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By Steven G. Mehta

Recently I was reminded of the the old adage, “never judge a book by its cover.”  Prior to mediation, one of the parties to the mediation wrote that the case will never settle.  At that point the attorney for the party proceeded to write a compendium about why the case will never settle.

At some point after the third paragraph, I even had an inkling that the case might not settle and that my Friday afternoon might suddenly become clear.   However, after a short reverie of what I might do in the afternoon, I came back to my senses and went back to my internal mantra, “The case will settle!  They Just Don’t Know it Yet.”

During the mediation, it became surprisingly evident that the case would likely settle within a particular range.  I was pleasantly surprised at how fast it had gone.  This was party because of the fact that I had such low expectations of the outcome of the case.  In the end, it was like any other mediation that was successful.

The Moral of the Story:  Even if the parties say that the case will never settle, don’t believe it.  It may yet surprise you.  Moreover, as a party, you should be careful to put in a brief about your absolute conviction that the case won’t settle because you may create a self fulfilling prophecy.  Your words may just create  a mindset that is unbreakable.

By Steven G. Mehta

Many times a month, I will be in a mediation and an attorney will tell me that “it must be so much less stressful to be a mediator than be in the practice of law.”  Often, I respond by saying that being a neutral can be harder than being an advocate.  Well recent research has affirmed this belief.  This research shows that a neutral disposition can have a substantial toll on the body.

A study conducted by researchers from Rice University, University of Toronto, and Purdue University found that people  who must avoid the appearance of bias – such as journalists, health care professionals, social workers, lawyers, and law enforcement – suppress feelings and emotions more than other service oriented professions.

“Our study shows that emotion suppression takes a toll on people,” said Dr. Daniel Beal, assistant professor of psychology at Rice University and co-author of the study.

“It takes energy to suppress emotions, so it’s not surprising that workers who must remain neutral are often more rundown or show greater levels of burnout. The more energy you spend controlling your emotions, the less energy you have to devote to the task at hand.”

Another interesting finding was that clients who interacted with the “neutral” people gave lower ratings of quality of service and were less enthusiastic to the organization to which the employee belonged.  “When an employee is positive, it transfers to the client or customer they’re working with,” Beal said.

“Because of that good mood, the client or customer then would rate the organization better. But if an employee is maintaining a neutral demeanor, you don’t have those good feelings transferred. If an organization’s goal is to be unbiased, then that may trump any desire the organization has to be well-liked.”

According to the researchers, this study is the first of its kind to evaluate the effects of a neutral disposition.

The study confirms other studies that have found that exercising will power is mentally challenging and renders a person more susceptible to impulses.  Given that principle, mediators and neutral have to exercise a lot of self control in the mediation and arbitration process.  Unlike the advocates, they don’t have the luxury to advocate a position, and as such they use a great deal of mental energy.

I have found that after a particularly difficult mediation, I do not even have the willpower to go to the gym or to exercise – something I have promised myself to do daily.

Another interesting observation about mediation – as opposed to arbitration – is that being neutral doesn’t mean that a person cannot convey positive feelings to one side or another.  Neutrality doesn’t mean that you don’t express an opinion.  This is often a mistake made by recent mediators.  The reality is a jury or an arbitrator is supposed to be neutral, but at the end, they have to make a decision – which is theoretically no longer neutral because they are taking a side.  A mediator can be neutral and has to not take sides.  But that doesn’t mean that the mediator cannot recognize realities for both sides.  I often tell people that I look at all facts the same – I put them in the good facts category, or bad facts.  The process is neutral, the outcome can reflect reality.

Research Source:

By Steven G. Mehta

Mary Poppins used to say that a spoon full of sugar helps the medicine go down.  She was right.  Sugar can help all types of medicine go down, including the medicine for a bad temper. According to new research, a spoonful of sugar may be enough to cool a temper for a short time.

A recent study found that people who drank a lemonade sweetened with sugar acted less aggressively toward a stranger a few minutes later than did people who consumed lemonade with a sugar substitute.  According to the study’s author, Brad Bushman, co-author of the study and professor of communication and psychology at Ohio State University, this phenomenon has to do with the amount of glucose in the bloodstream and brain.

Avoiding aggressive impulses takes self control, and self control takes a lot of energy. Glucose provides that energy in the brain,” said Bushman.  “Drinking sweetened lemonade helped provide the short-term energy needed to avoid lashing out at others.”

Interestingly, over several studies, Bushman and his colleagues found that people who show signs of diabetes or trouble metabolizing sugars in their bodies show more evidence of aggression and less willingness to forgive others.  This is crucial because the number of Americans with diabetes has more than tripled (from 5.6 million to 18.1 million).

“Diabetes may not only harm yourself — it is bad for society,” Bushman said. “The healthy metabolism of glucose may contribute to a more peaceful society by providing people with a higher level of energy for self-control.”

“To our knowledge, this is the first study to find that boosting glucose levels can reduce actual aggressive behavior,” Bushman said.

“To be sure, consuming sugar should not be considered a panacea for curbing aggression. But the results do suggest that people who reportedly “snap” with aggression may need some way to boost their mental energy, so they can override their aggressive impulses.”

On a related note, two other studies in the same paper showed how problems metabolizing glucose was linked to violent crime rates. Those states with higher diabetes rates also tended to have higher rates of murder, assault, rape and robbery, even after controlling for poverty rates in each state.

“This suggests that diabetes did not predict violent crime simply because poverty contributes to both diabetes and violent crime,” said Bushman “There is a real correlation between diabetes and violence.” Another study found similar results on a worldwide scale.

A further study conducted by the same researchers found that people with higher levels of diabetic symptoms were less likely to forgive others for their transgressions.

“These studies are more evidence that diabetic symptoms may cause difficulty in how people relate to each other on a day-to-day basis,” Bushman said.

This research is similar to what I have previously reported in my article, Self Control, Radishes and Change.  It is interesting to see that this study confirms the belief people only have so much patience and self control.  The implications for mediation an negotiations are interesting.

First, many mediations will go on for many hours.  I have heard some people even say that they believe starving a person during mediation will make them more amenable to agreeing to something.  I think – and the research seems to confirm – that like a cold, you must feed patience; and apparently patience likes sugar.

Second, an afternoon snack of some sort might even help the parties to come to resolution.

As a negotiator, if you are entering long negotiations, you should make sure that you bring your own food.  I have a chapter on this issue in my book, 112 Ways to Succeed In Any Negotiation or Mediation

This study also lends support to another previous study that found that people are more willing to agree to a request to pay money to a charity after eating than before.  The glucose level is changing their perception.  The same would also hold true in mediation and negotiations.  People should be more willing to agree to a resolution after a meal.  So maybe the best time to make the deal is right after lunch or dinner.

Journal Reference:

  1. C. Nathan DeWall, Timothy Deckman, Matthew T. Gailliot, Brad J. Bushman. Sweetened blood cools hot tempers: physiological self-control and aggression.Aggressive Behavior, 2010; DOI: 10.1002/ab.20366
Ohio State University (2010, December 1). Sugary lemonade may cool a hot temper. ScienceDaily. Retrieved December 12, 2010, from­/releases/2010/11/101130161535.htm

By Steven G. Mehta

One of the fundamental things that a good negotiator and mediator can do during a mediation is to listen well.  When listening, you will often find many great cues to unraveling the reasons for why the other side has a stated position.  –Unfortunately, many litigators make numerous mistakes in failing to listen during a mediation and solely focusing on talking.

Recently I came across an article relating to listening skills in relationships and it identified the 8 ways that people fail to properly listen.  The article was called the The Eight Habits of Lousy Listeners by  MARIE HARTWELL-WALKER, ED.D.  I thought that Ms. Walker’s points are well suited for the mediation and negotiation framework.  Here are her 8 ways.

  1. Lousy listeners are attending to other things when you are speaking. This is commonplace in mediation.  Before the second side’s position or concerns are often expressed, the first side is ignoring the point and working on other things.  One comment made to me in mediation after a joint session was that the plaintiff had felt heard because the other side had put away any Blackberrys and computers and really focused on what she had to say.  On the other hand, you might hear phatic sounds coming from the party not listening.  According to Ms. Walker, “An occasional ‘uh-huh’ is supposed to cue you that, really, they are with you. They’re not — or at least not totally. Their mind is distracted. Chances are they miss important pieces of your message — even if they protest that they don’t.”
  2. Lousy listeners are planning how they will respond even while you are speaking. Many attorneys are guilty of this fault.  Many times in mediation one side or the other is jumping at the bit to make a reply.  It reminds me of trial when the attorney is hearing the answer from the witness, but is really planning the next question.  “They’re ready with a paragraph before you’ve even completed a sentence,” says Ms. Walker.
  3. Lousy listeners steal the ball.   This happens less in mediation, but it does happen.  Here, one side is about to tell a story such as how the incident affected them, and the other side or its attorney will interrupt to explain how bad it has affected their side also; or the other side may comment that it recognizes that this could be distressing, without affording the opportunity to the other side to express that feeling. Such “theft” denies the party their ability to express their feelings.  Sometimes, the party has to say it to simply get it off their chest.
  4. Lousy listeners change the subject before you are ready to do so. In mediation this happens all the time.  One side or the other doesn’t wan t to hear a particular topic and will work to change the topic.  In some sense, each side is jockeying to change the topic to something favorable.

Allowing a party their say can be time consuming – and often in mediation can take up a considerable portion of the mediation time.  But it is an important part of the process.  Without it, many parties are not ready to talk about other topics that will help resolve the case.

  1. 5.     Lousy listeners hurry you along.  “As you talk, they get restless. They might say, “Uh-huh,

Uh-huh, uh-huh” or look at their watch or scan the surroundings or fidget. You run out of interest in communicating with them because they’ve let you know that they’ve run out of patience with listening to you,” says Ms. Walker.

6.   Lousy listeners have lousy nonverbal skills. People don’t realize the amount of non-verbal communication that goes on.  According to one study, 93% of communication is non-verbal.  According to Ms. Walker “Talking to a lousy listener is like talking to a post for all the affirmation you get.”  During many mediations I have heard comments that although one party was claiming to listen, the party believed the non-verbal signals which signaled otherwise.  Make sure that your non-verbal communication matches the verbal message.

7.   Lousy listeners tend to see criticism or blame in the most innocent of discussions. Litigation is often too much about blame and too little about solutions to the problem.  Often you will see parties focusing on the blame and not on what can be done to resolve the problem.  I will often comment that as much as I would, and they would like the litigation to be over tomorrow without doing anything, it won’t happen.  There is no door number three.  There is only door number one and Two:  Settlement or Trial.  Often that helps to focus on the solution and not the blame.

8.   Lousy listeners are quick to offer advice, even when it hasn’t been asked for. Ms. Walker explains that lousy listeners “don’t take the time to listen to the whole story or to offer quiet support. Often they mean well. They really do want to help. But they don’t understand that their help isn’t always helpful; that sometimes what you want is simply to be heard and understood or given a vote of confidence that you can solve your own problems.”

Now that we have identified some of the lousy skills or the lousy listeners, how do you address these issues.  First, listen to the other person properly.  The best way to get someone to listen to you is to listen to them.

Second, don’t interrupt the other side.  Speak only when you are sure that they have finished.  Third if a person is not listening to you, identify the problem.  You might comment about whether the person is pre-occupied.

Fourth, consider taking a break and identifying the reason for a break.  Sometimes if you comment that you are not sure that the other person understands and you would like to take a small break and then resume, it can help the other person have time in which to reflect on whether they have been a good listener.

Fifth, you might ask the other person if they could explain what they understand you to mean.  This could help force them to express your feelings and you can correct them when they have not fully expressed your concerns.

According to Ms. Walker, “you might try asking for change with exquisite tact and in very small doses.”

Good listening skills can change the way a negotiation will go.  Learning what not to do is a good first start in developing those skills.

To learn more about listening skills, you might look at my book at the following

Steve’s Book

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