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Victoria Pynchon

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The 33 cent wage and income gap is unacceptable and unnecessary. So is the cliché glass ceiling. Bottom line, our...

Bias in the Court Room? Fight it with WLALA on March 17

Worried about bias against women, minorities or majorities in the courtroom? Come join us for a great WLALA Presentation at the Los Angeles Athletic Club on March 17, 2011. Click on the notice below to obtain more details and to register.




Lost's Moments of Clarity and the Prisoners' Dilemma

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. 

Live Together, Die Alone

Your plane crashes on a desert island.  Your fellow survivors are, as former U.S. Poet Laureate Billy Collins wrote in Aristotle, already "in the thick of it."

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?

As I explain in "K is for Kin" in the upcoming ABC's of Conflict Resolution,

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.


Blawg Review #234

Sociologist Elise Boulding has said that we live in a “200 year present,” a “social space which reaches into the past and into the future” -- a space in which “we can move around directly in our own lives and indirectly by touching the lives of the young and old around us.” Miall, Ramsbotham and Woodhouse, Contemporary Conflict Resolution.

What does the 200-year present have to do with conflict resolution week?  It reminds us that new forms never really completely replace the old ones.  We continue to employ every technique we've ever used to suppress, avoid, deny, resolve, transform, or transcend conflict, including force (violent and non-violent such as injunctions subject of a Trial Warrior Blog post this week); thievery (the Trade Secrets Blog); shaming (which Scott Greenfield does to bloggers "looking for fights and dumb as dirt" and which Volokh suggests we do to health insurers); bullying (solutions to which appear at the Citizen Media Law Project); torture (still with us at the Crim Prof Blog); cheating (Make Yourself Better with Their Secrets at Concretely Ambiguous) ingratiation (at the Law School Expert); persuasive argumentation; appeal to third party authority; bargaining; communication; and, problem solving (The Tao of Advice at the Business of Creativity). 

Whichever dispute resolution mechanism you use, it should be much improved if you take up  juggling (as reported this week at Idealawg).

Transformative conflict resolution of the type covered by New York City police officer, Jeff Thompson at Enjoy Mediation, requires accountability (by lawyers, for instance, to the principle of justice at Law21); recognition (at JD Bliss); apology, amends, reconciliation (at Opinio Juris); power with (negotiation and cooperation at the Ohio Family Law Blog) instead of power over (at the Election Law Blog); and, interests rather than rights (at the Gay Couples Law Blog).

No brand of law-giver or enforcer has ever entirely left the scene.  Cops, negotiators, mediators (on the international scene at the Business Conflict Blog); conciliators, arbitrators, trial attorneys (marking tattoos as exhibits over at LawComix), corporate lawyers, legislators  (fomenting a Franken Amendment at the ADR Prof Blawg); judges (whether elected or appointed at Legally Unbound), and, juries (who might be biased at SCOTUS Blog). 

And of course the gadflies (wolf protection lawsuits anyone? at  Point of Law). 

Win, lose, settle, enjoin (at Charon QC) or simply give up (6 Ways We Gave Up Our Privacy at CSO Security and Risk).  We regulate crime and prescribe punishment (Polanski at Sentencing Law and Policy and The End of an Era at Defending People). 

We wage war (at Prawfs Blog) and seek peace (at the Delaware Employment Law Blog) as conflict inevitably erupts over Obama's (embarrassing) peace prize (at Balkinization).

And, lest we forget our primary purpose, we bend our efforts toward justice (which, according to BLT is not necessarily available to card-carrying members of the ACLU).

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 grandfather, born in 1900, witnessed the birth of electricity, saw the first automobile roll off an assembly line [2] and stood awestruck in a cornfield as one of mankind’s first airplanes took flight. [3]  Although we've progressed from bi-planes to jets and rockets (some of which may someday be green) we still fly balloons of the type first launched in 1783 -- both Goodyear Blimps and the backyard variety, covered this week by Legal Blog Watch as Law and More

asked here whether the shiny, flying, silver Jiffy Pop-looking craft tethered in the backyard of Richard Heene was an "attractive nuisance" under the law.

Grandpa's first war was, well, the First and his second was the Second,[4]  as if there'd never been any wars before the Great One. By the time I was born, mid-century, we'd fought the war to end all wars twice and knew we'd never survive a third

My imagined grandchildren, [6] 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) [7] and play many of the same games [8]  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) [9] 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. [10]

Law, politics, society and culture also exist in the 200-year present of conflict resolution.  [11] 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.


Another nineteen years would pass after Bradwell began her practice before she (and my nineteen year old grandmother) were guaranteed the right to vote. [13] And another 30 years would pass after my women's movement -- the Second Wave -- before we'd have our own  business magazine -   ForbesWoman (my part in it here).  And let us not forget that despite the 20th Century's great civil rights achievements, when America catches a cold, black America gets pneumonia.  See e.g. Problems All Around for Blacks in Big Law at Being a Black Lawyer.

My grandparents', parents' and step-children's 20th Century was dominated by genocide [14] 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[15]

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. [16] Most critical of these to conflict escalation and avoidance is our “fight-flight” mechanism – the amygdala.[17] 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.


As “exquisitely social creatures,” our “survival depends on understanding the actions, intentions and emotions of others.” Id. That our misunderstandings and cognitive biases -- mentioned by Volokh on Paternalism and Michael Carbone on reactive devaluation at Mediation Strategies this week -- threaten our survival as a species is undeniable (cf. Lawyers Must Survive or Face Extinction at the Lawyerist)

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.”

Capone and Roosevelt didn't know it, but they were talking about the most effective (and most ancient) form of conflict resolution – tit for tat. In 1980, political Scientist Robert Axelrod asked game theory experts to submit computer programs designed to prevail in a game that provided the highest reward to cooperating pairs -- the famous Prisoner's Dilemma. (See also Max Kennerly's excellent post on Game Theory and Medical Malpractice Settlements at the Philadelphia Litigation and Trial Blog).

The winner of Axelrod's competition was a program named tit for tat.  Tit for tat was programmed to cooperate [19]  with its first encounter with any other programmed player.  It  rewarded cooperation with cooperation (just as networking will reward the savvy lawyer over at Chuck Newton's Ride the Third Wave) and punished non-cooperation with retaliation. Because Tit for Tat retaliated in the face of non-cooperation (just as a former employee did according to Hell Hath No Fury at Chicago Law Blogger) it was never repeatedly victimized. And because Tit for Tat “forgave” non-cooperators upon their return to cooperative game playing (as some believe Mr. Polanski should be forgiven over at the Marquette U. Law School Faculty Blog) it never got locked into mutually costly chains of mutual betrayal. [20]

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. 

Laws and Lawyers

First and most importantly, I suppose, are the social media signs that you're "tweeting" like a lawyer over at the Social Media Law Student Blog.  Why first or important?  Know thyself.  Everything else follows that.

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 lawyers was 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. 

These laws provided for a mix of physical punishment - 60 lashes with an ox hide whip - ‘measure for measure’ awards (still with us in the form of lethal injection as covered by The StandDown Texas Project) – eye for eye, bone fracture for bone fracture – and monetary compensation – 20 shekels for tooth injuries – (preserved by workplace injury awards such as those discussed at the Workers Compensation Blog) depended not only upon the type of injury, but the social classes involved in the loss, i.e., ‘measure for measure’ sanctions were specified for losses among the upper classes while monetary awards were required for losses caused to and by commoners (reminding us that disrespect still too often turns on social status or "outsider" classification as discussed at Balkinization this week).  [23] 

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.  [24]>

Criminal law and civil, it all comes down to a process that is "due" (a topic covered in a blistering post about tea-partiers and other "protectors" of the Constitution at the Criminal Jurisdiction Law Blog) and a set of guidelines against which we can exercise some small degree of control over our own commercial and personal futures (like those subject of Delays Not "Party Time, Excellent" for Subcontractor at the Construction Contract Review).

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.

Legal Rebels:  the Sky is Falling at Simple JusticeCharon QC also weighs in on the ABA Legal Rebels project here.


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. [25]

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").

18th Century Dispute Resolution Technology:  The (Inevitably Polarizing) Adversarial System

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.

Id. (and ouch!)  On a less Dickensian note (think Bleak House) take a look at the IP Maximizer's post on IP litigation not being smart source of revenue for inventors

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 namedMartin 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.

[1]             See the WSJ Law Blog’s post on the evolving law on gay marriage this week – Procreat[ion] Not Required.

[2]             Alas, there will always be lemons over at the Texas Lemon Law Blog (save those repair invoices!)

[3]             See Ruth Bader Ginsberg Hospitalized at the Volokh Conspiracy, reporting on Ginsberg’s fall from the seat of an airplane before take-off.

[4]             See the Law History Blog on Brewer’s Why America Fights.

[6]             Grandchildren who will not, I hope, have to deal with my Alzheimers, the perils of which are described at the Slutsky Elder Law and Estate Planning Blog.

[7]             Though, of course, e-books will be read side-by-side with hard copy as paper and cardboard eventually goes the way of Colonial era hornbooks. See Downloadable e-Books Change the Face of Brick and Mortar Libraries at the Law Librarian Blog.

[8]              Those games will, of course, exist side by side the video variety, many of which are recommended as Tools for Special Needs Students and Educators at the Adjunct Law Prof Blog this week.

[9]               See Hemp and Audacity at the U.S. Ag and Food Law Policy Blog.

[12]             Alas there’s still a gender gap as described this week at Ms. JD.

[13]             Voting rights are still a matter of concern today, of course. See Judge Says Virginia Violated Rights of Overseas Voters at the Blog of Legal Times.

[14]             See Rachel Anderson’s Law Blog on the scope of immunity for foreign officials that Anderson believes may have important implications for Plaintiffs seeking recompense for genocide.

[15]             One generation wants out and the other wants in. See Don’t Ask, Don’t Tell, Don’t Teach at Sexual Orientation and the Law Blog.

[16]             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.

[17]          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.

[18] In Cells that Read Minds, New York Times Science writer Sandra Blakeslee explained:

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. “

[20]             Check out the post on the Betrayal of Corporate Clients at the Investment Fraud Lawyer Blog.

[21]             Wrongful death compensation over at the Product Liability Law Blog.

[22]             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.

[23]             This week Beck and Herrmann at the Drug and Device Law Blog note that “shame works wonders” in their post on the Free Speech Challenges to the FDA.

[24]             Intentionally left blank.

[25]             ADR professionals are often heard critics of the adversarial system, as can be seen over at the Australian Dispute Resolvers Blog where author Chris Whitelaw (really??) quotes the Journal of Law and Medicine as follows:

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.


Negotiating with Difficult People for Lawyers

Hey Justice Logic: Don't Go Around EMPATHIZING

Check out Balkinization's Why is Empathy Controversial?  or Liberal, an excellent analysis of empathic wisdom (and blind spots) on the Bench in the wake of a noted Republican's vow  to filibuster any Supreme Court nominee who might commit the (liberal?) sin of empathizing from the Bench.

Emotion terms are notoriously slippery. But if we understand empathy as the ability to take the perspective of another, it ought to be uncontroversial that empathy is an important component of judicial judgment. Empathy, so understood, is a basic and necessary tool for making sense of the intentions and actions of others.

So, as Mark Graber asks, who could be against empathy? And more particularly, why is empathy liberal, if we all use it? Perhaps because empathy goes by another name when it comes easily—for example, when Supreme Court justices take the perspective of those from similar backgrounds or with similar worldviews. This sort of empathy looks neutral and natural, not ideological or partial. It tends to be portrayed as garden-variety judicial reasoning.

We all use empathy, and despite our best intentions, it is always selective and riddled with blind spots. We can try to correct for this partiality if we are self-aware. But those who study cognitive psychology and decision-making find that we aren’t all that good at identifying and critiquing our own background assumptions. A better way to encourage this sort of correction is through debate with others who hold differing viewpoints. Judges, like the rest of us, make better decisions when forced to examine and articulate their premises.

Read on here.

According to a recent article in the New Yorker (voice of the effete empathizing liberal east-coast establishment) we owe our conscious mind -- that which makes us human -- to the mirror neurons that give rise to to empathy (because we could "feel" the mind of another, at some point we turned that thought back against ourselves and consciousness was born).

And let's not forget that some brain researchers believe it is impossible to make any choices whatsoever in the absence of emotion (the "pure" logical mind will make endless pro and con lists absent the "gut" response that finally permits us to decide).

What does this have to do with negotiation?  Anyone who continues to believe that decisions are (or could potentially be) the product of a solely rational process are losing the benefit of the emotional sway every great negotiator exercises over his or her bargaining partner.

Geesh, even George Bush professed compassion (so long as the government wasn't providing it).  Does the Republican Party really wish to become the home of Darth Vadar? /1


1/  Perhaps Jon Stewart of Comedy Central's The Daily Show described coverage of the pairing best. The show aired a clip of The Weekly Standard's William Kristol saying of the back-to-back speeches, "Just going to be fun, don't you think? Luke Skywalker and Darth Vader, you know? And I want to say that I was always on Darth Vader's side." Stewart retorted, "Now you tell us. You know, as one of the main intellectual forces behind the Iraq war, that's kind of a weird thing to admit. You might have wanted to mention, 'Oh, quick caveat to my plan on a new American century: I'm on the Darth Vader side.' "

From "Fear of Closing Gitmo" at the Daily Kos

Negotiating Conflict in a Business Setting with a Word for Women and a Caution on Negotiation Ethics

Here's part I of the Resource Materials for the full-day training which included this Power Point Presentation.

Part I includes articles (see the Table of Contents) on The Social Psychology of Conflict; Negotiation and Gender; Distributive Bargaining; and, Integrative and Interest-Based Negotiation.

The On-Going Search for the Settlement Unicorn

The jig is finally up.  I've been hemming and hawing long enough.  I need to just go ahead and answer Max Kennerly's question whether it's  possible to convene an early settlement conference in which the parties are united in a desire to settle the litigation.  

This is how you know I'm still as much a lawyer as I am a mediator. 

The answer is yes and no. 

But you can help change the "no" to a yes.

That's the hope part.

Here's the dispiriting part --The answer will not become "yes" if the parties continue to primarily engage in position-based distributive bargaining sessions in separate caucuses.  

My own professional experience (and the behavioral research of which I'm aware) suggests that Mr. Kennerly's Unicorn will only come into a room in which an interest-based negotiation is taking place, one in which there is at least one joint session among the baragaining parties.  

But first a story.  

This very morning I failed to settle a very small case that is poised to become a very big case with cross-actions for legal malpractice and malicious prosecution. 

The delta between the Plaintiff's final demand and the defendant's final offer?   


And I offered to throw in half the delta myself by making a contribution to the presidential candidate/s of the parties' choice.  Shock value.

The parties' failure to achieve settlement couldn't have been about money could it?  

(image from The Sphere of Economic Calculation at the Ludwig von Mises Institute)

Why not?  Because it was economically irrational not to settle. Which is not unusual.  Because there is no rational economic man.  Because we are incapable of making a decision in the absence of emotion.  /**  

As Professor Lee Alan Dugatkin explains in his article Discovering That Rational Economic Man Has a Heart,  

Although some economic decisions are made outside a social context, they are a minority. Social dynamics, many economists believe, are at the core of economic decision making—that is, decision-making about resource acquisition and expense allocation. What I decide affects you, what you decide affects me, and, even more to the point, I care how I fare economically compared with how you fare.  

I send a client a bill for $15,000.  He pays $9,000, refusing to pay the additional six because he believes I didn't earn it or that I did my job badly or that I didn't communicate to him all of the items I would naturually include in my bill.  There is a written agreement but no attorney fee clause.  It will cost me at least $3,000 in attorney fees to collect the six.  My client offers to pay me half of what is owed. 

Do you have the hypothetical in mind?  What would the rational economic man do?

The rational economic man would take the $3,000 because he cannot do better at trial.    

Did rational economic man appear at the mediation this morning?  Of course not.  Because he is a Unicorn!  He doesn't make decisions based upon numeric calculations or emotionless cost-benefit analyses -- which is why I knew  the parties would not accept my gap-closing political contribution suggestion (whew!)

Why Rational Economic Man is a Unicorn

In a social-economic experiment known as the Ultimatum Game, many researchers have found that when one party offered less than half the money subject of the game, "the other player often rejected it, even though by doing so he end[ed] up with nothing."  Id.  Dugatkin describes the results of one research project involving this Ultimatum Game as follows: 

 Alan Sanfey, Ph.D., and his colleagues at Princeton University examined the Ultimatum Game with 19 subjects in the role of responder and . . . observe[d] their brain activity. They found that when unfair offers (deļ¬ned as those of less than half the resource) were made, responders often rejected them. As they did so, the area of their brains associated with negative emotional states (in this case, the bilateral anterior insula), rather than those associated with complex cognition (in this case, the dorsolateral prefrontal cortex) were most active. The more the offer deviated from fair, the more active was the bilateral anterior insula when such an offer was rejected. Anger at being treated unfairly by other players appeared to override rational economic reasoning. In the minority of cases when the offer was accepted, the dorsolateral prefrontal cortex was most active.

 We, like the capuchin monkeys mentioned yesterday, will deprive ourselves of thousands, tens of thousands, even millions of dollars if we believe the compensation being offered is so little related to our value or our loss that it seems unfair.  We will not pay money at the point of a gun nor accept money offered to us by villains or cheapskates

Mediation, Money and Justice

In today's semi-hypothetical mediation, the $3,000 offered felt too unfair to the plaintiff and the hypothetical $6,000 demanded felt too unjust to the defendant for the parties to reach a rational economic deal.  The parties' potential to achieve settlement was also seriously undermined by the degree of anger they expressed toward one another and the way in which they had villified one another - "rich deadbeat" on one side and "dishonest fiduciary" on the other.

I am neither magician nor miracle worker.  Nor am I in the social work or therapy business.  I do, however, know that when parties to a lawsuit are hopping mad and believe that the opposition behaved immorally, money is unlikely to change hands. 

In an effort to defuse the anger and de-demonize the parties, I held two joint sessions -- one that was not coached and one that was.  Then I separated the parties for the purpose of conducting a distributive bargaining session (she offered x; he counters with y, etc.)

In both the joint session and in the separate caucuses, I strove to humanize the parties for one another; attempted to reframe their behavior in a less villianous light; and, assisted them in conducting as rational a cost-benefit analysis as possible.  I also helped the parties reality test their beliefs about the likely outcome at trial and to evaluate the likelihood that the strength of their feelings today would translate into a hearty appetite for further, higher-stakes litigation two years down the line.  

No dice.

So What Can You Do?

I would love to deliver a stirring tale of a heroic mediator helping parties settle their dispute in the early stages before the threatened action and cross-actions were even filed.  But I can't.  This is more art than science and compared to my 25 years of experience as a litigator, I'm still a little green as a mediator after four years of full-time neutral practice.      

Let me just say this.  Mediating settlements in the early stages works more often than it fails, particularly if you do one or more of the following:

  • hire a mediator who can rock and roll with the process rather than one who is a one-trick pony -- head-banger, or evaluator, or prophet of doom; peacemaker, or rabble-rouser or King of the Distributive Bargain -- your mediator should be able to play all or any of these roles as the situation demands;
  • if you're angry and if you have villified opposing counsel or the opposition party, take a deep breath, sit down at your computer and write down the best, the mid- and the worst-case scenarios (I know you've done it already; but take a fresh look again right before the settlement conference)
  • share these evaluations with your client
  • if a trustworthy mediator with whom you've worked before suggests that it would be useful in joint session for your client to express his irritation, disappointment, anger or any other feeling that might interfere with his ability to make a rational decision, don't reject it out of hand 
  • help your client de-demonize the opposition, reminding him that the "other side" is human and therefore fallible and is rarely downright evil
  • remind your client that many disputes that seem to arise from malicious conduct actually stem from faulty communication
  • know your bottom line and stick to it unless you genuinely learn something that makes you see the entire dispute in a different light, remembering that "a foolish consistency is the hobgoblin of little minds" 
  • despite everything I've now said about litigants behaving irrationally, as I've written elsewhere in greater detail, Harvard negotiation gurus Deepak Malhotra and Max H. Bazerman suggest that negotiators too often confuse hidden interests and constraints with irrationality.  The mistakes and solutions when this is the case?  
    • Mistake No. 1: They are Not Irrational; They Have Hidden Interests -- find out what they are and you may well be able to resolve the dispute and settle the litigation without putting any more money on the table or making any further concessions;
    • Mistake No. 2: They are Not Irrational; They Have Hidden Constraints -- keep one ear to the ground for hidden constraints, explore them with the mediator, opposing counsel or the opposing party; often those constraints can be problem-solved away;
    • Mistake No. 3: They are Not Irrational; They Are Uninformed -- listen and respond; respond and listen.  You will find that EACH of you is uninformed about something that will likely make a genuine difference in the manner in which the litigation is resolved.
  • If your opponent cannot or will not see reason, there's always the joy of just trying the darn thing.


**/  This thesis is based on the work of  Antonio Damasio as described by him in Descartes’ Error. 

Decision Made - Let the Rationalizing Begin

Thanks to Slashdot for picking up an item from the Wall Street Journal -- Get Out of Your Way -- showing that we make up our minds 10 seconds before we let ourselves know it.

Experiments with the usual brood of university undergraduates (read about them here) revealed that

our best reasons for some choices we make are understood only by our cells. The findings lend credence to researchers who argue that many important decisions may be best made by going with our gut -- not by thinking about them too much.

Trial lawyers know this, right?  Anne Reed?  You there?

Mom always said I thought too much.  And Dutch researchers are proving her right (another one for you, mom!)

Dutch researchers . . . recently found that people struggling to make relatively complicated consumer choices -- which car to buy, apartment to rent or vacation to take -- appeared to make sounder decisions when they were distracted and unable to focus consciously on the problem.

Moreover, the more factors to be considered in a decision, the more likely the unconscious brain handled it all better, they reported in the peer-reviewed journal Science in 2006. "The idea that conscious deliberation before making a decision is always good is simply one of those illusions consciousness creates for us," Dr. Dijksterhuis said.

Here's another lesson I learned nearly thirty years ago in law school that the researchers are only now proving -- you just have to feed your brain the information and then, literally or figuratively go to sleep.  Start writing and you will write your way into the solution that your brain already knew.

(I also used this technique preparing the depositions of technical expert witnesses -- petrochemical engineers, statisticians and the like)

The Take Away for Negotiators?

Prepare.  Ask questions.  Have a firm bottom line (or, better yet, fool yourself into believing your bottom line is less or more than it already is). 

Then rock and roll! 

The more you negotiate (try it at your local retail store) the better your mind will become at improvising the moves necessary -- in the commpletely unpredictable present -- to get what your brain already knows you really want.

How Can We See Eye to Eye When Perception is 90% Memory?

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.

(image:  Phantom Limb #2 by Lynn Hershman

"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  . . .


*/   I don't know if any of this relates to mirror neurons, but I am certainly led to think about them.  See Stephanie West Allen's post Mirror Neurons, Some Resources here.  Whenever I see the word "mirror" I'm also always moved to think of my friend, the artist and mediator Dorit Cypis.  For more on her work, click here.

Negotiating Life's End: the Coming Crisis and Likelihood of Litigation

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). 

See Conflict Management From the Heart:  A Day in the Life of a Medical Ombuds/Mediator by Carole S. Houk, JD, LLM, and Leigh Ana Amerson, BA here.

In Why People Sue Hospitals and Health Care Professionals in Heatlh Industry Online we learn that 40% of respondents answered "yes" to the question whether anything could have been done to prevent litigation after an adverse medical incident.  Those pre-litigation interventions were reported as follows:  

Actions That Might Have Prevented Litigation

% of Respondents

Explanation and apology


Correction of Mistake


Pay compensation


Correct treatment at the time


Admission of negligence


If listened to


Disciplinary action




Investigation by hospital


Conflict Associated with End-of-Life Decisions

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.  

How much conflict is there?

One recent study found that conflict associated with decisions about life-sustaining treatment were rife with conflict between medical staff and the families of dying patients.  An abstract of an Conflict associated with decisions to limit life-sustaining treatment in intensive care units reported: 

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. 

See The Cost of a Thing is Your Life here

Apology: Shame, Guilt, Rupture and Repair

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

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

Distinguishing Guilt from Shame 

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

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

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

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

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

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

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

Apology: the Guilt Ridden vs. the Shame Infused

(thanks to Beyond Intractability for the graphic)

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

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

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

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

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


A. The Origins and Effects of Shame.

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

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

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

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

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

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

Distinguishing guilt from shame tomorrow.

Resolving Moral Conflicts

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.

Settlement Techniques that Give You the Winning Edge



Deal Yourself a Winning Hand

November 13

Los Angeles


 (photo:  Four Aces by Ian Grainger)

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

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

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

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

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

Flyer and Order Form Here

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

Long Live the Death of the Reasonable Man

(left:  the "reasonable man?")

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

"I'm rational," he said. 

Lawyers, Economists and "Reasonable Men"

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

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

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

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

That's a good thing right? 

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

Continue Reading

Negotiating Your First Law Job: Which Offer to Accept

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

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

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

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

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

What to Do?

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


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

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

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

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

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

You know what's coming next. 

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

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

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

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

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

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

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

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

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

Congratulations on the job offers

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

WTO, Neuroscience and Impasse

(photo by Maureen Flynn-Burhoe)

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

What's at stake? 

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

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

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

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

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

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

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

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

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

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

All sides said they negotiated in good faith.

Sound familiar?

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

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

The Collaborative, Generous Brain and Good Citizens

(photo by Duane Romanell)

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

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

The research?

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

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

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

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

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

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

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

A New Neuroscience Blog is Born

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

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

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

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

Add them to your news reader today!


Cheating: Billable Hours

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

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

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

Here it is again.  

On to disreputable billable hour violations . . . .

We're Hard Wired to Detect Cheating

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

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

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

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

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

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

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

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

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

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

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

No wonder we like to play Texas Hold'em.

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

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

Another Benefit of Getting Your Case Before a Mediator

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

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

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

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

Negotiating the Future: Know Thyself

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

Story:  Mediation Practice

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

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

Story:  Dad and the Grapes of Wrath

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

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

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

Story:  Me and Mr. Thrifty

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

But this is all anecdote, you say. 

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

Story:  Innocence and Experience

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

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

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

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

Finally!  the Neuroscience

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

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

Id. (emphasis added).

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

Mediation Strategy: Don't Gloat

(above, Charles Fincher's illustrative cartoon)  

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

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


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

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

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

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

My Amygdala Made Me Do It: Neuroscience and the Law

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

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

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

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

He explains:

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

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

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

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

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

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

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

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

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

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

Neuroscience, Negotiation and Decision Cycles

Hat tip to our favorite Neuroscience-for- Dummies blog -- Neuromarketing -- for directing us to Time Magazine's recent article on the intersection of marketing and neuroscience.  

(N.B.  There's a permanent link to Neuromarketing in our own left-hand column if you'd like to follow these developments yourself).

Time's article Marketing to Your Mind, tells us about P. Reed Montague's work on the way trust, altruism and feelings of obligation  can divert and modify the steps we ordinarily take to make decisions.  

Of the speed with which neuroscientists are increasing our knowledge of how and why we think the way we do, Montague is quoted as saying,  

The capacity to use brain responses and relate them to behavior has accelerated at a breathtaking pace over the past four years and yielded an incredible amount of information.

That's exciting news for the Negotiation Law Blog because "being inside the other guy's decision cycle" (Colin Powell) is the best way to maximize your negotiating advantage.  

As the simplistic chart above confirms, most of us already know what questions to ask about our negotiating partner before and during any bargaining session.  To whom does he report; what is his personal stake in the outcome; why does he (or his organization) need the advantages he's angling to obtain; what damage to his personal/professional interests or his organization's well-being would be done by walking away from the bargaining table; under what time and other pressures are he and his business operating, who are the true "stakeholders," both internal and external, and the like.  

(Remember -- google everyone and search every public source of information on your bargaining partner and her organization before any negotiations begin).  

Adding to these largely business considerations, an understanding the way all people tend to make decisions could well be the difference between negotiation success and failure.  That's why your Negotiation Blog follows developments in neuroscience and evolutionary biology so closely.  So you won't have to.

Look for our next post on the way  Dr. Montague's insights can assist you in closing your next deal.   

Small Talk and Separate Caucuses

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

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

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

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

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

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

The young people whose attention was focused on money also  

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

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

Continue Reading

Changing the Other Guy's Mind, Part Two


Change is Pain -- Recap

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

Creativity -- Interlude Before Changing Minds Part II

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

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

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

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


Arthur Koestler

Changing the Other Guy's Mind Part I -- Neural Networks & Mental Maps

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

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

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

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

First the Neuroscience

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

Habit and Working Memory

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

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

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

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

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

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

Continue Reading

This is Your Brain on Neuroscience

Better Decision Making through Neurochemistry

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

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

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

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

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

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

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