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By Steven G. Mehta

I have started to read some material written by Jonah Lehrer, a contributing editor at Wired and author of Proust Was A Neuroscientist and the book How We Decide.  He has found some interesting research on different ways that we make decisions and how we come to such decisions.

In one of his posts on his blog, he discusses the research on how to prevent performance anxiety.  He described a study conducted by Daniel Gucciardi and James Dimmock, psychologists at the University of Western Australia, who studied 20 experienced golfers with handicaps ranging from zero to 12 as to what would help them perform better under pressure.  The researchers set three separate conditions. In the first, the golfers were told to fixate on specific components of their swing, such as “hips” or “straight wrist”. The second condition consisted of the golfers focusing on irrelevant words, such as “blue” or “white”. In the third, the golfers were told to focus on general aspects of their intended movement, or what the psychologists refer to as a “holistic cue word”.  Rather than evaluating their swing, they were told to think of things such as “smooth” or “balanced”.

The researchers found some very interesting results: First, anxiety only interfered with performance when it was combined with self-consciousness. Nervous golfers who thought about the details of their swing hit consistently worse shots. In other words, “thinking too much,” was detrimental to the swing.  The golf swing, like other things, is best performed on autopilot.  This was not a major breakthrough in the research, in my mind.

But the second finding was much more compelling.  The second result was that there was a way to ward off choking. When the expert golfers contemplated a holistic cue word, their performance was no longer affected by anxiety. Because the positive adjectives were vague and generic, those things that they were focusing on didn’t overrule their automatic brain and instinctual performance.

According to Lehrer, “this research suggests that the [motivational] pictures might actually work, at least to the extent they allow us to fixate on the cliche in capital letters. Thinking about “determination” won’t make us more determined, but it just might keep us from choking.”

Now how does a golf swing help us become better mediators or negotiators?  The same concept applies in mediation and negotiation.  Much of what mediators and lawyers do is based on instinct and feel.  There is no set rule of what must be done in a specific circumstance.  There is no rule that when a party screams that they are going to walk unless the other side capitulates that you must use maneuver number 36.

In fact, when I have conversations with many mediators and attorneys regarding mediation, one of the biggest fears is the fear of failure.  Other fears include the fear of making the wrong move, the fear of alienating the other side, the fear of not being liked, the fear that the client won’t do business with you again.  All of those fears help a party to choke in the middle of mediation.

Just as in golf, it won’t be that you don’t do anything at all or not swing, it will be that you make a move or take action that could create impediments to settlement – or in golf, that you might slice the ball, or hit the ball badly.

To take the football analogy, even if there are set plays.  The quarterback on the field must have the flexibility to call an audible.  Mediators and negotiators are calling audibles all day long.  When a party makes such a demand, the mediator cannot respond with a conscious decision process that goes through all the various options and negotiating techniques in the span of half a second.  Something must be done, and it must be done now.  In that same regard, mediators and negotiators are like athletes.  They must have the tools already in place.

Thinking of a specific negotiating strategy, or worrying what the party will think if you do something, or worrying if the party will approve of this action, or worrying if you will settle the case, and many other specific thoughts regarding the mediation process will not help you in the negotiation.  Indeed, even thinking about those actions before hand can be detrimental to the process.

Just as I have written in prior posts about being mindful and clearing your head, it is important to not focus on the specific negotiating strategy or techniques right before a mediation.  Instead, if you focus on abstract ideas such as “peace,” “resolution,” “closure,” and focus on the end result “settlement,” you just may find that you will get better results.

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By Steven G. Mehta

With Tiger Wood’s apology out today, the question that everyone is asking (in light of other sex scandals) is:  “Is this apology genuine?”  There are many opinions on this issue, but I think another question that is missing is “will the victim accept that apology?”

First, here is the apology from Tiger Woods.

There is a good likelihood that the public will probably accept his apology as genuine.  After all, other celebrities such as Robert Downey Jr., Mike Tyson, Kobe Bryant, Bill Clinton (and the list goes on) have had scandals and then made it back in the public light.

But in private, the answer may be very different.  We certainly know that Kobe bought a huge diamond ring for his wife.  We suspect that Bill had some deal with Hillary so she could also maintain her bid for the oval office.

In mediation too, the answer can be different than the fickle nature of the public.  Sometimes an apology – although giving the maker of the apology a feeling of relief – can have little or no impact on the receiver of the apology.

In order for an apology to have a meaningful affect there have to be two main preconditions:  The apology has to be right and the victim has to be in a position to willingly accept the apology.

Is The apology right?

There are several views of whether an apology is appropriate for the circumstances.  Holly Weeks of Harvard suggests that the following is necessary for an apology to be appropriate:

1. Find words that are clear and accurate—not provocative. A good apology should make the person wronged think, “Yes, she understands.” Often what the offended person wants is accountability and vigilance; he wants to know that it won’t happen again.

2. Don’t apologize for the wrong thing. People and institutions tend to apologize for what they find forgivable. If there is no clear relationship between what the offender is apologizing for and what the offended experienced as the original wrong, the apology actually exacerbates the problem. At best, the offender will seem blind to the problem; at worst, he will be perceived as intentionally distorting it.

That gives the offended two problems: the original offense and the sense that a similar offense is likely to occur. The offended party thinks, “How can I accept this apology? It makes me appear to be complicit in allowing the problem to happen again.”

3. Consider the angle of approach. Decide whether it will be easier for you to apologize position to position or person to person. If you are angry with the person you’ve got to apologize to, it may be easier to frame the apology in terms of your respective jobs or ranks.

For example, while the senior executive remains angry at the junior vice president, he can’t offer a sincere personal apology. But he could apologize to her as a senior administrator to a more junior colleague, from his position to hers. Example: “We both work for a good company, and, as your colleague, I should try harder to see past our individual differences. I’m sorry I spoke harshly.”

Such an apology is likely to resonate favorably with both parties, even when anger between them remains.

In other circumstances, a person-to-person apology is easier to offer. For someone who equates an apology with loss of stature, for instance, the person-to-person apology can appear to be a magnanimous act that does not diminish her. Example: “I can’t agree with the stance you are taking, but I like you and want us to work well together. I’m sorry I spoke harshly.”

Choose the approach that is easier for you to do well. That will save you from making an apology that is so grudging that it fails.

4. Don’t think in terms of an “expression of regret.” Instead, your goal should be actually communicating your regret, that is, getting it across to the other person. Expression is one sided—as though one were getting an apology off one’s chest. Communication, however, occurs between people, and an apology needs to work well for the other person to be effective. Take the focus off yourself and keep it on your counterpart and the three elements of an apology—acknowledgment, regret, and responsibility. That protects you from sounding defensive, and your apology will be better received.

5. “I want to apologize” is not an apology. It’s no more an apology than “I want to lose weight” is a loss of weight. Do the work. Deliver a clear, direct apology; don’t hide behind vagueness, circumlocution, or clichés.

You may not be able to control whether your apology is accepted, but you can control its quality. So make every effort to control what you can. This will increase your chances of feeling good about what you have done with your apology—instead of feeling bad about having to do it. (To read the rest of her article, click here.

In general, an apology should have the following ingredients:

A detailed account of the situation

Acknowledgement of the hurt or damage done

Taking responsibility for the situation

Recognition of your role in the event

Statement of regret

Asking for forgiveness

Promise that it won’t happen again

A form of restitution whenever possible

However, the apology is not just a rote list of ingredients.  There is just as much art to the apology as there is science.

Is The Offended Party/Victim Ready To Accept the Apology

One of the necessary preconditions for the apology being accepted is the ability of the victim or offended party to be heard.  One study found that later apologies were more effective in part because the victim was given an opportunity to be heard about her feelings.  See, Better Late Than Early, The Influence of Timing On Apology Effectiveness.  Although there is debate as to the timing of the apology, it is generally agreed that the apology needs to provide the plaintiff to be heard, to express their feelings and to be satisfied that the repentant person is in fact repentant.

Often, the apology is also a form of allowing the victim to be raised in stature and for the person who is apologizing to be lowered in stature.  Many times in older traditions, people bow their heads in apology.  This is also a symbolic gesture of lowering your head at the mercy of the other person.  The apology must give the victim a sense of power over the person who created the offense.  Failure to transfer that sense of power will not be a hospitable condition for the apology.

Sometimes, the apology requires the victim of the offense to understand that the offending party has suffered.  Some people require that the offending person give that pound of flesh.  Only then will the apology be accepted.

Finally, no matter what you do, there can be the apology that may never get accepted.  That is the risk of the apology.  Many people think that the mere fact that you made the apology means that the other person has to accept it.  On the contrary, the apology should reflect that you know that you have done wrong, and that you are at the mercy of the other person to accept it.  The nature of the apology means that the other person doesn’t have to accept it, but you have to give it to ever have a chance of it being accepted.

So in the end, How Did Tiger Do?

I would say that Tiger scored with high marks for his apology .  He outlined his transgressions, acknowledged the hurt to his family and supporters, owned up to the problem as his problem and not others’, demonstrated regret and as for forgiveness while demonstrating that he will change and that this will never happen again.

By Steven G. Mehta

Some of you may have seen the mediation in Wedding Crashers.  For those of you that didn’t, you can see it along with some negotiation advice in my post about Wedding Crashers Negotiation and Mediation Lessons.

I saw an article by sports writer Kevin Hench about a hypothetical mediation with Tiger Woods and his wife about their prenuptial negotiations, with Wedding Crashers as the backdrop.  I thought it was interesting, and thought you might enjoy.

The Florida Highway Patrol has issued a $164 citation to Tiger Woods for careless driving, meaning the incident will cost Tiger roughly $80,000,164.

Suddenly Vanessa Bryant’s $4 million diamond ring seems kinda chintzy.

Tiger’s “transgressions” have brought about a hasty renegotiation of his prenuptial agreement with wife Elin Nordegren that will quadruple the originally agreed upon $20 million as long as she sticks it out for another couple of years. So how did the sides arrive at this new figure, roughly halfway between Kobe’s bejeweled “my bad” and Michael Jordan’s reported $150 million settlement with ex-wife Juanita?

Channeling the opening mediation scene from Wedding Crashers, we now try to piece together how that negotiation might have gone down.

Fade in:

Tiger and his attorney sit on one side of the table in the family dining room, Elin and hers on the other. A mediator sits at the head of the table. You can cut the tension with a 1-iron.

Mediator: Okay, gang, let’s get started. I am here to mediate. Like Rocco. (Nothing.) Rocco Mediate? Anyone? No? All right, uh, I believe Mr. Woods’ attorney has an opening statement.

Tiger’s attorney: What my client does for a living, what he does better than anyone else in the world, is by its very nature a monotonous occupation. Literally working for hours upon hours to replicate the exact same swing over and over. In his field, variety is not good. Metronomic consistency is what makes him the best. We do not feel it is reasonable to then ask him to enter into that same level of monotony in his personal life.

Mediator: Really? That’s your opening move?

Ms. Nordegren’s attorney: So, for the record, Mr. Woods views life with the mother of his children as “monotonous.” Tedious, if you will. In light of this, we would ask that the original prenuptial agreement be augmented by $5 million.

Mediator: Yeah, that sounds about right. (Aside to Tiger and his attorney.) Word to the wise, monotonous and monogamous may share a Greek root, but you use them interchangeably at your own peril.

Ms. Nordegren’s attorney: Furthermore, it has come to my client’s attention that her husband’s extra-marital dalliances began while she was pregnant, a violation of their marital vows so egregious we believe it merits an additional $10 million to the original agreement.

To Read the rest of the post, please click here

In a recent post by Geoff Sharp in his blog Mediator Blah Blah he identified new research that shows that body movements can affect the way you think. In the study, the researchers were asking participants to figure a way to tie two pieces of string together.  The researchers theorized that the different body movements will help the brain to activate problem solving mechanisms.  They concluded that having people swing their arms back and forth versus simply stretching the arms would increase the likelihood that the participants would come to a resolution of the problem (which required swinging of the string).  They explained that “By making you swing your arms in a particular way, we’re activating a part of your brain that deals with swinging motions,” Lleras said. “That sort of activity in your brain then unconsciously leads you to think about that type of motion when you’re trying to solve the problem.”

This research reiterates my thought process tha physicality is related to mental processes.

For example, I often will ask the parties or their counsel to take a walk with me when we reach an impasse.  Anecodotally, I have found that by getting the participanets out of their chair, they are more receptive to resolution than when they are seated.

Sometimes in the middle of the mediation, I will get the participants or their lawyers to meet together on a procedural issue to try and create a connection between them.  Perhaps the physicality of the meeting and working together helps.

In other cases, I will offer that the parties can play various games that are in my conference room such as darts, golf, sand garden maintenance, and others.  All of these things are done to help them get their mind away from conflict and towards more peaceful pursuits.

Apparently my anecodotal experience has been confirmed by the research.  Maybe I should ask the parties to dance to a romantic melody next time?

Steve’s Book

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