The New York state Assembly and Senate are on a roll. They’ve approved 935 bills this session, 50% more than in recent years and the highest number since 2006, according to the New York Public Interest Research Group. With a wave of progressives enabling Democrats to control the state Senate for the first time since 2010, the majority party is running on adrenaline; it considered a whopping 1,825 bills in just 13 days in June.
But there’s a side effect of that frenetic pace: mistakes. “With the bleary-eyed, long session days—things happen,” Assemblywoman Nily Rozic, a Democrat from Queens, New York, told the Wall Street Journal. Case in point: Lawmakers negotiated a bill that would legalize e-bikes and e-scooters across the state except for Manhattan. To specify that carve-out, the bill included language stating the scooters would be banned from any New York county with a 2010 U.S. Census population of between 1.586 million and 1.587 million people. But Manhattan’s population was 1,585,873 in 2010.
Similarly, legislation overhauling the state’s rent laws (which we covered in last month’s issue) was drafted to apply to hundreds of thousands more apartments than intended. And a bill granting state tuition subsidies to noncitizen students erroneously included foreign-exchange students, the Journal reports. Such mistakes, if detected in time, are corrected in so-called chapter amendments before bills are signed into law.
At a press conference, New York governor Andrew Cuomo, a Democrat, acknowledged the snafus and noted that his fellow party members didn’t have experience writing bills that might actually become law.
Late nights and last-minute deadlines contributed to the perfect storm. “It’s like we were constantly cramming for the test,” said Kassandra Frederique, the New York state director of the advocacy group the Drug Policy Alliance, referring to late-night negotiating sessions for a bill legalizing recreational marijuana that didn’t pass. Lobbyists told the Journal they were negotiating the wording of the scooter bill between 11:30 p.m. and midnight before it was introduced.
Negotiators often underestimate the negative impact of time pressure, fatigue, and distractions on their judgment and decision making.
These drafting errors appear to have caused little harm. But in negotiation, deal-drafting mistakes can be a sign of potentially deeper and undetected problems and oversights, such as a failure to create or claim as much value as possible.
Negotiators often underestimate the negative impact of time pressure, fatigue, and distractions on their judgment and decision making. Psychologists have identified precisely why it’s important to reduce such stressors in negotiation and other complex decision-making tasks.
Attention must be paid
In a 2000 paper, psychologists Keith Stanovich and Richard West developed a useful metaphor to describe the two main types of cognitive functioning that humans perform: System 1 and System 2 thinking. System 1 refers to intuitive thinking—thought that is automatic, quick, effortless, often emotional, and reliant on biases and stereotypes. Most of our actions and decisions spring from System 1 thinking, from pressing the brake as we approach a stoplight to snapping at someone who is getting on our nerves. By contrast, System 2 thinking describes effortful, conscious, complex, and deliberate thought processes, such as those required to read a sonnet by Shakespeare, perform a difficult math problem, or brainstorm options in a negotiation.
System 1 thinking is sufficient for most of our daily decisions, such as which brand of paper towel to choose or whether to wear a white or blue shirt. By contrast, System 2 should influence our most important decisions, including many of those we make when negotiating, write Max H. Bazerman and Don A. Moore in their book Judgment in Managerial Decision Making (Wiley, 2009, eighth edition).
Ideally, the two systems of thinking work in harmony. “When System 1 runs into difficulty, it calls on System 2 to support more detailed and specific processing that may solve the problem of the moment,” writes Nobel Prize– winning economist Daniel Kahneman in his book Thinking, Fast and Slow (Farrar, Straus & Giroux, 2011).
In day-to-day life, however, we often fail to recognize when System 2 thought would serve us better. “The busier and more rushed people are, the more they have on their minds, and the more likely they are to rely on System 1 thinking,” write Bazerman and Moore.
Attention and focus are critical to engage and sustain System 2 thinking. “The highly diverse operations of System 2”—from monitoring the appropriateness of our social behavior to checking the validity of a complex logical argument—“require attention and are disrupted when attention is drawn away,” writes Kahneman. The new lawmakers in Albany, unaccustomed to the ways of negotiating and drafting legislation, need to be laser focused on their work. But that focus likely is being sabotaged by a host of situational constraints.
Demands on our attention lead us to power down to System 1 thinking when System 2 thinking would lead to better decisions. We pay a high cost when we use System 1 thinking to process complex negotiating tasks. The more “cognitively busy” we are, the more likely we are to “make selfish choices, use sexist language, and make superficial judgments in social situations,” writes Kahneman.
Barriers to System 2 thinking
Here are just a few common barriers that keep us from engaging in the logical reasoning needed to reach good decisions in negotiation:
1. Time pressure. Negotiators sometimes are tempted to impose arbitrary deadlines on talks in the hope of instilling a sense of urgency in a slow-paced or indecisive counterpart. But time pressure puts added strain on already overloaded brains. “The most effortful forms of slow [System 2] thinking are those that require you to think fast,” writes Kahneman. If you’ve ever had to make an important decision under time pressure, you probably recall how hard you had to focus and how desperately you wanted to relieve that pressure.
By making System 2 thinking even more difficult, deadlines tempt us to fall back on System 1 thinking. As a result, we are more likely to take cognitive shortcuts that impair our decisions, such as relying on stereotypes, or to choose the most obvious option rather than exploring an issue more deeply. While no one wants a negotiation to drag on forever, setting reasonable progress benchmarks is a better idea than imposing a hard-and-fast final deadline.
2. Multitasking. The so-called Digital Generation—those who have grown up during the era of cell phones, computers, tablets, and other communication technologies— are known for their penchant for multitasking, writes Lauren A. Newell in a chapter in The Negotiator’s Desk Reference , Vol. 2 (DRI Press, 2017). In fact, it’s increasingly common for people of all ages to try to engage in online and real-world experiences (such as negotiation) simultaneously.
But research shows that multitasking is “something of a myth,” says Newell: Rather than engaging in multiple tasks at the same time, our brains rapidly shift back and forth between them. “It is the mark of difficult effortful activities that they interfere with each other, which is why it is difficult or impossible to conduct several at once,” writes Kahneman in Thinking, Fast and Slow. While we can often conduct multiple System 1 tasks at the same time, such as listening to a book while driving on an open road and scratching an itch, we usually cannot perform multiple System 2 tasks at once, such as debating politics with our passenger while merging a car into heavy traffic.
Mental toggling between tasks results in so-called switch costs, or the time it takes our brains to adapt to the new task and block out the prior task. No wonder, then, that attempts at multitasking can decrease our accuracy rate by 20% to 40%, researcher Sam Jacobson of Willamette University has found. Multitasking also raises stress levels and impairs memory. So, when negotiating, turn off your phones, put your laptops away, close the door, and try to eliminate as many other distractions
3. Temporary physical impairments. It might go without saying that we do our best thinking when we’re well rested, well fed, and sober—but many negotiators don’t take this common-sense advice to heart. Whether we’re holding late-night negotiating sessions in the hope of cranking out a deal, skipping meals, or trying to grease the wheels with a few drinks, we are setting ourselves up to be distracted and impaired, and to fall back on System 1 thinking. Even just one or two alcoholic drinks, for example, can prompt simplistic thinking, overconfidence, strong emotions, and aggression in negotiation. Lack of sleep, hunger, and thirst create similar deficits. When preparing for an important negotiating session, ensure that there will be breaks for meals, and build in enough time so you won’t have to sacrifice sleep (and common sense) to get the job done.