DISPUTE RESOLUTION: Neuroscience and Negotiation

Vol. 29 No. 3


Richard Birke is Associate Professor of Law and Director of the Center for Dispute Resolution at Willamette University College of Law, Salem, Oregon.


Neuroscience is everywhere. A search in Amazon.com’s book section for the word neuroscience yields more than 13,000 entries. A similar search of National Public Radio’s Internet archives shows more than 3,300 stories on the workings of the brain. Neuroscience has attracted fans from far outside the scientific community and from vastly divergent areas of life.

Some dispute resolution professionals (myself included) are clear that lawyers have a great deal to gain from the study of the brain. The Social Science Research Network has a Law and Neuroscience eJournal, which has resulted in more than 18,000 downloads, so others must also see a useful connection.

In an effort to guide the curious lawyer in the search for the relevant and precious needles secreted in the haystack of thousands of books and articles that have flooded the market, this article describes three findings below, chosen from many dozens of good candidates.

Fear and the timing of bargaining. Imagine you are representing the plaintiff in the mediation of a medical malpractice case. The mediator is caucusing with your client. Your client recounts the experience of the surgery that caused a lasting problem with which she will have to live the rest of her life. The mediator is an excellent listener. In fact, after the telling of the tale, your client says to the mediator that this is the first time that anyone has listened quite this attentively. The mediator suggests that this is a good time to craft an offer that the mediator can bring into the other room. Your response?

It is widely mythologized that after a full and uninterrupted rendition of the party’s side of the story, that party can bargain rationally. However, the work of New York University Professor Joseph LeDoux suggests otherwise. LeDoux, the leading expert on the neuroscience of fear, argues that the neural networks associated with fear are among the most durable in all of human experience. Fear is such a good teacher that the brain is developed to relive that fear merely by tripping the memory of it. Once this memory activates the fear network, the executive functions of the brain are temporarily hobbled. Thus, the moments immediately after a party recounts a fear-inducing event are a profoundly bad time to ask for a well-calibrated decision.

It may be important for the mediator to hear the story. It may be important for a client to tell the whole story uninterrupted. But it is equally important, after the tale is told, that the party takes a substantial break before being asked to construct an offer or react to a concession.

How “loss frames” depress creativity. A negotiation has stalled. Your client is frustrated, and so are you. Before giving up, you craft one last offer. It’s more than the other side deserves. You want them to know that if they don’t accept this offer, you will go straight to trial. It’s not an idle threat—it’s the truth. You want to frame your offer so that the offer looks good and trial looks scary. Isn’t that the best way to get it accepted?

It has become common knowledge that decision makers tend to be risk averse when facing the prospect of giving up a “bird in the hand for two in the bush.” Conversely, when facing the prospect of a sure loss, these same decision makers become risk seeking. Moreover, people are more sensitive to losses than to commensurate gains. Perhaps the most important aspect of this theory, known colloquially as “loss aversion,” is that whether something is a gain or a loss is subject to manipulation—to framing.

For lawyers who negotiate, the idea that an offer to settle may be accepted or rejected merely because of the wording of the offer lies at the core of their work. After all, a poorly phrased settlement offer could lead the opponent to view the offer as acceptance of a loss, making the gamble of trial relatively attractive, while an artfully phrased offer makes the settlement look like a gain, and the gamble of trial a relatively unattractive risk.

Enter the fMRI. A team of University of California, Los Angeles, scientists led by Sabrina Tom set out to explore the relationship between loss aversion and the brain. Using functional magnetic resonance imaging (fMRI), they found that when the brain was exposed to data that triggered a “gain frame,” the parts of the brain associated with pleasure were activated. When participants were exposed to a “loss frame,” they exhibited substantially reduced activity in the aforementioned areas of the brain. In short, expected losses did not create fear—they suppressed the brain’s ability to imagine pleasure.

Perhaps the next time a lawyer decides to threaten to terminate a negotiation and take a claim to trial, he or she ought to bear in mind that this is a negotiation tactic likely to dampen the opponent’s ability to appreciate the value of a creative option.

The neural impact of face-to-face negotiations. A difficult case is grinding your client down. She is ready to make a good-faith offer to settle. She worries that the other side will reject the offer. She fears that they have lost the ability to listen to her. She asks for options, and you respond with the four that are obvious to you. She can deliver the offer, you can deliver the offer by mail, you can deliver the offer in person, or you can schedule a mediation and have the mediator deliver the offer. Could neuroscience help inform your choice?

Charles Darwin noted that blind babies made the same expressions as did sighted babies. He opined that expression was an evolved capacity rather than a learned one. An Italian neuroscientist has hypothesized that humans have a neuron-based capacity to mirror the facial expressions of others and thereby to understand their intent. Based on experiments with monkeys, he has determined that the mammalian brain does not distinguish between seeing an activity and participating in an activity. The experiments in which monkeys had electrodes inserted into the F4 region of their brains have not been replicated in humans. Nonetheless, scientists believe that mirror neurons corroborate learning theories that suggest that babies do not learn and then imitate—but instead imitate in order to learn. Moreover, in experiments in which subjects’ faces are temporarily anesthetized, the subjects show a decreased ability to recognize the facial expressions of others. It appears humans may be hard-wired to recognize the intent of others by observing and subtly trying on their expressions. When the capacity to activate one’s face is impaired, so too is one’s ability to recognize the intent of others.

Perhaps the next time a client is in a situation like the one described above, the most persuasive tactic might include a face-to-face encounter. 



This article is an abridged and edited version of one that originally appeared on page 4 of Dispute Resolution, Summer 2011 (17:4).

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