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By Steven G. Mehta

In mediation, you often find yourself going late into the night to try to make a deal.  Indeed, there have been a few times where the case finally gets resolved well past midnight. Obviously, everyone is tired; but how can that tiredness affect the decision making?

One activity that is clearly involved in mediation that can tax a person significantly is making choices.  There are several studies that show that as people make more decisions, their decisions become rushed due to fatigue of the brain.  On some occasions, they simply shut down and make no choice at all. One study, by Ned Augenblick and Scott Nicholson of Stanford, analyzed voting patterns in California. The study found that the more choices the voter was required to make, the more likely the voter was to not make a choice or to use a shortcut, like picking the first choice or voting to keep the status quo.

The researchers found that simply the number of choices before significantly affected how a voter would decide on a yes decision to change. Indeed, many of the initiatives would have passed had they been higher up on the ballot.

Another Stanford study found that people who spent a day making decisions were less inclined to do something later in the day.  They showed choice fatigue and their brains were tired of making choices.

The many decisions that have to be made during a mediation can clearly tire a person out.  Attorneys and mediators have to be very careful in watching for signs of choice fatigue.  Although there are plenty of studies that show that fatigue might affect self control, these studies actually show that fatigue may in fact prevent a choice – such as a the choice to settle – from being made.

How can we help this choice fatigue issue?  I believe that we need to obtain commitments towards resolution earlier in the day — even before negotiating has even started.  By obtaining such commitments – no matter how small, it is increases the likelihood that the person will say yes to the ultimate decision to settle.

Moreover, the client’s active decision making process to make offers helps the person in the end.  In other words, if a person has been actively participating in the negotiation – as opposed to be given the final offer at the end of the day – that person is certainly more committed to the result and the process.  By including the client in decision making, she may be more fatigued while simultaneously more committed to a resolution.

By Steven G. Mehta

I saw a fascinating post about negotiations and chocolate cake in a recent post by Andrea Schneider on the ADR Prof Blog.  I also want to thank Professor Schneider for bringing this issue to everyone’s attention.  The post addresses an article in the Wall Street Journal that studies the role of emotional responses after information overload.  And the truth is — it doesn’t take much to cause rational overload that then creates an emotional response.   Here is a brief excerpt from the Wall Street Journal Article by Jonah Lehrer

Blame It on the Brain

The latest neuroscience research suggests spreading resolutions out over time is the best approach

Willpower, like a bicep, can only exert itself so long before it gives out; it’s an extremely limited mental resource.

Given its limitations, New Year’s resolutions are exactly the wrong way to change our behavior. It makes no sense to try to quit smoking and lose weight at the same time, or to clean the apartment and give up wine in the same month. Instead, we should respect the feebleness of self-control, and spread our resolutions out over the entire year. Human routines are stubborn things, which helps explain why 88% of all resolutions end in failure, according to a 2007 survey of over 3,000 people conducted by the British psychologist Richard Wiseman. Bad habits are hard to break—and they’re impossible to break if we try to break them all at once.

Some simple tricks can help. The first step is self-awareness: The only way to fix willpower flaws is to know about them. Only then can the right mental muscles get strengthened, making it easier to succeed at our annual ritual of self-improvement.

The brain area largely responsible for willpower, the prefrontal cortex, is located just behind the forehead. While this bit of tissue has greatly expanded during human evolution, it probably hasn’t expanded enough. That’s because the prefrontal cortex has many other things to worry about besides New Year’s resolutions. For instance, scientists have discovered that this chunk of cortex is also in charge of keeping us focused, handling short-term memory and solving abstract problems. Asking it to lose weight is often asking it to do one thing too many.

In one experiment, led by Baba Shiv at Stanford University, several dozen undergraduates were divided into two groups. One group was given a two-digit number to remember, while the second group was given a seven-digit number. Then they were told to walk down the hall, where they were presented with two different snack options: a slice of chocolate cake or a bowl of fruit salad.

Here’s where the results get weird. The students with seven digits to remember were nearly twice as likely to choose the cake as students given two digits. The reason, according to Prof. Shiv, is that those extra numbers took up valuable space in the brain—they were a “cognitive load”—making it that much harder to resist a decadent dessert. In other words, willpower is so weak, and the prefrontal cortex is so overtaxed, that all it takes is five extra bits of information before the brain starts to give in to temptation.

To read the rest, please click here

Ms. Schneider’s comment was as follows:

First of all, I totally get it.  I had a very busy day yesterday with too much going on in my brain, came home to freshly baked chocolate chip cookies from my boys, and four warm fabulous cookies later realized that the diet for the day was a lost cause!

More importantly, I think this also explains why emotions bubble up so regularly in negotiations.  We might think about all of the information rationally and organize ourselves and be completely ready for the negotiation but–once we are at the table and keeping track of all of that important information (like memorizing at least 7 numbers) we are on cognitive overload–we have a hard time keeping down the “emotional” side of our brain.  And our impulses, to respond inelegantly, to assume the worst, or to yell, are much more likely to rise to the surface.  Perhaps if we show up with warm cookies for all…

One of the comments to this post by Susan Yates also provided some insight into this issue:

I heard the same story and it made me think about how many times I have told people learning to be mediators that their job is to handle the process so that the parties could handle their dispute. Here is evidence that the mediator frees up some of the “cognitive load” so the parties can make healthy decisions!

This is a very interesting discussion that addresses the value of a mediator as helping with the “cognitive load.”  The mediator can also help to prevent the emotional process from creating and additional emotional overload which apparently can happen because of the high information and stress factor.

This also helps to explain why people make these decisions that are often emotional.  For example, why do people walk away from a settlement that is only thousands apart.  This emotional connection may start to explain the automatic emotional process that kicks in when the body is under information stress or other stress.

This may also help to support the concept that people will often resort to their tried and tested methods of coping when faced with a difficult situation.  These methods may be a gut emotional reaction that may not necessarily be the right thing to do.

Steve’s Book

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