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),



            Kay Elkins Elliott J.D.,LL.M.,M.A.

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