This is the 14th installment of The Master Mediator, a periodic CPR web column featuring commentary by Robert A. Creo that describes and discusses mediation room techniques and practice issues.
Primates and Me
Frans B.M. de Waal, the Dutch primatologist at Emory University in Atlanta, and Robert M. Sapolsky, a professor of biology and neurology at Stanford University in northern California, have studied and published frequently about chimpanzee and monkey communities. Interesting stuff. But here? Why? And so what? Double so what for mediators? Triple so what for those mediators practicing their craft at the master and artistic levels.
Competition and cooperation exists not only between some groups of primates, including humans, but also within groups. Even though some members may migrate between the groups, chimps know only hostility between groups as they compete for territory and food resources.
They show few, if any, traits upon which cooperation is built, especially empathy and reciprocity.
Within chimp groups, however, with respect to cooperation or competition, cultures arise that mirror the differences in human societies and communities. Empathy is more conspicuous in bonobos, while reciprocity is more common in chimps--and neither is present with the more competitive monkeys.
Apes rely upon alliances to determine pecking orders. Scapegoating is common in ape groups, with aggression being displaced upon weaker or lower-ranking members. Interestingly, the size of the troop, and its density, do not seem to increase the level of aggression or competition. Some groups have dominant cultures of peace, while others are aggressive.
Female chimps are better at avoidance of fights between themselves than males, but are less likely than males to reconcile after a fight. This is consistent with research by Profs. Carole Gillian and Deborah Tannen on young girls. Male chimps are likely to cycle through fights and reconciliations; these reunions are often tense, but never include deception or trickery. Male chimps expressly signal aggression and disagreements.
There are mediators within chimp, but not monkey, communities. Rhesus monkey females have a strong sense of belonging in a female kin-clique, known as a matriline, that competes with other matrilines.
Female rhesus monkeys will groom outside their matriline to reduce frictions. Grooming is a cooperative process, but not necessarily grounded in empathy, nor necessarily involving post-conflict behavior.
Chimp “mediators” are deemed to be those who actively intervene between two warring chimps to achieve reconciliation. These have been exclusively females who approach two hostile males and alternatively groom both of them. Males form alliances, so the neutrality of male mediators are inherently in question. These mediators are usually older females, not in heat, often with a higher ranking in the group. There has never been an observation of a female mediating between two female chimps.
Primates adopt behavior and skills from each other within their group. Peacemaking thus becomes an acquired social skill rather than an instinct. Among apes, but not monkeys, after one ape has bitten another, he or she returns to inspect the wound and to begin cleaning it. This suggests that the ape has the capacity to see the other, to take the other’s perspective, to walk in the proverbial shoes of others.
This is consistent with the fact that apes have a sense of self and apes are the only primates to recognize their own reflection in the mirror. This ability to distinguish between self and others is a basis of empathy and compassion.
Hardwired for fairness?
Experiments on brown capuchin monkeys by Prof. de Waal and his colleague, Sarah F. Brosnan, concluded that the aversion to inequity and a sense of fairness may be hardwired in primates.
The experiment involved having monkeys in side-by-side cages being trained to act in certain ways to obtain rewards of either a cucumber or the more valuable grape. Certain responses resulted in the grape while others, the cucumber.
The experimenters then violated expectations by creating an unequal situation where one monkey obtained the expected reward for the programmed response while the other, when expecting a grape, got a cucumber.
The results contracted all theories of rational choice models, where the actor accepts what is in their best interest under the circumstances. Instead, the slighted monkey refused to participate at all and rejected the lower, and unexpected, reward of the cucumber entirely. The monkeys refused to participate at all if they saw their colleague receive a greater reward for an equal effort. Highly negative reactions occur when the expectations and sense of fairness are violated.
Other primate experiments show that cooperation breaks down in groups if benefits are not shared among all participants.
Prof. de Waal theorizes that the tendency to reconcile is a political calculation based upon the level of mutual cooperation mandated to live in groups. The underlying motivation for peacemaking is not peace per se, but shared purpose.
Mutual dependency fosters harmony. Social events, e.g., fights and disharmony, are stored in long-term memory, so there is a need to overcome these past transgressions and misconduct for the sake of the future. Reconciliation is common among many animal species that are social by living in groups. This may form the basis of altruistic behavior, or what has been called by sociologists, social capital.
Even after many years of mediation application in the commercial, employment and tort arenas, the consensus on what is important in mediation is lacking. There may even be a competition among mediators and mediation models on the importance of rationality and resolution reflected in the proverbial bottom line-perhaps framed as the “touchy-feely” competing with the “realists” who focus on the “its-about-the-money” school of practice.
Independent of this tension, the practical impact is upon me. Simply put: What Do I Do Next? At each process point, including the intake, preparation, convening, opening phases, joint and caucus sessions, mediators are grounded in the very real question of what follows the last move or step. What follows is what I have translated from the primatologists as tempered by my own field work and theory from other disciplines.
1. Inequity Aversion
When mediating in the same geographic or subject matter “community,” benchmarking against other settlements and outcomes is critical. Other parties--especially plaintiffs--are not repeat players, while the defendants, insurance carriers, and experienced lawyers all have claimed to have already had, seen or heard of the same case.
A role and key challenge of the mediator is a concept borrowed from the medical profession, differential diagnosis. When faced with a constellation of symptoms and test results that are not unequivocal, physicians create a listing of all the possible diagnoses for this patient.
When faced with the inherent uncertainty of litigation, lawyers must create their own BATNAs and WATNAs to assess risk. Benchmarking is the default tool of analysis. What I often do as a mediator is to create a differential diagnosis process to illustrate the reality that no two cases are ever really that similar, and that dissimilarities outweigh commonalities among cases.
Although facts may parallel, it is certain that a host of factors, including the lawyers, jurors and often the judge, differ. What must be reconciled to have the requisite participant buy-in, is overcoming the mandate that these participants, here with me today, must perceive that they be treated fairly vis-a-vis the ghosts of other parties and phantoms of resolutions past.
Civility and procedural respect go a long way to creating the optimal environment for cooperation, rather than competition. This is not to suggest that lawyers should reach across the table to physically groom their adversary, but symbolic grooming can be encouraged. It also often erupts spontaneously. For example, common courtesies associated with logistics, greeting visitors, providing food, and other comforts and humanizing set the path for cooperation and resolution. Social amenities should stretch to the lowest common denominator. This is empathy and compassion at its base platform.
3. Cultures of competition or cooperation
There is a raging difference of opinion in the mediation community on the benefits and risks of joint sessions. As mediation markets grow and become common for civil litigation, lawyers are resisting opening presentations or even having a joint session.
This is generally a mistake, since it moves the process from one of engagement between the parties to one solely of engagement via the mediator. I am, however, having growing respect for the view that forceful or aggressive unilateral presentations polarize the parties and enhance competition at the expense of cooperation.
My procedural practice has evolved now where I start almost all mediation sessions asymmetrically, with my meeting with each side to negotiate--that is, “mediate”--the joint session interaction. I attempt to get a consensus on how each party will interact and behave in the joint session while seeking to “immunize” each of the participants from reacting too negatively to what they may see and hear from the other parties.
4. Deception; Trickery & Reconciliation
A key insight from the male apes has been that the hostilities and, more important, the reconciliation process, do not involve trickery or deception. I spent many years learning and experimenting with techniques and tactics to move participants with my invisible hand. These have given way to an approach grounded in authenticity and transparency. I never want to be viewed in any fashion as having “tricked” the parties into movement or reconsideration of their positions or interests.
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BY ROBERT A. CREO
After Labor Day, Master Mediator columnist Robert Creo will conclude with mediation room tips five through 10, based on the research discussed above about primates.
The author, a Pittsburgh attorney, is a mediator and arbitrator. He also represents parties in alternative dispute resolution and designs conflict resolution systems. He is a founding member of the International Academy of Mediators (see www.iamed.org), and served as its president between 1997 and 1999. He also is a member of Alternatives’ editorial board. His new book, a two-volume, loose-leaf ADR reference, titled “Alternative Dispute Resolution: Law, Procedure and Commentary for the Pennsylvania Practitioner,” is available via publisher George T. Bisel Co. at www.bisel.com. He can be reached at email@example.com.