What LinkedIn Wouldn’t Let You See

On Monday September 12, 2022, I posted the following on LinkedIn. 2 days later, it was removed by LinkedIn and I received a message that it violated community standards. So, I posted this image of their reprimand of me, which generated quite a bit of traffic and requests by people to see the content of the original post. Here is that content:

What was it Bruce Banner said? “You wouldn’t like me when I’m angry . . .”

They labeled me a Disruptor. Well, WATCH ME LEAN INTO THAT 🦸🏻‍♀️

The year was 2021. I’d been practically begged to be President/CEO of a very male dominated sports organization (picture the last bastion of White male privilege in your mind’s eye – yep, that’s the place!) and I ended up being formally reprimanded by a secretly assembled conduct committee for . . .

(really, prepare to react with shock & dismay at my atrocious behavior) . . .

once (allegedly) dropping the F-bomb in a board meeting. (click here to watch scene. 2 minutes to watch. “The” moment is about a minute and 5 seconds in)

GREAT CUPCAKES!

And here’s what definitely NEVER happened at that place by the men with no repercussions:

✓dropping F-bombs in meetings every 6 minutes or so (“just locker room talk”)
✓drinking so excessively that they whipped “it” out and urinated on the wall (“boys will be boys,” 🤷🏻‍♀️)
✓inebriation to the point of passing out in the parking lot (“hey, it happens!”)
✓breaking into a fight and punching a hole in a manager’s wall (no comment)
✓arrested and jailed overnight for public drunk & disorderly conduct and then boasting vocally about it within the organization (he’s still on the board. no reprimand.)
✓referencing “going home and getting my gun” if the women didn’t quit being so “entitled” with their demands of equitable treatment (also still on the board!)
✓(I’ll need to do this in installments because the list of things definitely an invention of my overactive imagination by others in leadership exceeds the character limit)

But ONE woman allegedly drops ONE F-bomb in ONE meeting and it’s the end of civilization as we know it. AND THEN THEY OUSTED ME.
(Is this the “whole story?” Um . . . not even close, sports fans!)

Yes. It’s true. If you’ve been wondering who’s responsible for the degradation of humanity: it’s ME! 👿

I must have deserved it, right? (And do you wonder what caused me to (allegedly) drop said F-bomb . . .?)

Can I get a “Oh HELL NO, Lucia!” in the comments? (It really deserves an F-bomb, but I wouldn’t want you to be reprimanded by LinkedIn)

Zero #allyship. Bullying wasn’t just tolerated; it was encouraged.

NOW FOR THE PUNCHLINE: Without their ousting me, I wouldn’t now have my role with UN Women; wouldn’t have started my podcast; wouldn’t have written my SEXY, SPLASHY, SMART un-put-downable Robert Cialdini-endorsed / NPR interviewed book about to release (see chapter 15: Negotiating with Bullies).
Sneak peek here: https://lnkd.in/ghcQQiP2

They thought I wouldn’t survive the storm? I AM THE STORM, FELLAS!

They really should have played nicer (see chapters 2 and 15). 😠

That letter of reprimand is a badge of honor. If you’re someone to help display it on a billboard on the CA-101 freeway, DM me.

🎤drop. Before I (allegedly) drop another F-bomb . . .

Sweat The Small Stuff: How The Union Finally Succeeded At Amazon

Tammy Kim of The New Yorker described it as “potentially one of the biggest labor victories since the 1930’s.” She was talking about the historic JFK8 Amazon workers vote to unionize on April 1st of this year, 2022.

First a quick note to say that this is neither an indictment of Amazon as a company nor an endorsement of unions in general. But as an attorney who specialized in labor and employment law and a negotiation expert, I can hardly resist commenting on and analyzing a historic labor negotiation that has unfolded before our very eyes – the first for Amazon outside of Europe, and one that is totally independent / unaffiliated with a national union.

Chris Smalls, former rapper and Amazon warehouse worker, was the trailblazer. How did he do it going up against the country’s second largest employer? A company that spent a budget of $4.3 million on its ant-union consultants last year compared to the JFK8 warehouse budget of $120,000; and after an effort to unionize the Amazon workers in Bessemer, Alabama failed just last year? And not just in Bessemer. Since the nineteen-nineties, several well-established unions have tried and failed to organize at Amazon: the Communications Workers of America, the Teamsters, United Food and Commercial Workers, and the International Association of Machinists and Aerospace Workers.

And what does a historic, national, labor event like this have to do with you and everyday negotiation (setting aside the obvious for a moment, which is an assumption that many of us avail ourselves of Amazon shopping and quick fulfillment of orders)?

Well, let’s examine a few elements of how Mr. Smalls accomplished something so monumental – using strategies that we have already discussed in previous blogs:

First, for our podcast listeners (Pactum Factum: The Superpower Of Everyday Negotiation), recall the chocolate negotiations from Episode 2 and round 3: asymmetry. In the JFK8 Amazon union drive, we have classic asymmetry in power, in precedent, and financial resources.

So, Smalls started with FRIENDS. He and a few other co-workers had been fired from the JFK8 fulfillment center on Staten Island after the first Covid breakout, allegedly due to failure to observe social distancing rules. By partnering with a good friends who were similarly situated to Smalls (having been terminated or disciplined by Amazon), Smalls may have started small, but he started smart by finding allies. Namely: Derrick Palmer, Jordan Flowers, and Gerald Bryson.

Second, I direct you to Episode 3 and my admonition to never underestimate anyone. Amazon’s chief counsel made the mistake of describing Mr. Smalls as “not smart, or articulate,” in an email mistakenly sent to more than 1,000 people. This backfired big time and contributed to Smalls rising to be the very “face” of the organizing effort.

Third, Smalls made it easy on people. He went to them. He and his cohorts met workers at bus stops, the ferry stop and outside the warehouse

Fourth (and this really should be first, also harkening back to Episode 2 and previous blogs): rapport, rapport, rapport! He started with small gatherings, bonfires, brought homemade baked Ziti (that’s a type of pasta). Sidenote: the breaking of bread is actually incredibly important in negotiation because it generates group oxytocin, which is the bonding hormone.

5th: empathy and relationships. Also in Episode 2, we discussed analyzing which of the Richard Shell categories of negotiation yours falls into. This one was heavy in the relationship category. Smalls and fellow organizers worked from within the organization. One of the main reasons the Bessemer effort failed is because it was an effort from the outside by a large labor union. The workers felt like the union didn’t know or understand them. Smalls focused on bonding and relationships.

6th: LISTENING (Episode 7 and Episode 8). Frustrated warehouse workers were worried about safety, rising infection rates of Covid, and other working conditions including bathroom breaks. They felt that the company ignored their concerns. Smalls and his team listened to them as well as reasons why some workers didn’t trust unions from a previous job, which earned them trust and validity for the cause.

7th: they PLANNED. They analyzed the parties / the players. They set up a GoFundMe campaign; visited the Bessemer warehouse to learn from the 2021 union drive; interviewed other previous organizers; examined past practice and how to challenge standards and norms that Amazon had utilized as its past playbook. They even leveraged third parties as a voice of authority and validity: that is, A coalition of New York City officials and residents who chased out Amazon in 2019, when the company tried to install a secondary headquarters in Queens and avail itself of more than three billion dollars in public subsidies; and in 2021, the state’s attorney general lawsuit against Amazon over health and safety violations. Contrast this to Alabama Senator Tommy Tuberville’s expressing his distaste for the Bessemer union.

They set high, specific, justifiable goals (also Episode 3): for example, the labor board requires 30% of the eligible workforce to sign cards to authorize a union, and they set a goal of 40%.

Organizers put in the TIME to research and analyze INTERESTS (again, Episode 3): they made thousands of phone calls. Immigrant members of the organizing effort used WhatsApp to garner support in French, Arabic, and Spanish.

And then, they initially failed. The labor board rejected the initial application as failing to demonstrate sufficient signatures – due to payroll data submitted by Amazon that called into question the validity of some of the signatures that had signed cards.

So they continued building rapport and making it easy for workers to get informed and join the movement: with TikTok videos, s’mores and get-togethers complete with Marvin Gaye music. And more empathy (never gets old!) – including setting up a funding campaign for a fired Amazon worker who became homeless.

They also lawyered up, joining with an attorney who represented the organizers free of charge.

The result was no slam dunk. Many Amazon workers were satisfied with Amazon, grateful for the hourly wage and the benefits, fine with the status quo or suspicious of unions and/or not wanting to pay union dues. The final tally was 2,654 in favor to 2,131 against unionizing.

But just look at how starting slowly, using empathy, planning, listening, rapport, assessing power v. leverage, researching standards and how to challenge them – steadily flourished to make a large scale difference. That’s why the small stuff matters. If you commit to these habits in little ways with your communication and actions everyday, it all adds up.

By Lucia Kanter St. Amour, Pactum Factum Principal

“Spidey Sense” in Negotiation – Interoception Meets Planning

Are you the sort of person who makes a list before going to the grocery store and then only buys the items on the list while in the store? Or do you skip the list, grab some produce and staples like milk and eggs, and then browse the frozen and prepared foods sections for weekly dinner ideas? If you’re anything like me, you do both: plan something of a menu for the week and list ingredients for those recipes, but stay open to something that inspires you as you wind the shopping cart form aisle to aisle (“Oooooh. Pomegranate seeds would be nice to toss in our salads this week.”) This strikes me as a winning combination of planning and flexibility, which translates well to other facets of life: travel, parenting, group projects. It’s no different in negotiation. We covered planning in some detail in a prior issue and emphasized how important it is. It’s easy to become disoriented, emotional, confused or simply tired while in the throes of negotiating. Having that plan to anchor and re-focus you is key. And it’s that anchor that provides you the freedom and comfort to be flexible and follow your instincts in the moment. I don’t mean to convey a mixed message.

These days, we are bombarded by catchy psudo-psychology marketing phrases that encourage us to “have a growth mindset; lean in; do something that scares you everyday; get out of your comfort zone” which some interpret as skipping the stodgy planning and “just going with your gut.” At this point you may be saying, “I’m confused: should I take it easy or take it to the limit one more time?

I’m saying that the planning stage is what actually allows you to pay attention to your “gut” instincts in the negotiation and feel confident about them.

What I’m really talking about is interoception, which is defined as the internal state of the body – both conscious and unconscious. You might even call it your “Spidey Sense.” Interoception encompasses visceral signaling projected to the brain via neuropathways and typically manifests in the cardiovascular, respiratory, and gastrointestinal systems. In 2021 the NY Times Journalist Ezra Klein took a deep dive into this subject matter in an interview with science writer Annie Murhpy Paul about her new book, “The Extended Mind.” He sums up the conceit of the book as about:

“recognizing that we have the intuitive metaphor of our minds, . . . an analytical machine, a computer of sorts. And we’ve taken this broken metaphor of the mind and then built schools and workplaces and society on top of it, built the environment on top of it. And the result is that our work and school lives are littered with these productivity paradoxes. . . . It has radical implications not just for how we think about ourselves but for policy, for architecture, for our social lives, for schooling, for the economy.”

In his interview with Paul they discuss the problem with the long-standing and all too dominant analogy of our brain as a computer when, actually, it is a living organism that has evolved over time in many contexts – and mostly outside – must be understood on its own terms. Cognitive processing is just part of the information our brains supply us, while much more “thinking” is emanating from within the body and unconsciously. They talked about a study by the psychologist Antonio Damasio, which monitored the body receiving some of these unconscious processes in a pattern recognition card game that was actually fixed and how, at some point along the way, the study participants sensed which deck was “bad” and instinctively stopped drawing from it. Other studies of Wall Street traders identified those who seem to make more money when they’re more interoceptively attuned, that is better at reading their own body signals. When our nervous system is aroused, it’s feeding us information. Ignoring these sensations as simply “fear” or “anxiety” or inconsistent with “leaning in” or a “growth mindset” is no different than dismissing evidence consciously driven by the executive functioning of the brain.

So don’t dismiss it! Here at Pactum Factum we have cautioned for many years against hailing rational analysis and logical reasoning as the best or only method of making decisions or engaging with others – in negotiation, in conflict, or in the vagaries of everyday interactions. Those who can harness the powers of the mind and the body, and reference them at appropriate moments – – well, they are next level everyday superheroes. And that can be you!

If you know you’ve prepared well for a negotiation, despite all the multi-layered dynamics tumbling toward you during that negotiation, enjoy the confidence of your preparation and trust your interoception. At the very least, hit the pause button to allow yourself time to reflect. In very few circumstances do you need to be rushed into a decision. Urgency is commonly manufactured as a pressure tactic. Don’t fall for it. How many times have you been casually browsing for an item on-line and you come upon a website where, coincidentally, everything is 20% until the end of . . . that day! Oh – how lucky you happened across this website at this serendipitous moment. You had just been casually looking, but now you’d better go ahead and complete the purchase before that deal ends! You have likely been drawn into a classic sales ploy of creating scarcity of time (“Act now! This offer won’t last.”) Well, maybe and maybe not. If that coupon vanishes tomorrow, another will probably appear soon enough.

I’m going to close out this issue with a bedtime story. I promised we’d discuss art, literature, culture, music, history, and how it all relates to you honing your negotiation skills as an everyday superpower . . .

Show of hands how many of you have read (and/or read to your children) Margaret Wise Brown’s famous children’s book, Goodnight Moon?

I thought so.

Turns out, Margaret Wise Brown was way ahead of her time in understanding interoception. Goodnight Moon did not first appear on a public library shelf until 1972 – twenty-five years after it was first published. Why? Well, she was a prolific children’s author at a time when the expected format of children’s literature was to conform to a structured story arc with a morality message – that or a fantastical fairy tale. With Goodnight Moon, Brown soundly rejected this structure and adopted an altogether radical approach. She was fortunate enough to fall in with a dedicated group of avant-garde experimental writers in New York who would audition their draft stories with groups of children. Employing some unconventional brainstorming techniques, she observed that young children connected with an experience that engaged the senses and that included objects and characters they could relate to (not fantasy – this came in a later phase of childhood). And they didn’t care about plot. So: small animals (a bunny, a mouse), everyday objects (a comb, a brush, a lamp). These familiar objects and animals, combined with the flat, saturated, primary-hued Matisse-like illustrations of Clement Hurd, and a studied focus on the sound of the rhythmic, repetitive (almost hypnotic) words all contributed to a experience that felt just plain good in children’s bodies. It felt comforting, safe – like a cozy blankie. And it was absolutely radical at the time – you might even say seductive.

What does this have to do with negotiation or your life? Well, as I’ve preached before – – it’s all connected. We are all connected. You may be (necessarily) focused on the negotiations unfolding in your everyday life. But at the same time, throughout the centuries and continuing now, people are engaged in broader negotiations with society: challenging the status quo, asking, “does this framework still work? Is there some other approach?” Margaret Wise Brown defied many societal rules and expectations as an individual, and certainly norms in the publishing business in the 1930’s through 1950’s. Author of over a hundred manuscripts of children’s stories, she typically worked on each for a couple of years while researching and testing language on children, before she considered them complete (ah . . . interoception meets planning . . .) The different schools of thought surrounding the appropriate content of children’s literature was a stand-off that lasted decades. Hard to imagine, now that we accept Goodnight Moon – translated into at least a dozen languages – as a mainstay of a child’s bookshelf.

As I draw this issue to a close, I encourage you to sharpen your everyday negotiating superpower through planning, tuning in to your spidey-sense, and gazing beyond your own back yard to the larger negotiations we are witnessing right now as society evolves. It’s actually terribly exciting. And if all that stimulation makes it hard to fall asleep, I can recommend a good bedtime story . . .

Here’s the full Ezra Klein / Annie Murphy Paul interview

Lucia Kanter St. Amour, Pactum Factum Principal

Freedom of Speech: When the Marketplace of Ideas Crashes Your Negotiation

The “marketplace of ideas” concept of freedom of expression has been around since 1859 and the American philosopher John Stuart Mill. It is based on the same theory of economics that superior products sell better than inferior products: thus, spurious speech will be filtered out while the most worthy ideas rise to the top. It was Justice Oliver Wendell Holmes who, in a 1919 Supreme Court case, introduced the “marketplace” idea into judicial analysis and, since then, it has been repeated by the Supreme Court to oppose censorship and support freedom of thought and expression. It is a powerful idea.

Suffice to say: technology and society have evolved since Mill and Justice Holmes so purely preached that the free competition of ideas is the best way to separate falsehood from fact. Is it still relevant? Was it ever a reliable theory?

In recent years, “fake news” has become a pervading paradox to dismiss facts that are disliked over prurient opinion – which then is tweeted and followed and elevated to a point of muting objective fact. Certainly some false information is a product of misinformation posted by regular folks and spread through the blogosphere. But it’s also a new business model: entrepreneurs seek to make money by contriving false information and garnering advertising. Even more disconcerting is the increasingly predominant paradigm of opinions equating to facts with the art of dialectical discourse fading like a watermark on The Bill of Rights, and disrupting our personal lives, negotiations and conflict scenarios.

Has the “marketplace” of ideas crashed, with free speech running amok? Could it simply not withstand the relentless demagoguery of social media, which Mill and Holmes could never have imagined? Founding Father James Madison believed that the First Amendment was the triumph of reason and humanity, over error and oppression. But reason only carries humanity so far and Mr. Madison never signed up for Instagram.

Astrophysicist Neil deGrasse Tyson teaches three categories of truths: objective truth, personal truth and political truth. He warns against asserting a truth before making sure it’s not just an opinion you desperately want to be true. But I have to ask: if the post by the boy crying wolf surpasses one million views, does the wolf evolve from fiction to fact?

And now to challenge Dr. Tyson: is there such a thing as objective truth? And what happens when the marketplace of ideas crashes in our own back yard, threatening our job, family status, business venture, or peaceful relationship with a neighbor? As a mediator, my long-standing refrain is that there are not two sides to a story. There are actually two different stories. For each party their story is real, valid and “fact.” Philosophers throughout the ages have grappled with the question of objective fact, with varying perspectives. Plato is known for a distinctive view of objective reality. He asserted roughly that the greatest reality was not in the ordinary physical objects we perceive around us, but in what he calls Forms, or Ideas. While Nietzsche did not plainly reject truth and objectivity, he did reject the notions of absolute truth, external facts, and non-perspectival objectivity.

As individuals navigating our own stories, and as a mediator observing, listening and learning the stories (and attitudes about “facts”) of parties breaking through conflict, it is useful to bear in mind that we are not fully in control of our own story. We are interwoven with each  other forming and being reformed as we move through the world. As the moral philosopher Alasdair MacIntyre has proffered, our actions are constantly woven into the web of others.  Embracing this realization can neutralize some of the insidious loneliness (and arrogance) of the singular perspective (fueled also by Confirmation Bias – see June 2016 post on this blog) of our subjective narrative . But it requires curiosity – or at least some unfulfilled need to move forward (e.g. “If I can’t negotiate the cost of COBRA coverage and a positive reference, I risk future job opportunities and replenishing my child’s medication, which is essential to my the livelihood of my family.”).

The fact that one is engaged in conflict (and the untangling of it – through mediation or negotiation) at all, while uncomfortable for many people, is very promising because conflict is a signal that something  must change. The best advice I can offer when absorbed in a negotiation with another party whose facts differ from yours is to not place too much importance on them.

What?!

Yes, I repeat: Do not place too much importance on facts in a negotiation.

Peace-making strategies based solely on rationality and logic are limited. And remember that memory is faulty (including yours); we edit and adjust past events to fit the current situation. Instead, find out what emotionally matters to the other side, and how your stories are interwoven and informing one another. Ask what you each might lose if you don’t reach a deal.

Our nation’s “marketplace” of ideas may be in crises. But like our own individual (or organizational) conflict, I choose to believe the disruption is not only productive, but necessary for progress – which takes time, is not neat and linear, and happens in increments. When you find yourself mired in mess, it’s time to get excited because you are a player in a process that is ripe for a breakthrough.

Lucia Kanter St. Amour, Pactum Factum Principal

The Law of Conformity – Conflict Lessons from 2021

 

Also known as the 95 percent law, Peter Sage calls it the law of conformity. If you hang out with nine motivated, go-getting, positive individuals you’re going to become the tenth. If you hang out with nine recreational drug users, you’re going to become the tenth. The only other outcome is that you leave the group. Environment will trump intentions just about every time. Thus, we need to choose our associations carefully.

2021 has been a difficult year for dispute resolution, human behavior and psychology, mediation, and for me personally. Toxic polarization on a national level was fractal within our local communities. The politicization of the Covid vaccine, cancel culture, a movement to mistrust our voting system, all opinions represented as incontrovertible fact . . . we have witnessed amygdala hijack and galvanization at a national level that is playing out in our own back yards. I am known for reminding people, at some point during a mediation, that if our rearview mirror were as big as our windshield, we’d never get anywhere. That is, when people stay stuck in the past, it’s impossible to heal from conflict and move on with life in a new, positive direction. Mediators, in general, are forward thinking and part of our job is to influence the parties to adopt a forward thinking approach – after a healthy space is permitted for sharing each story (no, not two sides to the same story: two different stories) and validating perspectives and feelings. And then it’s time to get to the business of moving on. But this year, I have noticed a marked difference in people’s willingness and ability to move on. It’s as if they insist on remaining in that wounded, alienated space. I will even admit this has caused me to suffer a crises of confidence in my considerable legal and mediation skills of 24 years. “Maybe I’m not good at this anymore,” I started to wonder.

In the meantime, this year found me occupying a volunteer board of directors role that I mistakenly interpreted as community service when I agreed to take it on in late 2020. More that that, I was seduced by a Siren’s call of being “just” the right person that was “needed” at “just” that moment in time. Instead, it turned out to be a highly politicized environment of deeply rooted sexism and bullying. I was absolutely convinced that my training in the behavioral sciences and experience as a mediator (not to mention unflagging optimism) could turn around a toxic situation and reshape behaviors. So I tried harder. But in trying harder, what I failed to see is that the Law of Conformity was taking hold and I was becoming more entrenched with the bullies. The more I stood up to them, the more I was perceived as one of them. By the time I realized this dynamic, it was too late. My heart had been crushed and my reputation (and relationships) tarnished in the process. How did I fail to read the room and calibrate my approach? I was like that determined ant marching purposefully North on a mission of equity, diversity and inclusiveness, but unaware that each footfall tread on the back of an elephant heading South. Reflecting back now on a year of lackluster peace-making in mediations and the 95 percent rule causing my altruistic efforts in a volunteer position to be wildly misunderstood, more questions cropped up for me:

Why do conflicts erupt so easily and take over people?
Why are some people more open to others?
Why do facts matter so little in conflicts?

According to social psychologist Mari Fitzduff, our “wars” today appeal to instincts and savage emotions, not rationality. They are about identity, inequality and exclusions. We have feelings and instincts to serve our survival as human beings, through (1) DNA, (2) hormones (dopamine, serotonin, oxytocin, adrenaline, testosterone) and (3) environment (see 95 percent rule, above). In fact, Fitzduff discusses a gene variant called the DRD4-7R which affects dopamine – people with it are more likely to be open-minded and to enjoy pleasure from variety, novelty and diversity. fMRI scans* show how variances in biology and genetics influence differences in attitudes and beliefs: conservatives have larger amygdala structures (that is, the emotions / fear center of the brain) and higher startle responses (as shown in fMRI) than liberals; they are more likely to support capital punishment, stricter immigrant controls, more military spending. People at the lower amygdala end are happier in general (and experience less startle response).

Brains differ on a continuum in responding to new information, uncertainty, fear, and strangers. Biologically, humans have evolved for cooperation – but only for some people (in-group versus out-group – testosterone and oxytocin – the same hormones that warriors had: increase sense of belonging and reduce fear. They also promote ethnocentric behavior and increase suspicion and rejection of others outside the tribe. Oxytocin binds us, but also blinds us). Fitzduff opines that the need to belong is a major driver of war. Most people need to belong more than they need to be right. When beliefs are contradicted, fMRI showed an increase in emotion (amygdala response), but no increase in cortex reasoning. When people are in conflict, they like things to be simple and it is more likely that nuanced categories of people get hurt ( because they are confusing). Thus, Fitzduff cautions against complexity, novelty and over-reliance on facts during conflict.

So, what are my take-aways from such a destabilizing 2021 in my personal and professional life?

(1) Choose my environment and my company carefully (consider honestly “do I belong here?” rather than falling prey to recruitment techniques); recognize that an environment will change me, not the other way around; while I am a passionate proselytizer of diverse viewpoints and believe that diversity makes us stronger, I need to choose a positive environment to support my positive agenda;
(2) Instead of being drawn into a negative mindset or peer group, be willing to walk away from a toxic situation; don’t feel obligated as a representative of “all women in leadership” or some such lofty perception of my relatively unimportant role;
(3) I am an empath, which has served me very well in my life and profession, but empathy fatigue is real; it’s time for some detachment;
(4) Other people’s opinions of me are truly none of my business;
(5) Commit to self-mastery so that when things devolves into chaos, I can retain my own equilibrium; when conflicts arise, slow down and keep things simple.

In the words of Seneca the Younger:

“The gem cannot be polished without friction, nor man perfected without trial.”

I have to believe that I will shine brighter and be a more perfect human as a result of 2021.

*a word about neuroscience and fMRI scans. Even as someone who cites consistently to brain science, I bristle at how fashionable this has become in the mainstream media. The media loves to cover new fMRI results, and the business world is hungry for the consumer brain to be decoded. Unfortunately, studies are often tiny because of the high costs of running the machine and interpreting the results and the data can be tough to interpret. A 2009 study of a salmon, for instance, showed the “fish’s brain exhibited increased activity for emotional images.” The only problem? The fish was dead.

Lucia Kanter St. Amour, Pactum Factum Principal

“What Should I Wear?” – Making Choices and Online Dispute Resolution

Steve Jobs famously wore the same black turtleneck, blue jeans and New Balance sneakers every day.

Do you know why (bonus points if you can name the designer of his turtleneck without Googling it. Hint: it wasn’t off the rack from Gap. Answer below)? It was to minimize his number of daily decisions, especially early in the day.

Choices are wonderful, right? We demand choices because we want a wide variety of them – or so we think. Many successful individuals like Steve Jobs, Mark Zuckerberg, and Albert Einstein understood that less time spent on making minor decisions meant more brainpower and time for everything else. Researchers have actually studied the effect that making too many decisions can have on our lives. And what studies repeatedly show is that our capacity to consistently make thoughtful decisions is finite. This means that when you use your brainpower earlier in the day (e.g. deciding what to wear), you’ll consequently have less of it at 4pm when you are trying to decide which of the 50 unanswered emails in your inbox should take priority. Show of hands: how many times have you and your spouse / partner had this exchange: “What do you want for dinner?” “I don’t know. What do you want?” “I don’t know, I’m asking you!” “I don’t really care.” “[Sigh] That’s not helpful!!” Well, it’s probably about 6pm and both of you have made countless little choices throughout the day (plus, you’re hungry!), and your brain is pooped. It’s called “Decision Fatigue.” Highly successful individuals actually make fewer decisions because less time spent on making thousands of trivial decisions means more brainpower and time for the big inspirations and the important choices.

What does this have to do with mediation or ODR? Consider the “old days” when parties booked their One Big Day of mediation well in advance, and planned for a full 8-12 hour (or longer) day mediating their dispute in person in a brick and mortar conference room. It was exhausting for everyone. By the time the mediation process got around to generating real options, concessions, and resolutions one issue at a time, most likely a couple of hours had already elapsed with ground rules, opening statements, creating an agenda and defining issues, and moving past positions to interests. The Decision Fatigue clock was already ticking away, and with each passing minute, the ability to make thoughtful decisions was eroding. By hour eight, the situation could be precarious in many aspects: either parties became frustrated and could walk away that they still didn’t have a deal; or parties could make hasty decisions just to be done with it, and end up with regrets. Certainly, skilled mediators worked in breaks and nourishment, but it may not have been enough to equalize the marathon and fully rest the mind.

Now that many (most?) of us mediators conduct mediations via Zoom or similar video-conference tools, the process has evolved. We don’t spend 8-12 hours on a single Zoom mediation. Zoom has magnified the impracticality of doing so, just by virtue of the incapacity of the human eye and mind to stare at a square on a screen for more than about 60 (90 tops) minutes at a time. At least in my practice, I now break up mediations into shorter segments over the course of days, and combine the synchronous Zoom sessions with asynchronous email or phone calls. For all the shortfalls of Zoom brings to the mediation and negotiation process (more difficult to build rapport, make eye contact, see and mirror body language, notice micro-expressions, and generally have “skin” in the game the way people do in person), one of the pitfalls (“Zoom fatigue”) has assisted my mediations by forcing us to break the process down into smaller pieces, incorporating meaningful breaks of hours or days, and thus avoiding the decision fatigue that is inevitable after a long day of mediation. This can, of course, lead to even more practical and durable agreements, and reduce morning-after regrets. Importantly, this benefits not just the parties but the mediator: deep listening, re-framing, thoughtful communication and ensuring fairness at all times is exhausting.

We are faced with countless choices each day. A few might be simple; many are complex. Layer on top of the average day a stressful dispute, and the Decision Fatigue clock can run at double time. The realities of online dispute resolution offer built-in “limitations” that permit parties (and the mediator) to fend off decision fatigue and be better positioned for meaningful decisions that can truly allow them to find resolution and move forward.

Lucia Kanter St. Amour, Pactum Factum Principal

*Japanese designer Issey Miyake designed the iconic black mock turtleneck for Steve Jobs. Jobs commissioned Miyake to design a uniform vest for Apple employees (an idea that got him booed off the stage) after a visit to Japan in the 1980’s when he visited Sony and saw the uniform vests worn by Sony employees.
*Pictured above: Issey Miyake “Pleats Please” black turtleneck jumper with square shoulders