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By Steven G. Mehta

There comes a time in every mediator, litigator or person’s life when somebody that you have a relationship with — whether it be business or personal — gives you criticism.  How you react can make a huge difference.

The criticism I speak of is not criticism that you know is coming and expect (and perhaps agree with).  But instead, criticism you receive that you weren’t expecting and that you may not necessarily agree with.

First, it is important to understand that receiving criticism is never fun.  It always affects you.  Some people get angry, others get defensive, some people go inward.  But there is no doubt that it will affect you.  I believe that one of the reasons we react so negatively to such criticism is the fight or flight phenomenon.    This phenomenon comes from our stone age ancestors that had to make instantaneous reactions to threats:  Do we fight or take flight?  We still carry those instincts with us today.  The fight or flight reaction can be triggered when anything threatens us:  Our ego, our self worth, our self perception, and so on.  The modern person’s flight or fight reaction is to defend his or her actions or to take the attack against the beast that dared to threaten us.

Second, there is a difference between criticism by a person who is trying to help and a person who is trying to be destructive.  If you are receiving criticism from someone who is destructive, Buddha has some advice for you.

“A man interrupted one of the Buddha’s lectures with a flood of abuse.Buddha waited until he had finished and then asked him, “If a man offered a gift to another but the gift was declined, to whom would the gift belong?”

“To the one who offered it,” said the man.

“Then,” said the Buddha, “I decline to accept your abuse and request you to keep it for yourself.”  (found at the Postivity Blog).

Sometimes, you have to decline to accept the abusive behavior.  But, How?  It is difficult to say, “I don’t want to hear it.”  But you can listen until they stop.  You can move away from the conversation.  You can also thank them for their thoughts, and tell them that you will consider it.  This does not, however, mean that you accept it, but that you will consider it.  You can choose to reject the advice or criticism.   Sometimes simply thanking the other person will allow them to feel that they have been heard and they can move on.

What, if however, the advice is not destructive but intended to help.  It is important to consider that people who don’t care, don’t give advice or comments.  Think about it, your mother or father criticizes because they care about you; your spouse comments because he or she cares, and a person in business with you who takes the time to criticize cares.  They would like to continue the relationship with you.  They want to make you better.  If they didn’t care, they wouldn’t even bother to take the effort to criticize.

Remember, giving criticism is hard.  People don’t like to give criticism.  Recently, I had 2 separate occasions in two completely different circumstances where I received criticism.  At first, the way that both gave such criticism was “rough.”  It initially set off my fight or flight reaction.  But as I sat down and thought that these two people who I knew very little about took the time to provide me with criticism, my instant fight or flight reaction went away, and I was intrigued to understand the reason for their criticism.

I listened to the criticism intently.  I thanked them for their criticism and then went home and considered it carefully.  In one of the circumstances, after carefully considering the comments, I agreed with some of the criticism but not all of it; Nor did I agree with the conclusion.  But the fact that the person made the comment ultimately reflected the fact that she liked me, wanted to continue to interact with me on other occasions, and needed to make sure that I knew that something I did made her feel uncomfortable.  That criticism was valid, and was more of a plea for help.

In the other circumstance, I again agreed with part of the comment.  I even told the person that I agreed with part of his comment, and appreciated his thoughts.  I suggested that after ruminating on his statement, I understood why he made the comment and appreciated the thought even more.  His response was, “That’s what friends are for.”  What amazed me is that I didn’t consider this person as a friend, but more an acquaintance at that point.  But now we were friends.

As Benjamin Franklin once pointed out, nothing can make a friend faster out of an enemy than the enemy giving you a gift.  Here both persons that I didn’t know too well, now became friends because of the gift of a criticism.

So the score at the end of the day:  Two critiques, Two changes in a part of my behavior, Two Friends.  Not bad for something that could have gone so wrong.

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By Steven G. MehtaSteve Mehta

Feeling slighted, miffed, or offended can influence how a person responds much more than being the recipient of perceived generosity, even if the net value of the social transaction is the same, the research on reciprocity—giving and taking—shows.

“Negative reciprocity, or taking, escalates,” said Boaz Keysar, Professor of Psychology at the University of Chicago and lead author of the paper “Reciprocity is Not Give and Take: Asymmetric Reciprocity to Positive and Negative Acts,” published in the Psychological Science. The study was based on giving-and-taking games conducted on students and people in downtown Chicago.

The games provided data on how people respond to give-and-take social exchanges.

In one experiment, subjects were divided into two groups and asked to conduct experiments that began in two different ways using money. In the first group, one player learned that another player had $100 and was going to share it. In each situation, the player with the money gave the other player $50. When the roles were reversed, the players who received the $50 received $100 which they could share with the other players. In that exchange, those players gave their partners on average $49.50.

On the other hand, In a companion experiment, the researchers found when they changed the act to taking instead of giving, that the act of taking had a far bigger impact on people’s responses than did the act of sharing.  Just as in the first experiment, when the roles were reversed, the first players took back much more, leaving the partners with an average of $42.

Further, as each round continued, each person “taking” became increasingly greedy over repeated exchanges.

The study, which was supported by the National Science Foundation, the National Institute for Mental Health, and the Templeton Foundation, shows various social exchanges differ from those in the marketplace, where goods are bought and sold, Keysar said. “Acts of giving are perceived as more generous in social exchanges than objectively identical acts of taking,” Keysar said. “Taking tends to escalate.”

Applying the Research

Most studies involve positive reciprocity – the giving of gifts in anticipation of coercing positive action from the other person.  However, this study demonstrated that negative reciprocity can often be more powerful a motivating factor than positive reciprocity.  This directly applies to the litigation negotiation context.  Often in litigation, one party feels slighted.  Take for example, when an offer is made that is a “highball offer” or “lowball offer,” the other side tends to reciprocate with their own version of an offensive offer.  This research demonstrates that unless the cycle is broken, the conflict of negative reciprocity will continue to escalate.

Moreover, people are often also slighted by some action that occurred that instigated the litigation.  The same cycle of negative reciprocity and increasing escalation can substantially increase the transaction cost to the litigation by forcing parties to conduct more discovery, more motions, and more time and energy.

It is, therefore, important to break the cycle.  According to Louis Kreisberg, professor of sociology, all conflicts will escalate until a point of stalemate, and then only can the parties de-escalate.   As such, whether the conflict is the litigation or the negotiating offers, the parties must first come to a stalemate.  In negotiations, that means that the parties need to realize that the escalating moves that are “offensive” won’t work.   The parties need to realize that they won’t be able to achieve their goal by pursuing the “offensive offers.”  But that may take some time.  The parties won’t realize that there is a stalemate in the negotiations until several moves have taken place.

Second, after realization of the stalemate, the parties need to have some way to start to de-escalate.  Some ways that negotiators and mediators can break the escalation cycle is as follows:

  • Make a unilateral gesture of good faith
  • Change the focus of the negotiation
  • Take the initiative to identify the stalemate  — I.e. “we all know that these moves aren’t going to get us anywhere.  We need to get to the realistic negotiations, otherwise we will be at a stalemate forever.”
  • Make a small gesture whilst indicating a desire to receive such a small gesture also.  This is also known as GRIT, an approach developed by Charles Osgood.   In his original writing he said it stood for “graduated and reciprocated initiatives in tension reduction; later he simplified this to gradual reduction in tension.  The basic idea is that disputant can initiate de-escalation by making a small, unilateral (one-sided) concession to the other side, and at the same time, communicating a desire or even an expectation that this gesture will be matched with an equal response from the opponent.  If the opponent does respond positively, the first party can make a second concession, and a “peace spiral” is begun.  If the first initiative is ignored, Osgood suggests that it be followed by a second–or even a third–attempt.  These concessions should be designed to build trust, but should not be terribly costly (materially or strategically), nor should they suggest weakness.   However, they should indicate a willingness to transform the conflict to a more cooperative and less adversarial approach.
  • Apologize – whether this is for something substantive or procedural.  An apology can help to significantly de-escalate a conflict.
  • Take a time out from the negotiations so as not to escalate the conflict.
  • Identify that the conflict is escalating and that you do not wish to escalate – State your intention to de-escalate.
  • Ask the other side to help you de-escalate.  – Former enemies will becomes the greatest of allies when they share the common goal or enemy.

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