Following up the Tower of Babel Symposium this month, there will be a program at the ABA SDR conference next April entitled, “Making Negotiation Theory More Helpful for Practitioners.”
We want to include a practitioner on the panel and we asked Wayne Brazil if he would join us. Wayne served as a magistrate judge in the US District Court for the Northern District of California for 25 years and he now works as a neutral with JAMS. His website includes the following quote from a former chair of the ABA Section of Dispute Resolution, which is quite apt: “Few people have the range of vision, the attention to detail, the energy for new tasks, the depth of experience, or the passion for the enterprise of dispute resolution that Wayne Brazil so generously shares with the world.”
Alas, Wayne has an arbitration scheduled for the days of the conference, so we couldn’t include him as a speaker in the program. We exchanged some emails about this program, which I lightly edited as follows.
John: As you can see in the proposal, the focus of the conference session is how to make negotiation theory more useful for practitioners. The conference committee urged us to include a practitioner on the panel and we thought it would be great if you would join us. Although you have been primarily in the role of a neutral, you have had a lot of experience observing negotiators’ behavior, which we think would be very insightful.
Wayne: I’m not sure whether I could contribute something of value to the panel presentation / discussion that you have outlined so well. Even though I have some (far short of comprehensive) understanding of some mediation theory, like many ‘practitioners’ I know, I don’t feel very self-aware about theory when I am hosting a mediation. This might be attributable to the shallowness of my understanding of that theory — a very strong possibility — or to the shallowness of the theory — or to the litigation environment in which I conduct virtually all of my mediations.
When I allude to the possibility that mediation theory might be relatively shallow, I mean that there are some fundamentals of that theory that seem to me to have been quite well established for a long time and that are rooted, essentially, in common decency and common sense. Listen. Treat everyone respectfully and, by example and otherwise, ‘permit’ (??) only respectful communications across party lines (while helping everyone recognize that there are ways to express sincere emotions about experiences and people in what are ultimately respectful ways). Try to see a participant’s situation through her eyes and her experience. Try to help her identify what is most important to her and which needs or desires of hers might be addressed in a solution to the dispute at hand. Do the same thing with the other party. Try to encourage both parties to see the problem through the other’s eyes and the other’s experience-filter. Try to discourage parties from permitting triggers or impulsiveness or formulaic thinking from dominating how they act, the proposals they make, or their reactions to points, positions, or proposals from the other side. Try to help both sides expand the list of components or the kinds of ideas / proposals that might be included in solution options.
Beyond these points, it is helpful to understand the social science data about overconfidence and about cognitive habits and missteps (reactive devaluation, the endowment effect, confirmation bias, etc.). It also is helpful occasionally to appreciate the severe limitations of “decision analysis” (sometimes called “risk analysis”) as a tool for identifying the so-called “discounted settlement value” of a case during litigation. Knowing the results of research and theory about such matters can help a mediator (or a lawyer) offer wiser counsel to participants or, at least, slow down a little the reactions and behaviors that seem so often to be driven by more powerful, economic, situational, and psychological forces.
Where I started when writing to you today was this: a sense that most of the dynamics in the mediations I host through JAMS (or as a volunteer in the Northern District’s program) are dominated by analyses (and postured arguments about analyses) of law and evidence. These analyses greatly affect (or appear to greatly affect) the positions parties take and the character of the negotiations. And “underlying interests” most often either are very simple (money) or play only cosmetic roles in the negotiation dance. Sometimes things are more emotionally complicated (e.g., in employment and civil rights cases), but even in these categories of cases it is the law, evidence, and money that seem to be the variables that matter the most, by far, in most of the cases I mediate.
John: Thanks for your very thoughtful response. I organized this symposium because I did a study causing me to believe that the fundamental distinction between interest-based and positional negotiation (or integrative-distributive models etc.) was highly problematic and needed to be replaced. It turns out that many of the speakers on the panel also have fundamental critiques of our espoused negotiation theory. So the idea for this program was to learn more about the theories-in-use by actual practitioners.
Your observations are a useful description of such an analysis, albeit probably more sophisticated and articulate than most practitioners would use.
I’m glad that you mentioned encouraging people to see the world through others’ eyes, which I think is very important and the subject of various posts on this blog.
And you note that it is based on the class of cases you deal with, recognizing that the dynamics and presumably the theory would differ in other negotiations, such as family , criminal, and a wide range of other negotiations such as in everyday business.
Wayne: I’m glad you are pressing in this arena because I think that in many mediations in the mainstream lawsuit context there is considerable space between theory and reality (not very flattering to reality, but it is what it is). On the other hand, I also think we need to be careful, as you suggest, not to treat all mediation contexts as if they were the same — and to continue to look at mediation differently in family law, neighborhood disputes, criminal (restorative justice) and many other settings.
Though I lack in direct experience with regard to negotiation, I find that it is a general rule of thumb that theory stands across the divide from practice. Often what you think may happen is far removed from how reality plays itself out and I’m sure in negotiation scenarios this is far more common than theoretical understanding.
Additionally, I agree with the importance of understanding cognitive biases while in a negotiation. However, it can be extremely difficult to remove one’s self from a situation that they are actively taking part in to introspect. This, again, seems to be a distinction between theory and practice.
Regardless, knowledge is important in bettering the self–especially when the negotiation scenario requires empathy of the parties and identification of your own understandings.
While I agree with much of Wayne’s response confirming the hypothesis that there is a gulf between theory and reality, my view about the importance of evidence is different.
After 23 years as in-house counsel for Transamerica (life insurance and annuities) responsible for all litigation, employment and investigations, I have represented the company at dozens of mediations involving everything from “bet the company” cases to frivolous ones. My observation over those two decades is that the law and evidence supporting a party’s position have become less important factors in settlement than the estimates of cost of defense versus the exposure. While the mediator usually can influence each party’s view of the exposure to draw them nearer, a party’s view of the cost of defense is rarely challenged. Management’s appetite for risk related to the exposure is less of a barrier to continuing the litigation (because management is quite comfortable taking reasonable risk or they wouldn’t be in management), the cost of defense is a “sure thing” and is already hitting the bottom line.
Negotiation theory has impact on the approach/style of a party’s advocate or the party’s initial presentation, it does not approach being outcome determinative.