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A friend of mine once told me that "the most successful learning dyad in the history of the world" is the mother-infant/child relationship.  Contemporary psychologists who have studied that relationship have discovered that toddlers whose caretakers help them "repair" the loving relationship that existed before the moment shame is elicited, learn guilt and apology instead of chronic shame and denial or withdrawal.  

The explanation below (from my article Shame by Any Other Name) is largely drawn from the work of two scholars --  ALLAN N. SCHORE, particularly his book AFFECT REGULATION AND THE ORIGIN OF THE SELF: THE NEUROBIOLOGY OF EMOTIONAL DEVELOPMENT (1994) and D.L. NATHANSON, particularly his book SHAME AND PRIDE: AFFECT, SEX AND THE BIRTH OF THE SELF (1992).

Distinguishing Guilt from Shame 

By age two, children develop the ability to empathize with the feelings of another and by age three to evaluate their own conduct against objective behavioral standards. As soon as we are able to experience shame and guilt, we instinctively attempt to regulate our emotional state by engaging in spontaneous acts of confession and reparation. . . . .

Shame . . . "acts as a powerful modulator of interpersonal relatedness and . . . ruptures the dynamic attachment bond between individuals."   When an individual has broken this bond, he wishes to recapture the relationship as it existed before it turned problematic.

Toddlers shamed by their mothers, for instance, naturally initiate appeals to repair the momentary break in the emotional bond resulting from the shame-inducing behavior. This process is called self-righting. It is natural and universal. The shamed toddler reflexively looks up at and reaches toward his mother. Even a preverbal child will spontaneously express this need to be held in an attempt to reaffirm both self and the ruptured relationship, to feel restored and secure.

A healthy and responsive mother accepts and assuages the child's painful feelings of shame, enabling the toddler to return to a normal emotional state, one in which love and trust are ascendant. If the caregiver is "sensitive, responsive, and emotionally approachable," especially if she uses soothing sounds, gaze and touch, mother and child are "psychobiologically reattuned," the "interpersonal bridge" is rebuilt, the "attachment bond" is reconnected, and the experience of shame is regulated to a tolerable emotional state.

This series of events between child and care-giver has been termed the "positive socialization of shame." It permits the infant to "develop an internal representation of himself as effective, of his interactions as reparable, and of his caregiver as reliable." . . . Importantly, when shame goes unacknowledged, "it is almost impossible to mend the bond." The natural resulting inclination to hide one's misdeeds "creates further shame, which creates a further sense of isolation."

Thus, while shame in the absence of a consistently repaired interpersonal bridge creates pathology, repair teaches emotional self-regulation, creates "secure attachments" and leads to the development of empathy and conscience.

Tomorrow, How to Make the Apology that is Most Likely to Result in Reconciliation 

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(thanks to Beyond Intractability for the graphic)

We talk a lot about apology as a means of descalating conflict for the purpose of engaging in successfully mediated settlement conferences and non-mediated commercial negotiations alike. 

You can bargain with someone who is enraged at (or even merely irritable with) you, but your negotiation will be derailed over and over again as feelings interfere with business judgment. 

Although you can't have one without the other (judgment without emotion) some emotions are conducive to successful negotiations and some are corrosive. 

APOLOGY:  I'm writing a book and my blog-job is interfering with my deadline.  So I'm stealing my own material, for which I aplogize to myself and to any reader who has already read my published article on Restorative Justice -- Shame by Any Other Name Lessons for Restorative Justice from the Principles, Traditions and Practices of Alcoholics Anonymous (2005) 5 Pepp. Disp. Resol. L.J. 299 (2005). 

If you're interested in what shame and guilt have to do with moral development as a preclude to recognizing the difference between guilt-ridden and shame-infused apologies, read on.  (and yes Janis, I'm working on it!)

A SHORT PRIMER ON SHAME, GUILT AND MORAL EDUCATION

A. The Origins and Effects of Shame.

The word shame is derived from the Indo-European skem which means "to hide." Shame makes us want to hide - from ourselves, our God and our peers - making shame an existentially isolating state of mind. Feeling shame makes a person "dejection-based, passive, or helpless," causing the "ashamed person [to focus] more on devaluing or condemning his entire self" than upon his behavior. He sees himself "as fundamentally flawed, feels self-conscious about the visibility of his actions, fears scorn, and thus avoids or hides from others."

The shamed individual wants "to undo aspects of the self" whereas the guilt-ridden one wishes to undo aspects of his behavior. It is therefore not surprising that guilt tends to motivate restitution, confession, and apology, whereas shame tends to result in avoidance or anger.

The psycho-biology of the constellation of emotions we call "shame" is innate. It produces a sudden loss of muscle tone in the neck and upper body; increases skin temperature on the face, frequently resulting in a blush and causes a brief period of incoordination and apparent disorganization. No matter what behavior is in progress when shame affect is triggered, it will be made momentarily impossible. Shame interrupts, halts, takes over, inconveniences, trips up, makes incompetent anything that had previously been interesting or enjoyable. 

A state of cognitive shame follows this initial cluster of feelings. After the painful jolt of shame, we begin to search our "life scripts" for some way to integrate the shameful experience with our prior experiences, to make sense of the pain and disorientation caused by the sudden upset of a positive emotional state.

Because our earliest experiences of helplessness relate to our size, strength and intelligence, only anger and its explosive cousin, rage, allow us to prove to ourselves and others that we are powerful instead of weak, competent rather than stupid, large rather than small. Thus do many shame-suffused individuals respond to chronic shame in an attack mode, particularly those who feel "endangered" by the depths to which their self-esteem has been reduced. Such individuals experience shame as a threat to their physical well-being and lack the ability to trust and rely upon others.

Shame thus serves as a barrier to one's capacity to achieve empathy and develop conscience.

Distinguishing guilt from shame tomorrow.

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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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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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(left:  the "reasonable man?")

According to Saturday's New York Times Talking Business column Can We Turn Off Our Emotions When Investing?, few of us could make the boast ascribed to Los Angeles lawyer Charles T. Munger when asked the secret to being a great investor.

"I'm rational," he said. 

Lawyers, Economists and "Reasonable Men"

Both law and economics have long assumed a hypothetically objectively "reasonable man" or investor.

I can still recall the precise moment during my first year of law school when all of my core courses came together under the rubric "reasonable."  The potential tortfeasor was liable to his victim only if he failed to behave "reasonably" -- a standard also imposed upon the plaintiff lest she be found contributorily or comparatively negligent.  In actions for the breach of an agreement, the contracting parties were required to demonstrate that their performance expectations were objectively reasonable.   Even the ancient law of property rights required that covenants and restrictions not unreasonably burden the use or transferability of real estate. 

The dry rules of civil procedure were also governed by standards of reasonableness.  They assumed the giving of reasonable notice when civil actions were filed and required that pleadings contain reasonably detailed allegations of wrongdoing.  Finally, every generation of television watching Americans knows that an accused could be convicted of a crime only if his guilt were proven "beyond a reasonable doubt." 

We lawyers were thus trained to be reasonable, rational people, unaffected by passion and prejudice, unemotional.  

That's a good thing right? 

Not if we believe we're acting reasonably and rationally when we're not.  

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(right:  Working Mother Identifies the 50 Best Law Firms for Women)

The interview season is over and you have three job offers.

One is from BigLaw in Manhattan, a dazzling, dizzying opportunity coupled with a salary that (you believe) would end all of the financial insecurity you've experienced after 7 years of part-time jobs; student loans; and, macaroni and cheese dinners.  

The other offer is from the Justice Department in Washington, D.C. where you've been promised early trial experience and your own case load during your first year.  The salary is livable but you've got enormous student loans to pay back.  Still, you've always wanted to stand in a courtroom, look Jack Nicholson in the eyes and say, "I want the truth!!"  

Your last job offer is from a mid-size firm in your own home town.  You really like the people you met with there and you can see yourself spending an entire adult life with them.  Getting married, raising a family.  The local schools are good and the chance to build your own "book of business" is better here than in D.C., Manhattan, Los Angeles, Chicago or San Francisco.  You'd be a big fish in a little pond, not to mention remaining close to your extended family.

What to Do?

We have no specific advice.  We do want to alert you to Bazerman's and Malhotra's chapter on cognitive biases in their new book, Negotiation Genius, and particularly their section on

THE VIVIDNESS BIAS

(note to readers:  whenever the word "McKinsey" appears, think Skadden, or whatever law firm would most  dazzle your professors and classmates if you told them you'd been offered a job there).

Apparently, many Harvard MBA students change jobs very quickly after accepting their first position.  Why?  One important reason is the effect of the "vividness bias."   They explain:

Specifically, [the student job seekers] pay too much attention to the vivid features of their offers and overlook less vivid features that could have a greater impact on their satisfaction.  This is a potential trap even for seasoned negotiators.

M & B go on to conduct a little thought experiment, imagining their students talking about their job offers and, more particularly, the following attributes of those offers:

• great medical benefits
• proximity to extended family
• high degree of happiness apparent in the offeror's employees
• opportunity to travel to Europe on a regular basis
• $140K starting salary
• employees have a significant degree of control over work assignments
• the office space is comfortable; the environment inviting
• the offer is from McKinsey
• I would not have to travel too much

You know what's coming next. 

Which of these statements will travel most quickly through the MBA student grapevine, conveying the highest degree of prestige upon the  job-seeker.

For all of our knowledge and sophistication, we're pretty simple creatures.  Bazerman and Malhotra believe that "the answers to these questions are the high salary ($140,000) and the offer from McKinsey (a top consulting firm)."  They continue:

These two items are not only the easiest to communicate quickly, but also the easiest for others to evaluate.  Students who receive these offers will notice the impressed reactions of their peers when such information is shared, and these reactions will make the information more prominent in their mind[s].  As conversation after conversation focuses on these two factors, other aspects of the offer will be overshadowed or entirely sidelined.

One result:  students accept -- and soon quit -- high paying jobs with prestigious firms because they over-weighted vivid or prestigious attributes of their offers and under-weighted  other issues that would affect their professional and personal satisfaction, such as office location, collegiality, and travel.

Malhotra and Bazerman's suggested solution to counter the vividness bias is to create a scoring system that assigns "weights" to job attributes.  They suggest that a professional job seeker "who does not have at least five to ten issues ranked and weighted in her scoring system is probably not thinking rationally enough about all of the important issues in her job negotiations."

When performing this rigorous, logical, left-brained analysis of your job offers, remember what we recently learned from the Neuromarketing Blog's recent post on the new (must read) book -- The Best of the Brain. 

the left hemisphere of the brain tends to screen creative thoughts from the right hemisphere. Too much screening, and creativity is stifled; too little, and useless ideas can’t be eliminated. Creativity also requires topical knowledge and a detailed examination of the problem. While there’s no simple path to creative thinking for most of us, Kraft concludes by recommending that relaxing and stepping back from the problem are often helpful in letting the brain do its work. 

To conclude our series on job hunting for lawyers, I leave you with the the following list of dangers and pit-falls based upon my own experiences and those of my colleagues, all of whom have been practicing law for at least twenty-five years.

• property, power and prestige are the most dangerous siren-songs to follow (seethe Cost of a Thing is Your Life);
• if you're one of those people who believes you can take a BigLaw job, save your excess salary and then move "down" to a more congenial firm, just make sure you have the mental toughness to do so -- I have seen many lawyers "trapped" by the lifestyle this salary can afford them -- I know dozens who have been miserably stuck there for years if not decades;
• your mom and dad really will continue to love you no matter what you do; you do not have to take an impressive job to prove to them that the kid who could never keep his room clean is all grown up now and a credit to his family; and,
• money can't buy it (Annie Lenox)

Congratulations on the job offers. 

Choose wisely and well.  It's a great profession; one you and your family can be proud of of; and one you will never ever completely master -- meaning it will continue to astonish, trouble, bedevil and reward you for the rest of your life.

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(photo by Maureen Flynn-Burhoe)

We follow high-level negotiations, as well as the small commercial dispute, here.  No matter the stakes, the dynamics are the same.  See, for example, today's AP article, Collapse of WTO Talks Puts Trade Deal in Limbo.

What's at stake? 

a new world trade pact aimed at adding billions of dollars to the global economy and lifting millions of out of poverty.

Who are the negotiating parties?  The United States, the European Union, Brazil and India. 

Are there feelings, i.e., emotions involved?  Have we mentioned recently neuroscientist Antonio Damasio's research on people whose brain injuries interfered with their ability to feel emotion?  They could make endless pro and con lists, but couldn't make decisions.  Why?  Because there is a pro and con to every choice we make.  Paper or plastic?  Fish or Meat?  Peace or warfare?  Settle the lawsuit or try it?  

In the absence of a feeling that makes us desire one outcome more than another, we are at a total loss.  

How does impasse feel?  If you'd been a WTO negotiator, your

emotions rang[ed] from anger to confusion [as they] left Potsdam on Friday knowing they had failed to break a six-year logjam between rich and poor countries over eliminating barriers to trade in farm produce and manufactured goods.

And the angry and confused government officials?  Do they think their own bargaining position is to blame or do they believe that their negotiating partners are acting in bad faith?  Let's see.

European and American officials questioned Brazil's intentions and wondered if it intentionally blocked progress to curry favor with developing countries, many of whom were unhappy with the private negotiations among the four powers.

Brazilians accused Washington and Brussels of agreeing beforehand to protect their agricultural interests.

Many officials criticized Indian Trade Minister Kamal Nath for arriving late on Tuesday after missing a flight and having a return scheduled ahead of the summit's end.

All sides said they negotiated in good faith.

Sound familiar?

The reasons for impasse and ways to break it will be the subject of a lengthy weekend post.

In the meantime, here are two prior posts on impasse -- Negotiating Past Impase and Breaking Impasse.  

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(photo by Duane Romanell)

We first mentioned the brain's do-good-feel-good circuitry in our post Unhappy Lawyers and the Cooperative Hard Wire.  Since that time, we've created an entire category for collaboration, showing that it not only makes us feel good and perpetuates the species, but that it also makes us better problem solvers than we could ever be acting on our own (remember law school study groups?)  See e.g. Collaboration Creates Better Science.

The researchers continue to pursue this line of inquiry and today New York Times Writer and Blogger John Tierney (Tierney Lab) tells us that it feels good to pay taxes -- at least those with a charitable purpose.

The research?

Each student was given $100 and told that nobody would know how much of it she chose to keep or give away, not even the researchers who enlisted her in the experiment and scanned her brain. Payoffs were recorded on a portable memory drive that the students took to a lab assistant, who then paid the students in cash and mailed donations to charity without knowing who had given what.

The brain responses were measured by a functional M.R.I. machine as a series of transactions occurred. Sometimes the student had to choose whether to donate some of her cash to a local food bank. Sometimes a tax was levied that sent her money to the food bank without her approval. Sometimes she received extra money, and sometimes the food bank received money without any of it coming from her.

Sure enough, when the typical student chose to donate to the food bank, she was rewarded with that warm glow: increased activity in the same ancient areas of the brain — the caudate, nucleus accumbens and insula — that respond when you eat a sweet dessert or receive money. But these pleasure centers were also activated, albeit not as much, when she was forced to pay a tax to the food bank.

This doesn’t mean that the student, or anyone else, would necessarily enjoy writing a check to the Internal Revenue Service that would be spent on plenty of programs less appealing than a food bank. It is more like the tax collected by a state lottery that dedicates its profits to schools.

For the complete article, Taxes a Pleasure?  Check the Brain Scan click here.

The refinement on prior research here is that charitable giving makes some of us feel better than others  (see Altruist's Paradox, Should It Hurt to Be Nice) and that at least some of those whose pleasure centers aren't stimulated by altruism, give as much as those whose are.

My guess is that those who give without the brain "rush" also say "please" and "thank you," let motorists into the jammed traffic in front of them and help little old ladies across the street.  We used to simply call them "good citizens."  Their parents raised them that way.

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I've been reading Stephanie West Allen's Renaissance Woman Blog, Idealawg, ever since I began blogging myself just about a year ago.

Here's the really really really good news.  Stephanie has started a new blog, Brains On Purpose™ Neuroscience and Conflict Resolution in collaboration with Jeffrey M. Schwartz, MD.

Check out their upcoming seminar in January in San Francisco as well.  

The blog is brand spanking new and I, for one, am greatly looking forward to getting a large part of my ADR-Neuroscience reading from these two experts in the field.

Add them to your news reader today!

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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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From our friends at the Neuromarketing Blog, we learn that twenty-somethings are more risk-averse than seniors. 

Story:  Mediation Practice

In my mediation practice, I find that people accurately assess how risk-averse they are and that they will readily tell you why ("I was poor"; "I was rich"; "I survived the Viet Nam War"; "I lost my parents when I was ten and was sent to live in an orphanage" etc., etc.) 

Because I now help people make decisions on a weekly if not daily basis, I know that both the "why's" and the "therefore's" of risk-tolerance are as unique as fingerprints.

Story:  Dad and the Grapes of Wrath

I, for example, was raised by parents who experienced the Great Depression.  My father's family worked its way west from Nebraska to Portland and finding no source of sustenance there, drove the model-T south through California's fertile Imperial Valley, picking fruit and vegetables on the way (the entire family, including all children old enough to pick).  

Dad's family eventually settled in the foothills of San Diego (Ramona) where they raised chickens.  His mom took in the neighbors' laundry to fill in the financial gaps.  

Other than Mr. Thrifty, Dad is the most financially risk-averse person I know.  (oh no! you DO always marry your dad!)

Story:  Me and Mr. Thrifty

But let's go to the second generation.  Raised by depression-era parents, my older sister is incredibly financially risk-averse and I (to Mr. Thrifty's horror) am on the far end of risk-courting.  Mr. Thrifty's childhood financial distress, on the other hand, seems to have produced two financially prudent children -- neither pathologically "tight" nor abnormally risk-seeking.    

But this is all anecdote, you say. 

Yes, but the truth resides in the particular, not in the general. 

Story:  Innocence and Experience

At the beginning of the semester at the Straus Institute one year, the professor asked each student to jot his or her greatest fear on a piece of paper.  Roughly half of the class was post-forty mid-career people and the other half twenty-something law students.  

I was genuninely shocked by the result.  In a roomful of statistically over-achieving outliers, every  twenty-something law student said "failure" and every mid-career student said "nothing."  

If pressed, I'm sure we mid-career types could have populated a lengthy list of fears:  ill health, war, earthquake, loss of our children, etc., etc., etc.  That our first response was "nothing," however, said something about us.  What?  And why were all these bright, talented young people who were so clearly successfully achieving so afraid of failure.  

Then it struck me.  We mid-career people were not afraid of failure because we had likely already failed.  And survived.  Rather joyously.  The law students who haven't yet failed think failure will be a far greater catostrophe than it ever actually is.  This is not only the wisdom that comes with age, but also the new finding of the neuroeconomists.

Finally!  the Neuroscience

In a 2005 article in the Illinois Law Journal, Law and the Emotions: The Problems
Affective Forecasting (80 Ind.L.J. 155, 167)  Syracuse Law School Professor Jeremy A. Blumenthal summarizes the current research on one's ability to anticipate the degree of suffering that might be caused by failure as follows:

although people are relatively adept at knowing which emotion they will experience and whether it will be positive or negative, people are surprisingly inaccurate at predicting the intensity and the duration of those emotions. Moreover, this is so even for relatively “straightforward” emotional experiences, such as winning the lottery or suffering severe injuries.  It is on such inaccuracies—in predictions of the intensity and duration of future emotional experiences—that most of the affective forecasting research has been focused.

Id. (emphasis added).

Parting thought?  There's no greater gift to one's peace of mind than failure.  

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(above, Charles Fincher's illustrative cartoon)  

I was talking to an attorney friend this morning about an upcoming mediation in a complex commercial case.  Lots and lots of $$$$$ at issue.  Last week -- a week before the mediation is set to convene --  his team scored a pre-trial victory on an eight figure issue.

If I'd had time to think about it, I'd have given him the mediation strategy advice he was already suggesting to himself.

DON'T GLOAT.

Aside from your mother's advice to never be a "bad winner" and your own certain knowledge that your shiny new pre-trial ruling can always be reversed, stifling your gloat-reflex will have at least two beneficial effects on your upcoming negotiation.  

1. your opponents' reflexive desire to retaliate by launching an all-out thermo-nuclear-legal attack will be quieted, if not eliminated; and,  
2. your opponents' ability to use their higher "executive" brain functions during the upcoming negotiations will be increased, soothing the fear and anger flight-fight mechanism of the  brain's reptilian amygdala, which, when triggered, overrides the sophisticated "executive" brain functions necessary to a successful high-stakes negotiation.

So, my friend had it right on the money this morning.  The hardest thing about the upcoming negotiation will be not to gloat.  

Make "not gloating" the center of your strategy, I replied, and you'll settle that multi-bazillion dollar case and make your corporate client truly happy.

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The New York Times Sunday Magazine cover story this coming week -- The Brain on the Stand -- covers a lot of territory on the use (and potential abuse) of neuroscience in the legal system.     

While the scientists debate whether  knowledge gleaned from sophisticated brain imagery demonstrates that our brain activity  controls our  behavior or simply reflects it, those of us concerned with decision making have much to learn from it.         

Because my work is pretty much exclusively devoted to finding mutually beneficial resolutions to hotly contested litigation, neuroscience insights into how and why we make decisions -- and how we might make them better -- have been invaluable in my practice.    

In this article, author Jeffrey Rosen describes the results of one neuroscientific experiment suggesting that dampening our emotional reactions to the regretably common "insulting first offer" might keep us in the negotiation process long enough to let our more rational responses prevail.     

He explains:

'A remarkable technique called transcranial magnetic stimulation, for example, has been used to stimulate or inhibit specific regions of the brain. It can temporarily alter how we think and feel.

Using T.M.S., Ernst Fehr and Daria Knoch of the University of Zurich temporarily disrupted each side of the dorsolateral prefrontal cortex in test subjects. They asked their subjects to participate in an experiment that economists call the ultimatum game.

One person is given $20 and told to divide it with a partner. If the partner rejects the proposed amount as too low, neither person gets any money.

Subjects whose prefrontal cortexes were functioning properly tended to reject offers of $4 or less: they would rather get no money than accept an offer that struck them as insulting and unfair.

[remember -- even monkeys would rather earn no "salary" than let their "CEO" monkey make five times as much as they do -- so this is animal behavior]

But subjects whose right prefrontal cortexes were suppressed by T.M.S. tended to accept the $4 offer. Although the offer still struck them as insulting, they were able to suppress their indignation and to pursue the selfishly rational conclusion that a low offer is better than nothing.

I do not cite this research to suggest that we should be satisfied with "insulting and unfair" proposals.  I cite it only for the thoughtful consideration of litigants and business people everywhere. 

It is perfectly 'rational" to respond to an insulting offer by rejecting it.  Being alert to our tendency to allow emotions to reign in response might give us the breathing room we need to calm our clients and continue to pursue a settlement negotiations that could well lead to resolutions that are neither insulting nor unfair.

The article is invaluable reading for anyone wanting to answer the question -- what in the world could the other side be thinking?  A question that can only be answered when the parties sit down together with a commitment to seeing the negotiation through.  

And if you're not already on speaking terms with your amygdala, click here for a fuller (lay) explanation of its effect on decision making.

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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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Most attorneys do not like to begin their mediated negotiations with a joint session and neither do many mediators.  The reason most often given is everyone's desire to avoid a polarizing set of zealously adversarial presentations.  

Work done by our neighborhood neuroscientists, however, suggests that avoiding joint sessions may deprive us of the  "small talk" necessary to put the parties into a collaborative, even generous mood.  

First the Neuroscience  (from my favorite source for such insights, the Neuromarketing Blog) 

Recent research confirms that the miserly not only spend more time thinking about money than their more generous peers, they are also more socially withdrawn.  Although Dickens nailed the personality type on the head  when he created the friendless and miserly Scrooge, it seems that all of us are anti-social and penny-pinching when focusing primarily upon money. 

The confirming research?  Recruiting the usual cadre of beleaguered undergraduates, scientists at the University of Minnesota found that when students have their minds on money, they tend to be both selfish and withdrawn.  Those who were "primed" by money imagery before being asked to engage in (or imagine) solitary, group or "helping" activities  

waited nearly 70% longer to seek help than those who[se attention was not directed to money]; spent only half as much time . . . assisting []other[s] . . . [and] preferred working alone even if sharing the task with a co-worker resulted in substantially less work. 

The young people whose attention was focused on money also  

chose solitary leisure activities . . . preferring a private cooking lesson, for instance, over a dinner for four [and] when asked to set up two chairs for a get-to-know-you chat with another volunteer, . . . placed the chairs further apart than subjects [whose attention had been directed to non-monetary themes].

These findings, concluded the researchers, suggest that thinking of money puts people in a frame of mind in which they don’t want to depend on others and don’t want others to depend on them.  (see Thinking About Money from Neuromarketing here).  

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Change is Pain -- Recap

As Rock and Schwartz demonstrate in the Neuroscience of Leadership, change is pain. Just take a look at the expression of dismay on our cartoon mathematician's face when his colleague explains that he made a mistake in step two or three of his lenghy equation. Like the rest of us, he  experiences error in the "reptile" flight or fight part of his brain -- the amygdala.  

Because the amygdala's response is a hair-trigger reaction to danger -- timed to override any wasted cognitive activity at, for instance, our first detection of a black striped yellow creature softly padding toward us -- our mathemetician's discomfort is far more likely to be expressed in anger or petulant withdrawal than in any further rational argumentation.   

We're threfore extremely unlikely to change our minds when someone is vigorously asserting that we are wrong wrong wrong wrong WRONG!

[Slight Digression -- In the Absence of Information, We Make Stuff Up] 

Our brains are pattern-making organs.  They are always trying to fit the pieces of a puzzle together.  So strong is our desire to "make sense" of unrelated and disparate data that we tell ourselves absoutely sincere and compelling stories which are often completely and demonstratively untrue.  

Researchers have demonstrated our talent for creative narrative by studying people whose left and right brains have been severed by surgery or accident.  These people are perfect experimental subjects because their right (impressionistic, visual, creative) hemispheres have no way of communicating with their left (verbal, linear and logical) hemispheres.  What one hemisphere knows, the other cannot learn.    

In one of the most famous "split brain" studies, researchers presented each hemisphere with two images.  One of the two images presented to each hemisphere matched the picture presented to both hemispheres.  When asked to identify the related images, the subjects were easily able to point to related images with the hand controlled by the hemisphere capable of identifying the "match."    

Because only the left brain can 'talk," however, when asked why the right hemisphere had chosen the correct image, the subject could not accurately explain because his "talking brain" simply didn't know.  "Quick as a flash," said the researchers, the subject simply made up a wholly plausible and reasonable explanation, based upon the information at hand.  

Anyone who has ever watched a mock jury deliberate has seen this creative narrative principle at work.  Trials are not so much won or lost by what is demonstrated, but by some missing detail that the jury deems critical to the creation of a coherent narrative.  In the absence of information, juries, like everyone else, simply make stuff up.

(I learned these "split brain" theoretical and practical lessons by watching several episodes of a now-forgotten PBS series (probable sequels to which can be found here). An excellent article discussing the split brain experiments can be found here for those who wish to pursue it).  

If We Resist Change and Make Stuff Up to Avoid It, How Do We Ever Alter Our Thinking

Had Mother Nature left us without resource other than flight or fight, we likely would never have survived as a species.   Insight ("eureka," the "AHA moment") is our gift the from the gods.  

And it is insight, coupled with the brain's remarkable plasticity that allows us to change our minds and our behavior as well as to encourage others to join us. 

The third and final part of this three-part piece on Changing the Other Guy's Mind will appear tomorrow.

Promise.

I've gotta go finish decorating my Christmas tree now!

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The creative act is not an act of creation in the sense of the Old

Testament. It does not create something out of nothing: it uncovers,

selects, re-shuffles, combines, synthesizes already existing facts, ideas,

faculties, skills. The more familiar the parts, the more striking the new

whole.” 

Arthur Koestler

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How many times have we mediators been asked to  "just make the other guy see how wrong he is." And how many times have we tried?

While ADR scholars debate the pros and cons of evaluative and facilitative mediation, our friends the neuroscientists are proving what we already suspect to be true. 

We can't change anyone's mind but our own.

The good news is that we can assist others in changing the way they think by understanding the mental wiring by which we all think.  

First the Neuroscience

In their recent article, The Neuroscience of Leadership, David Rock and Jeffrey Schwartz explain why inspiring people to alter their own way of thinking is not just the best, but the only way to change someone else's mind.    

Habit and Working Memory

When we encounter novel situations (or information that is antithetical to our way of thinking) it is our "working" memory that compares the new information with our old belief systems.  Our brains reward us with a rush of neurotransmitters like adrenaline when we create novel mental connections as a result. 

The emphasis in the phrase "working memory," however, is on work.  

When we engage our working memory, we activate our prefrontal cortex, an energy-intensive part of the brain.  The prefrontal cortex is the brain's gymnasium, its life-cycles and treadmills.  

The rote mental tasks we perform every day are governed by the basal ganglia where neural circuits of long-standing habit are formed and held.  In the gymnasium of the brain, the basal ganglia are the jacuzzi and steamroom.    

To change our way of thinking about things is as much work as changing our diet and exercise habits.  The rewards are great but sloth often overtakes us.  

So one of the major sources of resistance to change is simple intellectual laziness.   

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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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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.

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