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Touch is a powerful force in any social interaction.  There is much research to demonstrate the beneficial effect of touch.  For example, several studies have found that touch can help bond, increase tips, and develop a connection between others.  However, recent research has demonstrated that in a competitive situation, touch can be considered negative and may be considered as a way of exerting dominance.

Take for example in the recent election cycle.  After Mitt Romney’s son made the comment about wanting to take a swing at Obama, Romney’s son then tried to exert dominance in the third debate by patting President Obama on the back.  President Obama then responded by touching Romney’s son at the end on the back.  Politicians are very astute in their knowledge of touch and constantly jockey to get the last “touch.”

Recently, researchers have proven this exact point. Jeroen Camps and his colleagues had 74 student participants perform a maze challenge in a race against a partner. The race was a competition.  In some of the experiment, the partner patted the losing subject on the shoulder three times, smiled and wished them good luck on the next one.  The control group didn’t have the touching of the shoulder.  Next the subjects entered into a game that required cooperation — the Dictator Game.

The revealing finding was that participants who’d been patted on the shoulder shared…[less] with their partner, suggesting that touch can backfire when it’s performed in a competitive context, perhaps because it’s interpreted as a gesture of dominance. Interestingly, there was no link between participants’ awareness of whether they’d been touched and their sharing behaviour; participants who remembered the touch rated it as neutral; and the partner wasn’t rated as more unpleasant in the touch condition. All of which suggests the adverse effect of touch on later cooperation was probably non-conscious.

A second study was similar but this time participants and their partner…either competed against each other on a puzzle or they cooperated. Again, afterwards, the partner wished them luck, smiled, and either did or didn’t pat them on the shoulder at the end, before they both moved to another room to play the dictator game. The results were clear – in a competitive context, touched participants subsequently shared fewer movie-prize credits with their partner, compared with those participants who weren’t touched. By contrast, in the cooperative context, touched participants went on to be more generous with their partner, as compared with participants who weren’t touched. (Camps, J., Tuteleers, C., Stouten, J., and Nelissen, J. (2012). A situational touch: How touch affects people’s decision behaviour. Social Influence, 1-14 DOI:10.1080/15534510.2012.719479; BPS Digest)

“Despite what some people might think, touching someone else may thus not always have desirable social consequences,” the researchers said. “A simple tap on the shoulder, even with the best intent, will do nothing but harm when used in the wrong place at the wrong time.”

The ramifications for touch can be significant in negotiations and mediation.  You have to be careful to think about whether you are in a competitive negotiation or cooperative process.  Many negotiations in the litigation context can be extremely competitive and win-lose zero sum game.  On the other hand, if you are negotiating a joint venture in a cooperative setting or assisting as a mediator, touch might be beneficial.  The importance of this research is that you must be careful to analyze the situation before first engaging in touch.  Then consider what the effect might be on the other and how they might interpret that touch.

By Steven G. Mehta

Many people are shocked and amazed when they find out that the juries are susceptible to lies of unscrupulous experts or witnesses.  They often state with incredulity that the truth should come out in trial.  Unfortunately, however, the truth doesn’t always come out.  Recently, a study from Australia helped to give a better understanding why people — as voters in an election or voters on a jury — are susceptible to lies.  The simple truth:  Inherent Laziness.

“A study led by Stephan Lewandowsky of the University of Western Australia explains part of what may happen. The researchers found that ‘Weighing the plausibility and the source of a message is cognitively more difficult than simply accepting that the message is true — it requires additional motivational and cognitiveresources.’

If the subject isn’t very important to you or you have other things on your mind, misinformation is more likely to take hold, according to the researchers. They point out that rejecting false information requires more cognitive effort than just taking it in. That is, weighing how plausible a message is, or assessing the reliability of its source, is more difficult, cognitively, than simply accepting that the message is true. In short, it takes more mental work. And if the topic isn’t very important to you or you have other things on your mind, the misinformation is more likely to take hold.”  (Pyschology Today, Why You’re Likely to Believe Political Lies )

When a person does take the time and effort to question the lie, they only take limited mental resources to do so.  They ask questions such as does this fit within my understanding of the world?  Do others believe it?  Is the source reliable?  So in essence, they filter the information even when they are questioning it.  As such, in order for the truth to come out, it must first overcome the mental laziness, and then must find its way through limited mental filters.

The problem with that filtration system is that only information that is consistent with your own beliefs will come through.  So on many occassions, the filter creates a self fulfilling prophecy that the false information will be believed.  In other words a lie is given, filtered, and then believed, which then reinforces your position or belief about issues related to the lie.

Moreover, when someone tries to demonstrate factually that the developed viewpoint is wrong, the entrenched parties often become even further entrenched citing the inaccuracy of the data.  For example, “The GOP had emphasized their conviction that unemployment would remain above 8 percent — and benefit Romney’s campaign. However, following the report that unemployment dropped to 7.8 percent during September, several Republican spokesmen immediately claimed that the figures had been falsified. And despite factual corroboration that the numbers were accurately determined, some doubled-down on their allegation that a conspiracy to cook the numbers must have occurred. ” (pyschology today)

The consequences of this misinformation are dramatic for mediation and litigation.  First, this demonstrates why people might believe the statements of experts.  At first, the information seems to be plausible; second, it fits into the system of beliefs that the juror believes, and thus becomes even more plausible.  Finally, in order for a person to really break down the lie, that juror must really care.  Many jurors do care; but certainly others can’t be bothered.  They don’t care enough to break down the intricate lie.  Thus they decide to accept it.  At least this way, they can go home earlier.

Second, in mediation the problem persists with the parties.  Many times, regardless of what facts you might present to one side or the other, they simply won’t believe the facts.  Instead,  you must work to change their view within their belief system.  In other words, you must find something that they believe and apply it to convince them that the position that they have taken is contrary to their beliefs.   In order to do this you must understand the specific advocacy position as it relates to the negotiation, and then look to their interests and beliefs.

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.”

Steve’s Book

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