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Don Philbin Guest Post: Brain Science Improves Negotiation

October 28th, 2009 Commercial and Industry Arbitration and Mediation Group, Guest Posts, Mediation, Negotiation 4 Comments » By Philip J. Loree Jr.

By Donald R. Philbin, Jr.

Psychology has informed negotiation theory for years. (See here.)  As a result, we know that all negotiators:

  1. Are overconfident – we all live in Lake Wobegon where the grass is greener and everyone is above-average;
  2. Reactively devalue offers coming from an adverse party – even if they happen to be in our interest (“it can’t be good for us if it came from them”); and
  3. Have different risk tolerances – and react differently to the same offer.

But faster magnetic resonance imaging (“MRI”) machines have allowed brain scientists to monitor a subject’s reactions to different stimuli in real time.  That has accelerated the pace of discovery and expanded research frontiers.  Vanderbilt Law School, for instance, has received grants to investigate how insights of brain research affect the legal system.  (See here.)  When used in an effort to prove guilt or innocence, there is inevitable controversy.  But learning how the human brain often functions can be good training for negotiators and the mediators that often assist them.

I have long been interested in the ways economics and psychology can broaden the typical legal analysis in mediation.  The ABA recently published “How Brain Science can Make You a Better Lawyer” (here), a broad survey, but not particularly insightful negotiation theory.  So I took a course titled, “Neuro-Collaboration: How New Perspectives from the Neurosciences Can Enhance Your Collaborative Conflict Resolution Skills” (here) the weekend before last in beautiful Woodstock, Vermont (yes, the leaves were still changing). 

Because it was offered by the Straus Institute for Dispute Resolution at Pepperdine Law School (here) (the number one program in dispute resolution for at least five-years running), I had high expectations.  I had heard that the psychiatrist who co-taught the course – a clinical professor from UC San Francisco whom the Washington Post described as “a rare example of the fusing of scientific rigor with literary eloquence” – could make the concepts accessible to those not trained as physicians.  And he did. 

With the help of acclaimed legal trainer Pauline Tesler, Tom Lewis dispelled many of the common assumptions we make about how other people view a problem, and then constructed a framework of reference to help us understand and accommodate those hardwired responses in our work.  He covered how metaphorical processes can help us manage conflict and facilitate resolution.  I was riveted as he addressed what we could learn from neuroeconomics about “getting to the deal” and how the incumbent emotions and other non-rational factors could help us support constructive conflict resolution.

Tom deconstructs the human brain into its pieces.  The “reptile brain” near the stem that coordinates life functions and responds to rewards – money, power, position, etc.  He then stacks the moderating function of the limbic arc on top of that primitive but very useful core.  The limbic area makes us social mammals – seeking community and often moderating the go-it-alone impulses of the reptile brain.  Then he gets to the cortex that defines us as humans.  There we become ultra-social and collaborate to the point that we dominate and, at the same time, can use the products of those collaborative efforts to destroy ourselves.  Functional magnetic resonance imaging (“fMRI”) measures the responses in each of these areas to a variety of stimuli – like competitive or collaborative negotiating strategies – to track patterns under different conditions.

It is as intense as it sounds, but Tom works in clever video clips to keep his audience from glazing over.  Pauline sparked a lot of discussion from the class, most of whom knew the subject at some depth from their varied professional experiences in the mediation ring.  It was another step toward appreciating why people do what they do in negotiations, and in my own quest to be better able to anticipate and respond to those often predictable moves.

I will continue to be a student of this area and I hope to take other courses from Tom as it continues to expand at an accelerating pace.

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4 Responses to “Don Philbin Guest Post: Brain Science Improves Negotiation”

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  3. Alright, I will bite.

    The lecture material says that “The degree to which our internalized collaborative conflict resolution model is based on an inaccurate understanding of how human beings actually make decisions, and how that misperception can contribute to sub-optimal process management in collaborative cases.”

    So, how did the misperception contribute to sub-optimal results?

  4. Philip J. Loree Jr. says:


    Thanks for your comment!

    I’ll have to defer to Don on that one. I’ll let him know you have a question.