Episode 2: The Chocolate Negotiations
A Negotiation Appetizer (7 minutes to listen)
Episode 1: Why Are We Here?
Introduction to our podcast (2 minutes to listen)
Freedom of Speech: When the Marketplace of Ideas Crashes Your Negotiation
The “marketplace of ideas” concept of freedom of expression has been around since 1859 and the American philosopher John Stuart Mill. It is based on the same theory of economics that superior products sell better than inferior products: thus, spurious speech will be filtered out while the most worthy ideas rise to the top. It was Justice Oliver Wendell Holmes who, in a 1919 Supreme Court case, introduced the “marketplace” idea into judicial analysis and, since then, it has been repeated by the Supreme Court to oppose censorship and support freedom of thought and expression. It is a powerful idea.
Suffice to say: technology and society have evolved since Mill and Justice Holmes so purely preached that the free competition of ideas is the best way to separate falsehood from fact. Is it still relevant? Was it ever a reliable theory?
In recent years, “fake news” has become a pervading paradox to dismiss facts that are disliked over prurient opinion – which then is tweeted and followed and elevated to a point of muting objective fact. Certainly some false information is a product of misinformation posted by regular folks and spread through the blogosphere. But it’s also a new business model: entrepreneurs seek to make money by contriving false information and garnering advertising. Even more disconcerting is the increasingly predominant paradigm of opinions equating to facts with the art of dialectical discourse fading like a watermark on The Bill of Rights, and disrupting our personal lives, negotiations and conflict scenarios.
Has the “marketplace” of ideas crashed, with free speech running amok? Could it simply not withstand the relentless demagoguery of social media, which Mill and Holmes could never have imagined? Founding Father James Madison believed that the First Amendment was the triumph of reason and humanity, over error and oppression. But reason only carries humanity so far and Mr. Madison never signed up for Instagram.
Astrophysicist Neil deGrasse Tyson teaches three categories of truths: objective truth, personal truth and political truth. He warns against asserting a truth before making sure it’s not just an opinion you desperately want to be true. But I have to ask: if the post by the boy crying wolf surpasses one million views, does the wolf evolve from fiction to fact?
And now to challenge Dr. Tyson: is there such a thing as objective truth? And what happens when the marketplace of ideas crashes in our own back yard, threatening our job, family status, business venture, or peaceful relationship with a neighbor? As a mediator, my long-standing refrain is that there are not two sides to a story. There are actually two different stories. For each party their story is real, valid and “fact.” Philosophers throughout the ages have grappled with the question of objective fact, with varying perspectives. Plato is known for a distinctive view of objective reality. He asserted roughly that the greatest reality was not in the ordinary physical objects we perceive around us, but in what he calls Forms, or Ideas. While Nietzsche did not plainly reject truth and objectivity, he did reject the notions of absolute truth, external facts, and non-perspectival objectivity.
As individuals navigating our own stories, and as a mediator observing, listening and learning the stories (and attitudes about “facts”) of parties breaking through conflict, it is useful to bear in mind that we are not fully in control of our own story. We are interwoven with each other forming and being reformed as we move through the world. As the moral philosopher Alasdair MacIntyre has proffered, our actions are constantly woven into the web of others. Embracing this realization can neutralize some of the insidious loneliness (and arrogance) of the singular perspective (fueled also by Confirmation Bias – see June 2016 post on this blog) of our subjective narrative . But it requires curiosity – or at least some unfulfilled need to move forward (e.g. “If I can’t negotiate the cost of COBRA coverage and a positive reference, I risk future job opportunities and replenishing my child’s medication, which is essential to my the livelihood of my family.”).
The fact that one is engaged in conflict (and the untangling of it – through mediation or negotiation) at all, while uncomfortable for many people, is very promising because conflict is a signal that something must change. The best advice I can offer when absorbed in a negotiation with another party whose facts differ from yours is to not place too much importance on them.
What?!
Yes, I repeat: Do not place too much importance on facts in a negotiation.
Peace-making strategies based solely on rationality and logic are limited. And remember that memory is faulty (including yours); we edit and adjust past events to fit the current situation. Instead, find out what emotionally matters to the other side, and how your stories are interwoven and informing one another. Ask what you each might lose if you don’t reach a deal.
Our nation’s “marketplace” of ideas may be in crises. But like our own individual (or organizational) conflict, I choose to believe the disruption is not only productive, but necessary for progress – which takes time, is not neat and linear, and happens in increments. When you find yourself mired in mess, it’s time to get excited because you are a player in a process that is ripe for a breakthrough.
Lucia Kanter St. Amour, Pactum Factum Principal
The Law of Conformity – Conflict Lessons from 2021
Also known as the 95 percent law, Peter Sage calls it the law of conformity. If you hang out with nine motivated, go-getting, positive individuals you’re going to become the tenth. If you hang out with nine recreational drug users, you’re going to become the tenth. The only other outcome is that you leave the group. Environment will trump intentions just about every time. Thus, we need to choose our associations carefully.
2021 has been a difficult year for dispute resolution, human behavior and psychology, mediation, and for me personally. Toxic polarization on a national level was fractal within our local communities. The politicization of the Covid vaccine, cancel culture, a movement to mistrust our voting system, all opinions represented as incontrovertible fact . . . we have witnessed amygdala hijack and galvanization at a national level that is playing out in our own back yards. I am known for reminding people, at some point during a mediation, that if our rearview mirror were as big as our windshield, we’d never get anywhere. That is, when people stay stuck in the past, it’s impossible to heal from conflict and move on with life in a new, positive direction. Mediators, in general, are forward thinking and part of our job is to influence the parties to adopt a forward thinking approach – after a healthy space is permitted for sharing each story (no, not two sides to the same story: two different stories) and validating perspectives and feelings. And then it’s time to get to the business of moving on. But this year, I have noticed a marked difference in people’s willingness and ability to move on. It’s as if they insist on remaining in that wounded, alienated space. I will even admit this has caused me to suffer a crises of confidence in my considerable legal and mediation skills of 24 years. “Maybe I’m not good at this anymore,” I started to wonder.
In the meantime, this year found me occupying a volunteer board of directors role that I mistakenly interpreted as community service when I agreed to take it on in late 2020. More that that, I was seduced by a Siren’s call of being “just” the right person that was “needed” at “just” that moment in time. Instead, it turned out to be a highly politicized environment of deeply rooted sexism and bullying. I was absolutely convinced that my training in the behavioral sciences and experience as a mediator (not to mention unflagging optimism) could turn around a toxic situation and reshape behaviors. So I tried harder. But in trying harder, what I failed to see is that the Law of Conformity was taking hold and I was becoming more entrenched with the bullies. The more I stood up to them, the more I was perceived as one of them. By the time I realized this dynamic, it was too late. My heart had been crushed and my reputation (and relationships) tarnished in the process. How did I fail to read the room and calibrate my approach? I was like that determined ant marching purposefully North on a mission of equity, diversity and inclusiveness, but unaware that each footfall tread on the back of an elephant heading South. Reflecting back now on a year of lackluster peace-making in mediations and the 95 percent rule causing my altruistic efforts in a volunteer position to be wildly misunderstood, more questions cropped up for me:
Why do conflicts erupt so easily and take over people?
Why are some people more open to others?
Why do facts matter so little in conflicts?
According to social psychologist Mari Fitzduff, our “wars” today appeal to instincts and savage emotions, not rationality. They are about identity, inequality and exclusions. We have feelings and instincts to serve our survival as human beings, through (1) DNA, (2) hormones (dopamine, serotonin, oxytocin, adrenaline, testosterone) and (3) environment (see 95 percent rule, above). In fact, Fitzduff discusses a gene variant called the DRD4-7R which affects dopamine – people with it are more likely to be open-minded and to enjoy pleasure from variety, novelty and diversity. fMRI scans* show how variances in biology and genetics influence differences in attitudes and beliefs: conservatives have larger amygdala structures (that is, the emotions / fear center of the brain) and higher startle responses (as shown in fMRI) than liberals; they are more likely to support capital punishment, stricter immigrant controls, more military spending. People at the lower amygdala end are happier in general (and experience less startle response).
Brains differ on a continuum in responding to new information, uncertainty, fear, and strangers. Biologically, humans have evolved for cooperation – but only for some people (in-group versus out-group – testosterone and oxytocin – the same hormones that warriors had: increase sense of belonging and reduce fear. They also promote ethnocentric behavior and increase suspicion and rejection of others outside the tribe. Oxytocin binds us, but also blinds us). Fitzduff opines that the need to belong is a major driver of war. Most people need to belong more than they need to be right. When beliefs are contradicted, fMRI showed an increase in emotion (amygdala response), but no increase in cortex reasoning. When people are in conflict, they like things to be simple and it is more likely that nuanced categories of people get hurt ( because they are confusing). Thus, Fitzduff cautions against complexity, novelty and over-reliance on facts during conflict.
So, what are my take-aways from such a destabilizing 2021 in my personal and professional life?
(1) Choose my environment and my company carefully (consider honestly “do I belong here?” rather than falling prey to recruitment techniques); recognize that an environment will change me, not the other way around; while I am a passionate proselytizer of diverse viewpoints and believe that diversity makes us stronger, I need to choose a positive environment to support my positive agenda;
(2) Instead of being drawn into a negative mindset or peer group, be willing to walk away from a toxic situation; don’t feel obligated as a representative of “all women in leadership” or some such lofty perception of my relatively unimportant role;
(3) I am an empath, which has served me very well in my life and profession, but empathy fatigue is real; it’s time for some detachment;
(4) Other people’s opinions of me are truly none of my business;
(5) Commit to self-mastery so that when things devolves into chaos, I can retain my own equilibrium; when conflicts arise, slow down and keep things simple.
In the words of Seneca the Younger:
“The gem cannot be polished without friction, nor man perfected without trial.”
I have to believe that I will shine brighter and be a more perfect human as a result of 2021.
*a word about neuroscience and fMRI scans. Even as someone who cites consistently to brain science, I bristle at how fashionable this has become in the mainstream media. The media loves to cover new fMRI results, and the business world is hungry for the consumer brain to be decoded. Unfortunately, studies are often tiny because of the high costs of running the machine and interpreting the results and the data can be tough to interpret. A 2009 study of a salmon, for instance, showed the “fish’s brain exhibited increased activity for emotional images.” The only problem? The fish was dead.
Lucia Kanter St. Amour, Pactum Factum Principal
“What Should I Wear?” – Making Choices and Online Dispute Resolution
Steve Jobs famously wore the same black turtleneck, blue jeans and New Balance sneakers every day.
Do you know why (bonus points if you can name the designer of his turtleneck 
without Googling it. Hint: it wasn’t off the rack from Gap. Answer below)? It was to minimize his number of daily decisions, especially early in the day.
Choices are wonderful, right? We demand choices because we want a wide variety of them – or so we think. Many successful individuals like Steve Jobs, Mark Zuckerberg, and Albert Einstein understood that less time spent on making minor decisions meant more brainpower and time for everything else. Researchers have actually studied the effect that making too many decisions can have on our lives. And what studies repeatedly show is that our capacity to consistently make thoughtful decisions is finite. This means that when you use your brainpower earlier in the day (e.g. deciding what to wear), you’ll consequently have less of it at 4pm when you are trying to decide which of the 50 unanswered emails in your inbox should take priority. Show of hands: how many times have you and your spouse / partner had this exchange: “What do you want for dinner?” “I don’t know. What do you want?” “I don’t know, I’m asking you!” “I don’t really care.” “[Sigh] That’s not helpful!!” Well, it’s probably about 6pm and both of you have made countless little choices throughout the day (plus, you’re hungry!), and your brain is pooped. It’s called “Decision Fatigue.” Highly successful individuals actually make fewer decisions because less time spent on making thousands of trivial decisions means more brainpower and time for the big inspirations and the important choices.
What does this have to do with mediation or ODR? Consider the “old days” when parties booked their One Big Day of mediation well in advance, and planned for a full 8-12 hour (or longer) day mediating their dispute in person in a brick and mortar conference room. It was exhausting for everyone. By the time the mediation process got around to generating real options, concessions, and resolutions one issue at a time, most likely a couple of hours had already elapsed with ground rules, opening statements, creating an agenda and defining issues, and moving past positions to interests. The Decision Fatigue clock was already ticking away, and with each passing minute, the ability to make thoughtful decisions was eroding. By hour eight, the situation could be precarious in many aspects: either parties became frustrated and could walk away that they still didn’t have a deal; or parties could make hasty decisions just to be done with it, and end up with regrets. Certainly, skilled mediators worked in breaks and nourishment, but it may not have been enough to equalize the marathon and fully rest the mind.
Now that many (most?) of us mediators conduct mediations via Zoom or similar video-conference tools, the process has evolved. We don’t spend 8-12 hours on a single Zoom mediation. Zoom has magnified the impracticality of doing so, just by virtue of the incapacity of the human eye and mind to stare at a square on a screen for more than about 60 (90 tops) minutes at a time. At least in my practice, I now break up mediations into shorter segments over the course of days, and combine the synchronous Zoom sessions with asynchronous email or phone calls. For all the shortfalls of Zoom brings to the mediation and negotiation process (more difficult to build rapport, make eye contact, see and mirror body language, notice micro-expressions, and generally have “skin” in the game the way people do in person), one of the pitfalls (“Zoom fatigue”) has assisted my mediations by forcing us to break the process down into smaller pieces, incorporating meaningful breaks of hours or days, and thus avoiding the decision fatigue that is inevitable after a long day of mediation. This can, of course, lead to even more practical and durable agreements, and reduce morning-after regrets. Importantly, this benefits not just the parties but the mediator: deep listening, re-framing, thoughtful communication and ensuring fairness at all times is exhausting.
We are faced with countless choices each day. A few might be simple; many are complex. Layer on top of the average day a stressful dispute, and the Decision Fatigue clock can run at double time. The realities of online dispute resolution offer built-in “limitations” that permit parties (and the mediator) to fend off decision fatigue and be better positioned for meaningful decisions that can truly allow them to find resolution and move forward.
Lucia Kanter St. Amour, Pactum Factum Principal
*Japanese designer Issey Miyake designed the iconic black mock turtleneck for Steve Jobs. Jobs commissioned Miyake to design a uniform vest for Apple employees (an idea that got him booed off the stage) after a visit to Japan in the 1980’s when he visited Sony and saw the uniform vests worn by Sony employees.
*Pictured above: Issey Miyake “Pleats Please” black turtleneck jumper with square shoulders