ADR SPOTLIGHT - The reverse side always has a reverse side: Learning to see from another's viewpoint

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By Joe Basta

The key to successful negotiation, whether mano a mano or with the help of a mediator, is understanding that the person with whom you are in conflict sees the situation differently than you do. Sounds simple enough. What could be easier you say? Unfortunately, your hard-wiring is working against you. We are built to see things our own way and to assume that others see things our way too. This alone begets conflict.

R.J. Rummel coined the term "subjectivity principle" to explain how conflict often flows from our different perceptions of the same event. Law students taking evidence are sometimes treated to a mock classroom fight to illustrate the unreliability of eyewitness testimony-that different people can see the same event differently. Perhaps you've seen the You Tube video of basketball players in a pickup game totally unperturbed by a person walking through their midst in a gorilla suit-so focused on the game they fail to see the obvious about them. Both scenarios demonstrate that intelligent people can honestly see the same event differently or not at all.

Rummel notes there are a number of reasons people see the same event differently. Your visual perspective or vantage point may be different than mine. Witness the use of video replay to reduce a referee's error. We also invest different meaning and value in what we perceive: language, for example, enables us to break the outside world into cogent elements we can manipulate, and we may regard these elements as good or bad, safe or unsafe, pleasant or unpleasant. Perceptions also differ because we each have unique experiences and learning abilities we bring to them, even where we share the same culture. Rummel adds what he believes is an even more basic reason for differing perceptions: we unconsciously transform them in order to maintain psychological harmony among them. We see what we want to see, those things that are consistent with our beliefs. Psychologists refer to the "halo effect." If we think a person or group is good, we see the positive things they do and tend to ignore the negative. The converse is also true. I'm convinced this quest for psychological balance is one reason we strive mightily to make sense of phenomena like terrorism, school shootings, natural disasters, and other events we often cannot comprehend.

Brain science, behavioral psychology, and behavioral economics buttress Rummel's views. Among recognized psychological tricks and traps that complicate negotiation and dispute resolution are:

- Confirmation Bias: We credit information consistent with our pre-existing beliefs and ideas. We resist information that contradicts existing beliefs or values. As a conservative, I may like the Wall Street Journal editorial page because it agrees with my views; as a liberal, you may like the New York Times.

- Projection (or Consensus Error): We think that others see the world as we do and share our values. We think they like what we like and want what we want.

- Loss Aversion: We feel losses more painfully than we value equivalent gains. A drop in the stock market may cause panic; a rise in the market produces a yawn. We overvalue our position, or what we might have to give up, and undervalue our adversary's. Loss aversion is also known as status quo bias, our tendency to resist change.

- Naïve Realism: Somewhat like confirmation bias, we tend to believe that how we see the world is the way it really is, and those who disagree with us are naïve.

- Overconfidence: We tend to overate our abilities and talents. We also overweight what we know and underweight what we do not know. Each of us thinks of ourselves as above average, like the children of Lake Wobegon.

- Reactive Devaluation: We immediately view negatively something proposed by our opponent. Republicans resist legislation proposed by Democrats; and Democrats resist legislation proposed by Republicans.

You get the idea. As some have observed, given our hard-wiring, the wonder is that we are able to communicate with one another at all.

How do we as negotiators and mediators overcome the subjectivity principle and our ingrained psychological traps? First, recognize that they exist. Second, know that we are all subject to them, that means you and me too. Third, incorporate this knowledge into your negotiating and mediating strategies. This undoubtedly means bringing a new humility and reflective attitude to our practices. You are not as smart as you think you are or know as much as you think you do. Fortunately, neither does anybody else. Your counterpart in conflict is not a bad, ignorant, or naïve person. He or she may simply see the world differently than you do. Acknowledging this may enable you to focus on the problem, not the person, and improve immeasurably the quality of your negotiations and mediations.

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Joe Basta is president of Basta Resolutions PLLC, a private mediation firm and current chair of the ADR Section of the State Bar of Michigan. He was a trial lawyer at Dykema Gossett for over 34 years, litigating a wide variety of complex commercial matters before focusing exclusively on mediation work. He is a member of Professional Resolution Experts of Michigan (http://premiadr.com/).

Published: Fri, Mar 25, 2016

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