Welcome to our first Improvisational Negotiation podcast. This month’s interview is with actor, professor and trial lawyer, Brian Breiter.

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.

This 1936 photograph of Florence Owens Thompson, a poverty-stricken migrant mother, came to symbolize the Great Depression. By Dorothea Lange/Corbis.

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.

Yes! 50 Scientifically Proven Ways to Be Persuasive is Robert Cialdini’s latest effort at gathering research findings in behavioral psychology, social science, and related areas that can then be used to generate tips on how to be more persuasive in one’s personal and professional lives. 

Yes! is composed of fifty short chapters, a few of which are: How can you become a Jedi Master of persuasion? How can rhyme make your influence climb? and How can inconveniencing your audience increase your persuasiveness?

Each chapter begins with the description of a particular line of experimental research that demonstrates how individuals process information and make decisions. The authors then segue from the scientific data into a discussion about how the information can be used to make oneself more persuasive.

For more information about Yes! 50 Scientifically Proven Ways to Be Persuasive and to hear Cialdini’s interview on NPR, visit NPR Talk of the Nation.

The Gates, Central Park by Grahamlyth on Frickr

The Great Negotiator Award, presented annually by Harvard Law School’s Program on Negotiation has historically been awarded to figures in business and international diplomacy. This year however, the award was given to artists Christo and Jeanne-Claude, a married couple recently known for their 2005 project “The Gates” in Central Park, which featured over 7,500 bright orange structures erected along the park’s pathways.

Robert H. Mnookin, Harvard Law School professor and chair of the Program on Negotiation, as quoted in the Harvard Crimson stated, “What we look for in a great negotiator is someone who has demonstrated the capacity to overcome barriers and create solutions in a number of settings,” and “Christo and Jeanne-Claude had done this a number of times.”

Christo and Jeanne-Claude are currently working on a project entitled “Over The River”—a six-mile-long stretch of fabric panels suspended over the Arkansas River. It is expected to be completed in the summer of 2012, putting their award winning negotiation methods to the test once again.

In light of the extensive blogosphere coverage that mediation confidentiality has received in recent months, we will keep this post short and sweet.  The last year has yielded a host of decisions from across the country that has impacted the confidentiality protections afforded parties to a mediation. 

We have summarized these cases with their respective citations so that the information is available and encapsulated in one area for easy reference.

Estate of Thottam, Case No. B196933 (Cal. App. 8/13/2008).  Three siblings mediated a dispute concerning distribution of their deceased mother’s estate and trust. At the outset of the mediation, the parties all signed a mediation confidentiality agreement. During the course of the mediation, a chart was prepared that delineated how the estate would be dispursed as among the three siblings. The chart was later introduced at trial by one of the siblings as evidence of the agreement over objection of the other two siblings. The trial court found the chart inadmissible, rejecting the introducing party’s argument that any mediation confidentiality was waived pursuant to the provision in the confidentiality agreement stating that confidentiality would apply “. . . except as may be necessary to enforce any agreements resulting from the Meeting.” (Emphasis added.) The appellate panel determined that the confidentiality agreement between the siblings that all matters discussed or agreed to in mediation “(2) shall not be used in any current or future litigation between us (except as may be necessary to enforce any agreements resulting from the Meeting”) was an enforceable agreement even though made prior to any settlement being reached. The appellate court reversed the trial judge and decided that California Evidence Code §1123(c) requires neither that the express agreement in writing permitting disclosure be contained in the settlement agreement itself nor that it even be made at or after the time the settlement agreement is entered into. 

Simmons v. Ghaderi, Case No. S147848 (Cal. App. 7/21/2008).  In this medical malpractice case, the defendant, Dr. Lida Ghaderi, gave her insurer consent during mediation to settle the case for $125,000.  After the parties reached an agreement and the mediator drew up the contract, Dr. Ghaderi retracted her consent and left the mediation. The plaintiffs sought to enforce the settlement with a declaration from the mediator outlining the events as they transpired at the mediation. Dr. Ghaderi objected and claimed the mediator’s declaration was a breach of mediation confidentiality and the oral settlement should be thrown out. The California Supreme Court agreed with Dr. Ghaderi, reversed the lower court’s decision and held that the “Court of Appeal improperly relied on the doctrine of estoppel to create a judicial exception to the comprehensive statutory scheme of mediation confidentiality and that the evidence relating to the mediation proceedings should not have been admitted at trial.”

Wimsatt v. Superior Court, (6/18/2007) 152 Cal.App.4th 137.  In a legal malpractice action, the plaintiff-client claimed his attorney cut his settlement demand by more than half without his authorization. Plaintiff sought discovery of all mediation briefs, including the one prepared by his own lawyer, and e-mails sent the day before the mediation that quoted from the mediation brief to support his contention that he had not authorized the reduced demand.  The Court of Appeal issued a writ of mandate directing the trial court to prohibit disclosure of the mediation briefs, holding that mediation confidentiality protects mediation communication in the context of a legal malpractice action arising from the handling of the underlying settlement process. The Court of Appeal reversed the decision, properly relying on Foxgate Homeowners’ Assn. v. Bramalea California, Inc. (2001) 26 Cal.4th 1, Rojas v. Superior Court (2007) 33 Cal. 4th 407, Fair v. Bakhtiari (2006) 40 Cal.4th 189 , and the California Evidence Code and held firm to the position that there are no exceptions to strict mediation confidentiality, even where the result seems unjust. The Court of Appeal reaffirmed the importance of confidentiality to the mediation process and emphasized the Supreme Court’s repeated refusal to “judicially create exceptions to the statutory scheme, even in situations where justice seems to call for a different result.”

Hauzinger v. Hauzinger, 2008 NY Slip Op. 05781 (NY Ct. App., June 26, 2008).  The New York Court of Appeals affirmed the Appellate Division’s holding that where one party signs a waiver releasing the mediator from maintaining confidentiality and the other pary waives confidentiality by seeking disclosure from the mediator, the mediator is not allowed to assert a qualified privilege and is required to testify at trial if subpoenaed.  

Williams v. Johanns, 2008 WL 36633 (D.D.C., January 2, 2008).  Counsel for plaintiff was found in civil contempt by the U.S. District Court for the District of Columbia for filing a pleading containing statements made in mediation. the Court held a show of cause hearing and ultimately imposed a nominal fine noting the importance of confidentiality in the mediation process.

Rees v. Tingey Construction, Case No. 20060594 (Utah February 1, 2008).The trial court’s order requiring counsel for a party to be deposed to determine whether the parties had orally agreed to settle during mediation was reversed. The decision was based on state law prior to the Utah Uniform Mediation Act taking effect on May 1, 2007.

Arben Corp. v. NYS Thruway Authority, Case No. 2008-036-308 (NY Ct. Cl., February 26, 2008).  In litigation over an alleged written settlement agreement, the New York trial court on a motion in limine ruled that post-mediation evidence from the mediator was permitted to determine whether or not a settlement agreement had been finalized and then breached.  The court based its decision on a written agreement to mediate between the parties and on New York Law (CPLR 4547) which codifies the common law “settlement privilege.” The court concluded that negotiations concerning the underlying dispute between the parties were protected by mediation confidentiality but that CPLR 4547 does not block efforts to prove the existence of a settlement agreement.