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One of the primary reasons that after some 30 years the use and acceptance of negotiation and its first cousin mediation remain underwhelming is mediators themselves. Most continue to use reason and logic as their marketing strategy of choice. Every sales pitch and brochure begins with a variation of “mediation is an efficient way to solve problems, it is cost effective, and you can save time and money by not going to court...or it is a cooperative problem solving process.” These and similar approaches seek to appeal to the reason, common sense and logic of the prospective party. They assume any reasonable person would surely choose to mediate rather than litigate if they were merely informed of the comparative costs and benefits. It would appear selling mediation services this way has not worked particularly well. Thus, the insistence by mediators’ on continuing with this deliberately cognitive and rational approach is not only self defeating, but may very well be irrational.
This should be no surprise since logic and reason are some of the least effective techniques for convincing almost anyone of anything---especially the value of negotiation, given what the process requires and its’ tortured history. Through the centuries negotiation has hardly ever been the first preference for settling conflict, and few people purchase products or services rationally. All of this conventional wisdom, if not sufficiently convincing evidence of the limits of logic as a marketing strategy, has been essentially confirmed by studies in neuroscience. Neither people in general, nor educated and trained professionals of any discipline, are the “cool headed reasoners” they profess to be or the public needs to believe they are. In fact, suggest cognitive psychologists, not only are they not entirely rational in their decision making, there is considerable evidence that they are “predictably irrational.”
People have never liked or preferred to negotiate.
To be effective marketing mediation requires respecting the depth of the resistance and why mere logic is insufficient. The most cursory perusal of human history clearly demonstrates human beings disinclination and downright dislike of negotiation as a method of choice to settle conflict. Denial, force and war have always been the preferred response to a real or imagined threat. Twenty four hundred years ago, one of the earliest historians, Thucydides, in recording the events and dynamics of the 30 year long period of the Peloponnesian Wars between Athens and Sparta, recounted in the Melian Dialogue, some of the erstwhile efforts to negotiate a settlement of the conflict and the ultimate rejection of those attempts. War and the use of force have a compelling allure on the human psyche; that holds true not just in geopolitical affairs but in divorces and every manner of controversy. Only in the middle of the Twentieth Century, in the roughly 60 years since World War II has the focused and systematic study of conflict management gained some traction, largely due to the looming fear of a nuclear annihilation, but even that threat has not extinguished humans preference for the use of force.
For many, negotiation is not just distasteful, but sinful and immoral as well.
To be sure, every human being negotiates at some point over some issue; it is a matter of survival and a necessity for the achievement of any measure of success in society. But most resort to negotiation and mediation only as a last resort, not as a first preference. In fact, especially in the Western techno-rational cultures negotiation is viewed as a weakness of character. Those who would negotiate are often considered sell-outs and appeasers who are willing to opportunistically compromise their principles. Many go even further and align negotiation with evil, sin and immorality. Especially in Christian theology, those who would compromise their values are in league with Satan. His modus operandi is to tempt, persuade and negotiate with humans for human souls, for them to abandon their faith and what they know is right for the easy fix. To negotiate is frequently characterized as doing a deal with the Devil. (Benjamin, R.D., “Negotiation and Evil: The Sources of Moral and Religious Resistance to the Management of Conflict,” 2007, in The Guerrilla Negotiator, CD Rom, Mediate.Com Publication, 2007.
This moral risk of mediation or negotiation is often overlooked and can be quite powerful. Ironically, many professional conflict managers like to think of themselves as peacemakers and problem solvers doing noble and honorable work. They may not, however, be so viewed in the eyes of the parties, and in fact anything but. As mediators encourage settlement and work to find a workable agreement---a compromised middle road--- a common occupational hazard is garnering the suspicions and distrust of all concerned. Parenthetically, lawyers are similarly cast negatively for the same reason. While no less ethical or unprofessional than other professionals, including doctors or the clergy, because their role involves negotiation, their are morally suspect. People caught in difficult conflicts must invariably make hard decisions that often have dubious or even ugly moral ramifications. The function of lawyers and mediators in managing disputes is effectively to help people deal with those choices, or in other words, clean up the mess. They are in effect, moral garbage handlers; they cannot grant the parties absolution for the compromising the must do, but they can help them to accept the realistic necessity of their compromises.
A marketing strategy must be emotionally targeted.
The first lesson of anyone in marketing is that people buy from emotion, and not solely, or even at all, as a result of rational choice. Selling, be it mediation services or a used car, requires that the service or product connect with an emotional need and that the salesperson can garner a sufficient level of trust. A product or service must enhance the buyers self esteem or moderate a fear and minimize a personal insecurity. If people made purchases and investments purely based on objective assessment of need as opposed to the want of status and the emotional satisfaction desired, the capitalist economy would collapse. A few people might consult consumer reports, or Angie’s List, before purchasing a car or choosing a lawyer, but in the end, even most of them let leather seats, the color, a moon-roof, a television advertisement or a neighbors recommendation, override gas economy and maintenance costs.
The best marketing strategy reaches into the core of what people really want or are afraid of losing, which often goes unstated, and then teases them into thinking their purchase is a practical and rational choice. In a divorce, for example, one or both people is fearful they will be played for a fool; telling them mediation is saves time and money and they can control the outcome does not address or allay that fear. Without more, they will be left to feel-only a tough and expensive attorney can “handle” that spouse who has amply proven he or she is not to be trusted.
None of this is new or should be a surprise. Salespeople have studied how to sell people stuff they do not need for centuries. More than 50 years ago, Vance Packard wrote The Hidden Persuaders (1957) systematically detailing how people are unwittingly enticed to buy. In recent years, the same skills have been studiously applied to political campaigns as candidates alternatively play on peoples’ fears and offer simple solutions to complex issues cosmetically reframe complex issues. Thus, with their genius applied to the concoction of words and expressions, creating messages that connect with voters underlying fears, desires and myths, Frank Luntz for the Republicans, and George Lakoff for the Democrats, cosmetically recast what it means to be an American in each election. And while frequently derided as unimportant and sleazy, they are much sought after and the fight for the best phrase has become fierce, especially in the recent political wars. In the remake, being anti-abortion becomes pro-life and being for abortion is pro-choice; being for health care is being for socialist tyranny, and being against it is inhumane capitalist materialism. The word play is often dismissed by rational and reasonable people as mere name calling or disingenuous manipulations. But while perhaps not high minded, they are potent and effective techniques and reaches people on an emotional level that seems to encapsulate what they are feeling. Luckily, with a measure of ingenuity, those same tactics can be borrowed and applied to selling products and services that are worthy of purchase.
Selling as a form of constructive deception.
Many people, and not a few professionals, express shock at the coarseness of those who would emotionally appeal to peoples’ most base instincts and are critical of any approach that appears to be in the least manipulative. They continue to hold to the belief that rational presentation is the best and preferred marketing approach. However, such deceptions and the use of guile are an integral part of the evolutionary psychology and biology of all animal species, including human beings. It is a significant part of how all species survive and procreate. (Rue, Loyal, By the Grace of Guile, 1994, Benjamin, R.D. “Managing the Natural Energy of Conflict: Tricksters, Mediators and the Constructive Uses of Deception,” in Bringing Peace Into the Room, Bowling, D. and Hoffman, D. 2003) Good or bad manipulations are not the issue; if a deception is used solely for the gain of the seller or practitioner and to the detriment of the party or purchaser, then it may well be destructive. However, if the deception aids in allowing the parties involved to view and appreciate their problem in a different way, it is constructive. As the best mediators have come to appreciate, especially in difficult and complex matters, the line between reaching a deal or not is often as thin as the one between swindling and selling. (Leff, Arthur, Swindling and Selling, 1976)
Most mediators, out of a desire to appear professional and rational, or a fear of being thought to be manipulative and deceptive, miss the underlying emotional mark in selling negotiation and mediation. Being the consummate neutral, they calmly prefer to lay out a logical rationale for choosing to mediate difficult issues rather than going to court. They airily assume a prospective party or client is capable of listening intently and carefully considering the options and will choose to be rational because “it just makes sense.” They fail to grasp the parties fear, anger and vulnerability in their advertisements or public presentations. Most people in the middle of a dispute are afraid of being taken advantage-of or of being played for a fool, they seldom trust the motives of the other party and sometimes question his or her rationality, and often lack confidence in their own ability to negotiate the problem have been taught to believe an expert, a lawyer, is necessary to protect themselves.
This is why after all the years mediation services have been available, most people still prefer to go to lawyers and hesitate, or even refuse to go to a mediator. Many suggest that the use of mediation services would be more widespread if more people were educated and informed of the alternative. This pre-supposes they would make a rational decision to mediate if they only knew better. As an example, even though many courts and other agencies have begun to institutionalize mediation programs, which have at least made mediation a more familiar idea, the voluntary use of those services before court filing is still limited. It may be as much, or more, the ineffectualness of the constrained rational marketing message as it is the extent of public education that has kept the use of mediation services anemic. Describing mediation a “cooperative problem solving process” sounds good to professionals but does little or nothing to salve the fear or manage the anger of people caught up in conflict and certainly draws them no closer to considering mediation as a viable mode of settling their dispute.
The effective selling of negotiation and mediation services requires coming to terms with an apparent contradiction that those who insist on cognitive and rational marketing approaches fail to apprehend: while almost everybody must negotiate at some point or another, few like to or do it willingly. Clearly there is a strong evolutionary biological and psychological foundation for the instinct to cooperate. Franz De Waal, and other animal ethologists have observed that almost all animal species engage is some rudimentary forms of negotiation behavior to settle disputes within their band, pack, flock, herd, or school, which is essential for the groups protection and survival. (DeWaal, F. and Aurelli, F., Natural Dispute Resolution, 2000) At the same time, certainly among humans, the emotional resistance to negotiation remains considerable and widespread and it is not easily overcome by appeals to reason and logic.
Neuroscience: the ‘messy’ human brain.
Recent studies in neuroscience and cognitive psychology have confirmed the accuracy of what historians have observed with regard to the resistance to negotiation through the centuries and the importance of emotion in decision making and sales that most marketers accept as gospel. Those studies allow some inferences to be drawn about marketing strategies and approaches that might be more effective for overcoming resistance and luring people to negotiate more readily.
What is perhaps most important to understand is that the functioning of the human brain is “messy.” (Lehrer, Jonah, How We Decide, 2009) Emotional processes are always working in many ways that are still unclear. What has become clear is that no decision is ever purely the result of reasoned analysis; the emotional and executive functions of the brain are effectively inseparable. Thus, practice or selling strategies that attempt to access reason and minimize emotion in decision making are often misplaced. The brain does not function like a computer and the popular belief that there is neat division of functions between the right and left hemispheres is over simplistic. The right brain is not exclusively dedicated to emotion and creativity nor is the left brain entirely dedicated to reason and analysis. Antonio Damasio, a noted neuro scientist, has demonstrated through extensive studies of brain functioning that there is no such thing as a “cool headed reasoner.” (Descartes’ Error, 1994) This is why reasoned persuasion alone is seldom sufficient to convince a party in conflict of the logic of mediating. Any marketing strategy devised must first connect with the prospective parties’ emotions and target their fears before reason can take hold.
The first response of most people to a real or perceived threat is an emotional one, triggered neuro chemically in the brain, to either fight or to flee the situation. There is no initial neuro-chemical inducement to negotiate. The decision to negotiate a dispute is an after the fact, conscious and intentional choice. For that reason, as most mediators have observed, by the time a party has grudgingly come to the conclusion that negotiation is the only alternative, there has often been a fair amount of ‘bad blood’ that has been generated by initial knee jerk reactions that have further aggravated the primary dispute.
Linked to the neurobiology of the brain, cognitive psychologists have identified a number of perceptual distortions that are common responses of humans making decisions generally and especially when they are engaged in disputes. Misperception, confusion and outright delusional constructions of disputes are not merely exceptions to the rule or aberrations, they are the norm. People are in general, predictably irrational and all the more so when they are caught up in an emotionally stressful dispute. (Ariely, Dan, Predictably Irrational, 2009)
Almost no one, laypeople or professionals, make decisions solely based on their calculated self interest. This presents a direct challenge to Rational Decision Making Theory and the Interest based negotiation models that have held sway and operate on the assumption that “people can be separated from the problem” and that reason can be accessed and emotion held at bay in the pursuit of calm and reasoned problem solving. (Fisher, R. and Ury, Getting to Yes, 1992) Both cognitive psychologists and behavioral economists have demonstrated any number of perceptual dynamics in decision making that seriously challenge the working model of a person as a rational or economic actor. This is nowhere more true than when people are deciding to purchase a product or service.
In most disputes, the people involved tend to be susceptible to the ‘fundamental attribution error” whereby they view the opposing party as more responsible for the conflict, and less credible, reasonable or trustworthy and exaggerate their own credibility and strength. People in disputes question the motives and character of the other party, especially if they are an ‘intimate enemy’ such as a spouse, employee or business partner. This bias, or misperception of the other party is commonly joined with an unrealistic sense of confidence and excessive optimism that they will ‘win’ in court or in any other contest of the ‘truth,’ skewing the ability to clearly assess the risks and benefits and often leading to greater resistance to negotiation. They tend to reflect an “illusion of control” that leads to more easily rejecting the need to negotiate and, in fact, viewing any overture by the other party to negotiate as a sign of weakness if not an admission of fault. (Kahnemann, D. and Tversky, A., Choices, Values and Frames, 2000; and Kahnemann, D., and Renshon, J., “Why Hawks Win,” Foreign Affairs, 2007).
With peoples’ emotions always in play, their memory always precarious, and perceptions more likely than not to be biased, the obvious limits of the reasoned approach that requires a party to rationally acknowledge and assess the acknowledge the risk of their refusal to negotiate would seem to be clear. Similarly, the professionals involved frequently over estimate their ability to gage who is susceptible to reason and their capacity to convince a party by logic. Seldom does rational explanation dissipate emotional resistance. Worse yet, if the effort to logically persuade or convince a party is mounted at the wrong time or too stridently, the result can be counter productive and backfire into reinforcing the resistance.
Lee Ross and Andrew Ward carefully studied the dynamic between parties in disagreement and sought to describe the barriers in understanding between what one believes he or she is saying logically and objectively and the likely resistance and refusal of another person to accept the offered logic. They termed that common gap in understanding “naive realism.” Simply said, one’s view of what is objective reality is not likely to be shared by others and that gap will not be remedied by reasoned discussion, debate or argument. Therefore, mediation presented as a cooperative problem solving process, where parties ‘come reason together’ is more a product of folklore than a useful conflict management process or sales technique. When another person or party fails to agree with an offered proposition, the first assumption is that they simply did not understand and that giving more explanation and further information will remedy the situation. If that does not work, then a likely second reason is that the other person is irrational, lazy, or unwilling to listen to reason and consider objective evidence. Finally, if the resistance continues, many form the inescapable conclusion that the other party is so rigidly biased, ideologically bound, or pathologically seized that they are incapable of accepting any reasoned argument. (Ross, Lee and Ward, Andrew, “Naïve Realism: Implications for Social Conflict and Misunderstanding”, in Values and Knowledge, 2001)
Guerrilla marketing strategies and techniques.
A guerrilla fighter understand that he or she is essentially on their own without backup and must use their own wits and available resources. A mediator, like a guerrilla, must do the same using the available energy generated by the resistance to his or her advantage. (Benjamin, R.D., “Guerilla Mediation: The Use of Warfare Strategies in the Pursuit of Peace”, rbenjamin.com, www.mediate.com//articles/guerilla.cfm , 1999) She does not typically have the power or authority to force people to negotiate, nor is logical particularly effective. Not unlike the counter insurgency strategy devised by U.S. General David Petraeus in the current Iraq war, which is predicated more on gaining the trust of civilian communities more so than killing enemy soldiers, a mediator must garner sufficient trust of the parties. (Petraeus, D. Gen., U.S. Army/Marine Corps Manual on Counter Insurgency, Univ. of Chicago, 2007) While logical approaches need not be abandoned, the most effective selling occurs when the parties are reached on an emotional level.
1. A strategically well devised marketing message will lead with an emotional appeal that anticipates addresses and minimizes the prospective parties real or perceived fears, risks, desires, and needs, and weaves in a practical rationale for proceeding to try the process. The substantive issues of a conflict are always, in every kind of dispute, laced with inextricably connected emotional responses. No appeal that is attempts to reach parties solely on a rational level is likely to be effective, especially in more complex and protracted matters. In addition, never ask parties to commit to mediation too soon. Because the process has been ‘explained’ does not mean they understand or are ready to sign an agreement to mediate.
2. The mediator must be an activist. The ethos of most professionals, especially around marketing, notwithstanding the advent of advertising, is to be passive and wait for parties to come and request services. This pre-supposes people understand what negotiation and mediation are all about and know where to go. Few people, or other professionals for that matter, have an accurate understanding of mediation. The success of a negotiator or mediator is certainly tied to their analytical understanding and strategic skills, but ultimately relies on his or her charisma and ability to actively engage people. That spirit is not easily seen in a brochure or printed material. Speaking engagements and every other manner of personal contact where people can sense the competence of a mediator to manage a thorny matter are essential.
Because the cultural inertia, and personal apprehensions about negotiation and mediation are so strongly arrayed against choosing to mediate---it is still largely considered non-traditional---the processes must be actively marketed.
3. The best time to sell mediation is before the conflict has become formalized. Most mediators tend to presume there is nothing to mediate until a legal action has been filed; they covet being on court or agency panels with the hope and expectation that business will develop. For only a very few in some specific dispute contexts has that occurred, such as legal personal injury of medical malpractice actions. Find ways to reach parties and introduce an accurate awareness of mediation when they are still confused and unclear about how to proceed, or even if they wish to proceed. Considering mediation sometimes aides in clarifying the decision to proceed.
4. Sense and expressly target the parties worst fears, greatest apprehensions and their primary source of resistance to negotiation. They often may not state them directly or even be able to articulate those fears so the mediator may need to pre-emptively inquire about and raise those concerns. For many, being taken advantage of or being played for a fool in negotiation is a significant source of resistance that is often overlooked. Participating in negotiation or the mediation process requires people to take responsibility for their own decisions in a culture where most would prefer to rely on professionals and other technical experts to fix, cure or solve the problem at hand. Making one’s own decisions, professional consultation, is safer, but initially seems more risky. Ask a party if they feel they can make good decisions if they have sufficient time, information and complete access to professional consultation.
5. Resist direct challenges to excessive optimism and belief by a party that they are right, their cause is just, or any hint or suggestion that they must compromise. While compromise is a perfectly legitimate notion intellectually, it is a rational concept and it’s meta-meaning, or what it means to a party, is giving in or selling out. Presenting too soon the notion that people will have to effectively compromise will likely lead to argument and intensify the parties’ resistance to negotiation.
Especially when dealing with ‘Hawks,’ who exhibit irrational optimism and fervent belief in the Myth of Justice that they will prevail in any forum of adjudication, hesitate to confront them with logic and the calculations of a realistic cost- benefit analysis. While encouraging the belief that theirs is a ‘good cause,’ the discussion needs to be gently turned toward how they might obtain much of what they want and deserve more quickly and effectively in mediation rather than court.
6. Remove the necessity that they trust, like or respect the other party. When mediation is presented, as it often is, as dependent on trust, reason and cooperation, then most people are justifiably skeptical of the success of a process that requires extending good will to an opposing party that has betrayed them in some fashion. The marketing message should stress that negotiation and mediation are less about trust than about good business. Any good business deal requires verification. Historically, few negotiations have been between trusted friends, they have been between cautious and skeptical business people or even enemies when some accord is required.
Resist any temptation to encourage a party to be empathetic and ‘see the other sides view of things’ or even to challenge the negative characterizations---their tendency toward the ‘fundamental attribution error’) in the early stages.
7. Give people permission to quit mediation if it is not working to their satisfaction whenever they might choose, ‘no questions asked.’ This is a ‘paradoxical injunction’: giving people permission to do what they want to do, significantly reduces the need to act. This is not mere reverse psychology; to be most effective, the mediator must him or she completely believe the process is voluntary and let go of trying to rationally persuade or convince a party that mediation is the best thing to do. This is a basic zen concept: there is greater strength in not using force; logic is a form of force.
8. Invite and encourage the expression of any skepticism or challenge a party may have about the mediation process or the mediator. Lawyers or others, who might express serious reservations about mediation offer an opportunity for the mediator to exorcise a parties doubts by modeling transparency and at the same time, earn credibility for his competency in dealing with hard questions. A mediator should welcome and be able to manage and negotiate any personal attacks or criticisms of the process.
9. Turn negotiation and mediation into a demonstration of the parties’ strength as opposed to a sign of their weakness . In the middle of a dispute, being overwhelmed and confused, many people understandably fail to remember the many effective decisions they have previously made and their core competence. The primary focus of a protean and activist mediator, as part shaman giving hope, part techno-problem solver giving practical suggestions, part counselor offering empathy, and part trickster strategizing how the parties might effectively negotiate a good deal, is to remind parties of their own abilities to make competent decisions for themselves.
9 1/2. Print or other media advertisement should target the apprehensions of the prospective clients along with rational appeals. In written publications there is a tendency to bullet point good and rational reasons to mediate or negotiate and overlook the emotional fears. Being overly rational is irrational if the purpose is to sell mediation. The emphasis in most training and education is on how to manage a dispute when people come into the mediation process. Too little attention is given to how to strategically approach prospective parties ‘on the street,’ as it were, and allow them to seriously consider coming into the room.
6 April 2010
About Robert Benjamin, his practice, training programs, presentations, and other articles and publications: firstname.lastname@example.org
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 training courses nationally and internationally. He is a standing Adjunct Professor at the Straus Institute for Conflict Resolution of the Pepperdine University School of Law, at Southern Methodist University’s Program on Conflict Resolution and in several other schools and universities. He is a past President of the Academy of Family Mediators, a Practitioner Member of the Association for Conflict Resolution, and the American Bar Association’s Section on Dispute Resolution. He is the author of numerous book contributions and articles, including “The Mediator As Trickster,” “Guerilla Negotiation,” and “The Beauty of Conflict,” and is a Senior Editor and regular columnist for Mediate.com.
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