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By Steven G. Mehta

In every mediation, one of the first questions that arises is not what is the bottom line or what do we need to do to settle the case.  Instead, one of the first questions asked by attorneys in mediation is “where is the coffee?”  Well recent research has shown that caffeine and sugar in combination can improve the efficiency of brain activity.

According to the Josep M. Serra Grabulosa, one of the main researchers, “our main finding is that the combination of the two substances improves cognitive performance in terms of sustained attention and working memory by increasing the efficiency of the areas of the brain responsible for these two functions.”

I feel that innately I must have always have known this concept because I have from day one of mediation provided plenty of coffee and sugary snacks at my mediations.  Indeed, I am a firm believer in making sure that food is always available at mediation.

Food can also help on several other levels.  First, food can be for some a comfort.  When dealing with tough issues, sugary, pleasant, meaningless treats can provide the comfort to the participants.  Anecdotally, I find that in tough mediations where there are a lot of difficult issues, the snacks usually go faster than in easier less complex mediations.

Second, the snacks can help to avoid low sugar mania – when people make bad decisions because they are hungry or low on energy.

Finally, some studies have shown that people are more willing to listen to your ideas or accept a sales pitch after they have eaten.  I have dedicated a chapter to this issue in my book, 112 Ways to Succeed In Any Negotiation or Mediation.

So next time you see that coffee and donut in a mediation, you know that you are only helping your cognitive skills by taking them.

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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.

Steve’s Book

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