From the Business Conflict Blog of Peter Phillips.
The annual Conference of the International Bar Association in Vancouver presented several panels of unusual distinction and interest. This first report covers a group of speakers posing the questions: “What does it take to persuade? How does a lawyer cause an arbitrator, judge, businessperson or other lawyer, to willingly reach the desired conclusion?”
Co-Chair Jose Astigarraga set the scene with a domestic anecdote. After arguing with his wife about whether women or men are better drivers, he saw an article on the topic and shared it with his wife. Both concluded that the article supported their (opposing) points of view. “Confirmation bias” is the tendancy to accept information that conforms with one’s predisposed belief, and to reject nonconforming information — without being aware of that selective process.
Equally pervasive is the use of benchmarks. Ask a group the population of Turkey. Then ask an identical group whether Turkey has more or fewer than 17 million people. You will get different responses. Students listening to a guest lecturer who is exhalted prior to the class will be more approving of that lecturer than students who are not told anything about the lecturer. This, as readers of this blog are well aware, is “anchoring,” and is sublimely useful in negotiation.
Spanish lawyer Manuel Conthe ran through other common perceptual biases that pose obstacles to the difficult task of changing one’s mind — or having one’s mind changed for one. He used the title of one of my current favorite books — Predictably Irrational — to explain the domain of “behavioral economics.” For example:
Hindsight bias: Before an event occurs any number of contingencies may exist. After the event occurs, the event is recast as predicable, or even inevitable. This is especially true in tort claims. As they say in Spain, “After the bull passes, everyone is courageous.”
Anchoring: Again, the use of a number to manipulate the answer. “How many countries are in Africa?” gets a different answer from “Are the number of countries in Africa more or less than 35?”
Need for narrative: Conthe says we do not hear facts — we hear stories. Lawyers persuade by telling stories, not by relating facts. These stories feature recognizable cultural architypes and have external narrative coherence if they are successful in being heard by the listener. They resonate.
These stories will of course be screened through the confirmation bias of the jurors. But random facts will not just be screened — they will be reconstituted into stories by each listener, using their cultural or experiential predispositions. Examples: Objects held in the hand of urban black people are perceived to be weapons; Bernard Madoff in a suit and wavy silver hair is perceived to be trustworthy.
Chief Justice Robert Bauman of the Supreme Court of British Columbia offered remarks that I found particularly useful as a mediator between opposing viewpoints. Paraphrasing Cicero, he admonished: “If you wish to persuade me, think my thoughts, feel my feelings and speak my words.” Asking someone to change is useless, said Judge Bauman, and might make you seem paternalistic and breed resentment. Know the audience you address and “reduce the cost of persuasion.” Find the easiest path for the judge to conclude what you want. Don’t try to change their predispositions; work with their predispositions to show that your story appeals to their common sense.
This means, of course, never lie; never mislead; never breed skepticism or disrespect. It also means, know the person you are trying to persuade. Use common sense and appeal to the listener’s common sense.
(This reminded me of my father’s memorial service, which was attended both by the high-falootin’ and also by many alchoholics whom Dad had helped during his own 30+ years of recovery. Said one attendee: “He met you where you are.”)
Veteran arbitrator David W. Rivkin brought it home for us practical-minded folk. Make the decision-maker comfortable with the conclusion you want them to come to. Talk to them directly and on their terms, not to a “jury” that isn’t in the room. Dispel “hindsight bias” by presenting contemporaneous documents that show motive at the time the act occured, not ones that characterize it after it happened. Arbitrators bring their own common sense to the hearing, reminded Rivkin, as well as feelings, values and opinions. Approach them with an appeal to their common sense and rationality and they will fill in the gaps of the story the way you would wish.
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