Segment 1: Don Philbin, Master Mediator.
On this edition of The Doug Noll Show, we speak with Don Philbin, master mediator, 2011 Outstanding Lawyer in Mediation, and elected fellow of the International Academy of Mediators and the American Academy of Civil Trial Mediators. Don is also the creator of PictureItSettled, a highly-intelligent predictive analytics software tool that guides lawyers and mediators through the negotiation process. To find out more about PictureItSettled, please see http://www.pictureitsettled.com/.
Don did commercial litigation for years, and then moved to corporate law. Eventually he got his MBA and ended up in management. Don tells us he did litigation and transactions for years, and it finally dawned on him that he could do them together…which is basically what mediation is: assisting people in their negotiation to put deals together instead of going to court.
Segment 2: 98% emotional, 2% rational.
So when we have lawyers representing parties in mediation, what’s the role of the mediator? Don tells us that the mediator is “not the other side.” The mediator comes in as a neutral third party and offers options for the two sides to explore. Well-trained mediators have studied behavioral economics, neuroscience and psychology and know how people react in stressful situations. They can help frame the issues and choices for parties.
Our host, Doug Noll, says we’re 98% emotional and 2% rational, and lawyers are no different. Lawyers are generally poor negotiators and are subject to the same emotional mistakes that everyone else makes. Additionally, lawyers typically do not get the appropriate negotiating training in law school. The mediator’s role is to be able to spot when cognitive and decisional errors are interfering with decision making and gently guide the opposing parties in a direction that moves them toward settlement instead of toward impasse.
Segment 3: The Negotiation Dance.
So what gave Don the idea that negotiations were predictable enough to analyze? He says that once you are involved in case after case, you start to notice some similarities across cases. There seems to be a social convention that progress will be in increments. People mimic each other’s behavior to a certain extent. Parties will cooperate or get competitive within their negotiation, predictably. Mediators know intuitively that there is a certain rhythm to the day, from beginning offers to the ending deal. There is a pattern to the negotiation dance.
Segment 4: Reducing the Emotionality of Decision Making.
PictureItSettled is a predictive analytics online software program. Once you start making moves in negotiation, the settlement profit will start to predict where the deal is going to end up. It will predict when and where the intersection will take place. Don tells us it takes 2 offers on each side before PictureItSettled has enough information to predict the outcome. Of course it gets better with each additional round. Let’s say you want to run “what if” scenarios before you make an offer. It can anticipate the actions on the other side. If you have the software, you have a good idea of where the settlement will land. It reduces the emotionality in the decision making around settling lawsuits and allows people to stay cognitively clear.
To listen to the entire interview: