From time to time we take a look at social psychology and evolutionary biology because ADR practitioners must be good students and careful readers of predictable human behavior and ways to encourage change.
What better place to begin than with ourselves. In this week's Blawg Review, Enrico Shaefer's Greatest American Lawyer gathers together the week's 411 on self-reported billing irregularities.
I know this topic is compelling to lawyers because I've had more "hits" to the Bar & Grill Singers' "I'm Billing Time" video (their song/my video) than for any other post.
Here it is again.
On to disreputable billable hour violations . . . .
We're Hard Wired to Detect Cheating
In their article Evolutionary Psychology: A Primer, Leda Cosmides & John Tooby report on research finding that our reasoning abilities are more finely attuned to detect cheating than any other type of misbehavior. Before discussing violations of social norms, Cosmide and Tooby explain the most fundamental norm in human behavior -- reciprocal altruism in social exchanges.
The evolutionary analysis of social exchange parallels the economist's concept of trade. Sometimes known as "reciprocal altruism", social exchange is an "I'll scratch your back if you scratch mine" principle. . . [S]ocial exchange cannot evolve in a species or be stably sustained in a social group unless the [participant's] cognitive [abilities permit] a potential cooperator to detect individuals who cheat, so that they can be excluded from future interactions in which they would exploit cooperators.
Who are the cheaters? Individuals who "accept a benefit without satisfying the requirements that . . . [the] benefit was made contingent upon." You know, the people who earn a little extra by padding their billable time by two or three hours a week. Benefit without satisfying its conditions. Work for hire.
How Good Are We at Detecting Cheating? Very, Very Good
The researchers designed an experiment to test whether we have a specialized "cognitive architecture" that permits us to detect "logical violations of conditional rules." The result? In response to a relatively simple logical problem-solving exercise designed to test this type of reasoning, Cosmides and Tooby found that fewer than 25% of subjects spontaneously detected the violation.
What about our logical reasoning skills when it comes to detecting cheating or bluffing? In these circumstances, we become very smart very fast. The authors explain:
People who ordinarily cannot detect violations of if-then rules can do so easily and accurately when that violation represents cheating in a situation of social exchange . . . This is a situation in which one is entitled to a benefit only if one has fulfilled a requirement (e.g., "If you are to eat those cookies, then you must first fix your bed"; "If a man eats cassava root, then he must have a tattoo on his chest"; or, more generally, "If you take benefit B, then you must satisfy requirement R").
Cheating is accepting the benefit specified without satisfying the condition that provision of that benefit was made contingent upon (e.g., eating the cookies without having first fixed your bed).
When asked to look for violations of social contracts of this kind, the adaptively correct answer is immediately obvious to almost all subjects, who commonly experience a "pop out" effect.
Whenever the content of a problem asks subjects to look for cheaters in a social exchange -- even when the situation described is culturally unfamiliar and even bizarre -- subjects experience the problem as simple to solve, and their performance jumps dramatically.
In general, 65-80% of subjects get it right, the highest performance ever found for a task of this kind.
No wonder we like to play Texas Hold'em.
And no wonder we get an uneasy feeling whenever we begin to sense that our opponent (or attorney!) is cheating us. We just know it.
As I've often opined before, this is why the collective wisdom of juries as fact-finders will always trump panels of expert advisors. They just know who's bluffing and who's not and they don't let a lot of legal or technical mumbo-jumbo interfere with their B.S. Detectors.
Another Benefit of Getting Your Case Before a Mediator
After mediating full-time for three years, I realize it's not just how astute and perceptive I can be in reading people (there goes another of my own self-satisfied bubbles). A mediator is simply in a unique position in an adversarial system. We get to use our hard-wired bluffing skill because everyone talks to us more or less openly for several hours, which is longer than we really need to get a sense of who's bluffing and who's not.
Still, in order to detect this particular violation of the social contract, you do need a mediator more skilled at listening than s/he is at solving intricate logical puzzles. Ideally, you look for both. Education. Training. Experience. But it's likely the mediator's ability to set everything else aside and simply listen as the parties explain themselves that separates the masters from the amateurs.
How and why we too often override our gut feelings in this regard, permitting ourselves to be bilked and scammed, is the subject of Michael Webster's Blogs, which I highly recommend you make part of your skimming. (who has time to actually read?)
And, oh yes. It would be best not to cheat your clients. Biting the hand that feeds you and all that. Better to look him or her in the eye with a clear conscience and sleep soundly than make that 2200 hour bonus this year.