INTERPRETING BEHAVIORAL DISTINCTIONS
IN THE MEDIATION PROCESS
By: Ron Mullin
Attorney and Mediator
Contra Costa County Bar Association MCLE Spectacular
November 17, 2006
Conflict is a natural part of life. Ever since the appearance of two people on this planet, each with individual ideas and goals, conflict has been inevitable.
But conflict does not have to be deadly. It can be rejuvenating if handled well. In physics, we are all aware of the maxim that “Two objects cannot occupy the same space at the same time.” When the two objects are human beings with different understandings as to their environment and different goals, their interaction can create friction. That friction can be portrayed in different behaviors which can be problematic for the mediator. I prefer to think of the different behaviors as an opportunity in collaborative problem solving.
Recent studies confirm what all of us have always known, litigation makes people crazy! Involved in litigation, parties typically do not act in their economic self-interest, but see the world through distortions which promote irrational behaviors.
The overall conditioned response of the mediator must be – Model the behavior you want to encourage.
Different types of behavior in the mediation process can either be a spontaneous emotional response or a strategic maneuver. Either way, it is important to evaluate the type of behavior and have a plan as to how to deal with it.
In a dispute, parties can come to the table with hurt feelings, many of which stem directly from the facts leading to the dispute. But almost always the feelings are a reaction to past experiences which may be similar to the dispute. We could probably characterize those feelings as “baggage.” But we all have baggage, some more than others. As mediators we need to recognize the baggage, and help the disputants recognize it for what it is. The challenge then is to get the parties to move on, and work towards a resolution that will meet their needs and provide resolution.
In summary, take emotional expression in stride. Don’t deny it or shy away from it. To do so is disrespectful of the person exhibiting the emotion, and eats away at your credibility and impartiality.
A review of some of the barriers encountered in the mediation process and how to handle them may be useful to mediators and attorneys alike.
● PERCEPTION
Artists and photographers understand the concept of perspective. Things closer to us look larger, and the closer something is to us, the more important and superior it becomes. It may look better in every way to us and we tend to overlook its faults.
Researchers have demonstrated this distortion by randomly dividing a group of practicing lawyers into two groups. Each group was given the exact same information about a case. On average, the group representing the plaintiff valued the case at $221,000 while the group representing the defendant valued the case at $180,000. The plaintiff’s group believed that their case was morally superior to that of the defendants, while the defendant group believed that the plaintiff was “a sleazeball.”
Attorneys and clients over evaluate their own cases ever day in the same way. The results can lead to the expenditure of tremendous amounts of money for attorney fees and discovery costs, and an equal amount of time invested by the attorney.
Focus on the overvaluation of the past investment, as opposed to the case’s present value can interfere with reasonable settlement attempts and lead to confrontational behavior of the party.
● REACTIVE DEVALUATION
In a 1987 study, researchers at Cal Berkeley and Stanford (one of the only times that those two schools have agreed about anything!) found that student’s reactions to a proposal generally boiled down to the stated source of the proposal. When a proposal comes from a disputant, it is immediately devalued as a result of the source. Whereas, if the same proposal is suggested by the mediator, it may be more generally open for consideration.
● NEGATIVE SELF-FULFILLING PROPHESY
As attorneys, we assume that litigation will be hostile and inefficient. Studies have shown that our beliefs are translated into self-fulfilling prophecies.
OVERCOMING BARRIERS
How then does the mediator deal with these distortions and the resultant behaviors accompanying them?
1. The mediator must at first gain the trust and confidence of the disputants. This can be accomplished by first and foremost being a good listener. Sometimes the parties need to vent and this emotional expression should not be taken personally by the mediator. Acknowledgment of understanding and reframing of the disputant’s position can help to engage the disputant and to build their trust and confidence because they realize that you understand where they are coming from. Most disputants really want someone in an objective and non-judgmental position to hear them. Once they know that you have heard them and understand where they are coming from, they are more likely to trust you with their needs, interests and underlying priorities.
2. Armed with this information the skilled mediator can ask pointed questions about those interests and move the party to consideration of the possible gains from a fair and reasonable resolution of the dispute as opposed to dwelling on past events and the feelings that those events instilled.
3. Reframing is one of the most important tools of a mediator. By reframing the dispute, at the appropriate time, the mediator can move the disputant away from past recriminations and the stigma of “losing,” and focus on a resolution that avoids blame and stresses the positives of a resolution proposal.
SUGGESTIONS FOR DEALING WITH
UNCOOPERATIVE TACTICAL NEGOTIATORS
In the book, Getting to Yes by Roger Fisher and William Ury, Penguin Books, 1981, the authors suggest that mediators:
1. Focus on the reasons behind a party’s position.
2. Invite criticism and advice instead of defending ideas.
3. Ask sincere questions and then pause and listen.
4. Restate personal attacks as insight into common interests.
5. Identify tactics and then negotiate procedural matters.
6. Ury-Fisher at page 22,: “Understanding the other side’s thinking is not simply useful to solve the problem. It is the problem. The ability to see the situation as the other side sees it is one of the most important skills a negotiator can possess. If you want to influence them, you need to understand empathetically the power of their point of view and to feel the emotional force with which they believe it.”
William Ury went on to write a second book, Getting Past No: Dealing with Difficult People (1991). He offers easy to remember counter tactics:
1. Don’t React – Go to the Balcony. In other words, step back, take a deep breath, view the situation in context and remind yourself why you are there in the first place.
2. Disarm Them – Step to Their Side. Confrontation and impending bypass spawn negativity and confrontation on both sides. The mediator must deflect these moves, step to the side and continue to offer positive and constructive communication. This strategy includes:
- Active listening
- Acknowledging and understanding of the other’s points without conceding their accuracy or truth.
- Agreeing, whenever possible, to recognize points of understanding which might provide the foundation for later agreement.
- Acknowledging the other party personally, as a mark of respect for their views and sensitivities.
- Expressing your views clearly and considerately.
3. Change the Game – Don’t Reject . . .Reframe. Reframing includes the following active behaviors:
- Ask open-ended questions aimed at problem solving.
- Reframe their tactics, define the problem differently. (As Jay Folberg stated in “Essentials of Negotiation, 2003, “for example, if they present you with a stone wall, ignore it, test it, or reinterpret it just as a wish on their part; if they attack you, ignore it, deflect it from you to the problem, or recast it in less confrontational terms that highlight common goals and interests”)
4. Make It Easy To Say Yes – Build Them a Golden Bridge. According to Ury (1991, p.89) the four most common objections from the other party are these: (1) It’s not their idea (i.e. pride of ownership); (2) it doesn’t address one of their basic interests; (3) it might cause them to lose face or look bad to some important constituency; or (4) it requires to big an adjustment for them (i.e. “too much, too fast”).
- Involving them in the actual design of an agreement that addresses both the interests and objections of every party.
- Be mindful and acknowledge the range of personal and organizational demands and expectations that they may face.
- Help them to save face and to deal with their constituencies by providing justifications for the agreement
- “Going slow to go fast” (Ury, 1991, p.105) hand holding through the entire process and going over the terms step by step to build a comfort level. Don’t rush closing lest they balk.
5. Make it Hard to Say No – Bring Them to Their Senses, Not Their Knees. Confronting confrontational power plays with power plays will most likely return to a place of competitive dynamics as opposed to resolution. Therefore, it is important to provide a strategy that will disengage them from the dynamics of distortion and irrationality – help to bring them to their senses. How?
- Continue to use the BATNA approach (Best Alternatives to a Negotiated Agreement) being careful not to appear confrontational or “you better do this or else . . .”
- Help them to realistically assess what the consequences are of no agreement. Does this meet their interests?
- Focus, Focus, Focus – refer back to the attractive terms that got them to get where they are now and help to focus on the advantages of completing the agreement.
Finally, is an apology impossible? If the mediation is really positional bargaining, then perhaps, but never rule it out. Sometimes, the parties may arrive at a mutual understanding of the other party’s pint of view and interests and get to the point where they are truly sorry for what happened. Regardless of whether the apology is used as capital, it can provide closure and peace to people’s lives.
Mediators are healers of conflict. As Former Chief Justice Warren Burger said in his 1984 State of the Judiciary Address:
“The entire legal profession, lawyers, judges, law school teachers, has become so mesmerized with the stimulation of the courtroom contest that we tend to forget that we should be healers of conflict. For many claims trial by adversarial contest must in time go the way of the ancient trial by battle and blood. Our system is too costly, too painful, too destructive for a truly civilized people.”
Mediation
