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Hazards of the Job: good listening and mental health – Kluwer Mediation Blog
To the extent that a mediator’s job involves listening to people complain and engage in negative behaviour, mediators face a serious mental health hazard.
Research shows that listening to ongoing negativity impairs the brain function of the listener. Yes! Listening can be bad for you if you have a whinging party in the room, and it’s even worse if you have two or more.
Trevor Blake writes about this phenomenon in his book, Three Simple Steps: A Map to Success in Business and Life. While Blake is not specifically thinking about mediators, the potential implications for the mental health of mediation professionals is alarming.
Apparently being exposed to too much complaining can have a dumbing down effect. Exposure to 30 minutes or more of complaining destroys neurons in the brain’s hippocampus – a part of the brain that is used in problem-solving and decision-making. In other words, our capacity for problem-solving decreases the more we are exposed to complaining and conflict. Yet, as mediators, our job is to listen to exactly this type of non-productive negative blah blah in order to support parties to make a shift towards positive problem-solving. Could it be that while we are enhancing their capacity for problem-solving, we are decreasing ours? What sort of impact could this potentially have on our mediation style and even our professional abilities over time?
You may laugh. Yes, perhaps it’s seems an unlikely scenario now. But science is moving much faster than most of us realize. As neuro-scientific findings become more accessible, there will be implications for all aspects of our professional and personal lives. Scientific findings such as these may even affect our professional indemnity insurance premiums.
So what can we as mediators do to inhibit the depletion of neurons by complaining parties and in doing so protect our problem-solving capacity? For it’s not exposure to conflict that is potentially detrimental to our brains but the lack of constructive engagement with it.
Here are three thoughts:
1. Introducing some distance between the mediator and the parties can be helpful. For example, factoring in breaks for our own mental health is important. Often we are so focussed on the parties that we forget about ourselves and our own ability to be influenced, especially on an unconscious level. So breaks, food, water, and fresh air – not just for the parties and their lawyers but also for mediators – are an essential component of designing the structure of mediation processes.
2. Move from ADR to ODR. Now some of you might be cleverly thinking that you can create some distance by introducing online aspects into your practice and placing the parties at the other end of a cyberlink. Yes, an interesting idea. Does it make a difference? Possibly … but probably not. The research shows that exposure to negativity via TV is just as bad.
3. Charge more money for whinging clients. So even if your brain is the worse for wear, your wallet will be better off.
Now, that made you smile, right?
On that note, let me say thank you for staying tuned in 2015. Stay posted for exciting things in 2016 at the Kluwer Mediation Blog.
For original article, please click here.
Negotiation and Memory – Kluwer Mediation Blog
Is it true that as we get older, we tend to forget things more easily? Or is it that some things are just less important?
As negotiators and mediators, we often deal with complex layers of information that appear all too much for any one person to recall. So we enter the negotiation room burdened with our big folders or sporting our slim iPads laden with mega data containing all the information that we might possibly need. I wonder though, if we sometimes rely too much on the documents when we could be structuring and presenting information and issues in ways that would maximise the negotiation experience — for everyone.
Let’s start with an overview of memory. From my reading there seem to be three types of memory: immediate, short term and long term. Immediate memory can take in a massive amount of information, but only for a couple of seconds. Some of this information passes into short-term memory, which works as a kind of central processor for the brain. We can think of it as our working memory. Certain information from our short-term memory will eventually establish itself in our long-term memory.
Of course some male readers might be brave enough to suggest that much conflict would be prevented if information destined for a woman’s immediate memory remained there rather than finding its way into her long-term memory – but let’s not go there today. I want to focus on the short term memory and how we can make the most use of it in negotiation.
The capacity of our Short Term Memory has been the subject of significant neurological and psychological research over the last 60 years.
The first seminal study on Short Term Memory capacity was conducted by Millar (1956). He famously argued that our Short Term Memory can only hold 7 (+/– 2) pieces or ‘chunks’ of information at any given time, and so was coined the “Magical number 7” for Short Term Memory. While Millar’s was an early seminal study in the field, more recent research has expanded on these early findings. Recent studies continue to show that our Short Term Memories do have a limited capacity, and that ‘chunking’ is critical to the amount of information we can hold in in our Short Term Memory. So this means that information needs to be presented in chunks both verbally and visually with the aim that negotiators at the table will be able to recall the chunks, rather than the detail. (You can look up your suitably-chunked iPad for detail).
At the same time, these studies show a lot of individual difference in the amount and type of information that we can retain.
For example, some researchers posit that Short Term Memory is more likely to be the ‘Magical number 4’ than 7, and that other processes are important in influencing our Short Term Memory limits. Factors that can affect our Short Term Memory abilities may include:
• our level of rehearsal of the information in our Short Term Memory (e.g. practising in front of the mirror before going into a negotiation),
• our level of attention,
• the amount of time elapsed before we must recall the information,
• the amount of interference we encounter, and
• our memories’ overall ability to recall information when needed.
Further, certain types of information may be easier than others to ‘chunk’ and so seemingly increase their Short Term Memory capacity.
From a negotiation standpoint, the capacity of our Short Term Memory is important as this information is used by our executive functions for decision making. So if we are unable to take in enough, or the right kinds of, information, this will have a direct impact on the quality of decisions that we make.
A negotiator’s initial psychological state is important as certain negative states can reduce the amount of information we are able to hold in our Short Term Memory. For example, anxious individuals absorb and recall less information in our Short Term Memory then non-anxious individuals. This means if negotiators are anxious at the commencement of the negotiation process, they will be more likely to miss key information or more regularly need information to be repeated (particularly following breaks) as they may have trouble holding and recalling multiple pieces of information at any given time. Essentially, the calmer participants feel during negotiation, the more likely they are to absorb the required information. If you notice that some parties seem to be mis-recalling or missing key information, it could be related to their Short Term Memory and the way in which they process information.
The good news is that neuroscientific research suggests that we can influence how our Short Term Memory serves us as negotiators. Through pre-negotiation stress-reducing and focus-building mindfulness activities, we can reduce sources of interference and raise our magic number. Here it’s important to pay attention to how much information we can hold at any given time and whether we have a preference for how we like to receive information.
For example, when someone reads a news story aloud to you, do you find yourself asking to read it afterwards? If so, you may prefer to ‘chunk’ visual information. How do you cope with ‘interference’ during an actual negotiation such as interruptions, breaks, managing the process while also retaining and using key information? Recently I attended a negotiation with my 14 month old daughter in tow. although she was well-behaved (by baby standards, that is) one of the lawyers at the table was completely thrown. (And, no it wasn’t a tactic, just an unavoidable situation.) So, depending upon your Short Term Memory strengths and weaknesses, you may need to adjust aspects the negotiation process. For example, you may choose to use checklists, note-taking, visualisations or you may ask to sit far away from the baby.
Consider taking steps to accommodate different communication preferences in your negotiations. Think about using multi-modal methods of communication such as visual and verbal summaries and physically walking around the proposed site of your join venture development. This will help all negotiators to better absorb, process and understand information. Also keep breaks relatively short so as not to ‘interfere’ with the effective communication of key information from the session.
For original article, please click here.
What’s your country’s mediation-friendly ranking? – Kluwer Mediation Blog
As mediation seeks to claim a larger slice of the international dispute resolution pie, an increasingly important question for lawyers is: where and according to which law would I choose to have the mediation of my clients matter conducted?
Say your client is a multinational corporation doing business with numerous organizations around the globe. Your advice is to insert a dispute resolution clause with mediation as a central component. Typically we select jurisdictions with which we are familiar to do business with. Smits explains the research that backs this up. This is sometimes referred to as the status quo bias. It might be our own jurisdiction or it might be another internationally well-known jurisdiction that has been the standard home for applicable law in dispute resolution clauses for decades.
Read MoreDo we need laws to help us say sorry? – Kluwer Mediation Blog
On the last day of the year, like many of you, I find myself reflecting on the events of the past 12 months, the highs and lows, the tensions and the takeaways. Here is one of the takeaways.
In January this year I spent a day hiking through some spectacular scenery in Hong Kong. We were six adults, including one couple and their five year old son, Max.
The trail we had selected was long and the hike would take a good part of the day. We had set out early with sunscreen, water and food provisions. After several hours of glorious weather, and good humour, one of our merry band, Mike, strained a leg muscle. He could still walk but only with a limp and it was painful. As we were half way along the trail, we decided to continue as the terrain would be easier on the second part of the trail. So we found Mike a couple of fallen tree branches to function as crutches and he put on a brave face as we continued at a much slower pace. Several hours later we had almost reached civilization and were taking a refreshment break. As Mike was resting on one of his tree-crutches, little Max thought it would be really funny to sneak up behind him and push the tree-crutches out from under him. This he did. The tree-crutches fell to the ground and Mike with them. Ouch!
Little Max was stunned. Mike too. Max’s Mum jumped up, “Max, say sorry to Mike. You caused him to fall and he has hurt himself. Say sorry.” Max squirmed uncomfortably and looked in every direction he could; just not at Mike.
“Maaax”, warned his mother, “Say sorry.”
More squirming backed up with vocals suggesting a strong reluctance to comply with Mum’s request.
“Max!” This was Mum’s ultimatum. “We are not going one step further until you say sorry to Mike.” And with that she took off her backpack and sat down, prepared for a long wait.
This seemed to have some effect on Max. He watched his Mum for a short while, then looked over to Mike, who, meanwhile, had been helped to his feet.
After some reflection, Max opened his little mouth, sighed, squirmed again, looked away and then seemed to utter something that could conceivably be interpreted as a “sorry”.
With that, Mike quickly accepted the apology (which was probably more important to Max’s Mum than to Mike) and everyone breathed a sigh of relief and got on with the walk home.
Despite the happy ending, I can’t help but ask, as Sabine Walsh has done in a previous post, why was it so hard for Max to say sorry? Sabine asks herself the same question and suggests some possible reasons: “Is it the perceived loss of face, the admission of guilt or error, the feeling of vulnerability? Is it the fear of a loss of control or bargaining power in a dispute? I would challenge anyone to think about the last time they apologised, in a genuine and heartfelt way albeit, and not to admit they felt at least a little bit better afterwards. Is carrying around the burden of guilt or regret really easier than saying sorry?”
An apology is not a static event. It is an intensely relational process between two people. An authentic apology can be incredibly powerful with potential benefits for the aggrieved person, the apology-maker, and the community affected by the event which triggers the apology. Apologies restore and build relationships and communities, and offer insights and learning to everyone involved.
The important role of apology in human relations and social structures is not a new discovery. It has a long history in traditional social-legal systems as part of restorative justice processes. A beautiful example can be seen in The Orator, the first ever Samoan feature film, entirely shot in Samoa, in the Samoan language, with a Samoan cast and story. Here the realistic ritualised apology goes on for a number of days and nights until finally – and much to everyone’s relief — the aggrieved Saili accepts the apology.
So back to the story of Max. By the time little Max is a teenager, he will have learned from his Mum about the importance of a sincere apology in appropriate circumstances. Like most of us, Max will intuitively know when he should say sorry. But will he always do it?
Fast forward a number of years. Imagine that Max is 21 years old. He is driving his Dad’s car with a good friend in the front passenger seat. This friend happens to be a law graduate. They are involved in a car accident. As Max instinctively moves to get out of the car to see if the passengers in the other car are okay, his lawyer friend grabs Max by the arm and warns him: “Whatever you do, Max, don’t say sorry“.
What should Max do? He is torn between his intuitive impulse to apologise and the legal advice from his friend that saying sorry could have serious legal consequences for him.
There are many examples of situations where apologies appear to have been withheld or delayed due to uncertainty about legal repercussions. One Hong Kong illustration is offered by the tragic Lamma Island ferry collision in 2012, in which 39 people lost their lives. When a government representative finally offered a public apology many months later, families of victims retorted that it was too little too late.
How can we manage the tension between the social and emotional needs associated with saying sorry and the legal risks in doing so?
One policy approach has been to introduce “apology legislation”. What is apology legislation?
Apology legislation originated in the United States in 1986. The then senator of Massachusetts, William Saltontall, had lost his daughter in a car accident. The injurious driver never expressed regret because he feared that an apology would be used against him as evidence. When the Senator retired, he and his successor introduced a State Apology law to encourage apologies by removing the fear of being incriminated. Massachusetts became the first State to adopt a law providing that apologies (defined as expressions of sympathy) could not be used as evidence in civil litigation related to motor vehicle accidents. Subsequently, other American States such as California and Texas enacted similar apology legislations. Since then all Australian States and a number of Canadian States such as British Colombia and Saskatchewan have enacted apology laws. Scotland and Hong Kong are currently exploring the possibility of developing apology legislation.
Next month, in 2015, I’ll write about the different types of apology legislation and the relationship between apology legislation and mediation.
Happy New Year!
Original article here.