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Mediation Magic: Its Use and Abuse John W Loyola University Chicago Law Journal Volume 29 Article 2 Issue 1 Fall 1997 1997 Mediation Magic: Its Use and Abuse John W. Cooley Follow this and additional works at: http://lawecommons.luc.edu/luclj Part of the Law Commons Recommended Citation John W. Cooley, Mediation Magic: Its Use and Abuse, 29 Loy. U. Chi. L. J. 1 (1997). Available at: http://lawecommons.luc.edu/luclj/vol29/iss1/2 This Article is brought to you for free and open access by LAW eCommons. It has been accepted for inclusion in Loyola University Chicago Law Journal by an authorized administrator of LAW eCommons. For more information, please contact [email protected]. Mediation Magic: Its Use and Abuse John W. Cooley* CONTENTS Topic Page I. INTRODUCTION .............................................. 4 II. MAGIC IN MEDIATION -BACKGROUND AND OVERVIEW ................................................ 8 A. Truth, Deception, and Magic.......................... 8 B. Magicians as Problem Solver ....................... 12 1. Basic Terminology ................................. 13 2. Magic and the Psychology of Sensory Illusion .................................... 17 III. THE SECRETS OF BLACKSTONE: EFFECTS, METHODS, AND SHOWMANSHIP IN MEDIATION .......... 22 A. Effects of Magic ...................................... 23 1. A ppearance ............................................24 a. Selective Use of Data ............................ 25 b. The Silent Majority ............................... 25 c. Expansibility ...................................... 26 d. Frame of Reference ........................... 29 2. Disappearance ......................................... 30 * John W. Cooley is a former United States Magistrate, Assistant United States Attorney, Senior Staff Attorney for the United States Court of Appeals for the Seventh Circuit, and a partner in a Chicago law firm. He is currently President of the Chicago Chapter of the Society of Professionals in Dispute Resolution and he is a past Chairman of the Chicago Bar Association's Arbitration and ADR Committee. In private practice in the Chicago area, he currently serves on the Judicial Panel of JAMS-ENDISPUTE as a mediator, arbitrator, ADR trainer, consultant in the design of dispute resolution systems, and he is an Associate of the Dispute Resolution Research Center, Kellogg Graduate School of Management, Northwestern University. An Adjunct Professor of Law at Loyola University of Chicago School of Law, he has co-designed and co-taught an innovative course on Alternatives to Litigation. He is the author of The Appellate Advocacy Manual (Clark Boardman Callaghan, 1989) and Mediation Advocacy (National Institute for Trial Advocacy, 1996), co-author with Northwestern University Law Professor Steven Lubet of Arbitration Advocacy (NITA, 1997), and author of numerous articles on litigation, judicial, and ADR topics. He is a graduate of the United States Military Academy at West Point and the University of Notre Dame Law School. Loyola University Chicago Law Journal [Vol. 29 a. Producing the Effect of Disappearance Through Use of Statistical Data and Graphs ............. 30 b. Magicians Using Persuasive But False Counter-Arguments ........................... 31 c. Magician Mediators Making Themselves Disappear ........................... 34 d. Magician Mediators Eliminating Issues or People from the Discussion ..................... 34 3. Transposition ....................................... 35 a. Magician Mediators Postponing Discussion of or Juxtaposing Matters in Conflict ............. 35 b. Magicians Using Analogies ..................... 36 4. Transform ation ........................................ 37 a. Magicians Using Statistical Data and Graphs to Transform Meaning ............. 38 b. Magician Mediators Transforming Them selves .................................... 39 c. Magician Mediators Transforming and Broadening the Context of the Dispute ........ 39 d. Magician Mediators Transforming the General into the Specific and Concretizing Issues ...... 40 e. Magician Mediators Transforming Proposals of Disputants .................................. 40 f. Magician Mediators Shaping Solutions Through Value Conversion ..................... 41 5. Defiance of Natural Laws ......................... 41 a. Magician Mediators Achieving Penetration by Going Around Solid Resistance ................ 43 b. Magician Mediators Achieving Restoration of Potential Solutions ............................ 44 c. Magician Mediators Using Party's Own Resistance to Effect a Break-Through ......... 44 6. Mental Phenomena ................................ 45 a. Magicians Interpreting Body Language to Understand What People Are Thinking ........ 46 b. Magicians Using Neurolinguistic Programming Techniques ("NLP") .......................... 47 c. Magician Mediators Predicting the Outcome of a Dispute in Court ............................. 47 1997] Mediation Magic: Its Use and Abuse B. The Methods of Magic ............................... 47 1. Devices .............................................. 48 2. Psychological Methods ........................... 52 a. Physical Disguise ............................. 52 b. Physical Disguise Through Neurolinguistic Programming ("NLP") .......................... 53 c. Psychological Disguise ....................... 60 d. Misdirection (Attention Control) ........... 69 3. A Sample Mediation Magic Routine ................ 80 C. Showmanship of Magicians ........................... 84 1. Five Fundamental Principles of Magician Showmanship .......................... 86 2. General Rules for Performances of Magic ......... 88 IV. THE GRAND FINALE: ACCEPrABLE DECEPTION AND THE IMPLICATIONS FOR MODEL STANDARDS OF CONDUCT FOR MEDIATORS ........................ 91 A . The Issues ............................................. 91 B. The Searchfor Solutions ............................ 92 C. Acceptable Deception by Lawyer-Negotiators ....... 94 D. Acceptable Deception by MediationAdvocates ..... 101 E. Acceptable Deception by Mediators ................... 104 V . CONCLUSION ................................................... 106 Loyola University Chicago Law Journal [Vol. 29 I. INTRODUCTION Readers turning to this article' thinking it to concern mediators' use of the secrets of black magic, astrology, the paranormal, witchcraft, voodoo and the like, will be sadly disappointed.2 Also, those who are seeking an article extolling solely the virtues of mediation probably had in mind an elegant piece with a title similar to the one above.' This article will not meet such expectations. The present article is about only one thing-deception. More specifically, it discusses types of deception and addresses whether they are acceptable or unacceptable forms of persuasion in mediation. Further, it analyzes in detail how to recognize types of deception, how to deal with them, and how to use acceptable types of deception considered from both the perspectives of an advocate in mediation and of a mediator. Perhaps this article is about anything the reader wants it to be. After all, it is about what magicians do. Why magicians? Because one can learn more about deception and illusions in mediation by examining magic and the role of the magician than by studying any other single field of endeavor.4 One commentator, Robert Benjamin, agrees. Robert Benjamin, a nationally recognized mediator and teacher of mediation, negotiation, and conflict management theory and skills wrote: Mediators, like tricksterfigures, are in some measure illusionists ... Their use of deception and strategic intervention is calculated not for self-gain at the expense of conflicting parties but rather for the parties' benefit. As a result, ideally, the parties learn, but at the very least they survive the conflict. All human 1. This is the sixth in a series of articles published by the author that describes a new approach to interpersonal problem solving called "Pracademics"-the application of classical methods to achieve practical solutions in negotiation and mediation. The five previous articles are: Mediation and Joke Design: Resolving the Incongruities, 1992 J. DIsP. RESOL. 249 [hereinafter Mediation and Joke Design]; A Classical Approach to Mediation-Part1: Classical Rhetoric and the Art of Persuasion in Mediation, 19 U. DAYTON L. REV. 83 (1993) [hereinafter A Classical Approach to Mediation-Part!]; A Classical Approach to Mediation-Part1: The Socratic Method and Conflict Reframing in Mediation, 19 U. DAYTON L. REV. 589 (1994); Descartes' Analytic Method and the Art of Geometric Imagineering in Negotiation and Mediation, 28 VAL. U. L. REV. 83 (1993); The Geometries of Situation and Emotions and the Calculus of Change in Negotiation and Mediation, 29 VAL. U. L. REV. 1 (1994). 2. A leading text on these subjects is ALEISTER CROWLEY, MAGIC IN THEORY AND PRACTICE (Dover Publications, Inc. 1976). 3. See Albie M. Davis, The Logic Behind the Magic of Mediation, 5 NEGOTIATION JOURNAL 17 (Jan. 1989). 4. See J. BARTON BOWYER, CHEATING: DECEPTION IN WAR & MAGIC, GAMES & SPORTS, SEX & RELIGION, BUSINESS & CON GAMES, POLITICS & ESPIONAGE, ART & SCIENCE 230 (1982). 1997l Mediation Magic: Its Use and Abuse beings, and especially mediators, deceive, manipulate, and even sometimes lie. That is a given. It is the purpose of the deceit that must be examined ....If ... the deception is designed to shift and reconfigure the thinking of disputing parties, especially in the midst of conflict and confusion, and to foster and further their cooperation, tolerance,5 and survival, then the deception
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