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By Steven G. Mehta
On many playgrounds, you will often hear the phrase “that’s not fair.” Those three words also have a huge impact in dispute resolution. That is because the principle of fairness is often overlooked.
Fairness is hardwired.
First, and foremost it is important to understand that the concept of fairness is hardwired into our brains. Several recent neuropsychological studies have discovered that the belief that things should be fairly apportioned or divided is an emotion that is built into the brain and not just a cultural norm. One study conducted by researchers at Stanford and the University of Illinois found that there are different parts of the brain that respond to concepts of fairness and equity. As one of the researchers, Brian Knutson from Stanford explained, “When people see an unfair offer, they actually have a negative emotional reaction to it…They have a visceral reaction to unfairness.”
Another study from UCLA also found similar results. Participants were asked to divide a certain sum of money in any way that they wanted between themselves and another person. The second person could only accept the sum or reject the sum. There was no negotiation. The study found that regardless of the dollar amounts at issue, the participants were much happier with fair offers and much more disdainful of deals that were lopsided or unfair. Just as with the Stanford study, they did brain scans of the participants and found that different areas of the brain were activated when dealing with fair and unfair offers.
Studies in the sociological and employment context have also found interesting results that correlate fairness to the outcome of the action. For examples, numerous researchers have found that employees respond both to what happens as well as how it happened. In other words, “it’s not only what you do, it’s how you do it that counts.” The researchers found that the level of negative emotions and anger was lower when the employees perceived that they were treated fairly. Interestingly, anger towards unjust treatment was not reduced by monetary compensation.
This principle is true in many cases in conflict. Often the perceived unfairness of treatment by one of the parties long ago feeds the emotional anger of people during the dispute resolution process. This is especially true, as the researchers suggest, when the people were in times of vulnerability and uncertainty, such as impending unemployment, problems with health due to injury, or the loss of a loved one.
Research has also found that there is a direct relationship between trust and fairness of the process. The more that people consider the process to be fair, the more likely they will be to trust the other party. In turn, the more the person trusts the other person, the less they are concerned with the immediate economic consequence of the deal.
Fairness And Dispute Resolution
First and foremost, do not act disrespectfully to the other person. For example, several studies have shown that people who are treated unfairly or in a manner they deem as disrespectful are more likely to sue the people they perceive created the injustice. The desire for retribution (as opposed to monetary gain) is a common motivation for lawsuits. Here, before the matter gets into litigation, it is important to try and utilize procedures that create as much fairness as possible. For example, in the employment context, simple things such as regular reviews of performance, providing the opportunity to be heard by an independent person, providing a means to air a grievance, and using objective standards, can go a long way to creating an environment that is deemed fair.
Second, it is important to understand that, “it’s not what you say, it’s how you say it.” Many cases can be avoided by being aware of the impact of the action on the other person. Make sure to have good bedside manner. Treat the person with respect, even when you are taking action that is detrimental to the person. Provide the person with an opportunity to be heard and to explain his or her situation, even if your mind is made up.
Let the other person be heard, even if that voicing of opinion won’t change the outcome.
Try to create opportunities to remedy the perceived injustice or disrespect that may have happened to the party. Ask for the other person’s guidance and help as a means of allowing that person to let go of the issue.
As Frank Barron, the UC Berkeley professor, stated, “never take a person’s dignity: it is worth everything to them, and nothing to you.” Helping restore fairness costs you nothing, but can make a difference in helping resolve the dispute.
By Steven G. Mehta
According to a poll conducted by the Lake Research Partners of likely voters, that was published on April 29, 2009, Americans widely oppose mandatory binding arbitration clauses. The survey reached 800 adults nationwide, 18 years or older, who are likely to vote in the 2010 elections. The overall margin of error is +/-3.5%.
The poll found that:
· Six in 10 likely voters support the elimination of arbitration clauses unless the parties agree to arbitration after a dispute arises.
· 59 percent of likely voters oppose the use of mandatory binding arbitration clauses in employment and consumer contracts;
The poll results bolster support for the bipartisan Arbitration Fairness Act (H.R. 1020) that was introduced by Rep. Hank Johnson (D-Ga.) in the House of Representatives. The measure seeks to ensure that the decision to arbitrate is made voluntarily and after a dispute has arisen and not before. The measure would virtually eliminate all pre-dispute arbitration clauses. This measure comes on the heels of another similar proposal targeted towards the nursing home industry: The Fairness in Nursing Home Arbitration Act (S. 512 / H.R. 1237). S. 512/H.R. 1237 introduced by Sens. Mel Martinez (R-Fla.) and Herb Kohl (D-Wis.) and Rep. Linda Sanchez (D-Calif.), would seek to eliminate arbitration clauses in all nursing home contracts.
Proponents say mandatory arbitration is quicker and cheaper than going to court. In fact, more and more cases are going to arbitration and are eliminating the need to go through lengthy trials. In support of such claims, One study reviewed 301 cases of consumer arbitration cases, all performed by the American Arbitration Association (AAA), and found consumers won some relief in 53.3% of the cases they filed and recovered an average of $19,255; business claimants won some relief in 83.6% of their cases and recovered an average of $20,648.
But critics contend the process isn’t always fair. Critics of arbitration claim that the clauses are written by corporations to protect corporations and that it makes it harder to obtain a fair recovery for a wrong. Critics contend that although consumers may get results, they are usually much smaller than what would have been obtained by a jury.
These measures, if passed, could have a significant impact on the way justice is served. First, many cases that are currently going to arbitration are not burdening the already overburdened court system. As an example, California courts routinely favor sending cases to arbitration. Currently, California’s judicial branch fields nine million filings annually, spread among more than 2,000 judicial officers, according to the state Administrative Office of the Court. Given the budget woes that have besiged California, those judicial officers will be taxed even more. If many cases that are now going to arbitration end back up in the courts, there could be further delays in the processing of those cases.
On the other hand, such measures may end up giving the consumers more choices as to the method they would desire to resolve their dispute.
In either case, these measures will be important ones to watch.
The recent hostage crisis for Captain Richard Phillips simply shows the importance of negotiations in every aspect of life. As you may recall, Captain Richard Phillips committed an act of utter bravery when he negotiated with the Somali pirates to release his crew. He negotiated his life for theirs. Thankfully, Captain Phillips was eventually able to escape successfully with the assistance of the Navy SEALS. But Captain Phillips’ story as well as the attempts to negotiate his release clearly reveal that everybody needs to develop skills to properly negotiate. We can actually take skills that are normally taught only to hostage negotiators and apply those skills to every day situations.
Hostage negotiators often follow simple rules of engagement in any hostage situation.
1. Establish Open Lines of Communication
Hostage negotiators understand that the first step in resolving a conflict is to open lines of communication. This is done so that the parties can have a means of identifying needs, demands, and ways in which to resolve the crisis. The same principle applies in negotiation. It is important to establish rapport early in the relationship. By establishing rapport, you can start to develop trust in the process, and in you.
2. Identify the leaders
Before the real demands can be known, the hostage teams must know who to negotiate with. Similarly, before any meaningful negotiations can take place, it is important to find out who the persons are with authority.
3. Restore Calmness to the situation
Hostage negotiators recognize that while a perpetrator’s emotions run high, they will likely remain irrational in their decision making. As such, they immediately try to restore calmness to the situation. This principle is equally true in negotiations or mediation. When a person is emotional about an issue he or she will not be able to make proper demands, make real needs known, or perhaps not know the bottom line. A sophisticated negotiator must recognize that addressing emotions in the negotiation process is often the most important step to resolution. By using active listening skills such as asking open ended questions, and letting the other person speak without interruption, you allow the party to vent emotions and to calm down.
4. Gather Information about the Dispute
Once the heightened state of emotionality has been minimized, hostage teams attempt to identify the specific needs of the parties involved. This process is also applicable in mediation. Unlike in the prior stage, during this process, specific targeted questions can be asked of the parties as to their needs, and what would help to eliminate the problem. By identifying a person’s needs and problems, the astute negotiator will now be given the opportunity to find potential solutions and what things are simply not negotiable.
To get all 7 hostage negotiation secrets that can be used in any negotiation, contact Steve Mehta and ask for him to email you his article Hostage Negotiation Secrets In Your Everyday Life.