The Need for Speed
Human consumption of information has increased profoundly over the past century and, most particularly, in the last 20 years. But it is not just the quantity of information that has changed, it is the format: we have moved at an exponential pace from long-form content to short, even non-textual, formats. That which was printed 200 years ago in a library book was found 50 years ago in a newspaper article; 10 years ago on a blog; and today in a series of 280-character social media posts.
We need to recognize that the human participants in mediation—the mediators, lawyers, and party representatives—have changed psychologically since ADR became widespread in the 1990s. Speed is a characteristic of our new reality.
Lab Rats with iPhones
Recall the work of Ivan Pavlov, which began when he noticed his dogs would salivate at the presence of food, but also at the presence of the trainers who fed them. Pavlov’s experiments led to the introduction of a neutral stimulus—ringing a bell—alongside the presentation of food. In time, Pavlov’s dogs would salivate at the bell alone. Salivation at the bell was a “conditioned response” in the dogs.
Then we have B.F. Skinner and his work with rats and pigeons. An animal was placed in a box. The box contained a response lever or button, as well as several methods of stimulus (light, sound, and shock). Eventually, the animal learned that responding after certain stimuli would result in a reward (food), and the more the animal responded, the more food was delivered. This is called operant conditioning.
Like it or not, we are those lab rats, and now we condition ourselves. Stimulus, reward. A child mashes Candy Crush buttons. Stimulus, reward. A man speed-reads LinkedIn posts. Stimulus, reward. Swipe left, swipe right—faster and faster. More stimulation, more rewards.
As we evaluate the need for speed in business negotiations and mediation, we should not consider the above to be “good” or “bad,” but instead merely acknowledge that this is the reality in which we live. We can all strive to unburden ourselves of this worldly pace, but even the Dalai Lama has a cell phone now. Our reality is one of speed and activity.
But how many times have you gone to a mediation without any substantive movement prior to you circling your lunch selection on a take-out menu? That’s half of the mediation gone without any stimulus or reward. Put simply, mediators and attorneys must be prepared to work earlier and faster.
Speed Begets Speed
In the boardroom and the ballroom, it takes two to tango. In mediation, the mediator’s job is to encourage the dancing.
At this point, we can combine Pavlovian conditioning with a bit of Newtonian physics: for every action, there is an equal and opposite reaction. When one dancer dances, the other dances. When one speeds up, the other speeds up. When one is stimulated and rewarded, the other is often stimulated and rewarded, as well.
We do not have unlimited time and movement in mediation, however. Time is constant: the mediator cannot compress or enlarge time, and eight hours will always be eight hours.
But the number of moves in mediation is variable. Movement causes counter-movement; actions create reactions; speed begets speed. It is the mediator’s first job, in our view, to encourage movement early and often. Over a short time, like Pavlov’s dogs and Skinner’s rats, the mediation participants will condition themselves through the stimuli and reward of offers and demands, and thereby assist themselves and the mediator in reaching a resolution.
By recognizing and leaning into the culture of speed, we can improve settlement rates at EDR and at the same time increase party and attorney satisfaction with the process.
