Settlement in the Movies
By Kay Elkins-Elliott
Many movies feature successful resolution of conflict. What can we learn from these big-screen examples? Because the mediator is the team leader in settlement, we can use the movies to learn or improve techniques for:
- facilitating communication and negotiation,
- overcoming barriers to settlement, and
- specific behaviors that influence parties to settle.
As the mediator, you must bring to the table three vital skills:
- Negotiation Sophistication
- Closure Skills
- Communication Creativity
Both pop culture, and the research and writing of settlement experts, can aid us in communicating clearly. They can also enhance negotiation sophistication and closure skills. The movies referenced here are some of my favorites, but you may have your own that would work better for you.
Whatever they are, keep those movies in your mediation office, cued up to the part that just might turn on a light bulb in someone’s mind. Invite the parties to watch them while you are in caucus with the other parties. In addition to commercial feature films, you might also consider putting a few training videos on your shelf.
In many cases you want the parties to see the problems in a different way to help you in your mission. I am highlighting some communication techniques that may shift the parties from adversarial to collaborative thinking. You might consider creating a video of your own, mediating several different types of cases with friends or actors brought in to portray the disputants. That will give you an opportunity to demonstrate the process to the parties, talk about your style or philosophy, and even show your subject matter expertise.
These days, all you need is a phone, a tripod, and a neutral backdrop to produce your own videos. One could be sent to each party a week before mediation, or as a last resort, played for each side before beginning the session. This is unusual for mediators, granted, but physicians use videos to help patients understand disorders and procedures. You could even incorporate a few clips or information from your own videos into your web site.
There is a vast selection of books on communication, negotiation and settlement. In The Science of Settlement: Ideas for Negotiators, Barry Goldman points to some cognitive distortions that interfere with rational decision making. I will be referring to the Hollywood films that dramatize these very common barriers to settlement as a way to access the visual, creative parts of your brains. Then we will be looking at some specific techniques and approaches to overcome those settlement barriers and get closure. I hope you will be able to use them in mediation.
How Well Do You Know Your Brain?
But first, let’s take just a minute to look at your brain. The last few decades have belonged to a certain kind of person with a certain kind of mind: computer programmers who could crank code, lawyers who could craft contracts, MBAs who could crunch numbers. But the keys to the kingdom are changing hands.
The future belongs to a very different kind of person with a very different kind of mind—creators and empathizers, pattern recognizers, and meaning makers. These are my beliefs, but these are not my words. They are the words of visionary Daniel Pink, from his book A Whole New Mind: Why Right-Brainers Will Rule the Future. The idea is that a seismic shift is now underway in much of the advanced world. We are moving from an economy and society based on logical, linear, computer-like thinking that is left-brain dominated (the Information Age), to a world where right-brain thinking will dominate (the Conceptual Age). Pink says that for nearly a 100 years Western thinking, particularly America, has been dominated by an approach that is “deeply analytical and narrowly reductive.”
Consistent with recent brain research, Pink says the human brain is an example of this shift. The left hemisphere of our brain is adept at logical, sequential, rational, analytical thinking, while the right hemisphere excels in creative, intuitive, nonlinear and holistic activity. We need both hemispheres to do both simple and high-level thinking. We need both hemispheres to solve problems and to do collaborative problem solving—which itself is a blend of assertiveness and empathy, of creating but also claiming value, of both integrative and distributive bargaining, and of decision trees and people skills.
Just to set the scene: The typical brain has 100 billion cells and each cell is interconnected with 10,000 others! That means the brain network is one quadrillion connections that determine how we sleep, eat, solve problems, talk to each other, feel, move, mediate, and interrelate. Until the 1950’s scientists believed the left side was superior and necessary, the right side inferior and illiterate. But research by Nobel prize winner Roger W. Sperry changed that attitude.
When the corpus callosum that connects the two hemispheres is removed—a treatment for patients who suffer from severe and frequent epileptic seizures—the patient cannot do some tasks that were previously easy. Observing patients prior to and subsequent to the operation, Sperry deduced that there are two distinct and quite different modes of thinking. Each hemisphere performs well on some tasks but not on others. The left hemisphere reasons sequentially, analyzes, dissects, and handles words. The right hemisphere also reasons, not sequentially but holistically, recognizes patterns in data, and also interprets emotions and nonverbal expressions. To make good decisions we use both hemispheres by going back and forth across the corpus callosum.
We need our right brain, not just our left brain, to reach the best decision. We use our emotions as well as our intellect in exercising good judgment. We need to have high IQ and high EQ (emotional quotient), and the latter is more highly correlated with success in life. Google carried out a study of its own workforce in 2017, and found that relationship skills predicted success at Google better than technical expertise.
We can now actually watch the brain at work, even when sleeping, through functional magnetic resonance imaging (fMRI). After three decades of research on the brain’s hemispheres, we know certain facts that are important for the following discussion:
- The left hemisphere controls the right side of the body; the right hemisphere controls the left side of the body. Please turn your head and eyes from left to right just as when you are reading. Your left hemisphere controlled that movement to the right. Western cultures, using an alphabet, read from left to right, so the alphabetic mind uses the left hemisphere to read words. If you were both reading and looking at pictures, as you do when reading an illustrated book or a comic book, you would be using both the left (words) and right (pictures) hemispheres. That would be a whole brain experience. When you go to an art museum and look at the paintings or photographs, you are using your right brain. But when you read about the artist, the picture, or time in history when the art was created, you are also using your left brain.
- The left hemisphere is sequential; the right hemisphere is simultaneous. Instead of perceiving A-B-C-D, as we do in talking or telling a story, the right brain perceives the whole situation at once and is therefore particularly good at reading faces, interpreting a picture, and judging dogs in a show. Think of the Westminster Kennel Club Dog Show, where the judges critique the entire animal against breed standards, which they carry in their heads! Memorizing the characteristics of a perfect specimen of dog may be a left-brain exercise, but comparing the whole, frisky, lovable and live animal before you against those standards also requires the right brain. This is a good example of whole brain activity.
- The left hemisphere specializes in text; the right hemisphere specializes in context. In some languages, Arabic and Hebrew for example, vowels are supplied by the reader according to the context of the writing. In those languages readers move their head and eyes from right to left, using the right hemisphere of the brain.Here is a true-life example of the difference between the way the left hemisphere analyzes words, and the right brain interprets their meaning. “I am going to the grocery store to get some coffee.” Left brain gets the simple message of what is going to happen. But if the speaker shouts the words while scowling at her spouse because he forgot to buy the coffee, the right brain understands the context, and correctly interprets that the speaker is angry and maybe he should offer to make amends by offering to go get the coffee instead. This actually happened recently in my house!
- The left hemisphere analyzes the details; the right hemisphere synthesizes the big picture. Usually the left hemisphere analyzes data by breaking it into component parts. For example, in a negligence case a lawyer is seeking information about duty, breach of duty, proximate cause and damages to organize her thinking and prepare the law suit. In contrast, the right hemisphere takes all the disparate pieces of information and synthesizes it into a whole. So in mediating a case of negligence, the mediator would want to know:
- How the plaintiff felt when the impact occurred;
- What concerns he has now and for the future;
- The memories of smell, taste, sound, and touch from the accident;
- Whether pain is still being experienced;
- Fears about the future employability or range of motion; and
- What the party hopes will happen today in mediation, e.g., Does the client want an apology and acknowledgment?
In other words, the left hemisphere dissects as a pathologist or programmer would, while the right hemisphere creates a gestalt picture, just as a counselor, artist, or talented trial lawyer would do.
Why do we need to know any of this to settle a case? Because as mediators we need the logical, analytical, and precise left-brain skills; and we also need the empathy, creativity, emotional intelligence, and intuition that are the functions of the right brain. We need to help disputants use all of their brain in a productive way.
But sometimes the brain makes mistakes. So what about our brain as a product of evolutionary biology? Despite our achievements in science and technology, when making decisions under stress and in conditions of uncertainty, our very complex brains can malfunction because of cognitive distortions. In other words, parties are coping with problems of the 21st century with ancient brains that in many respects have not evolved much in the last 100,000 years.
We don’t see things as they are, we see them as we are.
Despite all those millions of brain connections and cells, we still use only a small fraction of our potential. When we do use that fraction, they are many cognitive distortions that can cloud our judgment. It is as if we have the hardware to do almost anything, but the software is imperfect. In the films I cite, we will be looking at the kinds of thinking mistakes that keep us from making rational and creative decisions.
Film School for Mediators
War of the Roses: The Endowment Effect
As most of you know, this is a dark comedy about a modern couple who both covet their gorgeous home. When the marriage ruptures, the usual dispute arises over who will get the house, but with an interesting twist: They try to compromise by splitting the house in two parts.
When the husband, played by Michael Douglas, shows his lawyer, Danny DeVito, his solution, he is asked: “Does this seem rational to you?” His classic reply: “Yes, because I get the bigger half!” The couple eventually die amidst the ruins of their formerly palatial digs, leaving their two children orphans. In case you think this is far-fetched, note the explanation below of what is going on in the brain. And remember the next time you see an illustration of this distortion in thinking: A house cannot love you back!
The movie contains a very common example of the Endowment Effect, which has been well researched, even though most of us operate as if it were not a human factor. Do you know anyone who is a pack rat? Have you ever walked into a friend’s home that has a year’s worth of the local newspaper stacked in the living room?
Sometimes trainers show how this works by giving someone in the group a token gift: maybe a special mug, or a sweatshirt with a certain logo, or a cup holder that is unusual. When I do this, I explain that it was recently purchased at a local store, is a new design, is my special gift to the recipient, or is unusual in some other way. After talking a few minutes I give everyone in the room a chance to bid for the item by passing written offers to the new owner, who is asked to write down the price he or she would accept for this new possession. Invariably, the buyers value the item much lower than the seller. Even in those few minutes, the new owner has felt the endowment effect, and has allowed that to influence his bargaining zone.
Apparently it isn’t even necessary to actually have a tangible item to place in someone’s hands. Barry Goldman forgot one day to bring anything to auction, so he came up with a new experiment: give one half the class an imaginary sweat shirt and let the other half try to buy it. The effect was the same. People who were given the imaginary sweatshirt, on average, demanded twice as much for it as the rest of the class wanted to pay. They had become attached to an imaginary object in two minutes.
Early in human development, the group or person that had superior technology (“this is my spear (sharpened stick) and you will have to kill me to get it from me”) didn’t want to share it because it decreased the safety and the status of the giver/seller. Those people survived and others, who were more naïve or generous, apparently did not, because this distortion in the brain still exists in situations where it is not conducive to good decision making.
In the drawers of many people, including me, is a bunch of garbage:
- unused lipsticks,
- business cards,
- scraps of paper,
- dried up pens,
- a few drops of a favorite perfume,
- foreign currency of low value,
- antique breath mints, etc.
Years ago my husband was home for the day and decided to throw all of it away to “help me.” I was aghast! I felt grief!
Now, if anyone had showed up and tried to sell me the same items from their own drawer, I would have laughed. But when it was my stuff, the loss was painful. Of course he never did that again and my drawers are again happily messy and filled with worthless but valued trash.
In negotiating the settlement of a law suit, mediators need to take this factor into account. Of course the seller will always want to maximize the price, not only for economic reasons but because if it is my stuff, valuable to me.
In another movie, The Wedding Crashers, you see a couple trying to mediate a division of their assets. The subject of frequent flier miles comes up. Admittedly those have some extrinsic value, but the issue seems to be more about the husband wanting to keep them because he earned them while blissfully flying to see his girlfriend, rather than due to their utility value. Since the wife knows that, she is even more determined to get those miles—until they realized the marriage was really over.
To circumvent the Endowment Effect, mediators can to paint a word picture of the future, after the divorce is finalized, so the parties create an endowment effect on a future reality, rather than a past one. Another way to say this is that the mediators frame the offers as potential gains, rather than focus on losses.
Losers cry, it is said, louder than winner sing. A gain of $150 does not make us as happy as a loss of $100 makes us sad. The economic facts are overcome by the psychological facts. We cherish what we have now because in ancient days we had so little, and everything we had was precious and perhaps necessary for survival.
Evidence from the science of neuro-economics shows that loss-averse decisions engage the limbic system, an older part of the brain that includes the amygdala, whose job is to be on guard against predators and starvation. By contrast, purely rational decision-making evolved in more recent parts of the brain. Mediators should therefore help parties to shift gears, to see the future as an opportunity for gain, rather than as a bad investment they don’t want to give up. Anything that can increase the parties’ positive feelings, such as:
- a view of water,
- pleasant and comfortable surroundings, or
- establishing rapport with and liking for the mediator,
could trigger a release of oxytocin, the “cuddle hormone.” There is even a spray, Connekt, that contains oxytocin. All of these natural and synthetic factors can create increased trust in a party, helping to overcome the cognitive barrier to parting with sometimes worthless but valued items, to get a case finished.
How many times have we seen a multi-million dollar divorce threaten to impasse over a worthless item that each claimed was precious? I know of one couple who had reached a huge settlement agreement on many, many valuable items, but almost went to court because each claimed the cow bell that they found on the neck of a Swiss bovine when they were walking through the Alpine valleys on their honeymoon. This was a case where both parties were very eager to end the marriage for quite different reasons, yet they sparred over a worthless yet valued cowbell! These people had doctorates, and one is a former CEO of a huge company, and a military general—yet the cow bell was critically important to both of them.
What endowment effect were we dealing with there? I believe the cowbell was the symbol for many years of marriage, three wonderful children, and the dreams that had died. If they couldn’t have the expected future where they went through old age hand-in-hand, at least they could have the tangible representation of those dreams. Each person emerged from a successful negotiation with their ego intact, and went on to even more personal satisfaction with a new life, but only one got the cowbell. The other is literally still searching for a replacement!
This is one reason lawsuits are valued differently by the parties, even when the parties are extremely intelligent and nice people. It is only one of many thinking disorders that mediators must deal with. Unless we can see the barrier for what it is, rather than getting impatient with the parties’ seemingly unreasonable and stubborn refusal to give up their stake, we will be handicapped in helping them get to the other side.
A Civil Action: Illusion of Control and Overconfidence
Many of you saw A Civil Action, based on a real case. The successful and egotistical plaintiff’s attorney is approached by a grieving mother, whose child has been stricken with leukemia. She believes that the cause of the cancer is a polluted pond from which the town gets its drinking water. She wants to prevent this happening to other children.
In fact, many other people in the town have had leukemia, and all believe that the fault lies with two large corporations that are dumping toxins into the city water sources. The attorney, Jan Schlichtmann, played by John Travolta, freely admits he is an ambulance chaser. Because of his belief that he can control the outcome of the lawsuit and his overconfidence as a trial lawyer, his firm invests heavily in the case, against some formidable lawyering by the corporate counsel, played by Robert Duvall.
It becomes obvious to the audience, his law partners, and to opposing counsel that Schlichtmann is in over his head, but he can’t see it. His firm is bankrupted. He is outmaneuvered and outsmarted by his opponent who is quite rational, analytical, and not deterred from his ruthless pursuit of victory.
In the movie, Schlichtmann must face the grieving and appalled client with the news that the case has been settled. It is interesting to know that in real life Jan Schlichtmann took to the lecture circuit to advocate for settlement, and specifically for the use of mediation. You might also think about what could have happened if he had faced his own hubris and cognitive distortions, and turned this case over to the Environmental Protection Agency. The outcome his client wanted might very well have been achieved and his firm might still be in existence.
The Illusion of Control
In one psychological experiment, subjects were asked to bet on horse races. Sometimes the horse race had been run, but the results were not known. In the other situations, the horse race had not yet been run. Guess which condition provoked significantly higher bets? You got it—the experiments where the race had not been run.
Statistically the two situations are identical. The only explanation for this illogical outcome is that the people betting thought they could influence the outcome of the race! When children do this we refer to it as magical thinking. They wish harm would come to someone they are mad at, then feel guilty when that happens.
What excuse do adults have? Did you know that people demand more for the sale of their lottery tickets if they picked the numbers than if they did not? Gamblers will bet more if they throw the dice than if someone else does. Why?
Apparently this strange behavior is linked to the brain’s superior ability (honed through evolution) to see patterns (right brain) and find causal relationships. We always want to know, when something goes wrong, what caused it, or more particularly in lawsuits, who caused it! There is a Latin phrase for this: post hoc ergo propter hoc. American version: “This happened after that happened, so the first event must have caused the second.”
Deborah Tannen points out in the book The Argument Culture that we want to believe there is one right answer to every problem or conflict. The way to find it is to have a debate. Underlying this belief is the assumption that there are only two polarized positions or viewpoints, and one of them is correct. Yet many factors can be correlated with an event, some that are independent and some that are dependent variables.
In legal disputes, attorneys follow the logic that one true answer will emerge if both sides take polarized views and support them with evidence and arguments. In political races, if the economy is bad, the current president must have caused it, so his political party should get the blame. In football games, if the quarterback’s girlfriend is in the stands and he has a bad day on the field, it must be her fault, even if his finger is broken or he has a bad cold.
Logically we know that events may be random, attributable to many variables or even “an Act of God.” Are hurricanes this year worse because of global warming? Should we blame Wall Street or the President for a recession? When a business partnership dissolves, which partner caused it? When an employee is fired, who is wrong—the employer or the employee? In a personal injury accident, who was speeding, ran the red light, or was talking on the phone? Of course these can be factors in liability or in other aspects of life, but is the answer always a result of single cause and predictable event?
It is really so much simpler and more comfortable to find fault and punish the wrongdoer than to look at an event rationally and objectively, applying science rather than superstition. We don’t really want to deal with the anxiety of admitting that sometimes bad things happen to good people, and sometimes really bad events (such as an economic depression) are cyclical and, to some extent, inevitable.
In gambling situations, research shows there is more going on than telekinesis: When a gambler wants a high number, he throws the dice harder than when he wants a low number!
In ancient days, if a flood or any other natural disaster occurred, the explanation was that the gods must be angry and therefore someone or some animal had to be sacrificed to appease them. Why? Because it is too scary to admit that bad things are going to happen sometimes, just as good things are going to happen sometimes.
Although we have statistics, math, psychology, and other scientific tools to help us at least calculate the probability of events occurring and the expected value of each outcome, these tools are seldom used by parties in mediation. Software now exists to help lawyers and mediators create decision trees to predict expected value and make more scientific decisions. Since mediators are the specialists in this culture that really deal with the emotional fallout of these thinking disorders, it is important we understand how to use technology to enhance the science of settlement.
Did these lawyers believe they had control over the law suit? Yes. Did both lawyers believe they had control over the law suit? Yes. Is that rational? How many clients in mediation believe they will lose, or have better than a 50% chance of losing, at the upcoming trial? Do clients even want to answer that question?
Many lawyers and mediators are sophisticated negotiators and can calculate the probability of winning or losing as well as the expected value of a range of payoff. How often have you seen advocates or mediators do this? Haven’t you seen in many cases that clients are seldom coached to negotiate realistically, and usually do not actually know, through decision analysis, the expected value of their case under different assumptions. Why is this true?
The knowledge is out there—lawyers and mediators can access it. Why would we rather guess, than learn how to do some decision trees and figure out our actual bargaining zone and that of the other side? Do we prefer magical thinking to actually thinking? If so, the explanation must be that we have fallen victim to the illusion of control. When this is apparent, it is the job of the mediator to bring parties gently to this level of awareness.
Overconfidence is another problem here. We shouldn’t really have to illustrate this distortion in thinking, since we experience it constantly. Why do we get married with a divorce rate of 56%? Why are the only people who have a realistic view of their true talents the clinically depressed?3 Why do we buy houses knowing they will require constant upkeep? Why do we smoke, or do drugs, or overeat, even though we know these are all health risks?
We tend to be much more confidant of our abilities than we have any right to be. Because of evolutionary biology, we think we know more and can achieve more than, according to statistical probabilities, we will. The higher the IQ, the more prone an individual is to falling into this trap. Obviously this was at play above, but in much simpler cases we also see it.
A brilliant plaintiff’s trial lawyer will overestimate her chances of success at trial, even in a case with many high-risk factors (a key witness is dead, the client is abrasive and makes a poor witness, the evidence shows her client was speeding at the time of the accident), and in a county where jurors statistically are very conservative. Yet plaintiffs themselves are ordinarily highly risk averse, since they are one-time players in the litigation game. Some research on trial verdicts shows that parties routinely turn down offers at mediation that are better than their trial outcomes.
As Goldman points out, our overconfidence leads to results that couldn’t be more serious. In some legal negotiations or mediations this is manageable: one overconfident negotiator intimidates the other negotiator and effectively bluffs her way to a better outcome than if the negotiator were more scientific. But sometimes it works in reverse, as it did in A Civil Action. When both negotiators are overconfident, the result is usually disastrous and irrational. This is the classic over-expensive, emotionally draining litigation, where the legal outcome is a loss for both parties and often for third parties. In A Civil Action, Robert Duvall’s character is not overconfident—he is strategic, rational, practical, and deadly.
Goldman points out there is a difference in being actually overconfident and appearing overconfident. When you are actually overconfident, you have not coolly and objectively evaluated your case. When you appear confident, but know better, you are strategically using a behavior that can benefit your side by shifting the perception of your opponent.
Some experts believe, however, that to convincingly tell a lie, you need to believe it. I tend to agree with this view, because we are very astute at interpreting the body language of others, though much less skilled in detecting denial or a thinking distortion in our own minds.
1776: Reactive Devaluation and Self-Serving Bias
In this delightful musical, rather loosely based on history, John Adams, a brilliant but obnoxious politician, sees clearly that the correct decision in colonial America is to rebel against the powerful British mother country and declare independence. His decision is actually correct and is based on obvious data, but he can’t get anyone to agree with him because he is disliked. Because of the self-serving bias that plagued him and most of us, he cannot understand why others don’t see what he sees, and therefore vote as he wants them to.
The degree to which his thinking is biased in favor of his own brilliance and logic, and therefore his “rightness,” is beautifully depicted in the film. The fact that history proved he was right doesn’t alter the difficulty he had in getting others to agree with him. They didn’t like him and they weren’t going to support him, no matter how smart and “right” he was.
We see this in cases where one side is being offered a fair price but they won’t accept it—either because they distrust and dislike the other party, or because the offeror is so convinced of his superiority and that he represents the norm, he is incapable of making an offer that can be accepted. The tendency for us to see ourselves as the norm is a potentially dangerous mistake in thinking.
Benjamin Franklin, master diplomat, is not affected by either reactive devaluation (he is quite popular with his peers) or the self-serving bias (he was humble and practical, as well as a consummate negotiator). In 1776, he uses strategic questioning:. From open-ended questions to more narrowly focused questions, he gets the other party–Richard Henry Lee from Virginia–to do exactly what he wants him to do: propose independence in a way that others will vote for!
Reactive Devaluation occurs when a party feels the other party is his enemy. If that is my perception, then anything that is good for my enemy must be bad for me. There can be no collaborative outcome with value for both. This thinking distortion is linked to another error: fixed pie perception. This, as we all know, is an assumption that the totality of benefits to be distributed among participants in the mediation is like a pie, and that the pie cannot be enlarged. Every piece the other person gets is a piece I don’t get. Game theorists call this mistake zero-sum thinking.
Every plus on my side of the balance sheet is a minus on your side, and vice-versa, so the total of all the value to be distributed will be zero. In a hunter-gatherer economy, this was logical. In our 21st century environment, often it is not. There is always the possibility, even in very simple buy-sell transactions, that we can trade what I want more than you for what you want more than me, and the sum of those exchanges will not be zero because of differences in preferences.
Suppose we are going to divide six apples and six oranges. A simple solution is for each of us to take half of each kind of fruit. But is this the optimal solution? Not if I like oranges more than apples! In that case, assuming you like apples more than oranges, we have an optimal solution if I get all the oranges and you get all the apples. If reactive devaluation were clouding my thinking, however, I would not tell you of my preference, believing you would use that information to exploit me. Then I would end up with some fruit I didn’t want just because I mistrusted you.
Here’s a quote from another movie that perfectly illustrates the fallacy of this type of thinking:
Your proposition may be good,
but let’s have one thing understood—
whatever it is, I’m against it!
And even when you’ve changed it or condensed it,
I’m against it!
—Marx Brothers, Horse Feathers, 1932
We see this type of thinking in many cases, usually with a high degree of associated emotions, such as family and probate cases. We also see it in experiments to test how robust this bias is. For example, when apartheid was the law in South Africa, and American college students were presented with two choices relating to their college divesting their holdings in companies that did business with the apartheid regime, students were presented with two choices. They were also told which choice the University’s board favored. Overwhelmingly, the students would pick the other choice.
This type of study has been repeated in other contexts. Label one choice the “Democratic” choice, and Republicans will pick the other one. Despite this mental problem, in most negotiations there is a chance for each party to get a better deal than their best alternative to the negotiated agreement (BATNA) or they would not have come to the table.
A mediator can overcome this barrier by convincing the parties of the fact that the other side is not your enemy; rather, she is in a position to give you something you want. Therefor her proposals should be considered rationally: They are either better than your BATNA or not.
So What Should a Mediator Do?
There are at least two very powerful forces at play in transactions that involved negotiation: the reciprocity norm, and fairness.
Social convention requires reciprocity, and that is a very integral part of being human. If I give you something, even if it has little or no value, you are obligated to give me something back. The social purpose of the rule is to promote and reinforce the reciprocal relationships of people in a group so that anyone can initiate a giving behavior without fear of loss. If the rule is to work, then an uninvited first favor or benefit must have the ability to create an obligation.
Reciprocal relationships confer a huge benefit to the cultures that foster them. Here is but one of many powerful examples of how prevalent and compelling this social norm is for all of us.
During the first World War, it was the job of certain German soldiers to capture the enemy for interrogation by kidnaping them from their trenches. One particular German had successfully kidnaped many unsuspecting enemy soldiers by crawling across No Man’s Land and sneaking into their trenches. One time when he did exactly that, he surprised, frightened, and easily disarmed an enemy soldier who had been eating. The captive, with only a piece of bread in his hand, then did an extraordinary and fortuitous thing: He offered his bread to his captor. So affected by the gift was the German that he did not complete his mission. He turned away from his benefactor and went back to face the wrath of his superiors. An unequal but fortunate exchange for his enemy indeed!
Mediators have many techniques for getting parties to start making concessions or offers and can generally use the reciprocity norm to keep the momentum going until a deal point is reached that is within the bargaining zone of both—the Zone of Possible Agreement.
But there is something else at play in all negotiations: the fairness norm. How does it affect bargaining?
A quick exercise I’ve used in seminars illustrates how the fairness norm operates in even simple two-party distributive situations.
I give half of the participants a green sheet of paper, and ask them to pretend that I gave them $10. They write a proposal for dividing the $10 between them and the person next to them, who has no paper. The can write any number up to 10 that represents the number of dollars their partner will receive if she agrees to the proposal. Neither party may negotiate.
If the partner agrees, the proposer gets the remainder of the $10. If she says no, both parties get zero.
This is called the Ultimatum Game and it operates usually on the basis of the fairness norm. If the partner perceives the offer as fair, the proposer will get a yes. If it was not perceived as fair, she will say no. Unless the proposal is at least 20–30% of stake (here, the $10) the respondent will say no in the Ultimatum Game.
If each party were computers, the proposal would have been one cent and it would have been accepted—computers don’t know about the fairness norm. They just know about math. One cent is clearly better than zero.
Even when this game is changed into the Dictator Game, where the responder must say yes, no matter what the proposal, the results are similar. In the Dictator Game, even with a helpless responder, usually the offer will not be zero or one cent. Even the proposer wants to play fair. Mediators can use this norm to help parties understand that their perception of what is fair may be different from what is better than their BATNA.
Sometimes this norm is called Monkey Justice. Here is an example drawn from scientific experiments. At a research center near Atlanta, primatologist Sara Brosnan taught two monkeys in adjacent cages to perform the same, relatively simple task. Their reward was always the same: a grape, their favorite food.
On one occasion, however, she changed the experiment. The first monkey performed the task perfectly and was given his grape. The second monkey had watched this happen and was then asked to do the same trick, which he also did perfectly. Dr. Brosnan gave him a piece of cucumber—not his favorite food. Utility maximization theory posits that monkeys or people will do the task for food, irrespective of what kind of food is used for the reward, i.e. eat as much as you can when you can.
But in the videotaped experiment, the second monkey threw the cucumber on the floor, retreated to the far corner of his cage, and sulked. The first monkey calmly reached through the case bars and ate the cucumber.
The first monkey wasn’t concerned about fairness, just food. But the second monkey was in the grip of the fairness norm—he had performed just as perfectly as the other monkey, but he didn’t get treated as well. IT WAS NOT FAIR!
One technique mediators can use when the fairness norm is interfering with a rational settlement is to frame the last proposal in terms of why this is or is not fair to either side, until a proposal can be found that both parties regard as fair and therefore acceptable. This presupposes that the offer is within the previously mentioned zone of possible agreement and is better than their BATNAs.
For mediators, there is much value in learning from the richly rewarding world of social science research and scholarship, as well as pop culture. Expertise in the neuroscience of settlement can improve and enhance the outcomes for your clients. Invest some time in learning what the social scientists have known for years: Negotiators need help in being more rational, scientific, objective and skilled, rather than relying on their instincts.
Robert Cialdini, Influence: How and Why People Agree to Things, Morrow (1984);
Barry Golden, The Science of Settlement: Ideas for Negotiators ALI/ABA (2008);
Daniel H. Pink, A Whole New Mind: Why Right-Brainers Will Rule the Future, Riverhead Books (2006).
Kay Elkins Elliot is a mediator, arbitrator, and mediation trainer. She teaches mediation and coaches several ADR teams, including one that competed at the 2016 ABA Representation in Mediation national championship. Kay is a member of the Texas and National Academy of Distinguished Neutrals, a charter member of the Texas Mediation Trainers Round Table, and a former member of the State Bar of Texas ADR section council. She can be reached at firstname.lastname@example.org.