Neuroscience - and - negotiation
Kay Elliott J.D., LL.M., M.A.
Everyday we are expected to make decisions that may have lasting effects: Do I negotiate with the customer that is obnoxious, demanding and unreasonable? Do I end a business relationship when the other party injures me financially? Do I negotiate with my life partner who has betrayed me about how much time I get to spend with our child? On a macro scale - should the USA negotiate with the Taliban when it is publicly dedicated to acts of terrorism against our country? Was Nelson Mandela right to negotiate with the apartheid regime of South Africa? Was Churchill wise to not negotiate with Hitler during World War II? When should we say no and fight? When should we say let's negotiate? Is there a paradigm for making wise decisions in these difficult settings? Should we ever bargain with the "devil"?
Wise dispute resolution poses three challenges: avoiding predominately emotional decision making; taking the time to do a decision tree of alternatives; and assessing the ethical and moral issues involved in any situation. Neuroscientists and psychologists tell us that we all make these types of decisions using different parts of our brains: the intuitive, emotional brain and the rational, analytical brain. Other writers call these structures the old brain (the so-called snake brain) and the newer brain.
Negotiation theory is contradictory. There are at least four approaches into which negotiation theorists fall: The competitives (getting more than the other side); the cooperatives (separating the people from the problem and creating value by being soft on the people - a la Getting to Yes); the moralists (doing what is right because of the "ethics" gene); and the game theorists (The Prisoner's Dilemma). Perhaps this is due to the intellectually diverse underpinnings of the ADR movement which draws from anthropology, international relations, game theory, economics, legal theory, counseling, sociology and psychology. From psychology alone we already have thirty-five principles that influence how lawyers negotiate and the list continues to grow. We know too that all theories of economics, sociology, psychology and anthropology must be consistent with the most basic principle of biology - evolution - particularly evolution by natural selection. In the simplest iteration, natural selection means that traits which enhance future replicative success will tend to accumulate. When we see species-typical patterns of behavior we are actually observing the physical and chemical information-processing pathways of the brain that have permitted survival.
One 1920's pioneer of the ADR movement, Mary Parker Follett, had an insight while sitting in the Harvard library. She wanted the window closed to prevent a draft on her papers, but another student wanted it open for fresh air. The solution that emerged from their different desires was to open a window in the next room. From this deceptively simple insight she realized that there were three ways to respond to conflict: domination, compromise and integration. Opening the window halfway would not have given the other reader enough air and would still have created a draft. She, and the many other gurus that followed, came to believe that beyond mere zero-sum encounters, exemplified in the Thomas-Kilman Conflict Scale inventory by the three distributive conflict styles (competing, compromising and accommodating), new solutions would emerge if the minds of the conflicted were directed to meeting their desires - thus producing constructive rather than destructive conflict resolution. Ralph Kilman, CEO at Kilman Diagnostics, describes the trap for many people because they see the world only as a zero-sum encounter: in mathematical terms, competing is when I get 100% and you get zero, and accommodating is when the opposite occurs. Compromising, in its pure form, is when each person gets 50% of the pie. The total of what is achieved always equals 100. The danger of always using only these 3 modes is that a person can only see her work or personal life as win-lose, zero sum encounters. The person fails to see the larger space that could be created by broadening the topic and thus expanding the size of the pie - the window in the other room. The preference for distributive conflict styles prevents integration. In another context we see that narrowing the issues is beneficial for trying a law suit – fewer points to prove – but broadening the issues provides more scope for trades. The litigator in negotiating a settlement might only use the parts of the brain best suited for math problems and fail to utilize other parts of the brain better suited to creative tasks.
There are actually two quite distinct types of problems, according to Daniel Pink, the author of Drive: algorithms and heuristics. For algorithms we use rational, linear thinking. Heuristics require a different approach. Imagine being asked to create an ad campaign – you would have to access creative, innovative, intuitive neural pathways that are not suitable for solving an equation or understanding a balance sheet. Try this, if you doubt that your brain has many ways of doing the same task: put a coke bottle in front of you and draw it. Now turn it upside down and draw it. Which drawing is more accurate? Research shows the second drawing will be better – you are able to use your right brain more effectively when it is not monitored by your logical, left brain.
The Appreciative Inquiry approach, in which the decision makers' minds are directed to imagining what would be an excellent use of existing resources to meet future goals as yet undefined, has added a further dimension to constructive conflict. Better solutions emerge when the differences of the parties are brought out and conflict is allowed to be clarified and aired - creating opportunities for solutions in which the interests may fit into each other.
The recent interest in looking at the molecular reality of these "truths" is the subject of this article. Neuroscience, while exciting, is still in its early stages of development. Neuroimaging holds the promise, however, of allowing unprecedented access to the mechanisms of the brain as it makes decisions. We are finally able to advance our understanding of just what is happening in the brain during negotiation and mediation, not by words but with pictures. A functional MRI can show the location, intensity, duration and strength of the response to stimuli. Other imaging technology for using the brain as a "witness" includes electroencephalography (EEG), transcranial magnetic stimulation (TMS) and positron emission tomography (PET Scan). But scientists know that this is still "baby science" and the outcomes depend on what the experimenter does. At most, the technology can only confirm and strengthen what has already been developed on a functional level. Already there are many books written by good journalists reporting on the work of important neuroscientists as well as books by neuroscientists who have writing talent.
For this article, the debate about whether the brain and the mind are distinguishable is moot: we will just refer to decision neuroscience and not address whether the brain is doing the deciding, whether a mind outside the brain is doing that, or whether there is, as suggested by Richard Birke, a "Ghost in the Machine".
There are many workshops being offered to mediators and negotiators in this and related fields. In the summer of 2010, for example, Pepperdine University School of Law presented Mindfulness for Conflict Resolvers: Lawyers, Mediators, Negotiators, Judges, Arbitrators & Managers, led by Len Riskin, Professor at the University of Florida College of Law, and Rachel Wohl, Director of the Maryland Supreme Court Mediation and Conflict Resolution Office. In June of that year a webinar on Contemplative Neuroscience with Richard Davidson from the University of Wisconsin was presented. On October 22, 2010, the University of California-Hastings College of Law sponsored a symposium on Emotions and Negotiation. Two leading authorities on non verbal communication, Paul Ekman and Clark Freshman, presented the latest research findings on using emotional information to negotiate more effectively.
The majority of legal literature devoted to neuroscience can be found in the area of criminal responsibility. My 2010 Westlaw search for all law reviews and journal articles with the term "neuro" in the title resulted in 137 responses, of which more than half dealt exclusively with criminal responsibility and most of the rest with either childhood development or medicine. Hardly any attention has been paid to neuroscience and dispute resolution.
While the various disciplines noted above have all increased our understanding of negotiation, there are inherent limitations on each. Their principles do not help us as dispute resolvers who often encounter them not in isolation but in combination. While increasing one's emotional intelligence, self awareness, communication skills and empathy may improve a negotiator's own creativity and listening skills, we still seek scientific information on how the other side (or one's own client) will make a decision when data is uncertain, risk is high and emotions run strong.
What is the functional magnetic resonance imager (fMRI) that promises so much? Here is the description offered by one writer:
Employing powerful magnets that react to minute differences in levels of oxygenated and deoxygenated hemoglobin in the brain, the fMRI can create near-moving pictures that allow studying the location, intensity, and duration of brain activity under conditions similar to those found during negotiation and mediation. The data collected by a fMRI holds the potential to add significantly to the understanding of how to negotiate and mediate more effectively. The desire to obtain visual data about the brain has led the fMRI to quickly become the most prominent tool in cognitive neuroscience.
For me, neuroscience is a fascinating but puzzling interest. Hopefully in the future I will be able to devote the time to become more knowledgeable about it. Currently I hope just to learn enough to improve the skills of my students and my readers, as well as myself! For many other legal professionals, neuroscience is the newest horizon. In June, 2010, a course in Neuro-Collaboration was offered by Pauline Tesler (Attorney) and Thomas Lewis (MD and Neuroscientist) at Pepperdine. One observation from that course crystallizes the intersection of Neuroscience and Law:
"Collaborative lawyers undertake a task and if they are to do well at it, their beliefs and behaviors must support the ends they pursue and the processes they offer, must match up with what their clients and colleagues reasonably expect, and with what is known about how human beings actually do behave during conflict and conflict resolution processes. This does not mean that a collaborative lawyer must be a neuro-scientist or a psychotherapist or communications specialist. But collaborative lawyers do have a responsibility to make their work congruent with how they and their clients are biologically wired to think, feel, and decide, if they are to deliver what they promise.
Neuroscience and law owe a debt to economics and psychology. Recently, several lawyers have created case valuation software products that help negotiators and mediators reduce the twin demons of uncertainty and complexity. Litigators often put off all settlement negotiations until discovery is almost done and dispositive motions have been decided. One explanation for this is that they want to gather sufficient data - evidence, law, opinions, track records and more - to reduce uncertainty and to manage the complex data that they gather. The case valuation tools permit more certainty and reduce complexity which should promote utility maximization. That concept lies at the heart of nearly all approaches to dispute resolution. Dispute resolution is based on a model of decision making that stresses rational choice and accurate expected value calculations. Litigation risk analysis is widely taught and used by negotiators and mediators - yet it is imperfect. We are not computers.
Psychologists have poked holes in the notion of pure rationality in deciding whether and at what value to settle a lawsuit or any other dispute. Even though negotiators now know much more about the various cognitive errors humans make, thanks to the work of many brilliant cognitive and behavioral psychologists, the absence of knowledge about the interplay among psychological factors limits their ability to use those psychological explanations as a means of understanding decision making behavior. It is hoped that neuroscience will provide answers where psychology and economics have not.
The hardest thing to teach legal negotiators is the importance of emotions in decision making. None of the technologies used by neuroscientists can take a picture of an emotion. Despite that limitation, enough studies now exist to begin to use the most relevant data to achieve better settlement of legal disputes. If it is true that the human brain is hardwired for empathy, as argued by Dr. Marco Iacaboni in his book, Mirroring People, then humans have a common emotional language. Dr. Paul Ekman spent many years photographing faces of people from many cultures, some very primitive. His research supports that fact. Further, he discovered that facial expressions are innate: babies born blind have the same facial expressions as sighted children. Some expressions, such as sadness, are only possible when the brain is experiencing that emotion - it cannot be faked. The idea that humans have neurons that enable them to read another's emotion suggests that negotiators benefit greatly by face-to-face contact and that negotiators should train themselves to detect lies, read each other accurately and watch for the micro-expression that is not congruent with the words spoken. Most humans do some of this without thinking, as described in Malcolm Gladwell's book blink. Neuroscience suggests that we learn more from watching the other negotiator's face, and other body language, than by hearing what she is saying.
Neuroscience is raising many questions but has yet to provide many answers. There are studies that corroborate existing knowledge about accurate decision making, but there is still much work to be done. The Nobel Prize for Neuroeconomics has yet to be created. There is a possibility now, with neural data, to establish independent evidence in favor of, or against, various models of behavior...neural evidence builds on a rich base of knowledge from animal physiology and from human brain imaging work about the functional relevance of specific neuroanatomical area. This means that there is the potential for generating interesting new hypotheses about motivations from observed patterns of neural activities...results can feed back into the neuroscience literature and further increase our general understanding of how the brain makes decisions and experiences their consequences.
Practitioners, such as negotiators and mediators, want answers but scientists are cautious. As powerful and fascinating as the fMRI is, it cannot show an emotion. It cannot tell us what the magnetic signals photographed really mean: we don't know that the activation causes the action of decision - making, only that it is correlated with it. The cognitive psychologists realize that their valuable concepts do not map onto a certain, single area of the brain. We know that cognitive distortions exist, but we don't know why. The need for collaboration has never been more clear. If negotiators, litigators, mediators, law professors, psychologists, and other professionals work with the neuroscientists in the hope of furthering joint findings that all can support and use, there will be breakthroughs that benefit all. As Richard Birke suggests, what is needed is for fMRI decision theorists to take up residence in law schools or law professor decision theorists to occupy medical school faculty positions. One example of such a collaboration was conducted by the Master Mediators Institute which brought a group of twenty mediators to the Cognitive Neuroscience Center at Duke University for an immersion course in neuroscience that began with dissecting a brain and included watching an fMRI test. Hopefully we will see much more crossover between and among lawyers, dispute resolvers and scientists.
Now let us look at the questions posed at the very beginning of this column: should we ever bargain with the devil? Although Churchill said he never would, for three days during WWII, he and his war ministers secretly debated whether to pursue peace negotiations with Hitler. Nelson Mandela made a risky decision when he secretly initiated negotiations with the apartheid regime and did not tell even his own colleagues. Less than one month after the September 11, 2001 attacks resulted in the deaths of nearly 3000 innocent American civilians, Harvard Law School's Program on Negotiation held a public debate on whether President Bush should negotiate with the Taliban. Roger Fisher took the position that one should always try negotiation, even with the devil. The opposite view, depicted in the Faustian parable, holds that if you do you will be corrupted. Robert Mnookin argued that the very decision of whether to negotiate must be subjected to rigorous analysis: or wise decisions will not result. Someday we may be able to take pictures of the brain that tell us what to do. I suspect not. Until that magical day here is the rational approach to decision-making that the Chair of the Program on Negotiation recommends:
. What are the interests at stake? In the Taliban debate, the U.S. interests were to protect American lives and deter future terroristic aggression.
. What are the alternatives to negotiation? Our BATNA was military force and we stood a good chance of prevailing. The Taliban's alternatives were worse.
. Are there likely potential negotiated outcomes that would meet the interests of both parties? Is there a reasonable prospect the resulting agreement would be
honored? "No" was the answer reached in the Taliban analysis. Bin Laden was rumored to have more influence over the Taliban than they had over him.
. What are the costs to our side? Huge!
. Is our BATNA "military force" legitimate and morally justifiable? Mnookin took the view that under international law, waging war was permissible.
. The resulting conclusion? The wise decision is not to negotiate.
. Try using this analysis and some of these ideas and techniques in your future cases!
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My thanks go to Professor Richard Birke, of the Willamette University College of Law, whose writing inspired me to further study. See Birke, Neuroscience and Settlement: An Examination of Scientific Innovations and Practical Applications, 25 Ohio State Journal of Dispute Resolution 483 (2009).
Mnookin, Bargaining with the Devil, 16, 17 (Simon & Schuster 2010).
Jones, On the Nature of Norms: Biology, Morality and the Disruption of Order, 98 Mich. L. Rev. 2072, 2074 (2004).
Menkel-Meadow, Mothers and Fathers of Invention, 16 Ohio State Journal on Dispute Resolution 1 (2000).
See Whitney and Trosten-Bloom, The Power of Appreciative Inquiry: A Practical Guide to Positive Change (Berrett-Koehler Publishers 2003).
See Menkel-Meadow, supra n. 4.
See, e.g., Blink, by Malcolm Gladwell; Stumbling on Happiness, by Daniel Gilbert; The Synaptic Self, by Joseph LeDoux; the Emotional Brain, by Joseph LeDoux; How the Mind Words, by Joseph Pinker; Your Brain on Music, by Daniel Levitin; the Accidental Mind, by David J. Linden; Social Intelligence, by Daniel Goleman; and Emotions Revealed, by Paul Ekman.
Birke, supra note 1, at 483.
Birke, supra note 1, at 486, 487.
See Tesler, Goodbye Homo Economicus: Cognitive Dissonance, Brain Science, and Highly Effective Collaborative Practice, in Neuro Collaboration, Straus Institute for Dispute Resolution June 10 B 12, 2010.
William Harbaugh, et al., Neuroeconomics of Charitable Giving and Philanthropy, in Neuroeconomics: Decision Making and the Brain 308-318 (Paul W. Glincher et al. eds., 2008), quoted in Birke, supra note 1, at 530.
Mnookin, supra note 2, at 6.
See Mnookin, supra note 2, at 6-8
Kay Elliott, J.D., LL.M., M.A. has mediated and arbitrated over 2000 cases since she entered private practice as a conflict specialist and trainer in 1982. She has taught and coached law students at Texas Wesleyan School of Law in Ft. Worth Texas for 21 years. Her teams have won regional, national and international law competitions and her 2011 Negotiation Team will be representing the USA in the International Negotiation Competition this year in Denmark. She has produced books, articles and training courses on negotiation, mediation, settlement advocacy and persuasive communication to corporations, government agencies, lawyers, educators and mental health professionals worldwide. She has a private mediation practice in Texas and is a lecturer at Texas Womans University for the LifeLong Learning Department.