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    15. The Magic of Mediation and the Reasonable Person Model in Action

    Abstract

    Alternative dispute resolution (ADR) processes provide alternatives to traditional litigation and other adjudicative processes for resolving disputes.[1] Mediation, a form of assisted negotiation, is an ADR process in which the parties remain responsible for finding their own resolution. When people come to mediation, they are not necessarily at their best; disputing parties are often quite unreasonable, and this can be an impediment to the parties reaching a mutually agreed upon settlement of their dispute.
    Notwithstanding the challenges posed by such a situation, mediation is often successful. In the absence of a theory to explain what happens at mediation, some refer to the shifts in perspective that occur and clear a pathway toward resolution of the dispute as the magic of mediation. The shifts that may sometimes seem to mysteriously and spontaneously occur are not magical but are predictable when one considers and addresses the domains of RPM. RPM offers a theory to explain the magic and has great potential to positively influence the way mediators design mediation processes and to build upon and expand mediator knowledge and skills. RPM supports the intrinsic value of mediation as a process that can meet basic human psychological needs and explains how an appropriately structured mediation process—a supportive informational environment—will assist the parties to be at their best.


     
    Conflict permeates society. Family breakdowns, bitter employment disputes, commercial transactions gone awry, unneighborly disagreements over roaming cats or encroaching fences—these are but a few of the types of disputes we encounter in everyday life. The problem is not in finding conflict but in resolving it.

    Various processes known as alternative dispute resolution (ADR) have been established to assist individuals to resolve these and a myriad of other kinds of disagreements. The field of ADR has flourished, in part, in response to growing dissatisfaction with more traditional models of dispute resolution (Macfarlane, 2008). Judicial processes in particular are unappealing to or out of reach of many would-be litigants who seek other more timely and less expensive ways to address their conflicts. Mediation is one such ADR process.

    Mediation can be simply defined as a process of third-party neutral assisted negotiation. It can also be conceptualized as a place where people come together, with the assistance of an impartial third party, to find a resolution to a dispute they are encountering. Notwithstanding the inherently flexible nature of the process, a generally accepted, and some would suggest critical, premise of mediation is that a mediator does not impose a resolution upon the parties to the dispute. Unlike a judge or other third-party adjudicator, a mediator is not engaged to tell the parties what they must do but instead works with the parties to help them to create their own mutually acceptable solution.

    In accordance with this basic premise of party control over the outcome, a mediator’s primary role is in facilitating a process in which the parties can resolve their own dispute (Moore, 2003). It is, by this definition at least, a type of participatory problem-solving process. I believe that it also has great potential to demonstrate the Reasonable Person Model (RPM) in action.

    The purpose of this chapter is to explore how RPM can be applied to the theory and practice of mediation and why it is a useful conceptual model to explain the effectiveness of the mediation process. Significantly, RPM highlights the greater societal value of mediation by validating how important and life enhancing a process can be when it meets fundamental human psychological needs. RPM can also helpfully guide mediators as they assist the parties to meet the challenges encountered at mediation.

    The Challenge of Mediation

    People seek the assistance of a mediator because they have a dispute they have not been able to resolve on their own. Although they will still be expected to find their own solution during the mediation process, a mediator’s role is nonetheless a challenging one. While it would be unfair and unwise to generalize too broadly, there is a reason why the parties to mediation are sometimes referred to as the disputants! Those embroiled in conflict are not necessarily the kind of people one may enjoy being stuck in an elevator with, or a mediation room for that matter, for any length of time. People in such a situation are quite often the opposite of reasonable. They may be feeling overwhelmed by the conflict and their inability to resolve it and may be feeling frustrated and helpless. These feelings may be apparent from the attitudes they bring to the table and the behaviors they demonstrate. Otherwise decent people may present in such a situation at times as cranky, difficult, resentful, testy, and/or distrustful.

    In such a mental state it is also far more challenging for people to think and solve problems creatively, and thus when they come to mediation they may not be performing at their cognitive best. This poses a serious problem, as it will be more difficult to find a resolution if the parties’ mental capacities are diminished (LeBaron & Honeyman, in Schneider & Honeyman, 2006). These dynamics create obvious challenges for the parties to overcome if they are to resolve their dispute, as well as for the mediator who has been engaged to assist them.

    Notwithstanding how the parties may present, a mediator must respect their ability to reach a mutually agreeable resolution. This is an important corollary if one accepts the underlying premise of party empowerment. One can well understand how it may be particularly challenging for a mediator to maintain a posture of respect in a room full of disagreeing and disagreeable people behaving unreasonably toward one another and perhaps, at times, even the mediator. This may make it tempting, and indeed it may be easier, to tell people in such a situation what they should do than it is to help them arrive at their own mutually acceptable outcome. However, this is not the purpose of mediation. An attitude of respect toward the parties and their inherent ability to direct and control their own lives is recognized by many as an important personal capacity of an effective mediator (Grillo, 1996). Similarly, it has been reported that one of the advantages of mediation is that it is often experienced by the parties as a place where they feel respected and heard (Mayer, 2000). This is significant. As we understand from Basu and Kaplan (Chapter 1), the need to feel respected is a basic human need. Consequently, while there are other approaches to mediation, a mediator’s ability to create a respectful environment is at the heart of effective mediation as I describe it.

    Nor is it always easy for a mediator to determine what the real issues are or where the boundaries of the dispute actually lie. While parties generally present with a particular distributional or other legal issue they cannot resolve, there may be other and often less tangible or apparent issues that can block the path to resolution, and these issues may be just as important to uncover and address if the parties are to reach a durable solution to their disagreement (Stark, 1996). Untangling the conflict, or as some refer to it diagnosing the conflict, is often part of the challenge of mediation. “Knowing where they are at,” as Kearney (Chapter 16) writes about it, is thus a useful skill for mediators.

    In the presence of so much conflict and unreasonableness, one might wonder how mediators persevere in their belief that the solution lies with the parties or even why mediators keep doing what they do. Despite these challenges, or perhaps because of them, mediation is often successful and can be a very rewarding practice. Many mediators believe that their process is more than simply a cheaper and faster way to resolve problems. They understand the inherent value of their work to help people stay in control of their lives even when they are in turmoil (Mayer, 2000). As well, when the parties are appropriately engaged, the outcomes arrived at during mediation may be better than the imposed resolutions of long and expensive court battles or other adjudicative processes (Macfarlane, 2008).

    When mediation works, when it really works, it can seem magical. When mediators refer to magic, I believe they are referring to the power of the process and, in particular, its ability to move people from unreasonableness to reasonableness. The magic is in the shifts—in how the parties view themselves, each other, and their situation. It happens during mediation, clearing the path for the parties to resolve differences and disagreements that before may have seemed insurmountable (Davis, 1989). Sometimes it does seem as if people just come to their senses during the process.

    Mediators Need a New Theory

    If mediation is such an effective and valuable process, you may wonder why mediators need RPM. This is because how mediation works is not well understood. Without a better explanation for how mediation works, mediators are left with words such as “magic” to describe the power of their process (Davis, 1989). Even those who are firm believers in the process and have seen that it can work will generally admit that at times they are relatively in the dark about what is going on during the process (Bowling & Hoffman, 2000). It may occasionally appear as if the parties are engaged in, as one author aptly described negotiations, a rather frenzied form of human improvisational art (Menkel-Meadow, 2006). As overseers of the process, however, mediators need to understand human behavior particularly in the contexts in which they operate. A theory to help guide their practices and to better understand the role they play in the process would be most useful (Herrman, Hollett, Gale, & Foster, 2001).

    For many years, the economic or rational man model prevailed in negotiation and mediation theory; however, this theory has outlived its helpfulness to mediation theory and practice (Yarns & Jones in Schneider & Honeyman, 2006). The premise of human beings as inherently rational beings guided by their economic interests neither rings true in our own daily experiences nor corresponds to the way parties involved in conflict situations often fail to be guided by their own rational best interests. Even economists are starting to question the wisdom of their own assumptions (Thaler, 2000).

    The lack of an appropriate alternative model to ground their work and explain why humans react the way they do in the disputing context, including why these shifts occur, has put mediators at a disadvantage (Gaynier, 2005). This gap in understanding presents what is perhaps the most serious challenge for mediators. It has been rather dramatically suggested that when mediators mediate without an understanding of human motivations and behavior in the negotiating context, this is similar to surgeons performing operations when they do not even understand the process of healing or how the human body functions (Hoskins & Stolz, 2003).

    At the same time, however, it is important to recognize that mediators are not functioning as therapists. The growing acceptance that people at times are rather more emotional and unpredictable than they are rational means that mediation, and a mediator’s role, is consequently more complicated. Nonetheless, the role that mediators have been engaged to provide is not as therapists but as mediators (Favalaro, 1988; Kelly, 1983).

    Needless to say, mediators cannot ignore the human aspects of the dispute. As has been quite sensibly noted, the parties to any dispute are “people first, litigants second” (Strasser & Randolph, 2004). How people think, feel, and behave is a big part of the equation in dispute resolution. What is needed is a way “to marry the two” (Menkel-Meadow, 2001), a model that recognizes and works with the inherent nature of the human animal to foster positive and productive interactions oriented toward substantive problem solving. RPM is such a model.

    A Psychologically Appropriate and Useful Model

    RPM provides a realistic and relevant model of human nature. The human described by RPM—one who can be reasonable sometimes and at other times quite unreasonable—should already be familiar to those who work with people in conflict. The model is more psychologically appropriate than Bentham’s rational man and for that reason should resonate with mediators. The reasonableness of the parties is a big consideration for mediators and successful mediation outcomes (Cheyney Ryan in Schneider & Honeyman, 2006). By explaining human motivations, RPM offers insight and assistance to mediators about their role in the mediation process and ways in which they might structure a process that will tend to bring out the best in people. By focusing their efforts on the conditions that meet rather than frustrate these essential RPM domains, a mediator can situate the parties well.

    These conditions are provided by RPM’s conceptualization of the environment as patterns of information, allowing one to think of the entire mediation process as an informational environment. A mediator familiar with the domains of RPM can focus on constructing an environment sensitive to human functioning that is based on these important informational needs. This is consistent with the generally accepted responsibility of a mediator to create an environment where the parties can be best situated to solve their own dispute (Moore, 2003) and is a very helpful way to think about the mediation process. The essential premise of RPM is foundational to the success of mediation as a dispute resolution process. The framework outlines the ways in which a particular informational environment is vitally important to our functioning and how it can help explain why people are behaving more or less reasonably. Because it is concerned with the contexts and environments that nurture the reasonable side of people and help them to be at their best, the model is of obvious relevance to mediators.

    RPM Is Portable

    Editors’ Comment: R. Kaplan (Chapter 2) discusses sharing information so that it is usable by the recipient.

    While mediators might look to the experts in the social sciences for insight into the complexities of human behavior, any theory, no matter how relevant, will not be useful unless it is presented in a way that is straightforward and easy to understand and apply. The practice of mediation requires an ability to act intuitively and reflexively; the ability to “go with the flow,” a kind of creative mental agility, has been recognized as an important skill for a mediator (Lenski, 2009). Thus, a theory that can readily be understood, absorbed, and called upon in the sometimes stressful and time-sensitive situations that occur during mediation is more likely to be helpful to mediators (S. Kaplan & Kaplan, 1989). While RPM is based on cognitive psychology and human evolutionary studies, it is framed in terms of three basic and easily graspable but very important concepts. It is an easy to understand and straightforward model, and a person with no background in the sciences can understand and apply it in many different practical contexts, as the examples throughout the book have demonstrated.

    Role Congruency

    RPM envisages the role of the mediator as architect or creator of an environment. This is a familiar role for mediators, helpfully avoiding role confusion. By focusing on the environment rather than the mind, RPM moves us beyond thinking that mediators are therapists or somehow responsible for changing people. Transformative mediation, for example, posits that people experience moral growth during mediation, and thus the process actually changes or transforms the parties involved (Folger & Bush, 1996). It does sometimes seem as if the people who walk out the mediation door are really not the same ones who entered. In the absence of a better explanation, one can appreciate why Folger and Bush have conceptualized what is happening during the process as a transformation of the individual. However, Folger and Bush have been criticized for the lack of a theory to explain how or why moral growth can explain these shifts in perspective as well as the sheer enormity of what they are suggesting mediators take responsibility for in terms of the moral growth of another human being (Gaynier, 2005).

    Editors’ Comment: Ivancich (Chapter 5) discusses some specific ways to overcome entrenched models.

    RPM also moves us away from any thinking that mediators need to convince the parties to do the “right thing.” It is not easy to convince people to “eschew their own interests” or “embrace their adversaries,” as some mediators suggest is necessary for successful mediation (Erickson & McKnight, 2001). The model provides a helpful way to reconceptualize what is going on that is consistent with and appropriate to a mediator’s accepted responsibility to create a helpful environment for the parties to solve their own disputes. This is a more optimistic and realistic goal for mediators.

    Redeeming the Value of Process

    Editors’ Comment: An “appropriately structured process” can also be thought of as a supportive environment, one that supports human informational needs.

    Although process is the bread and butter of a mediator’s work, critics of mediation have argued that mediators worry too much about it (Lederach, 1995). Those who believe in the power of mediation understand, however, that how a dispute is resolved can be as important as, and at times perhaps even more important than, the particular resolution arrived at during the process. RPM is helpful because it demonstrates why this is so, that is, how an appropriately structured process is actually very important to human psychological health and well-being. As the model demonstrates, the desire to understand what is going on, to explore possibilities, and to enhance one’s feelings of competence are all deeply human characteristics (S. Kaplan & Kaplan, 2009). A process such as mediation, which is designed to help people work together to solve their own problems as an alternative to surrendering their disputes to a third-party adjudicator, implicitly supports the domains of meaningful action through participation in the process as well as effectiveness. RPM demonstrates the inherent value in providing people a safe environment in which to explore opportunities to solve their own problems and thus restore feelings of personal competence.

    RPM demonstrates that the benefits of an appropriately structured mediation extend beyond resolving the particulars of the dispute that brought the parties to mediation when it meets these important (although often unspoken and perhaps unrecognized) human needs. By demonstrating the positive impact on human well-being of a supportive informational environment—one that is designed to meet, not frustrate, the human need to explore and make a difference—RPM validates the process itself and highlights the greater societal implications of a participatory problem-solving dispute resolution process such as mediation.

    A well-designed mediation process will provide a safe environment in which to explore possible solutions and will also promote mutual understanding by helping the parties gain insight into what is important to the opposing party, which is the essence of model building. As Kearney (Chapter 16) noted, the inability to see things from another’s perspective underlies many conflicts, and this is certainly true for mediation. When their informational needs are met, people are naturally more inclined to be at their best. These shifts in perspective—the building of new mental models—make reaching an acceptable resolution possible. When parties begin to gain an understanding of each other and their personal stories, anything is possible.

    Applying RPM: Principles for the Mediator’s Toolbox

    The RPM framework can be useful to the mediator for designing a process to positively influence how the parties will be inclined to relate to each other. Even subtle changes in the way that information, as defined by RPM, is flowing to and between the parties can be critically important to their thoughts, feelings, and ultimately behaviors.

    In order to help the parties reach a resolution, notwithstanding that mediators have many different styles and approaches, there are some common concepts and techniques that are taught in various seminars and workshops and are employed to greater or lesser success at times. These are sometimes referred to as a mediator’s metaphorical “toolbox.” While many of these existing tools are helpful from an RPM vantage point, RPM is helpful because it provides us with a coherent framework to critically examine these tools and to experiment with new ones.

    Exploring Others’ Models to Build Empathy and Find Agreement

    People are tied to the mental models they have and are unlikely to easily give them up. Disputants often come into the room with vastly different mental models, the crux of the problem in mediation. RPM suggests that the mediator’s job is to create an environment that allows parties to explore their own and their opposing party’s mental models. Mediation is well positioned to be a safer place than adjudicative processes for such exploration. By entering into a problem-solving environment with a neutral third party, a nonjudgmental mediator with no decision-making power, the parties are able to enter into discussions without prejudice to any legal rights. Such a scenario removes some of the vulnerability associated with exposing hurts as well as making admissions and/or apologies. It also gives the parties freedom to take “what if” or “how about” stances—in other words, to experiment—without fear of commitment—with various possible solutions to the problem or problems that brought them there. The role of a mediator during such a process is to effectively facilitate these difficult, conflict-ridden discussions among the disputants. In helping smooth the flow of information between the parties, the skilled mediator can guide exploration of commonalities in mental models and possible outcomes that will lead to meaningful actions.

    Participation Must Be Meaningful: Underscoring the Importance of Respect

    In explaining how people are influenced by all three domains of the framework, RPM underscores the foundational importance of a respectful environment at mediation. As mentioned in the introduction to this chapter, many mediators already understand that what they bring to the table in terms of their attitude toward the parties, including their ability to create an environment where the parties feel respected and heard, is essential to the process. The RPM domain of meaningful action explains why respect is so important to participation. Most mediators use techniques such as establishing and enforcing important ground rules for participation to ensure a respectful environment between the parties. Through their ability to listen effectively and create a safe and comfortable atmosphere, many mediators also express their understanding of the importance of demonstrating their respect to the parties.

    RPM shows us that without such an environment, other techniques may lose their effectiveness. Some otherwise very helpful techniques—such as reframing, reality testing, and brainstorming—can seem stiff and phony, even patronizing, when not employed skillfully and respectfully. Viewed through the RPM lens, we understand that while these and many other techniques are compatible with an RPM approach to problem solving, if the parties do not feel respected, their participation is not likely to be meaningful.

    Effectiveness Is Important: Take Time for Restorative Experiences and Discovering New Connections

    As described by Sullivan (Chapter 4), the human capacity to be reasonable is linked to the level of our mental fatigue. Mediators should be cognizant not only of the capacity of the participants but of their own need to replenish as well. The sense of clearheadedness that accompanies restoration is important, as we know, from an effectiveness point of view; the ability to hang in there, important in mediation, is dependent upon it.

    That is why taking breaks and allowing the parties to clear their heads and replenish in different ways is so important. Many mediators understand that activities that engage the mind in different ways can also be helpful to the process. While some mediators may choose to experiment with humor and experiential activities such as music, dance, and art, such activities may seem unhelpful or silly by more conservative mediators and by some parties as well. But viewed in terms of their impact on human effectiveness, as RPM suggests, there is value in building in opportunities for the parties as well as the mediator to take restorative experiences. Thus, activities that will provide a time-out opportunity for restoration may be helpful, although not in all situations or with all parties.

    Effectiveness Is Important: Tap into Nature’s Restorative Power When Designing the Mediation Environment

    Earlier in this chapter, I described mediation as a place where people come together. Most often, it is a physical place. RPM reminds mediators that they should not neglect the importance of the physical setting. Most mediators already understand that how a mediation space is configured can make a difference in the process. Whether or not the space is perceived as neutral can affect or eliminate power imbalances; whether or not there is a table or even the size and shape of the table can impact the interaction. All of these elements of the physical environment are important in terms of communication flow and interpersonal dynamics as well as demonstrating respect for the comfort of the parties (Moore, 2003).

    Many mediators are also starting to think in broader terms about the subtle ways that the places where they mediate, typically in offices or boardrooms, can impact how the process transpires. Some mediators are wondering how to better engage the full potential of the physical mediation environment (Allen, 2008). Why a room, asks one mediator? Why not an ocean bluff or a Redwood grove? (Helie, 2003).

    RPM and the associated Attention Restoration Theory (ART) (S. Kaplan, 1995; see also Sullivan, Chapter 4) research explain how the restorative powers of the natural environment positively impact human effectiveness. ART is particularly helpful, as it provides accessible ways to tap the benefits of nature that are achievable in, and consistent with, the traditional environments where mediators work rather than requiring an actual trek to a park or wilderness retreat.

    Conclusion

    Take parties who are assumed competent, but temporarily stuck in conflict. Take mediators who can tap the parties’ competence to help them get unstuck. Take a flexible process which makes sense. Add good will and set aside sufficient time for problem solving and magic! Mediation.
    —Davis, 1989

    RPM helps to explain the experience of mediation as a positive and powerful process. It provides a road map through the terrain of conflict and the messiness inherent in dealing with sometimes rather difficult people to move the parties to resolution and the mediation toward fulfillment of its essential purpose. By conceptualizing the environment as a series of information patterns and demonstrating how these patterns can be structured to influence human behavior in a positive way, it is possible to bring out the best in people. RPM provides mediators with a needed framework to understand and measure the effectiveness of their existing approaches and strategies and a model to explore new ways to approach their practices. Thus, RPM helps us better understand the mediator’s role in the process and make sense of the magic.

    RPM, and ART in particular, provide us with additional information to consider when designing mediation environments and their impact on human effectiveness. An RPM-structured environment will be most supportive of the goals of mediation. By shifting perspectives from the mind to human functioning, RPM supports mediators in their traditional roles rather than assuming a therapeutic or transformative role.

    Davis (1989) provided us with perhaps the simplest and best description of mediation that I have come across and one that I believe embodies the possibilities of the RPM environment. As RPM promotes our understanding of human nature and why people react the way they do when they are in the mediation environment, the model will help mediators practice more effectively and confidently. If we can explain the magic, we can sustain it (Davis, 1989).

    Note

    1. This chapter incorporates substantial material from Hollett (2011).return to text

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