Change ‘R Us: Noam Ebner on Change & Negotiation

I keep a folder with blog post ideas. Sometimes it is hard to choose which topic to focus on for my Slaw column. Not this time.

Professor John Lande’s column on February 12th recommended (commanded?) readers to find and read Noam Ebner’s recent article entitled Negotiation is Changing. Never one to ignore a recommendation from one of my conflict management heroes, I downloaded and read the article. It is fascinating and thought-provoking. I heartily urge anyone involved in negotiation to do the same. I use that phrase in its widest sense to include the legal profession, the conflict resolution/management field, the real estate field etc. In fact it includes all of us as we are negotiating constantly!

Noam Ebner artfully weaves together research from a variety of disciplines (plus Dylan and the Bible) to set a context for his suggested thesis about how and why negotiation and negotiators have changed.

The first key thought: “Change happens, and then it happens again.”

He sums up his thesis as follows:

“Negotiation theory has developed around a certain set of assumptions about people: how they live, how they interact, how they think, what motivates them, and more. Since the first foundational writing in the field, people have been changing, regarding all those assumptions. If people have been changing, though, then negotiators have been changing and negotiation has been changing. However, our theories, while becoming more refined and more detailed, have not changed, and neither has our articulation of the very assumptions at their core. By continuing to build theory around these assumptions, we have overlooked change processes we have been undergoing. If these change processes are found to be as significant as research in other fields currently indicates, negotiation theory, or elements of it, must be adjusted, or significantly revised. “

He makes it clear that this is not just about technological change. There are other powerful change forces at play. He separates the key changes into three categories:

1. Changes in the way people do things, or individual behavioral changes: We are not only changing our behaviors; we are being changed by our new behaviors;
2. Changes in the ways we engage with others, or interactional changes: We are not only interacting in new ways; we have created new communicative paths for supporting such interaction; and
3. Changes in the very nature of who we are, or psychological and physical changes: We are not only putting our bodies and our brains to work in new ways; our bodies, and especially our brains, are physiologically changing to adapt to these uses.

So how does this complex context of change impact negotiators and negotiation? Noam observes that the field (of negotiation) may have some serious “blindspots” and suggests that three factors key to skilled negotiation (attention, trust and empathy) are all in flux.

Attention: Technology can diminish our ability to focus, we are easily distracted and we do not allow ourselves to be “bored” (a key opportunity for reflection and learning). I can certainly identify with some of Noam’s anecdotes, particularly those involving negotiations with children who keep glancing at their screens!

He refers to Lauren Newell’s forthcoming paper (“Reclaiming attention in the digital generation negotiator”) who acknowledges the problems of attention deficit and recommends:

• Technology breaks; and
• Meditation (presumably to assist our otherwise distracted brains to process overwhelming amounts of information)

In her February newsletter (HEN), my colleague Julia Menard provides a helpful summary of a CBC’s Quirks and Quarks podcast January 14, 2017 which explores the “Science of Mindfulness”. She explicitly connects agitated brain states (including distraction and inability to focus) and the (decreased) ability to deal well with conflict:

However, the more I have studied the links between stress, conflict and the brain, the more I have come to see the clear connection between an agitated brain state and a diminished capacity to deal with the everyday (and not so everyday) conflicts.

Julia has started to ask her leadership coaching clients about their meditation and mindfulness practices.

Trust: Noam has written about the importance of trust in building relationships and aiding effective negotiation. However, in this paper he asks: “Might trust form and function differently, in the new technological era?” He notes that while institutional trust is waning, “peer trust” (or individual trust) is on the rise, citing examples of online dating, AirBNB, TripAdvisor etc.

Could this change affect mediator (or other neutral) selection mechanisms by, for example, increasing demand for mediator rating sites or testimonials?

Empathy: It is hard to think of a more fundamental part of interest-based negotiation than empathy. Noam states:

Empathy is a complex element of negotiation, combining an emotional aspect (actually feeling it), a cognitive aspect (understanding the other’s predicament, circumstances or motivations), and a behavioral aspect (displaying or receiving empathy).

He suggests that shifts in empathy may come from changes in behavior, activities, attention, and brain development. The key question is whether these factors change the role or importance of empathy for negotiators.

Noam does not have specific answers. Instead, he urges the field to explore these questions directly and urgently. He ends the paper with an outline of a proposed research agenda and invites others to chime in with their thoughts and ideas.

As I read this important article, three questions (at least) came to mind:

1. Empathy: The issues around empathy are relevant also to other areas, including process, policy and system design. The current movement promoting “design thinking” in the justice system depends on seeking ‘user’ participation and developing empathy for the user’s experience. Do the changes that Noam describes suggest that empathy will be more or less important to these other processes in the future?
2. Behaviour changes that change us: The Mediate BC Distance Mediation Project (Phase 3) report notes a story about a person who participated in a family mediation using a web-conferencing platform. During the session, she was able to see herself in the little window on the screen. After the session, she was very upset, explaining to the mediator that she saw, for the first time, how she appeared to the other party (her ex) and was…horrified. The matter resolved through face to face mediation and her behaviour was markedly different. However, the technology acted as a mirror for her to observe her own behaviour, body language, facial expressions etc. that would not have been available to her in a face to face setting. To her credit, she learned from this experience – she was changed.
3. Confidentiality: Another area that could be examined is the impact of changes on confidentiality, a key element (so far) of facilitated negotiation processes. How will these changes impact the parties’ willingness or ability to share information with outsiders? Will what is said in mediation stay in mediation or will the increased tendency of some people to post their most intimate life details on social media create a new attitude to this principle?

All good food for thought. I’m sure that Noam would welcome your thoughts and comments.