PSYCHOLOGY / Perspectives on Dispute Resolution

Vol. II / No. 3

Perspectives on Dispute Resolution—

Focus

MAR 2012

4

The Conflict Looking Glass: Profound New Insights on Client Psychology

by Zach Ulrich

Waiting for the Bomb to Go Off Elements of a Difficult Personality & How to Soothe the Beast 8

The Skinny on Skinner in the Workplace: Behavior Rewarded is Behavior Repeated 12

Re-Interpreting Inter-Group Violence: How Conflict Psychology Can Affect Judgement & Sentencing 16

Discover

Book Review: Buddah’s Brain: Neuroscience’s Lessons for Better Conflict Resolution 22

On the Edge

Mediation as the Unlicensed Practice of Psychology? 26

24

Court Funding & ADR: Accessing Justice

20

Carl Rogers, The First Tranformative Mediator?

Commentary 28

Winning the Race: Taking Chances & Assessing Risks

Featured Contributors Also in this Issue

Zach Ulrich

Terri Lubaroff

Lalita Nordquist

Kristofer Michaud

Dan Simon

Joe Markowitz

ADR in the News 3 Upcoming Events 3 Message from the Editor 3

ADR Times explores mediation, arbitration, negotiation, diplomacy, and peace. ADRTimes.com publishes articles, news and debates,

and provides an industry directory, event calendar, job board, and community space for public and professionals to connect and share insights.

Mikita Weaver Editor-in-Chief

Zachary Ulrich Contributing Editor

Publisher Mark Fotohabadi & W. Timothy Pownall Design / Production Dana Asper, Melaina Rauen The content of this publication is subject to Copyright by ADR Times, Inc. 2011-12

Message from the Editor Sigmund Freud once said, “Flowers are restful to look at. They have neither emotions nor conflicts.” Looking at the world today, it is clear that we do not live in a bed of roses. Conflict seems inevitable whether its in our personal or professional life. But the diverse field of Psychology has much to teach us.

This month, the March Issue for ADR Times focuses on Psychology and the many insights it can bring to the world of Alternative Dispute Resolution. To highlight just a few: Mediator Zach Ulrich discusses several recent advances in neuropsychology and social psychology that mediators can use to take their skills to the next level. Terri Lubaroff, with her diverse experience in the entertainment industry, provides insight into how to deal with difficult personalities. HR guru Lalita Nordquist highlights how to employ lessons from B. F. Skinner to prevent conflict in the workplace. We’ve also included some great resources on psychology in the Discover section including a review of the book “Buddah’s Brain” and an interpretation of “Tranformative Mediators.”

Upcoming Events - New Ways for Families High Conflict Institute Mission Viejo, CA / March 23 - March 24 - Mediating the Litigated Case Straus Institute for Dispute Resolution Washington DC / March 26 - March 31 - Divorce Mediation Institute: Moving Beyond the Basics Asheville, NC / May 18 - May 20

- 25th Annual Professional Skills Program Straus Institute for Dispute Resolution Malibu, CA / June 21 - June 23

View the full Calendar— Submit an Event—

------------------------------------------------------------------For more information, please contact: Ms. Mikita Weaver, Editor-in-Chief (800) 616.1202 / editor@adrtimes.com www.ADRTimes.com z

ADR in the News - 3.16 Racewalker Doping Appeal Fails

- 3.16 Arbitration Rulings not Reviewable in Circuit Court Until Final Award Rendered - 3.16 Psychologists Join the Mediation Table for Family Squabbles over Money

- 3.15 Mediator Intervenes in Bankruptcy: Bank Watchdog to be Mandatory for Securities - 3.15 Mediation Attempts Fail to Keep Nations Cup in Fiji - 3.15 Mediation in Homeless Veterans Suit Fails

- 3.14 Mediation Before Filing for Divorce Beneficial

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The Conflict Looking Glass: Profound New Insights on Client Psychology

by Zach Ulrich

As a kid I used to enjoy looking through glasses of water at the objects beyond because, depending upon the shape of the glass or the flow of the water, the images became distorted, bent, and often produced some pretty funny results. What I didn’t realize at the time was that with or without a glass in front of me, I always had a “looking glass” through which I saw the world. We all have one, and a mediator’s ability to interact with the psychologically-based “looking glasses” of clients and counsel can often spell the difference between impasse and settlement.

Luckily for mediators, the fields of social cognitive psychology and neuropsychology have made great strides in the past few years. Our understanding of how the human brain processes differently in conflict situations has greatly expanded during this time. But, unfortunately many mediators do not seem to have taken heed of these powerful discoveries, let alone tried applying them in practice. What I will do in this article is go back-and-forth between discussing the psychology of clients’ looking glasses, and identify three ways in which we as mediators can interact with that psychology.

While my goal for this short piece is to focus on only three of the most commonly applicable examples of looking glasses in action, my discussion is really only the tip of the iceberg. I encourage any reader wishing to explore more deeply to peruse the “psychology” section of ADR Times, and to contact me directly at zach@adrtimes.com.

The Modern Psychology of Our Looking Glass

The author Philip Pullman understood the concept of looking glasses when he wrote his piece titled The Amber Spyglass, one of three in his “Dark Materials” series. In the Amber Spyglass, characters are able to literally see gateways to different worlds, but only when using the spyglass. While Pullman’s fiction alone isn’t very helpful for mediators, the metaphor is crucial: The lenses we use affect what we see.

It’s when our looking glasses don’t align, when the nuanced concavities and convexities of our lenses bump one another, that conflicts occur and parties seek dispute resolution. As such, a mediator’s knowledge of the psychology underlying many clients’ perceptions of conflict, and even more importantly a mediator’s ability to interact with those psychological dynamics, is critical to any mediation process no matter your style.

First and foremost are the advances researchers have made in understanding how the brain reacts under stress. Conflicts inherently create stress for parties in several ways—they usually have indeterminate outcomes; often require a lot of time, energy, money, and thought before the mediation even occurs; and often include relationship stressors. In short, all levels of psychoemotional functioning are often effected by conflict. While the brain’s reaction patterns to stress can vary as widely as the number of people on this planet, there are some relatively “typical” ways in which people “alter their

looking glasses” in response to stress. I want to focus on one area called the “limbic system,” that is, the seat of emotion in our brain. The limbic system evolved in our brain well before the higher-level reasoning centers that separates us from other animals, but it remains an incredibly powerful influence on how we feel, think, and behave. In fact, when the limbic system is activated, parties’ looking glasses can be “distorted” so much as to make it impossible for mediators to help parties think through logical steps toward settlement.

It doesn’t take long for new mediators to learn that often the difference between parties conceding enough to settle or anchoring in their offers is the emotion involved ... So, what do we do? How can we as mediators interact with these strong, limbic emotions in order to increase parties’ ability to settle? It’s simpler than you might think.

fect labeling show that the effect is profound, and consistent across many different situations. More importantly, some mediators have begun using this technique in mediation, and it works. But why does it work? My best guess is that it is because you are literally “reflecting back” the client’s looking glass—you are letting them step back from it, treat it as an external variable to be taken into account, and move beyond it. By labeling their emotional state for them, you allow their brain to externalize that emotion, even examine it, and think of it as one more “variable” for their logic centers to think

1. Affect Label. You might know what “affect” means—that the word references the immediate mood and emotional expression of a person. Well, recent studies using fMRI brain scanning technology have shown that by simply “labeling” to a person what affect they are presenting, the brain’s limbic system is immediately overridden by the parts of our brain responsible for logic, reasoning, and planning (that is, the higher-functioning cortical regions and pre-frontal cortex).

Properly executed, the technique allows individuals to immediately overcome their emotional impulses and begin processing what they need to do in order to move forward through conflict.

through. The client will feel immediately heard, appreciated, and understood, even if you have to “re-label” their affect when they indicate you may have misunderstood. Moreover, with regular usage of affect labeling, you’ll find that clients are much more quickly prepared to discuss how to move forward towards resolution, rather than reiterating their feelings toward the conflict.

“

The lenses we use affect what we see.”

Affect labeling may well be one of the most useful tools a mediator can have in their bag, so let me give you an example of how to use it. Let’s say you have a client who is telling you their perspective on their conflict. You note that the person appears angry, and is resentful of some of the actions of the other party. Their current “looking glass” shades their view of the situation with their anger, and their limbic system is clearly in full gear. Actively listen to the client, and then when they are done simply begin by saying, “you are angry,” in a quiet, direct tone. If the client is angry, they’ll invariably respond with a very quick, “Yes!” or something similar. If your read of their affect is slightly off, they may respond with, “No, I’m frustrated,” to which you can respond with simply, “you are frustrated,” at which point you’ll probably hear them react with the same, “yes!” Either way, you have now successfully “labeled” their affect for them, and it is probably one of the most empathic things you can do as a mediator. According to the recent fMRI studies, doing this immediately inhibits the limbic system’s ability to control their processing, and immediately re-engages their reasoning centers. Moreover, results of repeated experiments in af-

2. Understand Compartmentalization. The latest research in social cognitive psychology increasingly shows the great extent to which humans compartmentalize their emotions and thoughts—that is, that the way we tend to evaluate “x” is often completely different from the way we evaluate “y.”

Our “looking glasses” aren’t all-encompassing, in fact our brains are programmed to “switch” looking glasses depending upon what we’re thinking about. For example, have you ever met someone who held certain standards in one arena, seemed to ignore those standards in other areas of their lives, and still seemed to think it all made sense? That’s compartmentalization in action, and our brain does it for many reasons including to protect us from our deepest fears and from having to re-evaluate our actions or sense of identity. As a result, many conflicts begin when “Party A” acts contrary to expectations that “Party B” had of them. For instance, often one party assumes the other will “act a certain way,” based on behavior in other areas. When the compartmentalization becomes apparent and Party A acts contrary to Party B’s expectations, the other party may become offended, confused, and angry, and otherwise injured because of their reliance on the other.

As mediators, it is crucial that one of the “tools” we have is our understanding of the nature of compartmentalization and how that impacts conflict. For instance, if a party explains

March 2012 | 5

how disappointed and angry they are that the other party “tricked them” into relying on them, we may want to listen carefully for any compartmentalized standards at work. Conversely, when talking to the other party in that same dispute, it is important for us to differentiate between the looking glass they applied in other arenas from the looking glass they used in the relationship being discussed. If we are going to build rapport with the party who feels slighted (Party B) we need to be able to understand and validate how easily they may have been mistaken as to Party A’s intentions, based on previous dealings or relationships. Perhaps more importantly, when building rapport with the other party, we need to genuinely understand that many people often apply different standards of conduct in different arenas without evaluating the incongruence, and that there very well may have been no intent to trick or deceive.

3. Encourage Explanation. Finally, I want to emphasize an incredibly powerful piece of social psychology knowledge that some psychologists have known for several years, but that I rarely see applied in mediation: When people are asked to explain the logic of their thinking, they automatically evaluate it in their minds and test its true validity. In essence, the party’s brain actively assesses their position and their logic, usually without consciously realizing that they are doing so. Enabling parties to openly assess their stances in conflict is a powerful skill, because it allows us as mediators to help parties overcome any conscious or subconscious anxieties they may have about making concessions or otherwise being flexible. I’ve used this tool many times in mediation—when I hear party’s explain how they feel and what their positions are. My next statement is then, “so help me understand the logic of your decision to have ‘x’ position, if you don’t mind.” This statement does several things: (1) It shows interest; (2) It builds rapport; (3) It helps me clarify their thinking, but perhaps most importantly; it also (4) en-

Zachary Ulrich

courages parties to articulate the looking glass they’re using.

It is important to note that the goal here is only to ensure that parties have fully and consciously considered all of the variables important to them in deciding their position, and not to pressure them into doubting themselves and risk them making unhealthy decisions. The psychology of this process implies that asking parties to explain the logic of their decisions will naturally bring about seeds of doubt—and we’ve all experience this before. It is a natural inclination to feel defensive or in need of justification when someone asks us to “explain ourselves” about a behaviour or decision.

As mediators, we must be careful to strike the delicate balance of actively encouraging healthy thought. Finally, for a particularly effective combination of strategies, try listening intently to a client’s emotion-laden story and then affect label, immediately followed by a question or statement gently encouraging the client to explain their logic—I’ve done this before, and the results are typically nothing short of a very impactful way of immediately establishing rapport and helping the client begin thinking about resolution.

And one final note: Human psychology is a profoundly important sub-text to all means of addressing conflict, and as the fields of neuro- and social cognitive psychology advance, so too does our ability as practitioners to influence the thinking of our clients. It is precisely because of this increasing power that it is incumbent upon us as conflict resolution experts to act with professional consideration in our employment of psychologically-based strategies and interventions.

With those ethical caveats in mind, I will always encourage all conflict resolution professionals to think more creatively about learning and applying our society’s rapidly evolving knowledge of human psychology in everything we do. We have nothing to lose, and only more tenable, healthy resolutions to gain. z

Zachary Ulrich is a Contributing Editor at ADR Times and professional neutral and writer on mediation, psychology, and business practices. He is currently working towards his Juris Doctorate, Masters in Dispute Resolution, and Masters in Clinical Psychology from Pepperdine University. Zachary is a graduate of the two-year General Electric Financial Management Program, where he held several financial analysis positions and studied business operations and strategies from executives within the organization. He is a graduate of American University in Washington, D.C., where he obtained his BS in Finance and his BA in both Economics and International Studies.

Read more articles by Zachary Ulrich at: www.adrtimes.com/articles/author/zacharyulrich

6 | ADR Times Perspectives

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Waiting for the Bomb to Go Off

Elements of a Difficult Personality & How to Soothe the Beast

by Terri Lubaroff

We’ve all dealt with a “difficult personality.” This is the person we are afraid to run into on the elevator at work, the family member who never fails to offend, or the jerk at the furniture store who refuses to refund your money on a delivery that was never made.

The difficult personality is a confounding beast. It comes in all types. For every egomaniac, passive-aggressive cretin and negative Nellie, there are a dozen other types of difficult personalities ready to pounce. They stalk your offices and lie in wait at social events, looking for easy prey. They feast on others’ vulnerabilities and use their limited but determined wiles to gain the upper hand in conflict.

Having worked in the Entertainment Industry for fifteen years, I witnessed a lot of terrible behavior. I’ve been in the workplace with screamers, passive-aggressive players, deflectors and egotistical maniacs. I’ve seen bosses throw trash cans at weary assistants, drunk actors trash hotel rooms, and executives behaving badly at parties. Even more insidious are the difficult personalities who quietly but steadily derail their own best intentions and the intentions of those around them without even realizing what they are doing. I’ve seen people doing this without understanding that they are trashing their career, ruining their families, or making enemies out of friends until it is too late.

While the entertainment industry is rife with difficult personalities, it doesn’t possess a monopoly on them. In fact, every facet of life can contain a difficult personality. Chances are that if someone is difficult at work, they are equally difficult in their personal lives. The judgmental family member might also be a confrontational co-worker. One is not mutually exclusive of the other, especially because most personality flaws develop over a lifetime of innate and learned behavior.

8 | ADR Times Perspectives

One of my favorite stories about a “difficult personality” revolves around a very successful and wealthy CEO. This person ran a company with over 200 employees who worked day and night to make the company successful. Like most companies, some of the upper-level executive employees were paid very handsomely, but most of the employees earned fairly modest five-figure salaries and struggled to make ends meet. All of the employees relied heavily on traditional annual Christmas bonuses to make their holiday expenses easier to handle and to ease them into the New Year. The bonuses represented a significant portion of their annual salaries and had become such a tradition, they were seen as automatic.

After a particularly good year, the CEO came to the company holiday party and announced that instead of their annual Christmas bonuses, he was giving everyone a Cartier watch.

He proudly made this announcement with the added comment, “after all, I wouldn’t have been able to buy my third vacation home in Hawaii without all of your hard work.”

The executive was so ignorant, insensitive, and selfish, he simply could not understand why his employees practically revolted. This so-called generous replacement gift effectively represented a 10% salary decrease for most of the employees. Worse, he refused to change his mind about reinstating the bonuses. His egotistical response was that his The challenge for dispute resolution professionals is that we must manage, placate, and confront these people with finesse and empathy in order to resolve conflict. We must train ourselves to communicate effectively, allowing for the personality

flaws of the difficult individual while separating our own horror at their terrible behavior. We do this to better understand what is driving the difficult personality’s behavior so we can get to the root of the problem in order to resolve the conflict.

Most truly difficult personalities have some unifying elements that define their bad behavior. Arrogance, ignorance, selfishness, low self-esteem, fear, coldness, immaturity, insensitivity, negativity, interpersonal difficulties, faulty thinking, and pettiness are some of the most common elements. [1] Many difficult personalities are bossy, negative thinkers who consider themselves superior to others. Other difficult personalities overcome their insecurities by belittling others to make themselves seem more important.

When your job is to deal with an ignorant jerk, what do you do? How do you connect with a difficult personality and stay grounded? How do you soothe the beast? Unfortunately, when dealing with any personality issue, the answer must be, “it depends.” It depends on what type of difficult employees were lucky to get bonuses at all, and that if they didn’t like the situation they could quit. He conversely offered that the employees could go sell the watches for cash if they were so irresponsible with their personal budgets.

This was not a new attitude. The CEO was known for his belittling comments, explosive temper, and argumentative nature. This CEO was the very definition of “difficult.”

Thankfully, six of the company’s top executives intervened.

They personally donated their still intact annual bonuses to distribute amongst the other employees and prevented a huge employee walkout. The CEO’s faulty thinking led him to believe that he was doing something nice for his employees, but he failed to look past his self-congratulating ego about his own largesse to really see how his decision was negatively affecting his entire company. His company’s productivity faltered, and he lost the respect of several of his high-level executives, all of whom left the company within the next five years.

The moral of the story is that difficult personalities often don’t understand that the consequences of their actions may be a result of their own bad behavior or faulty thinking. To this day, the CEO blames others’ shortcomings for his company’s loss of earnings. He simply cannot understand that his own actions created the negative situation his company now faces.

personality you’re dealing with and what that particular individual needs from you to get past their own issues so they can discuss underlying interests.

An in-depth understanding of the traits that make up a difficult personality can be helpful. Below are ten common traits many difficult personalities share:

1. Ego. The most common trait of the difficult personality is an overly-healthy sense of ego. The Oxford Dictionary defines ego as “a person’s sense of self-esteem or self-importance.” Everyone has some sense of ego, but those with difficult personalities have a sense of self-importance that often reflects a belief that they are God’s gift to the world.

Focus

2. Insecurity. It sounds oxymoronic, but even those with huge egos have an innate sense of insecurity. In fact, an overinflated sense of self may come directly from strong insecurities about everything from looks and personality to work, family, or friends. People with high levels of insecurity are also often extremely negative. Negativity allows someone to mask or deflect their own shortcomings by projecting them onto others. As such, they often belittle other people to make themselves feel better.

3. Control. Many difficult personalities have control issues, but not all control issues manifest in the same way.

One difficult personality might have a need to control while another may be out of control. In the business world, this represents the micromanager versus the careless manager.

Both personalities are difficult and both lead to conflict, but in very different ways. Lack of control results in fear, which then leads to anxiety, so control can also refer to the level of anxiety an individual exhibits. Anxious people can be extremely frustrating and tedious to deal with because their fears are often not rational.

4. Recognition. Many difficult personalities have a need for recognition. They often want to be recognized for work, ideas, and accomplishments that may not be in line with reality, and they will often take credit for someone else’s work.

Further, many exhibit a need to always be “right,” arguing so they always have the last word.

5. Confrontation. Some difficult personalities thrive on confrontation while others are deathly afraid of it. What makes direct confronters easier to deal with is the ability to prepare for the inevitable fight. More insidious and hurtful; however, are the passive-aggressive personalities who have an underlying need to be liked. They try to please, but are unable to live up to their words, resulting in nasty quips that manifest in unexpected and often inappropriate ways.

6. Expectation. Most difficult personalities have extremely high expectations of themselves and others. They do not suffer fools lightly and expect excellence in even the most March 2012 | 9

mundane tasks. Someone who doesn’t manage expectations well has a difficult time accepting legitimate excuses for anything less than perfection. They tend to be extremely judgmental and rigid.

7. Work Ethic. Along with high expectations often comes an excellent work ethic, or conversely, a faulty belief that one possesses an excellent work ethic, which may be contrary to reality. Many difficult personalities are indeed hard workers who become frustrated when others fail to live up to their own potential, but the difference here is like the difference between a critic and a coach. The line separating the two lies in how each individual communicates. The coach will encourage and teach while the difficult personality will criticize and belittle.

to lose face; so instead, they use value-based arguments as a cover. Because their arguments make little sense, once deeply probed, the difficult personality will often shut down and refuse to communicate which appears obstinate and unreasonable.

10. Mental Health Issues. Of course, some difficult personalities have mental health issues. They may have potential psychological problems or issues with drug or alcohol abuse. It is the purview of the psychology professional to discuss these matters, but dispute resolution professionals without a psychology background need to be aware of such possibilities, how their manifestations affect conflict, and how conflict can be resolved.

Now that we are armed with the ability to recognize the difficult personality, The best advice when dealing with a difficult personality is “if you can’t how can we soothe the beast when it say anything nice, don’t say anything at all.” Because soothing a difrears its ugly head? The single most ficult personality takes a great deal of patience, tenacity, and finesse, important skill a dispute resolution check your ego at the door. professional must possess is the ability to remain calm while in the eye of the storm. The goal is to pacify the diffi8. Pressure. The pressures of the modern world can be un- cult personality in order to allow them to communicate in a bearable at times. Between 24/7 work schedules, a lack of healthy and productive manner. work/life balance and the constant barrage of media invading our lives, people are simply unable to unwind. More- How can this possibly be accomplished when the subject is over, as more and more families become dependent upon screaming at you? dual-incomes, many find that the pressure to be everything 1. Keep Calm! Losing your temper with a difficult personto everyone is simply untenable. Many of us are unable to ality will only escalate the conflict. It is of paramount imseparate our work issues from our family issues, and each portance that you do not take the anger personally. Sit down. individual problem can feel like everything is piling on. The Take a deep breath. Steel yourself. Take your own ego and difference between the average person and the difficult per- hurt out of the equation. Use a calm tone of voice and don’t sonality is that the latter is unable to deal with these pres- defend yourself. If you need to “go to the balcony,” do it. sures in rational, non-reactive ways, leading to scapegoating [2] Soothe their ego by using genuine empathy. Ask them and blaming where one situation has nothing to do with the how you can do better. Deflect or ignore their personal atother. tacks on you. Gain understanding through active listening 9. Strong Values. Many people hold strong values and and by putting yourself in their shoes. After all, the very stick to their beliefs even when their arguments have no ba- definition of a difficult personality is often colored by one’s sis in reality or logic. This happens in religious disputes, perceptions and points of view. Examine your own point of but these types of strong value-based arguments often drive view. You may discover the source of the conflict revolves other types of conflict as well. When someone holds strong around a misunderstanding born from differing perspectives. values and argues them persuasively, relationships can be forged even if the parties agree to disagree on certain issues.

This is based on mutual respect and an ability to recognize common underlying interests. Unfortunately, the difficult personality often mistakenly characterizes arguments as value-based rather than logic-based simply because their initial position is an emotional reaction to the conflict. This doesn’t necessarily indicate faulty thinking, but their need to be right often backs the difficult personality into a corner they are not likely to voluntarily relinquish. To do so would cause them 10 | ADR Times Perspectives

2. Help the difficult personality feel safe and secure. They may be reacting to perceived threats to their ego, position, or goals, so bring them into a physical environment where they will feel more comfortable. For some, this means discussing difficult issues behind a big, protective desk while the dispute resolution professional sits in a short, uncomfortable chair on the other side. For others, food or exercise may put the difficult personality at ease. Whatever it takes to make them feel safe, do it! Once you’re there, make them feel like you are working as a team and allow them to vent. Don’t

criticize, roll your eyes, or make faces. Maintain direct eye contact. If sitting, lean forward. Keep your body position open to indicate you are there to hear them out. Make supportive comments and allow them to feel like you are on their side.

3. Work to learn all of the underlying facts. Ask the “who, what, when, where and why” questions. Do not allow the difficult personality to deflect or ignore the “why’s.”

This is important because the difficult personality will often try to avoid answering “why” due to their insecurities and need to control; however, their answers will inform how you continue with the entire interaction. Push them, but do it gently and with genuine concern. Play upon the difficult personality’s ego by asking for their help so you can better understand what is driving the conflict. Don’t assume anything. Ask follow-up questions that gently probe their thought process without being confrontational. Demonstrate you are being sensitive to their needs. Don’t interrupt, but tactfully keep the conversation on track. Let them do the talking while keeping a mental checklist of questions that their comments elicit and use those questions to guide the subject’s thinking into a more constructive realm. This helps build mutual respect and rapport that allows for an open flow of communication.

4. Guide the subject towards rational thinking by asking questions that gently probe their logic. To do this without provoking the beast, act as a sounding board rather than a lecturer. The goal is to appear non-judgmental by withholding criticism and allowing for venting. Keep your own responses short and to the point, and give the difficult personality the power in the room by asking for their ideas.

Allow them to express emotion, frustration, and fear. Ask open questions that will allow the difficult personality to find the “right” answer on their own. Don’t provoke anger and certainly refrain from making your own personal comments, which will only cloud the conflict, rather than clarify it.

5. Be sure to help the difficult individual define their values. Often, they discover that their values are not that dif-

Terri Lubaroff

ferent from their opposition’s, even though the expression of those values may be vastly different. To accomplish this, there are two steps. First, you have already asked questions that revolve around logic. If you are challenging that logic, do so in a way that expresses your own ignorance and not your fundamental disagreement with the subject’s ideals.

At this point, the subject should feel comfortable enough with you to openly discuss the emotional elements of the conflict. This is the second step. Emotion defines value and gets to underlying, deepseated interests that may be driving the conflict in the first place. Be sure not to confuse the answer to the above question of “why” with the subject’s values. These are not the same things. “Why” explains how the conflict came to be.

“Values” define someone’s true interests, which can lead to creative and mutually beneficial resolutions not previously explored. With an understanding of the underlying interests, a dispute resolution professional has broken through the wall that is likely preventing resolution. In doing so, the difficult personality has been placated, but more important, a foundation of trust from which to work has been built.

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The best advice when dealing with a difficult personality is “if you can’t say anything nice, don’t say anything at all.”

Because soothing a difficult personality takes a great deal of patience, tenacity, and finesse, check your ego at the door.

Use all your powers of empathy and logic to break through the barriers that difficult personalities erect and put yourself in their shoes. Most important, don’t take it personally. Following these steps will help facilitate productive and honest conversations with even the most vicious beasts. z [1] McGrath, Helen, PhD, and Hazel Edwards, MEd, DIFFICULT PERSONALITIES: A PRACTICAL GUIDE TO MANAGING HURTFUL BEHAVIOR OF OTHERS (AND MAYBE YOUR OWN) (2010).

[2] Ury, William, GETTING PAST NO: NEGOTIATING IN DIFFICULT SITUATIONS (1993).

Terri Lubaroff, Esq. is a conflict resolution specialist, having honed her skills first as a film and television producer and later as a full-time mediator and arbitrator. She specializes in Entertainment, New Media, Employment, Consumer Torts and Business Disputes, and is adept at dealing with difficult personalities. She is a member of the Florida Bar and is a full-time neutral in Southern California with Agency for Dispute Resolution. www.lubaroffmediation.com Read more articles by Terri Lubaroff at: www.adrtimes.com/articles/author/terrilubaroff

March 2012 | 11

The Skinny on Skinner in the Workplace

Behavior Rewarded is Behavior Repeated

by Lalita B. Nordquist, SPHR, MA, MDR

Behavioral Psychology is a well-known method used across the world for everything from training dogs to treating phobias. B.F. Skinner is one of the most widely recognized contributors to Behaviorism and brought us the idea of “operant conditioning”—the idea that we can condition ourselves and others through the use of reinforcements.

Operant conditioning suggests that we can systematically extinguish or increase a particular behavior through the use of negative reinforcements, positive reinforcements, or even the absence of reinforcements.

As a matter of fact, it is a method of practice I am currently using on myself to exorcise my fear of spiders...to desensitize myself to those gnarly eight-legged pests!

“A behavior followed by a reinforcing stimulus results in an increased probability of that behavior occurring in the future.”

~B.F. Skinner Loosely translated, this becomes one of my favorite wellknown mantras…

Behavior rewarded is behavior repeated.

Is it horrible to confess that I’ve used this as a marriage tool as well? My most amazing husband (and even more amazing father to our two young daughters) is inherently a giving, loving, and nurturing person. There are, of course, habits that as newlyweds (now 12 years ago) were not so appealing. I won’t reveal what those habits were but they were not salacious by any means. When he would do things that I preferred over his other habits, I showered him with praise. Over time, those behaviors replaced bad habits. To this day, I shower him with praise and gratitude for behavior that I would like to see repeated. This exercise, though purposive, is also genuine…in that I am truly grateful for what he is and does. That being said, he still has some habits that I’d like to change, and I’m sure the feeling is mutual.

But like all marriages and all relationships, we are a workin-progress. Doing that work and endeavoring to become stronger and better together is what will define our success.

I’ve begun to use these behavioral methods as a parenting tool as well with my three- and five-year old daughters.

They are learning about “choices,” and when they make a healthy choice in food or a good choice in behavior, I actively, audibly, and frequently praise them for it. Further, I ensure I am clear about exactly what it is I am praising.

Giving specific, consistent praise and feedback is critical. I have found that not only does this encourage them to think through their choices, it helps to ensure repetition of making good choices and engaging in desirable behavior. It is my hope that good choices and behaviors will become a habit

that exists in my absence. The jury is out on whether or not this will have a positive lasting effect on them…since the true result won’t be seen for years to come. However, what studies consistently indicate (as validated by experience) is that the use of reinforcement (specifically positive rewards in the form of praise, gratitude, and the occasional tangible award such as an allowance or a treat), certainly has greater impact than punishment (specifically the addition of an aversive stimulus, such as putting them in “time out.”).

Focus

Skinner is a natural companion to the world of managing others. Managers (versus Leaders) work to ensure tasks get done, milestones are reached, and deadlines are met. Leaders inspire their workers to achieve. Behaviorism is where the two align...where the tactical meets the inspirational. Our success as tactical managers is in part predicated on our success as leaders … inspiring our employees to achieve beyond what they thought themselves capable of.

So now, why is it that in the workplace there is almost an eerie silence in the air when good work is done or when employees go above and beyond? In this economy, employees are being tasked with doing more and more…and more…with the same or less resources. This means many workplace activities are what we call “stretch exercises,” which are activities outside the usual day-to-day functions and which stretch and bend us to the very limits of what we can do without actually breaking.

When I hear of a department having high turnover, my first instinct is to look towards management to understand why.

Often times, I am given “excuses”—left for better pay, better opportunity, life balance, or the ubiquitous “personal reasons. But the sad truth, people don’t quit their jobs, they quit their managers. This is a popular Human Resources maxim because, to put it bluntly, it is true. Many articles cite the “Top 10 Reasons Employees Quit.” If you pay attention, many employees quit simply due to lack of recognition from management. The retention rate would likely increase if employees felt valued/recognized for their contribution and hard work, if they felt their manager was a champion for them, if they believed their manager truly saw their effort and recognized what they were doing despite the obvious lack of raises, bonuses.

I have been challenged on this “theory.” Managers will tell me that employees leave because the company has not given raises in x-number of years. They tell me that the company has tightened their belt and will not authorize additional head count, etc. I counter that argument with one question,

March 2012 | 13

“What have YOU done for them lately?” Direct recognition and reward lies in the hands of an employee’s immediate management. If we want employees to continue with their stretch exercises, continue achieving, continue making sacrifices for the good of the company, then we must reward that behavior when we see it.

Further, not addressing the issues when they arise passively rewards an employee for that behavior…also working to ensure it is repeated. When high performing employees who hear nothing for their good actions see poorly performing employees not be reprimanded for their poor actions, their morale and desire to perform at a high level declines.

Recognition for contributions and hard work doesn’t just come in the form of raises or bonuses. When an employee’s career has stagnated, can you offer opportunities for skills growth via cross training or in-sessions? Have you outwardly noted how proud you are of them and how grateful you are that they are there and working as a team? Do you at least orally and

This is where the concept “pay for performance” becomes critical. High-performing employees who achieve and go the extra proverbial mile ought to receive higher pay and levels of praise than their lesser-performing counterparts.

Furthermore, the gap between the “reward” and praise from one end of the performance spectrum to the other should be

Behavior rewarded is behavior repeated.

Behavior rewarded is behavior repeated.

Studies indicate that reinforcements have a longer impact than punishment. Lack of reinforcement may indicate to the high performer that his/her hard work and accomplishments are inconsequential, hence functioning to extinguish desired behavior. Lack of reinforcement may function as positive reinforcement to poor performance, hence increasing it.

publicly praise them for their achievements? Do you reward the team’s accomplishments by making the workplace fun or by having inexpensive celebrations of joint milestones achieved (pizza party, potluck, cake)? How about starting a peer recognition trophy that employees pass onto their peers when they witness something great? Do you share the “wins” in emails / announcements / employee newsletters?

If what those managers said were true, a company—any company—in this economy especially, would be bleeding great talent from all departments; yet, this is not the case.

Again, typically, bleeding occurs from one particular department and again, in large part, due to the silence or inaction of managers when an employee achieves and goes above and beyond what the job description requires of them.

Conversely and ironically, managers often DO reward the WRONG behavior, which results in repetition of that undesirable behavior. Some people avoid conflict like the plague…trite but true. Their inability to address a problem results in silence. Silence is a lack of reinforcement…silence implies consent which ensures the behavior will be repeated.

14 | ADR Times Perspectives

significant enough to inspire the high achievers to continue their performance while inspiring the poor performers to improve.

There are also managers who are silent during times of high performance or achievement. These same managers use various forms of punishment when the employees’ performance dips (perhaps due to lack of praise) or when there is a rare error. “Kick’em while they’re down and don’t help them up…”

I’d like to more concretely distinguish between reinforcement and punishment. Any reinforcement (positive or negative) is a consequence which functions to reinforce the behavior, hence, increasing the frequency of that behavior. Positive reinforcement occurs when the desired behavior is followed by a reward. Negative reinforcement, occurs when a desired behavior is followed by the removal of an irritant. For example, if coming to work on time stops your manager from yelling at you, you will likely continue to come to work on time. Any punishment (positive or negative) is a consequence which functions to weaken a behavior;

hence, decreasing the frequency of that behavior. Positive punishment (“punishment”) is the introduction of a negative consequence/condition after a particular behavior while negative punishment (“penalty”) is the removal of something desirable.

Studies indicate that reinforcements have a longer impact than punishment. Lack of reinforcement may indicate to the high performer that his/her hard work and accomplishments are inconsequential, hence functioning to extinguish desired behavior. Lack of reinforcement may function as positive reinforcement to poor performance, hence increasing it.

Many managers I have seen employ punishment in the form of public reprimands, berating comments, finger pointing, blame, etc. Skinner believed, as do I, that lasting change to behavior occurs with positive reinforcement. In contrast, punishment only results in temporary change followed by resentment and disengagement. In short, beating someone over the head in an effort to get them to achieve will eventually lead to their rebellion and/or departure…neither of which is an optimal outcome.

I mentioned earlier that all relationships are a work-inprogress. This includes the work relationship between a manager and his/her employee(s). Relationships need nurturing and tending to. Part of this is ensuring the other party feels valued when value is given. From what I’ve seen in my many years of Human Resources practice, like a child to a parent, employees want their managers to feel “proud” of them, they crave recognition/reward, and they don’t like disappointing others.

Rewarding the behavior we want to see in a positive manner creates the desire to continue...and perhaps, do more. It helps an employee feel like he/she “matters” and contributes to the overall success of the department and company. We must be managers and leaders…both.

Rewarding good behavior inspires our employees to achieve, and ensures that successes are repeated. z

Focus

This does not mean that management should not address issues in a respectful yet purposeful manner. However, it is important to readdress the importance of consistency to the consequences. It takes courage to address an issue, as well as compassion to address it in a meaningful manner geared towards changing behavior. This may mean informal coaching, an individual development plan, formal written disciplinary counseling, or eventually termination. If done respectfully, your other employees will see it (though they ought not to, employees do talk) and you will reinforce the rapport you have built with them, and the reputation you should have as one who embraces “fair-play”.

Lalita B. Nordquist

Lalita Nordquist is a Vice President of Human Resources at an Inc. 5000 Fastest Growing Company (Inc. 5000 designation years: 2007 through 2011). She and her team of 17 serve a client base of around 1500 employees with business operations across 7 states.

Ms. Nordquist is also a Master’s graduate of the Straus Institute for Dispute Resolution at Pepperdine University’s School of Law as well as a Master’s graduate from Pepperdine University’s Graduate School of Education and Psychology. She lives in a suburb of Los Angeles with her husband and two young children.

Read these and other articles by Lalita Nordquist at: www.adrtimes.com/articles/author/lalitanordquist

March 2012 | 15

Re-Interpreting Inter-Group Violence How Conflict Psychology Can Influence Judgement & Sentencing

by Kristofer Michaud

Inter-group conflict—Montagues vs. Capulets, Sharks vs.

Jets, Crips vs. Bloods—often culminates in episodes of unplanned, catastrophic violence. These cathartic but often gruesome incidents must then be interpreted after the fact by the stereotypically level-headed third parties called upon by the criminal justice system to prosecute, defend, and ultimately judge the perpetrators. These professionals’ understanding of inter-group psychology (and their ability to impress that understanding upon a jury) will influence the outcome of the legal proceedings, and ultimately the sentencing of those convicted (if indeed they are convicted).

Depending upon the facts and circumstances surrounding a violent inter-group incident, and the jurisdiction in which it occurred, such episodes may be prosecuted as “hate crimes” —a new category of offenses worthy of the harshest possible legal sanctions. This is perhaps ironic, given the fact that the same fact pattern, analyzed through group conflict psychology, may minimize the individual liability of criminal defendants or, if a conviction is inevitable, potentially reduce their sentencing exposure.

Let’s imagine a hypothetical criminal matter in which a young Muslim-American named Khalid Al-Kharsa was killed immediately following the tenth anniversary of the September 11, 2001 attacks. The youthful co-defendants are suspected members of MJOLNIR, an organization committed to “white power,” and to violent confrontation with individuals and entities deemed to be hostile to Western values. Imagine yourself to be a representative of a prestigious law firm hired to defend Alex Anglo, a well-liked athlete, volunteer and honor student who had not been known to espouse radical views prior to joining MJOLNIR in the summer of 2011. What would be your best conceptual tools to investigate and interpret the events, and how would you sell your version to a jury?

Among the most useful weapons in your arsenal would be social identity theory, which holds that groups persist because they provide individuals with an identity. One maintains selfesteem by viewing one’s in-group positively and out-groups negatively. Most in-groups cultivate a sense of fraternalistic deprivation—historical injustices perpetrated by out-groups against the in-group. Dysmorphic rumination—collective

brooding upon this deprivation (in songs, poetry, or folk art) encourages in-group bonding. For MJOLNIR, the 9/11 attacks may have served as the object of this rumination.

As conflict escalated between the United States and the Arab/ Muslim world in the decade since 9/11, structural changes occurred in both groups. Certain egregious incidents, like the 2004 Abu Ghraib prison abuse scandal and the subsequent immolation of Blackwater contractors in Fallujah, polarized both groups. Atrocities committed by out-groups give the in-group a sense of moral superiority. These events silence or radicalize moderates who choose the comforts of ethnic community over ostracization. The center tilts toward extremists, who compete for attention with provocative opinions that become less controversial through exposure. Over time, thinking becomes more rigid, generating in-group solidarity and cohesion around runaway group norms.

Supported by runaway norms and shared conflict experience, group goals become more contentious and victory-oriented.

After 9/11, conservative pundit Ann Coulter quickly demanded that the U.S. forget about capturing and prosecuting the terrorists responsible. Instead, she demanded that Washington “invade their countries, kill their leaders and convert them to Christianity.” Militant leaders encourage this kind of pseudospeciation of out-groups because harsh strategies seem acceptable against nonhumans. Extremist Hutu radio transformed Rwanda’s Tutsis into “cockroaches” before their 1994 genocide, and Malcolm X stole headlines from the moderate Dr. Martin Luther King by referring to caucasians as “white devils.”

The post-9/11 environment created a greater potential for violent conflict and the empowerment of militant leadership.

Eventually, militant subgroups like MJOLNIR emerged from an already polarized population. Forged in conflict, such subgroups have a vested interest in perpetuating that conflict to secure social status and identity. Within MJOLNIR, our client, Mr. Anglo, would have felt unbearable pressure to conform to MJOLNIR’ conflict-seeking norms and a greater willingness to act (or refrain from acting) to maintain his in-group identity.

Behavioral traps often dictate individuals’ action within a

group. One useful concept in this category is groupthink.

Groupthink discourages critical thinking and produces poor, sometimes explosive decisions. Militant subgroups like MJOLNIR are more susceptible because they are highly cohesive, necessarily lack diversity and are insulated from broader debate. In-group “thought police” promote the illusion of unanimity by pruning members’ minds and words to reinforce group ideology. Thus, groupthink instills an irrational sense of invulnerability and inherent righteousness. This collective mind-state banishes self-doubt, relieves individual members from ethical or moral considerations, demonizes the out-group, and justifies immoral and unrealistic strategies.

The Lord’s Resistance Army, for example, believed that shea butter could make them bulletproof, that their leader spoke with the Holy Spirit, and that murder, rape, maiming, and enslavement were justified in their struggle to establish the Ten Commandments as law in Uganda. Individual victims of groupthink cannot acquire or process the information required to assess the merits of certain strategies versus their alternatives. Groups like MJOLNIR, therefore, typically self-destruct in pursuit of poorly conceived, unpremeditated, short-term objectives like the decision to kill a single Muslim to commemorate 9/11.

Groupthink may have prevented our hypothetical client, Mr. Anglo, from stopping his comrades from killing Al-Kharsa.

It’s just as possible, however, that none of the MJOLNIR really wanted to kill him. The Abilene Paradox, another wellknown behavioral trap, describes a breakdown in intra-group communication and agreement management. This scenario begins when we experience anxiety over the imagined consequences of our dissent. The immediate threats of our ostracization and loss of identity are more present in our minds -more real to us -- than the long-term threat of self-destruction in pursuit of an futile course of action. We mistakenly believe that we alone object to a course of action, but we keep our misgivings secret, and the group acts counter to the majority preference. Like our client, the Watergate conspirators were all men of reportedly good character. They all insisted, after

Kristofer Michaud

the fact, that they privately opposed the bugging of the Democratic National Committee, yet the decision to proceed was unanimous because each of the men felt that acquiescence was expected of them.

The defense team’s pretrial investigation should also decode MJOLNIR culture, ideology, and hierarchy and compare them to militant subgroups models. If Ugandan child soldiers can be “brainwashed” into committing atrocities and later forgiven, Mr. Anglo needs to be understood as a victim of group psychology. Safeguards against groupthink and the Abilene paradox include procedural norms for decisionmaking and a culture of debate in which leadership is open to criticism: your investigation would need to show the absence of both in MJOLNIR. We must demonstrate that Mr. Anglo was a low-level member and could not rock the boat for fear of expulsion. You should investigate MJOLNIR’s institutional culture and activities—did they sing hymns to the Blackwater martyrs, or screen 9/11 footage? What about MJOLNIR mythology? Was Mr. Anglo taught to think of Muslims as subhuman or demonic? Was he told that he had a divine mission, or that he was invincible? Lastly, we should investigate whether the victim was a member of a militant group himself, and whether that group was engaged in an escalating and transformative conflict cycle with MJOLNIR.

Focus

In this hypothetical example, the District Attorney’s office will attempt to paint the incident as a hate crime in order to maximize the possibility of harsh sentences for even the most tangentially-involved MJOLNIR members. The defense team’s strategy must be an equal and opposite one: to investigate and conceptualize the case in terms of group conflict psychology.

Doing so will help build an argument for diminished personal liability on the part of Mr. Anglo and (if you do not prevail and your client is ultimately found guilty) to demonstrate why a lighter sentence is warranted. z

Kristofer is a practicing attorney, professional neutral, and writer on mediation and international law. He maintains a private practice in criminal and family law in upstate New York, while working toward his Masters in Dispute Resolution at Pepperdine School of Law in Malibu, California. Kristofer graduated from the B.C.L./LL.B combined program at the Law School of McGill University in Montreal, Canada.

Read more articles by Kristofer Michaud at: www.adrtimes.com/articles/author/kristofermichaud

March 2012 | 17

Focus

Find More on the Psychology & Neuroscience of Conflict & Dispute Resolution at www.ADRTimes.com—

Taking Theory to Practice: How to Manage the Animal Brain

National Tragedy Brings out the Best in Litigators & Litigants

High Conflict Mediation: 4 Tips for Mediators

Research in neuroscience has generated numerous insights into the way humans process information, experience emotions, and make decisions. More recently, scientists have begun to understand how these behaviors are related to brain activity. Using imaging technology like fMRI, scientists can actually see what our brains are doing when we engage in various behaviors and complete various tasks. While these neuroscience and neuroimaging studies have broad relevance, they also shed light on decision-making processes that is especially relevant to the dispute resolution context.

Read online—

The terrorist attacks of September 11 have brought out the courage, patriotism, and selflessness in millions of Americans. It will be interesting to see what effect those tragic events will have on litigators and litigants. A few early returns are most promising.

Read online—

High conflict people (HCPs) are highly defensive, preoccupied with blaming others, and desperate to receive validation for themselves. These characteristics may be part of their personality, in which case they bring this defensiveness with them everywhere they go. Bill Eddy from the High Conflict Institutes suggests the following techniques to deal with high conflict people: bonding, structuring, reality-testing, and consequences.

Read online—

by Heather Pincock

18 | ADR Times Perspectives

by Deborah Rothman

by Bill Eddy

Three Quick Tricks for “Reading Minds”

by Jeffrey Krivis

Knowing what people are thinking and feeling can help you build rapport and, eventually, resolve conflicts. Here are a few tips from master mediator Jeffrey Krivis to get you started: (1) Notice body language cues, (2) Listen carefully to determine what NLP “type” a person may be, and (3) Use props to put people at ease and draw them out.

Read online—

The Art of Intuitive Decisionmaking: Should you listen to your gut, or tell it to shut up?

by Scott Van Soye

Each of us makes scores of decisions every day – personal, professional, simple, and complex. Knowing how we and others decide can help us choose, advise, negotiate, and mediate more effectively.

In making decisions, it is important to to embrace your mistakes, practice self-awareness, let your brain relax, not neglect the groundwork, and not always rely on intuition for every decision.

Read online—

The Neuropsychology of Forgiveness

by Doug Noll

The perception of injury to our self, which is injustice, has several parts: (1) a sense of self; (2) an ability to evaluate the behavior of others as being injurious or beneficial; and (3) memory of the event to link that injury to the offending person. Our sense of self originates in the abstractive cognitive operator located in the inferior parietal lobule of the brain.

The inferior parietal lobule is richly connected to the limbic system which is the part of the brain primarily involved in creating, expressing, and controlling emotion.

Read online—

March 2012 | 19

DISCOVER

Carl Rogers

the First Transformative Mediator?

by Dan Simon

The founder of humanistic psychology, Carl Rogers, believed that empathy, genuineness, and unconditional positive regard were necessary and sufficient to effectuate positive change in his clients. It was not necessary, and

probably not even helpful, as he saw it, for the therapist to advise the client what to do next. Dorothy Della Noce, in her chapter “The Case for Transformation: A Review of Theoretical and Empirical Support” in Transformative Mediation: A Sourcebook, further explores how Rogers’ research and thinking support the concepts underlying the transformative model of mediation.

Della Noce observes that Rogers’ worldview informed his beliefs about the proper role of the helper. She quotes Rogers: “All individuals have within themselves the ability to guide their own lives in a manner that is both personally satisfying and socially constructive. In a particular type of helping relationship, we free the individuals to find their inner wisdom and confidence, and they will make increasingly healthier and more (socially) constructive choices.”

Rogers’ assumptions about human capacity and his belief that a helper can play an important role in supporting that capacity are consistent with the assumptions of the transformative model. Della Noce points out that Rogers believed that the therapist could support the same phenomenon that the transformative model calls empowerment; that is, Rogers believed that the helper’s role was to support the client’s “clarity, choice, decision-making, and acceptance of personal responsibility” (Della Noce, p. 107).

20 | ADR Times Perspectives

“

In my early professional years I was asking the question: How can I treat, or cure, or change this person? Now I would phrase the question in this way: How can I provide a relationship which this person may use for his own personal growth?

—Carl Rogers

Further, “Rogers emphasized that the counselor does not provide answers to the client’s problems, but rather a place where the client can, with assistance, work out his own solutions to his problems.”

Della Noce observes that Rogers explored a wide range of helping relationships, teacher-student, doctor-patient, and mother-child, as well as therapist-client. And it appears to me that the mediator-client relationship calls even more clearly for non-directiveness by the mediator. Mediation’s widely accepted core value of self-determination seems to demand that the mediator be careful not to usurp the clients’ decision-making. Further, the need in mediation for impartiality makes advice-giving nearly impossible, as any advice is bound to be more aligned with one party’s perspective than the other’s. For example, even the widely held assumption that both parties benefit equally from a pro-settlement bias does not hold up to the reality that one party is often more motivated to settle than the other.

Though Rogers did not explicitly address mediation, Della Noce finds a comparable context in which Rogers applies a non-directive intervention. In the context of group therapy, Rogers describes doing what transformative mediators would call a summary, in which he simply articulates the two contrasting viewpoints that group members have expressed, and acknowledges that they are different. Rogers’ beliefs about human capacity led him to an approach where his attention, his reflections of what clients are communicating, and his summaries of their differences led to improvement in clients’ understandings of themselves and each other.

So Rogers seems like a kindred spirit to us transformative mediators.

Dan Simon teaches and practices transformative mediation in St. Paul, MN. He also writes the blog at www.transformativemediation.org Dan Simon

Read more articles by Dan Simon at: www.adrtimes.com/articles/author/dansimon

March 2012 | 21

Book Review Buddah’s Brain: Neuroscience’s Lessons for Better Conflict Resolution

The book Buddha’s Brain: The Practical Neuroscience of Happiness, Love & Wisdom was published in 2009 by Dr. Rick and Hanson and Dr. Richard Mendius with the intention of blending the latest findings in neuropsychology with a general framework for healthy living. The piece was designed to be a comprehensible, accessible book aimed at helping a large audience understand both how the brain works, and how individuals can “manage” our brains to live effective, happy lives. This original purpose for Buddha’s Brain is all well-and-good, but further examination from the perspective of a dispute resolution professional reveals that the book provides many practical insights consumers and practitioners of ADR can use to help move their conflicts forward. Written with direct, succinct prose, Buddha’s Brain gives us a peak into how our brains handle conflict, and thus into different ways ADR professionals might consider managing the dispute resolution process.

One of the unique aspects of Buddha’s Brain is that it approaches the study of the brain and our emotions from a combination of perspectives, at times waxing on in philosophical discourse and at others using the tone of a pragmatic scientist, focused on the precise nature of the physiological structures being discussed. Reflecting this variegated approach, Buddha’s Brain touches on several topics directly applicable to today’s mediators, including discussions on the negativity bias of memory, how “empathy” actually occurs on a neuronal level, and how the brain tends to incorrectly attribute others’ intentions.

The Conflict Isn’t Necessarily What We Remember

Have you ever been in a situation where your relationship to a person, place, or organization became so soured that it became exceedingly difficult to remember any of the positive attributes that drew you together in the first place?

Chances are you have. As the authors put it, our brain is “like Velcro for negative experiences and Teflon for positive ones.” This effect compounds with previous negative experiences – literally every negative experience we have with, say, a particular person, causes neuronal circuits to fire and become more and more ingrained into our brain. With enough repetition, our brains become literally “wired” to 22 | ADR Times Perspectives

focus on, process, and make decisions based on the negative attributes of that person. This effect doesn’t just apply to other people, and can occur with any source of negativity, including entire organizations, places, or traumatic events.

For the ADR professional, it’s important to understand that many clients will have spent a lot of time growing and ingraining “negative circuitry” in their brains. Any experienced mediator knows full well the extent to which two sides can remember and recall completely different versions of events. The fact is, both sides may well be telling us the whole truth as they perceived it! While both sides may have begun their conflict with similar perceptions, repeated firings of their neural pathways may have literally “wired” them to filter subsequent events in a negative way, eventually leading to direct conflict. Understanding this process is more than just another way for mediators to understand clients and build rapport. If mediators see that clients are having trouble finding positive aspects of a previous relationship, and if trying to encourage a future relationship is important for resolution, neutrals can act on that knowledge. After a little rapport building to set the tone, taking simple steps such as asking clients about the past relationship with other parties, or asking a simple question such as, “What were the positive aspects of ‘x’ that first brought you together?” not only shows genuine concern, but also may just reorient parties to think differently about the other side – if only during mediation. These sorts of questions help to “short-circuit” their negative circuits, and can help the parties mentally unweave themselves from the negative thought processes that have kept them from resolution thus far.

Unlocking Sources of Empathy

One of the most important skills a mediator has is the ability to express genuine empathy and thus build rapport with all sides to a conflict. Buddha’s Brain provides great insight into how our brains process empathetic thoughts and feelings, and how mediators can maximize their ability to be as empathetic as possible. When a mediator enters a session, one of the first jobs is to listen to all of the “stories” parties have, and to quickly establish a genuine respect and trust with all sides. Many experienced mediators become so used to the routine that they stop consciously thinking about “being empathetic,” and this may be a mistake.

When we consciously think about “being empathetic,” we engage the planning centers of our brain (pre-frontal

cortex) to focus our attention on being empathetic in the situation. We further start “warming up” the limbic system of our brain – the seat of emotion and reward – to be ready for a “reward” of satisfaction from a successful mediation should we be empathetic. Literally, the conscious thought “I want to be empathetic now,” puts in motion many neural processes which can assist us in our task. Finally, throughout the process of rapport-building, it is useful for mediators to continually “check-in” on how empathetic they are being from time-to-time because doing so activates a powerful region called the anterior cingulate cortex, which “pays attention to paying attention.” These are all subtle processes that mediators can consciously control without anyone else in the room noticing. With practice, you’ll find that the habits you’d previously developed to build rapport have been enhanced by these new “mental habits,” which will magnify all of your mediation skills during session.

The Assumptuous Pre-Frontal Cortex

One concept often cited in conflict psychology is the fundamental attribution error – where people tend to attribute positive things in their lives to themselves and negative things to others or events, and vice versa for others. The fundamental attribution error can be a powerful influence on an individual’s perception of their conflict, and thus can powerfully influence any ADR professional’s attempts to help that individual move past the conflict. Buddha’s Brain explains how neuroscientists have linked this and other attribution errors to the same prefrontal cortex discussed just above. In addition to being the seat of planning and logical coordination in our “higher function” brain, the pre-frontal cortex also plays a crucial role in our ability to think about others’ intentions or perceptions. Neuroscientists call this ability “theory of mind,” and it is one of the fundamental abilities that separate humans from other animals on this planet. Unfortunately, our prefrontal theory-of-mind networks are far from perfect, and often humans incorrectly process assumptions about other people’s intentions. Even more, humans often link those incorrect assumptions to overall processing and logic about a situation, and never question the assumptions (the attributions) in the first place. Our brains are not efficient at attributing the intentions of others.

ADR professionals regularly encounter parties who have made many attributions about what other parties have done and said. Lawyers also make attributions about other lawyers in an attempt to be able to predict the other side’s next move.

And here’s the lesson: Allowing parties to make attributions about other parties is a huge risk, especially after the first few caucuses. Why? Because our brains just aren’t good at it (as many mediators have no doubt learned through the experience of watching parties try to “predict” the other side). Moreover, when parties are wrong about the intentions of other parties and act accordingly, the other parties almost always become confused, frustrated, and then they begin attributing right back. Pretty soon, parties have fully activated prefrontal theory-of-mind networks unsuccessfully trying to predict the other’s actions. Everyone can quickly lose sight of the big picture. For mediators, part of the job is to be the “gobetween” when necessary, and Buddha’s Brain suggests that this responsibility should probably include both clarifying the intentions of all sides and then making sure that all participants act only on what they know, and what they can control. After all, the parties sought dispute resolution so that there would be a gobetween, orienting and re-orienting to all parties’ needs. It is important to help all parties understand that the neutral’s role includes managing the intentions of everyone, so that no one party has to worry about it on their own. Reorienting parties’ expectations in this way helps them stay focused on making manageable, healthy decisions, and keeps them away from unproductive cycles of incorrect theory-of-mind guesswork.

Discover

There are many other sections of Buddha’s Brain that can be directly applied to ADR practices, and we at ADR Times encourage you to pick up a copy and see for yourself. More than that, Buddha’s Brain is a great resource for thoughtprovoking analyses of many life problems. Who knows, Buddha’s Brain may not only have the power to make you a better ADR professional, it might also provide clarity to other areas of your life.

March 2012 | 23

On the Edge

Court Funding & ADR: Accessing Justice

by Joe Markowtiz

One might think that with the economy finally starting to improve, the worst days of budget cuts for the justice system are behind us. Sadly, that is not the case. Recently, I heard LA Superior Court Presiding Judge Lee Edmon explain at a County Bar Association lunch why the situation might actually be getting worse. California’s state legislature began drastically slashing the courts’ budget several years ago, but the courts have managed to avoid the worst effects of these cuts by diverting capital funds and reserve funds to current operations. The bad news this year is that those capital and reserve funds are nearly depleted, and the courts are now faced with coping with the full implications of greatly reduced levels of court funding. Unless the bar is able to organize a successful campaign to restore prior levels of funding, we are faced with the prospect that a new round of cuts to court staff and services will cause substantial delays in the resolution of court proceedings, especially civil cases.

I happened to be sitting with a couple of other mediators listening to this talk, and could tell from their reaction and comments that we had mixed feelings.

Of course we all want to make sure litigants continue to have access to the courts. We hate to see justice delayed when people have a pressing need for resolution of their disputes. On the other hand, mediators tend to see

24 | ADR Times Perspectives

the courts as a bloated, cumbersome alternative to the more enlightened form of dispute resolution mediators offer. Mediators would like to think they can resolve more cases faster, cheaper and better than the courts can.

Mediators often succeed by helping people understand just how costly, painful, and unpredictable it can be to resolve disputes in court. Mediators may even start to believe that the courts should be avoided at almost any cost!

Why then, should mediators support restoring funds to the court system?

For one reason, it is the courts that establish rules against which disputants measure their proposed solutions.

People need to understand whether their interpretations of a contract are plausible. They need to know how juries might value various kinds of personal injuries or other torts. Almost by definition, alternative methods of dispute resolution cannot do this.

But the judicial system can and does provide a frame of reference that allows parties to test their settlement proposals.

In addition to serving as a measuring stick, the court serves as another kind of stick. Think of the “carrot and stick” kind of stick. Parties attending a mediation or settlement conference need to know that the court system is standing by as an available means of getting their case decided. Mediators often remind the parties that if they

can’t resolve their dispute by negotiated agreement, they are going to have to start preparing for trial, an unpleasant and costly prospect for most litigants.

If the court system is not functioning properly, that prospect becomes an empty threat. In state courts in California, the time it takes to get a case to trial has become increasingly longer because the courts are understaffed. When the time it takes to get a case to trial starts to stretch out, then the time that people feel the need to mediate also stretches out.

Mediation therefore functions best in a symbiotic relationship with the court system. The press of cases moving through the courts also helps move cases through alternative dispute resolution. If court delays increase due to funding shortfalls, that is likely to slow down the pace of all other forms of resolution as well.

Once we recognize that ADR works in tandem with the traditional justice system, we still might wonder whether greater reliance on ADR might actually save the state money. Whenever a mediator can persuade parties to avoid filing an expensive motion, the mediator can relieve a burden on the court system. When an entire case is settled in mediation, parties avoid an expensive trial and appeal. I think a lot about how court rules and procedures can be reformed to provide a larger space for mediation. Still I think it’s

a dangerous idea to think that we can rely on alternative dispute resolution to help the state deal with budget shortfalls.

The future of dispute resolution that many mediators imagine, while including a greatly increased role for alternative dispute resolution, is not necessarily going to be a cheaper system to operate. It is simply going to operate differently. Perhaps the courts will need fewer clerks and maybe even fewer judges, but the system will need more mediators and facilitators. One danger of the current funding crisis for the courts is that it threatens just the kind of experimental programs that may lead to a greater role for mediation within the justice system. I imagine, for example, that if additional staffing cuts are required in the court system, the courts’ ADR offices will not be entirely spared. It is not a sufficient answer to suggest that litigants can still obtain access to a private system of arbitrators and mediators. Those services will continue to play an important role, but we should not lose sight of the importance of a publiclyfunded, publicly accessible system of justice. However we envision the future justice system, that system is still going to play a vital role in upholding the rule of law and preserving the peace. Those basic government functions might need some reforms, but they also need to be supported and well funded. z

Joe Markowitz is a member of the bars of the states of New York and California, and a number of federal courts. Mr. Markowitz has served as a mediator for more than twelve years, has taken more than 100 hours of courses and seminars in mediation, and is a member of the Mediation Panels in both the District Court and Bankruptcy Court in the Central District of California, as well as the Los Angeles County Superior Court.

Have an article, story, comment, or topic suggestion you would like to share with ADR Times?

Email editor@adrtimes.com or contribute online at: www.adrtimes.com/contribute

A shorter version of this article appeared as a post on Joe Markowitz’s mediation blog, Mediation’s Place. www.mediate-la.com

March 2012 | 25

Mediation as the Unlicensed Practice of Psychology?

by Jasper Ozbirn

It is common knowledge among mediators, as well as the general public, that the unlicensed practice of law (UPL) is illegal. While there is some debate on what constitutes the “practice of law,” the rule is clear that a mediator may not practice law. On the other hand, many consider experienced attorneys and judges to be particularly qualified to act as mediators. In fact, states such as Colorado even require mediators have a basic understanding of the law in the area they mediate.

[1] However, there appears to be no concern that mediators may be practicing therapy or psychology without a license.

Definition of “Psychology” and “Therapy”

As set forth below, mediators often come very close to the practice of “psychology” or “therapy.” Under California law, this is illegal. See California Business & Professions Code (“B & P”) §§ 2908 (psychology) and 4980 (marriage and family therapists).

Business and Professions Code § 2903 defines the practice of psychology as providing a service for a fee that involves “the application of psychological principles, methods,

26 | ADR Times Perspectives

and procedures of understanding, predicting, and influencing behavior ...” Unfortunately, the code does not define “psychological principles, methods, and procedures.” Further, no cases have been decided that discuss the bounds of these terms or the limits of what constitutes the practice of psychology.

Similarly, the practice of “marriage and family therapy” is defined by B & P § 4980.2 as “service performed with individuals, couples, or groups wherein interpersonal relationships are examined for the purpose of achieving more adequate, satisfying, and productive marriage and family adjustments.” The only apparent limit on this definition is that the service must involve “marriage” or “family.”

Luckily, at least for lawyers, doctors, and a handful of others, these professions are exempt from the proscription of practicing psychology or therapy. But what about mediators (who aren’t also members of the exempt professions)? There is no exception. Thus, although a mediator may in fact be more capable than a doctor or lawyer in this respect, if such mediator crosses the line into psychology or therapy, he or she is taking a risk.

Overlap of Mediation with Psychology and Therapy

Practically no mediator will argue mediation involves no similarity to “psychology” or “therapy” as defined above. An act as simple as reframing a party’s statement to make it align closer with the spirit of settlement is a “psychological principle,” in as much as this technique appears in basic counseling books. Most effective Mediators use various other “psychological principles,” which may include acts as basic as reflection of thoughts and feelings and active listening.

Potential Liability

Should the fact that mediation shares some common techniques with psychology lead to potential civil and/ or criminal liability? Should there be an exception for mediators, as there is for lawyers? These are important topics, but are beyond the scope of this article.

Based on California’s present laws, as set forth above, there is a real possibility of liability for non-lawyer mediators. Although there appear to be no cases of liability or crimes against non-lawyer mediators for practicing psychology, there is at least one

Edge significant case involving a non-lawyer mediator found to have practiced law through mediation. [2] That mediator was sued, forced to pay to defend herself, and ultimately left the state as a result of charges that she illegally practiced law through mediation.

Thus, the possibility for liability exists.

Ways to Avoid Liability

Of course, the easiest way to avoid liability for the unlicensed practice of psychology or therapy is to abstain from mediation, or become a doctor, lawyer, or other exempt profession.

However, this is impractical for many, especially volunteer community mediators. Alternatively, the mediator could pay scrupulous attention to not crossing the line between mediation and psychology or therapy. However, there is always the possibility of being sued on this basis even if innocent.

Therefore, to protect against the result of the mediator in Connecticut, it would seem advisable to obtain professional liability insurance.

Jasper L. Ozbirn received a LL.M. in Dispute Resolution with an Emphasis in Mediation from the Straus Institute, Pepperdine University School of Law. He is presently an associate attorney with Citron & Citron in Santa Monica, California.

Read more articles by Jasper Ozbirn at: www.adrtimes.com/articles/author/ jasperozbirn ENDNOTES [1] Colorado Bar Association, Report Of The Alternative Dispute Resolution Section Of The Colorado Bar Association: Recommended Guidelines Regarding Unauthorized Practice Of Law Issues In Mediation, 5 (January 12, 2007) available at: http://www.coloradomediation.org/ccmo/docs/ UnauthPractLawFinal020707.pdf [2] See Paula M. Young, A Connecticut Mediator in a Kangaroo Court?: Successfully Communicating the “Authorized Practice of Mediation” Paradigm to “Unauthorized Practice of Law” Disciplinary Bodies (2009) 49 S. TEX. L. REV. 1047.

Finally, the law could be changed to make mediators—like doctors and lawyers—exempt. While this topic warrants further consideration, it is for now left for another day. z

March 2012 | 27

Commentary

Winning the Race

Taking Chances & Assessing the Risks

by Mikita Weaver I was fortunate enough to attend a Horse Race in Hong Kong. I heard about the race from a friend I met while travelling who just so happened to be a horse jockey in the United States. We were both eager to see what proved to be an exhilarating cultural experience.

Apparently, horse racing in Hong Kong is a really big deal!

Alongside the feverish excitement of the crowd, everyone paid close attention to the horses, the jockeys, the statistics, every little detail. Everyone carefully placed their bets on the computerised on-course betting terminals scattered about the huge arena. As the race began, everyone sat in the hot sun with their umbrellas, fixated on the race. Each person hoping for the big win.

Gambling. Some people like the rush. Others like the simple thrill of winning. Whether it’s at the slot machines, with cards, on the stock market, at our job, or in our personal life, we all take risks. We assess our situation and surrounding and occasionally take risks or gambles.

Other times, we sit back and make a more calculated rational choice.

But are we really capable of perceiving and interpreting the vast amount of information that should go into thoughtful decision making & careful assessment of risk?

We Don’t Pay that Much Attention

Christopher Chabris and Daniele Simons author the book “The Invisible Gorilla: And Other Ways Our Intuitions Deceive Us.” The book gets its title from a concept which recently became popular as a video on the internet. The video depicts basketball players on a full size court. The audience is asked to count the number of passes between the teammates. At the end of the 60 second clip, most viewers can answer correctly the number of passes.

However, nearly everyone misses the life size gorilla mascot that parades his way across the basketball court.

The simple truth is that we humans don’t pay that much attention to our reality.

The Expert is Not Always Right

One of the everyday illusions that Chabris and Simons cite is that the expert is always rights. We as humans are blinded to those with authority—the nice suit, the lab coat, the judicial robe. We revere those we perceive as experts. We defer to authority figures and are obsessed with those we perceive as having great knowledge. We assume that the expert gets its right—all the time.

Our Memories Often Fail

Another illusion is that humans remember everything correctly. Watching children, one quickly realizes just how different two people’s recollection of the same even can be: The vase breaks. He tells his teacher, “She broke the vase.”

She says, “No, He broke the vase.” And sometimes, they both think they are telling the truth. Yet, somehow, when we grow up, we forget that there are always two sides to every story.

Our human brains selectively recall only certain things. Our emotions shield us from seeing the whole picture.

Clearly, humans are flawed. We don’t pay attention. Our memories often fail us. We rely on experts often blindly, without truly ascertaining the appropriate evidence needed to make a sound decision. In reality, these flaws won’t seriously impact our day-to-day life. The “small gambles” and the “little risks” we take in our personal and professional life won’t suffer too much from the occasional oversight due to faulty memory or not paying attention. But for those who find themselves in Court fighting a legal battle, these human flaws will inevitably play a role in the outcome of the litigation.

Introducing the third party neutral, mediator, or trusted outsider. The mediator can help the parties realize how their

Mikita Weaver

own human flaws have prevented settlement. For example, a client’s understanding of the case is inevitably based on the lawyers, the expert witnesses, and the judge. A mediator is uniquely positioned to help the parties really think about what information they are relying on to make decisions about settlement. Moreover, by the time a mediator hears a dispute, there are two sides to the story. When this happens, parties often get frustrated and accuse the other side of lying. In reality, people simply don’t pay attention to every detail and memories sometimes fail. Each party has told their side of the story so many times that there is bound to be some inaccuracies in both. For example, the Plaintiff is forced to tell his or her story over and over again. The story is first discussed at the dinner table or over drinks with friends or family. Eventually, the story is told to a lawyer in a conference room. It is then repeated over and over again for case strategy, discovery, depositions, and trial preparation purposes. The mediator can step in and at least help the parties come to a basic understanding that the human mind is imperfect—and that perhaps the party isn’t necessarily lying. Blaming inaccuracies on one’s own memory may also be a way to save face, allowing the parties to move closer to settlement.

We gamble with our fate every day. But litigation has severe consequences, and there is a lot on the line. While it isn’t guaranteed that you will win the litigation “race,” it is guaranteed that you will endure a great deal of sacrifice if the battle is fought in the litigation arena. Recognizing our human flaws is helpful in moving parties away from an intractable position towards meaningful settlement—towards the true “finish line.” z

Mikita Weaver is the Editor-in-Chief of ADR Times, a premier online dispute resolution community. As an associate at Northrup Schlueter APLC, she focuses predominantly on litigation and arbitration in the field of construction insurance defense. She received her Juris Doctorate at Pepperdine University School of Law and received a Masters in Dispute Resolution from the Straus Institute. Mikita has been published on the Pepperdine Dispute Resolution Law Journal and worked at the Centre for Effective Dispute Resolution in London. As an avid traveler, she continues to explore various dispute resolution issues and how they vary from region to region. She graduated magna cum laude from Berea College with a philosophy degree and her favorite things include yoga, cooking, photography, and singing with the Legal Voices of Los Angeles and Lawyer’s Philharmonic.

Meet Mikita— www.adrtimes.com/editor-in-chief

30 | ADR Times Perspectives

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