So much of negotiation and mediation is about changing minds. As negotiators gather and exchange information, new data shifts the way people understand the underlying issues, perceive the risks, and weigh choices.
The concealment or distortion of facts are the thumb on the butcher’s scales in any negotiation. Knowledge — accurate information — is indeed power.
But possessing accurate information may not be enough, whether we are talking about making decisions at the negotiation table or in the voting booth. It’s what we do with that information that matters. Consider the following.
I’ll leave the question of whether Fight the Smears is neutral and factual as opposed to partisan spin to the political pundits. Rather, I’d like to focus on the neuromarketing aspects of this effort: could Fight the Smears end up promoting the very allegations it is trying to quash?
This idea is far from outrageous. In Damage Control That Causes More Damage, I wrote about research conducted by the [Centers for Disease Control and Prevention] that showed repeating a false claim in order to discredit it actually caused more people to believe that it was true.
Want an up-close look at how the persistence of myths looks on an individual level? One voter from Medina, Ohio, despite the efforts of one blogger to innoculate her against political urban legends, persists in believing that Barack Obama is an Arab (as if there’s something wrong with that anyway) — which, she insists, disqualifies him for the job as U.S. president. Here is a video in which she struggles to explain why she clings to her views, despite a close encounter with the truth:
In “The Big Sort“, Economist.com reports on evidence that the polarization that has characterized political discourse in the U.S. will not end, as some have hoped, with the election of a new president this November. There are signs that increasingly Americans are choosing to live among neighbors who share their viewpoints, which means less exposure to other perspectives on important issues.
The implications are disturbing:
Studies suggest that when a group is ideologically homogeneous, its members tend to grow more extreme. Even clever, fair-minded people are not immune. Cass Sunstein and David Schkade, two academics, found that Republican-appointed judges vote more conservatively when sitting on a panel with other Republicans than when sitting with Democrats. Democratic judges become more liberal when on the bench with fellow Democrats.
If you’re an American, what have you experienced of this political segregation? What effort have you made to combat confirmation bias when it comes to the political issues of the day? What opportunities do you have to talk with people whose values and views are different from your own? What are the sources of news you rely on? What kind of media do you consume — progressive, conservative, mainstream, or extreme right or left? When was the last time you listened to views you disagreed with?
That “Mediate, Don’t Litigate” bumper sticker may reveal a lot more about you than the fact that you support ADR — it may be warning other drivers that you’re aggressive behind the wheel.
Drivers of cars with bumper stickers, window decals, personalized license plates and other “territorial markers” not only get mad when someone cuts in their lane or is slow to respond to a changed traffic light, but they are far more likely than those who do not personalize their cars to use their vehicles to express rage — by honking, tailgating and other aggressive behavior.
It does not seem to matter whether the messages on the stickers are about peace and love — “Visualize World Peace,” “My Kid Is an Honor Student” — or angry and in your face — “Don’t Mess With Texas,” “My Kid Beat Up Your Honor Student.”
An advertisement for one of the big ADR firms appears regularly in the weekly newspaper for lawyers distributed here in Massachusetts.
The ad, in sober gray, black, and white, covers more than half a page. It displays thumbnail photos of the neutrals on its panel, with the names in full caps printed neatly beneath each headshot.
Samuel. Jerry. William. Gordon. David. Patrick. Cortland. James. A second James. Robert. Charles. Allan. Eric. John.
And, like an afterthought, or a printing error, one lone Maria.
This ad bothers me. It seems to contradict everything I have told my daughter about women and careers. “You can be anything you want,” I have told her, ever since she was a little girl.
This ad tells my daughter something very different.
Today ADRblogs.com lists 146 blogs from 25 countries, representing conversations across the globe about mediation, negotiation, and conflict resolution in languages that include English, Spanish, Portuguese, German, French, Romanian, Danish, and Turkish.
To see more, and to immerse yourself in the global marketplace of ideas that is the ADR blogosphere, no passport is needed. Just go visit ADRblogs.com. To browse through the headlines of the blogs in its catalog, visit the World Directory of ADR Blogs Reading Room. Submissions, by the way, are always welcome.
The latest edition of Blawg Review, the weekly review of the best in legal blogging published every Monday, falls this week on Bloomsday, a celebration of James Joyce and his immortal opus, Ulysses, the book that made glorious the word “Yes” long before Roger Fisher and William Ury wrote their influential text on negotiation:
…I was a Flower of the mountain yes when I put the rose in my hair like the Andalusian girls used or shall I wear a red yes and how he kissed me under the Moorish wall and I thought well as well him as another and then I asked him with my eyes to ask again yes and then he asked me would I yes to say yes my mountain flower and first I put my arms around him yes and drew him down to me so he could feel my breasts all perfume yes and his heart was going like mad and yes I said yes I will Yes
(Is it me, or is suddenly hot in here?)
This week’s host of Blawg Review, cearta.ie (”the Irish for rights”), explains how Blawg Review #164 pays tribute to this literary masterpiece:
Today is Bloomsday, the centrepiece of a weeklong festival in Dublin celebrating the day in 1904 on which the events of James Joyce’s novel Ulysses unfold, which is the day Joyce first formally went out with Nora Barnacle (the story is told in the enthralling movie Nora; other movies with 16 June references include The Producers and Before Sunrise). In the novel, all human life is there; and Eamon Fitzgerald’s Rainy Day is currently by far the best guide to the important things in life: democracy, football, and technology. Expect a Bloomsday post today (this is last year’s; update: this is this year’s). Just like Oh Brother, Where art Thou?, the novel loosely parallel’s Homer’s Odyssey, and this blogpost will very very loosely parallel Joyce’s Ulysses (or at least his chapter headings).
If you prefer your review of legal blogging without literary allusions, there is of course Blawg Review #163, ably hosted last week by More Partner Income.
In this experiment, subjects would agree with the answer of the group despite the evidence of their own eyes that the majority’s answer was the wrong one. It showed how readily people will deny what they see and submit to the majority view, and how hard it is for one person to stand strong against the convictions of the many. This holds implications for business meetings, political processes, jury deliberation, or even negotiation.
The internet abounds with communal gathering spots — places where like-minded souls can get or dispense advice, make friends or business connections, debate ideas, or share photos and other media.
Mashable, a social networking news source, rounds up an impressive 350 social networking sites where users can tap into the wisdom of crowds.
With sites for book lovers, business owners, sports enthusiasts, oenophiles, or families looking for ways to stay in touch or get organized, there is practically something for everyone.
Last summer the Southern California Mediators Association posted to its blog an essay by mediator Christine von Wrangel provocatively titled, “Mediation: A Lucrative Career or a Ticket to the Poor House?“, a polemic directed against the many universities and training programs raising the career expectations of hundreds of mediator-hopefuls:
Almost every accredited or unaccredited university has jumped on the “mediation” bandwagon. Enrolling in these courses can cost students from $500 to well over $1,000 per course, depending on the provider. For universities, retired judges, conflict resolution institutions, government and private mediation providers, the business of offering mediation courses has become lucrative.
Marketing companies have now jumped on the band wagon, promising they can help mediators find a profitable niche in the market, provided of course they are willing to pay the thousands of dollars it takes to launch a marketing campaign.
Who are the winners in this mediation frenzy? Clearly, the providers of mediation training courses and related services.
Who are the losers? The students enrolling in these courses, because most have been lead to believe that they will be able to carve out a living as a mediator after “graduation.” And this is rarely the case.
Von Wrangel asked,
Is it ethical to continue to inundate the market with more mediation courses and classes, when most students who graduate face a superfluity of mediation providers, with little hope to start a successful mediation practice?
Wellington mediator Geoff Sharp points his readers to a study recently released that provides the statistical evidence for von Wrangel’s concerns. In a report titled, “Making Peace and Making Money: Economic Analysis of the Market for Mediators in Private Practice“, Urška Velikonja, a Teaching Fellow at Harvard University, presents data that the supply of mediators far outstrips their demand and paints a distressing picture of the realities of mediation practice for the hundreds of aspiring mediators who emerge each year from trainings and degree programs across the U.S.
Velikonja singles out mediation trainers for some sharp criticism:
The failure by mediation trainers to provide accurate information about opportunities to make money in mediation contributes to excess entry in the market for mediation services….[I]naccurate information about the availability of mediation jobs as well as overoptimism lead aspirant mediators to spend money on mediation training and starting a mediation practice, and incur opportunity costs by foregoing other career opportunities. Not only may the failure of mediation trainers to fully disclose the pros and cons of mediation practice and correct trainee misapprehensions be unethical, it also leads to socially inefficient outcomes. To correct this misallocation of resources, mediation training programs should disclose information about “the known opportunities, limits, and obstacles in mediation in mediation employment and professional practice opportunities.”
She even anticipates the counterargument mediation trainers often trot out:
While it is true that mediation may be a useful skill in our work and familial lives, it is likely that fewer people would spend hundreds or thousands of dollars on mediation training without the expectation that training could lead to a career change.
I at least am one mediation trainer who is brutally honest when people contact me for advice on becoming a mediator. I cringe every time I hear someone tell me that they plan to leave a well-paying job to become a mediator as soon as they finish their basic mediation training. I routinely tell people not to quit their day jobs, although many of them seem determined to do so, buoyed up by an unreliable optimism. And I despair when I get the inevitable email from a recent university graduate with a degree in conflict resolution, desperately looking for work as a mediator and frustrated because their college placement office could not help them find a job.
I don’t believe (yet, at any rate) that we should stop training people to be mediators. I still believe that the skills are useful in workplace, civic, and family settings. But Velikonja’s report should be required reading for anyone who is thinking about becoming a mediator. And I hope mediation trainers take the time to read it, too.
Two respected thinkers in the mediation field, Leonard Riskin and Nancy Welsh, recently made available on the Social Science Research Network an advance copy of the law review article they co-authored, titled, “Is that All There is? The ‘Problem’ in Court-Oriented Mediation“. It takes a long, thoughtful look at the failure of court-connected mediation to fulfill its early promises and the extent to which it increasingly ignores the needs and interests of the clients at the heart of the case:
In particular, court-oriented mediation now reflects the dominance and preferences of lawyers and insurance claims adjusters. These repeat players understand the problem to be addressed in personal injury, employment, contract, medical malpractice and other ordinary civil non-family disputes as a matter of merits assessment and litigation risk analysis. Mediation is structured so that litigation issues predominate; other potential issues - personal, psychological, relational, communitarian - disappear.
While mediation may meet the expectations of the repeat players, it fails to honor those of the one-shot player — the client. Riskin and Welsh describe what this signified for one couple struggling with tragedy who had sued a hospital and a doctor for negligence in the medical care provided at the time of the birth of their son:
The mediation processes failed to consider the [couple's] mediation-related core concerns. The procedural choices made by the lawyers and (apparently) not questioned by the mediators — that Donna and Tony would not attend or speak in most of the joint sessions, and that they would have no role in deciding upon procedures or subjects of discussion for the mediation — ignored their mediation-related core concerns of autonomy, status, and role…In stark contrast, the mediations were structured to address the core concerns of the repeat players, particularly the lawyers, both within and outside the mediation.
While I happened to be working my way through this article, a colleague of mine forwarded to me a link to Positively Neutral, a web site that provides feedback about mediators and other neutrals. The web site declares that it “provides attorneys with what they care about most: the opinions of other lawyers who have used a specific neutral or expert in their case”.
With Riskin’s and Welsh’s points uppermost in my mind, I had to ask, what about the clients?
The Boston Globe reported yesterday that more gun owners in the U.S. are carrying their weapons openly. According to the Globe, these handgun enthusiasts, God help us, are “part of a fledgling movement to make a firearm as common an accessory as an iPod.” In fact, one “open carrying” husband wears his “Glock 23 openly into his bank, restaurants, and shopping centers”, while he and his wife “drop off their 5-year-old daughter at elementary school with pistols in their hip holsters”. Yipes.
Look, I have no problem with people owning handguns. And I understand why people believe that guns buy them a measure of personal safety, particularly those who live or work in high-crime areas, or who have faced threats of violence. But to normalize the open carrying of a handgun as if it were an innocuous accessory like a cellphone or a Hermes scarf?
Call me a lily-livered, Kumbaya-singing, negotiation-loving surrender monkey, but I think I’ll just strap on a copy of Getting to Yes instead.
Optimism and pessimism alike each have benefits. Studies suggest that optimists may enjoy better health, but being overly optimistic can be a hindrance when it comes to launching or running a business.
The effect of optimism may also be influenced by one’s career:
The importance of positivity can vary by profession. University of Pennsylvania psychologist Martin Seligman, a leading researcher on optimism, has found that pessimistic law students are the most successful. Optimistic sales agents, on the other hand, significantly outsell pessimistic ones.
And optimism may even have political consequences:
According to Seligman’s analysis of presidential elections between 1948 and 1984, optimists usually win. Pessimists lost 9 of those 10 elections.
Since I began blogging over three years ago, one of the most delightful changes I have witnessed is the steadily increasing number of mediators who now share ideas, news, practice tips, and their best thinking through the medium of blogs. In fact, on any given day, a stroll through the ADR blogosphere is like attending a conference with none of the expense but much of the pleasure.
There are many mediation blogs I enjoy but one of my favorites is the French language blog, Réseau Médiation (Mediation Network). Published by Dominique Foucart, a Belgian mediator in family, civil, and commercial disputes, this blog stands out for its thoughtful and honest reflection on difficult issues in the mediation field and its attention to the discoveries in other professions that have special relevance to the work of mediators. It is well worth the time it takes me to read it with what remains to me of the French I learned in junior high and high school and the help of my trusty Larousse.
It describes the four competencies necessary for creativity:
The first and most important competency is “capturing”—preserving new ideas as they occur to you and doing so without judging them. The second competency is called “challenging”—giving ourselves tough problems to solve. In tough situations, multiple behaviors compete with one another, and their interconnections create new behaviors and ideas. The third area is “broadening.” The more diverse your knowledge, the more interesting the interconnections—so you can boost your creativity simply by learning interesting new things. And the last competency is “surrounding,” which has to do with how you manage your physical and social environments. The more interesting and diverse the things and the people around you, the more interesting your own ideas become.
So much of negotiation and mediation is about changing minds. As negotiators gather and exchange information, new data shifts the way people understand the underlying issues, perceive the risks, and weigh choices.
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