Physiological Bases of Willpower as Important Explanations for Common Mediation Behavior

The Glucose Model of Mediation: Physiological Bases of Willpower as Important Explanations for Common Mediation Behavior is a new article I co-authored with psychology professor Roy Baumeister of Florida State University and two excellent practicing lawyers, Scott Simpson and Daniel Weber of Simpson, McMahan, Glick & Burford

The abstract:

Success in life requires the ability to resist urges and control behavior. This ability is commonly called “willpower,” the capacity to overcome impulses and engage in conscious acts of self-control. Social psychologists believe willpower is a finite resource dependent on physiological bases including glucose (from food and drink), sleep and other forms of rest, and the absence of stress. In short, people who are hungry, exhausted, or highly stressed tend to have less willpower than those who are well-fed, well-rested, and relatively stress-free. In addition, a person who exerts self-control (uses willpower) tends to reduce temporarily the amount of willpower remaining, so decision-making and other aspects of self-control are weakened during this depleted state. Restoring willpower (and thus restoring decision-making abilities) can often be achieved by physiological replenishment, such as: ingesting glucose, sleep (and other forms of rest) and breaks from stress.

The physiological bases of willpower combine with the importance of deadlines to offer a compelling explanation for why so many mediations follow a predictable pattern. Most significantly, the physiological bases of willpower go a long way to explaining why many mediations scheduled for a single day begin with stalwart opening positions and end with a signed settlement agreement late in the day. This Article provides a physiological explanation of typical mediation behavior and shows that an awareness of physiology reveals ethical issues with current mediation practice. Part I of this Article discusses the science, specifically the Strength and Glucose Models of Self-Control and their applications across studies of medicine, morality and negotiation. Part II outlines the course of a typical daylong mediation and shows the extent to which common mediation behavior is well-explained by the physiology of willpower when people are operating under deadlines. Part III examines the significance of the Glucose Model of Mediation by identifying ethical issues relating to willpower depletion in mediation.

Sept. 2016: Recent scholarship questions the willpower depletion (ego depletion) theory. Hat Tip to University of Tennessee Law Professor Becky Jacobs for pointing this out.

Videos of Mediation and other Alternative Dispute Resolution

The American Bar Ass'n/Suffolk University Law School Video Center shows how mediation and other ADR techniques can be used to resolve a wide range of disputes. Teachers of ADR may download videos and roleplays at no charge for use in their classes.

Good Tips for Negotiators, Especially Lawyers

When leading negotiation scholars are concise, they come up with nuggets of wisdom.  These are in the form of recipes for cooking up a deal and I particularly like:

“Having those who matter present”. Sanda Kaufman

 

“Knowledge of your counterpart, available remedies, relevant law and facts”. Nancy Welsh

“the heat is ultimately helpful, and you’re not the only one feeling it.” Noam Ebner 

“Add knowledge in increments (from listening to your counterparty and also doing

your own background research) till the remaining ignorance tastes acceptable.
Add in a small amount of doubt with each new proposal by the other party;
balance it with 1 part research and 1 part creative counter-offer.” Chris Honeyman

and Roy Lewicki’s entire entry:

· Figure out what you want
· Understand what would and could not be a mutually acceptable agreement
· Get to know and understand the other party
· Frame an opening statement
· Ask the other to reciprocate and listen to them carefully
· Ask each other lots of questions to assure understanding
· Work toward a common understanding
· Treat the other with respect and dignity

 

 

 

Negotiating with Difficult People

Negotiating with Difficult People, 

a new article by John Harington Wade, Law Professor Emeritus, Bond University.

He defines difficult people as behaving in ways detrimental to his/her own best interests and to the interests of his/her community, for example:

- sends long insulting emails

- uses unnecessarily inflammatory language 

- arrives at meetings unprepared

- tries to ambush people with new information

- is totally focused on self-interest (“I need…..”), and is apparently

unaware of needs or goals of others

- lies and exaggerates

- cannot identify what is important or a priority in their lives

- spends more time and money on the dispute than it is apparently worth

:

1 

Integrative Negotiation

Stephen Futeral's nice summary of a core concept of negotiation theory: integrative negotiation: " In integrative negotiation, the parties: (1) move away from their positions (“I win! You lose!”) by considering the needs and concerns of the other side; (2) consider the alternatives to NOT reaching a negotiated settlement agreement; (3) use objective criteria; (4) focus on the problems and NOT the persons involved; and (5) think creatively."

Futeral's statement "in law school, lawyers are taught many things, but the art of negotiation isn’t one of them" is unfortunately, still too true.  Many of us law professors teach negotiation as a standalone course or as part of an ADR course but there's still a big gap between the importance of negotiation in law practice and the extent to which it's taught and practiced in legal education.

Intermediaries in Negotiation Can Be a Negative

Intermediaries, such as real estate brokers, can have benefits but they can also make things harder.  Karass gives the example of the bad faith negotiating tactic, the false acceptance.  His advice is talk directly to the other side's principal by cutting out the intermediaries:  "take things into your own hands as much as possible.  Don’t let third party intermediaries like brokers or middlemen handle the action.  Insist on having your position heard by the principals involved." "do the administrative and running around work yourself."

Emotions as a negotiating tool

Harvard Business School Professor Michael Wheeler's book, The Art of Negotiation: How to Improvise Agreement in a Chaotic World, gets a nice review in my favorite newspaper, the Financial Times.  As the reviewer, Alicia Clegg, says "Empathy and emotions – both one’s own and those of the other side – play a crucial role in negotiating and dealmaking..... Emotional awareness can help you navigate blind spots and prejudices and arm you with self-control."

Good negotiating tips include "paying close attention to what others express through body language, words and tone of voice," and if your counterpart "is unreasonable you may need to bang the table, say 'no' loudly or walk away – but it should be you, not your emotions that make the choice."

22 Tips to Improve Your Negotiation Skills

22 good negotiating tips from Karrass.  Among them:

"If you get people angry, they will get even by rejecting your message, even when it is good for them." and "The Chinese say, 'Time brings things in slow degrees.'  The skilled persuader starts early and lets acceptance time, repetition, and logic do the job by slow degrees."  Fits right in with yesterday's post on patience as a virtue in negotiation.