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It Turns Out That Humans Make Human Decisions

I googled the question “What makes a good lawyer?” and found 49,300,000 results. There are lots of articles about analyzing, taking positions, fighting, winning and being a good adversary. Reading these articles wakes up the competitive side in me. I love the logic of the law, researching positions, thinking up clever arguments and advocating a cause. And forget happiness, I love the pursuit of the victory.

As much as I love the art of advocacy and the opportunity to chalk up another win, I never could quite buy what seemed to me to be a sense of purposeful blindness about the law. Take tort law for example. The paradigm for assessing responsibility, or blame, depending upon how you look at it, for harm caused to others seems a little odd to me. Truth be told, I never really was able to make complete sense of it. While I understand the case law surrounding negligence, the fact that we are supposed to construct cases around the myth of the reasonable, rational man was a pretty big leap in logic for me.

Good lawyers are skilled in advocating and defending positions, arguing about rights and framing disputes in rational arguments that fit into strict legal frameworks. This makes sense to the “players” in the system-the advocates for both sides, the judges and those who teach the theory. However, things get “messy” and “unfocused” when individuals who may be in the system for a single “game” want to bring other arguments and criteria into the decision making processes. What is relevant to an individual involved in a lawsuit for the first time is often not admissible in their case. Even repeat visitors to the system are often frustrated by the constraints the law imposes. Individuals and corporate entities look to the law for resolutions to disputes and are often unable to articulate what is really important to them and are frustrated when they are unable to obtain remedies that are appropriate or meaningful for their circumstances.

Thinking about the intersection of individuals and the legal system reminds me of a recent conversation that I had with my family as we passed a graveyard in southern Virginia. We drove by a picturesque white frame church and many of the tombstones were a little crooked. Thankfully there were no plastic flowers but there were patches with a few weeds and patches of overgrown flowers. There was just a touch of an unkempt look about it. I commented that I like these old cemeteries. “Me too” Steve said. “They remind me of people’s lives. They’re just a little bit messy.” To me, envisioning the legal system, as clean, neat, logical, that every claim fits “in a box”, there is symmetry and balance and above all that it is orderly doesn’t line up with the way things really are. After all, the players in the system are human. And humans are messy in life and even in picturesque little cemeteries, in death.

Something about the messiness of people’s lives, and their stories about relationships, past events and future aspirations appeals to me. I have given up the clean, logical constructs of the law in favor of practicing mediation. So, the relevant question for me is, “What makes a good mediator?” Google retrieves 13,700,000 results.

I don’t have to look at the results. It seems that there is a discussion about this issue at every professional gathering that I attend. The last time I was at a large dispute resolution conference I was at a well attended session and we started a discussion about what makes a successful mediator. Time and time again I find that these discussions go to the “qualities” of the mediator. Often, a good mediator is described as a:

“Good listener”
“Has good communication skills”
“Can think outside the box”

It’s nice to sit back and think “I am empathetic. I do think outside the box. I am such a good listener and I am always respectful. It is even better when you have a friend sitting beside you and he or she smiles at you as the words are spoken. Then, all the great thoughts you are having about yourself and your ability as a mediator are confirmed. Alas, someone always spoils the fun and says in a loud voice’ “Quit the navel gazing!!!” And, as it should be, the reverie and the self-aggrandizing spell are broken.

A more productive discussion should focus on what we need to do to become good mediators beyond emphasizing our good qualities. We also hear lots of talk about the need to become a profession. And what does that mean? The Webster-Merriam online dictionary describes a profession as “…a: a calling requiring specialized knowledge and often long and intensive academic preparation b: a principal calling, vocation, or employment c: the whole body of persons engaged in a calling.”

There are lots of ongoing discussions about minimum standards, accreditation and training. And often mediators genuinely feel they had a “calling” to mediate. Some of us have been mediators as long as we have had siblings. Mediators often look to their professional backgrounds or “previous lives” to determine what standards should be adopted by the growing mediation field. There is a tendency to focus on the legal field as having appropriate standards and guidance to rely upon as we move from a calling to a profession. The fact that many talented, experienced and successful mediators come from backgrounds other than law can help us become a unique profession, outside the shadow of the law, if we start looking at what I think is the obvious.

While it is useful to understand the rational basis of logical decision making, as a mediator I find that logic and reason are seldom at the core of the decision making processes when individuals are faced with making complex decisions especially when conflict is involved.

I think good mediators need to go beyond discussions about their qualities and discussions about effective models that should be used to frame decision making processes. I think good mediators understand that people make human decisions. I think great mediators then seek to understand the art and science involved in the dynamics of human behavior that underlie those messy, human decisions. In making decisions, sometimes we seem to use our heads. Sometimes we seem to use our hearts. We should stop pretending that our own decision making and that of the people we interact with is neatly divided into orderly rational processes or chaotic emotional responses and instead seek to understand how we make reasoned decisions informed by emotion. We should seek to better understand how rapid, intuitive responses may be regulated by the executive function of our brain. We should come to terms with the fact that sometimes our “emotional” decisions are better than our “reasoned” decisions and that our brains are wired and we are well equipped to figure out which abilities to tap into in every circumstance. Perhaps there is too much emphasis on whether we make rational or emotional decisions. Instead, we should focus on how we make integrated decisions.

In addition to understanding the integration of emotion and reason, in order to be better mediators and negotiators, we need to understand human behavior from a trans-disciplinary position. Studies conducted by psychologists, economists, neuroscientists and a myriad of other disciplines have a lot to say about human behavior, risk, uncertainty, empathy and trust. As we study the science and expand our knowledge about the science of decision making, our ability as mediators to facilitate decision making, negotiate and design effective mediation processes are enhanced. Lots remains unexplained and we continue to rely on that unexplained but real, sense that tells us what step to take next, what range a case will settle within, what is really at the heart of the dispute, appropriate pacing of negotiations, what questions to ask to get useful information and innumerable other insights that guide us as we mediate and negotiate. In a recent discussion with a group of neuroscientists, discussing this phenomenon that Bob Creo and I have coined as “Mediator Sense” the scientists say experience and knowledge does allow us to “know” something without being able to pinpoint exactly where and how we might come to a conclusion about a particular aspect of a case.

Our work as mediators often finds us guiding and supporting others who are faced with incredibly difficult choices often made in uncertain, stressful and even traumatic circumstances.

In order to study the science related to integrated human decision making Bob Creo and I co-founded the Master Mediator Institute (MMI). We created a community of the most intellectually curious and passionate mediators we know together with highly respected and creative professionals who make and facilitate complex decisions on a daily basis. We make connections with leading educators and scientists who have deep understandings about human dynamics and the way in which the brain and the mind work. Our work at MMI is centered around Immersion Courses in which we go to a prominent academic institution and create a unique curriculum for our Colleagues to help make connections between the science of human behavior with our work in negotiation, advocacy, mediation, conflict resolution and decision making.

At our first Immersion Course in March of 2009, presented in co-operation with faculty from Duke University, we gained an appreciation for the complex workings of the brain and had a fascinating discussion about the strengths and limitations of neuroscience. As the field of neuroscience is presented in more of the popular press it is important to have an appreciation of what is science, what is fiction and what is simply unknown. As one of our lead faculty, Dr Michael Platt explained, the brain is not a computer. Instead, we have a complex system of interconnected neurons that performs like a social network rather than like a central processing unit. In what one Colleague described as a “Shut Up” moment we were able to see a human brain and have a unique sensory experience to visualize and touch a real brain and observe, as it was dissected, parts of the brain that are difficult to pronounce but incredible to see. I gained a new appreciation for how complex the brain is, how much we still have to learn about thinking, reasoning, relating and imagining.

Dr. Scott Huettel, another lead faculty at Duke, spoke about how different decision variables influence distinct brain signals. There is exciting, cutting edge research illustrating that differences between individuals as it relates to decision making often reflects differences in the brain. Neuroscience provides new ways of thinking about human behavioral phenomena and understanding how the brain works helps us integrate our knowledge and experiences about human behavior and decision making.

Dan Ariely, author of Predictably Irrational, talked to us about irrational behavior, intuition, cheating, decision making and policy design. Dan is highly engaging and challenged us as mediators and negotiators to start testing or checking our intuition rather than always relying on it as we make decisions and take actions that affect others. In order to find out which are good or effective decisions we need to begin creating methods to systematically study particular decisions and behaviors.

In October, 2009 MMI presented its second Immersion Course at UCLA where we studied social identify, fairness, intergroup biases and stigmatization from leading experts. Dr. Phillip Goff presented research about stereotype threat that should make us rethink how commonly held assumptions about bias and stereotypes affect the ability to interact in a positive manner with others. Dr. Paul Zak, Dr. Marco Iacaoni and Dr. Russell Poldrack presented different perspectives regarding behavioral neuroscience leading to greater understanding about the role of oxytocin and trust, the science of empathy and how we connect to each other and the neuroscience of decision making and cognitive control. Our lead faculty member, Dr. Craig Fox, gave us insights about how people make judgments under uncertainty and helped us understand biases in judgment and allocation tasks. Understanding how allocations are made helps us increase our skills as mediators and negotiators as we frame offers and define sets of issues and furthers understanding about risk and decision making. Dr. Maia Young explained how, when given the choice to read information consistent with our beliefs and inconsistent information, we tend to choose that which is consistent with our attitude. She hypothesized that counter -intuitively, anger might actually alleviate this tendency or confirmation bias. Studies show that individuals feel angry end up with better information and anger is associated with a better cognitive outcome. The studies about human behavior present opportunities for mediators and negotiators to integrate theory into real, meaningful ways in their practices. Knowledge increases skill and deeper understanding leads to an increased ability to facilitate decision making of the participants involved in conflict and in the decision making process.

Humans are not rational, mechanical beings but complex, emotional beings capable of rational thought but full of cognitive biases and emotions which affect decision making and behavior. There is a new “neuroworld” opening up as new tools allow scientists to see into the brain and inquisitiveness among a wide range of disciplines and professionals study decision making, emotion, conflict and neuroscience to take new knowledge about the brain and apply it to their work. The Master Mediator Institute opens up new opportunities for us to learn more about human behavior, how we relate to each other, integrated decision making and how our brain processes information. We strive to make connections between the work scientists and academics do and our work as professionals involved in negotiation, mediation and facilitated decision making.

I am privileged to work with people in intimate, complex conflicts. People share incredibly personal stories with me. Many have been involved in tragic and incredibly difficult stories with me and look to my co-mediator Bob Creo and I to help them find a way to express their concerns with an adversary and to guide them in a process to resolution.

I believe I have a responsibility to look beyond the myth of the rational man and expand my knowledge and skill to facilitate decision making in situations that are stressful, risky and full of uncertainty. It is important to understand the strengths and limitations of intuition and explore the science of decision making as it relates to conflict and facilitating the resolution of difficult, messy, human predicaments.


Monique McKay

Monique is the co-founder and Director of the Master Mediator Institute and co-mediates complex, multi-party commercial, personal injury, catastrophic loss and medical malpractice cases with Robert Creo. She also has experience in community mediation including neighborhood disputes, juvenile issues and victim-offender cases. Her commercial experience includes employment, real estate and… MORE >

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