An often discussed theme in my blog has been preparation; that is, preparing for mediation, as opposed to "winging it." In previous posts, I have stressed (discussing a different reason each time) the importance of preparing for a negotiation/mediation and the dangers of "winging it."

Well, as you might surmise, I am returning to this topic but this time, I hope to get to the "heart" of why preparation is so crucial. It has to do with our brains and cognition. A colleague, Doug Noll, put it all together for me in his video course "Negotiation Mastery for the Legal Pro." While I was familiar with the concepts, I had not sat down and connected the dots until watching the course. To say the least, it makes complete sense.

In 2011, Daniel Kahneman, who won the Nobel Prize in Economics published his best-seller,Thinking Fast and Slow in which he explains that our brains contain two systems of thought; System 1 which is "fast, intuitive and emotional" and System 2 which is "slower, deliberate," and analytical. (Id.) Most of us get through the day using System 1 thought and the heuristics or shortcuts that go with it. We rely on intuition (e.g. Blink by Malcolm Gladwell) rather than slowly and painfully thinking and analyzing each item that befalls us during the day. Thus, most of our thinking is emotional based on various cognitive biases of which we may not even be aware. While we may think we are being "rational", in reality, we are being "emotional." As Doug Noll notes, "... we are 98% emotional and 2% rational." (Noll, supra, at p. 45.)

So, how does this relate to "preparation"? It is a simple connection. When we sit down and prepare for anything, we take the time to think it through, to plot out our strategy; in essence, to play out the chess game in our heads. We marshal the facts, the law, the strengths and weaknesses, figure out what is our Best Alternative to a Negotiated Settlement (BATNA) and what is our Worst Alternative to a Negotiated Settlement (WATNA), how much (or little) we are willing to accept/pay to resolve a dispute and similarly, at what sum would we rather walk away than settle. In the calm, and quiet of our work space, we have used the slow analytical part of our brain (i.e. System 2) to think, reflect and map out our "game plan." With "game plan" in hand, we go to the negotiation/mediation and proceed to "execute" it, not getting excited or emotional about anything the other party says or does because we have our "crib" sheet to lean on.

Without doubt, negotiations/mediations are stressful events. And when under stress, our "fight or flight" response may well kick in. We may well get emotional and when that happens, our System 1 thought takes over; we start thinking emotionally, not analytically, and as a result, we will not make our best decisions because our cognitive biases and irrationality have taken over. We will make decisional errors.

The antidote: preparation! If we have mapped out everything beforehand, and thought it all through, then during the mediation/negotiation, we simply "execute" our game plan, following our own "marching orders" so to speak. With our "crib sheet" to lean on, there is no need to get emotional or excited when the other side proposes an unusually high demand or offers an unusually low sum of money. We ignore it and simply follow our previously prepared strategy. Simply put; our emotions will not kidnap our rationality much less the negotiations. By sticking to what we decided we wanted during our calm, quiet reflective moments, we will get a far better deal than if we react ad hoc and "wing it" in reaction to what the other side does. We will thwart our System 1 thought from seizing control.

So... that is why preparation is important. It will save us tons of emotional energy and as we know, when our emotional energy is drained, we do not think clearly, and we do not make good decisions!

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By Phyllis G. Pollack

Phyllis G. Pollack is a full time neutral in Los Angeles where, as President of PGP Mediation, she focuses on business, real estate, contract and “lemon law” disputes. She may be reached at Phone: 213-630-8810 / phyllis@pgpmediation.com / Website: www.pgpmediation.com