Musicians and students learning negotiation techniques by trained jazz musicians at Pepperdine Law School.
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Musicians and students learning negotiation techniques by trained jazz musicians at Pepperdine Law School.
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At TED 2009, the Technology Entertainment Design conference, Bill Gates delivered a speech on the scourge of malaria, an important global problem the Bill and Melinda Gates Foundation has been addressing since Gates retired from day-to-day operations at Microsoft.
During Gates’ presentation, he proceeded to release a handful of mosquitoes into the air, joking that there was no reason that only poor people should get malaria. These mosquitoes obviously didn’t carry the disease, though the surprise move drew more than a few nervous laughs from the 1,300 in attendance.
There is little doubt that anyone in the room will forget the point of Gates’ presentation after at least briefly feeling the vulnerability of those living in countries where mosquitos do carry the disease.
Consider making your next presentation even more memorable by finding ways to get the attention of the audience and communicating the point of the presentation at a visceral level. The audience is bound to leave with a lasting impression and your message is more likely to have a viral effect.
In the recent edition of the Journal of Dispute Resolution, Magistrate Judge Wayne Brazil writes about how “spiritual fatigue” can affect seasoned mediators. His thesis is that staying centered emotionally and behaviorally in core purposes and principles of mediation can lower the level of psychic strain that this work can impose on mediators and can serve as a significant source of renewable professional energy.
He identifies the following areas to consider:
1. Denial - one source of fatigue is the fear of admitting that it exists, since we are in a position of being a “force” for good;
2. Repetition of Process - Our energy might no longer be stimulated by the challenges of mastering new mediator skills as the novelty has worn off and boredom sets in;
3. The Psychic Strain of Being at the Center of the Vortex - the relentless and intense psychic demands that remaining at the center o the mediation process can impose on us. He suggests that we stop seeing ourselves at the center;
4. Infection by the Parties’ Fatigue - our fatigue might by a product of the fatigue felt by the parties, particularly repeat players to the process;
5. Exaggerated Expectations of the Parties to the Process - we may be artificially sapping our own energy by expecting too much of the parties and lawyers, as well as the process;
6. Exaggerated Expectations of Ourselves - we sometimes exaggerate our ability, our contribution, and our responsibility;
7. Sources of Sustaining Energy - Being transparent about ourselves and the process, actively soliciting the participation of the parties and lawyers in decisions about how to structure their cases, and what steps to take at important junctures in the proceedings;
8. Accessing the Energy that is in the Values and Purposes that Animate our Commitment to this Work - we need to reconnect with three animating truths about our work: (1) the process we use and the spirit of the work is important; (2) the vast majority of the people we serve respect and are grateful for what we do and believe they have benefitted from the process we have hosted; (3) our work does in fact teach listening, acknowledging and engaging communication and fostering connections.
This is the technique suggested by John DeGroote of Settlement Perspectives which is used as a quick, confidential method to determine proximity of settlement positions. While the technique is situational and can vary with each case, generally speaking each party submits its best offer in confidence to the neutral third party (”the confidential listener”), who informs the parties whether their proposals are within a negotiable range. Generally, and absent specific authorization from the proposer, the confidential listener does not relay one side’s confidential proposal to the other.
The parties will normally agree in advance that if the sums overlap, with the plaintiff citing the lower figure, they will settle at a level that splits the difference. If the cited figures are within a specified range of each other, e.g. ten percent, the parties may direct the neutral to so inform them and help them narrow the gap. If the figures are not within the set range, the parties may repeat the process, or the confidential listener can make a mediator’s proposal.
Here is a form agreement offered by the CPR International Institute for Conflict Prevention and Resolution:
AGREEMENT made , 2009
between XXX of XXX
represented by XXX and of
epresented by XXX.
A dispute has arisen between the parties. The parties have agreed to attempt to resolve their dispute through the private process described in this agreement.
Accordingly, the parties agree as follows:
1. THE NEUTRAL LISTENING PROCESS
1.1. Selection. The Neutral Listener shall be _______________ who has agreed to serve and whose compensation has been agreed upon by the parties and the Neutral Listener.
1.2. Submission of Settlement Proposals.
1.3. Role of the Neutral Listener. The Neutral Listener will promptly review the settlement proposals submitted by each party and thereupon will inform the parties whether their settlement offers are:
substantially similar or overlap, or
within a range which the Neutral Listener considers negotiable.
2.1. Confidentiality of Settlement Proposals. Unless the parties otherwise agree, the Neutral Listener shall not disclose the settlement positions revealed by the parties, nor will the Neutral Listener reveal the basis for his/her determination that settlement negotiations should or should not commence.
2.2. Confidentiality of Settlement Process. The Neutral Listening process is a compromise negotiation for purposes of the Federal Rules of Evidence and state rules of evidence. The substance of this process shall be kept confidential by all parties and the Neutral Listener. The Neutral Listener shall be disqualified as a witness, consultant or expert in any pending or future action relating to the subject matter of the settlement effort, including those between persons not parties to the settlement effort.
IN WITNESS WHEREOF, the parties by their attorneys have executed this agreement as of the date first above written.
This is the ultimate improvisation thanks to Bill Moyers Journal and his recent interview with Mark Johnson, the brilliant producer of the documentary “Playing For Change.” The film took 8 years to create and follows street musicians around the world as they collaborate on various songs, including the Sam Cooke classic “Stand By Me.”
Check out Jeff’s latest article in The Plaintiff’s Magazine entitled, Setting the Stage of Negotiation.
This story is for you if:
• You show up to mediation and have never discussed settlement numbers with the defense;
• The defense has not revealed to you their assessment of liability and damages; or
• You are often disappointed at the defendant’s inability to settle in a reasonable range at the first mediation.
With the Presidential election less than a week away, neuroscientists are contemplating why there still exists such a plentitude of undecided voters. Sam Wang, an associate professor of neuroscience at Princeton, and co-author of Welcome to Your Brain: Why You Lose Your Car Keys but Never Forget How to Drive and Other Puzzles of Everyday Life explains, “decision-making is thought to involve two parts, gathering evidence and committing to a choice. In tasks as simple as deciding whether a shifting pattern of dots is moving to the left or to the right, brain activity in the parietal cortex rises as evidence is gathered, eventually reaching a tipping point of choice - though it is not yet known what brain regions drive the final choice.”
There’s an obvious trade-off to this kind of process between speed and accuracy. While a quick decision will let you move on to the next task at hand, a decision made after extensive “evidence gathering” could lead to a wiser and more accurate choice. Wang explains that those who are undecided are not indifferent but rather may simply take more time in their “evidence gathering,” demonstrating a willingness to trade off speed for accuracy.
In Your Brain’s Secret Ballot, an Op-Ed article in the New York Times, Wang writes,
In measurements of decision-related neural activity, after there is enough evidence to reach a person’s decision threshold, his brain can ignore further input even when it might improve accuracy. The brain goes ahead and decides, freeing up mental resources to deal with other problems.
This logic suggests that undecided voters might simply require a higher degree of confidence before they commit. Still, the person may not be aware of that internal commitment. In one study, people were asked to play a gambling game in which they could choose cards from several decks, some of which were secretly stacked against them. After losing repeatedly, most subjects began to nervously avoid the less favorable decks but were unable to say why until after much further play. People with damage to the ventromedial prefrontal cortex lack this intuition, and so they take inordinate time to make decisions in general.
Of course, undecided voters aren’t suffering from brain damage, it’s just that their brains may require an especially long amount of time to develop confidence in or awareness of a choice.
Undecided voters have another five days to finalize their evidence gathering before the clock runs out for them to commit to a candidate. Negotiators however, can continue to utilize the data from Wang’s studies long after the election is over to assess the decision making preferences of their counterpart.
In his article in The New Yorker - Late Bloomers, Malcolm Gladwell, considers the work of an economist at the University of Chicago named David Galenson and why we tend to equate genius with precocity.
In biology, the term precocial refers to species in which the young are relatively mature and mobile from the moment of birth or hatching. In the context of Gladwell’s article, he explores precocity - the manifestation of unusually early development or maturity, especially in mental aptitude - in the context of literary and artistic genius. Referencing Galenson’s book, Old Masters and Young Geniuses, Gladwell talks about the way our minds work by “entertaining the notion that there are two very different styles of creativity, the Picasso and the Cézanne.“
In Late Bloomers, Gladwell writes:
Galenson did a simple economic analysis, tabulating the prices paid at auction for paintings by Picasso and Cézanne with the ages at which they created those works. A painting done by Picasso in his mid-twenties was worth, he found, an average of four times as much as a painting done in his sixties. For Cézanne, the opposite was true. The paintings he created in his mid-sixties were valued fifteen times as highly as the paintings he created as a young man. The freshness, exuberance, and energy of youth did little for Cézanne. He was a late bloomer—and for some reason in our accounting of genius and creativity we have forgotten to make sense of the Cézannes of the world.
Galenson’s idea that creativity can be divided into these types—conceptual and experimental—has a number of important implications. For example, we sometimes think of late bloomers as late starters. They don’t realize they’re good at something until they’re fifty, so of course they achieve late in life. But that’s not quite right.
We also sometimes think of them as artists who are discovered late; the world is just slow to appreciate their gifts. In both cases, the assumption is that the prodigy and the late bloomer are fundamentally the same, and that late blooming is simply genius under conditions of market failure. What Galenson’s argument suggests is something else—that late bloomers bloom late because they simply aren’t much good until late in their careers.
There’s something comforting about knowing that youth and genius don’t necessarily go hand in hand. Who said you can’t teach an old dog new tricks…
The power of visual information while not easily quatifiable, can be utilized quite effectively at the negotiating table to shape and shift another’s perception of the matter at hand. Glenn W. Richardson, Jr. discusses the power of visual information and the relevant supporting scientific data at length in his article on visual storytelling published in the American Communication Journal. In his article, Richardson discusses several studies which have linked vivid visual information with heightened memory and recall, finding that visual scenes served to enhance the verbal story line. He goes on to explain that this results from the brain processing visual information holistically rather than deriving meaning exclusively from narrative linkages.
Consider for a moment a person you haven’t seen in a very long time. Now try to describe what that person looks like. You may find this difficult to do. Yet, there is no doubt that when you finally do see this individual again, you will be able to immediately recognize most if not all of the ways that they’ve changed since your last encounter. This is because visual information is often processed in terms of how it fits or deviates from existing patterns. Thus, just because someone cannot articulate or recall the details of a particular visual communication, such as a PowerPoint presentation or photographs embeded in a brief, does not mean that the communication was ineffective or failed in its impact.
On this note, we leave you with a slideshow of the 25 best news photographs as determined by the editors of Vanity Fair - each of which tell a very compelling story.
A sign famously hangs in Paul Newman’s Westport, Conn., office that reads, “If I had a plan I would be screwed.” Newman, who died of cancer this year at age 83, firmly believed in the benefit of “creative chaos,” welcoming the opinions of others whether in business or on the movie set.
Newman understood and appreciated that success in today’s age depends on how good we are at improvising rather than merely sticking to a script or plan. The concept of improvisation, while rooted in the arts and music, has widespread application to all disciplines including the legal and ADR field. At its heart, improvisation is a tool that can facilitate greater communication, learning and transformation, which are in and of themselves, the cornerstones of innovation and growth.
At the negotiating table, improvisation demands that parties deal with the reality they are presented in real-time rather than continually revisiting scenarios of what they believe could or should be. By limiting oneself to a scripted plan, options for solving problems are narrowed and opportunities for solutions are more likely to be missed, leading to a failed negotiation. Improvising instead of following a script or a plan, allows one the flexibility to stay nimble, operate more freely and authentically, and invite the participation and entrepreneurship that are essential to success as Newman aptly identified.