Daniel Kahneman’s book Thinking, Fast and Slow concludes with a discussion of the difference between the experiencing self and the remembering self. It seems logical to Kahneman that people should care more about the quality and quantity of time they are spending engaging in pleasant or unpleasant activities, than they care about how they remember these activities. We should want to enjoy our vacations, rather than worry about the pictures we are taking while on vacation. Picture-taking might even diminish the actual experience, but we are willing to sacrifice some of the quality time spent on vacation in order to create memories. The way that an experience ends also strongly affects our perception of it. Someone told Kahneman that their experience of listening to a recording of a symphony was ruined, because there was a horrible scratch at the end of the record. He wonders how that could ruin the whole experience, when the actual experiencing self, while enjoying almost the entirety of the record, was unaffected by the ending.

Experiments described in the book prove that the remembering self is much more important to us than the experiencing self.  Kahneman set up an elaborate experiment in which he asked subjects to immerse one hand in painfully cold water for 60 seconds. Then he had them do it again, this time for a total of 90 seconds, the other difference being that after the first 60 seconds was up, he added some slightly warmer water to the mix, so the subjects felt some lessening of the pain. Finally, he asked people which of these two experiences they would rather repeat. Logic tells us that the second experience must be worse, since it not only repeats the exact same 60 seconds of pain of the first method, but adds another 30 seconds of only slightly less unpleasant pain. But the vast majority of people said they would prefer to repeat the second test!

This is because two things are important to the remembering self. One is the intensity of the experience (positive or negative). The second is the way that it ended. If a painful experience ends in a less painful way, we are likely to think more highly of it, and are less afraid to repeat it. The duration of the experience, which matters only to the experiencing self, is less important.  (Here I could also go into Kahneman’s discussion of colonoscopies, but I think readers can get the idea.)

As with almost everything else in this interesting book, I can see an analogy to conflict resolution. Most people find conflict to be an unpleasant experience. (There are some of us who thrive on it, but I’ll just stick to talking about the majority, who dislike the experience of conflict.) Conflict starts off in a negative way, when someone else disputes your position, or prevents you from obtaining something you believe you are entitled to. When people attempt to resolve the conflict through litigation, it usually only gets more unpleasant as the parties throw new roadblocks in each others’ paths and find new issues to disagree about. The courts encourage most disputes to end by negotiated resolution, perhaps for one reason because they know that for most litigants, settlement is going to provide a more satisfactory ending to an unpleasant experience than continued litigation. And that is crucial to the remembering self, as a mutually agreeable outcome may offset to some extent the bad memory of the unpleasant conflict. Even for parties who hate the idea of settlement, a negotiated resolution will probably provide a better ending than most of them would have obtained in court.

These insights might also provide some guidance as to how we conduct mediations. If mediators can teach participants in a dispute how to handle their disagreements in a more civil manner, we are going to provide a more pleasant ending to an unpleasant experience. If we can get participants to reconcile to some extent (for some mediators, the ultimate goal of mediation), we can change the whole experience of the conflict, since only the experiencing self participated in all the prior unpleasantness while the remembering self will be left with the positive memory of reconciliation. That memory to some extent will erase whatever happened to the experiencing self. This theory would also seem to provide some support for the idea that we should not rush mediation sessions just to obtain what objectively appears to be a reasonable outcome for both sides. Because the outcome is not the only thing that is important. How we get there is important. How painfully we reach a conclusion is also important. And whether we end the mediation on a good note or a bad note is also important.

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by Joe Markowtiz

Joe Markowitz has practiced commercial litigation for more than 30 years, both in New York City and Los Angeles, and has served as a mediator for more than fifteen years. He is a member of the Mediation Panels in both the District Court and Bankruptcy Court in the Central District of California. He is currently the president-elect of the Southern California Mediation Association. Website: www.mediate-la.com/