Pearl Harbor is unfortunately a trending Twitter topic because millions of little microphones have been given to people unable to think things through.
People who say the Japanese “deserve” it, like those who believe that AIDS is God’s punishment for immorality, are suffering from a cognitive bias called Fundamental Attribution Error. Here at She Negotiates, we’re deeply concerned with cognitive biases because they cause otherwise kind and rational people to believe that their neighbors are mean-spririted, ill-willed or downright evil.
And that prevents us from being compassionate, helping out in times of crisis or negotiating the resolution of disputes.
Instead of becoming mired in the debate between the Japan-deserved-it tweeters and those who call the tweeters stupid jerks, let’s use the trending Pearl Harbor-Japanese earthquake topic as a teaching moment.
Today, the newspaper of record for Los Angeles, its own readership jumpy and restless, tells us that the Japanese are maintaining order by exhibiting behavior (“impeccable manners”) that most Westerners would consider overly deferential and needlessly self-sacrificing.
The Women Don't Ask author quoted her keynote fee as $10,000, which is an eminently fair price. A man of similar provenance would have asked for at least twenty grand. If you’re skeptical about that, check out the fees at BigSpeak which lists a couple of male Harvard Business Professors at $40,000 + (Clayton M. Christensen) and $20,001 to $40,000 (John A. Davis) while quoting a couple of women at the top of the corporate ladder at $7,500 to $10,000 (former Accenture managing partner and author Susan Bulter) and $10,001 to $20,000 (Kate White, Editor-in-Chief of Cosmopolitan and New York Times Best-Selling Author).
On reflection, this sui generis extravaganza likely required a division of duties and multiplication of talent from the beginning. If Spider-Man’sticket sales cool in response to its present deficiencies, Charlie Sheen, on temporary hiatus from reality, should still be available to make this multi-vehicle pile-up of a Broadway musical into a hot ticket again.
It's not that we believe that economic power concentrated in any gender will necessarily be better, it's that the natural order of things – women and men together in roughly equal numbers powering life on the planet – will necessarily be better. If it’s not God’s plan, it is surely the plan of nature which got us to where we now sit – ascendent above the planet’s other animals – the result of opposable thumbs and bio-diversity.
If negotiation is a conversation leading to agreement, that conversation requires two people. Meaning that you (yeah, you!) with your dead Toyota actually have a voice and something to say to Mr. Pointy-Shoes at the car dealership. >Before laughing at or trembling before that guy, enter his point of view for a moment. How is he going to try to work with you as a customer? He wants to maximize the dealership's profit because he makes a living by skimming a small part of that profit off of the deal as a commission. You need something from him, but he also needs something from you. You’ve got the money, which is always a good negotiation position to be in. Remember the “golden rule?” He who has the gold makes the rules.
It's Christmas Eve and I am moved to talk about religion and violence, particularly since the New York Times' most prominent Christmas story is about furious family battles over the pressing question of white lights or colored on the Christmas tree.
My conflict resolver's stream of consciousness moves from family strife to violence for reasons both global and personal. Like many conflict resolvers, I am a wounded healer, raised in a family where violence alternated in alarming rapidity with the denial and suppression of conflict. This created in the children of that family a desire for peace coupled with a suspicious nature prone to strike before asking questions.
It is we ~ those raised in the cauldron of violence ~ who seek peace and proclaim it while at the same time attempting to corral a pugnacious first response to threat.
That's the personal. I mention it not simply because I lack a religious confessor to urge me toward true acts of contrition, but also because the personal is inextricably interlinked with the political, particularly when it comes to religion.
Religious Peace and Violence
How and why do we translate our personal weakness for the cutting remark or barroom brawl into religious and political dogma? The "how" is often simply reflexive. The author of The Brain Rules tells us that these are the questions we ask when we see a stranger.
Can I eat it?
Will it eat me?
Can I mate with it?
Will it mate with me?
The "how" is also the "why" with the added apprehension that religious beliefs are based on faith and too often require the faithful to convert the unconverted by means intellectually persuasive or violently coercive.
Thus the human condition.
The Peace Part
Someone schooled in Buddhism once told me that "the world being dual, the best we can do is lean toward the light."
Many people schooled in Christianity have told me in and out of religious congregations that the profound fallibility that burdens all of us is precisely what makes us human. It is only our willingness to accept forgiveness that takes us into the neighborhood of God. Incapable of perfection, we are saved by grace. Once saved, we are moved to express that which God has expressed in us and we become agents of forgiveness and reconciliation. We will never, however, stop "sinning." The grace given is compassion for our fallibility, not the perfection of our "fallen" nature.
My Jewish friends refer me to Tikkun Olam - the principle of the world as both spiritually and materially broken ~ and in need of repair. They also tell me about the 36 righteous people whose role in life is to justify the purpose of humankind in the eyes of God.
My evolutionist friends tell me that we share with the forebears from whom we separated fifty million years ago a compelling emotional response to injustice. We also share with these distant relatives the same cognitive biases that make us respond irrationally to giving and getting. TED video on this topic below.
My Muslim friends acknowledge the violence in their sacred text which is not significantly different from that in the sacred Jewish and Christian tomes. These teachings, all in the Abrahamic tradition, can be read leaning toward the light or toward the darkness. Muslim organizations for peace are prevalent and powerful.
As a nearly fully secularized humanist raised with the values of mainstream mid-twentieth century Protestantism and dipped in evangelical Christianity in high school, I commit my spirit to the grace of a god I am too limited to understand, too skeptical to believe in without great struggle, and too grateful for the gift-horse of pardon to kick in the teeth.
A list of my favorite books on religion and/or violence/peace are my Christmas present to my readers.
If the negotiated resolution of disputes is all about values; personal narratives; and, collaborative problem solving, the televised-negotiated-resolution-Bible is Lost, which ended a six-year run last night in a series of spiritual awakenings for each of the major characters.
I'm addicted to something that doesn't exist. ~ William Burroughs, Naked Lunch
This is where those sensible folks who have never been addicted to narrative nor worshiped at the altar of character development check out of the post. Please do return.
This is the middle.
Things have had time to get complicated,
messy, really. Nothing is simple anymore.
Cities have sprouted up along the rivers
teeming with people at cross-purposes –
a million schemes, a million wild looks.
Disappointment unsolders his knapsack
here and pitches his ragged tent.
This is the sticky part where the plot congeals,
where the action suddenly reverses
or swerves off in an outrageous direction.
Here the narrator devotes a long paragraph
to why Miriam does not want Edward's child.
Someone hides a letter under a pillow.
Here the aria rises to a pitch,
a song of betrayal, salted with revenge.
And the climbing party is stuck on a ledge
halfway up the mountain.
This is the bridge, the painful modulation.
This is the thick of things.
So much is crowded into the middle –
the guitars of Spain, piles of ripe avocados,
Russian uniforms, noisy parties,
lakeside kisses, arguments heard through a wall
too much to name, too much to think about.
Where are you? Are there "others" on the island who would do your newborn society harm? How will resources be distributed? Who, if anyone, is fit and willing, to lead? Is there food and drinking water? Will some members of your community begin to hoard food for themselves? Can anyone track, hunt, kill and bar-b-q the wild boars that roam the island? Who will settle disputes? Who will betray you and who defend you?
And when will you be rescued?
Now that we know that the island is the spiritual place - the dreamworld - the unconscious - where the survivors are challenged by inner and outer demons and given the chance to experience the healing grace inside every human heart - the mysteries need never be solved and the "truth" need never be revealed. The "others" and the Dharma initiative and Jacob; the hydrogen bomb and the time travel; are all just the busy work against which the characters will achieve, or fall short, of their human and spiritual potential.
Yet, as Christian Shepard says at series' end - all of your experiences were real, Jack.
"Lost" as the Prisoners' Dilemma
The first two seasons of Lost were all about the Prisoners' Dilemma - is it better to cooperate with our fellows or to betray them? And which makes us happier?
If a propensity for physical violence were the most prominent human characteristic, we surely would have wiped ourselves off the face of the earth by now. That we haven’t speaks to something even deeper within us than our collective desire to dominate others and control all available resources for our own benefit. Let’s take a deep breath and pause to remember that despite our sorry history of armed conflict, we also managed to land men on the moon, eradicate or drastically reduce a wide array of infectious diseases, end legalized racial segregation, grant women the right to vote in nearly every country in the world, and build civilizations that, for all their flaws, exhibit nearly continuous progress from barbarity to self-governance.
At the local level, most of us stop at red lights; wait patiently in line at the grocery store; refrain from hitting one another when angry; stay off other people’s property unless invited; play organized sports according to rules laid down decades ago; sit quietly through lectures, plays and movies; arrive at work on time; and, pay for what we gather in retail stores to feed and clothe our families. In extremis we not only behave ourselves, we often act heroically – putting our own lives in danger to save those of others – even when they are strangers to us. Firemen enter burning buildings; doctors and nurses risk their own health tending the well-being of others; police officers chase men with guns and enter abandoned buildings even when doing so is likely to get them injured or killed; and a great number of us would reflexively dash out into a street to save someone else’s child from being run over by a truck.
If each of us has decided to answer to the higher angels of our human nature, how might we convince our fellows to do the same? Once again, we turn to the evolutionary biologists for help.
In 1984, Professor Robert Axelrod organized a world-wide tournament among computer programmers. He issued an invitation seeking winning computer strategies for a game called the Prisoner’s Dilemma. The Prisoner’s Dilemma poses a problem involving trust, self-seeking and collaboration that economists use to show why people often fail to cooperate even if it is in both of their best interests to do so.
The game begins its life as the story of a human dilemma. Two suspects are arrested by the police for burglary. Because the police do not have sufficient evidence to convict either suspect, they can only secure a conviction if they are able to convince at least one of the two to confess the crime and implicate his partner. To coax the suspects to confess, the police offer each one the same deal. If either one of the two accused individuals testifies against his partner, he will be freed and his partner will receive a ten-year sentence. If both confess and testify against one another, each will receive a five-year sentence. If both remain silent, they will be sentenced to only six months in jail. These offers are made to the suspects in separate rooms.
The optimal choice for both partners in crime is to cooperate with one another by remaining silent. If they do so, each will earn only a six-month jail sentence. The optimal solution for the individual suspect is to “rat out” his partner, securing his own freedom. Because neither partner is capable of predicting the other’s choice, the only “rational” decision is mutual betrayal.
To learn the best means of resolving this dilemma, Professor Axelrod and others like him engaged their research subjects in repeated rounds – or “iterations” – of the game. Because our community life requires us to daily choose between cooperation and generosity on the one hand, and independence and selfishness on the other, this iterated prisoner’s dilemma best represented conflicts among our fellows in everyday life. Of the fifty iterated Prisoner Dilemma programs submitted to Professor Axelrod, one – named Tit for Tat – was the clear winner. Tit for Tat began each round of play with each new player by cooperating. If cooperative play was met with betrayal, Tit for Tat retaliated on the next occasion it “met” the non-cooperative gamer. Only if that program returned to cooperation would Tit for Tat do the same.
Those programs that were designed to cooperate haphazardly or to continue cooperating in the face of betrayal, were repeatedly victimized. Those programs that chronically betrayed their fellow gamers, became locked in escalating spirals of retaliatory play.
Only Tit for Tat behaved the way evolutionary biologists believe successful human survivors played the game of life. Those survivors were pre-disposed to cooperate with their fellows in at least some circumstances – circumstances in which their families or “kin” were threatened. Those inclined to betray did not, however, die out completely. To bring disreputable players back into the cooperative endeavors that would assure the family’s survival, it was necessary for punishments to be meted out. Banishment or penalties of death for non-cooperative players were not retaliatory options except under extreme circumstances. To survive, families needed “all hands on deck.” The “fittest” to survive, like the winning Tit for Tat computer program, quickly forgave as soon as punishment brought uncooperative family members back into line.
We appear to be hard-wired for cooperation in the same way Tit for Tat was programmed for success. When research subjects played the iterated Prisoner’s Dilemma while attached to equipment monitoring brain activity, the brains of those who were cooperating with one another lit up like pinball machines. Not only did the cooperators win more total points for cooperation than did the betrayers, they were happier whether they were winning or not. As the neuroscientists discovered, when we cooperate, the neurochemical that gives us pleasure – dopamine – is released. At the same time that the cooperators’ brains were being bathed in the warm glow of dopamine, their impulse inhibition areas were activated, helping them resist the lure of self-seeking.
Our evolutionary history has created us to be a “band of brothers” – a human family that places the well-being of the tribe on a higher level than anyone’s “personal best.” If family members betray us (and they will) we doom our effort to secure compliance if we fail to retaliate. A sharp slap on the wrist or even expressed disapproval (the powerful shock of shaming) is usually sufficient to bring miscreants back into line. To optimize the benefits to be gained by cooperation among the greatest number of family members, we must be quick to forgive when our retaliatory actions bear fruit.
As I became more and more involved in the complexities of the Lost narrative, the through line for me was always the Prisoner's Dilemma. The survivors lied about their motives. They betrayed one another. They remained silent when speaking might have saved them. They demonized "the others" only to find that demons inhabited their own hearts as well. When the squabbling amongst them threatened to pull them apart, another threat from "the others" or the wild boars or the deadly black smoke or the hydrogen bomb, drew them back together. And over time, they became kin.
More on Lost and the social psychology of conflict later this week.
My own personal 200-year present spans the life of my maternal grandparents who were nine years old in 1909, and that of my step-children’s children, who (assuming they procreate on a reasonable schedule) should be ninety-five'ish in 2109.
My imagined grandchildren,  born sometime between today and 2014, will not be strangers to any of my grandfather’s technologies. Despite the advent of compact fluorescent light bulbs, the early lives of my step-children's children will likely pass under the glow of the same incandescent lights that brightened granddad’s one-room school house. They will be transported to school in cars with internal combustion engines, learn the same alphabet from the same cardboard and paper books (as well as from the "e" variety)  and play many of the same games he did – hop scotch, jump rope and ring-around the rosy.
Change will etch itself into the lives of my grandchildren as surely as it did my own, my parents' and my grandparents'. Hybrids will give way to fully electric (and perhaps hemp-powered) vehicles (effective or defective) and though electricity will continue to be generated by hydroelectric dams, wind farms and nuclear power plants, some new and unimaginable source of power will surely push back the nights of my grand children's children. 
Law, politics, society and culture also exist in the 200-year present of conflict resolution. In my personal 200-year span, the law seems to have changed the most profoundly. Was it the law first and culture later? Or do they weave our future together?
The first U.S. woman lawyer, Myra Bradwell, was admitted to practice a mere ten years before my grandmother was born. Mrs. Bradwell’s legal career was the subject of one of the sorriest U.S. Supreme Court decisions ever handed down, in which the Court opined,
The civil law as well as nature itself, has always recognized a wide difference in the respective spheres and destinies of man and woman. Man is, or should be, woman’s protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. The constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood. The harmony, not to say the identity, of interests and views which belong, or should belong, to the family institution is repugnant to the idea for a woman adopting a distinct and independent career from that of her husband … for these reasons I think that the laws of Illinois now complained of are not obnoxious to the charge of any abridging any of the privileges and immunities of cities of the United States.
My grandparents', parents' and step-children's 20th Century was dominated by genocide on a scale and a technological precision unimaginable to our earlier forebears. Mid-century brought with it the threat of nuclear annihilation but also liberated millions of people enslaved by colonialism. We cured polio in my own lifetime with both "dead" and "live" vaccines (neither of them counterfeit) - a singular moment in scientific history during which no one took ownership of the cure and no one tried to stop others from seeking another, a problem Patently O addressed this week in Reverse Payments.
Whether god or satan, heaven or hell, war or peace "won" the twentieth century, the world's greatest peace-making body was created during it -- the United Nations. And here in the U.S., the “living room war,” Viet Nam, coupled with the largest generation of adolescents ever to grace American society, ended the forcible induction of young men into the military. 
With the recent discovery of our earliest ancestor, Ardi, our biological and social lives exist in a 4.4 million year now. Our physical bodies “evolve” in the womb along the same lines as did our species and, once born, we carry with us our earliest organs.  Most critical of these to conflict escalation and avoidance is our “fight-flight” mechanism – the amygdala. And the most pertinent biological agents to promote the collaborative resolution of conflict are our “mirror neurons” which
provide a powerful biological foundation for the evolution of culture . . . absorb[ing] it directly, with each generation teaching the next by social sharing, imitation and observation.
How we’ve manage to survive despite our tendency to misread one another’s actions, intentions and emotions, is often the subject of those who advise us how to choose and move juries -- here -- Anne Reed at Deliberations (explaining why "they" don't see things like "we" do here); and, the Jury Room (explaining why pain hurts more intensely when we believe it's been intentionally inflicted here).
The Most Effective Conflict Resolution Technology is the Oldest
One of our true original gangsters, Al Capone, is reported to have said that “you can get much further with a kind word and a gun than you can with a kind word alone” and one of our greatest Presidents, Theodore Roosevelt said “speak softly and carry a big stick.”
As Robert Wright, author of The Moral Animal explained, had Tit for Tat been tossed into the game with 50 steadfast non-cooperators, there would have been a 49-way tie for first place. But none of the players' programs failed to cooperate in at least some circumstances, leaving Tit for Tat the clear victor. According to Wright, humans, like the programs in Axelrod's competition, are evolutionarily “designed” to cooperate under at least some circumstances. The engine and benefit of cooperation is present in our neurochemistry. When scientists observed the brain activity of volunteers playing the Prisoner’s Dilemma game, for instance, they found that the participants' “reward circuits” were activated and their impulsive "me first" circuits inhibited when they cooperated. Cooperation, retaliation, forgiveness and a return to cooperation. Tit for Tat.
We don't "dis" lawyers here at the Negotiation Blog. We simply remind ourselves that our primary purpose is the promotion of justice, with a stable societal order closely behind. Most people don't understand, for instance, that Shakespeare's famous the first thing we do, let's kill all the lawyerswas not an insult. In King Henry IV, Act IV, Scene II, Shakespeare's sentiment was not his own, but that of a revolutionary who wished to destroy the social order.
The historic "present" of laws and lawyers is in the thousands, not simply the hundreds, of years. Hammurabi (make of his choice for the memorialization of his laws what you will) was the sixth king of Babylon, remembered for creating -- in his own name (and likeness?) - the first written and systematic legal code.
For the wrongful killing of another, for instance, the victim’s kin were paid according to the social status of the deceased party. Thus the ‘man price’ for killing a peasant was 200 shillings and that for a nobleman 1200 shillings. Payments were not, however, tailored to the loss, but fixed according to types of affront, a distinction we continue to make when we punish intentional torts more severely than negligent ones. >
Lawyers, litigators and trial lawyers are too often demonized by the ADR community as if you could get someone to sit down to negotiate without first pointing the gun of litigation at their heads; I salute you (and myself, for that matter!) for bringing us all to the bargaining table. See Steve Mehta's recent post at Mediation Matters, Factors When Peace Makes Sense for a note that touches upon the symbiotic relationship between litigation and mediation, litigators and mediators.
I shouldn't cite single legal blogs twice, but I cannot resist this quote of Scott Greenfield's on another pundit's view of the future lawyers have in store for them, i.e.,
shucking oysters for a living if we don't accept a future of lawyers being piece workers in factories, sending our work off to Bangalore in pdf files and complementing people on their choice of forms at Legal Zoom.
Which came first? Public civil trials or private arbitrations? You’ll be surprised, I’ll wager, to hear that arbitration was one of the earliest forms of dispute resolution, practiced by the juris consults of the Roman Empire. Roman arbitration predates the adversarial system of common law by more than a thousand years. 
Ah, the glory of Rome! The juris consulti were (like too many mediators) amateurs who dabbled in dispute resolution, raising the question whether they (and we) should be certified or regulated as Diane Levin asks at The Mediation Channel this week. The Roman hobbyists gave legal opinions (responsa) to all comers (a practice known as publice respondere). They also served the needs of Roman judges and governors would routinely consult with advisory panels of jurisconsults before rendering decisions. Thus, the Romans – god bless them! - were the first to have a class of people who spent their days thinking about legal problems (an activity some readers will recall Ralph Nader calling "mental gymnastics in an iron cage").
It was Buckminster Fuller who famously opined that the "significant problems we face cannot be solved at the same level of thinking we were at when we created them." If you keep this aphorism in mind for the remainder of this post, you'll likely have some extraordinarily innovative comments to make in the comment section below.
As the Law Guru wiki reminds us, we can trace the adversarial system to the "medieval mode of trial by combat, in which some litigants were allowed a champion to represent them." We owe our present day adversarialism, however, to the common law's use of the jury - the power of argumentation replacing the power of the sword.
The Act abolishing the infamous Star Chamber in 1641 also granted every "freeman" the right to trial by "lawful judgment of his peers" or by the "law of the land" before the Crown could "take or imprison" him or "disseis[e] [him] of his freehold or liberties, or free customs." Nor could he any longer be "outlawed or exciled or otherwise destroyed." Nor could the King "pass upon him or condemn him."
English colonies like our own adopted the jury trial system and we, of course, enshrined that system in the Fifth, Sixth, and Seventh Amendments. Whether this 17th century dispute resolution technology can be fine-tuned to keep abreast of 21st century dispute creation technology (particularly in the quickly moving area of intellectual property) remains one of the pressing questions of legal and ADR policy and practice, particularly in a week in which a Superior Court verbally punished the lawyers before it for filing The Most Oppressive Motion Ever Presented (see the Laconic Law Blog). The motion?
Defendants['] . . . motion for summary judgment/summary adjudication, seeking adjudication of 44 issues, most of which were not proper subjects of adjudication. Defendants’ separate statement was 196 pages long, setting forth hundreds of facts, many of them not material—as defendants’ own papers conceded. And the moving papers concluded with a request for judicial notice of 174 pages. All told, defendants’ moving papers were 1056 pages.
Mediator, author and activist, Ken Cloke, suggests that interest-based resolutions to conflict must replace power and rights based resolutions if we expect to create a future in which justice prevails. As Ken wrote in Conflict Revolution:
Approaching evil and injustice from an interest-based perspective means listening to the deeper truths that gave rise to them, extending compassion even to those who were responsible for evils or injustices, and seeking not merely to replace one evil or injustice with another, but to reduce their attractiveness by designing outcomes, processes, and relationships that encourage adversaries to work collaboratively to satisfy their interests.
Evil and injustice can therefore be considered byproducts of reliance on power or rights, and failures or refusals to learn and evolve.
All political systems generate chronic conflicts that reveal their internal weaknesses, external pressures, and demands for evolutionary change. Power- and rights-based systems are adversarial and unstable, and therefore avoid, deny, resist, and defend themselves against change. As a result, they suppress conflicts or treat them as purely interpersonal, leaving insiders less informed and able to adapt, and outsiders feeling they were treated unjustly and contemplating evil in response.
As pressures to change increase, these systems must either adapt, or turn reactionary and take a punitive, retaliatory attitude toward those seeking to promote change, delaying their own evolution. Only interest-based systems are fully able to seek out their weaknesses, proactively evolve, transform conflicts into sources of learning, and celebrate those who brought them to their attention.
These are the words I leave with the readers of Blawg Review #234 because they are the ones that informed my personal and professional transformation from a legal career based on rights and remedies to one based upon interests and consensus.
Whatever my own personal 200-year present was, is and will be, it is pointed in the direction of peace with justice, with an enormous and probably unwarranted optimism best expressed by the man after whom my law school was named: Martin Luther King, Jr. - the arc of history is long, but it bends toward justice.
Blawg Review has information about next week's host, and instructions how to get your blawg posts reviewed in upcoming issues. Next week's host, Counsel to Counsel, will devote its round-up of the week's best legal posts to the Great Recession.
 Earlier scientific theory posited that each human embryo (see Embryo Mix-Up at the Proud Parenting Blog) passes through a progression of abbreviated stages that resemble the main evolutionary stages of its ancestors, i.e., that the fertilized egg starts as a single cell (just like our first living evolutionary ancestor); as the egg repeatedly divides it develops into an embryo with a segmented arrangement (the “worm” stage); these segments develop into vertebrae, muscles and something that sort of looks like gills (the “fish” stage); limb buds develop with paddle-like hands and feet, and there appears to be a “tail” (the “amphibian” stage); and, by the eighth week of development, most organs are nearly complete, the limbs develop fingers and toes, and the “tail” disappears (the human stage). It turns out that this one-to-one correlation was too simplistic, but it remains safe to say that our biological development still passes through several stages that “recapitulate” the evolution of our species.
 The amygdala is a region of the brain that permits the formation and storage of memories associated with emotional events. It permits us to “read” the emotional responses of our fellows and is thought to facilitated our ability to form relationships and live and work in groups. It is also the source of our “fight or flight” response to danger.
Studies show that some mirror neurons fire when a person reaches for a glass or watches someone else reach for a glass; others fire when the person puts the glass down and still others fire when the person reaches for a toothbrush and so on. They respond when someone kicks a ball, sees a ball being kicked, hears a ball being kicked and says or hears the word "kick."
“When you see me perform an action - such as picking up a baseball - you automatically simulate the action in your own brain,” said Dr. Marco Iacoboni, a neuroscientist at the University of California, Los Angeles, who studies mirror neurons. ”Circuits in your brain, which we do not yet entirely understand, inhibit you from moving while you simulate,” he said. ”But you understand my action because you have in your brain a template for that action based on your own movements. “
 Looking toward the future, the Neuroethics and the Law Blog predicts that in the “experiential future, we will have better technologies to measure physical pain, pain relief, and emotional distress. These technologies should not only change tort law and related compensation schemes but should also change our assessments of criminal blameworthiness and punishment severity” here.
The adversarial system of medical negligence fails to satisfy the main aims of tort law, those being equitable compensation of plaintiffs, correction of mistakes and deterrence of negligence. Instead doctors experience litigation as a punishment and, in order to avoid exposure to the system, have resorted not to corrective or educational measures but to defensive medicine, a practice which the evidence indicates both decreases patient autonomy and increases iatrogenic injury.
(Iatrogenic, by the way, is a fancy term for “we have know idea whatsoever what the source of this ailment is). Chris is looking for comments so run on over there if you’ve been thinking about medical malpractice litigation during the marathon American health care debates.
According to Robert Wright in The Evolution of God (reviewed in todays NYT Book Review by Paul Bloom) "God has mellowed" from a capricious tyrant into non-zero-sum playing diety. This is good news for mediators and anyone else in search of a better paradigm for conflict resolution than the 16th century adversarial system. As Bloom explains Wright:
When people see themselves in zero-sum relationship with other people — see their fortunes as inversely correlated with the fortunes of other people, see the dynamic as win-lose — they tend to find a scriptural basis for intolerance or belligerence.” The recipe for salvation, then, is to arrange the world so that its people find themselves (and think of themselves as) interconnected: “When they see the relationship as non-zero-sum — see their fortunes as positively correlated, see the potential for a win-win outcome — they’re more likely to find the tolerant and understanding side of their scriptures.” Change the world, and you change the God. For Wright, the next evolutionary step is for practitioners of Abrahamic faiths to give up their claim to distinctiveness, and then renounce the specialness of monotheism altogether. In fact, when it comes to expanding the circle of moral consideration, he argues, religions like Buddhism have sometimes “outperformed the Abrahamics.
I understand from Bloom's review that Wright -- either a firm agnostic or wavering atheist -- is moved to wonder whether a universe in which moral progress takes place might suggest the presence of a higher power. Quoting Wright, Bloom observes:
[Wright] emphasizes that he is not arguing that you need divine intervention to account for moral improvement, which can be explained by a “mercilessly scientific account” involving the biological evolution of the human mind and the game-theoretic nature of social interaction. But he wonders why the universe is so constituted that moral progress takes place. “If history naturally pushes people toward moral improvement, toward moral truth, and their God, as they conceive their God, grows accordingly, becoming morally richer, then maybe this growth is evidence of some higher purpose, and maybe — conceivably — the source of that purpose is worthy of the name divinity.
Whatever the source of our moral development, divine or "mercilessly scientific," its encouraging on a bright summer Sunday to believe we can achieve, if not perfection, at least greater decency toward the divine in one another.
As every lawyer knows and most students of high school geometry must learn in mastering "proofs," the answer often comes first, the rationale later. I used to say, "I'm a litigator, I can rationalize anything." As a mediator, my rationalizations have turned from the way in which facts can be shoe-horned into causes of action or affirmative defenses to the way in which harm arising from a dispute (including, most assuredly, the moral harm of injustice) can be monetized.
Now David Brooks in the New York Times (which appears to have disabled the "copy" function/1) tells us that philosophy has been sacrificed on the alter of emotion in his column The End of Philosophy.
As Brooks explains, reasoning comes after moral judgment and "is often guided by the emotions that preceded it." The good news is that those emotions are not merely competitive. Brooks again:
Like bees, humans have long lived or died based on their ability to divide labor, help each other, and stand together in the face of common threats. Many of our moral emotions and intuitions reflect that history. We don't just care about our individual rights, or even the rights of other individuals. We also care about loyalty, respect, traditions, religions. We are all the descendents of successful cooperators.
My mediation experience teaches me that the "soft" arts of influence, empathy, community-building, and prejudice reduction, are as important (and often more important) to the successful (i.e., satisfying) resolution of a lawsuit than our prized ability to parse the evidence, rationalize away the bad and privilege the good to sell our "proof" to judge or jury.
Most importantly, I find that when attorneys' clients leave a mediation with the belief that a certain rough justice has been obtained, they are more satisfied with the outcome, and with their attorneys' representation of their interests, than they might have been had they left with 10% more change jingling in their pockets.
The experts who study mediation tell us that "neutrals" don't make the difference between settling or not settling. The cases will settle with or without us. The difference mediators make is not settlement, but client satisfaction. Satisfied clients are an absolute necessity for a successful legal practice at any time. In these hard times, legal practices may fail in the absence of resolutions addressing the justice issues your client sought out a lawyer to resolve in the first place.
Money is the instrument. But justice is the issue.
As a mediator, the question I hear most frequently from lawyers is "How do I convince my opponent to sit down and negotiate without losing my competitive advantage?"
Believe it or not, the answer is transparency.
If you can remember way back to last July, when firms like Microsoft and Yahoo were still engaging in business as usual, you might recall that a merger fell apart because Yahoo was acting "weird." At least that's what Microsoft's chief executive, Steve Ballmer, told the Wall Street Journal.
"We had an offer out that was a 100 percent premium on the operating business of the company and there wasn't a serious price negotiation ... until three months later. It was a little ... weird."
Lawyers know that three months rushes by in the blink of an eye. The board of directors meets. It seeks an analysis from the mergers and acquisitions people, who consult with outside counsel's antitrust department, which renders a decision but whose members first have to chat with the tax guys. Then there are the IP people with whom to discuss license agreements and, of course, the managers in the human resources department, who may or may not have advice about executive parachutes - platinum, golden or brass.
And yet the Yahoo-Microsoft merger fell apart because Microsoft felt that Yahoo's delay was "weird."
Let's go back to what every trial lawyer knows. In the absence of information, people make stuff up. Weird stuff.
And the stories we tell ourselves about our uncommunicative commercial partners do not include one where the other guy is laboring day and night to fulfill our fondest desires. No. In the absence of information, we weave elaborate conspiracy theories in which our opponents are scheming to fleece us of our rights, obstruct our prospective economic advantage and turn our world upside down.
Your dentist can tell you what your opponent wants to be told. A fully illustrated pre-game outline of the upcoming procedure that goes something like this "First I'll put a little numbing cream on your gum. That way the shot of Novocain won't hurt too much. Then I'll drill," she'd say, holding the fearful appliance up and switching it on. "It may sound louder in your mouth than it does here in my hand, but I'll only have it on for about five minutes, after which ... etc., etc."
So how do you get your opponent to the bargaining table without sounding weak?
You say "Listen, Ted, I know both our clients believe their cases are as good as gold but after an initial round of discovery, it's my practice to call a timeout to discuss settlement."
"How does that sound to you?"
Ted says it sounds all right. Which it does. Because Ted's got three incredibly acrimonious cases in his practice right now. Last year, one of his adversaries served an ex parte application with three bankers boxes of exhibits the day before Christmas. At 4:59 p.m. And she scheduled the hearing for hearing on the day after Christmas. Sure, the judge would deny it, but Ted couldn't assume anything. He worked 15 hours on Christmas Day.
So it sounds good to Ted.
More important to your own litigation plan, your opponent has just agreed to come to the bargaining table, even though the actual meeting won't be held for several months. When the appointed hour arrives, you will not have to ask for a settlement conference at a time when it might show weakness on your part. It's part of the plan.
the economists David Hemenway and Sara Solnick demonstrated in a study at Harvard, many people would prefer to receive an annual salary of $50,000 when others are making $25,000 than to earn $100,000 a year when others are making $200,000.
Why? Because we "care more about social comparison, status and rank than about the absolute value of our bank accounts or reputations." In other words, we're more concerned with justice (fairness) than we are about the money. Which is why our clients have sought out our help with their personal, financial and commercial problems -- because we're in the justice business. When we understand this, the negotiation of financial settlements becomes a whole lot easier because there are many more ways to deliver justice than by throwing money at it.
Psychologists tell us that we are not only "meaning making" beings, but that we are all born conspiracy theorists. Viewing a field of nonsensical, unrelated data, we naturally begin to "connect the dots" - to organize the information into a coherent, and often compelling, narrative.
Pattern making or conspiracy theorizing is a human survival mechanism. We have never been the fastest or the biggest creatures on the planet. We don't have the sharpest teeth or blend in all that well with the scenery. Our soft, easily punctured skin is not covered with a protective shell. In a pinch, we can't take a running leap and fly away from land-bound carnivores who might make us their prey.
We are, however, the canniest creatures on the planet. To avoid the tiger who made lunch of our best comrade, we surveyed the scene and committed the pattern of otherwise unrelated details to memory. Five banyan trees, a narrow stream, and, a pile of rubble left by a recent avalanche means "there are tigers here."
Couple this with Fundamental Attribution Error and you have all of the ingredients necessary to blame inadvertently caused harm on elaborate conspiracies cooked up by our untrustworthy companions - Fundamental Attribution Error being our universal tendency to over-emphasize the role of others' negative personality traits to explain why harm befell us.
So it is with our legal adversaries. Once the channels of communication have been severed by the filing of a lawsuit, attorneys and clients alike begin to make up "what really happened" based on predispositions, scattered conversations, faulty memories and scraps of documentation.
People who are joined together by a dispute -- which includes everyone engaged in litigation and their attorneys -- are suffering more than most from a universal cognitive bias known as fundamental attribution error. FAE is one of the ways we explain our troubles to one another.
If we have suffered misfortune and are able to attribute our loss to the actions of another, we will universally attribute the series of events resulting in our loss to the bad intentions or evil character of the person we lawyers call "the defendant."
If we are the defendant, we will universally attribute the series of events resulting in the injured party's loss to the circumstances causing Plaintiff's harm (or, of course, to the Plaintiff's evil intentions).
The attribution of harm primarily to character or motive on the part of the victim and primarily to circumstance on the part of the accused is fundamental because it is hard-wired into the way we think. It is an attribution error because it attributes effect to a particular type of cause. It is error because all human activity and the inevitable conflicts that arise from it
"take[s] place not only between individuals, but in a context, culture and environment; surrounded by social, economic, and political forces; inside a group or organization; contained by a system and structure; among a diverse community of people at a particular moment in time and history; on a stage; against a backdrop; in a setting or milieu."
In other words, all events, conflicts, injuries, and benefits, all causes and effects are determined both by human actors and by circumstance. We are the cause and the effect of everything that surrounds us and everything that we surround.
How does this knowledge help us resolve our disputes and why does the way we tell our stories hold the key to resolving them? I could give you more explanations from the field of social psychology or I could simply tell you a story. In this case, I tell the story of a book of stories written by Malcolm Gladwell who writes about the stories we tell ourselves and one another about success. Gladwell, we're told, introduces us to Bill Gatesas
a young computer programmer from Seattle whose brilliance and ambition outshine the brilliance and ambition of the thousands of other young programmers. But then Gladwell takes us back to Seattle, and we discover that Gates’s high school happened to have a computer club when almost no other high schools did. He then lucked into the opportunity to use the computers at the University of Washington, for hours on end. By the time he turned 20, he had spent well more than 10,000 hours as a programmer.
At the end of this revisionist tale, Gladwell asks Gates himself how many other teenagers in the world had as much experience as he had by the early 1970s. “If there were 50 in the world, I’d be stunned,” Gates says. “I had a better exposure to software development at a young age than I think anyone did in that period of time, and all because of an incredibly lucky series of events.” Gates’s talent and drive were surely unusual. But Gladwell suggests that his opportunities may have been even more so.
Leave it to a legal marketing blog -- Lawyer Casting - to choose Evolution Day for its first entry into the BlawgReviewOSphere. As blogger Joshua Fruchter explains in Blawg Review #187, because the anniversary of Charles Darwin's publication of The Origin of Species on November 24, 1859 is inextricably intertwined with the idea that only the fittest survive, Evolution Day should be celebrated with advice for survival. And so it is.
For those of us who toil the legal fields, Fruchter suggests a range of survival options including
*/ Pepper Hamilton is podcasting?????? A short but vivid season of my legal career was served as a Pepper associate back in the late '80s (Alum Network here) when this grand old Philadelphia law firm turned 100 at which time it was still using quill pens - at least in the Philly office. In the Los Angeles office, we associates routinely gathered in the library (yes! with books) and were required to share the one Lexis/Nexis research station which we were forbidden to use except in the most dire circumstances and with pre-approval.
Some attorneys and mediators make light of the power of the apology ("it's only about money"). My education, training and experience consistently suggest otherwise.
Today, we learn a lesson in heart-felt apology from Larry Bodine for a post I hadn't seen, but which Bodine himself admits was anti-Semitic.
"Elevator Pitch" Post Deleted I sincerely apologize for the crude and offensive "Elevator Pitch" post I put online last week. In the clear light of morning, it is clear that it was anti-Semitic and repellent. I want to thank all the people who commented and called me about it; I listened and took what you said to heart.
If you read on here you'll see that Bodine did not simply say "I'm sorry." He removed the admittedly offensive post; disowned it; and, empathized with those who found it offensive by sharing his own family's WWII imprisonment story.
Words that heal include expressions of caring, concern, gratitude and affirmation. [I]n demolishing the walls of hostility, we must be prepared to examine our own pattern of spoken words and embrace the practice of ethical speech. . . .
Because Bodine himself admitted the anti-Semitic nature of his post, it falls into the category of an identity-based conflict with some or all of his readers. Though speaking from a religious or "faith-based" viewpoint, I always found Cox' prescriptions for resolution to work equally well from the point of view of secular humanism. As Cox explains:
A faith-based reconciliation framework applied to an identity-based conflict . . . consists of six basic elements: imparting moral vision, building bridges between estranged groups, a peace accord, advocacy for social justice, political forgiveness, and healing deep collective wounds.
More particularly, Cox recommends the following specific steps:
1. Sharing life journeys and building common ground.
2. Sharing perceptions of the conflict.
3. Engaging in problem solving.
4. Sharing how one has caused offense to the other.
5. Exploring each community's narrative of history and perception of historical wounds.
If you read Bodine's spontaneous apology, you will see all of these elements contained in it. This is not surprising because apology and attempts to re-build interpersonal bridges are hard-wired into us as toddlers. As I wrote in "Shame by Any Other Name,"
Shame . . . "acts as a powerful modulator of interpersonal relatedness and . . . ruptures the dynamic attachment bond between individuals." 30 When an individual has broken this bond, he wishes to recapture the relationship as it existed before it turned problematic. 31 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. 32 This process is called self-righting. 33 It is natural and universal. 34 The shamed toddler reflexively looks up at and reaches toward his mother. 35 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. 36
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. 37 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. 38
This may all seem excessively academic. The point is that we all trespass on the feelings of others; those feelings are critical to our connection with one another; our connection with one another is fundamental to our individual well-being and our survival as a species; the urge toward reconciliation is therefore natural, as are our desire to be forgiven, our spontaneous expressions of remorse, our attempt to explain and normalize our bad behavior (we are all fallible and we have all suffered harm) and our fellows' willingness to forgive, particularly when we bare ourselves and our histories to one another in the course of our effort to re-establish what joins us and to move beyond that which divides us.
And for that lesson, we owe thanks to Larry Bodine this evening.
Earlier this week I was asked the following question by a concerned General Counsel: how can we help our employees grapple with on-the-job justice issues without leading them to believe that our proposed solutions are untrustworthy.
Our company spends an inordinate amount of time explaining disability, workers comp and federal employment law to employees who misunderstand what their rights are, or do not give us the right information to help them get the help they need.
Of course, we are the big bad employer, so any information we give them is suspect. I have considered hiring a social worker as a case manager/advocate for these people, but that position would just be interpreted as another tool of the evil employer out to keep them out of work/make them go back to work in violation of their best interests, so it would be a waste.
We would LOVE if there was an independent agency that would assign a case worker, not to work as an attorney for the employees, but as an advocate to help them understand their rights and access the system correctly. I would gladly pay to fund this service.
Then I realized, if the employer, or a group of employers, funded this employee advocacy agency, employees would think the advocates were biased toward the employers and were just in a sham relationship to deprive them of their rights to serve the interest of the employer.
Now, I do not believe this would be the case. I trust in the professionalism and ethics of mediators, but I do believe that uneducated and single users would form that opinion. Professor Murray's opinion reinforces that conclusion, even though at first glance, he would seem to be "educated."
But, is bigger government the answer. My experience with the EEOC is that they want employers to do MORE than is required by law. We have had success with mediators after complaints are filed, but my goal is to get the employees what they need when they need it, not have a mediator help us fix it after time has run out.
What are your thoughts on this?
The Problem as Cognitive Bias
I've highlighted the sections of the GC's email that raise the problem of reactive devaluation -- our tendency to devalue and resist anything our "opponent" offers to us. Most attorneys were taught reactive devaluation as first year associates -- "if opposing counsel wants it, you don't."
One can be led to conclude that any proposal offered by the “other side”—
especially if that other side has long been perceived as an enemy—must be
to our side’s disadvantage, or else it would not have been offered. Such an
inferential process, however, assumes a perfect opposition of interests, or in
other words, a true "zero-Sum" game, when such is rarely the case in real-
world negotiations between parties whose needs, goals, and opportunities
are inevitably complex and varied.
Combatting Reactive Devaluation in the Workforce
Cognitive biases such as reactive devaluation are not random artifacts of an irrelevant evolutionary past. They are built-in protections against deception by our friends as well as by our adversaries. There is only one lasting protection against this bias -- to engage in clear communication with your work force on a daily basis concerning the mutual and complementary interests of employer and employee; to express your belief in your interdependence in word and deed, i.e., by engaging in dialogue and activities demonstrating benevolent intent; and to willingly listen to one another's complaints, understanding that one man's benevolence is another's bondage.
What's a diagnostic question? One that would reveal our bargaining partners' needs, desires, priorities, preferences and motivations. I'm no employment expert, but I have participated in the management of law firm personnel as a partner and have been managed by others throughout my professional life. As a full-time mediator for more than four years, I have also asked hundreds if not thousands of diagnostic questions to help litigation adversaries understand one another's motivations, to reframe those motivations as non-threatening, or, at a minimum, the result of ordinary human fallibility, and to explore the parties' mutual and complementary interests. I also remind my parties and myself as often as possible that you cannot drill a hole in the other guy's side of the boat without making your own side sink to the bottom of the lake as well.
Empowerment, according to [the fathers of the transformative paradigm] Bush and Folger, means enabling the parties to define their own issues and to seek solutions on their own. Recognition means enabling the parties to see and understand the other person's point of view--to understand how they define the problem and why they seek the solution that they do.
(Seeing and understanding, it should be noted, do not constitute agreement with those views.)
Often, empowerment and recognition pave the way for a mutually agreeable settlement, but that is only a secondary effect. The primary goal of transformative medition is to foster the parties' empowerment and recognition, thereby enabling them to approach their current problem, as well as later problems, with a stronger, yet more open view. This approach, according to Bush and Folger, avoids the problem of mediator directiveness which so often occurs in problem-solving mediation, putting responsibility for all outcomes squarely on the disputants.
Rights and Remedies vs. Interests
It's not surprising that employees just don't seem to "get" the legal rights and remedies company HR departments keep trying to explain to them. They don't make any sense absent legal training.
People who are not lawyers simply don't understand why there is a legal remedy for one type of injustice but none for another that feels just as unfair. Let's take our patchwork of Constitutional protections for employees. As an life-long ACLU member, I'd be the last to denigrate them. But we have to understand that we've created a "fair" workplace for only some of our citizens, not all of them.
Women, people over 40, under-represented minorities and the like, can take the square peg of their unfair work treatment and cram it into the round hole of a viable cause of action. If an employee does not want to cry "gender discrimination" even though she's being treated badly on the job, or if he has no bundle of legal rights to assert, there is no remedy for a termination that feels (yes, feels) wrongful. Remember, it took us lawyers quite some time for the legal worldview to "click" and we were immersed in it, drilled in it and eager to learn it. Employees just want someone to listen to their problem and to help them resolve it. They don't want to know the wage-hour laws, the need to exhaust administrative remedies with the EEOC and the like.
Employees and employers have people problems with justice issues, not legal problems with "irrelevant" emotional responses that get in the way of resolution.
Expressed emotion is the key, not the lock.
It is we -- the lawyers -- who legalize and monetize injustice, shutting our clients down when they try to explain what the problem really is because it's irrelevant to the legal solution.
If you're old enough to remember the lingering moment in United States history when our educational institutions went from white, on the one hand, to multi-hued, on the other, you'll know intimately how you deal with reactive devaluation. You get to know one another. Do this andKaneesha is not "black" or "African American" but a well-known acquaintance or dear friend. The same is true for employers and employees. Create activities in which (alleged) oppressor and (purported) oppressed come together to engage in mutually productive (Habitat for Humanity springs to mind) and mutually enjoyable (basketball? girls nights out?) activities. At the holiday party, don't relegate the "underlings" to their own table. Walk your talk. Destroy the hierarchy everywhere except where it's actually necessary to get work done.
I can't describe the benefits of interest-based resolutions over rights-based solutions any better than does my mentor and friend, Ken Cloke, in his brilliant new book -- Conflict Revolution.
[r]ights-based processes . . . generate winners and losers, undermine relationships, and result in collateral damage, . . . Since rights rely on rules, change is discouraged, though not prevented, and conflicts are settled rather than prevented or resolved.
This is not easy work. As a mediator, I know how elusive Cloke’s “outcomes” can be
-- outcomes [in which] both sides win and no one loses, when former adversaries en-
gage in meaningful dialogue and reach satisfying agreements, and when power is exercised with and for each other by jointly solving common problems.
I have, I am afraid, given my GC a problem rather than a solution. More accurately, I've suggested an altered way of looking at the problem without a great deal of detail about crafting a solution. Not only could people better versed in employee relations write books on this topic, they have. Therefore, I'm asking my good ADR blogging buddies to please chime in here for you.
Max Kennerly over at Litigation and Trial has graciously and profusely responded to our call for comments about the road-blocks to achieving optimal negotiated resolutions to litigated disputes.
Because Max and I are straining toward the same goal every litigant does when the burdens of a lawsuit begin to outweigh its anticipated benefits, I'm going to include my readers in the conversation.
Our Interests are Adverse, Not Mutual or Intertwined
Max suggests that the hypothetical "business school" negotiated resolution doesn't provide litigators with much guidance in resolving litigated disputes because the buyer-seller-mutual-or-intertwined-interest template cannot be comfortably laid over a conflict between parties whose interests are entirely adverse. As Max explains:
The parties to a lawsuit do not have intertwined interests: they have directly adverse interests. Unless there's some possibility of a future relationship, the defendant doesn't want to resolve the conflict: they want the plaintiff to drop their frivolous claim. In their mind, their best alternative to a negotiated agreement ("BATNA") is for the plaintiff to crawl in a hole and die.
Same with the plaintiff. Unlike buyers and sellers, who usually don't get much joy out of their 'conflict' as a conflict, the plaintiff usually prefers imposing a conflict on the defendant (who the plaintiff believes cast the first stone) in pursuit of justice, an imposition they will only relieve for at least "full" compensation.
The problem is that most parties don't consider their claims to be assets; the problem isn't that there's emotional baggage around the economic understanding, it's that the parties interpret their dispute as fundamentally non-economic.
Before moving on to adverse/intertwined/mutual interests, I want to emphasize that what the parties "interpret . . . as fundamentally non-economic" is the key to the settlement of litigated disputes -- not a roadblock.
Nor can the feelings that accompany litigation be called "emotional baggage" unless we interpret the desire for justice as pathology.
People seek out lawyers rather than therapists to resolve the emotional issues that accompany conflict -- because they believe themselves to be victims of injustice and lawyers are in the justice business. Our clients have not simply suffered an injury (tripped over their own feet) but have a wrong (stumbled over a trip wire placed in their path by a malicious or careless actor). We can explain until we're blue in the face that money is the only remedy the law can provide. Our clients will continue to seek justice and will not easily settle for money alone.
"The Unicorn Settlement"
Max asks that I acquaint him with the Unicorn -- the state "where two hostile parties on the verge of a lawsuit get lawyers, almost file suit, and then, through deft representation, settle their differences peacefully and move on" Unicorns. Excluding business disputes where the parties have an existing and potentially mutually beneficial on-going relationship, this type of settlement, says Max, is a myth. He explains:
I entered the law expecting The Unicorn to be rare but real; by this point, I have been trained by defense lawyers not to bother to check for it. I still usually do, throwing out what I think is a perfectly reasonable offer early on, which is routinely ignored or dismissed by a letter that gratuitously refers to my claims as baseless, frivolous, or made in bad faith.
So that's my biggest question to you: how do you suggest I get defendants, prior to the courthouse steps, to even enter the mindset that there's a valid claim and mediation / settlement should be considered? Reframed in words closer to your post: what can I do to (a) get the joint session to happen and (b) ensure everyone's in the right mindset?
The Conditions in Which Unicorns Flourish
When I started practice -- in 1980 -- I did so in a small community -- Sacramento -- where everyone was a "repeat player" with everyone else. Perhaps more importantly, you could file a suit in year one and try it to a jury in year two. Not only defense counsel, but insurance adjusters, knew which plaintiffs' attorneys would try cases and which would not. They also knew which ones could persuade a jury to bring back a hefty award.
Though I only handled personal injury litigation for my first two years of practice (after which I changed firms and moved on to commercial litigation) I saw dozens of "unicorns" in my first few months of practice. As the junior-most attorney in a small P.I. practice, I settled hundreds of cases without ever filing a lawsuit -- on the telephone with insurance adjusters. (A really, really good reason to leave PI practice, but that's another story).
I settled these cases in the world of "three times specials" at a time when and in a place where everyone knew one another and used a common metric to evaluate potential liability and damages. In that environment, Unicorns flourished.
Unicorn Hunting in the 21st Century
Max isn't asking me to shoot ducks in a barrell here. He's asking me to deliver the holy grail of mediation -- how to convene an early settlement conference in which the parties (and their attorneys) are united in a desire to settle litigation without protracted discovery or pre-trial procedural wrangling.
I hate to keep leaving my readers on the edge of a satisfactory resolution, but I DO have work to do and will return to this -- and Max's further observations -- soon, really soon. Stay tuned. And join the conversation by leaving your own comments here.
Let's say you meet up with an alien race and you need to bargain with them by radio or some other method of signaling. You don't have any other information other than your knowledge of human beings. What traits should you think are overrepresented in humans, relative to what a rerun of evolution can be expected to produce in an intelligent being? Would you expect them to be more or less benevolent than humans? Should it matter if they have demonstrated superior technology? Should such achievement make you think they are more or less cooperative toward "outsiders"?
I suspect that all of these questions are meant to lead to the conclusion that "people" from more advanced civiliations would naturally be more peaceful, less aggressive and more cooperative with one another than we are.
Even though [our primate forbears the] ustralopiths walked upright on the ground, they retained short legs for 2 million years for the same reason squatness helped out other great apes—for male-male combat. With the advantage in combat, short-legged primates would likely be victorious and gain access to females. That meant passing their genetic traits, like shortness, to offspring.
Could intelligent human beings have evolved without aggression? Certainly.
researchers Male and female [chimpanzees] do not associate in families but in separate hierarchies. Males make females defer to them, with violence whenever necessary, and every female is subordinate to every male.
A female chimp advertises her fertile period with a visible swelling and is then so pestered by males that she may get to eat only at night. . . .
Though bonobos are almost as aggressive as chimps, they have developed a potent reconciliation technique -- the use of sex on any and all occasions, between all ages and sexes, to abate tension and make nice.
Assuming the common ancestor of people and chimps had social behavior that was essentially chimplike, how much of that behavior has been inherited by people? The unusual behavioral suite of male kin bonding and lethal territorial aggression may look as if it has been inherited with little change. Among the Yanomamo, a South American tribe, the number of males who die from aggression is about 30 percent, the identical rate found among Gombe chimps.
Dr. Wrangham said the consistent pattern of aggression seen at all the chimp sites suggests that male chimps have ''a strong emotional disposition'' to be aroused by the sight of strange males, to form coalitions against enemies, to be sensitive to balances of power and to be attracted to hunting. The same disposition could have been inherited down the human lineage.
Turns out Freud was right. Aggression is all about sex. But it's also about tool-making (i.e., weaponry). So we have evolved to be competitive and collaborative. Tool making to ease our work-load and to kill our "enemies." So far, our advances continue to outpace our many attempts to destroy ourselves.
What might have worked for the advancement of other civiliations? If all possible worlds exist, as physicists claim, other worlds may well have developed life in some way other than evolutionarily. Maybe by intelligent design! There's simply no telling. I would, however, speculate that a species taste for its members blood must be balanced by affiliative instincts and activities or its development would be cut short by species-cide.
The take-away for negotiators who are strangers in a strange land?
Learn how to communicate with the aliens. Ask them questions concerning their needs, interests and desires. Tell them about your own. Put down your weapons and back slowly away.
Anyone who is as fascinated by these questions as I am, read this post from Such is Life about whether or not we'd "see" aliens if they arrived on our shores. Answer? Not likely.
According to writer and surgeon Atul Gawande's recent article The Itch, the way the pepper tree in my back yard appears from my bedroom window may be as much as ninety percent memory and only ten percent "data." As Gawande writes:
Given simply the transmissions along the optic nerve from the light entering the eye one would not be able to reconstruct the three-dimensionality, or the distance, or the detail of the bark -- attributes that we perceive instantly.
In other words, perception is not merely reception. "Objective reality" is just the brain's "best guess" about what the eyes observe, the ears hear and the fingers touch.
"The images in our mind," Gawande explains, "are extraordinarily rich."
We can tell if something is liquid or solid, heavy or light, dead or alive. But the information we work from is poor -- a distorted, two-dimensional transmission with entire spots missing. So the mind fills in most of the picture. You can get a sense of this from brain-anatomy studies. If visual sensations were primarily received rather than constructed by the brain, you'd expect that most of the fibres going to the brain's primary visual cortex would come from the retina. Instead, scientists have found that only twenty per cent do; eighty per cent come downward from regions of the brain governing functions like memory. Richard Gregory, a prominent British neuropsychologist, estimates that visual perception is more than ninety per cent memory and less than ten per cent sensory nerve signals.
Gawande doesn't explain how we manage to agree on anything with such impoverished perceptual abilities and richly imagined constructs of "objective reality." I suspect that our insatiable urge to tell one another stories is the primary way we create the collective memories that allow us to agree upon such simple "facts" as "the apple is red and somewhat round," if not necessarily that "the blue Kia entered the intersection after the traffic light turned red."
What strikes me about Gawande's article is not so much the pure science described there, but the way in which opposing parties in litigation resemble "phantom limbs" and joint sessions the mirrors used by physicians to treat the pain "felt" in them.
Recent research demonstrates that amputees' phantom limb pain can be reduced or eliminated by "fooling" the brain into believing that the missing limb is "well." When researchers asked amputees to put their surviving arm through a hole in the side of a box with a mirror inside and to then move "both" arms,
[t]he patients had the sense that they had two arms again. Even though they knew it was an illusion, it provided immediate relief. People who for years had been unable to unclench their phantom fist suddenly felt their hand open; phantom arms in painfully contorted positions could relax. With daily use of the mirror box over weeks, patients sensed their phantom limbs actually shrink into their stumps and, in several instances, completely vanish. . . .
. . . here’s what the new theory suggests is going on: when your arm is amputated, nerve transmissions are shut off, and the brain’s best guess often seems to be that the arm is still there, but paralyzed, or clenched, or beginning to cramp up. Things can stay like this for years. The mirror box, however, provides the brain with new visual input—however illusory—suggesting motion in the absent arm. The brain has to incorporate the new information into its sensory map of what’s happening. Therefore, it guesses again, and the pain goes away.
Litigation separates the parties from one another as radically as an amputation, often under circumstances where the law suit is all they have in common. Like amputees, the parties cannot massage the missing muscle, scratch the irritating itch, or ease the frustrating pain.
When physicians give their patients mirrors and instruct them to move their one remaining arm in concert with its physically re-imagined partner, they conduct a silent concert of healing. With "new" information (hey! there's my other arm and it's not all cramped up!) the brain readjusts and stops sending false signals. The muscle relaxes. The itch is scratched. The pain is relieved.
Joint sessions can be used as mirrors to make missing disputants appear again./* The mediator -- who is trained in this art -- creates an environment (the "box") in which the parties are able to adjust the mis-impressions and correct the mis-communications that make the conflict so difficult to resolve. After a brief period of discomfort and incoordination, the disputants begin to tell their stories of injustice in concert, spontaneously harmonizing the points on which there is little disagreement and resolving those parts of the tale where the greatest differences lie.
Those parts of the story that have grown wildly distorted in the absence of any corrective influence, are shrunk back to their appropriate size. Freed from the tyranny of their phantom "others," the parties begin to work collaboratively to solve the problem that they now understand is mutual.
Though this is surely metaphor, the process is not just theory. When parties consent to a joint session orchestrated by the mediator in collaboration with their attorneys, this type of reconciliation happens more often than not.
Don't, however, confuse this joint session with those in which attorneys give one another presentations proving their entitlement to victory as if there were a phantom "decider" -- a missing arbitrator or judge -- somewhere behind a curtain. These are the type of "joint sessions" that have given joint sessions a bad name because counsel well know their opponents' "positions"and the parties tend to become less rather than more amenable to settlement when their opponents' point of view is once again argued to them -- this time in quarters that are far too close for most lawyers, let alone their clients.
We'll keep exploring this issue. For now, more of the Gawande article below.
A new scientific understanding of perception has emerged in the past few decades, and it has overturned classical, centuries-long beliefs about how our brains work—though it has apparently not penetrated the medical world yet. The old understanding of perception is what neuroscientists call “the naïve view,” and it is the view that most people, in or out of medicine, still have. We’re inclined to think that people normally perceive things in the world directly. We believe that the hardness of a rock, the coldness of an ice cube, the itchiness of a sweater are picked up by our nerve endings, transmitted through the spinal cord like a message through a wire, and decoded by the brain. . . .
[There are] some serious flaws in the direct-perception theory—in the notion that when we see, hear, or feel we are just taking in the sights, sounds, and textures of the world. For one thing, it cannot explain how we experience things that seem physically real but aren’t: sensations of itching that arise from nothing more than itchy thoughts; dreams that can seem indistinguishable from reality; phantom sensations that amputees have in their missing limbs. And, the more we examine the actual nerve transmissions we receive from the world outside, the more inadequate they seem.
Our assumption had been that the sensory data we receive from our eyes, ears, nose, fingers, and so on contain all the information that we need for perception, and that perception must work something like a radio. It’s hard to conceive that a Boston Symphony Orchestra concert is in a radio wave. But it is. So you might think that it’s the same with the signals we receive—that if you hooked up someone’s nerves to a monitor you could watch what the person is experiencing as if it were a television show.
Yet, as scientists set about analyzing the signals, they found them to be radically impoverished . . .
One of the reasons I began this series was to explore the type of professional behavior that tends to trigger professional malpractice litigation -- and how that litigation might be avoided.
As you may recall, my first post cited a study finding that the top three reasons for filing litigation against a medical provider were:
so that it would not happen to anyone else . . . 91%
I wanted an explanation . . . 91%
I wanted the doctors to realize what they’d done . . . 90%
In that same study, only 66% of respondents said they'd brought suit because they wanted money.
Other studies have found that the failure to health care professionals to effectively communicate with patients and their families give rise to more litigation than negligence or bad results in treatment. As reported in the March/April issue of Patient Safety and Quality Healthcare
ineffective communication with patients and families, rather than quality of care, was the underlying cause of patients' and families' decisions to file suit against their caregivers (Vincent et al., 1994; Hickson et al., 1992). Other researchers found that most patients would be less angry and less likely to sue if physicians honestly and compassionately disclosed medical errors that occurred, admitted responsibility, took steps to reduce the chances of repeat errors in the future, and offered sincere apologies for the suffering that may have resulted because of the bad outcomes (Gallagher et al., 2003). Similarly, research on apologies suggests that individuals receiving a full apology that both expresses sympathy and takes responsibility by the person who wronged them are more likely to accept settlement offers and negotiate towards a resolution rather than going to trial (Robbennolt, 2003).
Someone once told me that a divorce is a hologram of the marriage -- that all of the marital dynamics that have never been resolved -- or even surfaced -- by the divorcing couple -- take shape and form in one way or another in the course of the divorce. Not surprisingly, the "weapons" of marital dissolution are its most precious assets -- relationship and children -- and its most symbolic -- money. /*
So it is that historic family dynamics (rife with unresolved conflict) will more or less naturally play themselves out around the bed of a loved one who is -- or may be -- dying.
MAIN RESULTS: At least 1 health care provider in 78% of the cases described a situation coded as conflict. Conflict occurred between the staff and family members in 48% of the cases, among staff members in 48%, and among family members in 24%. In 63% of the cases, conflict arose over the decision about life-sustaining treatment itself. In 45% of the cases, conflict occurred over other tasks such as communication and pain control. Social issues caused conflict in 19% of the cases.
CONCLUSIONS: Conflict is more prevalent in the setting of intensive care decision making than has previously been demonstrated. While conflict over the treatment decision itself is most common, conflict over other issues, including social issues, is also significant. By identifying conflict and by recognizing that the treatment decision may not be the only conflict present, or even the main one, clinicians may address conflict more constructively.
It's Not About Money But it Will Become About Money if Conflict is Not Treated at the Source
I have much more to say about this but I need to get out to the Valley to see my dad who is -- amazingly (to me at any rate) -- surviving without food or water into Day Nine.
For now, I will simply remind my readers of the following:
Why the Coming Crisis and Likelihood of Litigation?
The parents' of the baby-boom are dying. Extraordinarily high levels of conflict in health care settings are associated with dying. Hospitals and health care professionals are not yet up to par in resolving conflict at its source. In the absence of programs to assist the families of the dying negotiate their way through this traumatic experience, people will seek out attorneys; attorneys will, as the law does, monetize pain, suffering, and injustice.
The research is in. The solutions are available.
It's up to us.
*/ Money is symbolic? Yes it is. As my longer article on the many meanings people give to money notes:
It is money’s nearly infinite plasticity that makes exchange of unlike things not only possible, but nearly effortless. Unlike barter, which famously requires a “double coincidence of wants,” money creates a bridge to the future; permits trade at a distance; allows the exchange of durable objects for perishable goods; and, is capable of reducing nearly every human activity into a quantitative monetary value.
Although contemporary money seems to have shed all of its qualities except its quantity, “its oneness or fiveness or fiftyness,” we do not in fact use money as if it were fungible. We experience the value of a dollar earned differently from the way we experience one that is stolen or given to us as a gift and we spend it differently as well.
Absent our collaborative skills, Tomasello tells us, we're not even the smartest animals on the planet. When comparing adult chimpanzees and orangutans to 2-year-old human children, Tomasello and his colleagues found that apes and toddlers performed equally well on every test other than those measuring social skills -- "social learning, communicating and reading the intentions of others."
We've always known that if you put a human infant on a desert island, he dies. This does not distinguish us from other social animals who depend upon their family, clan, group or tribe for survival.
What's new is Tomasello's observation that we're the only social animal who shares for the sake of sharing. "Human infants," he writes
gesture and talk in order to share information with others — they want to be helpful. They also share their emotions and attitudes freely — as when an infant points to a passing bird for its mother and squeals with glee. This unprompted sharing of information and attitudes can be seen as a forerunner of adult gossip, which ensures that members of a group can pool their knowledge and know who is or is not behaving cooperatively. The free sharing of information also creates the possibility of pedagogy — in which adults impart information by telling and showing, and children trust and use this information with confidence. Our nearest primate relatives do not teach and learn in this manner.
That's the good news. Here's the bad.
[H]umans beings are not cooperating angels; they also put their heads together to do all kinds of heinous deeds. But such deeds are not usually done to those inside “the group.” Recent evolutionary models have demonstrated what politicians have long known: the best way to get people to collaborate and to think like a group is to identify an enemy and charge that “they” threaten “us.” The remarkable human capacity for cooperation thus seems to have evolved mainly for interactions within the group. Such group-mindedness is a major cause of strife and suffering in the world today.
This evolutionary biologist is not content, however, to simply describe primate (that's us)behavior. He also hopes to improve it.
Tomasello's elegant solution to a seeminly intractable problem?
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.
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.
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.
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.
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.”
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.
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.
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.
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.
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).
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.
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.
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.
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.
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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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.
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.
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.
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.
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).
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.
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.
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;
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.
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.
(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'swhy 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.
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 Onlinereported 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.
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?)