Jan 1, 2022
By Patricia Prince
Long ago, an attorney client told me she was bringing me a case to mediate that required my “magic” since she saw little chance of resolution, but the court had strongly suggested the parties try mediation. The case settled in mediation. More importantly, her comment made me reflect on the mediation techniques I regularly rely upon to resolve seemingly intractable conflicts. Apart from proper wand technique (and equally applicable to in-person and video-conference mediations), my top four pieces of “mediator magic” are:
• Establishing trust;
• Identifying themes;
• Believing the parties are closer to agreement than they appear (my observations and some
interesting research indicate that this is usually the case); and
• Investing the time necessary for people to change their positions.
Settlement is more difficult to attain when counsel and the parties are in a heightened state of distrust. Establishing trust through curiosity, interest and careful listening, as well as trustworthy negotiation practices, is powerful magic. Neuroscience points to a state of connection such that “when we come to ‘feel felt’ by another person, we feel not only aligned with the other, but our brain likely establishes…a ‘neuroception’ of safety.”i Bringing parties and counsel empathetically to a safe, receptive and mindful state of being is something good mediators often do naturally. Once there, counsel and parties can safely open up to creativity, opportunity and reasonable risk analysis to achieve an optimal settlement.
Fellow mediator and gifted author Daniel Bowling introduced me to the idea of listening for overarching themes at the heart of the dispute for each party, such as being treated unfairly, being disrespected, or having one’s good reputation put at risk. Identifying themes expressed by the parties helps the mediator establish and maintain rapport, and can be useful when integrated with legal positions to discuss case strengths and weaknesses in a more meaningful way for the parties. Themes are particularly helpful as a moral impetus to reframe positions to meet overarching societal norms, such as fairness, dignity, integrity, honesty, and equality of treatment. A resonating theme overwhelms the dissonance of a shift in position.
Believing Settlement is Possible–You are Closer Than You Think
Belief in settlement is contagious and sometimes this, combined with careful risk analysis, will get the job done. However, when the going gets tough in the belief department due to a significant gap in case valuation (as opposed to interest in settlement), I keep in mind that cognitive processes can mislead parties into believing that they are further apart than is actually the case. Chief among these cognitive tricksters are false polarization and attribution error.
False polarization describes the tendency for opponents’ perceived differences to be greater than their actual differences. Studies have found that partisans in social-political conflicts overestimated the extremity of their positions, especially that of their opponents, but also, to a lesser extent, their own side.ii
This rings true in my mediations. In addition to perceiving the opponent’s position as more extreme than it actually is, a party’s actual position is often a little less extreme than the collective position taken by the party through counsel (i.e., the collective “us” position, which may include input from counsel, spouse, insurers, friends, etc.). Thus, the picture in minds of parties from both sides is the perceivedinsurmountable gap between the positions of “us” and “them,”when the actual positions of both parties are inside the “us versus them” extremes, significantly narrowing the actual gap to be overcome.
If not managed carefully by the mediator, attribution bias can act upon the negotiation process to contribute to false polarization. By the time a case comes to mediation, attribution bias is well entrenched, as disputants ascribe an “adversary’s behavior to disposition and their own behavior to situations.”iii Thus, opponents in a mediation are predisposed to view any settlement overtures as being made with sinister motives, while viewing their own settlement positions as being constrained by circumstances beyond their control.
A successful mediation must reverse these tendencies. I work away from extremes by managing negative attributions, shifting perceptions and asking the parties to give me negotiating positions that test whether the other side might be less extreme than expected. Of course, once the perceived divide becomes small enough, the case can settle. As a mediator, knowing the gap is usually smaller than it appears, gives me a head start in bridging that divide.
Investing the Time Necessary for People to Change Positions
Changing minds takes time, particularly when both sides arrive at the mediation table deeply polarized and distrustful of the other side. This is simply part of the process and expectations should be managed accordingly. Each party takes a different path to resolution—some paths are short and straight and some paths are long and twisty. Everyone and every case is different, but after 20 years of mediating business and employment disputes, I have found that trusting the mediation process and continuing to work the problem will almost always yield shifts in positions, which can then be used to create momentum to resolve the case.
I employ other specific interventions to resolve tough cases, but establishing trust, identifying themes, believing positions are less extreme than they seem and taking the time necessary for the process to work are four essential mediation tools. Perhaps not magic, but remarkably powerful all all the same!
i Siegel, Daniel J. The Mindful Brain: Reflection and Attunement in the Cultivation of Well-being. New York: W.W. Norton, 2007. Print. p. 129, citingPorges, S. W. (1998). Love: An emergent property of the mammalian autonomic nervous system. Psychoneuroendocrinology, 23(8), 837-861.
ii Robinson, Robert J., Dacher Keltner, Andrew Ward, Lee Ross (1995). “Actual versus Assumed Differences in Construal: “Naive Realism” in Intergroup Perception and Conflict.” Journal of Personality and Social Psychology, Vol. 68, No. 3, 404-17. Web. Mar. 2016. 414; Monin, Benoit, and Michael I. Norton. “Perceptions of a Fluid Consensus: Uniqueness Bias, False Consensus, False Polarization, and Pluralistic Ignorance in a Water Conservation Crisis.” Personality and Social Psychology Bulletin 29.5 (2003): 559-67. Web. Mar. 2016. 564.
iii Kiser, Randall. Beyond Right and Wrong: The Power of Effective Decision Making for Attorneys and Clients. Berlin: Springer, 2010. Print. 94.