I happened to hear a program on NPR this morning talking about a psychology experiment in which subjects were asked to memorize a number, then walk down the hall to another room and repeat the number. The trick was that half the group was given a two digit number and the other half a seven digit number. The second trick played on these unsuspecting subjects was that on the way to the second room, they were stopped by someone offering them a snack, who asked them to choose between a slice of chocolate cake and a bowl of fruit. It turns out that the people who were asked to remember the seven digit number are about twice as likely to choose the cake as the people who only had to remember a two digit number.
Why do people who are trying to store a maximum amount of information (other experiments have shown that most people have trouble holding more than seven digits in their short term memories) choose the less-healthy but perhaps more appealing snack? This result accords with the theory that if we over-tax the rational part of our brain, the emotional part of our brain may take over decision-making. The emotional part of our brain wants cake!
This story reminded me of the dangers of expecting participants in mediation to process a lot of information in a rational way. If we start off mediation sessions with a lengthy discussion of rules and procedures, or jump too quickly into a discussion of the costs and benefits of settlement vs. litigation, we may risk swamping the rational parts of people’s brains. That could make it more likely that they will make negotiation decisions based on more emotional “fight or flight” type of responses. It’s probably better to discuss less taxing issues at the outset. There are probably good reasons for negotiating a business deal over lunch, and spending the first part of the meal discussing the weather, or sports, or hobbies, or people’s families, before moving to the issues that require a rational calculation. There are also good reasons for trying to initiate friendly human interaction at the beginning of a mediation, as well as encouraging people to deal with the emotional issues that contribute to conflict. It may also be a bad idea to ask people to think too much about rules and procedures and the other rational trappings of the litigation process, because that may crowd out their ability to think rationally about how to resolve the dispute.