From time to time, I interview professionals in the conflict resolution world.  I was fortunate to catch up with Bryan J. Hanson, the Assistant Director of the Werner Institute for Negotiation and Dispute Resolution at Creighton University.  The Werner Institute has established a fascinating online program for a Master’s of Science in Negotiation and Dispute Resolution.  Here are Bryan’s answers to my questions.

          1. Your online program offers diverse teaching methods such as distance learning, two 5-day residency programs at Creighton with hands-on role plays, simulations and group exercises, guided research projects and a practicum.  What skills do you hope students will learn and how does the design of the program support and enhance their learning experience?

Our online program provides an innovative curriculum that heavily relies on virtual platforms to replicate the dialogue and activities that take place in a classroom environment. For example, students engage in weekly discussion forums, participate in group projects via online collaboration tools, and can participate in live discussions via web-conferencing platforms. (Here’s our website.) The online program also runs on a cohort model with a predetermined flow to the curriculum. Students will start in the foundations of conflict courses and proceed in a linear manner until they complete their practicum experience as the capstone to the program. We also have a residential degree program.  You can find a list of our campus-based courses here.  

          2. You have a stellar faculty.  How much students will be able to interact with them?

Our department is small, yet provides access to some very experienced and well -connected faculty members. We provide great value to the ability for our students to feel well connected with the entire staff and faculty at the Werner Institute. When in Omaha, our doors are always open, and when students are unable to meet in Omaha, we are available via phone, email and Skype.

Our online courses allow for constant engagement with our faculty. Dialogue that typically takes place in a classroom is replicated by weekly discussion forums that are led off by an initial line of inquiry provided by the faculty member. All students must participate to receive credit for the course and the faculty member has the opportunity to connect with each and every student this way.

Our online program also entails two 5-day residencies that bring students to Omaha to meet our faculty and engage in skill-building activities, practice negotiation, practice mediation skills, attend live lectures, and participate in networking opportunities that will increase the students’ ability for success once they enter the field.

          3. The program offers some subspecialties--what are they and how can they be useful in the real world?

We offer the opportunity to diversify your education via four different specializations. They are

• Organizational Conflict Management: In today’s competitive environment, organizations increasingly must cope with complexities, uncertainties, and conflict. Students will learn techniques and approaches for organizational teambuilding, conflict management, and process facilitation and consulting.

• Collaboration and Conflict Resolution in Health Care: Conflicts in health care occur on a daily basis, many of which involve poor clinical outcomes that may result in lawsuits, licensure disputes, credentialing and employment claims, and more simply, a general breakdown in trust of the healthcare system as a whole. With a focus on practical application of process tools and systems design strategies, students will learn effective techniques that can be integrated into clinical settings and expand options for managing legal and ethical issues that arise within healthcare organizations.

• Collaborative Practice and Conflict Resolution in Education: In areas from special needs to student services, and administration to campus life, conflict is an ever growing part of the landscape. Students will learn how to collaborate with colleagues, students, parents, and community members to assist and develop strategies to accommodate diverse learners so that they can succeed and fulfill their potential.   

• International Negotiation and Conflict Resolution: Disputes increasingly occur with an international dimension, including conflicts involving states, corporations, peoples, and political factions. With applications from a variety of disciplinary perspectives including international law, business, anthropology, and political science, students will learn conflict resolution techniques in the context of globalization with a focus on the implications of growing interconnectedness as both a source and solution for disputes.

          4. What kind of career can an M.S. in Negotiation and Dispute Resolution launch?  Where can students use the expertise they gain from this program?

The skills and concepts learned can lead to an exciting career as a practitioner in the field as a mediator, facilitator, trainer, or systems design consultant. A graduate will also be prepared to work in training and development.

One vitally important aspect of our interdisciplinary degree is that the skills and concepts learned in this program will lead our graduates down a path for success in any leadership position within an industry that aligns well with their interests and previous experiences. The graduates will be able to leverage their increased leadership skills, decision-making abilities, team development insights and understanding of conflict dynamics to succeed as program directors, business executives, and leaders of many non-profit and for-profit organizations.

 

As a mediator, I have spent a great deal of time training, reading and thinking about how best to listen to the parties.  I spend a lot of time in mediations listening to the parties.  I want the quality of my listening to be respectful, authentic and empathetic.  I want to make a truly human connection.

It occurred to me to remind myself to bring that same intention to listening to my law clients. 

Fortunately, Mark Goulston, M.D., a psychiatrist, business consultant and coach, has outlined his secrets of success in Just Listen.   Essentially, Dr. Goulston’s premise can be summed up like this:

                  “The more your “get” where someone is
                  coming from (and care where they are
                  coming from) the more likely you’ll be
                  able to take them where you want them
                  to go.”

One of the impediments to deeply listening is our natural inclination to interrupt with a comment or with an analogy from our own experience.  Dr. Goulston recommends reigning in that inclination, and instead, asking the speaker to continue speaking.  He encourages them with three types of “interventions”:

1. “Tell me more.”
2. “Hmmm,” and,
3. “Really?”

If you use these techniques with your clients, I think you’ll find that they will appreciate you all the more.   Everyone is comforted by feeling heard and respected.  (Thus, the cinnamon toast:  comfort food.)  You’ll have a much stronger connection.  A by-product is, having felt heard, they are more likely to listen to you.

All new techniques require practice.  Choosing a loved one to practice this on could be a true win-win.

Malhotra and Bazerman, in Negotiation Genius, have some suggestions for dealing with anger from the other side in a negotiation.

When the other side is angry, and you can’t understand why, Ask.  For instance, “It sounds like you’re angry.  I’m not sure I get why.  What’s going through your mind?”

Their response allows you to figure out whether they are angry because they are misinformed or feel disrespected or simply misunderstand your view of the situation.  Once you know where the other side is coming from, your solution will be clearer.

Also, by allowing them to vent, and letting them know they’ve been heard, you buy good will and set the stage for the rule of reciprocity to work for you.

The next step is to sidestep the emotion.  The critical thing to remember is that it’s not aimed at you.  Don’t allow yourself to be the target.  Instead, look at their position from their perspective.  Would you have acted or reacted in the same way?

Malhotra and Bazerman say:

“Anger prevents people from staying focused on the substantive issues about which they care deeply.  Your task is to help the angry negotiator shift attention away from those elements that fueled his anger and toward those elements that would fulfill his interests.”

A good way to react to their emotion is to ask questions that ask them to think about the future.  “What would you like to see happen now?  What would you rather be doing?  What would help us put this behind us?”  Etc.

What all of these prescriptions do is give you something constructive to do, rather than just react by getting angry in return.

 

In preparing for mediations, really good negotiators try to set the frame of the negotiation by placing the issues in a context which furthers their negotiation strategy. 

Once the negotiation begins, somewhere along the way, a party will get stuck, which sets up an impasse.  The real art in negotiation comes in the re-framing of the other side’s negotiation point-of-view.

Re-framing is described by Jonathan Fields, in Uncertainty, as:

“[L]ooking at the facts, taking yourself out of the middle, and asking how you can view [the facts] in a different light, one that empowers you rather than shuts you down.”

Fields is talking about how you can create a new story about something that has happened to you that allows you to reframe it, so as to empower you, rather than paralyze you.

I’d like to suggest that you can use re-framing to influence the other side to create a new story that they tell themselves.  This requires you to do what all negotiation experts recommend, but lawyers sometimes fail to do:  consider the other side’s needs and interests.  The reason is obvious:  if you know their needs and interests, you can craft a settlement that meets some of theirs and some of yours.  If you don’t know their needs and interests, you end up guessing what they want.  Sometimes you’ll be right, but wouldn’t you rather be better informed when making counter offers?

You can re-frame their obstacles into challenges, your small moves into “at least they moved,” their frustration into curiosity, and their negativity into useful information.  This gives the other side a different frame to look through:  challenges, reciprocal negotiation moves, curiosity and useful information.  It helps them to re-write the story in their head, making it more positive and therefore more likely to move them through impasse and into further negotiation.

The idea is to empower the other side, rather than shutting them down.  Unfortunately, as lawyers we tend to want to prove we’re right by arguing (which we are trained to do), rather than by taking a larger view and letting the other side think they’re right.  As a wise trial lawyer recently said, once we’re negotiating, we need to move from warrior mode to collaborative mode.

Social psychologists point to mounds of research to prove that likeability is a major component of persuasion (e.g., Cialdini, Influence:The Psychology of Persuasion).  Management professors invoke research to show that civility is important to closing the deal (e.g., Conger, Winning ‘Em Over).  Legal scholars cite multiple studies to prove that building rapport is the most important initial phase of a negotiation (e.g., Craver, Effective Legal Negotiation and Settlement). 

If you think about it, even our grandmothers knew this:  “You get more with honey than with vinegar.”

First impressions count and every negotiation begins there.  Your initial tone sets the stage.  If you are positive, respectful, and professional, you start out ahead.  If you or your mediator prefer not to start with a joint session, make sure you introduce yourself to everyone on the other side.  Welcome them.  Thank them for coming.  Shake hands and make small talk. 

If you are negotiating face-to-face, think of small talk as an integral part of the negotiation.  It’s never wasted.  The best negotiator I know can spend an hour on small talk before he gets down to business.  By the end of that time, the other side sees him as a human being, not as “the enemy.”  He gets fabulous results.

Here’s how Stuart Diamond, negotiation professor at The Wharton School at the University of Pennsylvania, and author of Getting More, characterizes it:  “Small talk is almost always big talk.”

If this notion of the power of small talk is foreign to you, or if you have never appreciated its value, take some time to prepare for this “phase” of the negotiation.  Think about topics that will bring you and the other side together, instead of figuring out how to keep yourselves apart.  You will be laying the groundwork for a successful negotiation.

I am fortunate to co-mediate divorces, parenting plans and parenting disputes with John Duda, M.F.T., a Burlingame and Palo Alto marriage and couples therapist.  John is a well-respected therapist on the peninsula south of San Francisco.  He is a compassionate and wonderfully collaborative conflict resolution professional.

Having two mediators listen to couples, reflect back their viewpoints, surface their underlying interests and empathize with their stories can be quite helpful to couples in conflict

Here are some advantages we see to mediation of divorce and parenting conflicts:

Confidentiality.  Mediation sessions are confidential.

Control.  The parties retain control of the process.  The outcome is not handed over to a stranger (the judge).

Realism.  The parties can work out terms of an agreement that can be realistically met.

Savings.  The parties will save time and legal fees.

Convenience.  The parties schedule mediation sessions at mutually agreeable times.

Less acrimony.  Mediation is more cooperative and collaborative.

It works!  Mediation works because the parties themselves have fashioned the Marital Settlement Agreement and they therefore commit to stand by it.

Thanks, John, for the all of skill you bring to the mediation room.  It is a pleasure to work with you.

As a practicing lawyer, when I tried to explain the vagaries of jury trials to clients, I told them a story about the negotiation class I took at U.Va. law school in the 1970’s.  This was a “how-to” class in negotiation taught by Charles B. Craver, who is now at The George Washington University School of Law.

Professor Craver set up a series of negotiations: contract, personal injury, labor, etc., for us to compete in.  Regardless of the “side” we represented, points were given based on the result of your negotiated settlement as compared to the settlements your classmates achieved.  Our grades were based partially on the number of points we accumulated.  Needless to say, we were a bunch of highly competitive law students, and each one of us tried to out-negotiate our peers.

But there was a catch.  If we bargained too hard and failed to reach an agreement, we took out a die (singular of dice) and rolled it.  Each number on the die had a pre-assigned settlement value, so there were six predetermined outcomes.  Some were a little better than the last offer left on the table.  Most were worse.

That mental picture has stuck with me for more than thirty years.  If you are unable to reach an agreement with the other side that meets at least some of your client’s needs and interests, you go to trial and roll the dice.

Professor Craver’s books on negotiation are well worth the read: his most recent treatise, Effective Legal Negotiation and Settlement, and, The Intelligent Negotiator, a more accessible, non-treatise book.   His was one of my most enjoyable classes in law school. Thanks, Charlie!

Happy New Year everyone!

I’m laying down a challenge.  Why not make a New Year’s resolution to practice negotiation?  The more you negotiate, the more second nature it becomes. Practice does indeed make perfect.

I’m publishing below a couple of my prior posts on practicing negotiation to give you some ideas of where to try your skills.

As many of you know, improving negotiation skills is a top priority for me.  The more I learn about negotiation, the more helpful I think I can be to my clients in mediation—both because it gives me a better idea  of the parties’ strategies and it allows me to be a resource, if asked, to make sense of the moves made by the parties.

My New Year’s resolution is to practice negotiation whenever I can in my everyday life.  Moreover, I’m going to keep score (at least in the monetary negotiations!) of how much I save.  Results will be posted at year end.  I’m using as my model this year, Getting More by Stuart Diamond, a negotiation professor at Wharton Business School.  His is my favorite negotiation book published last year.  Pick up a copy and try it yourself.   Get out there and practice!  And let me know how it goes.

We Americans generally accept the stated price of goods and services as non-negotiable. I found this assumption to be inaccurate before the financial downturn. It is even more inaccurate now.

Think about it. Not only is your family hurting, everyone is hurting. A merchant is more likely to negotiate to make a sale than to let a sale get away. Some money is better than no money.

Recently I needed a smog inspection for my car. Many gas stations are certified for smog inspections, but the fee they charge varies from station to station. I first drove to the station nearest my house. The stated price was $69, plus $8 for the certificate. I asked the owner (in a curious voice) “How is it that a station two miles away is charging $35 for the same service?” He replied that he had better trained mechanics and that therefore his cost of labor was higher. I shrugged my shoulders and got back in my car.

I then drove directly across the street, where the stated price was $65, plus $8 for the certificate. (Hurray, I’m already ahead!) “How is it,” I asked, “that a station two miles away is charging $35 an hour for the same service?” The clerk shrugged his shoulders. I turned to leave, stopped on the doorsill, then turned back to ask, “Would you do it for $50 flat?” He checked with the owner: “Fifty plus $8 for the certificate.” Deal. When I negotiate, I like to leave the other side with a face saving gesture, so I accepted his counter. That way, he got to feel he negotiated, too.

(In the drive from one station to the other, I realized that I really didn’t want to drive two miles away and wait 90 minute in an unfamiliar coffee shop, when I could walk to and from my house and work at home while my car was being serviced.)

My bottom line. Station #2 was closer to my home. It served my interests. And I saved $19 from where I started.

Negotiation professors Charles Craver (The Intelligent Negotiator) and Linda Babcock (Ask for It) recommend practicing the art of negotiation at every opportunity.  In fact, they suggest creating opportunities to negotiate when seemingly none exist.

Here’s how I put their recommendation into action.

Over the years, I’ve been invited to a series of potluck dinners by my friend, a restauranteur.  My dilemma, of course, was always what to take to a potluck hosted by a renowned cook.  No point cooking, right?  Instead, I have relied on taking a bottle of Old Raj, a distinctive gin favored by her husband.  It is distilled with saffron.  The result is a slightly orange-ish color and a different subtle but piquant taste.  (Hey, I live in Northern California.  You’re lucky I didn’t say "oak-y with a nose of pear.")

As is too often the case, on this occasion I left the purchase of the Old Raj until the last minute.  It’s a little hard to find.  Even in San Francisco, it’s only carried by a few stores.  My office is downtown, where there are fewer retail outlets available.  In prior years, I had bought it at a discount wine store, but that store was too far away from my office to get to before the dinner.  So I went to a liquor purveyor downtown.  I was aghast at the price:  $65!

O.K., I said to myself, no time like the present.  I waited to approach the salesman until the last customer had left the cash register.  Holding the Old Raj and my credit card in hand, I said, “I can get this bother for $55 at the wine store.  Can I buy it from you, right now, for $60?”

He looked at me, paused, and said, “Yes, I think we can give you an in-store discount.”  He then rang it up for me with a 10% discount.  I did even better than I had asked for!

The end result:  I paid more than the wine store’s price, but I didn’t have time to go there.  I got what I wanted, when I wanted it, at a reduced price from the stated price.  The store got a sale versus no sale.

The secret is . . . ASKING.

We Americans tend to believe that the sticker price at a retail store is the price.  Not necessarily.  You can practice your negotiation skills every day by asking retail establishments:

Is this your cash price?

Is this your best price?

Is this your price if I buy it right now?

Try it and let me know how it goes.

I encourage parents during divorce to put their children first. This can be hard to do when you are in the middle of conflict. It reminds me of a cartoon in which a guy is standing on a sidewalk and there’s a sign above him with an arrow pointing down to where he’s standing which says: “In the Thick of It.”

When you’re “In the Thick of It,” sometimes it’s hard to think about the best interests of your children, or to see clearly what the best interests of the children are. Conflict brings hurt and anger, and maybe even fear, all emotional states in which looking out for number one can be the default position. Sometimes there’s temptation to not call on our best selves during divorce. By focusing on the best interests of your children, you can be motivated to think beyond yourself for their greater good.

Another way to think about this is to think about how your children, if they were older and/or knew all the circumstances, would react to your behavior during the divorce. Would they would be proud of you? If not, walk yourself back from the edge of disrespect or ignoble deeds. If so, you’re doing the right thing.

I taught a series of classes on Civil Negotiation and Mediation to law students at the National University of Mongolia School of Law last month. I began the active listening lesson by pointing out that while hearing is passive, listening is active. 

I asked the students to think of someone they knew who was a really good listener. I then asked them, what qualities do really good listeners have? They responded: good eye contact, welcoming (or open) body language, not interrupting and being patient. (There appeared to be no cultural differences about this skill.)

I taught them active listening skills and they practiced them in class: being present, looping back what the person had said, asking if they had understood the other person correctly, saying “Tell me more.” I then gave them homework: try these skills on a friend or family member and report back how the conversation went.

One of the students had the brilliant idea to try the opposite. She did everything she could not to listen while a friend was talking with her. She reported that her friend got very upset during the conversation and finally said in an anguished voice, “You’re not listening to me!”

It was a vivid reminder of the power of listening. All of us liked to be listened to. The deeper the listening, the more we feel heard. The more we feel heard, the better we feel: about ourselves and about the listener.

These listening skills are useful for both negotiators and mediators. For negotiators, active listening sets the stage for persuasion. For mediators, it is an integral part of connecting with the parties and surfacing underlying needs and interests.

Preparing yourself for negotiations begins with knowing the type of negotiator you are.

First, check out: “What Style of Negotiator Are You?”

If you feel that as a negotiator you are too accommodating or compromising, here’s a video you need to watch: Power Posing by Amy Cuddy, a Harvard Business School professor and Ph.D. psychologist. The video is 17 minutes long and worth every minute.

Dr. Cuddy’s research shows that we can change our brain chemistry simply by the poses we strike prior to an activity. In the study, over a span of 20 minutes, subjects affected a power pose twice, for just 2 minutes each time, or a submissive pose twice, for just 2 minutes each time. Their saliva was tested before and after the session. The saliva revealed that the power posers’ testosterone went up and their cortisol went down. Conversely, the submissive posers’ cortisol went up and their testosterone went down, in almost the exact same numbers.

You can literally change your brain. The take-away for hesitant, unsure or accommodating compromisers is that the way you sit prior to the negotiation can have an effect on your hormones, which can have an effect on how capable a negotiator you are.

If you are a reluctant or unsure-footed negotiator, you might also decide to Role-Play for Your Next Negotiation.

And, as always, Practice, Practice, Practice.

(Thanks to Tammy Lenski for the link to Dr. Cuddy's video.)

                          
Multiple studies have shown that lawyers (and parties) are overly-confident that their side will prevail at trial. This belief tends to foster hard bargaining (which can be successful, but can also lead to impasse).  The trick, obviously, in a case you want to settle, is not to bargain too hard. One such study asked negotiators on each side of a case how likely they thought their side would prevail at trial. Each side said 64%. This, of course, is a mathematical impossibility!

Harvard Business School professors Malhotra and Bazerman, inNegotiation Genius, write:

“Negotiators not only see their future prospects as better than they actually are, they also see themselves as better than a realistic assessment would suggest.”

They note that positive illusions work for quarterbacks and salespeople because they are implementing decisions. Negotiators, on the other hand, are making decisions, both before and during the negotiation.

To balance the psychological need to see ourselves (and our negotiation strategies) in a positive light, Malhotra and Bazerman suggest taking an outsider to the negotiation, to act as a more realistic interpreter of the negotiation moves and likely outcomes, or, to ask ourselves, if we were outsiders looking at the negotiation, how would we perceive it?

If you are knowingly taking a hard negotiating position for a strategic purpose, that’s one thing; unwittingly over-selling your position to yourself and your client, that’s a situation to avoid.

I just got off the phone with a party interested in mediation. He asked me to tell him something about the process. 

I co-mediate divorces with John Duda, M.F.T., a family and couples therapist who practices on the peninsula south of San Francisco. John and I appreciate the collaborative aspect of our mediation practice. Our clients tell us they appreciate the male-female, therapist-lawyer perspectives we bring.

Divorce mediation sessions usually center on the main decisions which couples need to make. These decisions include: 

Division of Assets and Liabilities:

+Residences: whether the house will be sold to a third party or whether one spouse can afford to buy out the other and remain in the house or some other arrangement that makes sense to the parties;

+Stuff: how the cars and household furnishings and stuff will be divided up;

+Businesses: how businesses will be evaluated and who will buy whom out;

+Liabilities: what debts are owed and how they will be apportioned;

+Budgeting: what each spouse’s expenses going forward are likely to be;

Spousal Support: 

+Whether it’s necessary or wanted, and if so, how much it will be; and,

Child Support:

+Who will pay and how much; what it can include (health insurance, camps, college, etc.).

Parenting Plans:

+How to work out a plan that makes sense for the children, how the kids will split their time, what the transitions from one parent to the other will look like, etc.;

These are big decisions. As mediators we assist couples in coming to understand what their needs are and we help facilitate these forward-looking conversations.

Because these conversations can be hard, we usually schedule a series of two-hour sessions.  In each session we work on one of the areas above.

When all of these areas have been discussed and agreements have been made, we draw up a Marital Settlement Agreement and assist the parties in obtaining their divorce decree.

I’m a fan of Bill Eddy’s. Bill is a clinical social worker who became a lawyer and then a mediator. He has made a study of working with high conflict personalities. He founded the High Conflict Institute, which is also on Facebook, here. You can join his discussion group, High Conflict Institute, on LinkedIn. I highly recommend his book, High Conflict People in Legal Disputes.

Bill outlines four personality types: borderline personalities, narcissists, antisocial personalities and histrionic personalities. Common to each of these personalities is that they see conflicts or problems as external to themselves. When a conflict arises, they can’t see their own part in it, which makes their involvement in solving it very difficult.

As lawyers, we are not well-qualified to diagnose personality disorders, and I caution against doing so with any certainty. But, from time to time, we all have run into those negotiators who are obstinate and whose behavior we just can’t figure out, because they seem so illogical and overly contentious. If you are negotiating with someone and getting nowhere, you might want to follow some of Bill’s advice:

• Resist the urge to get angry back

• Don’t over-react to mood swings

• Stay unhooked from the party’s (lawyer’s) intensity

• Listen non-defensively

• Don’t blame the party (lawyer) for faulty thinking or criticize too intensely

• Validate the person rather than criticizing the behavior

• Focus on what to do next—the next step

Try some of these strategies. Let me know if they work for you.

Over the years, I’ve given and received lots of advice for how to act during a divorce mediation. Put simply, it can be summed up in two words: “Make nice.” (Thus, the olive branch, above.)

“Make nice” because your children will be better off for it.

“Make nice” because the alternative to divorce mediation is an expensive and nasty court fight.

“Make nice” because in taking the high road, you will feel better about yourself.

“Make nice” because it creates good karma.

“Make nice” because it makes your life easier.

“Make nice” because you will be happier.

“Make nice” because this is not a struggle to the death, it’s a transition to a new and happier life.

“Make nice” because it’s a true reflection of your authentic self.

“Make nice” because it will be reciprocated….eventually…if you live long enough.

“Make nice” because you want your children to be proud of you.

As parents, we are always modeling good behavior for our children. Making nice is a great opportunity to teach your kids that conflict and civility are not mutually exclusive.

(Revised from an earlier post I wrote for Real Divorce Mediation.)

I am just back from a two-week post as a Visiting Professor of Mediation and Negotiation at the National University of Mongolia School of Law. I found Mongolian law students to be both engaged and engaging. They were thoughtful, they asked good questions and they seemed interested in the subject matter.

Mediation has a very small toehold in Mongolia at the moment, but a bill has been introduced in the Parliament to include mediation as a dispute resolution alternative in Mongolian civil courts. I therefore congratulated my students for being on the cutting edge of ADR in their country!

Mongolia, which lies between China and Russia (Siberia), is a beautiful country with a sub-arctic climate. (It snowed while I was there in September.) It turns out, sitting under its permafrost are vast natural resources. For instance, the world’s larger copper and gold mine is being built in the Gobi desert. It also has large deposits of molybdenum, coal, uranium and other minerals and natural resources.

You are sure to be hearing more about Mongolia in the next several years. Its economic growth rate through the first eight months of this year was 17%. Outstanding, compared to the rest of the world. I can attest that its next generation of leaders will be up to the task of bringing Mongolia into the 21st Century.

Some of my students are in the picture above, as well as my host, the Chair of the International Law Department, Professor Tumenjargal Mendsaikhan.

One last word on Sway, the Brafman brothers’ book on irrational forces that move us.

The Brafmans identify loss aversion as an irrational force. Simply put, we will do almost anything to avert a loss. The word itself is emotionally charged. The Brafmans point out, “losses loom larger than gains.” Also, the more meaningful a loss is, the more loss averse we become. This is why new stock market investors tend to sell when the market goes down. They start playing not to lose.

How does loss aversion interact with commitment to sway us into irrational behavior?

The Brafmans recount the experience of Professor Max Bazerman at theHarvard Business School. Every year in his negotiation classes, Bazerman auctions off a $20 bill to his students. The auction’s rules are simple: The winner pays the amount of the bid and “wins” the $20. The loser pays the amount of the losing bid. 

In his auction, generally, most students drop out at about $16 or $17. They see a bargain if they win, but if they come in second, they’re willing to pay a nominal amount. There are always a couple of students, however, who are swayed by commitment—they continue on the path they started , they don’t want to deviate from it, and they become loss averse: to drop out would mean that they have to pay their last bid. The bidding always continues after $20 is bid, the point where the winner will pay more to win the auction than the winning prize is worth. The leading bidder keeps bidding, held in the thrall of the sway of commitment. The subsequent bidder raises the bid because, as the Brafmans point out, losing is a “deeply unattractive option.” Therefore the option of continuing to bid is relatively attractive.

Over the many years Bazerman has conducted this auction, what do you think the highest winning bid for the $20 bill has been? $30? $50? $100? 

Higher. 

I’ll reveal the record high bid to the first person who posts a comment.

The Brafman brothers’ book, Sway, is relevant to negotiation and mediation in several ways. Here is one. 

Diagnosis bias and value attribution are irrational forces at work under the level of our consciousness. Diagnosis bias is when we label a person or a situation and then ignore any evidence contrary to our initial diagnosis. Value attribution is when we assign a person or a thing certain qualities (e.g., case value or likelihood of prevailing at trial), based on our initial perceived value; then we stick to it even in the face of objective evidence to the contrary. Put the two together, and they are even more likely to sway us. 

Business School professors Barry Staw and Ha Hoang analyzed the performance of NBA players for five years after they were drafted. They looked at the usual metrics: scoring percentage, field goal percentages, free throw percentages, assists, blocked shots and steals. Those players with the best stats got the most playing time, right? As it turns out, they did not. This baffled the researchers until they correlated the players’ playing time not with performance, but with the order in which they were selected in the draft. They discovered that those players drafted #1 had more playing time than players drafted #2, who had more playing time than players drafted #3, etc. In other words, for five years after they were drafted (five years was the length of time of the study), the best predictor of playing time was draft selection order. What’s more: the coaches weren’t aware they were giving players minutes based on draft selection order, not performance. That is how compelling these irrational sways are.

How does this apply to negotiation? You can imagine an impasse where each side believes that its initial case evaluation was correct, regardless of new facts, inferences or arguments presented at the mediation. 

If you want to settle a case for rational reasons, here are some ways to counteract the irrational you. To counterbalance the diagnosis bias, be mindful, pay attention, and observe things for what they are. To offset the value attribution sway, be open-minded, keep your evaluations tentative, and make the effort to consider the case from different angles. There is usually more than one way to interpret the facts. Then, give yourself permission to be flexible in response to changed circumstances.