I recently started taking agility classes with my dog. She loves it, as do I – and I am discovering that it is a humbling experience. Language is a wonderful thing, but a large portion of communication occurs through body language. And dogs are masters at reading body language. So, much of our training consists not of Mocha learning how to do agility, but rather of me learning how to communicate effectively.
I am writing this the day before Thanksgiving, which also happens to be my birthday.
I have much for which to be grateful, including family, friends, and you, my readers and clients. I also realize that Thanksgiving can be a source of stress for many, especially in a time when opinions seem to differ more than ever and dialogue can be challenging.
Last Friday and Saturday, I participated in a training on peacemaking circles in the Tlingit (First Nations) tradition. I went into it with a healthy dose of skepticism, and emerged with gratitude for being exposed to a very different way of communicating, which can be and is used for anything from dialogue and celebration to restorative justice.
So instead of writing an article, I thought I would share some thoughts from Friday's closing. (These are quotes from Margaret J. Wheatley's “Turning to One Another: Simple Conversations to Restore Hope to the Future”.)
I have written about the “Prisoner’s Dilemma” before, because variations of it arise regularly in mediation and negotiation.
So how do you win the game? It turns out that the most successful strategy is one of “Generous Tit for Tat”.
A Quick Refresher
[Please feel free to skip this section if you are familiar with the setup of the Prisoner’s Dilemma.]
In case you need a refresher, the classic setup of the Prisoner’s Dilemma is this:
Two co-conspirators (A and B) are arrested and held in separate cells with no means of communication. The prosecutor has insufficient evidence to convict either of them on the principal charge, so she offers each prisoner a deal: Betray the other in exchange for a lesser sentence.
Because this is true for both parties, the most likely outcome is that the two prisoners will betray each other, resulting in each receiving a five-year sentence. The best mutual outcome (a six-month sentence) is achieved if the parties cooperate with each other and both remain silent.
Background: The Cuban Missile Crisis
At the time of the Cuban Missile Crisis in 1962, Robert Axelrod – now a professor of political science at the University of Michigan – set up a computer program to run a sequence of successive simulations of the Prisoner’s Dilemma. He then invited leading game theory experts to compete in a tournament using a program that embodied the strategy the expert thought most likely to win.
The goal was to answer the question of how to deescalate the crisis, by cooperating without sustaining significant losses.
If “Tester” plays “Massive Retaliatory Strike”, both do badly. If “Lucifer” plays “Jesus”, evil prevails.
“Tit for Tat” cooperates with “Jesus” for the entire game, while defending itself well against “Lucifer”. However, the problem with a pure “Tit for Tat” strategy is that it always retaliates against an aggressive strategy such as “Lucifer”, thereby resulting in mutually assured destruction.
And the Winner Is…
A slight modification of “Tit for Tat” optimizes the long-term success of the strategy: Instead of always retaliating against an attack, “Generous Tit for Tat”, retaliates only nine times out of ten.
When the program responds with cooperation instead of retaliation, this gives the other player an opportunity to reciprocate, thereby resetting the game and maximizing success for both players.
For one-shot players in negotiation, the classic Prisoner’s Dilemma setup would apply – but for the facts that 1) the players can communicate with each other, and 2) a negotiation always consists of several rounds.
In any series of negotiations, which includes preliminary issues such as the selection of the mediator, and the location and timing of the mediation, you can choose your strategy. You can attack, or you can make a cooperative move.
If annihilation is your goal, keep in mind that your negotiating partner may respond in kind. If, however, your goal is to arrive at a mutually beneficial solution, you may want to consider adopting a "Generous Tit for Tat" strategy.
As most attorneys practicing in Washington State will know by now, the Mandatory Arbitration Rules are changing effective September 1, 2018. Some of the changes are minor, while others – such as a substantial increase in the jurisdictional amount – are significant.
The Washington State Bar Association recently hosted a seminar on Arbitrator Ethics for current and aspiring arbitrators, at which my co-presenters and I discussed these imminent changes.
"Civil" Arbitration Rules (RCW 7.06.010)
The new rules remove any reference to the word "mandatory", instead renaming them "Civil Arbitration Rules". It is somewhat unclear why this change was made, except perhaps to distinguish these rules from binding (private) arbitration clauses in consumer contracts, which have received a fair amount of negative press coverage in recent years.
Increase in Jurisdictional Limit (RCW 7.06.020)
Until September 1, 2018, cases were subject to mandatory arbitration only if the amount of monetary relief claimed did not exceed $50,000. The jurisdictional limit will be increased to $100,000. This is a significant change, and one that is viewed very differently by plaintiffs and defense attorneys.
Plaintiffs' attorneys have been advocating for an increase in jurisdictional limits for years, as arbitration provides a mechanism for fast relief and avoids the lengthy delays and significant expenses associated with a full trial. In short, the plaintiffs' bar believes that this change will provide greater access to justice.
Defense attorneys, on the other hand, believe that this increase will allow plaintiffs to force more cases into arbitration while severely limiting defendants' ability to defend against these claims, due to short time windows for hearings and limits on discovery.
Qualifications of Arbitrators (RCW 7.06.04)
In a change that is significant primarily to arbitrators, the new rules require that nobody may be appointed as an arbitrator unless they have completed three hours of legal education credits on the professional and ethical considerations of serving as an arbitrator. There are some exceptions, which will depend on the specific county.
Unfortunately, seminars focused on this topic are currently scarce. The WSBA program referenced above is expected to be available online prior to September 1, 2018.
Date of Hearing (RCW 7.06.043)
While some counties had implemented a timeframe during which the arbitration hearing was required to occur prior to the current rule change, the new rules create a state-wide requirement. Hearings shall be scheduled to take place no sooner than 21 days and no later than 75 days after appointment of the arbitrator. In effect, this means that a decision can be obtained on a case within three months of appointment.
Parties may stipulate to a different timeline, but should be aware of any applicable local rules that may impact the ability to enter into such stipulations.
Discovery (RCW 7.06.047)
This is another new state-wide rule, which limits discovery after assignment to arbitration. Parties may request medical examinations under CR 35, request admissions under CR 36, and take the depositions of parties. No other discovery is permitted except by order of the arbitrator.
While this streamlines cases for speediness and efficiency, there is an argument to be made that it will impact the ability to fully prepare a case. As such, it has the potential to result in an increased number of appeals.
Appeals (RCW 7.06.050)
The significant change to this section of the rules is the requirement that any notice of appeal must be signed by the party.
This appears to be quite straightforward, and is certainly in keeping with an attorney's obligation to keep their client advised of all developments and to act at the behest of the client. However, there are circumstances in which a client cannot be located in time or is uncooperative, which may leave that client with no recourse.
I do not know how these changes will affect the litigation and appeals of cases subject to the new Civil Arbitration Rules. I would love to hear from you if you have thoughts about this topic.
This month's issue of my newsletter was supposed to discuss the changes to Washington's Mandatory Arbitration Rules, which go into effect on September 1, 2018. However, I beg your indulgence as I delay that article for a week and send you this urgent plea for help instead.
For those unaware, there has been massive flooding in my family's home state of Kerala, India. Neither the U.S. media nor the Indian national media (which is focused on former Prime Minister Vajpayee's death) had been giving this much attention until this morning. I urge you to spread the word and contribute to disaster relief efforts.
According to this morning's New York Times, at least 220,000 people have been displaced. My aunt, uncle, and 80+ year old great aunt are among those who have had to evacuate their homes - my uncle paddled a kayak into my great aunt's living room to help her leave her home two days ago. The Indian government has declared a state of emergency; Army and Navy forces have been dispatched to assist.
My uncle and cousin are conducting ongoing rescue operations in their kayak; my uncle's factory grounds are being used as a staging point for distribution of food and supplies; and my 80+ year old great aunt is feeding people. Friends and distant relatives are stranded in their homes with no way to leave and no way to get to them. Please help if you can!
Here are some options for donations:
1. Chief Minister's Distress Relief Fund
This fund can accept international donations. It may not be able to get resources onto the ground quickly enough for immediate assistance, but will be useful for rebuilding efforts once the food water recede.
2. Round Table India Trust
Name of Bank: Indian Overseas Bank
Address of Bank: No:109 Utthamar Gandhi Salai, Nungambakkam, Chennai-600 034
Account No. 018301000021223
Bank Swift Code: IOBAINBB001
RTGS/NEFT Code (IFSC): IOBA0000183
MICR Code: 6000 20007
My cousin Suraj George Verghese is an Ex-Area Chairman of this organization, which is set up to accept international relief funds.
Thanks to my spouse, I recently discovered the excellent podcast “Philosophize This!” The episodes are easy to follow, informative, and humorous – and they remind me of my college political science classes, which I loved. (I attended my 20th Vassar College reunion in early July, so I am admittedly a bit nostalgic.)
Today, I was listening to Episode 4, on Plato, his ideal republic ruled by a philosopher king, and the theory of forms as described in the Allegory of the Cave.
Plato’s Allegory of the Cave
Imagine that you have lived all your life as a prisoner in a dark cave, and are able to look only at the back wall of that cave. At the mouth of the cave – behind you – is a source of light. Occasionally, someone holds up an everyday object (a tree, a dog, etc.) between the light and you. Because you are facing the wall, all you have ever seen are the shadows cast by these objects, rather than the objects themselves.
If you were able to turn around, your eyes would strain at the light, the object would make no sense to you, and you would likely turn back to the wall to look at what is familiar, i.e., the shadow.
Now imagine that one day you were able to escape the cave and see the objects for what they actually are. You could only do so by thought and reason, as the objects themselves would hold no meaning. Plato believed that the entire world consists of “shadows”, and that philosophy and the quest for knowledge are an attempt to see things for what they really are.
An Allegory for Conflict
This seems a fitting allegory for conflict as well.
More often than not, conflict arises when trust has been eroded between the disputants. Each may accuse the other of lying and twisting the facts. Each party to the conflict focuses on the familiar, which may prevent them from finding a path forward. Each participant’s truth and narrative of the dispute is different.
As a third-party neutral I am in the unique position of hearing all the narratives, often including information that one party has not shared with the other. A successful mediation is one in which all participants feel heard, allowing them to share information, use thought and reason to begin to see the bigger picture, and realistically consider their alternatives. Occasionally, mediation may even lead to better understanding between the participants.
Perhaps, then, mediation can be described as a tool to guide the parties to see beyond the shadows and discern the possibilities for resolution.
Studies show that the aggravation we experience in response to a loss tends to be greater than the pleasure associated with a gain in the same amount.
A classic thought experiment
The eminent psychologist and Nobel prize winner Daniel Kahneman and his late colleague Amos Tversky devised the following thought experiment to demonstrate the phenomenon of loss aversion (Kahneman, D. & Tversky, A. (1984). “Choices, Values, and Frames”, American Psychologist, 39(4): 341–350):
Imagine the outbreak of a disease that is expected to kill 600 people. You must choose between two public health programs to combat the disease. Program A will save 200 lives. Program B has a 33% chance of saving 600 lives, and a 66% chance of saving zero lives.
Given these two choices, most of us will choose Program A.
Now assume that Program A will result in 400 deaths. Program B has a 33% chance of zero deaths, and a 66% chance of 600 deaths.
Given these two choices, most of us will choose Program B.
Note, however, that the choices in the two scenarios are mathematically identical: 200 out of 600 lives saved is the same as 400 out of 600 lives lost. The simple act of presenting the programs in terms of number of lives saved versus number of deaths changes our perception of which is the better option.
Shall we toss a coin?
Daniel Kahneman simplifies loss aversion this way:
“In my classes, I say: ‘I’m going to toss a coin, and if it’s tails, you lose $10. How much would you have to gain in winning in order for this gamble to be acceptable to you? People want more than $20 before it is acceptable.’”
Carl Richards, Overcoming an Aversion to Loss (New York Times, December 9, 2013).
In other words, a 50% chance of a $10 gain is insufficient to offset the 50% chance of losing $10.
Practical implications for negotiators
As a practical matter, this means that we are willing to leave a lot of money on the table to avoid the possibility of losing. Indeed, we seem to experience loss as twice as significant as an equivalent gain.
This becomes problematic in the litigation context. Negotiation requires each party to take risks and to make concessions. Parties balance their gains against their losses – and tend to be very attentive to the other side’s losses and gains. This is true for distributive assets, such as money, as well as for intangible items such as the need for responsibility-taking, reputational concerns, and apologies.
If we perceive a “loss” as twice as significant as a “gain”, this means that each party must feel that they have gained twice as much as they have lost in order to believe that the outcome is fair.
As is so often the case, the key is framing. (I have discussed the concept of framing before, most recently in my February 2016 and January 2018 articles). A skilled negotiator mediator will frame options as positive ones – as “lives saved” as opposed to “deaths” – even if an offer or demand is not originally conceived as such.
When done well, the old axiom that “a good mediation is one in which neither side is happy” fails. If both sides believe that their negotiated gains are sufficient to offset their losses, it is possible for both to walk away satisfied.
I just received a copy of a draft proposal to create a new civil rule requiring early mandatory mediation, based on the recommendations of the Escalating Costs of Civil Litigation (ECCL) Taskforce.
I am linking the WSBA cover letter and the WSBA Civil Litigation Rules Drafting Taskforce's Proposed Mediation Rules. Comments can be submitted to Sherry Lindner at CLTF@wsba.org by May 21, 2018.
Some of you may have noticed that there was no March 2018 edition of the Philip Mediation newsletter. It was an exciting and eventful month: Aside from my usual mediation and arbitration caseload, I was wrapping up a project with the City of Seattle, which had invited me to facilitate a series of rulemaking meetings on the new Hotel Employees' Health and Safety Act; planning and co-chairing the 24th Annual Northwest Dispute Resolution Conference, where I was delighted to see some of you; and beginning my role as a visiting lecturer at UW School of Law, where I am currently teaching an ADR survey course to 2L, 3L, and LLM students.
Happy New Year!
Before launching into an article, I would like to take this opportunity to wish you a very Happy New Year. I hope that your holiday season was enjoyable, and that 2018 is off to a happy and healthy start.
"I've Been to the Mountaintop"
Given this week's anniversary of the birth of Martin Luther King Jr., it seems appropriate to draw my inspiration from him.
In his last speech on April 3, 1968, known as "I've Been To The Mountaintop", Dr. King invoked the parable of the Good Samaritan: "And so the first question that the priest asked, the first question that the Levite asked was, "If I stop to help this man, what will happen to me?" But then the Good Samaritan came by, and he reversed the question: "If I do not stop to help this man, what will happen to him?"
Frames of Reference
Mediators often talk about the concept of "framing". Working with the same underlying information, the "frame" in which any given issue is presented can change the listener's perception of the facts without changing the facts themselves.
This is how Dr. King interpreted the different reactions of the priest and the Levite on one hand and the Good Samaritan on the other. The first two imagined the consequences to themselves in creating their frame of reference, while the latter framed the question by focusing on the consequences to the stranger in need of aid.
Using Framing Techniques
A mediator who is able to successfully utilize framing techniques contextualizes information in such a way that the listener can connect that information to what they already know. This effectively reduces ambiguity and misunderstanding, and leads parties to durable settlement agreements.
And remember that this tool is not limited to mediation. Next time you find yourself in a disagreement with opposing counsel, a co-worker, or a friend who does not understand your argument, consider reframing the issue. If you can make your point using the other person's frame of reference, they are more likely to understand and accept it.
For this edition, it seemed appropriate to write about two things that can spook mediation participants, namely the specters of early mediation and joint sessions.
In litigated cases, there is often a fear of scheduling a mediation before all necessary information has been gathered. Practically, this often means that mediation occurs on the "eve of trial", at or near a deadline imposed by the court.
It is true that preparation is key, and that effective preparation requires the parties and their attorneys to be well informed about their options. However, research shows that positions become entrenched as time passes. This is especially true when individuals– including parties, attorneys, claims professionals, and other stakeholders – are required to repeat and justify their perspectives as the case progresses through depositions, written discovery, and motions practice.
Parties are more likely to be receptive to options for resolution before they spend time and money shaping and defending their positions.
And if an early mediation does not resolve the case, it may yield other benefits, such as providing clarity about strengths and weaknesses of the case, formulating next steps, and setting the stage for further productive negotiations.
One of the principal foundations of mediation is party self-determination. As such, I never require joint sessions, because participants have serious concerns about the potential harm they may cause.
However, I conduct separate pre-mediation calls with each party, and always include a discussion of whether the parties would consider a joint conversation at some point during the mediation. Such a joint conversation may include all participants or some subset of participants, such as attorneys or experts.
While I am more than willing to shuttle messages and questions between rooms, a facilitated direct conversation can often save significant time and effort. Consider the opportunity inherent in humanizing yourself, acknowledging the other, and observing body language and tone of voice in a less formal setting than a deposition or a courtroom.
Much information can be gained from such interactions, if they are properly managed by a trusted mediator.
Not so Spooky After All
Don't be spooked by the concept of early mediation or the thought of joint sessions. While neither is appropriate in all cases, both can be powerful tools if used judiciously.
I recently adopted a 10-week old puppy. She has taken over my life, but I don’t regret it for an instant. Well, except perhaps in those instants when I wake up at 4 a.m. because she is on a strict house training schedule and needs to go out in the autumn rain.
Fortunately, I have a home office. So for my clients, it is business as usual when it comes to phone calls, e-mails, and meetings. And as I think about the skills needed to raise and train a puppy, it occurs to me that many of them translate to my professional life as well.
For the first few days, finding Mocha’s collar, her leash, my shoes, treats, etc., when she needed to go out seemed oddly baffling. I did not yet have designated places for each of these items that made it easy to grab them and go. Now I do, and we have settled into a routine.
How does this relate to mediation? Preparation is key. Whether selecting a mediator, scheduling a mediation, or planning and executing your negotiation strategy, it is important to set your goals and consider your alternatives. Make you sure you know that everything you need is readily accessible, both physically and metaphorically. Because as the old saying goes, “to fail to prepare is to prepare to fail”.
Young puppies have an attention span of just 20-30 seconds, yet they are constantly learning. The question I must ask myself is what I am conveying to Mocha in those moments when I do not think she is paying attention.
The same is true in mediation. Everything you say or do has an impact, be it a small gesture such as a smile in a hallway, a minor concession regarding the time or location of the mediation, or a large move in dollar amounts. Be aware of what you are conveying even in those moments that you perceive as less than substantive negotiations. Intentionally or not, you may still be sending a message.
Sometimes, Mocha is just too excited to listen. At other times, she is too exhausted, or too distracted. And sometimes, when the timing is just right, she amazes me with her willingness and her ability to absorb new information.
When thinking about mediation, consider whether the timing is right. Is it so late in the case that the parties are suffering from litigation fatigue? Are there other things going on in the case – or in your or your client’s personal or professional life – that are causing a distraction? If the timing is right, progress in negotiations often readily follows. If it is not, make sure to let your mediator know why. Because in contrast to training a puppy, timing is within your control, and your mediator can assist you in resolving your case even if the timing is imperfect.
Here in the Pacific Northwest, we just experienced the final week of a 56-day record dry spell. A week that was filled with so much smoke from British Columbia wildfires that our air quality was worse than that of Beijing, and Mt. Rainier became invisible.
Women in the News
On Tuesday of that disquieting week, an excellent New York Times op-ed on the challenges faced by women in the legal profession hit my inbox – multiple times, through different listservs. The statistics are discouraging, but there is a roadmap towards change.
On Wednesday, I first heard about the now infamous Google memo that has sparked controversy and dialogue about women in the software industry. We have a long road ahead of us.
The Trap of Confirmation Bias
But as Christine Emba wrote in an opinion piece about that Google memo in the Washington Post on Friday, “To avoid confirmation bias and be able to make a clear case for your values, you have to be willing to hear the other side.”
Understanding = Power
As uncomfortable and disagreeable as it may be, understanding the other side ultimately gives us more power. Power to examine our own perspective for flaws. Power to revise our arguments to make them less threatening and more compelling. Power to create a narrative that has the potential to reach those who disagree with us.
In mediation, this dynamic is always present. In forging a path toward resolution, we cannot give in to the temptation to blindly paint all members of a group with the same brush. We cannot afford to default to stereotypes based on external characteristics, or to make assumptions about the other side’s abilities, experiences, or motivations. Instead, we must understand the individual. We must understand what motivates them, what will lessen their pain, what they want and what they need in order to put the conflict behind them and “move on”.
On Saturday, the skies finally cleared and everyone breathed a sigh of relief – only to have the wind knocked out of us by the news of white supremacist terrorists in Charlottesville. And yet, the unified outrage at these acts of bigotry and hatred serves as a reminder that our shared humanity far outweighs our differences.
Summer is in full swing, and for a change of pace, I would love to hear from you!
I would be delighted if you would take a moment to e-mail me your answers to one or more of the questions below. I have also created an online survey that you can complete if you prefer.
1. What is the most effective strategy you have used (or seen others use) in mediation or other dispute resolution settings?
2. What strategies have you used or witnessed that have been ineffective or counterproductive?
3. What is the greatest challenge you have experienced in mediation or other dispute resolution?
I will be back with dispute resolution articles, tips, news and events in August. In the meantime, I hope you are having a wonderful summer!
I have been thinking a lot about community lately. What defines a community? How do we build community? How do we assess who is a member of a community, and whether we belong to that community or not?
We live in an era in which face-to-face communication appears to be dwindling in favor of electronic and social media interactions. News and social media outlets tend to feed our biases for one end or the other of the political spectrum. A rising desire for “isolationism” seems to be indicative of a need for the safety of a community comprised of those who are similar to oneself (and who are therefore relatable). How do we bridge the gaps? Is unity possible, or even desirable?
What does Culture have to do with it?
When I use the work “culture”, I focus not only on race, ethnicity, and national origin, but also on family of origin, gender, education, personality, and a myriad of other factors that unite us and differentiate us from each other. Especially important to the dispute resolution context is the issue of communication styles.
Last weekend, I taught a class on Skillful Conflict Engagement to students enrolled in the City of Seattle’s People’s Academy for Community Engagement. My segment on cultural differences focused on “direct /indirect” and “emotionally expressive/emotionally restrained” communication: Direct communicators confront problems head on and tend to value independence and autonomy; indirect communicators are more subtle, often not expressing what they really think, in order to preserve interdependence and harmony. Similarly, those who have an emotionally expressive style tend to speak quickly and make generous use of non-verbal communication tools; those with an emotionally restrained style place great value on remaining calm and appearing in control.
There are, of course, many other communication styles that fall along a similar spectrum. Power distance, uncertainty avoidance, and monochronic/polychronic perceptions of time are just a few of the stylistic differences that are found between – as well as within – groups.
Conflict happens when these styles clash. An indirect communicator may perceive a direct communicator to be rude, brusque, and demanding. At the same time, the direct communicator may be frustrated by the perceived inability of the indirect communicator to get to the point. Someone with an emotionally expressive style may be disregarded as attention-seeking and overly dramatic, while an emotionally retrained style may be mistaken for aloof, snobbish, or cold.
Back to Community
Communities, like individual relationships, are built on trust and respect. Trust and respect, in turn, are earned through understanding: Understanding of such factors as differences in communication styles, which may allow you to trade your assumption that your co-worker is a snob for the understanding that she is merely emotionally restrained, or the perception that your client refuses to get to the point for an appreciation that he values harmony.
In most cases involving a relational component – within groups, organizations, and other communities – mediators find that communication has broken down. We facilitate conversations that participants are otherwise unable to have, creating a foundation for restoring trust and respect that may have eroded over years or even decades. We help our clients rebuild relationships and communities. By doing so, we occasionally make what seemed impossible possible.
“Unskilled and Unaware of It: How Difficulties in Recognizing One’s Own Incompetence Lead to Inflated Self-Assessments” (Dunning, D. and Kruger, J., Journal of Personality and Social Psychology 1999, Vol. 77, No. 6. 1121-1134).
The Dunning-Kruger Effect
In 1999, two Cornell University researchers conducted a series of studies on how people perceive their own level of competence. The results should cause all of us to pause and engage in a bit of self-reflection.
David Dunning and Justin Kruger concluded that those who are really bad at something tend to believe that they are actually quite good at it. In other words, in order to appropriately assess our own expertise at something, we must already possess a certain amount of expertise.
It’s Not Just Mr. Wheeler!
Since its publication, Dunning and Kruger’s paper has become something of a cult classic. It certainly has far-reaching implications, not least for litigants and others embroiled in disputes.
“The Dunning-Kruger Effect Shows Why Some People Think They're Great Even When Their Work Is Terrible” (Mark Murphy, Forbes, January 24, 2017).
The Overconfidence Effect
Attorneys, mediators, arbitrators, and judges encounter a corollary to the Dunning-Kruger effect, namely inflated assessments of the strength of any given party’s case. This is also known as the overconfidence effect.
My favorite example of this is from my time as a volunteer small claims court mediator. In introducing the option of cost-free pre-trial mediation, the judge routinely asked every litigant in the courtroom “Who here believes that you are going to win?” More often than not, everyone raised their hand. The judge then bluntly stated, “Half of you are wrong.”
Similarly, litigants and other parties in mediation can overestimate the strength of their case and their chances of success. Sometimes, this is mere puffery, in order to attempt to achieve the best possible settlement outcome. At other times, however, it is apparent that a party’s assessment of their case may be flawed, and that the party has become anchored to an outcome that is likely unachievable.
This is not to say that those who are overconfident about litigation outcomes are unskilled – though sometimes, inexperience and overconfidence are indeed correlated – but rather, that our psychological tendencies can get in the way of good decision-making.
At least one study has shown that, when making decisions about whether to settle, Plaintiffs are wrong far more often than Defendants (61% versus 24%). However, when Defendants are wrong, their mistake costs them more (an average of $1.1 million versus $43,000). (“Study Finds Settling is Better Than Going to Trial”, New York Times, August 8, 2008.)
So, what can we do to avoid falling prey to our own inflated self-assessments?
Check Your Level of Confidence
Attorneys must effectively manage their clients’ relatively unskilled expectations by tempering that optimism with the reality of skill and experience. Mediators engage in “reality testing” and other strategies to assist clients in evaluating realistic options.
Both attorneys and mediators – of all skill levels – benefit greatly from applying our critical thinking skills to ourselves and everything else. Knowing that we are likely to be victims of overconfidence and the Dunning-Kruger effect, we may be able to guard against them by reviewing old knowledge, pursuing new knowledge, speaking to peers about our strategies, successes, and failures, and actively seeking constructive criticism.
Do Not Underestimate Others
Optimism about our skills, our abilities, and our chances of success is not in and of itself a bad thing. However, we all tend to perceive ourselves as above average. We then explain the fact that we cannot all be above average by assuming that others must be worse than us. “Being clueless about your own abilities is one thing. Misjudging others’ abilities is relatively more serious.” (Arstechnica.com)
Or, to quote an anonymous author: “When in doubt, ask. When not in doubt, ask. If you are not in doubt, you may be kidding yourself.”
I picked up a copy of Pagan Kennedy’s book Inventology from the “staff recommendations” shelf of the library a few weeks ago. Several chapters into the book, these sentences jumped out at me:
(Kennedy, Pagan. Inventology, New York, NY, Houghton Mifflin Harcourt, 2016.)
Weaving the Narrative
Substitute the word “lawyer” or “mediator” for “inventor”, and this quote could apply equally well to dispute resolution professionals and to advocates representing clients in legal matters.
At the core of our work is listening to someone else’s story. As lawyers, we then construct a narrative that weaves facts and law into a solution that we can present to a judge or jury. As mediators, we try to guide our clients to a resolution that takes two or more often opposing narratives into account in order to help our clients craft a solution that addresses everyone’s problems.
Often, we discover a critical piece of information after the narrative has already taken shape. We may find ourselves realizing that the problem we are trying to solve is different than the one our clients need us to address. To serve our clients well, we must be flexible and willing to change course. We must ask open-ended questions and more fully develop our understanding of the problems we are asked to address.
We Have the Advantage!
After all, we have an advantage over inventors: The ideas, problems, and solutions belong not to us, but to our clients. As long as we remember to define success as that which best serves our clients (rather than our own egos), we can retain the flexibility to genuinely ask "why?", instead of simply defending our narrative in the face of criticism.
This blog entry is copied from an e-mail I received from Maureen Beyers, which she sent on behalf of the ABA Section of Dispute Resolution's Committee on Women in Dispute Resolution (WIDR):
The statistics for women in ADR are profoundly discouraging and show that much effort is needed for women to achieve parity in the profession.
A study published in the ABA Dispute Resolution Magazine found that women served as arbitrators in only 18% of cases overall. The only subject matters that exceed that 18% baseline are family, employment, consumer, and small claims. A recent Law.com article reported that "in business disputes last year, AAA reported that 22 percent of arbitrators selected were either a woman or a minority." The ABA study demonstrated that women mediators do not fare much better: They were mediators in only 25% of cases with more than $100,000 in dispute, and only 23% when more than $1,000,000 was in controversy. According to statistics provided by JAMS and reported by Law.com, only 25 percent of JAMS neutrals are women and only 7 percent are minorities. The issue is more than just gender parity, as important as that is; the imbalance impacts the fairness of the process. As the Law.com article notes, the "lack of diversity alters the dynamics in arbitration, and possibly the outcomes ... There can be a subtle disconnect, an awkward language barrier, lack of trust – even naked biases."
The ABA Section of Dispute Resolution's Committee on Women in Dispute Resolution (WIDR) is working to change these outcomes. We need your help. WIDR has created a WIDR Directory of Neutrals – please pass this along to your friends and colleagues to help us promote diversity in dispute resolution!
From intra-family quarrels and disagreements between friends, to business disputes, clashes between employers and employees, deadlocks between members of different political parties, and litigated cases of all kinds, what lies at the heart of conflict is often not that which is expressed or articulated. This may lead individuals, attorneys, parties, and other stakeholders to believe that differences are insurmountable.
To an impartial and objective observer such as a mediator, however, it is often apparent that there may be a significant amount of overlap – or at least no actual conflict – between the parties’ underlying needs, interests and values. What creates the conflict is instead the parties’ implementation of vastly different strategies to achieve those interests. Understanding the underlying values and interests of your negotiating partner, and reframing the argument to appeal to those values and interests, can lay the groundwork for successful bridge-building.
What’s Your Ethical Code?
Social psychologist Matt Feinberg of the University of Toronto and sociologist Robb Willer of Stanford University have conducted studies on how people of differing political persuasions can shift the perspective of their conversation partners.
Much of contemporary American political rhetoric is characterized by liberals and conservatives advancing arguments for the morality of their respective political positions. However, research suggests such moral rhetoric is largely ineffective for persuading those who do not already hold one’s position because advocates advancing these arguments fail to account for the divergent moral commitments that undergird America’s political divisions.
Feinberg, M. & Willer, R. (2015). From Gulf to Bridge: When Do Moral Arguments Facilitate Political Influence? Personality and Social Psychology Bulletin 41, 1-17.
In other words, “[o]ne reason [converting people from the ‘other side’ to a new way of seeing things] is so hard to do […] is that people tend to present their arguments in a way that appeals to the ethical code of their own side, rather than that of their opponents.” (The Atlantic, “The Simple Psychological Trick to Political Persuasion”, February 1, 2017.)
For instance, when recounting pivotal moments in their lives, liberals rely more on the harm and fairness moral foundations than conservatives, whereas conservatives rely more on the loyalty, authority, and purity foundations (McAdams et al., 2008). Similarly, sermons in liberal church congregations tended to employ more themes around the harm and fairness moral foundations than did sermons in conservative congregations. Conversely, sermons in conservative congregations were grounded in more conservative moral foundations (e.g., authority, purity) than sermons in liberal congregations (Graham et al., 2009). Liberal and conservative political arguments likely reflect these differences in morality as well, with liberals basing their arguments in the more liberal foundations and conservatives basing their arguments in the more conservative foundations.
The study found that “both liberals and conservatives composed persuasive messages that reflected their own moral values, not values unique to those who typically would oppose the political stance.” It has been theorized that this is due to a moral “empathy gap” – the inability to comprehend moral world views different from one’s own. This gap prevents individuals from achieving the perspective needed to craft an argument that appeals to the convictions of those with different moral values.
Perhaps the most interesting finding of the study: The same moral arguments “reframed to appeal to the values of the intended audience (those who typically oppose the political position that the messenger is arguing in favor of)” were typically more effective.
For example, the researchers posed the question of whether English should be the official language of the United States. The more liberal participants were, the more likely it was that they would be persuaded by a “fairness” argument, which stated that making English the official language would lead to more fair outcomes for immigrants and help them avoid discrimination. The more conservative participants were, the more likely it was that they would be persuaded by a “group loyalty” argument, which stated that the English language is something that unifies Americans and is a fundamental part of a larger cultural assimilation process.
The authors conclude that:
Morality contributes to political polarization because moral convictions lead individuals to take absolutist stances and refuse to compromise. Recognizing morality’s influence on political attitudes, our research presents a means for political persuasion that, rather than challenging one’s moral values, incorporates them into the argument. As a result, individuals see value in an opposing stance, reducing the attitudinal gap between the two sides. This technique not only substantiates the power of morality to shape political thought but also presents a potential means for political coalition formation.
Implications for Negotiation and Mediation
So what is a negotiator to do?
First, listen to understand, rather than to respond. Ask questions that will take you past stated hard-line positions and try to uncover that which may not be articulated.
Second, keep in mind that it is not necessary to agree, or to affirm the “correctness” of your negotiating partner’s underlying interests. What is important is to reach an understanding of those interests.
Third, attempt to reframe your argument in such a way that it will satisfy not someone who thinks like you, but instead the identified values, needs or interests of your negotiating partner.
For example, the position taken by an injured claimant in a medical malpractice case may be that the claimant be paid a vast sum of money and that the allegedly at-fault physician must be disciplined. Countering with the position that the demand is too high and that the physician made no mistake is not likely to lead to a negotiated settlement. However, if the claimant’s underlying interest is the ability to pay outstanding medical bills and to plan for future bills (financial security), coupled with a desire to have the physician acknowledge her mistake (personal responsibility), both underlying goals may be achieved by other means.
Whether it boils down to a fundamental moral value such as (e.g. loyalty or fairness), a specific need (e.g. recognition), or an underlying interest (e.g. financial security), these are the areas that lend themselves to building bridges and closing the empathy gap.
We could all benefit from a little bit more of that these days.
After months of planning, fundraising, reviewing session proposals, and all the other behind-the-scenes work that goes into creating a great conference, registration for the 2017 Northwest Dispute Resolution Conference is now open. Check out session descriptions and speaker bios, and register by March 10, 2017 for the discounted early bird rate!
Happy New Year!
As many of you know, I have been singing with the Seattle Symphony Chorale for more than 11 years. This season has been one of our busiest to date, with three full weeks of daily rehearsals and performances between December 1 and January 8, culminating in Beethoven's Ninth Symphony and its iconic "Ode to Joy".
I have to admit that "B9", as we affectionately call it, is not my favorite piece of music. For sopranos, in particular, it requires long stretches of sustained singing at the very top of our range, which is vocally taxing. But it is undoubtedly one of the masterworks of the Western classical music repertoire, and is best known as an enduring symbol of human unity.
As with all symbols, of course, context matters. A blog entry in The Guardian points out that:
The Ode to Joy tune – which Beethoven composed as a motto for the whole world to take to its heart, to become a national anthem of humanity itself [...] has been adopted as a the motto of dictatorships as well as democracies. As Beethoven’s most recent biographer Jan Swafford says, “how one viewed the Ninth […] depended on what kind of Elysium one had in mind, whether all people should be brothers or that all nonbrothers should be exterminated”.
Given the tumultuous period in history in which we find ourselves – with the U.S. on the cusp of a new presidency, but seemingly more divided than ever; with the UK preparing to leave the European Union; and with nationalism on the rise in India and France, among others – I believe that symbols and expressions of unity are critically important.
And as I was looking out at the audience, on its feet after the last note of our performance, I could not help but marvel at the power of music to bring people of all colors and creeds together, regardless of whatever else may be going on in the world.
I know that I am not supposed to mix business and politics. I am going to break that rule today.
November 8, 2016
I am profoundly saddened at what my adopted country wrought on November 8. Not because we elected Donald J. Trump president, but because half the American public heard Mr. Trump paint himself as racist, sexist, misogynistic, and isolationist – and then made the decision to vote for him anyway. My sadness and fear are rooted in the fact that Mr. Trump’s election appears to validate all those hateful sentiments.
"When They Go Low, We Go High"
And yet, I am hopeful. I am hopeful because I know that for most people, hatred is not a position; it is a manifestation of deep-seated fear and insecurity. I am hopeful that this is an opportunity for us to confront the demons of racism, sexism, misogyny, homophobia, and xenophobia that were brought into the light by the Trump campaign, and to begin a dialogue to start healing the rifts that have clearly existed for too long without being openly acknowledged.
It is easy to lecture others when you hold a position of power. We have now discovered exactly where that has led us. It is much more difficult – and requires much more grace and humility – to have difficult conversations when you are on the losing side. But as First Lady Michelle Obama has said repeatedly in her eloquent speeches, “when they go low, we go high”. Grace and humility are precisely what is required when taking the high road.
As a mediator, I find that trying to convince others in the face of strongly held beliefs rarely works. Study after study shows that facts don’t convince people to change their beliefs; indeed, facts usually serve only to strengthen those beliefs. What can bridge seemingly insurmountable divides is listening to people’s fears: Listening not with the intent to respond, to argue, or to convince, but simply with the intent to understand what is going on beneath the surface.
Don't get me wrong. I am not suggesting that we rush to reunify the American public. As The Atlantic pointed out just a week before the election, "a rush to reunion can entrench injustice. Instead of papering over differences, Americans need to be smarter about engaging them."
So let’s regroup, support each other, and find strength in our shared values. Let’s not retreat into our echo chambers. Instead, let’s take this opportunity to talk about politics at the dinner table, in schools, in social settings, and in other places where it is too often taboo in American culture. Let's create opportunities to participate in difficult conversations. Let’s continue to fight for the values and ideals that we hold dear, by engaging those who think differently than we do with respect, humility and genuine curiosity.
Not doing so – or worse, engaging in reactive anger and hatred – will not help us achieve our goals; it will only serve to deepen the divide. And that is something none of us can afford to have on our conscience.
I have written about the power of apologies before. And I thought the topic well worth revisiting, especially in our current political climate, which appears to be breeding unprecedented levels of fear, hatred, and vitriol.
Everyone has by now seen or heard the infamous Access Hollywood video of Donald Trump; and everyone has heard or seen his taped apology. Despite the apology, the video has been played, replayed, and discussed in countless hours of analysis, interviews, and comedy sketches – and as of this morning of the third and final debate, Mr. Trump’s campaign appears to be faltering. This is at least in part because the apology that was offered did not feel like a “real” apology.
I have seen a number of apologies in my mediation sessions, and I have witnessed just how powerful they can be. So what constitutes a “real” apology?
Beverly Engel, author of the book “The Power of Apology”, identifies three essential elements of a meaningful apology:
If, and only if, all three of these elements are satisfied is an apology perceived as real and meaningful. If any one of them is seen as contrived or otherwise inadequate, the apology is not simply ineffective, but may indeed have the opposite of its intended effect: It may aggravates an already tense and unpleasant situation.