Son: Mom, you know we’ve been making this cool video of trick shots?

Mom: Yes

Son: Can I get up on the roof to make a shot?

Mom: No!!!

Son: Why Not?

Mom: YOU HAVE A BROKEN LEG…

Next Day

Son: Please can I get up on the roof?

Mom: Are you kidding me? YOU HAVE A BROKEN LEG! Are you looking for another one?

Next Day

Son: Can my friends get up on the roof?

Mom: No, I don’t want them getting hurt either!

Son: But Mom!!!

Mom: No. No way, no how.

Next Day

Son: How about if you watch them and make sure they are safe, then can my friends get up on the roof?

Mom: Seriously, if they are going to fall, then I get to watch them fall? This is your best offer?

Next Day

Son: How about if my friends already were on the roof and made the shot?

Mom: Are you kidding me? WHEN DID YOU DO THIS?

Son: Last week, before I started asking you. I knew you’d say no but I wanted your permission before we added it to the video.

Mom: Is everyone safe?

Son: Yes, do you want to see the shot?

Mom: I suppose……..oooh, cool shot!!!

And here is the link to the whole video http://www.youtube.com/watch?v=P34btWylSeI The (banned) roof shot is the second one. If you watch for Noah, you can see the boot on his broken leg–otherwise, he is the director and editor.

May you all have better success negotiating than me!

Cross posted at Indisputably.

As the authors write,

Indeed, the choice to spend rather than save reflects a very human—and, some would say, American—quirk: a preference for immediate gratification over future gains. In other words, we get far more joy from buying a new pair of shoes today, or a Caribbean vacation, or an iPhone 4S, than from imagining a comfortable life tomorrow. Throw in an instant-access culture—in which we can get answers on the Internet within seconds, have a coffeepot delivered to our door overnight, and watch movies on demand—and we’re not exactly training the next generation to delay gratification.

“Pleasure now is worth more to us than pleasure later,” says economist William Dickens of Northeastern University. “We much prefer current consumption to future consumption. It may even be wired into us.”

Cross posted at Indisputably.

In July 2011, Wisconsin had the 10th highest foreclosure rate in the United States, only four spots behind the State of Florida.  Several initiatives in Wisconsin have attempted to inject mediation into the foreclosure process, with varying amounts of success.  Purely voluntary processes are flailing – with lenders refusing across the board to even attend the voluntary mediations.  More suggestive processes are seeing varying amounts of success.

However, it seems that the Florida program has also been slow to gain ground.   (The Florida program requires that lenders try to reach a mediated agreement prior to seeking judicial involvement.)

A recent report from Florida shows that only 3.6% of these mediations are resulting in written agreements.  This is a far cry from the generally stated 85% national success rate for mediation in general.  Why such a vast disparity?

First, the 3.6% number is of all cases, not just the cases in which the borrowers agree to take part in the mediation process. (As stated above, the program is compulsory for the lenders – it is voluntary for the borrowers).  The settlement rate jumps to nearly 25% when the mediation is actually accepted by both parties.

Second, the nature of foreclosures has an inherent power imbalance.  Mediators are trained to be cognizant of a power imbalance and must work hard to make sure that the power imbalance does not affect a party’s ability to self-determine an outcome.  With the mountain of paperwork that they must sign between the promissory note, mortgage, rights of assignment, and other forms, borrowers may feel that there is nothing that they can do – perhaps due to a lack of knowledge of options.

Third, having worked as counsel for banks in a foreclosure, I know that the bank is often not interested in “creative” solutions.  Deed-in-lieu of foreclosure and maybe a payment plan – this was the limit of the creativity the banks would normally show in a foreclosure situation.  And why should they show more?  The law, the contracts, and the facts are all in their favor.  There is little need to negotiate.

However, is a 25% success rate that bad?  Getting 1 in 4 contested foreclosures out of the court system is a great thing.  In July 2011, there were 4,534 foreclosure filings in Wisconsin.  Even at 3.6% success rate, there would be 163 fewer foreclosures per month.

Wisconsin should look into the Florida program, as well as the programs in Ohio and New Jersey, and should find a way to add this compulsory mediation step into the foreclosure process.

Editor’s note:  Marquette University Law School has a Milwaukee Foreclosure Mediation Clinic.

Can you introduce yourself?

Sure, here you go.

As a Kaiser Permanente Health Care Ombudsman – Mediator (HCOM), I bring a record of experience and success navigating in highly complex environments and working effectively with individuals at all organizational levels from diverse cultural and ethnic backgrounds in health care, academia and medical education administration. For four and a half years prior to coming to Kaiser Permanente, I served at The Charles R. Drew University of Medicine and Science as the Center Administrator for Behavioral Neuroscience Research Center and later as the Administrative Director for the College of Medicine.

In addition to a Ph.D. in Psychology I have an Ombudsman Certificate from the International Ombudsman Association (IOA) and a Mediator Certificate from the School of Law at Loyola Marymount University.   I am presently the only Certified Organizational Ombudsman Practitioner at Kaiser Permanente. The certification is through the IOA certification board of trustees.  Previously, I held certifications in health care administration, behavioral health care administration and correctional health care.  I am a previous Fellow in the American College of Health Care Executives.

Highly developed analytic and communication skills enable me to influence consensus decisions under time and situational pressures. Through active listening and narrative techniques I help parties to develop and generate options to assist in the resolution of individual concerns, organizational change and critical situations.

What does a HCOM do?

Serving as the designated neutral, a Kaiser Ombudsman is neither an advocate for any individual or the organization, but rather is an advocate for fairness.  The Ombudsman provides the continuum of services, including gathering information needed for assessment of the situation, assistance in interpreting institutional policies & procedures, developing options including those “outside the box”, and providing necessary interventions such as meeting facilitation, mediation and negotiation.  Your Ombudsman informally investigates complaints — opening lines of communication.  My focus is to assure consideration of those issues unaddressed by other existing channels such as Risk Management, Patient Safety, Quality Improvement or Hospital/Medical Administration.  Using an array of mediation tools such as shuttle diplomacy and other neutral functions (e.g., coaching, conciliation, and brain storming that helps people to help themselves).  In addition, I ethically mediate mutually satisfying agreements before they are in the litigation pipeline, track concerns to closure and provide feedback to senior management.

The primary focus when the Ombudsman is involved is to achieve a  resolution concerning patient-clinician issues at the earliest possible opportunity and lowest possible level, well before they are elevated to a legal claim.  Typical interventions may involve issues of:

• Perceived medical mistakes
• Unanticipated adverse outcomes
• Dissatisfaction with the treatment outcome
• Quality of care concerns
• Poor patient-clinician interactions
• Potentially compensable events

Lastly, in my role I bring an appreciation of how physicians are affected when their patients achieve less than optimal results or incur unanticipated adverse outcomes.  The medical clinician is often the forgotten victim in cases that have a poor medical outcome.  So I am sensitive to that fact and ensure that my services are both accessible and useful to physicians and other clinicians.

Can you speak to the art versus science of conflict resolution? In other words, how important has formal training been in your practice and what concerns do you have if any regarding lacking in training?

Training in my view is very important for those working in conflict resolution.   It is not sufficient to be a good listener, although listening skills are important.  Nor are highly developed problem solving skills wholly enough.  What is required is adequate training and supervised practice in communication, problem solving, negotiation and behavioral analysis in order to be a successful practitioner.   Having said this I recognize that there are successful practitioners who do not have formal training, and have not spent time in supervised practice nor have they developed a habit of reflecting on their practice with one or more trusted colleagues.  They are in the minority and a reasonable argument can be made for and con to new practitioners beginning this way.   What I have seen in my own practice and as a result to observing the practice of colleagues is this, without proper training you have a low probability of success.  Even with training there is no guarantee of successful practice.  But the trained neutral has a better chance of success and can be more aware of opportunities for practice improvement.   My last statement reminds me of my father’s favorite saying regarding education and training, “As long as you know what to do you can always work.  When you understand why you do you can always improve.”

Based on my experience as a psychologist working with people under stress and in distress, I have come to realize that both art and science are necessary in order to provide the best practice environment, offer the most appropriate interventions and have the biggest impact in working with people through medical conflict.  Here’s what I mean:   It is inefficient to develop my practice as a neutral based on the anecdotal evidence of my few cases and constricted experiences. It is far better to base my practice on the evidence available in the literature and from research where sample are sufficiently large to produce results that have a high probability of being caused by factors others that chance.  The problem with developing evidence-based practice as a neutral is the paucity of reliable research available to us practitioners.  But where it is available we should evaluate and use it. That’s the science.

The art of practice is required because we are working with people, who may share some similarities, but are at their core individuals, often with unique and idiosyncratic responses to the same event or intervention.  So the techniques we use must be nuanced and massaged to produce the intended result.  Not only are people different from each other in their responses but tend to be inconsistent in how they respond across time, situations and people even when those factors are very similar.

And, for our legal audiences, are any HCOMs JDs?

The HCOMs as a group come from various backgrounds and professions, not all of which are in health care.  Of the 28 HCOMs practicing in California across 35 locations, five are lawyers.  Point of fact, of the last three new hires two are lawyers.   The education and experience is diverse among the group.  There are registered nurses, psychologists, marriage and family therapists, social workers and business people practicing as Kaiser HCOMs.   What is common among them is the training as both Ombuds and Mediators.  While some have been mediators or other types of neutrals before coming to Kaiser each person is given specific Ombuds training based on the Standards of practice and ethical guidelines from the International Ombudsman Association and interest-based mediator training.

Questions from the audience?

This does not mean people should shut down and stop working toward their goals; it merely means that people should seek to achieve their goals away from the table.If parties’ positions are in direct conflict, it is respectful to acknowledge them as valid and worthy positions to have (rather than assume that they have less value and should change). At that point in time, transparency in process is more important: “Ok. We disagree. We are now going to do X (such as, seek guardianship over your child in order to provide treatment you are refusing). Here are available resources for you to contact in order to respond (lawyers sensitive to area, advocacy groups, etc).”

Respect goes both ways and does not equate to complete acquiescence.  Disagreement can occur without losing compassion.

Thank you, Prof. Calboli, your comment was excellent.

From Mary Ferwarda: It was the last day in an exciting, but very packed and exhausting schedule. We had just come from free time on the beach in Tel Aviv on the most perfect morning — sunshine, light breeze, few crowds — and I, personally, was dreading having to sit inside for yet another lecture.  When we all packed into a room at Tel Aviv University, and the speaker pulled up his Powerpoint, I took a deep breath to pool all of my energy to pay attention.  I should have taken a deep breath to prepare to be blown away.  Mr. Moty Cristal lectured, or rather, preached, his piece on crisis negotiation to a roomful of rapt students and professors.  Combining a pointed wit, quick humor, and a couple of Hollywood movies, Mr. Cristal walked the class through his experience negotiating with Palestinian militants who barricaded themselves in the Church of the Nativity in 2002 to avoid capture by the Israeli Defense Forces (IDF). 

With this event as a framework, Mr. Cristal discussed the movement between the parties’ power, self-identified rights, and underlying interests throughout this negotiation. He also focused on the balance between controlling the negotiation process while holding a “mindset of uncertainty” to flex to the ever-changing nature of crisis.   Ultimately, Mr. Cristal left the class with a four-step method of approaching crisis negotiation:  1) Diagnose the situation before acting;  2) Analyze the options available in your (broad) toolkit; 3) Respond in appropriate measure; and 4) Don’t forget to breathe!   After just over an hour of the intense give-and-take of Mr. Cristal’s lecture style, I took yet another deep breath, this one full of energy, hope, and gratitude. I was energetic about the far-reaching effects of ADR, hopeful about the good people accomplishing good results in this highly-conflicted region, and grateful to have participated in a week of such transformational education through Marquette University Law School! 

From Aaron Vanselow: Professor Cristal, an experienced crisis negotiator, seemed to promote that rather than simply trying to follow BATNAs, WATNAs, and other formal negotiation strategies line by line, the real key is that negotiators must always keep an open mind and constantly keep track of the basics.  The most important point he sent home with us was “power.”  Be aware of it, know who has it, know the sources of it, and know how to use it effectively.  Therefore, to be effective negotiators, we should at all times be mindful of what state the balance of power is in, know how we can change the balance of power to be in our favor, and finally take advantage of the balance when it is in our favor by having creative solutions that are at least marginally acceptable to both sides (and if there are no terms that are marginally acceptable to both sides, rephrase it so that there are).  In negotiation and dispute resolution, power plays an exceedingly important role.  Power is perception.  The trick seems to be controlling the perception and negotiating with finesse.  Doing that effectively requires awareness and much more preparation than action.  After all, as Professor Cristal said, “When the only tool you have is a hammer, every problem will always look like a nail.”

Cross posted at Indisputably.

We traveled to Jerusalem, the Galilee (where we slept at a kibbutz right on the Sea), Safed, Nazareth, the Golan Heights, Haifa, and Tel Aviv. In addition to visiting important religious sites along the way, our itinerary included tours of the Supreme Court and the Knesset, visits to Haifa, Bar-Ilan, and Tel Aviv University law schools, meetings with co-existence groups like the Parent’s Circle (a group of bereaved families from both sides) and Ir Amim (an NGO working on Israeli and Palestinians equality in Jerusalem), a briefing from the legal advisor to the Northern Command of the Israel Defense Forces, meetings with practicing attorneys, a meeting in Nazareth with a lawyer from the Arab Center for Law and Policy, and so on.

One clear highlight near the end of the trip included dinner at Aharon & Elika Barak’s home. You might recall that Justice Aharon Barak was our Hallows speaker this past fall. As former president (chief justice) of the Israeli Supreme Court, Aharon Barak is widely considered the “John Marshall” of Israeli law. His wife, Elika, just stepped down as Deputy Chief Judge of the Labor Court. Not only did they help coordinate the visit to the Israeli Supreme Court at the beginning of our trip, which included a meeting with the first Israeli Arab judge on the court, they provided a home-cooked meal in their backyard while discussing judicial activism and the role of dispute resolution in the court system!

Over the next few days, I’ll be posting some of the student reflections from the trip. We are also hosting a public debriefing of the trip at the Law School this Monday, April 4th in Room 267.  The entire community is invited.

One of the goals of focusing on feelings in a negotiation class is to help students learn that they can be emotionally engaged with clients and, therefore, with their own work as lawyers without becoming identified with them. Lawyers who understand clients at an emotional level are better able to represent the client’s needs.  And a lawyer who is sensitive to the emotional cues of his counterparts in a negotiation is better able to navigate the tricky waters of dispute resolution in a way that satisfies his client’s needs without riding roughshod over the other parties involved.

After laying out the benefits of covering emotions in a negotiation class, the authors then provide several practical examples of how negotiation teachers can effectively incorporate a study of feelings into the classroom experience.

This paper is just one of three new papers by Andrea on various aspects of teaching negotiation, all of which appear as chapters in Venturing Beyond the Classroom (Honeyman et al., eds. 2010).  The abstracts and links for the other two appear after the jump.

“What Travels: Teaching Gender in Cross-Cultural Negotiation Classrooms,” coauthored with Sandra Cheldelin and Deborah Kolb, is available here.  Abstract:

Our cross-disciplinary team tackles the inconsistencies of gender teaching as seen from the perspective of law, business, and peace studies negotiation courses. In the process, we reconsider gender in the context of culture, demanding a forthright and coherent approach to topics now too often cut up into little boxes of “content.”

“Instructors Heed the Who: Designing Negotiation Training with the Learner in Mind,” coauthored with Roy Lewicki, is available here.  Abstract:

We argue that while our field has made great progress in determining what to teach and how to teach it in negotiation, there has been a surprising reluctance to make the move from “mass production” to “mass customization” that so many other industries have successfully adopted. “The Who” of our training has so far been addressed seriously, they surmise, by only an elite subgroup of trainers. We explain how this can and should change.

Now, Andrea has a new paper that discusses some of her own empirical research showing that women lawyers seem largely to avoid the trap, at least in negotiation settings.  She and her coauthors consider why this might be and how women lawyers might avoid the trap in other settings. 

Here is what they say in the abstract:

The 2008 election highlighted a dilemma often faced by women in the professional world — a double bind between being perceived as competent or as likeable. . . .

Interestingly, lawyers do not seem plagued by this same double bind. After reviewing election coverage and social science research, this Article focuses on research about lawyers demonstrating that, in style and in effectiveness, there is no difference between how female and male lawyers are perceived. In a study of lawyers rating other lawyers in their most recent negotiation, female lawyers were described in terms that were similar to their male colleagues (ethical, confident, and personable) and both were equally likely to be judged as effective in general. In fact, women lawyers were rated more highly in assertiveness than their male counterparts, and yet did not seem to suffer negative consequences for violating feminine proscriptions. This Article examines why lawyers appear to escape the backlash effect and argues that unique features of legal work reduce the perceived incongruity between assertiveness and proscribed feminine behavior thereby attenuating the likelihood of backlash. Finally, the Article concludes by suggesting further advice for how lawyers can deal with the backlash effect in contexts where incongruity is still salient.

Entitled ”Likeability v. Competence: The Impossible Choice Faced by Female Politicians, Attenuated by Lawyers,” the article appears in vol. 17, no. 2 of the Duke Journal of Gender Law & Policy.  Andrea’s coauthors are Catherine Tinsley, Sandra Cheldelin, and Emily Amanatullah.

To be human is to be in constant negotiation with other people, and those negotiations will either end in “yesses” or in “no’s.” And because we have needs, because we know what we think we want, because we are vain and have egos, we want those exchanges to end with a “yes.” We want our cravings to be met, our opinions proven true and our positions affirmed. A “yes” brings satisfaction. Our will has prevailed, our efforts have paid off, our selves have been validated. A “yes” means we were right.

“No’s” are less fun. “No’s” signal defeat. When someone tells us “no,” we feel a little piece of us die. We are bruised and we are hurt, diminished in the eyes of others and in our own eyes.

But here is the thing. Since our lives are filled with negotiation, we all know that “no’s” await us all; they lurk right around the corner for each of us. So the question isn’t how to avoid them; they are inevitable. The question is, how do we respond to them when they happen? Which leads us back to my original question: “Can you grow from a ‘no?’”

Both of our answers are undoubtedly ”yes,” and his sermon is quite eloquent in all the ways that hearing “no” can make us stronger.  As for me, I would argue that negotiation theory shows us the usefulness of hearing “no.”  No’s can make us more creative, no’s can make us step back and rethink, no’s can enourage us to bring in other opinions about how to get something done.  I truly believe that the most effective negotiators not only know how to get to yes, they realize that the pathway to yes might be strewn with no’s along the way.

Cross posted at Indisputably.

Negotiating isn’t just one of several leadership competencies, it is the most important tool at women’s disposal.  A woman can work on being well networked or technically brilliant, but without the ability to ask, she has nothing.

I couldn’t agree more — we all need to be negotiating more effectively. 

And only a few days later, Maureen Dowd at the New York Times opined that women are often given the false choice between intelligence and sexuality and notes that Marilyn Monroe, unlike today’s politicians, actually tried to have both.  (It’s an interesting argument . . . .)  In any case, the linkage between false choices, what I’ve called likeability v. competence, and the unwillingness to negotiate, is unfortunately nothing new.  As I’ve written with Cathy Tinsley, Emily Amantullah, and Sandy Cheldelin in our latest interdisciplinary take on what is going on with women in general and women lawyers in particular (Likeability v. Competence: The Impossible Choice Faced by Female Politicians, Attenuated by Lawyers),  it does appear that the trap of either being likeable or competent holds women back (and is clearly at play during election season).  At the same time, some good news appears to occur with female lawyers, who seem to escape this backlash because their role, status, and expectations as a negotiator do not fit into the “feminine” stereotype but rather the “lawyer” one.  And, as one of my students just asked, is that good news for women in general or just for women lawyers?

Cross posted at Indisputably.

So, to say the least, students were captivated with her stories of negotiating both with the Iranians and North Koreans as well as her insight as to how gender did, or did not, play a role in her numerous cross-cultural negotiations.   For example, she spoke of how the Iranians were more concerned with her authority (and apparently her height as a “tall woman”) than her gender.  On the other hand, the North Koreans needed to see her be tough (and she noted that this required some significant acting on her ability since she normally does not raise her voice and threaten to walk out) before taking her seriously.  Having just written on the interesting interplay of gender and culture in a book chapter with Sandy Cheldelin and Deborah Kolb, I found this particularly insightful.  Lucy also discussed how important it is to avoid getting caught up in the trivial issues that are unimportant and can hinder a negotiation — such as who gets to take credit for the final resolution — and help move the parties along.  She hypothesized that this willingness to share credit might also be gender-related but, in this case, served her with much success over the course of her career. 

Additionally, Lucy also spoke about investment arbitration and the potential to add mediation as a process choice given to states and individuals.  In my post last April about the conference at Washington & Lee, I’ve discussed this at length and no doubt will be returning to it.

Cross posted at Indisputably.

PH = √(e2 + ve2)(d2) + (cg + dr)2 + p{(4< s >2)(4< p >2)}2 + (vi + t + te)2 + {(4< c >2 )(4< du >2)}2

This is the key to the equation: 

(e): eye contact (1=none; 5=direct) — 5

(ve): verbal greeting (1=totally inappropriate; 5=totally appropriate) — 5

(d): Duchenne smile — smiling in eyes and mouth, plus symmetry on both sides of face, and slower offset (1=totally non-Duchenne smile (false smile); 5=totally Duchenne) — 5

(cg): completeness of grip (1=very incomplete; 5=full) — 5

(dr): dryness of hand (1=damp; 5=dry) — 4

(s): strength (1= weak; 5=strong) — 3

(p): position of hand(1=back towards own body; 5=other person’s bodily zone) — 3

(vi): vigor (1=too low/too high; 5=mid) — 3

(t): temperature of hands (1=too cold/too hot; 5=mid) — 3

(te): texture of hands (1=too rough/too smooth; 5=mid) — 3

(c): control (1=low; 5=high) — 3

(du): duration (1= brief; 5=long) — 3

Since handshakes have traditionally been used to open discussions and to seal the deal, we should probably add this handshake formula and practice sessions to the negotiation syllabus – there is a built-in scoring mechanism after all! General Motors plans to use the results of the study to train their Chevrolet (dare I say Chevy) dealers to shake hands the “right way.” If it’s good enough for Chevy dealers, seems to me it’s good enough for law students (though many of them may balk at the mathematical aspect).

Cross posted at Indisputably.

Additionally, women are generally viewed as effective communicators while employing “feminine” communication styles, but have been chastised for taking on styles normally attributed to men. For example, Hillary Clinton has received continual criticism for talking too assertively. (For more on this, see my book chapter with others on gender, politics and negotiation or  my article comparing Clinton’s experience to female lawyers)  On the other hand, female candidates who are perceived as likable might also be trivalized.  (See a great Newsweek article from early July, Too Hot to Handle.)

Parker’s article seems to suggest, contrary to Campbell’s findings, that men are subject to equal amounts of criticism. What do you think? Would you agree that Obama’s style, in comparison to past presidents and to the stereotypical male politician, is “feminine” and that he is suffering as a result of that adoption? Is this sentiment true of other men who adopt the “listener” style?

Cross posted at Indisputably.

The session started out with slides that listed how women communicate or how women negotiate.  I think, in retrospect, that the speakers may have been trying to highlight some of the stereotypes about women from the 1970’s and ask whether these were still relevant but – without any introduction to what they planned to do, cites to the outdated research, or other signposting — it appeared that the speakers were presenting these comments as current and true (even if that was not their intention).  When asked what research this was based on, the speakers stated that “this is what the research shows. ”  As some in the audience continued to challenge further assertions about the research, the tone went downhill and unfortunately, rather than becoming a learning experience, became more of an argument, which continued even after the session.  All this, of course, at a dispute resolution conference. 

I wanted to unpack a few key things from this session. 

First, as presenters, academics, and scholars, it is incumbent upon each of us to know the research in any given area on which we speak.  One of the frustrations was that the presenters referred to “research” without differentiating as to where, how, and by whom the research was done.  (I think it was taken primarily from an ADR textbook that they use, although I have not confirmed this.)   So, below, I am linking to a batch of the latest research on gender in negotiation.  

My second point is linked to the first.  Like many presentations, this one presented a mix of research that applies to lawyers or has been done on professionals versus research done on girls.  For example, Carol Gilligan’s work on ten-year olds is interesting (and important and groundbreaking) AND  not as relevant in terms of giving advice to adults.  If we are teaching in law schools (or presenting at law conferences) with our goal being to give good negotiation advice to all of our students and we have a very limited amount of time to talk about differences — racial, gender, ethnic, cultural, etc. — we need to make sure that our advice is pointed and useful.   If we start our courses, our textbooks, or our presentations with outdated and offensive stereotypes, we risk that the inaccurate message is the only one heard.  We end up spending the rest of our advice, or readings, or lecture then digging ourselves out of the hole we have created.  I, for one, am done teaching Carol Gilligan as a start, then Carrie Menkel-Meadow’s response (to start digging out of the hole), then other pieces, and then, finally, my research and Charlie Craver’s showing no differences. 

Enough.  Let’s start with the good news — as lawyers representing clients, men negotiate just as effectively as women – and focus on the exceptions and key questions: what can each gender learn from the other in terms of tendencies? when do women face backlash? what are gendered contexts that make negotiation more difficult? what are the most effective strategies to avoid this?  This is not to say that there are no gender differences or that, magically, stereotypes have disappeared.  This is, however, a call to focus on what matters most for the future lawyers we teach.

Finally, ironically, one of the pieces of advice that the presenters gave — asking a potentially sexist counterpart if he held stereotypes about women negotiating — may have come from a misunderstanding of my own work (can’t make this up!).  Let me clarify — my 1994 article “Effective Responses to Offensive Comments” outlines a framework for how to respond (linked here).  When facing a comment that might be offensive, first the the receiver should think about her/his own assumptions and then contemplate how to respond.  Second, your choices to respond are ignore, confront, deflect, or engage.  In engaging, the recipient of the comment might ask why someone said something, for example, “why did you ask me if I am the only one representing this client?”  I would not suggest, and have never suggested, that anyone open up a negotiation by fishing for someone’s biases; rather, the choices of responses are tools to respond, not to assert. 

As promised, here are some links to updated gender research.  In addition to my articles on which I have blogged before, there is a host of good research coming from Hannah Riley Bowles, Kathleen McGinn, Linda Babcock, Cathy Tinsley, and Debbie Kolb.  An SSRN search on any of them will give you many good articles.  Here are just a few to get started (the first two are co-authored with me, Emily Amantullah, and Sandy Cheldelin):

Tinsley et al, Women at the Bargaining Table (Negotiation Journal, Nov 09)

Tinsley et al, Leadership and Lawyering (Hamline Symposium from AALS Annual Meeting  of Women in the Law Section, Jan 2009)

 Kolb, 25 Years of Gender Research (Negotiation Journal, October 09) (not on SSRN, need to find through Neg J. website)

Bowles, Babcock & McGinn, Constraints and Triggers: Situational Mechanics of Gender in Negotiation (Kennedy School working paper, 2005)

Kolb & McGinn, Beyond Gender and Negotiation to Gendered Negotiations (HBS working paper, 2008)

Bowles & Babcock, When Doesn’t it Hurt to Ask? (IACM Working Paper, 2008)

Cross posted at Indisputably.

Different areas of study have developed “serious games”, videogames with a message beyond pure entertainment, to test the application of differing frameworks to particular problems. The video game PeaceMaker, created by ImpactGames, simulates the Palestinian-Israeli conflict and allows the participants to take on the role of either the Israeli Prime Minister or the Palestinian President. This simulation can be used as a teaching mechanism that allows students to gain hands-on experience in applying several dispute resolution concepts as they work toward achieving peace and winning the game. This article discusses the use of serious gaming in education and specifically the use of PeaceMaker to study theories and practices of conflict resolution. The article describes the PeaceMaker’s overall structure, function, and applicability in the classroom, as well as the theories and concepts of international conflict resolution that can be taught through its use.

In his book How We Decide, and in a recent Wall Street Journal article, Jonah Lehrer writes about an experiment by Stanford University professor Baba Shiv, who collected several dozen undergraduates and divided them into two groups.

In the WSJ article, Jonah writes: “One group was given a two-digit number to remember, while the second group was given a seven-digit number. Then they were told to walk down the hall, where they were presented with two different snack options: a slice of chocolate cake or a bowl of fruit salad.”

And then he writes:

“Here’s where the results get weird.

“The students with seven digits to remember were nearly twice as likely to choose the cake as students given two digits. The reason, according to Professor Shiv, is that those extra numbers took up valuable space in the brain — they were a “cognitive load” — making it that much harder to resist a decadent dessert. In other words, willpower is so weak, and the prefrontal cortex is so overtaxed, that all it takes is five extra bits of information before the brain starts to give in to temptation.”

It turns out, Jonah explains, that the part of our brain that is most reasonable, rational and do-the-right-thing is easily toppled by the pull of raw sensual appetite, the lure of sweet. Knowing something is the right thing to do takes work — brain work — and our brains aren’t always up to that. The experiment, after all, tells us brains can’t even hold more than seven numbers at a time. Add five extra digits, and good sense tiptoes out of your head, and in comes the cake. “This helps explain why, after a long day at the office, we’re more likely to indulge in a pint of ice cream, or eat one too many slices of leftover pizza,” Lehrer writes.

First of all, I totally get it. I had a very busy day yesterday with too much going on in my brain, came home to freshly baked chocolate chip cookies from my boys, and four warm fabulous cookies later realized that the diet for the day was a lost cause!

More importantly, I think this also explains why emotions bubble up so regularly in negotiations. We might think about all of the information rationally and organize ourselves and be completely ready for the negotiation but – once we are at the table and keeping track of all of that important information (like memorizing at least seven numbers) we are on cognitive overload – we have a hard time keeping down the  “emotional” side of our brain. And our impulses, to respond inelegantly, to assume the worst, or to yell, are much more likely to rise to the surface. Perhaps if we show up with warm cookies for all . . . .

Cross posted at Indisputably.

The answer for many populists was easy—the veterans should not be swindled by greedy money men.  However, Treasury Secretary Alexander Hamilton knew that the price of the government breaking a contract was far more costly to a young nation’s character than the ephemeral outrage that many veterans felt.  As Hamilton told President Washington, “[t]he general rules of property, and all those general rules which form the links of society, frequently involve in their ordinary operation particular hardships and injuries.  Yet the public order and the general happiness require a steady conformity to them.  It is perhaps always better that partial evils should be submitted to than that principles should be violated.”

Because history has a way of repeating itself, it should come as no surprise that the debate over contract rights versus populist sentiment has returned with a vengeance.  The first sign of trouble came last March when President Obama urged Congress to sever the retention bonuses owed to several AIG derivative traders.  The outrage was understandable: AIG had gone belly up and was only kept afloat by the public dole.  However, the retention bonuses were agreed to before the TARP bailout; abrogating them would violate a clear contractual obligation.

This did not stop some members of Congress from seeking to pass a Bill of Attainder to recoup the bonuses via the tax code.  Congressman Barney Frank even threatened AIG CEO Edward Liddy with a subpoena if Liddy did not hand over the names of the AIG employees who received the bonuses.  Just what, pray tell Congressman, did you intend to do with those names? 

Not to be outdone on the outrage meter, Republican Senator Charles Grassley stated “I would suggest the first thing that would make me feel a little better toward them [the AIG executives] is if they follow the Japanese example and come before the American people and take that deep bow and say, ‘I am sorry,’ and then either do one of two things: resign or go commit suicide.  And in the case of the Japanese, they usually commit suicide.”  Goodness.

But the low moment came in May during the Chrysler bankruptcy proceedings.  The Obama administration was attempting to spare Chrysler from bankruptcy court by selling Chrysler’s assets to a new company owned by the United Auto Workers (UAW) and Fiat.  The only problem for the administration was that a group of plucky Chrysler bondholders refused to sell their assets on the grounds that they could get a better deal in bankruptcy court.  Because these bondholders were secured creditors, they were entitled to first priority under bankruptcy law rules.  These bondholders rightly pointed out that they owed their shareholders the fiduciary duty to hold out for the best deal possible.

But bankruptcy court would have been bad for the UAW (as it was a junior creditor), so the Obama administration brought out the brass knuckles.  Thomas Lauria, the attorney for the group of bondholders, stated that his clients were threatened by the Obama administration into taking a haircut.  For a brief moment, it appeared as if the bondholders would fight it out in court, but eventually they relented in the face of governmental pressure.  Lauria said that his clients decided against a legal battle once they concluded they could not “withstand the enormous pressure and machinery of the U.S. government.”  Bankruptcy Judge Redfield T. Baum quipped that the bondholders had about as much of a chance of winning against the federal government as “the gentleman in Tiananmen Square when the tank came rolling in.”

As we dig ourselves out of the Great Recession, investors must cope with an additional risk: the threat of government abrogation of legal rights for political reasons.  Even Warren Buffet bemoaned the Chrysler situation: “If we want to encourage lending in this country, we don’t want to say to somebody who lends and gets a secured position that the secured position doesn’t mean anything.”

 Russell Kirk once noted that “[u]pon the foundation of private property, great civilizations are built.”  Ignoring these rights is how they fall.

As others have noted to me, the vast majority of gender and negotiation research, and public presentations on gender, tend to be by women. Debbie Kolb would point out that everyone has gender — not just women — and yet there is clearly something about teaching gender that make at least some male professors uncomfortable. And, don’t get me wrong, it’s not for lack of thinking it’s important; it’s more that they don’t want to be patronizing or make the situation worse by raising stereotypes that they themselves do not believe in. At least one male professor hoped that by avoiding teaching gender, and teaching general negotiation effectiveness, everyone would get the message that people should not be defined by their gender. But, as he noted, that does not, in the end, necessarily serve either the male or female students in our negotiation classes. 

So . . . I would argue that we need to teach gender differences – or perceived gender differences and the stereotype problems that occur — for two reasons. First, only by raising awareness of the false and problematic issues faced by women professionals (often called the likeability v. competence dichotomy) can we hope to change the minds of the men and women who make these assumptions. For example, as I gathered data on last year’s presidential election, I did not believe that gender really played a role in media coverage. But, when faced with the overwhelming evidence of some truly horrid coverage, I became much more aware of how the media covers women in leadership roles and now watch more carefully what is said about women leaders. For example, last fall a political commentator noted, while attacking the Democratic position on health care, that he would not want to marry Nancy Pelosi. Are you kidding me? Why would I care and why is that relevant? I don’t recall that actually being a question asked about Tip O’Neill!

Professors need to highlight these issues and raise awareness. We also need to give women the tools to deal with these stereotypes until they are reduced. When women are negotiating, there are some clear strategies that researchers have found that are more successful. As explained in more depth in articles I have written with colleagues, women should do three things: (1) when possible, frame the negotiation as one that is on behalf of others — your client, your team, your department, your company; (2) be sure to highlight your role or profession as a lawyer so that this identity — that of a lawyer — is more salient than any other identity; and (3) be sure to use the high status of a lawyer – that status and the perceived negotiation effectiveness assosicated with that status should permit you to be assertive without suffering backlash.

Now is it ridiculous in part to be arguing that we, women, should work within the core stereotype as opposed to breaking it down? Absolutely. Are we serving our students by only giving advice to fight stereotypes versus adapting until they are broken down? No. And both male and female negotiation professors need to feel comfortable doing this.

Cross posted at Indisputably.

Over the past 15 years in particular, as I have led an “adult” life — marriage, kids, career — I also started to view my grandmother as a three-dimensional adult and not just the relatively limited view that grandchildren tend to have of their grandparents, particularly when we are children. 

This is not to say that she failed in any classic grandmother category — her unwavering support of all of us was amazing — and my brother rather hilariously eulogized my grandmother last week by noting that she was convinced that each job he ever had was filled after a nationwide search for the smartest and most talented person in which he was selected above all others.  But she also had a life beyond us — at least before us — and the stories of her life were lessons for me.  She was a high school accounting teacher — yes, she excelled at math — facing a law which stated that all teachers had to quit the moment they got pregnant but had to return to work immediately — the kind of law that was clearly not drafted by anyone who had ever been pregnant.  I loved the story of how when she got pregnant with my uncle she lied about when she got pregnant so that she could work longer—she had two “seventh month babies” in fact.  And then, after he was born, she connived with the doctor to write a note that the baby was sickly so that she could stay home to nurse him. 

Of course, that is only part of the story — and my grandmother made sure that I knew all of the stories of strong women in my family.  The doctor in this case was my great, great Aunt Rayah — who had been a doctor with the White Army in the Russian Revolution before coming to this country and restarting her medical practice.  Another set of stories focused on my namesake, my great-grandmother Anna, who had come to the U.S. in 1904 at the age of 17 all by herself.  She later sent for her parents, brothers, sisters, cousins, etc. as she earned enough money to send passage for each of them.   And, although she never attended college, she made sure that all four of her children, including my grandmother and my aunt, went to college and had professions.  One last story about Anna – when my grandmother and grandfather were married, in 1933 at the height of the Depression, they bought a new bedroom set at a furniture store that went bankrupt in between payment and delivery.  My great-grandmother apparently went to the store and physically sat on the furniture until they delivered it.  She had a rather persuasive negotiation approach. 

So, Mama, thank you for all of your stories.  I hope not to have to negotiate by sitting on my purchased goods until they are delivered — but because of you, I know that I would be more than capable of doing so if the situation warranted.

In Ian Ayres’ famous study of car dealerships in Chicago, it appeared that white men got the best (lowest) opening price for their cars, while black women got the worst opening bids.  In Melissa’s group, there was a wonderful mix of an older white male American (Howard Gadlin), Melissa herself (white female younger American), a young ethnic Chinese man (Andrew Lee), and two native Turkish speakers, so this was a great gender and ethnic mix to test.  

It turns out that this group found exactly the opposite of what Ayres found. 

Each person went in to ask about the jewelry box over the course of an hour.  The one potential failing of the test which they did not realize until later was that they dealt with different salespeople, so one of the differences could be the salesperson.  (This was not controlled for in the Ayres study, either.)  Results found by this group for the jewelry box:

Older white male—55 lira

Younger white female—45 lira

Young Asian male—30 lira

Turkish speaking females—25 lira

Although there are potentially many explanations – Melissa tried to ask the seller about this afterwards but to no avail – I have a few.  My guesses are based on my own interview with a different seller (our group of three talked for a long time to a different vendor of lights and scarves after one colleague went in to ask about a light and was quoted 150 lira, which our Turkish colleague then purchased for her at 50 lira).  Once we finished the purchase, we asked the indulgence of this wonderful guy who talked to us over tea for over an hour about his experiences in the market.  He was also an American citizen who had lived in San Francisco for ten years.  Based on the conversation with him, the vendors know that Americans don’t like to bargain and will only bargain for a round or two of counteroffers.

So, here is my thinking on Melissa’s experiment.  First, the store owner assumed that the older male had more money.  Second, the store owner assumed he would not bargain all that much (this would actually be somewhat similar to one of Ayres’ hypotheses on lack of BATNA or ability to bargain.) 

Melissa, who went in next, may well have gotten “the nice eyes” discount.  As explained by our store owner, he often will give a lower price to a smiling, nice-looking buyer.  (Note to self: reapply lipstick before going into bazaars.)  Melissa also thought that the seller could have assumed she would have less money to spend.  Andrew Lee, the recipient of the 30 lira price, thought that perhaps the seller assumed he had very little money — he was casually dressed and young, and there are not slews of wealthy Asians coming through Istanbul.  (According to our store owner, the wealthiest tourists come from the Gulf states.)  Finally, as expected, there is the local price – and this similarity factor, more than the discriminatory factors discussed in the Ayres study, seemed to have the most to do with the opening price.

Cross posted at Indisputably.

We were divided into groups for this exercise—I had the pleasure of venturing forth with Vanessa from Israel and Yilderoy from Turkey. My general process occurs in the following steps: (1) ask for the price for one jersey; (2) ask for the price for three jerseys with the assumption that most vendors are willing to give you a break on more; (3) ask for the price in dollars with the assumption that sometimes the exchange rate helps lower the price further; and then (4) ask for the price in cash with the assumption that, if the vendor would accept a credit card at all, he would definitely prefer to receive cash in either currency. Since we had a native Turkish speaker, we agreed that we would also add another step of seeing what happens in the native v. tourist price. (On another note, we have discovered that even for restaurants, there is a local versus tourist price. The posted price, if it exists, is for the tourist. Natives get a lower price. This also occurred last spring in Rome where a cappuccino (a necessity of life for me) across the street from the conference center was three times more for me than the residents.)

So, here is what happened. I found the jerseys that I liked and started bargaining. Step one—how much is one? 15 Turkish lira. The exchange rate is about 1.4 Turkish lira to a dollar so this meant the opening price was about $10.70 per jersey and that I would have to spend over $32 if I bought a jersey for each child. Step two—how much for three? 40 Turkish lira (about $9.52 per jersey). Step three—how much in dollars? 25 dollars for three (now $8.33 per jersey). Step four—Yilderoy starts bargaining in Turkish—I don’t know what was said, but the calculator was out and the result was about $21.80 for the jerseys (now $7.26 per jersey). Finally, step five, pulling out a nice crisp $20 bill and saying I will take them now if he takes the bill. Done! Final price is $6.66 per jersey.

A few thoughts—first, one clearly has to spend some time to do this. It would be completely understandable should you decide that the $10 I saved is not worth the 20 minutes I spent. For us, this was fun and educational. It also is culturally expected– at least over jerseys. For example, we were told that one did not bargain over food in the bazaar and this seemed to be the case. Buying Turkish delight on the last day to take home, I asked for a discount since I was buying two boxes and was given free samples instead. Of course, this was still well worth it to me and quite delicious.

Second, I do think that you need to be cognizant of your ethics here—I felt okay bargaining for $10 off on the jerseys but I do feel the guilt of ostensibly appearing to be the ugly American and bargaining over what could be real money for the vendors. Vanessa challenged me on this—why would I assume that I have a nicer life or more money? Shopkeepers affording stalls in the Spice Market need to be doing well, she noted, and I need to get over myself. In my attempt not to be patronizing, perhaps I am being even more so.

Either way, the story provided much food and fun for thought!

Think you should haggle only when buying a car or shopping in the streets of Morocco? In this recession, if you’re not bargaining for everything everywhere, you’re needlessly draining your wallet. According to the consulting firm America’s Research Group, in October, 56% of consumers said they had recently tried to negotiate at retail outlets other than car dealerships. Of those hagglers, 50% got deals. When the company repeated the survey in May, 72% of consumers said they had tried to haggle, and a stunning 80% were successful. “What you can do today is unbelievable,” says Herb Cohen, an expert dealmaker and the author of the 1980 classic You Can Negotiate Anything. “Americans may finally learn that price tags weren’t put there by the big printer in the sky.”

It sounds like a perfect time for negotiation students everywhere to test those skills and ask for what you want.  As the article notes, you might start out feeling sheepish but will end up finding the process rather exhilarating.

Andrea and her coauthors offer a humorous, but also disheartening, review of media coverage from the 2008 election that typecast Clinton and Palin into their respective roles.  They also discuss social scientific research suggesting that the double bind arises from deeply entrenched gender stereotypes.  They conclude more hopefully, however, with suggested strategies for professional women to minimize the harmful effects of the double bind.

The second paper, “Women at the Bargaining Table: Pitfalls and Prospects,” presents some of these suggestions in more detail, with particular attention to the implications for teachers of negotiation. 

Here is the abstract:

Research evidence across a number of disciplines and fields has shown that women can encounter both social and financial backlash when they behave assertively, for example, by asking for resources at the bargaining table. But this backlash appears to be most evident when a gender stereotype that prescribes communal, nurturing behavior by women is activated. In situations in which this female stereotype is suppressed, backlash against assertive female behavior is attenuated. We review several contexts in which stereotypic expectations of females are more dormant or where assertive behavior by females can be seen as normative. We conclude with prescriptions from this research that suggest how women might attenuate backlash at the bargaining table and with ideas about how to teach these issues of gender and backlash to student populations in order to make students, both male and female, more aware of their own inclination to backlash and how to rectify such inequities from both sides of the bargaining table.

The first paper appears as a chapter in Rethinking Negotiation Teaching: Innovations for Context and Culture (2009), while the second is published at 25 Negotiation Journal 233 (2009).