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The Science Behind The Sense: Exploring Cognitive Neuroscience In Decision Making

For four days, March 18-22, 2009, some 20 professionals, a majority of them experienced mediators, but also including a doctor, a few lawyers, professors and others professionally engaged in conflict management, problem solving and decision making, gathered at Duke University for an intensive seminar on cognitive neuroscience. This is the kind of emerging research stuff that practicing professionals should be aware of, but all too often are not. Presented by the newly formed Master Mediator Institute in conjunction with Duke University faculty, led by the Co-Directors of the Center for Neuroeconomic Studies and faculty from other Duke departments, including the Fuqua School of Business, this ‘immersion course’ offered an intensive introduction. This is the kind of learning experience many of us have hoped for. Of all the conferences and courses presented over the course of the last 30 years, there have been few that I have found more exhilarating, worthwhile and, frankly, necessary, to advance the field of conflict management out of the intellectual doldrums in which the field has been immersed for several years.

All too often, workshops, conferences and even many advanced trainings have been repetitive. The topics remain consistent with the focus, still after 25 years plus, remaining on how to move from positions to interests and needs, and why collaboration is better than litigation, with a little spirituality thrown in for spice. There never seems to be sufficient time, content and focus to reflect on basic assumptions— what it is we think we are doing and why.

The MMI learning model: bridging the gap between theory, academics and practice, and between disciplines

One of the most obvious and serious omissions has been the failure of the field to reach deeply into other disciplines in order to draw out different perspectives on conflict management. Many practitioners think mediation and negotiation skills are of recent vintage unaware of historical antecedents that go back to the beginning of civilization. The consideration of negotiation was as much an issue in the Peloponnesian Wars as it has been during the current “War On Terrorism.” Why people and their leaders hesitate to negotiate their differences as much today as they did 2000 years ago, is worthy of exploration, if for no other reason than to be more effective in marketing our services. But beyond, the prescriptive ‘how-to’ stuff, most practitioners seem uninterested.

No area of understanding is more relevant and important for mediator competency than a basic awareness of how the human brain functions, perceives events, processes emotional reactions and cognitive responses, and formulates decisions. This awareness of cognitive neuroscience and psychology is at the very heart of our work in managing conflict and problem solving.

The fact that the study of the study of how people make decisions has been essentially ignored is not entirely surprising. The conflict management field, not unlike other professions, is predicated on the rationalist presumption that people, if given the opportunity, will be reasonable and cooperative because it is in their self interest and makes good business sense. The reality does not fit that design quite so neatly; despite a 25 year plus presence, the demand for mediation services remains underwhelming. That would tend to support the clearly emerging view that people, ourselves included, are not nearly as rational as we might like to believe. In fact, as Dan Ariely—one of the featured speakers in the course—– noted in the title to his well regarded book of the same name, people are ‘Predictably Irrational.’

This conference served four purposes, all sorely needed, exceptionally well.

1. It offered some 20 professionals, most of them experienced mediators from different parts of the United States and Canada, the opportunity to reach outside the standard fare and intensively study the basics of an allied discipline directly relevant to conflict management, namely, cognitive neuroscience and psychology.

2. It offered a luxurious model for learning that has seldom been made available. Included were presentations by some of the best researchers in the field, and nearly unlimited opportunities to ask questions and delve into discussion. This kind of post graduate seminar format goes beyond even what is available in most of the academic programs.

3. It opened the door to possible cross discipline collaboration between those who actually work with people faced with difficult decisions and those who study how those decisions are made.

4. It offered a rich opportunity for the participants to genuinely engage in reflective practice as they struggled to understand how principles of neuroscience might immediately and directly apply to their work, possibly modifying strategies, techniques and skills.

The origins of MMI

This seminar did not happen by chance. Robert Creo, a long time practitioner from Pittsburgh, PA, who has an already well established record for dedication to the pursuit of professional excellence in the field, having previously co-founded the International Academy of Mediators, and written widely, among other notable accomplishments, teamed together with Monique McKay, an equally passionate and dedicated practitioner, to form the Master Mediator Institute, as a not for profit organization in 2008, with one of the core purposes being to present integrated and cross disciplinary programs such as this. This was the first of a number planned.

Future intensive immersion courses are slated to examine cutting edge theory and innovative practice strategies and techniques in negotiation, relationship and group dynamics. They recognize, as too few seem to, that one of the greatest benefits of work in conflict management is that almost every human endeavor and discipline factors in to a conflict scenario and offers a unique, if not fresh, perspective that aids in managing the matter competently and hopefully, creatively.

Another purpose, of no less importance, is their intention to create a community of experienced and intellectually inquisitive mediators, decision makers, educators and scientists, dedicated to the development of innovative theory alongside practice skills in order to advance the art and science of facilitated negotiation. They have observed as many of us have, that if the field of conflict management is to mature beyond the boundaries of the merely prescriptive ‘how-to’ variety, which often constrains intellectual and professional growth, attention must be given to the larger system of ideas.

“The Science Behind the Sense (Of Being a Mediator)”

Literally holding a brain in your hands, even momentarily, as the participants had the opportunity to do in a seldom offered anatomy tour provided by a leading neuroanatomist, Dr. Len White, of Duke University’s faculty, gives a visceral and special appreciation of the fragility and complexity of the organ, that mere words or a picture cannot convey. Similarly, watching the image of a brain actually throb on a computer monitor in reaction to a word task in the course of an fMRI procedure— functional Magnetic Resonance Imaging—provided a whole new level of understanding.

In this and so many other ways, the course was the test run of an important prototype of a learning model. Organized in consultation with Creo and McKay, by Drs. Michael Platt and Scott Huettel of the Duke University’s, Center for Cognitive Neuroscience, they are Co-Directors of the Center for Neuroeconomic Studies. They, along with other Duke facultys, are the co-authors of a new highly regarded text, The Principles of Cognitive Neuroscience (2008).

Curiously, not unlike the conflict management field, the study of neuroeconomics cuts across multiple traditional disciplines and in some ways also must struggle for acceptance with none of it’s ‘parents’ being willing to wholly embrace it. What was especially refreshing about Drs. Platt, Huetell, Kevin LaBar, and many others of the Center who presented and interacted with the MMI participants, was their interest to more fully appreciate our work as negotiators and mediators.

Of particular note in an age when academics still hold firmly, even if questionably, to the purity of their disciplines—-be it law, medicine, social work, counseling, or business and economics— cracks are rapidly developing. There are pressures within to cross boundaries and integrate disciplinary inquiry. At the same time, academics are being pressed to acknowledge and include practitioners’ experience. For their part, competent practitioners are not excused and slowly realizing that to be effective, they must become more reflective about the nature of their approach. Their justification for a particular style or technique is too often a simplistic and reductionist, “this is the way I learned to do it…,” or, “this is what I am familiar with and how I always do things.” What is familiar and comfortable is frequently rationalized as being the ‘best’ approach. Many discussions around the pros and cons of the use of the caucus, or the usefulness of opening statements, for example, are notorious for this kind of thinking.

Although dislocating to many of us as participants, the course required that we as conflict management professionals reach out and do our own work in making the connections between what we do in a mediation with our newly acquired and just slightly better understanding of cognitive neuroscience. To the credit of the Duke Faculty and Creo and McKay’s intentional design, we were not ‘spoon fed.’

Immersing one’s self in how the brain functions, the complexity of countless interconnections and integrated functions that manage the simplest perceptions, motions and decision-making, cannot not be underestimated. This was so for many especially with regard to decisions making. The Duke faculty in general, and in particular, LaBar demonstrated the limits of the still popular notion that reason and emotion can be separated and that brain function, even though there is a right and left hemisphere, follows the Cartesian dualist framing of the 17th Century. This supports the work of other well regarded neuroscientists, such as Antonio Damasio, that there is no such thing as a ‘cool headed reasoner.’ (Descartes’ Error, 1994) All cognitive decisions are made in an emotional context; there is no ‘separating people from the problem,’ as Fisher and Ury suggested in Getting to Yes.

If it was not clear to practitioners before, this course confirms the need for a careful re-examination of many of the basic operating premises underlying the most prevalent models of conflict management and mediation practice and teaching. For example, what became even more evident is that the notion of a third party acting as a neutral, objective and dispassionate problem solver, is especially suspect. The mediator is as prone to being ‘predictably irrational,’ as are the parties to a conflict.

Dan Ariely, an Israeli born neuroeconomist on the Duke faculty, gave a dinner presentation “On Cheating,” ostensibly in honor of Bernie Madoff’s plea of guilty for his billion dollar Ponzi scheme. He delightfully recounted a story of father chiding his son who had just been suspended from school for stealing a pencil, saying that he could not understand that behavior because he can take as many pencils as his son might need from work, so why would he need to steal? The moral is that most people cheat a bit—not a lot—even if it is irrational. People do not necessarily want something for nothing, but they do like feeling as though they have gotten away with something, or at least have not been played for a fool. This is a useful lesson for conflict mediators to keep in mind: most people don’t need to ‘win,’ but they don’t want to feel like they have lost either, and if they can get a little something extra on the side, so much the better.

Overall, there were three significant pieces of learning in this course. First, this area of neuroscience, being new and about the brain, is ripe for being exploited in one fad theory or another. There is some question about how much the term ‘neuro-collaboration’ or ‘neuro-law’ is anchored in science. This course offered some aid in developing the critical skills necessary to question over-reaching claims. Nothing became more clear than the ill advisability of assuming causal connections between a particular behavior and a specific brain location.

Second, what became more apparent is that adherence to orthodoxies of style, set models of practice, or the dictates of a particular ideology become all the more elusive and dubious in the face of this better understanding of how the brain functions and responds. They are artificial constructs imposed on conflict management practice and as likely to constrain as to expand creativity and effective problem solving. While possibly a noble overarching goal, the mediation of any particular conflict has as much to do with peacemaking as the court trial of any particular matter has to do with justice; there is no reason to presume a clear connection.

The last, and perhaps most profound realization is the need to reconsider the basic approaches to the practice and teaching of conflict management, problem solving, and decision making in light of what is being gleaned from cognitive neuroscience and psychology. The rationalist paradigm of the logical and deliberate actor, coming to the table to work collaboratively, objectively engage in cost-benefit analyses, and methodically move to creatively solve problems, has always been suspect. Now, in the face of science, traditional concepts of reasonable discourse appear to be disintegrating as we speak. That does not mean rational analysis is not of significant value and worthy of pursuit, only that it is not sufficient in and of itself for appreciating and dealing with complex issues. A different kind of thinking frame and vocabulary that includes a broader awareness of the place of emotion in decision making is required.

Next Steps

Creo and McKay have in mind a regular series of immersion courses, the next one tentatively set for the Fall of 2009. Participation is by invitation and necessarily limited, however, they are interested in including people who are intellectually curious and engaged, and are willing to commit to the participation and preparation requirements. The maximum number of Mediator and Executive Colleagues in any given year will be 66; the limit on the next course is about 50 Colleagues, and attendance at a least one immersion course per year is required to maintain the community.

They credit a man by the name of William Wulf with the idea of a ‘collaboratory’ and have adapted it for the MMI format. Specifically, this is a “….center without walls, in which the nation’s researchers can perform their research without regard to physical location, interacting with colleagues, accessing instrumentation, sharing data and computational resources, (and) accessing information in digital libraries.” (Wikipedia-Wulf, 1989) No question a new fangled concept, but given that so is the cross disciplinary work in neuroeconomics and conflict management, perhaps necessary and fitting.

Both Bob Creo and Monique McKay are committed to further study of the concept of “mediator sense,” specifically, examining the unique attributes of a mediator’s insight. More immediately, MMI has a website with general information,, and a members only section with virtual forums dealing with specific research topics. While open to member suggestion, decisions about programming will remain with the two founders. The scope of MMI is ambitious, but offers high quality learning in return.

Fortunately, for those who hope for the conflict management field to move forward intellectually and professionally, Bob Creo and Monique McKay have, with great skill, determination, and resources, set a foundation for the realization of a vision of how learning can happen across disciplines and bridging theory and practice. Hopefully, many other programs dedicated to the study of conflict management will begin to imitate the model. In the meantime, there is little question but that MMI is several steps ahead, and likely to remain so for some time to come.


Robert Benjamin

Robert Benjamin, M.S.W., J.D., has been a practicing mediator since 1979, working in most dispute contexts including: business/civil, family/divorce, employment, and health care. A lawyer and social worker by training, he practiced law for over 25 years and now teaches and presents professional negotiation, mediation, and conflict management seminars and… MORE >

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