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25 Alternative Resol. 16 (2015-2016)
Neuroscience and Negotiation

handle is hein.barjournals/altresolut0025 and id is 16 raw text is: Every day we are expected to make decisions that may have lasting effects: Do I negotiate with the customer that is obnoxious, demanding and unreasonable? Do I end a business relationship when the other party injures me financially? Do I negotiate with my life partner who has betrayed me about how much time I get to spend with our child? On a macro scale - should the USA negotiate with the Taliban when it is publicly dedicated to acts of terrorism against our country? Was Nelson Mandela right to negotiate with the apartheid regime of South Africa? Was Churchill wise to not negotiate with Hitler during World War II? When should we say no and fight? When should we say let's negotiate? Is there a paradigm for making wise decisions in these difficult settings? Should we ever bargain with the devil? Wise dispute resolution poses three challenges: avoiding predominately emotional decision making; taking the time to do a decision tree of alternatives; and assessing the ethical and moral issues involved in any situation. Neuroscientists and psychologists tell us that we all make these types of decisions using different parts of our brains: the intuitive, emotional brain and the rational, analytical brain.1 Some writers call these structures the old brain (the so-called snake brain) and the newer brain. Others, such as Daniel Kahneman in the book Thinking Fast and Slow, refer to System 1 thinking (fast, intuitive) and System 2 thinking (slow, effortful, rational). In fact, cognitive scientists describe these two approaches as automatic, involuntary, largely conscious (fast thinking) and deliberate, orderly and unconscious cognition (slow thinking). Negotiation theory is contradictory. There are at least four approaches into which negotiation theorists fall: The competitives (getting more than the other side); the cooperatives (separating the people from the problem and creating value by being soft on the people - a la Getting to Yes); the moralists (doing what is right because of the ethics gene); and the game theorists (The Prisoner's Dilemma). Perhaps this is due to the intellectually diverse underpinnings of the ADR movement which draws from anthropology, international relations, game theory, economics, neurobiology, legal theory, counseling, sociology and psychology. From psychology alone we already have thirty-five principles that influence how lawyers negotiate and the list continues to grow. We know too that all theories of economics, sociology, psychology and anthropology must be consistent with the most basic principle of biology - evolution - particularly evolution by natural selection. In the simplest iteration, natural selection means that traits which enhance future replicative success will tend to accumulate.2 When we see species-typical patterns of behavior we are actually observing the physical and chemical information-processing pathways of the brain that have permitted survival. One 1920's pioneer of the ADR movement, Mary Parker Follett, had an insight while sitting in the Harvard library. She wanted the window closed to prevent a draft on her papers but another student wanted it open for fresh air. The solution that emerged from their different desires was to open a window in the next room. From this deceptively simple insight she realized that there were three ways to respond to conflict: domination, compromise and integration. Opening the window halfway would not have given the other reader enough air and would still have created a draft. She, and the many other gurus that followed, came to believe that beyond mere zero-sum encounters, exemplified in the Thomas-Kilman Conflict Scale inventory by the three distributive conflict styles (competing, compromising and accommodating), RETURN TO TABLE OF CONTENTS 16 NEUROSCIENCE AND NEGOTIATION1 Kay Elkins Elliott J.D.,LL.M.,M.A.

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