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Victoria Pynchon

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She Negotiates

She Negotiates

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Cheating: Billable Hours

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.

Comments (5)

Read through and enter the discussion by using the form at the end
michael webster - May 31, 2007 10:55 AM

I think would have summarized, for skimmers, the Cosmides and Tooby article this way:

"Principle 5. Our modern skulls house a stone age mind.

Natural selection, the process that designed our brain, takes a long time to design a circuit of any complexity. The time it takes to build circuits that are suited to a given environment is so slow it is hard to even imagine -- it's like a stone being sculpted by wind-blown sand. Even relatively simple changes can take tens of thousands of years.

The environment that humans -- and, therefore, human minds -- evolved in was very different from our modern environment. Our ancestors spent well over 99% of our species' evolutionary history living in hunter-gatherer societies. That means that our forebearers lived in small, nomadic bands of a few dozen individuals who got all of their food each day by gathering plants or by hunting animals. Each of our ancestors was, in effect, on a camping trip that lasted an entire lifetime, and this way of life endured for most of the last 10 million years. "

Think about that the next time you are in a difficult mediation - what are these two numb skulls really trying to solve?

Vickie - May 31, 2007 6:28 PM

Michael -- as always, a pleasure to have you drop by and make sense of things.

Using the camping trip analogy, I think the campers are trying to figure out a way to "fairly" divide the rabbit or deer; the handful berries or the few gathered roots in a way that: (1) will incentivize those able to hunt & gather to continue doing so (divide according to merit); (2) will permit the entire tribe to survive, including those too young or old to work for a living (divide according to need); and, (3) will permit differences of opinion about how best to make these decisions to be resolved without undue bloodshed.

Distributive and procedural justice, no?

michael webster - June 1, 2007 10:31 AM

Let me back up a bit here.

The authors have an elegant proposal about how to defeat the wason effect; the tendency to confirm the truth of A implies B by looking for instances of when A and B are true.

Confirmation bias is often at the route of all bad decision making.

The authors note that if we change the conditional to Reward A, if Obligation/Requirement B, then people do much better: they know to look for A and not B, which the authors describe as looking for cheaters. (I disagree with their interpretation of their results, but not with the results.)

The author's suggestion is that we are much better at getting the logically correct answer on restricted type of conditionals, involving rewards and obligations. I find this convincing, and hope to see how to use it to combat confirmation bias.

As to the suggestion about procedural and distributive justice, I think those notions developed fairly late in our development. Just look at all the cultures who cannot figure out that a line-up is the best way to distribute scarce resources. Our old brain is telling us to rush to the front, effectively preventing most of us from getting anything in a timely manner.

Vickie - June 1, 2007 8:38 PM

Michael,

See The Cost of Cutting in Line at HBS Working Knowledge here -- http://hbswk.hbs.edu/item/5319.html

Vickie

michael webster - June 4, 2007 10:36 AM

Thanks for the reference.

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