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By Steven G. Mehta

Which one convinces you more?  If I told you that 90% of the time people lose their medical malpractice actions or that 9 out of 10 people lose their medical malpractice actions.

Many of you are saying, there is a  no difference.  90% and 9/10 are the same thing.  This is where you are wrong 90% of the time.

The human brain is hardwired to make short circuit decisions all the time. There is automatic programming that occurs in making decisions.  Otherwise, we would be mired in making decisions.

A new study has discovered that people would prefer large numbers over smaller numbers.  The study found that people prefer to receive shipped items in 31 days rather than the same period of one month.  In fact, the subjects were willing to pay more money to receive something in 31 days instead of a month.

In one of the tests, the researchers used two different scales, either 1-10 or 1-1,000, to describe television quality and the success rate of a medical procedure; they also fed the subjects warranty lengths in either months or years. Even when the length of time was the same—seven versus nine years, or 94 versus 108 months—the subjects tended to prefer the bigger number. The same thing happened for medical procedures, where an equivalent effectiveness was preferred when it was rated on a thousand-point scale. (QUOTED FROM The “unit effect” makes 31 days seem better than a month).

This concept is also known as the Unit Effect Bias.  In other words, people prefer higher numbers rather than lower numbers even though the actual unit is still the same.  For example, 1 liter versus 1000 milliliters; 1 month versus 30 days; quarter of a million versus 250,000.

This concept is something that attorneys and mediators should consider when discussing settlement options.  Perhaps the settlement terms of payment; maybe the amount of the settlement — 100,000 versus 6 figures; or 2 weeks versus 14 days.

The reality is that in negotiations it is important to understand that our brain may work in many irrational ways.


By Steven G. Mehta

In every mediation, one of the first questions that arises is not what is the bottom line or what do we need to do to settle the case.  Instead, one of the first questions asked by attorneys in mediation is “where is the coffee?”  Well recent research has shown that caffeine and sugar in combination can improve the efficiency of brain activity.

According to the Josep M. Serra Grabulosa, one of the main researchers, “our main finding is that the combination of the two substances improves cognitive performance in terms of sustained attention and working memory by increasing the efficiency of the areas of the brain responsible for these two functions.”

I feel that innately I must have always have known this concept because I have from day one of mediation provided plenty of coffee and sugary snacks at my mediations.  Indeed, I am a firm believer in making sure that food is always available at mediation.

Food can also help on several other levels.  First, food can be for some a comfort.  When dealing with tough issues, sugary, pleasant, meaningless treats can provide the comfort to the participants.  Anecdotally, I find that in tough mediations where there are a lot of difficult issues, the snacks usually go faster than in easier less complex mediations.

Second, the snacks can help to avoid low sugar mania – when people make bad decisions because they are hungry or low on energy.

Finally, some studies have shown that people are more willing to listen to your ideas or accept a sales pitch after they have eaten.  I have dedicated a chapter to this issue in my book, 112 Ways to Succeed In Any Negotiation or Mediation.

So next time you see that coffee and donut in a mediation, you know that you are only helping your cognitive skills by taking them.

By Steven G. Mehta

Over this year, I have had countless times when I have heard my son say, “It’s not fair” about something that happened on the playground at school.  Usually, I have to talk about how even if it is not fair, there are certain constraints that he may have to face.  He usually begrudgingly goes up to his room to ponder why – when Roger took cuts in the handball line – that he has to live with the unfairness.  Come to find out that my son’s sense of fairness and equality in treatment is hardwired in his and everyone’s brain.  According to new research, the human brain physically wants things to be fair and equal.  Amazingly, scientists from the California Institute of Technology (Caltech) and Trinity College in Dublin, Ireland, have become the first to have photographs (MRI) to prove it.

Specifically, the team found that the reward centers in the human brain respond more strongly when a poor person receives a financial reward than when a rich person does. The surprising thing? This same pattern holds true even if the brain being looked at is in the rich person’s head, rather than the poor person’s.

“It’s long been known that we humans don’t like inequality, especially when it comes to money. Tell two people working the same job that their salaries are different, and there’s going to be trouble,” notes John O’Doherty, professor of psychology at Caltech, Thomas N. Mitchell Professor of Cognitive Neuroscience at the Trinity College Institute of Neuroscience, and the principal investigator on the project.   However, what we apparently didn’t know is how much the brain really disliked inequality of treatment.

“In this study, we’re starting to get an idea of where this inequality aversion comes from,” he says. “It’s not just the application of a social rule or convention; there’s really something about the basic processing of rewards in the brain that reflects these considerations.”

The study found that the reward centers in the volunteers’ brains — reacted to the various scenarios differently depending strongly upon whether they started the experiment with a financial advantage over their peers.  The study made subjects in experiment more or less poor compared to others in the study.

“People who started out poor had a stronger brain reaction to things that gave them money, and essentially no reaction to money going to another person,” Mr. Camerer, a co-author,  says. “By itself, that wasn’t too surprising.”

What was surprising was the other side of the coin. “In the experiment, people who started out rich had a stronger reaction to other people getting money than to themselves getting money,” Camerer explains. “In other words, their brains liked it when others got money more than they liked it when they themselves got money.”  Wow!

The discovery finds that the brain’s positive reaction is not just when we are self-interested, adds O’Doherty. “They don’t exclusively respond to the rewards that one gets as an individual, but also respond to the prospect of other individuals obtaining a reward.”

What was especially interesting about the finding, he says, is that the brain responds “very differently to rewards obtained by others under conditions of disadvantageous inequality versus advantageous inequality. It shows that the basic reward structures in the human brain are sensitive to even subtle differences in social context.”

“As a psychologist and cognitive neuroscientist who works on reward and motivation, I very much view the brain as a device designed to maximize one’s own self interest,” says O’Doherty. “The fact that these basic brain structures appear to be so readily modulated in response to rewards obtained by others highlights the idea that even the basic reward structures in the human brain are not purely self-oriented.”

Having watched the brain react to inequality, O’Doherty says, the next step is to “try to understand how these changes in valuation actually translate into changes in behavior. For example, the person who finds out they’re being paid less than someone else for doing the same job might end up working less hard and being less motivated as a consequence. It will be interesting to try to understand the brain mechanisms that underlie such changes.”

This physical reaction could party explain why there is so much trauma associated with early offers or demands by parties that are so far out of the realm of possibility as to make them unfair.  Many times people have a visceral reaction to unfair offers  — and that reaction can often be violent (in the non physical sense).  Indeed, just yesterday I had a mediation that one side felt was going in an unfair fashion.  The plaintiff felt that the offers being provided by the insurance company were far below the value of the case.  The plaintiff felt that the end of the day number was also far below what was “fair” for the case.  This presented a huge obstacle to overcome.

In my case, time was an important ally to allow the party to digest the information and for the logical brain to rationalize and make sense of the instant physical reaction that is now apparent was going on.  Second, we discussed that although the plaintiff may perceive the result as unfair, what would be their reaction to a possibly even more unfair jury verdict in a very difficult jurisdiction.  That time and discussion was helpful  in allowing the party to finally realize that even if the end offer was unfair, it was better than what could happen at trial.

This brings up an important point:  People’s initial reaction (which could be physical and uncontrollable) do not dictate the end outcome.  Given time and effort that initial sense of unfairness might be overcome given the right conditions to demonstrate that some sense of fairness or justice can be delivered.

Research Source:

California Institute of Technology (2010, February 24). Scientists find first physiological evidence of brain’s response to inequality. ScienceDaily. Retrieved February 26, 2010, from  /releases/2010/02/100224132453.htm

By Steven G. MehtaSteve Mehta

A new study suggests that our mood literally changes the way our visual system filters our perceptual experience.  In other words, seeing the world through rose-colored glasses is not just a metaphor.  It also reiterates that people in bad moods will have tunnel vision.

The researchers used MRI’s to investigate the internal working process of the brain.  According to the researcher Adam Anderson, a U of Toronto professor of psychology “Good and bad moods literally change the way our visual cortex operates and how we see,” In other words, when we are in a good mood we take in more visual images.

Subjects were first placed in a good or bad mood. Then the subjects were then shown an image, featuring a face surrounded by other images, such as a house. Subjects were asked to identify the gender of the person’s face.  When in a bad mood, the subjects did not process the images of places in the surrounding background.

However, when viewing the same images in a good mood, they actually took in more information — they saw the central image of the face as well as the surrounding pictures of houses.

Applying the Research

If possible, I will always try to keep the mood light in a mediation.  Although I didn’t have the scientific basis to do so, I now know that the good mood can help the person to visualize more information.  This research also leads me to believe that if a good mood can help visual recognition, it can also help to recognize and accept other information that is not just visual – suggestions from the mediator.

Moreover, other research has found that people in good moods are more receptive to suggestions of change than when in bad moods.  As such, keeping the participants in good moods can only help with the negotiation and mediation process.

Further, as a negotiator, if you sense that the mood is going darker, perhaps it is not the best time to announce a new concept or term.  The mood will likely prevent the person from properly evaluating your new proposal.   The bad mood may may keep others too  narrowly focused; preventing them from integrating information outside of their direct focus.

Reference Source:

Taylor W. Schmitz, Eve De Rosa, and Adam K. Anderson. Opposing Influences of Affective State Valence on Visual Cortical EncodingJournal of Neuroscience, 2009; 29 (22): 7199 DOI:10.1523/JNEUROSCI.5387-08.2009

University of Toronto (2009, June 6). People Who Wear Rose-colored Glasses See More, Study Shows. ScienceDaily. Retrieved June 5, 2009, from

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