is pretty cute.

But truly, I'm grateful to the cognitive, neuro- and decision science guys (and women) for giving me something to crack my head open over other than dark matter, black holes and string theory, all of which remain mysterious, but have the same strong pull on my randomly drifting attention as freeway accidents do for Southern California motorists. And you can never use particle physics to help explain your last business negotiation.

"What is the purpose of time," asked eminent physicist Stephen Hawking. "To keep everything from happening at once" he replied. This is what writers and scientists have in common. We all question first principles. It's not a perfect match but it's a start.

Bargaining Strength

 

Negotiators have much to learn from game theorists. In the book, Higgling: Transactors and Their Markets in the History of Economics, edited by Mary S. Morgan (Duke University Press: Durham 1994) contributor Robert J. Leonard, lists six factors that affect bargaining outcomes as follows:


1. General bargaining dispositions. Tough bargainers are dogmatic, possess a strong sense of themselves and have a highly competitive orientation in regard to personal strength.

2. Payoff system. A negotiator's willingness to make concessions is strongly influenced by what he believes to be the minimum or maximum necessary to provide him with any benefit of the bargain. Other "payoff system" factors include time pressure, the cost of no agreement, the threat capacity of one's bargaining partner and the size of payoffs.

3. Social relationship with the opponent. Not surprisingly, negotiators tend to be more cooperative when they have a friendly social relationship or when there are reasons to be concerned about the other's interests. This is why hostage negotiators always ask the captors to take food orders from their captives and determine whether any of them need medicine or other critical accomodations. Once the captors begin to take care of the needs of their victims, they are more cooperative with negotiators and begin to care about the well-being of the captives.

Research has proven that moral appeals result in greater concessions by the one from whom concessions are sought. The negotiator who suggests that certain concessions are necessary to satisfy his basic needs or expresses the belief that his negotiating partner will treat him fairly does better than the negotiator who does not appeal to moral considerations. This is an example of "trading power for sympathy," a bargaining tactic often referenced in Ken Cloke's writings.

4. Social relationship with significant others. Extremely significant to negotiators representing clients is the tendency of representatives to be more competitive than the parties whose interests are at stake. This higher degree of competitiveness is increased even further when the representative is being monitored by her client.

The mediator's injunction to "have all stakeholders present" is therefore a double edged sword. If you are reprsenting a client with extremely high aspirations, there is some wisdom in resisting the mediator's insistence that your clients be present because you are more likely to cut a better deal in their absence. On the other hand, as all mediators know, settlement itself is much less likely if the stakeholders are not there to balance their own interests (known and unknown to their representatives) in creating a deal that maximizes benefits for everyone.

5. Situational factors. I've never met a litigator who was not attuned to the benefits of the home court advantage. Nevertheless, if closing the deal is your goal, it may well be better to negotiate in neutral territory. Researchers have also found that colorful and pleasant surroundings induce cooperative behavior but may also reduce the sense of urgency of reaching agreement.

6. Bargaining strategy. This, of course, is its own discipline. The balance between cooperation and intransigence is the art of negotiation and is covered more extensively elsewhere.

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Why -- an Antatomy of Explanations


These are the words I never said
This is the path I'll never tread
This is the fear
This is the dread
These are the contents of my head
And these are the years that we have spent
And this is what they represent
And this is how I feel
Do you know how I feel ?
'cause i don't think you know how I feel
I don't think you know what I feel
I don't think you know what I feel
You don't know what I feel.

-- Annie Lenox, Why, from Diva

(see also You Just Don't Understand -- Men and Women in Conversation by Deborah Tannen)

We are once again indebted to New Yorker writer Malcolm Gladwell for making social science research useful. In his April 10, 2006 article on Columbia University Professor Charles Tilly's book "Why," Gladwell explains the sociologist's "anatomy of explanations."

Why should negotiators care? Because explaining why our bargaining partners should settle instead of litigate requires persuasive story-telling -- a compelling account of our business requirements and capabilities -- a reason why what we want is fair and reasonable, even just.

Types of Reasons

Professor Tilly has created four reason-giving categories:

Conventions: These are the rules your mother and grade school teachers taught you. Don't be a tattle tale. Share with your sister. Don't whine. Say thank you to the nice man for giving you an extra dollop of ice cream.

Stories: This is what we attorneys do for a living. Tell stories, read stories, make up stories, listen to stories. Then we compare one story (Mrs. Palsgraf was waiting for a train when a man holding a box of firecrackers stumbled out the door and then) with another story (the sherriff stopped Mr. Green on Highway 50 but let him continue driving even though Mr. Green was clearly drunk and then he passed a truck on a narrow road and then ).

Codes: These are "high-level" conventions -- the formulas that invoke procedural rules and categories. The judge and jury apply codes such as "oral agreements can't transfer real property" to the Plaintiff's story about her landlord's promise to extend her lease for a year.

Technical Accounts: These are stories informed by specialized knowledge and authority. They're the stories your expert witnesses tell.

Talking Past One Another

Anyone who's spent even a few weeks in law school knows these categories. So why are we bothering with them here? Because, according to Tilly, reason giving is most effective when we "match" the kind of reason we give to the particular role we are playing when the reason is necessary. If one person is giving a technical account and the other a story, for instance, the chances are remote that they will ever begin to understand, let alone agree with, one another.

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