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So you have had one bad interaction with opposing counsel or the opposing party.  You would like to make it right.  So one good interaction should make it all better, right?  Wrong.  The reality is that one good interaction does not make up for one bad.  I know this to be true from every time I have a fight with my wife.  One good incident after the fight doesn’t make up for it.  The reality is several good interactions are necessary to make it all right again.

Well interestingly enough some research demonstrates that my anecodotal experience is not necessarily far from the truth.

Psychologist Barbara Frederickson is an expert on flourishing and has been an advocate of finding ways to bring more positive emotions into our lives. In her research she discovered a critical 3 to 1 ratio, indicating that we need to have three positive emotions for every negative one in order to thrive. (via Barking Up the Wrong Tree).  

Another researcher,  Ed Diener, in his book Happiness: Unlocking the Mysteries of Psychological Wealth, also demonstrated that the number of good interactions to offset a bad interaction depends on the relationship.  His conclusions are set forth in the attached chart.

So what does that mean to negotiations, mediation, and the general world.  A lot:  Your hist0ry can affect your future, and it takes a lot more effort to repair something than it does to break it.  As negotiators, it is far better to try to maintain good relations, because if you don’t it is much harder to come back from a bad impression — especially because your relationship is not as close as some of the relationship in the chart.  Imagine where you as negotiating partners or opposing counsel fall in relation to the closeness of the connection and how many good interactions are necessary to offset one bad one.  I would hope that you can beat the odds of a mother-in-law.  But either way, you are not as close to your opposing counsel as you are to your children or parents.  As such, it will take a lot of good interactions to offset one bad interaction.

The Moral: Do Unto Others Better Than You would Do to Yourself in Negotiations or Pay the Price.

In every mediation, there is always some party that predicts the future. Phrases such as “There is no way that we can lose this case,” “most likely we will win,” or “the judge will never rule that way,” are frequently mentioned. The reality, however, is that people are generally very bad at telling the future The reason for this ineptitude is for several reasons.

First, according to a study in the journal of Social Pyschology, we are 30% more accurate at predicting performance for a third party than we are at predicting our own future performance. According to the research, we base predictions about others on hard facts, but brush aside our own failures or shortcomings as aberrations.

Second, Yale psychologists have discovered that when we are in the middle of a “game” we are less likely to predict the performance of the game than when we are hypothetically playing the game. In other words, if we are in the midst of a problem or activity, our impartiality is less than if we were hypothetically thinking about that same activity.

Third, Casino operators count on the next bias which is often called the wishful thinking bias. Researchers have discovered that when there is an equal chance of a good outcome versus a bad outcome, study participants tend to believe that the good outcome will occur despite knowing that the evidence is contrary.

These biases demonstrate one of the powerful tools of mediation. Having an “unbiased” third party help to look at the outcome and evidence. A neutral mediator doesn’t or shouldn’t suffer from these biases; indeed, according to the first study, the mediator — when presented with all the facts — should have a higher likelihood of predicting the future than the parties themselves.

However, the mere fact that a mediator may be unbiased does not mean that the mediator’s views are determinative. They are merely helpful guides and perspectives that you may not otherwise see because you are too entrenched in the game or simply have a case of “wishful thinking.”

A recent study from UC Berkely has discovered that women can use flirtation as a very effective negotiation technique.  This is not true, however for men.  Flirtatiousness, female friendliness, or the more diplomatic description “feminine charm” is an effective way for women to gain negotiating mileage, according to a new study by Haas School Professor Laura Kray.

Two experiments were conducted.  The first rated negotiating partners effectiveness based upon whether they used social charm or not.  The study found that women that used higher levels of social charm were considered more effective as negotiators; whereas the charm had no effect on the evaluation of the male negotiatiors.

The second study determined whether a participant would reduce the price of a $1,200 car based upon reading a story of a potential buyer as being a serious female or a socially acceptable flirtatious female.  The result? Male sellers were willing to give the “playful Sue” more than $100 off the selling price whereas they weren’t as willing to negotiate with the “serious Sue.” Playful Sue’s behavior did not affect female car sellers.

For both sexes, it is important to be able to understand that this phenomenon exists.  For women, they can use this knowledge to work on a better negotiated result.  For, men it is important to understand that this form of socially acceptable manipulation can occur and that it could be a negotiating tactic rather than this particular woman wanting to come on to you.

There is a large debate in the mediation world as to whether the parties should attend a joint session early in the mediation. This post, however, will not join that debate, but will instead posit a new beginning. We need to sing the national anthem together to start of the mediation. After all, isn’t that what we do at sporting events. We sing. Well suprisingly, there is a valid reason why singing together could be beneficial for a mediation.

According to Scott Wiltermuth of the University of Southern California, we cooperate more when we act physically in sync. In one study, students who sang “O Canada”- The Canadian National Anthem — in unison before playing an economic game were more likely to make decisions for the collective gain rather than the individual gain.

Another more sinister example of physically syncing with another person is from the Nazi goose step. According to Wiltermuth, such physical synchronicity epitomizes the impact of the potential of human synchrony. In his study, students that worked physically together to arrange cups in a synchronized sequence were more likely to accede to a confederate’s unethical suggestion.

So how can we use this in mediation without rocking out together to the Police’s “Synchronicity?” There are several ways. First, consider asking to take a walk with the party or person and then trying to match your pace and speed to the other. Second, Ask the person to help arrange something physical in the environment. Try to include the other person in an activity that involves you both moving your chairs next to each other. There may be many other ways to synchronize your activity.

This concept may also be a corollary to what Robert Cialdini explains as the concept of liking: People are more willing to cooperate with others that are similar to themselves. Obviously if you are doing the same activities, you must have some similarities.
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Finally, it is important to empasize that such techniques are not the be all end all to communication. All actions must be taken and done with the highest level of integrity. Moreover, this concept by itself will not persuade the other side to accede automatically to your request. Remember the studies only show that people are “more likely” to do something. This does not mean they “will” do something.

Research Source: Pyschology Today, October, 2012, “In Sync”

By Steven G. Mehta

Steve’s Book

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