…proper daydreaming - the kind of thinking that occurs when the mind is thinking to itself - is a crucial feature of the healthy human brain. It might seem as though our mind is empty, but the mind is never empty: it’s always bubbling over with ideas and connections.
Lehrer describes the discoveries about the role daydreaming can play in creative problem solving.
Many scientists argue that daydreaming is a crucial tool for creativity, a thought process that allows the brain to make new associations and connections.
This holds implications for negotiators and mediators alike. It leaves me wondering how we can encourage our clients or ourselves to utilize this underappreciated tool. Daydreaming may be just what we need when we face impasse or consider our future.
As Lehrer writes,
One of the simplest ways to foster creativity, then, may be to take daydreams more seriously. Even the mundane daydreams that occur hundreds of times a day are helping us plan for the future, interact with others, and solidify our own sense of self. And when we are stuck on a particularly difficult problem, a good daydream isn’t just an escape - it may be the most productive thing we can do.
Earlier this year, the U.S. Chamber of Commerce’s affiliate, the Institute for Legal Reform, cranked out a press release about a recent poll it commissioned that purported to prove that a majority of likely voters would overwhelmingly support mandatory arbitration.
This press release was but one weapon in the arsenal the U.S. Chamber has deployed in its campaign to defeat the Arbitration Fairness Act, draft legislation which would ban mandatory arbitration agreements in employment, consumer, and franchise contracts.
The poll delivered exciting news for the Chamber, since it “proved” that likely voters overwhelmingly clamor for arbitration over litigation:
The recent poll found that 71 percent of likely voters oppose efforts by Congress to remove arbitration agreements from consumer contracts, and 82 percent prefer arbitration to litigation as a means to settle a serious dispute with a company.
Then, this summer, an op-ed in the Wall Street Journal trumpeted the benefits of mandatory arbitration for consumer agreements, insisting that “Arbitration Works Better Than Lawsuits“, since it “can help consumers resolve disputes with companies without the high costs and legal fees of a full-blown lawsuit” and do so with greater flexibility and speed.
(I guess that the author of this op-ed overlooked “Arbitration’s Fall From Grace“, a 2006 article appearing in Law.com’s In House Counsel, which described the basis for the growing disenchantment with arbitration in the corporate world — including, among other things, its lack of flexibility, substantial cost, and the quality of decision-making. Mediation, however, gets high marks: “most lawyers will tell you today that mediation is one of the most fantastic things to come along”.)
The biggest problem with the arguments made by opponents of the Arbitration Fairness Act is that so many of them appear to rest on half-truths and omissions. (You know you’re in trouble when the best testimonial you can produce comes from a 63-year-old widow awarded $281 in her arbitration against Sears.) Some arguments are little more than hyperbolic nonsense; a senior partner at a prominent law firm warned Congress that the Arbitration Fairness Act “would effectively end arbitration in America,” a dire warning echoed in the U.S. Chamber’s press release:
“For more than 80 years, arbitration has helped Americans settle disputes fairly, quickly and inexpensively, without having to file a lawsuit or navigate the court system,” said Lisa Rickard, president of the U.S. Chamber Institute for Legal Reform (ILR). “The sweeping legislation pending in Congress would effectively eliminate arbitration, leaving many employees and consumers with little recourse.”
Little recourse? What do they call the court system?
The U.S. Chamber’s poll results (PDF) themselves are suspect. Although the polling instrument itself is not reproduced on either the Chamber or the Institute for Legal Reform web site, the survey findings discuss briefly the methodology used: “Voters were read a brief, neutral description about arbitration, provided some information about arbitration agreements, and then told of the intention of some in Congress to remove these agreements from consumer contracts with companies”:
Just so everyone we talk to this evening has the same information, please listen as I read you a statement that describes what arbitration is and how it works. Arbitration is a non-court procedure for resolving disputes using one or more neutral third parties — called the arbitrator or arbitration panel. Arbitration uses rules of evidence and procedure that are less formal than those followed in trial courts. Now, there are lots of products and services you buy where you are required to sign a contract with the company providing the good or service. In some of these contracts there is an arbitration agreement, so when you sign the contract you agree to resolve any disputes with the company through the process of arbitration. Now, some officials in Congress would like to remove these arbitration agreements from the contracts consumers sign with companies providing goods and services. How about you, do you think Congress should or should not remove arbitration agreements from contracts consumers sign with companies providing goods and services?”
There is of course plenty of information missing from this “brief, neutral description”, including an explanation of the significant differences between public and private adjudication — information which I suspect (and I think the U.S. Chamber of Commerce suspects, too) would have produced an entirely different result.
It leaves me wondering whether we can ever have a meaningful debate about an issue so politically charged as this one — a debate that should rest on full disclosure and discussion of all the facts — and not simply the most convenient ones.
For a discussion and rebuttal of arguments mounted against the Arbitration Fairness Act, read “Arbitration Works Better than Lawsuits . . . But for Whom?” at California Labor and Employment Law. Meanwhile, another poll shows a very different outcome, courtesy of the Public Citizen Consumer Law and Policy Blog. I’ve also criticized the use of mandatory arbitration in “Why mandatory arbitration clauses are bad for business“, where I argue that the most cost effective dispute resolution any company can invest in is addressing the causes of consumer dissatisfaction and improving customer service.
One question remains that opponents of the Arbitration Fairness Act have yet to answer: if arbitration is so great, why not trust consumers to choose it?
In the days after the towers fell on September 11, 2001, Americans everywhere came together to honor the dead and demand justice. The world stood beside us, sharing our shock and grief.
That unity proved short-lived. “You’re either with us or against us” became U.S. foreign policy, alienating long-time allies. Pursuit of war against Iraq tore Americans apart as the U.S. divided into two opposing camps, red state from blue. Earlier this year, conservative pundit Rush Limbaugh mocked Republican presidential hopeful John McCain for his efforts to reach across the political aisle, asking, “”When did the measure of conservatism, when did the measure of success, when did the measure of progress, when did it become reaching out to Democrats?”
What struck my ear, as a mediator, were his words on the importance of setting aside our differences to address the tough issues America faces — economy, jobs, health care, social issues, civil liberties, national security:
The times are too serious, the stakes are too high for this same partisan playbook. So let us agree that patriotism has no party. I love this country, and so do you, and so does John McCain.
He invited Americans to focus on the future and our shared interests rather than on the positions that have riven us, acknowledging the hard work ahead:
America, our work will not be easy. The challenges we face require tough choices. And Democrats, as well as Republicans, will need to cast off the worn-out ideas and politics of the past, for part of what has been lost these past eight years can’t just be measured by lost wages or bigger trade deficits. What has also been lost is our sense of common purpose, and that’s what we have to restore.
We may not agree on abortion, but surely we can agree on reducing the number of unwanted pregnancies in this country.
We may not agree on abortion, but surely we can agree on reducing the number of unwanted pregnancies in this country.
The — the reality of gun ownership may be different for hunters in rural Ohio than they are for those plagued by gang violence in Cleveland, but don’t tell me we can’t uphold the Second Amendment while keeping AK-47s out of the hands of criminals.
I know there are differences on same-sex marriage, but surely we can agree that our gay and lesbian brothers and sisters deserve to visit the person they love in a hospital and to live lives free of discrimination.
You know, passions may fly on immigration, but I don’t know anyone who benefits when a mother is separated from her infant child or an employer undercuts American wages by hiring illegal workers.
But this, too, is part of America’s promise, the promise of a democracy where we can find the strength and grace to bridge divides and unite in common effort.
As college students around the country head off to campus for the start of the academic year, many will find themselves living with roommates, an experience that can be positive or characterized by conflict. The Situationist shares research on college freshmen living with a roommate:
An essential element in reducing loneliness and building a good roommate relationship involves moving away from … ‘ego-system’ approach, in which people focus on their own needs and try to shore up their self-image, toward an ‘eco-system’ approach, in which people are motivated by genuine caring and compassion for another person.
For those of you who enjoy visual games that play with perception and cognition, I invited you to have a go at The Color Test, a flash animation that demonstrates how challenging it can be to control your attention.
It is one of many versions available online of the Stroop Test, a task in which participants are presented with words for colors and must state the color the word is printed in but not the color the word names. Overriding one’s initial response — to read the word — proves difficult indeed.
For more visual tests and games, you may enjoy the following previous episodes of Mediation Channel:
Sometimes I wonder how I lived without the internet, that seemingly endless flow of news and ideas, which, loaves-and-fishes style, miraculously replenishes itself with every visit.
While the quality of content can be uneven and its reliability sometimes suspect, the web is nonetheless a lush hunting ground for discerning information seekers. The best part of course is that so much of it is free.
This free 32-page booklet provides step-by-step guidelines for organizing and running productive meetings. There are sample forms to adapt for your own meeting, as well as tips for keeping meetings on track with suggested interventions for dealing with everything from personal attacks to sidebar discussions.
It has been said to make the world go around. It has been maligned as the root of all evil. It breeds litigation. It spurs negotiations onward. It serves as commercial and political lubricant. Alexander Hamilton once called it the “darling [object] of human avarice and enterprise”.
We fill our wallets and our bank accounts with it, we spend it or save it, we go to work each day to earn it. But do we really understand it, this thing we call money? What is its fundamental nature? What is money anyway?
Legal scholar John J. Chung, Associate Professor of Law at Roger Williams University School of Law, has some surprising and provocative answers in a recently published paper, “Money as Simulacrum”. From the abstract:
This paper explores the meaning and nature of money, and the form in which money exists today. It begins by asking such basic questions as what is money and explores the history and development of money. We live in a world of increasing and stunning wealth, a world where billionaires are as common as millionaires once were, and a world of increasing wealth inequality. This paper contends that such a world exists because money is a pure simulacrum that has taken on a reality of its own, a reality that is now untethered to the fact that money’s significance used to be limited by its role as a symbol of an underlying thing of value. But money is now a pure thing in and of itself, with value, existence and purpose that is independent of any signified thing. When money became released from its role as symbol, the foundation was laid for the world we live in today…The purpose of this paper is to discuss money in its original conception, money as it exists now, and where the meaning and nature of money may be headed.
Chung writes,
Money is now a pure abstraction with its own self-referential value and reality, whose creation is no longer constrained by a reference to anything else. It is no longer a symbol; it is its own reality.
To understand the history of the dollar or the euro in your pocket as well as its deeper meaning in the early 21st century, read “Money as Simulacrum“. Your time will be well spent.
Blawg Review, a weekly roaming blog carnival focusing on law and justice, spotlights the best in legal blogging. Each week a different blogger plays host. It is a truly Olympian feat, demanding preparation, commitment, and hard work, yielding rewards for both host and reader, while behind each host stands Blawg Review’s anonymous editor.
This month, in honor of the Olympic games in Beijing, the presentations of Blawg Review have possessed Olympic themes (or, in one case, an Olympic length). They are:
Blawg Review #173, hosted by Chicago IP Litigation Blog, relies upon the elements of a world-record swim to frame the presentation. Highlights include advice on avoiding people traps at networking events, a report of one public library that allows kids to rent R-rated movies, and analysis of the Russia-Georgia conflict.
Blawg Review #172, hosted by Ohio Employer’s Law Blog, is an Olympic-themed Blawg Review, and includes a brief but fascinating history of the origin of the Olympic games. In addition to finding links to more serious content, you’ll also learn of the ACLU’s avowed commitment to protect your right to wear a mullet.
Blawg Review #171, presented by IP ADR Blog, celebrates virgins, as mediator Victoria Pynchon serves as host of Blawg Review for the first time. This Olympic-sized edition of Blawg Review was so lengthy, it needed its own executive summary.
One of the very best of the ADR blogs is International Dispute Negotiation, a high-quality podcast series hosted by Michael McIlwrath, Senior Counsel, Litigation for GE Infrastructure - Oil & Gas, whose home base is Florence, Italy.
Masterfully produced, these podcasts offer conversations with leading thinkers and distinguished practitioners who bring a global perspective on mediation, arbitration, and negotiation. Although international in focus, these interviews have relevance to ADR practice or negotiation wherever in the world you may be.
Trust, as any negotiator knows, is critical. Its presence gets commitment; its destruction sours deals. But trusting and being trusted is a delicate balance: effective negotiators know to “be trustworthy, not trusting.” No one wants to be fooled at the negotiating table.
In “Confidence game,” journalist Drake Bennett, writing for the Boston Globe, provides a fascinating look into the related issues of trust and trustworthiness. Trust is essential to much more than negotiation:
…human society would not function without trust. We loan things to friends, we take to the road assuming our fellow drivers are not suicidal, we get on airplanes piloted by people we’ve never seen before, and, when asked to sign something, we rarely read the fine print. If people stopped to double-check the background and references of everyone they had an interaction with, social life would slow to a standstill.
Although one would naturally assume that doubt would be our first reaction, trust is in fact our default response. And all too often, we decide to trust based on the flimsiest of evidence:
When deciding who to trust, the research suggests, people use shortcuts. For example, they look at faces. According to recent work by Nikolaas Oosterhof and Alexander Todorov of Princeton’s psychology department, we form our first opinions of someone’s trustworthiness through a quick physiognomic snapshot. By studying people’s reactions to a range of artificially-generated faces, Oosterhof and Todorov were able to identify a set of features that seemed to engender trust. Working from those findings, they were able to create a continuum: faces with high inner eyebrows and pronounced cheekbones struck people as trustworthy, faces with low inner eyebrows and shallow cheekbones untrustworthy…
Just as in other cognitive shorthands, we make these judgments quickly and unconsciously - and as a result, Oosterhof and Todorov point out, we can severely and immediately misjudge people. In reality, of course, cheekbone shape and eyebrow arc have no relationship with honesty.
But we are led astray in other ways, and it’s not just a trustworthy face that can persuade us:
Another set of cues, and a particularly powerful one, is body language. Mimicry, in particular, seems to put us at our ease. Recent work by Tanya Chartrand, a psychology professor at Duke, and work by Jeremy Bailenson and Nick Yee, media scholars at Stanford, have shown that if a person, or even a computer-animated figure, mimics our movements while talking to us, we will find our interlocutor significantly more persuasive and honest.
These studies remind me strongly of the work of Robert Cialdini, who has revealed how susceptible we are to the weapons of influence and how easily trust can be gained by those who understand how to manipulate human behavior.
As skilled negotiators know, be trustworthy, not trusting.
Nancy Hudgins, an attorney and mediator in California, began blogging just this year at Civil Negotiation and Mediation, a blog that puts the “civil” back in civil litigation.
She recently shared with readers the discoveries she made about the addictive nature of blogging and also its surprising benefits. She described how blogging has engaged her intellectually while connecting her personally to readers and fellow bloggers.
Nancy has readily embraced the most appealing part of blogging — its capacity for bringing people — not just ideas — together. Nancy consistently demonstrates what successful bloggers do best — linking to other blogs to point her readers in the direction of ideas that have captured her attention. She also links to new bloggers, welcoming them warmly. Her generosity of spirit and her confident voice have set her apart as an ADR blogger of distinction. Nancy is a mediator who really gets what blogging is all about.
Sad to say, not all ADR professionals who blog appreciate this. In my travels around the web, all too often I find bloggers who resolutely refuse or fail to link to other bloggers, something I just don’t understand. Even when it’s evident that they have drawn inspiration for their posts from the work of others in the blogosphere, they neglect to acknowledge the source of their ideas. Some don’t have any outgoing links at all — not even to other web sites, let alone to other bloggers — as if fearful that if they send their readers away, they will not come back.
Imagine a legal conference or seminar where lawyers never referred to what another said. Imagine a legal article not referencing previous writings by other lawyers. We’d get no where in the discourse of law. And lawyers that refused to enter into such discourse on the law would never establish themselves as reliable and trusted authorities in their niche area of the law.
Blogs are the same darn thing - discourse on the law. It’s this discourse that further enhances your reputation as an expert and grows your business…
Plus rule one on marketing your blog is linking to other blogs. The more you send people away to more valuable resources, the more valuable you become to your target audience.
“Being more social is what gets traffic to your site,” as Kevin said recently.
These isolated bloggers are definitely missing the point, as media writer and former lawyer Brian Clark has explained:
People often choose the attorney or other service provider they connect with the most. Since different people connect with different things, joining in on a conversation that naturally compares and contrasts your style and expertise with that of your peers is smart marketing. More importantly, it exudes confidence.
Blogging and not linking to fellow bloggers is like going to a party and standing in a corner talking to yourself. Why bother to get all dressed up if you’re not going to mingle with the other guests, join the conversation, maybe even dance?
But blogging is not just about increased traffic to your site or a smarter marketing strategy.
Most importantly — to me at least — the social aspect of blogging means the opportunity to make real and meaningful connections with others who share my passion. Blogging has introduced me to people I would never have met otherwise. It has brought me a wide network of colleagues and friends I can turn to for advice, for support, for a laugh when I need one. We have wrestled with ethical dilemmas together, joined forces in the face of adversity, shared confidences, weathered setbacks, celebrated triumphs.
The best part of all of this is that the social side of blogging is not just for bloggers. Readers like you can directly participate by adding your comments. And who knows? It may motivate you to start blogging, too.
The Divorce Coach, published by an anonymous collaborative divorce coach and mediator (U.S.)
Transformacion de Conflictos y Construccion de Paz, a Spanish language blog created to contribute to current debates on conflict resolution, conflict transformation, peacebuilding, and restorative justice for the Spanish-speaking population (Canada)
The Conflict Gateway Blog, a blog about the efforts underway to launch The Conflict Gateway, a brand-new online conflict resolution resource and portal, which ambitiously describes itself as “the leading Conflict, Mediation, Transformation and ADR resource portal” and includes an online forum. (U.K.)
Donald D. Vanarelli Blog, covering elder, estate, and collaborative law, along with mediation. (U.S.)
Jay Smooth, founder of New York’s longest running hip-hop radio show, WBAI’s Underground Railroad, hosts ill doctrine, a hip-hop video blog featuring hard-hitting, thoughtful social commentary.
Smooth recently posted “How to Tell People They Sound Racist“, a video with advice on having one of the most difficult conversations there is, and underscores the difference between the “what they did” conversation and the “what they are” conversation.
I’m taking a short break from blogging to goof off, hang out with my family, and recharge my batteries. I’ll be back some time next week, when Mediation Channel returns with its regularly scheduled programming.
If you’d like to catch some reruns, check out the Archives Page, where you can find over three years’ worth of posts. (On the Archives Page, click on “Expand All Posts” for a complete list of titles arranged in chronological order.) Or, take a look through the list of categories over there in the left sidebar.
Whether you’re a new reader or an old friend, thanks as always for stopping by. (Hey, what are you doing indoors on your computer anyway? Get outside and enjoy that sunshine.)
A skilled magician can make us see what isn’t there. We watch the silver dollar vanish but not the magician deftly palm the coin. Magic is filled with tricks — games played with our perception as the magician misdirects our attention.
It is magic’s ability to manipulate our awareness that has earned it not only the delight of audiences but also the attention of the field of neuroscience, according to “How magicians control your mind,” an article in today’s Boston Globe:
As magicians have long known and neuroscientists are increasingly discovering, human perception is a jury-rigged apparatus, full of gaps and easily manipulated. The collaboration between science and magic is still young, and the findings preliminary, but interest among scholars is only growing: the New York Academy of Science has invited the magician Apollo Robbins to give a presentation in January on the science of vision, and a team of magicians is scheduled to speak at next year’s annual meeting of the Society for Neuroscience, the world’s largest organization of brain researchers.
The ability to manage our attention better and to close the gaps in our perception holds implications for many kinds of activities and endeavors — think, for example, of driving, just to name one that demands an alert and attentive actor:
The control and management of attention is vital in all sorts of realms. Airplane cockpits and street signs would be designed better, security guards would be trained to be more alert, computer graphics would feel more natural, teaching less coercive.
And only imagine what the management of attention might mean for lawyers and judges, for mediators and negotiators.
Late last fall, Halloween and Thanksgiving behind us and the long winter looming ahead, I left two large pumpkins at the foot of the old pine at the bend in the drive. They were a gift to the neighborhood squirrels, who go crazy for seeds from any kind of squash. Hunger makes them bold, and they have even crept right up on the front steps, glancing furtively over their shoulders, right under the nose of our dog, to steal the small pumpkins that sit by the door. I’ve discovered the evidence of the crime later in the backyard, the orange rinds in shreds and a few stray seeds scattered in the leaves.
The squirrels, and other creatures we hear only when twilight falls, made short work of the pumpkins. Soon there was nothing left but the stems, and even those disappeared the following night.
Despite the thoroughness of the squirrels and raccoons, a few seeds were evidently overlooked. A month ago, I noticed, poking out between the stone border edging the irises and the asphalt drive, what was clearly a pumpkin seedling. My first impulse was to pull it up, and I reached down to uproot it. But then something made me stop and leave it be.
Somehow it has taken root in the hard dirt between rock and asphalt, and against all odds, it grows, unfolding its blossoms and spreading out leaves to reach the sun.
Conflict is like that, I think. It is the hard places inside us, the rock wall laid down stone by stone, the asphalt paving that divides one house from the next.
Yet somehow, tenaciously, hope puts down roots, growing up between the cracks. Blossoms, stems, leaves, roots, it stretches from the shadows and reaches high to gain the light.
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