Primates and Me-Parts I & II (Conclusion) (Web)

This is the 15th 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. The latest installment picks up with a repeat of his previous installment, and adding below Lessons 5-10 in a list of tips Bob has developed, based on his reading of scientific studies he also describes below.


Primates and Me–PARTS I & II (CONCLUSION)

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.

Cooperation?
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.

Chimps Mediate?
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, know 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 intervened 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.

Reconciliation?
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.

So What?
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.

Here’s What
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.

2. Grooming
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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5. Peacemaking as acquired social skill
Cooperative processes can be taught, just as craft and art can be learned. I have, however, moved away from the approach of teaching technique and tactics. This move from the mechanics of mediation embraces at least four basic themes or attitudes, and tracks and reflects what I have seen from fellow practitioners of the art of mediation.

These “social skills” are acquired on a platform of engagement, authenticity, transparency and flexibility. These are not instincts, but are adaptions of behavior to fit specific paradigms to foster cooperation among others.

It is especially difficult for lawyers and judges to adapt to accommodate the core values of this model, since the legal mind is trained to think strategically, rather than authentically. Lawyers spend years in law school learning how to be sufficiently skeptical--to challenge any position and to reconstruct narratives identifying potential issues and areas of disagreement. Lawyers seek the hidden or secondary agenda in every communication.

This is a great skill to have in a mediator when participants are acting strategically, so it’s worth it not to be diminished. But Master Mediators must overcome the barriers created by purely strategic communication. This is relatively easy in those roughly 50% of the cases where a potential overlap in good-faith positions pre-exists, but is obscured by communication dynamics. In the other half of the cases making their way into mediation, the parties have good-faith disagreements on value, risk, or other interests. The problem transcends communication and requires transformation of core beliefs of the participants.

6. Within Group and Outsiders
Primates are cruel or indifferent to members of other groups. Here, competition reigns, yet cooperation emerges within the group. Thus, proximity of relationship matters.

To the extent mediators can operate in a “relational context,” the more likely cooperation will replace competition.

A focus on past, present, and future relationship between participants, not just the formal parties, is mandatory to maximize the cooperation. There is a negative trip here too—lawyers are reluctant to pay a “settlement premium” to repeat players in the system. Macro interests often trump micro considerations of the particular case. Confidentiality is not a cure here.

7. Empathy
The more I can authentically understand, feel and display my empathy and compassion to the participants, the better. I have become more open and expressive about how I process what happens before me.

8. Alliances, empowerment & voice
As I identify the interests within each party, i.e., community, I am cognizant of the intragroup alliances and dynamics. I attempt to identify not only the natural leaders, but also the conciliators able to assess macro and micro risks–those that can reach out to the other side and act with consensus and support from within the group.

I am transparent about my approach both within and outside the group. So, once the consensus has been reached, often the appropriate envoy is identified, coached, and dispatched to the other side for engagement in direct dialogue and negotiations. The coalitions within the group empower the voice to speak outside the group.

This is often not based upon formal title or authority, but on intangibles, especially the credibility the person may hold with the opposition. In one case that settled for mid-seven figures, the lawyer for a party who was contributing nothing was the spokesman for the defendants.

9. Reciprocity
It is a powerful force in human interactions on the individual, unit, group, communal, and societal levels. It can also be a trap for the mediator in those disputes where parties seek equal concessions or movement when one party has taken an outlier or extreme position. The master mediators change the bargaining models so that tit-for-tat, usually an effective strategy, is not dominant. The concept of bargaining as an auction, with competing bids, must be eliminated as parties focus on a potential zone of settlement.

10. It’s All About the Money!
Sometimes, but not always. Especially not for brown capuchin monkeys or me!

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More Reading
Robert Axelrod, The Evolution of Cooperation, Revised Ed. (2006).
Sarah F. Brosman & Fran B.M. de Waal, Monkeys Reject Unequal Pay, 425 Nature 297 (Sept. 18, 2003).
Robert A. Creo, Emerging From a No Man’s Land to Establish a Bargaining Model, 19 Alternatives 191 (September 2001)(see http://www.cpradr.org/alt_scrn.asp?M=5.3).
E. Fehr & K. M. Schmidt, A Theory of Fairness, Competition and Cooperation, 114 Quart. J. Econ. 817 (1999).
Carole Gillian, In a Different Voice (1982).
Susan Jacoby, Wild Justice, The Evolution of Revenge (1984);
Robert M. Sapolsky Monkeyluv: And Other Essays on Our Lives as Animals (2005);
Robert M. Sapolsky, A Primate’s Memoir (2001);
Deborah Tannen, The Argument Culture: Stopping America's War of Words (1999).
Deborah Tannen, You Just Don't Understand: Women and Men in Conversation. (Paperback edition: 2001
Deborah Tannen, Gender and Discourse (1995).
Robert L. Trivers, “The Evolution of Reciprocal Altruism,” 46 Quarterly Review of Biology 35 (1971).
Robert L. Trivers, “Reciprocal Altruism: 30 Years Later,” in C.P. van Schaik and P.M. Kappeler, Eds., Cooperation in Primates and Humans: Mechanisms and Evolution. 67-83 (2005).

BY ROBERT A. CREO

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 robertacreo@cs.com.