Southern California Arbitration Mediation and Conflict Resolution : Settle it Now Dispute Resolution Services : Serving Los Angeles, Beverly Hills, Century City : Settle It Now Negotiation Blog

Today's New York Times (Questions of Rent Tactics by Private Equity) reports that investment firms have been purchasing New York City rental properties for the avowed purpose of "turning over 20 percent to 30 percent of the units, five times the typical vacancy rate," to upgrade the rentals up and out of rent regulation, generating tens of millions of dollars of income for the investors.    

Tenants are complaining that the investment firms' tactics to "turn over" those units (i.e., evict low-income residents from their homes) are not only ruthless, but fraudulent as well.  See the full article here.

So what's the little guy to do when BigBusiness decides to set aside ethics to maximize profit?  What individuals have always done when their survival is threatened.  Organize.  According to John Medina, author of Brain Rules, there's more than one way to be the fittest survivor and collaboration has always been our species' strategy.  

"Suppose you are not the biggest person on the block," Medina writes,

but you have thousands of years to become one.  What do you do?  If you are an animal, the most straightforward approach is becoming physically bigger, like the alpha male in a dog pack, with selection favoring muscle and bone.  But there is another way to double your biomass.  It's not by creating a body, but by creating an ally.  If you could establish cooperative agreements with some of your neighbors, you could double your power even if you did not personally double your strength. 

Trying to fight off a woolly mammoth?  Alone, and the fight might look like Bambi vs. Godzilla.  Two or three of you, however, coordinating your behaviors and establishing the concept of 'teamwork,' and you present a formidable challenge:  You can figure out how to compel the mammoth to tumble over a cliff.  There is ample evidence that his is exactly what we did

Locating and deploying likely allies is not only good sense when the individual has no bargaining power -- like NYC's low-income tenants -- it's also an extremely savvy move for business negotiators.  As Lax and Sebenius explain in their ground-breaking book 3-D Negotiation

[w]here one-dimensional negotiators mainly focus on actions at the table, [the] third dimension, “setup,” extends to actions away from the table that shape and re-shape the situation to advantage. In deal after deal we’ve seen the same result: once the parties and issues are fixed, and once the negotiating table has otherwise been set, much of the game has already been played.

Therefore, before even showing up at the conference room, 3-D Negotiators take the initiative. They act away from the table to set up the most promising possible situation, ready for tactical interplay. This means ensuring that the right parties have been approached, in the right sequence, to deal with the right issues, that engage the right set of interests, at the right table or tables, at the right time, under the right expectations, and facing the right consequences of walking away if there is no deal.

If the setup at the table isn’t promising, this calls for moves to re-set it more favorably. As we’ll show you, a superior setup plus the right tactics can yield remarkable results that would be unattainable by purely tactical means, however skillful.

See the 3-D Negotiation strategy summarized in the online introduction here.

You don't need to grow larger, richer, stronger or even smarter to gain a bargaining advantage.  If you find the right allies, before you know it, you'll be roasting that woolly mammoth over charcoal briquettes in your own backyard.   

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Thanks to Anne Reed over at Deliberations for forwarding this April 22 Psychology NewsWire, It Pays to Know Your Opponent: Success in Negotiations Improved by Perspective-Taking, But Limited by Empathy.

It Pays refers to recent work done by Kellogg School of Management Professor Adam Galinsky, who has demonstrated (with colleagues William Maddux -- (INSEAD -- Debra Gilin -- St. Mary's U. --  and Judith White -- Dartmouth) that success in negotiations depends on focusing on the head and not the heart. In other words, it is better to take the perspective of negotiation opponents rather than to empathize with them. (You may remember Galinsky as the academic responsible for demonstrating that the person who makes the first offer will (nearly) always get the larger share of the delta between the two parties' "bottom lines."  See Making the First Offer here). 

Now Galinksy and friends inform us that we are far more likely to reach a negotiated resolution to a conflict if we use our heads rather than our hearts.  As It Pays reports:  

Perspective-taking, according to the study published in the April 2008 issue of Psychological Science, a publication of the Association for Psychological Science, involves understanding and anticipating an opponent's interests, thoughts, and likely behaviors, whereas empathy focuses mostly on sympathy and compassion for another.

"Perspective takers are able to step outside the constraints of their own immediate, biased frames of reference," wrote the authors. "Empathy, however, leads individuals to violate norms of equity and equality and to provide preferential treatments."

The researchers performed a total of three studies designed to assess the relationship between successful negotiations and perspective-taking and empathy tendencies. In two of the studies, the participants negotiated the sale of a gas station where a deal based solely on price was impossible: the seller's asking price was higher than the buyer's limit. However, both parties' underlying interests were compatible, and so creative deals were possible. In the first study, those participants who scored highly on the perspective-taking portion of a personality inventory were more likely to successfully reach a deal. In contrast, higher scores on empathy led dyads to be less successful at reaching a creative deal. 

Why Enlightened Self-Interest Trumps Sympathy

Just when you were about to stereotype "negotiated resolutions" as commie-pinko limp-wristed new age aquarian left-of-liberal kum-by-ya marshmellow toaster solutions to the problems of (excuse me fellas) real men -- along comes new research once again demonstrating that negotiation requires hard heads rather than soft hearts. 

Why?

Because our competitive natures ("I need my stuff to survive") will almost always trump our collaborative inclinations ("we need each other to survive").  If this weren't so, the world wouldn't be divided into its current "pie pieces" -- the first, second and third worlds for instance.  

More particularly, because distributive non-interest based bargaining is all about getting "our share" of a fixed pie while interest-based or integrative negotiations require the parties to:  (1) learn about and attempt to satisfy their bargaining partners' often non-apparent needs and desires; and, (2) to collaborate in an effort to find ways to satisfy those needs and desires in novel and creative ways, reaching an integrative agreement becomes much more likely than reaching a purely distributive one. 

Why?

Because the integrative deal will -- by its very nature -- serve more of both parties' interests than would its distributive counter-part.  

Perspective-Taking, Sympathy and Foreclosure

I don't know my neighbors well.  They have a small family with very young children and keep pretty much to themselves.  I understand from the local grapevine, however, that they're selling their house because one of them lost their job and they can't make the mortgage payments.   

If we lived in another country or if the neighborhood belonged to certain religious sects that make it their business to take care of their own, we might all come together to help the neighbors save their house.  But we don't.

We have and express a lot of sympathy when we discuss our neighbors' plight.  "Must be hard for the kids," we say, "and the parents have worked so hard to improve the property.  It would be a shame if they lost their equity."

Our sympathy, however, does not lead us to trump our self-interest (which includes simply "keeping to ourselves") in favor of the interests of the neighbors.

If, however, we learned that the neighbors were about to sell the house to a local fraternity, you can put easy money on the neighborhood mobilizing into action to find a solution.  And once the neighborhood starts looking for an affordable solution to a neighborhood problem, the chances that the interests of the distressed family and their (temporarily) better-off neighbors will intersect and that new resources will be brought to the table ("hey, George, I know a lawyer who specializes in these things" or a banker or a politician or a journalist for the L.A. Times) increase exponentially. 

Heck, instead of hiring lawyers to stop the sale to the fraternity, we might put together an emergency neighborhood loan-fund.   Or simply help find the unemployed neighbor a new job.  There are a lot of resources in my neighborhood.  And many good-hearted people.  But I'm afraid modern American folk-ways just don't allow for a neighborhood solution to one of its member's problems.  Until, that is, our own self-interests are threatened.

So it might seem counter-intuitive to say that mentally putting ourselves into another's shoes to ascertain their interests needs and desires (perspective-taking) is more likely to create a "deal" between people than simple sympathy. 

But we didn't survive as a species because we're particularly loving.  We survived as a species because its in our best interest -- our only interest -- to cooperate with one another. 

Or, quite simply, we die.

Which reminds me that it's Earth Day.  Make a contribution to the planet and our collective and individual survival as a species today by clicking on the image below!

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The ABA Section of Dispute Resolution Presents The 10th Annual Spring Conference Pacific Currents: Sound Perspectives on ADR

April 3-5, 2008

Pacific Currents: Sound Perspectives on ADR is the premiere conference in the world for dispute resolution professionals and lawyers engaged in dispute resolution processes. This conference offers some of the best ADR CLE in the country presented by diverse and experienced faculty. With over 90 CLE programs planned, you can fulfill all of your CLE requirements over the course of a few short days.

This year’s conference also offers many dynamic and engaging plenaries.

The opening plenary entitled Hot Topics in Arbitration: The Fair Arbitration Act, Hall Street, and More will discuss the most recent developments in arbitration law, including cases pending in the Supreme Court, as well as potential arbitration-related legislation.

Linda Babcock will present the Friday morning plenary: Women Don't Ask: Negotiation and the Gender Divide. Ms. Babcock will speak about the four-phase collaborative problem-solving approach to negotiation and how lawyers and mediators can use this approach to manage the reactions and emotions that may arise on both sides of a dispute.

ABA President William Neukom will deliver a keynote speech and Tom Stipanowich, Academic Director Straus Institute for Dispute Resolution and Professor of Law, Pepperdine University, will present at the Friday Luncheon.

Saturday offers The Language Conflict: How Aggression and Violence Inform the Way We Speak presented by Kenneth Cloke and Joan Goldsmith of the Center of Dispute Resolution. This skills-building plenary will examine strategies on how to turn hostile denunciations and debates into appreciative disagreements and dialogues. Don’t miss out! Register today to attend these exciting plenaries.

I'll be presenting a seminar on Intellectual Property Mediation with the Hon. John Wagner (Fed. Magistrate, Ret.) and Christine Byrd of Irell & Manella.   

To review the conference brochure click here.

Book your hotel today! The negotiated conference room rate ends soon. Contact the Sheraton Seattle Hotel & Towers at 1-800-325-3535 or register online and reference the ABA Section of Dispute Resolution 10th Annual Conference to receive the discounted conference rate of $189.

This discounted rate is available until March 4th or until the block has been filled.

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Listen, if corporate entities believed they couldn't overcome juror bias, they would never try a case.  How to accomplish that feat is the difficult task of every great trial attorney who represents a corporate defendant.  

Despite the research cited below, I do not suggest that plaintiffs' attorneys, as a matter of mediation strategy, suggest to corporate defendants that they will lose at trial because of juror bias.  Why?  Because it more or less enrages people, including corporate representatives, to be told that they must pay more money than they believe a case is worth because the system is unjust.     

Remember, fairness in the distribution of resources is more important to people than the absolute amount of resources distributed. 

The report on juror bias -- particularly so-called CSI juror bias -- below.  

The good news is that the bad news comes from one of the best jury consulting firms in town -- Jury Impact.  What's so good about that?  Jury Impact doesn't simply report bias, its people understand bias and are prepared to combat it.  Without consultants like Jury Impact's Chris St. Hilaire, however, a corporation's best alternative to trial may well be a reasonable settlement that serves its commercial rather than its justice interests.  

The Jury Impact report below:

In a question we’ve asked in several surveys, approximately 62% of prospective jurors say they would ignore the law in order to hold a corporation financially responsible, if they thought the individual was sympathetic.

While this is a general bias, among . . . “CSI jurors”  [those who watch crime/medical drama TV shows] it’s consistently worse. Approximately 72% of the “CSI ju­rors” said they would ignore the law and hold a corpora­tion responsible.

Why is this? A Hollywood producer recently gave us a pretty succinct and convincing explanation: “Look at the plotlines in these shows. Is the corporation ever the good guy? The jurors are using confirmation bias to build the storyline they want to believe…the one they’re familiar with.”

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I'm in the middle of reading two books, both of which should be on every mediator's night table -- Final Exam, A Surgeon's Reflections on Mortality by Pauline W. Chen and Faith-Based Reconciliation:  A Moral Vision that Transforms People and Society by Canon Brian Cox.

Why should a commercial mediator read these books?  For the same reason your business clients should -- they address the most important technology for making business effective and efficient -- do it yourself dispute resolution.

Maximizing Profit by Negotiating Peace

As my dear friend attorney-mediator Richard Millen says, "people don't have legal problems; only lawyers have legal problems; people have people problems."

I've adopted Richard's mantra for commercial litigation -- businesses don't have legal problems; businesses have business problems and most of those business problems are people problems. 

Organizing teams of people into efficient working groups -- whether it be your Board of Directors; your research scientists; your associate attorneys; your sales staff; or, your physicians -- is the greatest challenge of every business -- making inventing the cure for cancer look like child's play. 

We are a fractious, competitive, grudge-bearing, insecure, angry, difficult bunch.  And yet everything we have ever accomplished by way of creating civilization and insuring our own survival as a species has resulted from our ability to communicate with one another for the purpose of engaging in a team effort. 

As the author of The Brain Rules, John Medina has written of the course of evolutionary human events,

Suppose you are not the biggest person on the block, but you have thousands of years to become one.  What do you do?  If you are an animal, the most straightforward approach is becoming physically bigger, like the alpha male in a dog pack, with selection favoring muscle and bone.  But there is another way to double your biomass.  It's not be creating a body but by creating an ally.  If you could establish cooperative agreements with some of your neighbors, you could double your power even if you did not personally double your strength.  You could dominate the world.  Trying to fight off a woolly mammoth?  Alone, and the fight might look like Bambi vs. Godzilla.  Two or three of you however, coordinating your  behaviors and establishing the concept of teamwork, and you present a formidable challenge:  You can figure out how to compel the mammoth to tumble over a cliff.  There is ample evidence that this is exactly what we did.

Did I say I'm also in the middle of reading The Brain Rules and you should be too?

So, here's the thing.  I'm starting a new category on the negotiation blog -- Do It Yourself Dispute Resolution.  The next several posts are going to talk about what we need to understand to do that, jettisoning our attorneys for most of the business and people problems that end up in court so that we can reserve the attorneys to plan a better, more profitable future instead of fighting over the unprofitable past.

And the litigators?  There will always be matters of principle; new law; new problems; and, new conflicts to resolve that require the process of an adversarial proceeding.  I'm just looking to notch up your legal work a bit -- make it more interesting, satisfying and people-problem free.

Ready?  Let's roll!

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As you can imagine, I have a lot to say about the resolution of conflict -- and the negotiation of solutions -- where moral beliefs are implicated and non-negotiable.  Because I don't have time, I'm leaving you with the end of an excellent, must-read Sunday New York Times Magazine article by scholar Steven Pinker -- author of How the Mind Works -- entitled The Moral Instinct.

But in any conflict in which a meeting of the minds is not completely hopeless, a recognition that the other guy is acting from moral rather than venal reasons can be a first patch of common ground. One side can acknowledge the other’s concern for community or stability or fairness or dignity, even while arguing that some other value should trump it in that instance. With affirmative action, for example, the opponents can be seen as arguing from a sense of fairness, not racism, and the defenders can be seen as acting from a concern with community, not bureaucratic power. Liberals can ratify conservatives’ concern with families while noting that gay marriage is perfectly consistent with that concern.

The science of the moral sense also alerts us to ways in which our psychological makeup can get in the way of our arriving at the most defensible moral conclusions. The moral sense, we are learning, is as vulnerable to illusions as the other senses. It is apt to confuse morality per se with purity, status and conformity. It tends to reframe practical problems as moral crusades and thus see their solution in punitive aggression. It imposes taboos that make certain ideas indiscussible. And it has the nasty habit of always putting the self on the side of the angels.  .  .  . 

There are many [] issues for which we are too quick to hit the moralization button and look for villains rather than bug fixes. What should we do when a hospital patient is killed by a nurse who administers the wrong drug in a patient’s intravenous line? Should we make it easier to sue the hospital for damages? Or should we redesign the IV fittings so that it’s physically impossible to connect the wrong bottle to the line?

. . . . . . Our habit of moralizing problems, merging them with intuitions of purity and contamination, and resting content when we feel the right feelings, can get in the way of doing the right thing.

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(right:  is the key to settlement really money?)

This is the dialogue I often have when attorneys (and some mediators!) suggest to me that the settlement of litigation is "only" about money.

V[ickie]:   "Why do people seek out your services?"

A[ttorney]:  "Because [i.e.,] they've been ripped off or injured or sued; someone used their intellectual property without permission, interfered with their business; lied to them about the scope of the software license; refused to pay their covered claims . . . . etc. etc. etc."

V:  "But why did they seek you out?  Why do people hire lawyers?  Why do people turn to the justice system?  

A:  "Because they want justice?"

V:  "Yes!  they are looking for fairness; not money."

Still, the skeptics fix me with a suspicious eye and say, "well let's just see about that."

Listen, all too often the people who monetize justice -- who translate what is unfair into a monetary sum -- are the very people who seek me out to help them depress their clients' unrealistic monetary expectations.  Part of my business is to re-translate money back into fairness.

So it is always with pleasure that I point my readers to that which confirms my existing world-view (a cognitive bias that I will not resist this morning).

Take a look at yesterday's L.A. Times article, "Why People Believe Weird Things about Money" by Michael Shermer, author of The Mind of the Market:  Compassionate Apes, Competitive Humans, and Lessons from Evolutionary Economics. 

The executive summary?  It's not about money -- it's about fairness.  Excerpt below:

Consider one more experimental example to prove the point: the ultimatum game. You are given $100 to split between yourself and your game partner. Whatever division of the money you propose, if your partner accepts it, you each get to keep your share. If, however, your partner rejects it, neither of you gets any money.

How much should you offer? Why not suggest a $90-$10 split? If your game partner is a rational, self-interested money-maximizer -- the very embodiment of Homo economicus -- he isn't going to turn down a free 10 bucks, is he? He is. Research shows that proposals that offer much less than a $70-$30 split are usually rejected.

Why? Because they aren't fair. Says who? Says the moral emotion of "reciprocal altruism," which evolved over the Paleolithic eons to demand fairness on the part of our potential exchange partners. "I'll scratch your back if you'll scratch mine" only works if I know you will respond with something approaching parity. The moral sense of fairness is hard-wired into our brains and is an emotion shared by most people and primates tested for it, including people from non-Western cultures and those living close to how our Paleolithic ancestors lived.

When it comes to money, as in most other aspects of life, reason and rationality are trumped by emotions and feelings.

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Friend Diane Levin of the Online Guide to Mediation writes:

I think the question you raise here, requires a cognitive psychologist to answer. Having said that, I've seen this phenomenon [of the negotiation ending half way between the first two offers] myself. I suspect it's because the notion of "splitting the difference" or "meet me halfway" is so deeply ingrained in us.

Perhaps on some level this result "feels fair" to parties -- not surprising when even envious monkeys can spot a bum deal.

When the "Fair" Result Doesn't Result

However, I don't think it's fair to assume that this applies in all cases. I don't believe it holds true in mediations between an attorney and his/her client on one side and an unrepresented party on the other, when you're more likely to get out-of-the-ballpark initial demands from the unrepresented party (the "it's what my third cousin who's going to law school said I could get" phenomenon), or when either or both parties are unprepared to negotiate and have no objective criteria on which to base their dollar demands. Then the end result is wildly different from what you've described. And those are the cases that can break your heart.

For example, consider a not-so-untypical employment discrimination case between an unrepresented complainant and an employer with their lawyers. The complainant's first demand is $900,000 -- about $896,000 shy of what would have been a reasonable starting demand. The counteroffer is $500. The complainant's next move is to $50,000. The counteroffer is $750. In the next exchange of numbers, the complainant moves to $35,000, followed by a counteroffer of $900, which astonishingly settles the case.

Mathematical formulae are all very well, but they don't take into account all the variables that can come into play at the table. I've long stopped trying to predict what clients will do -- I just strap on my seatbelt and get ready for the ride.

I'm curious to hear what the experts on human behavior have to say on this. And I'm very much looking forward to the next installment in this series, Vickie.

THANKS DIANE!!  You can see Diane's thoughts on all things mediation at the Online Guide to Mediation.

 

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 Here's the power point for the first session of today's "Settle to Win" Seminar and the notes I used to give the talk. 

Because these materials are the basis for a speech and not the speech itself, they may be a bit confusing.  I'm providing them for those who attended the seminar.  If you didn't, please understand that not everything discussed appears in these materials.  

The entire day of speakers (a pretty high powered group) will soon be available in audio from the Pincus CLE company here.

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(right:  wild monkey)

Catch the thorough and fascinating Law.com report on the Vioxx settlement here.

And yes, only a Plaintiffs' trial lawyer from New Orleans can get away with similes like that!

Settlement negotiations began last December and have proceeded fitfully since, reportedly spurred on by Fallon and other judges. The final stretch began Thursday morning at the New Orleans offices of Russ Herman, liaison counsel for the plaintiffs, and wrapped up Friday morning around 5 a.m.

Herman says the primary lawyers for the plaintiffs included Chris Seeger of Seeger Weiss, Birchfield of Beasley Allen, and Arnold Levin of Levin, Fishbein, Sedrad & Berma. Merck was represented by Doug Marvin of Williams & Connolly, John Beisner of O'Melveny & Myers, and Adam Hoeflich of Bartlitt Beck. "It was a true, hard-fought rough and tough negotiation on a very high, professional plane," Herman told Legal Times, ALM's Washington weekly.

(left:  football without the grease)

Herman says a general deal was struck 10 days ago. "But the devil's in the details and they can break down at any point," says Herman. "Nobody raised their voice. Or made threats. But people's positions were very hard. It was like each lawyer had a greased football and was running like a wild monkey."

 

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Deal Yourself a Winning Hand

November 13

Los Angeles

 

 (photo:  Four Aces by Ian Grainger)

Novice and seasoned litigators will learn to maximize the value of their litigation positions by learning winning settlement techniques from a panel of seasoned ADR experts.

Experienced mediators and Judges teach the latest settlement techniques, such as distributive (splitting the settlement “pie”) and integrative or interest-based (expanding the settlement “pie”) bargaining.

Topics also include the dynamics of conflict resolution, settlement best practices, negotiating techniques, settling complex and patent litigation cases, and international disputes. Don’t miss this chance to hear from those who truly know -- how you can best maximize your client’s settlement opportunities and outcomes.

Speakers:  Los Angeles Superior Court Judges Alexander Williams, III (full-time settlement Judge) and Victoria Chaney (Assistant Supervising Judge of the Complex Court); former Federal Magistrate John Leo Wagner (also at Judicate West), AAA Arbitrator, Mediator and Registered Patent Attorney Les J. Weinstein, and Straus Institute Professors and Judicate West Neutrals Jay McCauley and Victoria Pynchon.

For more of what you'll learn, click here.

Flyer and Order Form Here

Fees Individual: $349 per person
Group: $324 per person for 2 or more from the same company pre-registering at the same time.
Government employee/Non-Profit* Rate: $299
Students: $199 (current students only)

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Via Kottke.org, we are directed to Plants Can Tell Who's Who at naturenews.com.

plants grown alongside unrelated neighbours are more competitive than those growing with their siblings — ploughing more energy into growing roots when their neighbours don't share their genetic stock.

Plants 'know' more about their environment than they are often given credit for: they can sense the presence of neighbouring plants through changes in water or nutrients available to them or through chemical cues in the soil, and can adjust their own growth accordingly. "That plants have a secret social life is something well known to plant ecologists," says Dudley.

But the ability to recognize kin has not been demonstrated before.

For remainder of article, click here.

I suspect that just as we humans are hard-wired to both compete and cooperate (see Unhappy Lawyers and the Cooperative Hard-Wire) so are plants.  Because I don't know that, I ask any botanists within shouting distance to weigh in.

Collaborate, compete, protect, defend, balance, compete, collaborate. 

Ecclesiastes 3:1-8

 

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From time to time we take a look at social psychology and evolutionary biology because ADR practitioners must be good students and careful readers of predictable human behavior and ways to encourage change.

What better place to begin than with ourselves.  In this week's Blawg Review, Enrico Shaefer's Greatest American Lawyer gathers together the week's 411 on self-reported billing irregularities. 

I know this topic is compelling to lawyers because I've had more "hits" to the Bar & Grill Singers' "I'm Billing Time"  video (their song/my video) than for any other post.

Here it is again.  

On to disreputable billable hour violations . . . .

We're Hard Wired to Detect Cheating

In their article Evolutionary Psychology: A Primer, Leda Cosmides & John Tooby report on research finding that our reasoning abilities are more finely attuned to detect cheating than any other type of misbehavior.  Before discussing violations of social norms, Cosmide and Tooby explain the most fundamental norm in human behavior -- reciprocal altruism in social exchanges. 

The evolutionary analysis of social exchange parallels the economist's concept of trade. Sometimes known as "reciprocal altruism", social exchange is an "I'll scratch your back if you scratch mine" principle. . . [S]ocial exchange cannot evolve in a species or be stably sustained in a social group unless the [participant's] cognitive [abilities permit] a potential cooperator to detect individuals who cheat, so that they can be excluded from future interactions in which they would exploit cooperators.

Who are the cheaters?  Individuals who "accept[] a benefit without satisfying the requirements that  . . . [the] benefit  was made contingent upon."  You know, the people who earn a little extra by padding their billable time by two or three hours a week.  Benefit without satisfying its conditions.  Work for hire.

How Good Are We at Detecting Cheating?  Very, Very Good

The researchers designed an experiment to test whether we have a specialized "cognitive architecture" that permits us to detect "logical violations of conditional rules."  The result?  In response to a relatively simple logical problem-solving exercise designed to test this type of reasoning, Cosmides and Tooby found that fewer than 25% of subjects spontaneously detected the violation. 

What about our logical reasoning skills when it comes to detecting cheating or bluffing?  In these circumstances, we become very smart very fast.  The authors explain:

People who ordinarily cannot detect violations of if-then rules can do so easily and accurately when that violation represents cheating in a situation of social exchange . . . This is a situation in which one is entitled to a benefit only if one has fulfilled a requirement (e.g., "If you are to eat those cookies, then you must first fix your bed"; "If a man eats cassava root, then he must have a tattoo on his chest"; or, more generally, "If you take benefit B, then you must satisfy requirement R").

Cheating is accepting the benefit specified without satisfying the condition that provision of that benefit was made contingent upon (e.g., eating the cookies without having first fixed your bed).

When asked to look for violations of social contracts of this kind, the adaptively correct answer is immediately obvious to almost all subjects, who commonly experience a "pop out" effect.

Whenever the content of a problem asks subjects to look for cheaters in a social exchange -- even when the situation described is culturally unfamiliar and even bizarre -- subjects experience the problem as simple to solve, and their performance jumps dramatically.

In general, 65-80% of subjects get it right, the highest performance ever found for a task of this kind. 

No wonder we like to play Texas Hold'em.

And no wonder we get an uneasy feeling whenever we begin to sense that our opponent (or attorney!) is cheating us.  We just know it.

As I've often opined before, this is why the collective wisdom of juries as fact-finders will always trump panels of expert advisors.  They just know who's bluffing and who's not and they don't let a lot of legal or technical mumbo-jumbo interfere with their B.S. Detectors.  

Another Benefit of Getting Your Case Before a Mediator

After mediating full-time for three years, I realize it's not just how astute and perceptive I can be in reading people (there goes another of my own self-satisfied bubbles).  A mediator is simply in a unique position in an adversarial system.  We get to use our hard-wired bluffing skill because everyone talks to us more or less openly for several hours, which is longer than we really need to get a sense of who's bluffing and who's not.

Still, in order to detect this particular violation of the social contract, you do need a mediator more skilled at listening than s/he is at solving intricate logical puzzles.  Ideally, you look for both.   Education.  Training.  Experience.  But it's likely the mediator's ability to set everything else aside and simply listen as the parties explain themselves that separates the masters from the amateurs. 

How and why we too often override our gut feelings in this regard, permitting ourselves to be bilked and scammed, is the subject of Michael Webster's Blogs, which I highly recommend you make part of your skimming.  (who has time to actually read?)

And, oh yes.  It would be best not to cheat your clients.  Biting the hand that feeds you and all that.  Better to look him or her in the eye with a clear conscience and sleep soundly than make that 2200 hour bonus this year.

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I took an urban hike with my good friend the composer, lyricist and novelist Kathleen Wakefield yesterday.  I live at the base of the Santa Monica mountain range, making for a good hour's hike from the Los Angeles Basin to the range's crest on Mulholland Drive and back (even if we only made it to Fountain) (yes, the Fountain of Bette Davis' famous response to the question "how do you get to Hollywood?"  -  "take Fountain") .

Because Kathleen makes her living selling her intellectual property, we were talking about the challenges raised by and opportunities presented to artists as their work becomes more and more their own property and less and less the business of those who "discover" it (A&R), produce it (Viacom, MGM, Capitol Records, etc.), sell it (Madison Avenue) and protect it (ASCAP, entertainment lawyers).

Our conversation naturally ranged to Web 2.0; a world without borders; and, global warming, all of which took me back to the book my friend Ken Cloke is writing called "Mediators Can Save the Planet."

Why mediators?  Because WORLD 3.0 will require that we supercharge our natural cooperative and altruistic natures while dampening our competitive drive without thereby discarding our ambition. 

What will it take?  A shift from competition to collaboration.  

Can we do it?  "Yes we can," says Al Gore in An Inconvenient Truth when his audience begins to move from denial to despair.

How?  At least one way to get the global cooperation ball rolling will be to school ourselves in empathy, a necessary prerequisite to tackling the problem of collaborative solutions to worldwide  problems. 

All of which leads us to an old but timely article Empathy, Morality and Otherness by Dr. Douglas Chismar.  Before proceeding to suggest art as one of the ways we can increase our ability to identify the injustices done to and suffering endured by "foreign" others, Dr. Chismar identifies three types of empathy triggers:  (1)  empathizer specificity; (2) situation specificity; and, (3) recipient specificity.  He writes:  

Empathizer specificity refers to the manner in which individual empathizers vary in their general level of empathic responsiveness as a personality trait. Some people empathize quite often and intensively, others rarely and only weakly.

Situation specificity refers to how empathizers respond selectively to a variety of different empathy opportunity situations. Certain circumstances, for example the Challenger disaster, have evoked widespread empathy, while others, such as the civil war in Rwanda, evoked little response.

Recipient specificity speaks of how empathizers respond differently to particular kinds of individuals. A neighboring family left homeless by fire may evoke considerable empathy while a wino on a street corner may stimulate little concern.

After discussing the many reasons why we understandably misread the injustices visited upon and fail to respond to the suffering of distant and foreign "others,"  Dr. Chrismar suggests that we nourish our natural empathy impulses with art.  "We need to find a way to take the initial impulse to empathize and nourish it," he argues,

 rather than letting it slide, as it is prone to do, into the rut of selectivity. Humans have discovered at least two strategies for increasing the frequency and intensity of empathy, and overcoming its partiality.

The first strategy is the largely cognitive operation of what is commonly referred to as “universalizability.” This consists of abstracting from one’s particular situation and viewing oneself as one among many. It takes various forms, including reversibility (placing oneself on the imaginary receiving end of an action) and a kind of stripping away of what makes one particular (“judging a man by the content of his character rather than the color of his skin)”.

 A second strategy appeals to the arts . . . Through drama, poetry, film, and other arts, imaginative participation in others’ experience is enabled where it would otherwise fail to occur. The arts, through creating a mock reality, thrive upon the sense of fascination with the different while creating situations in which empathy is powerfully and irresistibly generated.

Human tendencies towards curiosity and exploration are harnessed to project the emotions into alien situations. The accepted suspension of cultural norms, which has tended to characterize the artworld throughout its history, permits the feeling and expression of unconventional emotions, unloosing a stream of feelings otherwise bottled up in a business-like society.

There's much more of interest in this article to anyone engaged in the project of preparing ourselves for the challenges of the coming century, including the mass relocation of people due to the rise in the sea level and the potential for catastrophic species extinction -- neither of which is science fiction anywhere but in the Bush White House.

Check it out.

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I am constantly reminding my readers that we are hard-wired cooperators.  Cooperation alone, regardless of result, makes us happy.  Better yet, cooperation almost always results in a better deal for everyone. 

This is not do-good, crystal-reading, pentagram-worshiping kum-by-ya feel good west coast touchy-feely nonsense.  This is evolutionary biology.

In this week's Sunday New York Times Natalie Angier reminds us that cooperation is not only the necessary pre-condition to the survival of the human species as a group, but is also the pre-condition to each of our individual lives.  In her fascinating article, Sociable Darwinism, Ms. Angier reviews Evolution for Everyone (etc.) by Professor David Sloan Wilson at Binghamton University.  

As Ms. Angier explains:

Wilson has long been interested in the evolution of cooperative and altruistic behavior, and much of the book is devoted to the premise that “goodness can evolve, at least when the appropriate conditions are met.” As he sees it, all of life is characterized by a “cosmic” struggle between good and evil, the high-strung terms we apply to behaviors that are either cooperative or selfish, civic or anomic.

The constant give-and-take between me versus we extends down to the tiniest and most primal elements of life. Short biochemical sequences may want to replicate themselves ad infinitum, their neighboring sequences be damned; yet genes get together under the aegis of cells and reproduce in orderly fashion as genomes, as collectives of sequences, setting aside some of their immediate selfish urges for the sake of long-term genomic survival.

Cells further collude as organs, and organs pool their talents and become bodies. The conflict between being well behaved, being good, not gulping down more than your share, and being selfish enough to get your fair share, “is eternal and encompasses virtually all species on earth,” he writes, and it likely occurs on any other planet that supports life, too, “because it is predicted at such a fundamental level by evolutionary theory.”

How do higher patterns of cooperative behavior emerge from aggregates of small, selfish units? With carrots, sticks and ceaseless surveillance. In the human body, for example, nascent tumor cells arise on a shockingly regular basis, each determined to replicate without bound; again and again, immune cells attack the malignancies, destroying the outlaw cells and themselves in the process. The larger body survives to breed, and hence spawn a legacy far sturdier than any tumor mass could manage.

For the remainder of this article, click here.  For how this phenomenon applies to the legal profession, see Unhappy Lawyers and the Cooperative Hard Wire here.   

To read Professor Wilson's book, EVOLUTION FOR EVERYONE -- How Darwin’s Theory Can Change the Way We Think About Our Lives, click on the title.

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Baz Luhrmann's hallucinatory Romeo and Juliet, the ultimate Shakesperean lesson in the dangers of fiercely playing Tit for Tat.   

The Americans are fond of explaining almost all the actions of their lives by the principle of self-interest rightly understood. In this respect I think they frequently fail to do themselves justice. -- Alexis de Tocqueville

We've mentioned these principles before:

• negotiators will reflexively play the childhood game of tit for tat (you cooperate, I cooperate; you defect, I punish; you cooperate, I cooperate again) because, as the game theorists tell us, we evolved as a human society as a result;
• negotiators are also inequality averse, just like the capuchin monkeys who act against their own apparent self-interest by refusing to work when one of their fellows begins making five times the salary for the same amount of work.  

Herbert Gintis, an Emeritus Professor of Economics at the University of Massachusetts, discusses these issues in Game Theory and Human Behavior.  

The point of the following excerpts from Professor Gintis' research is this -- what negotiators tend to call irrational bargaining behavior  -- not accepting an objectively  "good deal" -- is not necessarily irrational or "overly emotional."  It is simply driven by considerations that hard numbers do not explain.

Gintis explains: 

The inequality-averse individual is willing to reduce his own payoff to increase the degree of equality in the group (whence widespread support for charity and social welfare programs). But he is especially displeased when placed on the losing side of an unequal relationship.

Continue Reading...

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Four times a year we publish our on-line literary journal, r.kv.r.y. quarterly.  As the New York Times reminds us today, one of our favorite moods -- optimism "causes a great deal of mischief, leading us to underestimate the time and trouble of the projects we undertake."  On the other hand, as Jim Holt notes in You Are What You Expect, The Futures of Optimists and Pessimists,

the mere fact that [optimism] is so widespread in our species suggests it might have some adaptive value.  Perhaps if we calculated our odds in a more cleareyed way, we wouldn't be able to get out of bed in the morning.

So it is with our decision, nearly three years ago, to publish an on-line literary magazine.  We so underestimate the time and trouble of this purely recreational project that we are unlikely to post anything on this blog in the coming week.

If you're an old Lit major practicing law or conducting business and missing the thrill of a well-turned phrase, check out our archives.

The most noteworthy entries in the Winter 2007 issue (still under construction) are two chapters from local author-attorney Richard Wirick's nearly completed novel, The Devil's Water.  I practiced law with Rick at Buchalter, Nemer in the late '80s and early 90's, at which time he held the sigular distinction of being the only person I knew who'd read both Ulysses and Finnegan's Wake.  For Literature majors, this is the equivalent of inventing cold fusion.  

More recently, Rick has been nominated for the prestigious PENN/Faulkner award for his cycle of prose-poems One Hundred Siberian Postcards, which, we must proudly point out, r.kv.r.y. printed first (well, at least three of them, before Telegram Books in London had the wisdom to publish all one hundred).

So that's where we'll be.  Laboring over the Yahoo! SiteBuilder, taking far far far longer than we ever planned to publish the next issue of r.kv.r.y.

Back soon!

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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.   

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(money money money money money it makes the world go round)

As the comments to recent reports of associate year-end bonuses attest (see the Wall Street Journal Law Blog) it's the comparison of economic rewards rather than amount of income itself that makes workers unhappy with their lot.      .    

The research cited below doesn't explain this behavioral tic but it does normalize it.

                                                                              Liza, Cabaret, singing Money

This is the Capuchin monkey, many of whom have been trained to work for "money" by researchers. (where's PETA when you need them?)  

As Forbes Online reported earlier this year in Primate Economics, these monkeys refuse to work if they see another "earning" an  unequal share of the rewards. 

What does the capuchin consider "unequal?" 

Apparently the capuchin will more or less happily "work" for another "CEO" monkey until the CEO begins to "earn" five times as much food as the "worker" does for the employee's labor.    

When that critical inequity is reached, the laborer rebels and refuses to work, leaving both monkeys without "income."

It's not just quantity that triggers the primate response to the provision of unequal rewards.  The capuchin also digs his heels in and refuses to go to the office if a co-worker is seen to be receiving better quality compensation.

After training the monkeys to trade pebbles for slices of cucumber, the capuchin happily played the game.  Once one was given a more desireable grape while the other continued to receive only cucumbers, the cucumber recipient became agitated, threw his pebbles out of his cage and eventually refused to perform any further tasks for the researchers whatsoever.  

The obvious take away?

People are less concerned about absolute levels of wages or standards of living, compared with how they are doing relative to others. Rewards in a market economy [must be shared, but] the essential flaw in systems like communism [is that] people are expected to share resources without regard to how much work they do. If you cooperate, you have to watch what the other person is getting,"  say the scientists.  You need to have some level of reciprocity.

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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?)

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