Blog

Do You Negotiate Over E-Mail?

April 24, 2022

E-Mail communications are fraught with dangers not present in face-to-face or telephone communications. Human beings are programmed to communicate with more than just words. Take the example of a simple apology. When you offer or receive an apology in person, you instinctively interpret the sincerity of that apology by reading facial expressions and body language, among other things. The difference in result between an obligatory “sorry” from a heartfelt apology is striking. In general, people do not turn off their instincts when reading an e-mail. The problem is that there are no physical cues so we read into it what the writer meant from the words alone, the context of the e-mail, and a variety of other factors that are probably wholly irrelevant to the sincerity of the offer. In a worst case, the lack of any physical cues could lead to a complete disconnect between what the sender intended

Effective Use of the Anchoring Bias In Negotiation

January 16, 2022

In mediation, like all negotiations, there is often a reluctance to be the first to set out a number, whether that is an offer or a demand. Sales people are taught that this is a mistake because the first number has a significant influence on the buying decision. Consider the effect of the MSRP on the car buying/pricing decision. Research confirms that anchoring a negotiation by making the first realistic offer/demand has a significant impact on where the negotiation settles. What is Anchoring? An article from the Harvard Program on Negotiation’s Katie Shonk defines anchoring bias as “the common tendency to give too much weight to the first number put forth in a discussion and then inadequately adjust from that starting point, or the ‘anchor.’” The article refers to a Harvard Business School simulation in which one student (playing the role of an employer) spent time before the actual negotiation

Science Says Get Out of Your Dead-End Relationship

January 15, 2022

In spite of the headline this blog is not suddenly offering relationship advice. Sadly, I see insights into negotiation and mediation everywhere. That must be explainable by some known cognitive bias but that’s not the point. This article on relationships popped up in one of my feeds and its lessons for the negotiator are obvious. People (and mice, and rats) over-value sunk costs in their decision-making processes. Time for us to value the future more. Citing a 2018 research paper published in Science magazine “researchers found in experiments on mice, rats, and humans that the higher the sunk costs in a situation, the stronger their will became to keep pursuing a desired result. The paper describes this tendency as a ‘cognitive bias [that has] persisted across evolution’ despite its relative lack of utility in good decision-making.” In mediations, whether as an advocate or as a neutral, I often see this

Mediators’ Role When Lawyers Are From Mars And Clients Are From Venus

January 11, 2022

I recently read this interesting article by Professor John Lande on how mediators can help bridge the communication gap between a lawyer and his or her client: Lawyers Are From Mars, Clients Are From Venus; And Mediators Can Help Communicate In Space In mediation we so often focus on ensuring accurate communication of information and positions between adverse parties that its easy to overlook a need in some cases to ensure good communication between the party and his/her counsel. In one recent study of medical malpractice mediations, research showed that the lawyers and their clients were not focused on the same things. Understanding that monetary relief is the legal system’s only remedy, lawyers tended to focus on those outcomes. In contrast, the parties may be more focused on non-monetary goals, such as admissions of fault, apologies, etc. As researcher Tamara Relis wrote: Lawyers and clients live in “parallel worlds of

Elon Musk Thinks Every Child Should Learn About These 50 Cognitive Biases

January 4, 2022

In a recent tweet, Elon Musk suggested that human cognitive biases should be taught to everyone at a young age. https://twitter.com/elonmusk/status/1472647410568642564 Setting aside the early childhood education question, there is no doubt that understanding our cognitive biases makes us better decision makers. And better decision-makers improve negotiations and result in better outcomes in mediation. Did you know there are 50 of them?

The Skill of Re-Thinking

January 3, 2022

I want to share a story I found in Professor Adam Grant’s book “Think Again.” The book is about the “skill” of re-thinking — critically and objectively evaluating — what we believe. To illustrate how difficult this skill is the book’s Prologue tells the story of Wagner Dodge and how he survived the Mann Gulch fire of 1949. In 1949, 15 smokejumpers parachuted into a wildfire in a Montana forest. The firefighters’ mission was to dig a fire break to contain the fire. As they headed toward the fire, they saw that it had leapt across a gulch and was heading straight for them very quickly. When they realized they couldn’t contain the fire they attempted to retreat back up the slope from where they had come. When they got within a couple hundred yards of safety, the crew’s foreman, Wagner Dodge, determined that the fire would overtake them before

Negotiation Lessons from the U.N.

December 12, 2021

The Harvard Program on Negotiations (“PON”) recently published an article describing some interesting tools that should be considered in multi-party dispute resolution settings. The article describes some of the tactics used at the U.N. Climate Change Conference in 2015. The article can be found here. As an aside, anyone engaged in negotiation for a living (and that’s all of us) should be registered for the PON’s free newsletter and articles. The PON article describes three tactics: confessionals, informal informals, and indabas. One of many take aways from these tactics is that they open space for all of the parties to be heard and contribute. Whether these tactics have a place in civil case mediation is an open question but their objectives certainly do. The article can be found here.What is obvious in virtually every multi-party mediation that I have facilitated is that there are layers of complexity in the relationships

ASYNCHRONOUS MEDIATION: How The Pandemic May Inform The Future Of Mediation

June 16, 2020

The pandemic has brought on many changes, including a complete reversal in the Dispute Resolution Commission’s rules on remote mediation. Prior to June 10, 2020, physical attendance at mediation was mandatory and mediations could be conducted remotely only with the consent of all parties and the mediator. Effective June 10th, the rules changed and all court-ordered mediations under a DRC program shall be conducted remotely unless the mediator, all parties, and any other persons required to attend agree to waive the requirement to conduct a remote mediation, and comply with all federal, state and local safety guidelines that have been issued, they may conduct the mediation in person. This shift — at least with respect to the rules — is unlikely to be permanent. A return to “normal” is also unlikely. This article is about a possible paradigm change in mediation that combines the lessons learned from On-line Dispute Resolution (“ODR”)

Exploring Neutrality: A Narrative Approach

April 4, 2020

Neutrality and perhaps as important the perception of neutrality is one of the most precious assets a mediator brings to a mediation. In facilitative and evaluative mediation, the two predominant models used in civil case mediation, mediators work hard to maintain their ability to engage the parties from a position of neutrality. This tension is never higher than when we use evaluative skills as a neutral. To the extent we evaluate the claims — either voluntarily or at the request of a party — the perception of neutrality can evaporate quickly. Once a neutral expresses an opinion or evaluation, the parties may perceive that the mediator is defending that opinion instead of serving from a position of neutrality. Facilitative mediation training spends a great deal of time dealing with this issue. Narrative mediation theory, which I have been exploring here, posits that actual neutrality is impossible because we are

How About Making Mediators More Stupid?

April 3, 2020

I recently read an interesting article by a mediation trainer suggesting that he actively encourages new mediators to become “more stupid.” In the article, Michael Jacobs contends that “stupidity and ignorance are essential assets” of a good mediator. His point is that mediators — like most people thrust in the middle of disputants — have an almost insurmountable desire to figure out the problem and lead the warring factions to a resolution and that this should not be our role. Jacobs contends that The success of mediation is often in direct proportion to the mediator’s ability to resist the impulse to coax the parties in the right direction. I am not sure I agree with a general statement like this applying to all mediations. Some parties need more help than others but it is true that mediation should be a vehicle for the parties to fashion a resolution with the