The Voodoo that You Do: The Placebo Effect in ADR

Presented at the International Institute for the Sociology of Law in Onati, Spain on July 9, 2010.

Abstract: What can we learn if we map the history of medicine onto the history of dispute resolution? Until the twentieth century, doctors had no scientific understanding of the causes of illness or the process of healing. Ancient medicine, like modern , worked because of the placebo effect. Today we are in a similar position in dispute resolution. We mediators don’t know what we’re doing - at least not in the way modern doctors understand modern medicine. Our interventions settle disputes, but this is largely because the parties hope for settlement and expect settlement and because most cases settle anyway.

A scientific understanding of the dispute resolution process is essential to the development of the field. But there is also another lesson here. The placebo effect is an important component even of modern scientific medicine. In our effort to make dispute resolution more scientific we ought not to lose sight of the value of the placebo component in our practice as well.

Suppose we have four people. Let's call them Groucho, Harpo, Chico, and Zeppo. Groucho has a broken arm and goes to see a physician. Harpo has lower back pain and goes to see a practitioner. Chico and Zeppo have a dispute, and they go to see a mediator. Let's follow them and see what happens.

Groucho

Groucho's doctor starts out by examining Groucho’s arm. She does a history and physical. She takes x-rays. She asks Groucho if he is taking any medications or if he is allergic to any drugs. She reviews his records to see if there are any pre-existing medical conditions that might affect his treatment. Based on what she learns about Groucho’s

1 medical history and presenting problem, she determines a course of action. Does the bone need to be reset? If so can it be done without surgery? If surgery is indicated will the repair require hardware? How much? What kind?

In any case, Groucho will be treated according to a very specific, very clear protocol. His arm will be set and casted in a particular way according to well understood and universally applied procedures. Any doctor competent to treat broken arms will treat Groucho the same way that any other competent physician would.

After six weeks Groucho's cast will be removed and his arm will have healed. This is so whether Groucho believes in Western medicine or not. It is so even if Groucho has been in a coma since his accident.

Harpo

Harpo takes his back pain to an alternative medicine practitioner. I chose Therapeutic Touch for this example because Therapeutic Touch is among the most thoroughly discredited forms of alternative medicine. By holding their hands a few inches above the skin, Therapeutic Touch practitioners claim to be able to perceive irregularities in the invisible field surrounding injured or diseased body parts. By movement of their hands they claim to be able to adjust those energy fields and restore health to the affected areas. In a justly famous experiment performed by an 11-year-old girl, Therapeutic Touch practitioners were asked to place their hands through holes in a piece of cardboard. With their view of the experimenter’s hands blocked in this way, the practitioners were found not only to be unable to determine whether a presented hand had a disturbed energy field, but unable to determine whether there was a hand present at all.

But Harpo doesn't know this. He has heard good things about Therapeutic Touch in general and this practitioner in particular. His back pain is particularly acute and he has gotten no relief from his usual treatment. He very much hopes therapeutic touch will work, and from what he has heard he expects that it will.

2 The practitioner gives Harpo a line of mumbo-jumbo and goes through some mysterious hocus-pocus. She talks about the polarity of his energy field. She says she can sense a disturbance in his aura. Whatever. She says he should feel better in a couple of days.

In fact, Harpo feels better almost immediately. Why?

Placebo

Part of the reason Harpo feels better has to do with the natural history of back pain. It comes and goes. Part has to do with regression to the mean. A particularly bad day of back pain is likely to be followed by a day that is not so bad. This is not because of anything the patient may have done or refrained from doing in the interim. It is simply because a particularly bad day of back pain is an extraordinary event, and extraordinary events are rare.

Part of the answer has to do with conditioning. We feel better after a visit to the doctor because we have come to associate doctor visits with improved health. The cognitive psychologist Dan Ariely remembers that during a long and painful hospitalization he began to experience enormous pain relief merely from the sight of the nurse bringing his syringe.

Part of the answer has to do with stress. Illness is associated with fear. To the degree that fear is reduced, the body’s natural defenses can more effectively combat illness. When we expect to feel pain relief, the body releases endogenous opioids and pain relief is experienced. It doesn’t matter whether the expectation is medically justified or not. Patients given medically inert substances experience pain relief as long as they believe they are getting pain reliever.

We know that Therapeutic Touch has no medical value. It is medically inert, like a sugar pill. But we also know that it makes people feel better. Not everyone. Not people who

3 think it is , not people in comas, but, for people who believe it will work and who expect it to work, Therapeutic Touch makes them feel better. This is the placebo effect.

There is no question that real, measurable medical improvement often accompanies placebo therapy. There is more work to be done before a full understanding of placebo effects can be achieved, but the basic outline of the process is fairly well understood.

Chico and Zeppo

Chico and Zeppo take their dispute to a mediator. The questions I want to ask are these: Is what happens to Chico and Zeppo more like what happened with Groucho and his doctor or more like what happened with Harpo and his quack? Is Chico and Zeppo’s problem more like Groucho’s broken arm or more like Harpo’s backache? In other words, what is the role of placebo in what mediators do?

Where medical doctors are guided by clear protocols, mediators are guided by intuition. Mediators have nothing even remotely equivalent to a history and physical to guide us at the beginning of an intervention, and we have nothing like an autopsy to act as a corrective at the end of one. We have no idea when to use caucus and when to use joint sessions, when to be evaluative and when to be facilitative, when to allow venting and when to cut it off, when to be active and when to be passive. We do it (like Therapeutic Touch practitioners) by feel.

Some of our cases settle, to be sure. And it is enormously satisfying when they do. But some patients used to get better following the rituals of ancient witch doctors. What we do not know, just as our ancestors did not know, is whether those results occurred because of our efforts or in spite of them.

Like ancient physicians, we are happy to take the credit when things go well, and we’re happy to collect our fees in any event. But if we are honest even the most experienced of

4 us have to admit we don’t really know what we’re doing. Certainly not in the sense that the doctor who treated Groucho’s arm knew what she was doing. Luckily for us, it doesn’t seem to matter.

Mediators seem to have about the same settlement rate regardless of whether they are facilitative, evaluative, or transformative. Warm and fuzzy mediators settle cases, hard- boiled ex-judges acting as mediators settle cases, active mediators, passive mediators, mediators who use no caucus, mediators who use no joint session, and mediators who use something in between all seem to settle cases at more or less the same rate. There just doesn't seem to be a right way or a wrong way to do it.

This is not true about setting broken arms.

Some people think it is a wonderful feature of mediation that it offers something for everyone - there are mediators who are bullies; there are mediators who are sweethearts. But there is another way to look at the question. If there is no right way and no wrong way to do it, this may be because there is no "it" there.

Medicine and ADR

The history of medicine can help us understand what is happening here. For the first several thousand years of medical history doctors had no idea what they were doing. Sometimes they tried a poultice, sometimes a pessary, and sometimes a purgative. It didn't matter. Sometimes the patients got better and sometimes they died. No intervention was any more or less effective than any other.

Today in mediation the No Caucus people believe that true mediation takes place with everyone in the room. You might settle a case in caucus, they say, but you will never resolve a dispute. The Caucus Only people believe that having all the parties in the same room just raises the emotional temperature and confuses the issues. Far better to keep the parties separated so the lawyers can do their work. Retired judges believe in the judicial

5 settlement conference model, which consists primarily of arm-twisting and head-banging. Transformative mediators believe in a process that looks more like psychoanalysis. Lawyers tend to value “client control.” Facilitative mediators believe in a process that respects party autonomy and self-determination in a way that makes those lawyers distinctly queasy.

The left side of the spectrum views the right as hide-bound, self-protective, and greedy. The right side views the left as touchy-feely, unrealistic and silly. I won’t repeat the arguments here; they are likely to be familiar to anyone reading this. What I want to point out is that no one on any side of the controversy has any data to support his position.

What we have instead are prejudice and anecdote. People who were trained as facilitative mediators are familiar with facilitative mediation. If you ask them to explain how it works or why it is preferable to the other kinds, they will provide an explanation. People who grew up on a more evaluative, directive approach are familiar with that. If you ask them for an explanation, they will provide one too. Mediators who used to be litigators will claim to have special insight. But no one on any side of the issue will be able to point to a careful study that controlled for the variables and produced statistically significant, replicable results. They will make something up, or they will repeat what they learned in training. And they will argue for it vigorously.

What I want to emphasize is that arguments based on prejudice and anecdote get us nowhere. The only way out of the problem is the way medicine got out of it. Knowledge is advanced through scientific investigation. Anecdote, intuition and introspection can suggest questions for to examine, but only the can produce real knowledge. Until the terms in the field are unambiguously defined, hypotheses are clearly stated, and rigorous experiments are conducted under controlled conditions to test the claims of the various schools of mediation, all we have is arm waving and name calling.

Spiritual Cleanliness

6 In dispute resolution today, as in ancient medicine, some people believe that the effectiveness of an intervention has to do not with the intervention itself, but with the spiritual purity of the intervener. In the context of ancient medicine, it was widely believed that if the doctor was ritually purified the intervention would work. If not, not. In the context of ADR, there is a widespread belief that the success of a mediation depends on the "mindfulness," "presence" and inner peace of the mediator. There is a vast literature advising that mediators need to meditate and center themselves before and during their mediations.

In my view, this is not just nonsense, it is pernicious nonsense. It is deluded in just the way that the physician is deluded who fasts and prays instead of washing his hands. It is precisely this belief in the necessity of ritual purity that delayed for centuries the discovery of antisepsis in medicine, and it is the belief in centering and presence (undefined and unmeasurable) that is diverting resources away from the kind of inquiry that might lead to real advances in our understanding of dispute resolution.

As long as the field contents itself with producing article after article, conference after conference, book after book on the subject of “mindfulness” and as long as introspection is its chief investigative tool, real progress toward understanding will be delayed and the field will continue to wander in ignorance and superstition.

Galen and Vesalius

If we map the history of dispute resolution alongside the history of medicine as I have suggested, I would argue that we are about where medicine was between the third century and the 16th century AD. We are living in the age of Galen. Various schemes have been suggested corresponding to the Galenic humors: blood, phlegm, black bile and yellow bile. Fisher and Shapiro’s five core concerns (appreciation, affiliation, autonomy, status, and role) are just the most recent.

7 What we need is the ADR equivalent of Vesalius. We need to stop making up plausible- sounding stories and get down to the gritty business of dissecting corpses.

There are only two possible ways the field of dispute resolution can become more scientific. One is that we can do the necessary work. The path from speculation and intuition to firmly grounded science comes through careful measurement and collection of data. If dispute resolution is ever going to take its place as a legitimate area of study concerned with a meaningful body of knowledge, it is going to have to do the same. We are going to have to develop measurement instruments and consistent data collection protocols. We are going to have to test our hypotheses in randomized, controlled, double- blind studies. We’re going to have to do the math. There is nothing sexy about this kind of work. It’s much more fun to stride in like a witch doctor in a puff of colored smoke.

The other possibility is that we can steal the work of others. Happily, a great deal of real science has been done in economics, psychology, evolutionary theory, game theory, decision theory, cognitive science and elsewhere that can have direct application to the field of dispute resolution.

Back to Placebo

This is an important part of the story, but it is not the whole story. If we pursue the analogy between ADR and medicine we need to add one more wrinkle. For the first several centuries in the history of medicine, all a doctor could offer his patients was support, hope and medical ritual. When medicine became scientific he could offer antibiotics. The mistake medicine made, at least in the US, is that many doctors came to believe that they no longer had to spend time talking to their patients. Because the drugs they prescribed were real drugs and not just placebos, they felt they didn’t need to bother with providing support, hope and medical ritual. The drugs could do all the work.

But it isn’t so. Just as psychoactive drugs work better when they are combined with talk therapy (and it doesn’t seem to matter what kind of talk therapy it is), medical drugs work

8 better when they are combined with medical ritual. Analgesics, for instance, are more effective when they are administered in a way the patient can see than when the same drugs are administered by a hidden machine. It appears that medicine, like justice, must not only be done, it must be seen to be done.

I used to argue that there were two kinds of people thinking about dispute resolution. There were the scientific-minded types like me who were dedicated to the study of decision theory, behavioral economics, cognitive science and the rest, and there were the Muffin People. Muffin People believe that what settles disputes is a warm, supportive environment for the disputants to tell their stories and an empathic ear to listen to them. Fresh baked muffins were believed to aid the process. I had a lot of fun for several years deriding Muffin People.

Now it turns out there is good scientific evidence that the Muffin People were right. Food does increase receptiveness to new ideas. Physical warmth is conducive to agreement. Just because a fact is logically irrelevant doesn’t mean it is psychologically irrelevant.

Moreover, it turns out that not all placebos are equal. Expensive placebo pills are more effective than cheap ones. Placebo pills taken several times a day are more effective than those taken less frequently. Large pills are better than small ones. Injections are better than pills. And placebo surgery - in which incision is made and then sewn up and no other operation is performed - is better than placebo injection. And the placebo effect appears to be gaining strength with time.

It was long believed that the true effectiveness of a new drug could be tested by comparing its results to those obtained by patients receiving an identical placebo. Some improvement was expected because of reduced anxiety, conditioning, expectation, regression to the mean, and the other features we’ve discussed. The mere act of going to the doctor seemed to improve patients’ well-being. By subtracting the results obtained by medical ritual in the control group from the results experienced by patients in the treatment group, the true medical value of a new drug could be determined.

9 But more recent study tends to support the view that medical ritual IS treatment. Part of what makes medicine work, even the most scientific modern medicine, is expectation, conditioning, and social cues. Placebo IS medicine. The medical research community has begun to recognize this and is devoting considerable effort to studying the matter.

There is a similar need in ADR. My earlier view, that we need to subtract the placebo effect in order to understand the true nature of dispute resolution, is mistaken. I am correct that the scientific method is necessary - we are not going to advance the field with anecdote and introspection; we are only going to do it with clearly defined terms, measurable predictions, and careful, controlled, randomized experiments. But among the things we ought to be examining in those studies is the effect of placebo.

An Example

My wife is a psychologist in the field of disaster mental health. She goes out with the Red Cross and other agencies to provide “psychological first aid” to the victims of hurricanes, floods, airplane crashes and that kind of thing. An important part of what she does is called “normalizing.” The people she sees report having difficulty sleeping, loss of appetite, inability to concentrate, intrusive thoughts, and they think they are going crazy. She explains that those reactions are normal for people who have been through these kinds of traumatic events. Her patients find that helpful. It is enough to worry about losing your house. It’s a relief to learn that you don’t have to also worry you are losing your mind.

Mediators have a similar function. One of the parties says, “It’s 11:00 and we’re half a million dollars apart. This is hopeless. I give up.”

We say, “I expect to be half a million dollars apart at 11:00. We’re doing fine. Don’t worry about it.”

10 This is normalizing. It reduces the party’s anxiety and allows the parties to focus on settlement. It is part of a mediator’s job. But notice the similarity between the modern practitioner’s normalizing and the ancient physician’s offering of support, hope and medical ritual.

It is not clear where the boundary between placebo dispute resolution and “real” dispute resolution may lie. It is not even clear whether such a boundary exists.

Sources

Bausell, B. B. (2007) Science: The Truth About Complementary and Alternative Medicine. Oxford: Oxford University Press

Bowling, D. and Hoffman D. A., (Eds.). (2003) Bringing Peace Into the Room: How the Personal Qualities of the Mediator Impact the Process of Conflict Resolution San Francisco: John Wiley and Sons, Inc.

Carlat, D. (2010) Mind Over Meds: How I Decided My Psychiatry Patients Needed More From Me Than Prescriptions New York Times Magazine, April 25, 2010 de Craen, A., Kaptchuk, T., Tijssen, J. and Kleijnen, J. (1999) Placebos and placebo effects in medicine: historical overview Journal of the Royal Society of Medicine, Vol. 92

Fisher, R. and Shapiro, D. (2005)

11 Beyond Reason: Using Emotions as You Negotiate New York: Viking

Frank, J. D. (1973) Persuasion and Healing: A Comparative Study of Psychotherapy Baltimore: Johns Hopkins University Press

Hall, H. (2009) The Placebo Effect eSkeptic http://www.skeptic.com/eskeptic/09-05-20/#feature

Harrington, A. (Ed.). (1997) The Placebo Effect: An Interdisciplinary Exploration Cambridge, Harvard University Press

Judson, O. (2010) Enhancing the Placebo Opinionator Blog, The New York Times http://opinionator.blogs.nytimes.com/2010/05/03

Nuland, S. B. (1988) Doctors: The Biography of Medicine New York: Random House

Park, R. (2000) Voodoo Science: The Road from Foolishness to Fraud New York: Oxford University Press

Silberman, S. (2009) Placebos Are Getting More Effective. Drugmakers Are Desperate to Know Why

12 Wired Magazine www.wired.com/print/medtech/drugs/magazine/17-09

Tulhus-Dubrow, R. (2010) The Magic Cure Boston Globe www.boston.com/bostonglobe/ideas/articles/2010/05/09

13