Mediation May26 - The Psychology of Mediation (Hoffman & Wolman) PDF
Mediation May26 - The Psychology of Mediation (Hoffman & Wolman) PDF
Mediation May26 - The Psychology of Mediation (Hoffman & Wolman) PDF
I. INTRODUCTION
* John H. Watson, Jr. Lecturer on Law, Harvard Law School. Founder of Boston Law Col-
laborative, LLC, where he serves as a mediator, arbitrator, and collaborative law attorney. He
has served as chair of the ABA Section of Dispute Resolution, and is the co-editor of BRINGING
PEACE INTO THE ROOM: HOW THE PERSONAL QUALITIES OF THE MEDIATOR IMPACT THE PRO-
CESS OF DISPUTE RESOLUTION (2003). He can be reached at DHoffman@BostonLawCollabora-
tive.com.
** Assistant Clinical Professor of Psychology, Harvard Medical School. Clinical psychologist,
mediator, guardian ad litem, parenting coordinator, and consultant with more than 30 years of
clinical experience. He is the author of THINKING WITH YOUR SOUL: SPIRITUAL INTELLIGENCE
AND WHY IT MATTERS (2001). He is an affiliate of Boston Law Collaborative, LLC and can be
reached at DrWolman@gmail.com. Note: The authors gratefully acknowledge the superb editing
and research assistance they received from Anne O’Connell, J.D., Project Manager at Boston Law
Collaborative, LLC.
1 For a general introduction to mediation, see CHRISTOPHER W. MOORE, THE MEDIATION
759
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ties among its three partners after they have had a falling out are as
much about the people involved as any of the objective problems.
Conversations during mediation often focus on dollar amounts
or settlement terms and, therefore, appear reasoned and objec-
tive. But successful mediation requires knowledge about psycho-
dynamics.2
Mediation would be a relatively simple process if the parties
could be relied on to act in their own best interests, or in the inter-
est of those they love, such as their children. Rational and
thoughtful conversations would then yield rational and thoughtful
agreements, in which the parties’ interests would be maximized.3
If we could rely on this rationalist model, it would suffice to
use solely an “interest-based” model of mediation, considered by
many negotiation professionals the most useful strategy to shift the
focus of conflict from personal hostilities to “the problem.”4 But
this strategy assumes that individuals will not be distracted from
the pursuit of rationality by emotion, expectations, bias, distorted
thinking, or deeply held beliefs.
Every time we, the authors, encounter the view that the “in-
terest-based model”5 alone can succeed, we are reminded of a par-
ticularly challenging divorce mediation in which all issues were
hotly contested—income, assets, children, and more. After several
mediation sessions, the husband and wife were getting nowhere. In
order to encourage the parties to focus on the problem (the issues
of self-interest) and not on the people, the mediator (Richard Wol-
man) interrupted one notably vitriolic exchange and stated, as au-
thoritatively as possible, “Folks, let’s try to focus on the problem
here, not the people. It will take us further and be more construc-
tive.” The husband stopped Richard mid-sentence and said with
complete conviction, “Buddy, you don’t get it. She is the
problem!”
2 The dictionary defines psychodynamics as the “systematized study and theory of the psy-
chological forces that underlie human behavior, emphasizing the interplay between unconscious
and conscious motivation and the functional significance of emotion.” See Medical Dictionary,
WEBMD, available at http://dictionary.webmd.com/terms/psychodynamics (last visited Feb. 10,
2013).
3 For a useful discussion of the theory and practice of maximizing the parties’ interests, and
in particular the tension between creating value and claiming value, see ROBERT MNOOKIN,
SCOTT PEPPET & ANDREW S. TULUMELLO, BEYOND WINNING: NEGOTIATING TO CREATE
VALUE IN DEALS AND DISPUTES (2004).
4 The pioneering text espousing this view of interest-based bargaining, first published in
1981, is ROGER FISHER, WILLIAM URY & BRUCE PATTON, GETTING TO YES: NEGOTIATING
AGREEMENT WITHOUT GIVING IN (2d ed. 1991).
5 See id. at 40–55 (recommending a focus on interests instead of positions).
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1. Information Processing
Cognitive neuroscience explores the areas and chemicals in
the brain oriented to decision-making. Jonah Lehrer, for example,
in his book How We Decide,6 highlights the neurotransmitter
dopamine, which is associated with pleasure centers in the brain,
and argues that decisions are often based on what provides plea-
sure to the individual. This sounds like a simple hypothesis until
we enter the arena of mediation and the interaction of two diamet-
rically opposed personalities and belief systems. For example,
what if one of the parties derives pleasure or satisfaction from in-
flicting the pain of retribution for perceived injustices? Dopamine
is a morally neutral chemical. Neuroscience can take us only to the
edges of the functioning brain, leaving the symbolic and value-
laden activity of the mind to be unraveled by the mediator.
What cognitive neuroscience also tells us is that the way in
which we process information is remarkable for its speed and pre-
cision. The human brain processes more than 10,000 bits of infor-
mation per second—a bit being the amount of information
necessary to tilt a decision one way or the other in a fifty-fifty situa-
tion.7 However, the brain’s capacity to process information tells
only a small part of the story. After all, Google can tell us the
average rainfall in Patagonia in .47 seconds,8 but it cannot tell us
6 JONAH LEHRER, HOW WE DECIDE 15 (2009).
7 See WILLIAM LEWIS, WHY PEOPLE CHANGE 34 (1972).
8 GOOGLE, www.google.com (search “average rainfall in Patagonia”) (last visited Dec. 17,
2012).
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tion? What mediators can learn from the new research on priming and the unconscious activation
of mental processes, ACRESOLUTION 20 (Summer 2011).
15 Travis J. Carter, Melissa J. Ferguson & Ran R. Hassin, A Single Exposure to the American
18 Personal communication with Eric Green, Co-Founder, JAMS/Endispute (on file with
authors).
19 See JENNIFER E. BEER, CAROLINE C. PACKARD & EILEEN STIEF, THE MEDIATOR’S
wife, in turn, may argue that she was actually trying to be helpful
and did not have a mean-spirited motivation. The mediator’s re-
framing of the wife’s comments to her husband may help the hus-
band see a different meaning in them. It is as if a military ship
captain is watching her radar screen and sees a series of blips com-
ing across at rapid speed. Before she decides whether to fire a sur-
face-to-air missile at the object, she must quickly determine
whether she is seeing a missile coming in to destroy her ship or a
returning fighter jet from her own forces.23 It is the mediator’s job
to step into the rapid-fire, information-processing moment, make
his or her best evaluation as to the meaning of the communication
or behavior and, if there is a mismatch, correct the interpretation
by “reframing” the event for the parties. As the famous (and fic-
tional) Chinese detective, Charlie Chan, used to tell his eldest son,
“small things tell big stories.”24 The mediator must be alert to
these small clues, which may contain the essence of a conflict and
can be articulated by either “reframing” or helping parties clearly
state their interests and needs rather than be continually influenced
by distorted perceptions of the other party.
In the discussion below on cognitive biases,25 we discuss with
more specificity some of these distortions and methods for counter-
acting them.
fects in Recall: Creating False Memories through Repeated Retrieval, 35 J. OF MEMORY & LAN-
GUAGE 300 (1996); see also Donna J. Bridge & Ken A. Paller, Neural Correlates of Reactivation
and Retrieval-Induced Distortion, 32 J. OF NEUROSCIENCE 12144 (2012) (retrieval of data from
memory introduces distortion and the retrieval process consolidates the distortion).
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bel_allende_tells_tales_of_passion.html.
34 For an excellent discussion of the reasons why stories are so powerful and so infused with
moral content, see Peter Guber, The Inside Story, 2011 PSYCHOLOGY TODAY 79 (Mar. 15, 2011).
35 CLOKE, supra note 32.
36 Michael Elkin, Presentation at Annual Conference of the Center for Self-Leadership (Oc-
tober 2011).
37 See CLOKE, supra note 32, at 7.
38 Id. at 27.
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i. Core Beliefs
Core beliefs are personal pieces of faith that lie at the core of
human experience and resist change.43 It is a statement of core
belief when a man says about his business partner, “I can no longer
trust him. He has lied to me and tried to take more of the business
than was his share.” It is a core belief when a mother says, “He
thinks he’s a good dad, but he constantly uses the children to hurt
and manipulate me. He has been poisoning them against me ever
since our divorce.” Such beliefs are the currency of communica-
tion in the mediator’s office. The mediator must be aware of the
power of beliefs and their imperviousness to a simple reframing.
39Id. at 7.
40Id. (emphasis in original).
41 See David Hoffman, Mediation, Multiple Minds, and the Negotiation Within, 16 HARV.
44 The term “complexify” comes from the discussion of “identity” in DOUGLAS STONE,
SHEILA HEEN & BRUCE PATTON, DIFFICULT CONVERSATIONS: HOW TO DISCUSS WHAT MAT-
TERS MOST ch. 6 (2d ed. 2010).
45 For a discussion of reality testing in psychotherapy and mediation, see Joan B. Kelly, Medi-
ation and Psychotherapy: Distinguishing the Differences, 1983 CONFLICT RESOL. Q. 33 (1983).
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47 See ROGER FISHER, WILLIAM URY & BRUCE PATTON, GETTING TO YES: NEGOTIATING
WITHOUT GIVING IN (Rev. ed. 2011).
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48 Mary Helen Immordino-Yang & Antonio Damasio, We Feel Therefore We Learn: The
Relevance of Affective and Social Neuroscience to Education, 1 MIND, BRAIN AND EDUCATION 3
(2007).
49 LEHRER, supra note 6, at 15.
50 Hoffman, supra note 41, at 303.
51 LEHRER, supra note 6, at 14.
52 Id. at 15.
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53 See generally ROGER FISHER & DANIEL SHAPIRO, BEYOND REASON: USING EMOTIONS AS
superlawyers.com/michigan/article/Talking-the-Walk/80fab968-fdd8-4b1e-8eaa-072e4a1779a7.
html (“The difference between a criminal defense attorney and a divorce attorney: We represent
good people on their worst behavior and they represent bad people on their best behavior.”).
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red et al., The Influence of Anger and Compassion on Negotiation Performance, 70 ORGANIZA-
TIONAL BEHAV. & HUM. DECISION PROCESSES 175, 181 (1997) (when people are angry, they
become even less likely to know what other parties want).
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3. Flooding
Professor John Gottman, who has studied couples and conflict
for more than thirty years, has identified an emotional pattern he
calls “flooding,” in which we are so filled with negative emotion
that the rational functioning in our brains is blocked.61 Flooding is
not just a metaphor—according to Gottman’s research, it is a phys-
iological response involving increased adrenaline, increased blood
pressure, and elevated heart rate—similar to the “fight-or-flight”
response.62 The cure for flooding, according to Gottman, is taking
a break of at least twenty minutes so that the emotions can sub-
side.63 In the mediation setting, this arrangement can be achieved
by meeting with the parties separately in a caucus session, or sim-
ply by taking a break within the joint session. It is crucial that
mediators be aware of the emotional state of the parties and inter-
rupt the discussion, if necessary, so that parties who are flooded do
not escalate their conflict.
67 See M.S. Carmichael, R. Humbert, J. Dixen, G. Palmisano, W. Greenleaf & J.M. David-
son, Plasma Oxytocin Increases in the Human Sexual Response, 64 J. CLIN. ENDOCRINOL.
METAB. 27 (1987).
68 See HELEN FISHER, WHY WE LOVE: THE NATURE AND CHEMISTRY OF ROMANTIC LOVE
89 (2004).
69 See Linda Dopierala, Love, Neurochemistry, and Chocolate: A Word from Cupid, Ph.D.,
search on Plasma Oxytocin in Healthy, Normal Cycling Women: Investigating Emotion and Inter-
personal Distress, 62 PSYCHIATRY 97 (1999).
71 See K. Uvnas-Moberg & M. Petersson, Oxytocin, A Mediator of Anti-stress, Well-being,
Social Interaction, Growth and Healing, 51 PSYCHOSOM. MED. PSYCHOTHER. 57 (2005), abstract
available at http://www.ncbi.nlm.nih.gov/pubmed/15834840.
72 See John J. Medina, Oxytocin and the Bottom Line, PSYCHIATRIC TIMES 24 (2008). For a
useful discussion of the trust-enhancing properties of oxytocin and how they can be elicited in
psychotherapy sessions, see Linda Graham, A Warm Bath for the Brain: Understanding Oxyto-
cin’s Role in Therapeutic Change, PSYCHOTHERAPY NETWORKER 23 (2009).
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5. Decision Fatigue
The attitudes and behaviors that we have described in this arti-
cle are not static. One phenomenon in particular warrants consid-
eration whenever lengthy mediation sessions are held—a process
known as “decision fatigue.” In a recent article in the New York
Times, journalist John Tierney summarizes research showing that
people respond differently to mental fatigue, as compared with
physical fatigue.73 The signs of physical fatigue are obvious. Peo-
ple are often not aware of mental fatigue, but the more choices we
make throughout the day, “the harder each one becomes for your
brain, and eventually it looks for shortcuts.”74 Tierney describes
two very different, but typical, shortcuts: (a) becoming reckless and
making impulsive decisions because there is insufficient energy to
think through the consequences, and (b) making no decision at all,
though this, too, could lead to problems that we lack the energy to
consider fully.75
Social psychologist Roy Baumeister describes the process of
decision fatigue as a form of “ego depletion”:
When the brain’s regulatory powers weaken, frustrations seem
more irritating than usual. Impulses to . . . say stupid things feel
more powerful. . . . [E]go-depleted humans become more likely
to get into needless fights over turf. In making decisions, they
take illogical shortcuts and tend to favor short-term gains and
delayed costs.76
One of the causes of this depletion is low glucose levels.77 Al-
though the human brain constitutes only 2% of our body weight, it
consumes 25% of the body’s glucose.78 For mediators and the par-
ties we work with, this depletion is highly problematic because
“[o]nce you’re mentally depleted, you become reluctant to make
trade-offs, which involve a particularly advanced and taxing form
of decision making.”79
This phenomenon may be less problematic in divorce media-
tion, which typically is scheduled in blocks of two or three hours,
73 John Tierney, Do You Suffer from Decision Fatigue? NEW YORK TIMES, Aug. 21, 2011, at
MM33.
74 Id.
75 Id.
76 Id.
77 Id.
78 Pierre J. Magistretti, Luc Pellerin & Jean-Luc Martin, Brain Energy Metabolism: An Inte-
several weeks apart. The parties have time to recover and reflect.
In commercial mediation, however, the sessions tend to be sched-
uled for a full day, and work tends to fill the time available. Thus,
it is not uncommon for mediations to go all day, with vital decision-
making occurring in the final hour of mediation, just as the parties,
counsel, and mediator need to leave.
Mediators can offset, to some extent, the effect of glucose and
mental depletion by providing food—in particular, foods such as
energy bars and fruit, which do not produce the types of sharp en-
ergy peaks and valleys the way candy does, for example. Even
more important, however, is vigilance on the part of the media-
tor—paying attention to the ability of the parties and counsel
throughout the day to manage complex decisions.
3. Difficult Personalities
The parties’ and mediators’ personalities must always be con-
sidered principal components of mediation. Invariably, the ques-
tion arises concerning dealing with individuals whose personalities
are so difficult that they are seemingly impossible to influence. At-
tempts at understanding, rational explanation of ground rules, or
management of expectations simply do not work. These individu-
80 See JOHN GOTTMAN & NAN SILVER, THE SEVEN PRINCIPLES FOR MAKING MARRIAGE
WORK (1999).
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85 Id. at 179–94.
86 Id. at 216–17.
87 The principle of “self-determination” is the first standard listed in the Standards of Prac-
tice for Mediators, adopted by the American Arbitration Association, American Bar Associa-
tion, and the Association for Conflict Resolution.
88 See Craig A. McEwen, Note on Mediation Research in STEPHEN B. GOLDBERG, FRANK
E.A. SANDER, NANCY H. ROGERS & SARAH RUDOLPH COLE, DISPUTE RESOLUTION: NEGOTIA-
TION, MEDIATION, AND OTHER PROCESSES 156 (5th ed. 2007) (“Disputants and their attorneys
engaged in mediation are very likely to be satisfied with the process and to find it fair. Such
judgments about mediation tend to be comparable to or more favorable than judgments about
other processes like trial or negotiation; similar comparisons hold for disputant satisfaction with,
and sense of fairness of, the outcomes of mediation, although disputants tend to be less happy
with outcomes than with process; where compliance with mediated outcomes has been studied, it
appears to be as high or higher than compliance with adjudicated outcomes.”).
89 Jeanne M. Brett, Zoe I. Barsness & Stephen B. Goldberg, The Effectiveness of Mediation:
An Independent Analysis of Cases Handled by Four Major Service Providers, 12 NEG. J. 259
(1996) reprinted in GOLDBERG, SANDER, ROGERS & COLE, supra note 88, at 154 (Parties whose
disputes were mediated were overwhelmingly pleased with the process, the neutral, the outcome,
and the implementation – more so than participants whose cases were arbitrated. This study
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provides support for the view that mediation is more likely to improve relationships than is
adjudication.).
90 See GOLDBERG, SANDER, ROGERS & COLE, supra note 88, at 54.
91 See generally GLADWELL, supra note 12, at 18–47.
92 Id.
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93 Id. at 3–8. The example with which Gladwell opens the book Blink provides a vivid exam-
your case, here is what you should do.” This is a familiar pattern,
and we expect nothing less from any experienced professional from
whom we need advice. We look to authority to tell us what to do
when we either don’t know or are too insecure to decide for
ourselves.
But this kind of authoritative thinking is toxic for mediation.
It is particularly counter-productive because it imposes a decision
or course of action from the outside and does not recognize the
subjective experience of those who will have to live with the settle-
ment long after the mediation has become a distant memory. In
structure, it is no different than a litigated outcome from the Court,
only without all of the legal machinery involved. In our view, the
mediator must embrace a different mindset. He or she must tell
the parties:
I don’t know what you should do in your situation. I will, how-
ever, do everything in my power to help you think about what
you could do. Once you have examined the options and pos-
sibilities of what you could do, or might do, I will help you ex-
plore the pros and cons so that together you can come up with
your final choice.
This egalitarian approach can be difficult for lawyers and
mental health professionals learning mediation because such indi-
viduals’ training and expectations of their clients is diametrically
opposed to the clients’ assumption of personal and individual re-
sponsibility for dispute resolution. Once achieved, however, this
radical way of thinking can be liberating for the lawyer or mental
health professional turned mediator because it relieves him or her
of having to come up with solutions of varying success. The media-
tor can then be released from the assumption that one can control
the outcome of someone else’s life.
Ultimately, this approach also opens the parties’ minds to new
and creative forms of problem solving together (and with the medi-
ator) that can help determine whether the mediator should be in-
volved in their future decision-making and dispute resolution. In
short, this approach of changing from “should” to “could” can be
transformative for the parties and provide the mediators with the
satisfaction of having fostered cooperation between disputing par-
ties—cooperation that opens the door to the prospect of healing
and growth.
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1. Rule of Reciprocity
When one party in a conflict makes an offer of settlement, she
or he expects the other party to reciprocate with a counter-offer. If
asked to make a better offer, the first party will usually decline to
“bid against herself,” feeling that she is entitled to a counter-offer
first. The request to “bid against yourself” violates the “rule of
reciprocity,” and most parties will decline to do it. According to
Cialdini, the expectation that any gift, offer, or act of consideration
will be reciprocated is not specific to culture, class, or gender—it is
found throughout the world.97 In mediation, the rule of reciprocity
can also be violated by responding to a generous offer with a stingy
one—or at least one that is not considered comparable. Therefore,
mediators often need to coach the parties’ negotiations, helping
them see how an insufficiently generous—or, for that matter, an
overly generous—offer can disrupt the flow of proposals, while the
parties test each other’s willingness to move in a reciprocal manner
toward a resolution.
2. Authority
In one of Professor Cialdini’s experiments, physical therapists
found that their patients were substantially more compliant with
assigned home exercise regimens if the therapists posted their di-
plomas on their office walls.98 (This effect is also an example of
priming, discussed above in this article.) Mediators bring to the
table a certain measure of authority based on our experience in
similar cases, and our websites now replace diplomas on the walls.
(2007).
97 Id. at 18.
98 See Robert B. Cialdini, Roselle L. Wissler & Nicholas J. Schweitzer, The Science of Influ-
ence: Using Six Principles of Persuasion to Negotiate and Mediate More Effectively, 9 DISPUTE
RESOLUTION MAGAZINE 21 (Fall 2002).
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3. Liking
We are more likely to accept the influence of people we like,99
and initial impressions often tell us whether we will like some-
one.100 (This is an example of “thin slicing,” discussed above.101)
While it may be difficult to catalog all the behaviors and traits that
promote “liking,” attentive listening and sincere compassion are
surely high on the list. Among the factors that produce the oppo-
site effect are self-involvement and self-importance. Cialdini’s re-
search showed that people who have something in common tend to
like each other more,102 and so mediators can begin to establish
rapport by identifying commonalities (e.g., growing up in the same
city, or going to the same school, or having had an experience simi-
lar to the one that led to the mediation). Of course, it is essential
that the mediator maintain balance when possible and use sensitiv-
ity in forming these connections in order to avoid the appearance
of partiality.
5. Social Proof
If you discovered one day that several of your neighbors had
purchased hybrid vehicles and liked them, Cialdini’s research sug-
gests that you are more likely to buy one, too.105 If 93% of the
people on Yelp.com liked a restaurant, we are more likely to go
there. In mediation, the parties often ask, “What do most people
do?” “What do the courts do with situations like this?” Unfortu-
nately, these questions are sometimes difficult to answer. The par-
ties are usually considering settlement terms that are difficult to
compare to what others do, because each case is unique. If the
parties are represented by counsel, the attorneys’ job is to educate
the clients about their BATNA (their “best alternative to a negoti-
ated agreement”) or MLATNA (“most likely alternative to a nego-
tiated agreement”).106 The prediction of what a court will do,
according to Oliver Wendell Holmes, is the very essence of the
practice of law,107 and mediators are ethically prohibited from such
practice even if they carry a bar card.108 But mediators can tell the
parties stories of outcomes in other cases they have mediated,109
(1897).
108 See, e.g., SUPREME COURT OF VIRGINIA, GUIDELINES ON MEDIATION AND UPL, ch. 2,
available at http://www.courts.state.va.us/courtadmin/aoc/djs/programs/drs/mediation/resources/
upl_guidelines.pdf. See also Standard VI(A)(5) of THE STANDARDS OF PRACTICE FOR
MEDIATORS, adopted by the American Arbitration Association, American Bar Association, and
the Association for Conflict Resolution (“The role of a mediator differs substantially from other
professional roles. Mixing the role of a mediator and the role of another profession is problem-
atic and thus, a mediator should distinguish between the roles.”).
109 See SUPREME COURT OF VIRGINIA, GUIDELINES ON MEDIATION AND UPL, ch. 2, § 4
available at http://www.courts.state.va.us/courtadmin/aoc/djs/programs/drs/mediation/resources/
upl_guidelines.pdf (“Occasionally, mediators find it helpful to relate their experiences with case
outcomes to disputants in an effort to assist them in reaching a settlement.”).
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and those stories, if well chosen, can provide the needed “social
proof” that the terms under consideration are reasonable.
6. Scarcity
In 2003, the automobile that exceeded sales projections by the
widest margin was the Oldsmobile due to its announcement that
production of the Oldsmobile was about to end.110 In most cases in
mediation, the parties are willing to try mediation once. Mediation
is a rare opportunity to have an impartial and experienced person
help the parties broker a deal. After a failed mediation session and
subsequent investment in litigation, parties are often less willing to
be flexible on economic issues because of the additional money
they have spent on legal fees and related costs (see discussion be-
low of “sunk costs”111). Even if a settlement is not reached in an
initial mediation session, a subsequent phone conference or follow-
up meeting can be arranged. Sometimes the parties need addi-
tional time to think about their options and alternatives. The les-
son gleaned from experience, however, is that when mediations
grind to a halt, an opportunity for settlement is often lost or diffi-
cult to retrieve. Scarcity, in terms of a second chance, can thereby
motivate resolution.
C. Cognitive Biases
Our mind’s eye sees the world through a lens that unavoidably
distorts our interpretation in ways that can affect the mediation
process. Mediators can counteract the effect of these distortions to
some degree if we understand them. Fortunately, cognitive psy-
chology can help us identify the lenses and filters that prevent all of
us—parties, counsel, and mediators alike—from seeing the world
with greater objectivity.
These distortions in our perception, memory, and analysis are
surprisingly predictable.112 The sections that follow describe some
110 See NOAH J. GOLDSTEIN, STEVE J. MARTIN & ROBERT B. CIALDINI, YES!: 50 SCIENTIFI-
CALLY PROVEN WAYS TO BE PERSUASIVE 141 (2008).
111 See infra at Section II, Part C, § 9.
112 See generally DAN ARIELY, PREDICTABLY IRRATIONAL: THE HIDDEN FORCES THAT
SHAPE OUR DECISIONS (2008) (describing numerous examples of these distortions). See also
BARRY GOLDMAN, THE SCIENCE OF SETTLEMENT: IDEAS FOR NEGOTIATORS (2008); see gener-
ally CORDELIA FINE, A MIND OF ITS OWN: HOW YOUR BRAIN DISTORTS AND DECEIVES (2006).
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113 The leading study of this phenomenon is Edward E. Jones & V.A. Harris, The Attribution
of Attitudes, 3 J. OF EXPERIMENTAL SOC. PSYCHOL. 1 (1967).
114 See Hara Estroff Marano, Our Brain’s Negative Bias, PSYCHOLOGY TODAY (June 20,
328 (2001).
117 For an extensive discussion of this distinction, see DOUGLAS STONE, SHEILA HEEN &
BRUCE PATTON, DIFFICULT CONVERSATIONS: HOW TO DISCUSS WHAT MATTERS MOST ch. 3
(2010).
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2. Reactive Devaluation
Imagine that the plaintiff has arrived at the mediation pri-
vately seeking to obtain $100,000 as a settlement. He proposes, as
an initial demand, $300,000. Imagine that the defendant’s response
is to offer $200,000. Does the plaintiff accept on the spot? Or does
he immediately conclude that $200,000 must be a low-ball figure
because it’s coming from a party that the plaintiff views as the en-
emy.120 Mediators can buffer the effects of reactive devaluation in
three ways.
First, mediators can encourage the parties to explain the ratio-
nale for their proposal by reference to objective criteria (e.g.,
“$300,000 is the average jury verdict for injuries of this kind”).
118 Fredrike P. Bannink, Building Positive Emotions In Mediation, MEDIATE.COM (July 2009),
available at http://www.mediate.com/articles/banninkF4.cfm (citing Barbara L. Fredrickson, Cul-
tivating Positive Emotions to Optimize Health and Well-Being, 3 PREVENTION & TREATMENT
(March 7, 2000), available at http://www.rickhanson.net/wp-content/files/papers/CultPosEmot.
pdf).
119 Id.
120 See Lee Ross, Reactive Devaluation in Negotiation and Conflict Resolution, in BARRIERS
TO CONFLICT RESOLUTION (Kenneth Arrow, Robert Mnookin, Lee Ross, Amos Tversky &
Robert Wilson eds. 1995). Ross describes reactive devaluation with this illustration: “Initial evi-
dence for the reactive devaluation barrier was provided in a 1986 sidewalk survey of opinions
regarding possible arms reductions by the U.S. and the U.S.S.R. [citation omitted]. Respondents
were asked to evaluate the terms of a simple but sweeping nuclear disarmament proposal—one
calling for an immediate 50 percent reduction of long-range strategic weapons . . . . The results of
this survey showed, as predicted, that the proposal’s putative authorship determined its attrac-
tiveness. When the proposal was attributed to [President Reagan], 90 percent of respondents
thought it either favorable to the U.S. or evenhanded; and when it was attributed to the (pre-
sumably neutral) [strategy analysts], 80 percent thought it either favorable to the U.S. or even-
handed; but when the same proposal was attributed to the Soviet leader [Gorbachev], only 44
percent of respondents expressed a similarly positive reaction.”
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3. Confirmation Bias
Just as we discount the value of an offer based on its source,
we have a hard time accepting the truth of information that is in-
consistent with firmly held views. The most familiar varieties of
confirmation bias124 can be seen in politics: the phrases “yellow dog
Democrat” and “dyed-in-the-wool Republican” describe a person
whose mind is made up, impervious to perspectives of the opposing
party. In mediation, each party tends to question the credibility of
the other’s presented information. Imagine that one party in a di-
vorce mediation is told by her spouse, who has for two decades
owned a consistently successful software business, that revenues
are suddenly off and that he’s losing money for the first time in
twenty years. How much evidence would it take for the wife to
121 See J. Michael Keating, Jr., Mediating in the Dance for Dollars, 14 ALTERNATIVES TO THE
tunity? Differential Regrets for Material and Experiential Purchases, 102 J. OF PERSONALITY AND
SOCIAL PSYCHOL. 215–223 (2012).
124 See generally Raymond S. Nickerson, Confirmation Bias: A Ubiquitous Phenomenon in
Many Guises, 2 REV. OF GEN. PSYCHOL. 175 (1998). This phenomenon is different from cogni-
tive dissonance, a phenomenon first described by Prof. Leon Festinger. For a useful discussion
of these phenomena, see Sam McNerny, Psychology’s Treacherous Trio: Confirmation Bias,
Cognitive Dissonance, and Motivated Reasoning, WHY WE REASON BLOG, (Sept. 7, 2011), avail-
able at http://whywereason.com/2011/09/07/psychologys-treacherous-trio-confirmation-bias-cog-
nitive-dissonance-and-motivated-reasoning/.
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125 See Russell Korobkin, Psychological Impediments to Mediation Success: Theory and Prac-
150 (7th ed. 2009) (“Most of us have moderate to high self-esteem. Like the mythical residents
of Garrison Keillor’s Lake Wobegon, we need to believe that we are above average. For exam-
ple, in a survey of a million high school students, only 2 percent stated that they were below
average in their leadership ability.”) (citing THOMAS GILOVICH, HOW WE KNOW WHAT ISN’T
SO: THE FALLIBILITY OF HUMAN REASON IN EVERYDAY LIFE 77 (1993)). See also David Dun-
ning, Chip Heath & Jerry M. Suls, Flawed Self-Assessment: Implications for Health, Education,
and the Workplace, 5 PSYCHOLOGICAL SCIENCE IN THE PUBLIC INTEREST 69, 72 (2004).
128 See Linda Babcock & George Loewenstein, Explaining Bargaining Impasse: The Role of
ties who have been thinking about—and living—their cases for far
longer than the few minutes spent by these experimental groups
and, as a result, the parties are far more optimistic about their like-
lihood of success if the mediation fails.130
Another mediator strategy for deflating optimistic overconfi-
dence is to ask a party, after she explains her certainty of prevailing
in trial, why she agreed to participate in mediation.
130 A recent study of attorneys preparing for trial showed that 44% were overconfident in
their predictions of the eventual outcome. See Jane Goodman-Delahunty et. al, Insightful Or
Wishful: Lawyers’ Ability to Predict Case Outcomes, 16 PSYCHOLOGY, PUBLIC POLICY, AND LAW
133 (2010). The study showed that men were significantly more over-confident than women, and
that there was no significant difference in the accuracy of outcomes based on years of experi-
ence. One particularly interesting correlation: the more overconfident the lawyer, the less accu-
rate the prediction.
131 See generally Henrik Kristensen & Tommy Gärling, The Effects of Anchor Points and
133 Id. at 20; see also SCOTT PLOUS, THE PSYCHOLOGY OF JUDGMENT AND DECISION MAKING
44 (1993).
134 See supra at Section II, Part B, §1.
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6. Competitive Arousal
A favorite New Yorker cartoon shows two dogs, dressed in
suits, standing at a bar. “It’s not enough that dogs succeed,” says
one. “Cats must also fail.”135 How many times have mediators
seen this behavior? Neuroscientists using fMRI’s have shown that
pleasure circuits light up in our brains when we get a better score in
a game than our opponent.136 (This may be culturally specific, as it
is said that in some cultures, a tie score is considered best because
no one loses faces).137 In mediation, competitive arousal can occur
when one side or the other seeks to “win” the mediation by ex-
tracting the maximum in concessions. Mediators can mitigate
these effects by reminding the parties of their own underlying in-
terests and encouraging them to focus on whether a proposed set-
tlement meets those needs. Mediators can also remind each party
that the other side might be feeling the same way and that both
parties, despite their respective desires to win, might be better
served by arriving at a settlement. As Lincoln said in the quote
with which this book began, “the nominal winner is often the real
loser—in fees, expenses, and a waste of time.”138
(7th ed. 2012) (“In Japanese sports, the ideal is not for one team to win but for a tie to occur so
that neither team loses face.”).
138 Abraham Lincoln, Notes for a Law Lecture, July 1, 1850, in 2 COLLECTED WORKS OF
Jonathan D. Cohen, The Neural Basis of Economic Decision-Making in the Ultimatum Game,
300 SCIENCE 1755 (2003).
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and the ground rules) has to accept the proposed division of the
$100. In theory, the Responder should accept any proposed
amount, no matter how small, because she would be better off with
even a penny—even if that meant the Proposer kept $99.99. In
fact, most people in the role of Proposer offer between $40 and
$50, and their proposals are almost always accepted. But some
Proposers offer very little, and the majority of Responders reject
any amount that’s less than $20,140 even though turning down the
money is not in their best interest from a purely economic
standpoint.
In mediation, the parties often turn down offers that would
render them objectively better off than their alternatives (such as
going to court) because the proposed division of available re-
sources seems unfair, as measured by what the other party re-
ceived. In the Ultimatum Game, Responders punish ungenerous
Proposers but, in doing so, unavoidably punish themselves.141 In
short, people are not ruled entirely by economic self-interest.
When one of the parties in mediation refuses a reasonable offer
“on principle,” this innate sense of fairness may be at work. Inter-
estingly, this phenomenon is not limited to humans; in experiments
in which two dogs could see that one was receiving significantly
more doggie treats as a reward for performing a task, the short-
changed dog stopped performing.142
Fortunately, neuroscientists have found that there are other
circuits in our brains that light up with pleasure when we cooperate
(coexisting with the circuits that indicate pleasure when we best
our opponents).143
Mediators can reinforce the cooperative impulses by asking
the parties whether they would feel good about a settlement in
which each party had been equally accommodating. Mediators can
also reinforce the view that fairness is unavoidably subjective, and
the other side has its own quite different view of what would be
fair.
140 Id.
141 Id.
142 See Friederike Range, et al., The Absence of Reward Induces Inequity Aversion in Dogs,
http://www.wired.com/medtech/health/news/2002/07/53945?currentPage=all.
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8. Endowment Effects
A classic experiment involving coffee mugs illustrates the en-
dowment effect.144 In a roomful of people, half are given identical
mugs as a gift, and the other half nothing. The latter group is asked
to write down the most they would be willing to pay for one of the
mugs, and the other group is asked to write down the lowest price
they would be willing to accept to sell their mug. The results: buy-
ers were willing to pay, on average, $2.87, and sellers demanded,
on average, $7.12.145 In other words, the sellers developed a feel-
ing of attachment (one could call the feeling an entitlement or “en-
dowment”) after owning the mugs for only a brief time. These
results have been found across cultures, but are somewhat stronger
in some cultures.
What is the relevance of this experiment to mediation? In set-
tlement negotiations, plaintiffs are, in effect, sellers—they are re-
linquishing their claims for a price. Plaintiffs tend to value their
claims more highly than the “buyers” (i.e., the defendants), and the
plaintiffs’ feelings of entitlement or “endowment” probably grow
stronger with time.
Experiments involving our tendencies for risk preference and
risk aversion also show that plaintiffs and defendants are situated
differently—the party that is asked to pay money (usually the de-
fendant) will often accept more risk, so as to postpone the day of
reckoning.146 Thus, like the “buyers,” they are averse to paying the
“sellers’” higher price, and willing to take more risk that the case
will go to trial.
In addition, both plaintiffs and defendants experience the re-
lated phenomenon known as “status quo” bias, a reluctance to
change the status quo that makes settlement, which intrinsically in-
volves change, more disconcerting.147
What can mediators do? One useful technique is reframing.
Mediators can emphasize what is gained, aside from money, when
plaintiffs “sell” their claim: the savings of time, trading in hope for
certainty, and moving on from the emotional turmoil of the law-
suit. Likewise, defendants, who usually feel that they are overpay-
ing for the claims that they “buy,” may find it helpful to hear from
144 See DANIEL KAHNEMAN, THINKING, FAST AND SLOW 296 (2011).
145 Id.
146 Id. at 319–21.
147 See generally Daniel Kahneman, Jack L. Knetsch & Richard H. Thaler, Anomalies: The
Endowment Effect, Loss Aversion, and Status Quo Bias, 5 JOURNAL OF ECONOMIC PERSPEC-
TIVES 193 (1991).
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148 See John S. Hammond, Ralph L. Keeney, and Howard Raiffa, The Hidden Traps in Deci-
sion Making, HARV. BUS. REV. (reprint no. 98505) (1998).
149 KAHNEMAN, supra note 144, at 282–83.
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ing gains.”150 This loss-aversion means that most people in the ex-
periment would have to be paid somewhere between $150 and
$250 in order to accept a 50% risk of losing $100.151
In the world of economics, the concept of loss aversion has
significantly altered the rationalist perspective that economists pre-
viously brought to such situations. The rational actor of classical
economics would need a prospective gain of only $101 to make the
bet described above worthwhile. Kahneman describes the concept
of loss aversion as “certainly the most significant contribution of
psychology to behavioral economics.”152
This concept is also useful for mediators. Consider, for exam-
ple, a commercial case in which liability is uncertain, but the poten-
tial recovery of damages by the plaintiff (if successful) is a fixed
amount of $1,000,000. Kahneman’s and Tversky’s research shows
that the average defendant would be reluctant to settle such a case
for $500,000, even if she or he were told by an authoritative source
that she or he has a 50% chance of losing.
The two principles articulated by Kahneman from this re-
search are the following:
a. In mixed gambles, where both a gain and a loss are possi-
ble, loss aversion causes extremely risk-averse choices.
b. In bad choices, where a sure loss is compared to a larger
loss that is merely probable, diminishing sensitivity causes
risk seeking.153
For defendants, the choice of paying a settlement typically
seems like the “bad choice” situation, and may cause them to pre-
fer the risk of trial. The psychological pain of paying $500,000 is far
greater, for most people, than the pain of taking a 50% risk of los-
ing $1,000,000.
An important related finding in Kahneman’s research is that
the loss aversion effect is reduced in people who manage risks and
gains for a living—for example, professional stock traders.154 Thus,
defendants who are repeat players—such as insurers, manufactur-
ers, and employers—may be able to see their risk of loss in the
broader perspective of a large docket of cases in which the defend-
ants are more like “traders.” Mediators can also help those de-
150 Id.
151 Id.
152 Id. at 300.
153 Id. at 285.
154 Id. at 339.
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157 Daniel Simons, Selective Attention Test (Mar. 10, 2010), available at http://www.youtube.
com/watch?v=vJG698U2Mvo.
158 One of the leading studies in this area is Fergus I. M. Craik & Robert S. Lockhart, Levels
tive when the experimental subjects thought they cost $2.50 per pill
as opposed to $0.50.
But there are related findings that may help mediators under-
stand how to counteract the distortions caused by our mental
processing. Researchers have found that these effects are dimin-
ished when the subjects are told about them.160 However, lest we
be too optimistic about the potential for rationality to trump emo-
tion and our often-unconscious biases, researchers also found that
placebo effects work even if the subjects are told they are getting a
placebo.161
What this means for mediators is that it is important for us to
know as much as possible about how the mind works, and it may
be occasionally and contextually useful to share with parties what
we have learned. To take one example, according to Jonah Lehrer,
“the only way to avoid loss aversion is to know about the
concept.”162
Mediators should readily acknowledge that our own minds are
just as prone as the parties’ minds to experience the phenomena
that we are describing. And these ideas need to be offered as a
tentative hypothesis. It is also easier for each side to believe that
the other side is prone to distorted thinking than to believe that
they are, and so sometimes a discussion of these biases may be
more appropriate in a caucus session than in a joint session.
The bottom line is that any discussion of these issues is not
intended as diagnosis or treatment and must be presented in a non-
accusatory way with the recognition that they pertain to both par-
ties and mediators.
D. Emotional Intelligence
(1983).
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Four Key Competencies, in BRINGING PEACE INTO THE ROOM: HOW THE PERSONAL QUALITIES
OF THE MEDIATOR IMPACT THE PROCESS OF CONFLICT RESOLUTION 151 (Daniel Bowling &
David Hoffman, eds. 2003).
167 RICHARD N. WOLMAN, THINKING WITH YOUR SOUL: SPIRITUAL INTELLIGENCE AND WHY
IT MATTERS (2001).
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Center for Disease Control, “nearly 50% of U.S. adults will de-
velop at least one mental illness during their lifetime.”171
No one knows what percentage of the people who come to
mediation suffers from mental illness, but it stands to reason that
they are over-represented among the people who find themselves
in serious conflicts. Of course, suffering from depression or some
other mental illness does not by itself mean that a person is legally
incompetent or unable to participate fully in mediation. But these
statistics suggest that mediators need to be cautious about assum-
ing that the people in any given mediation are operating at full
capacity and in a fully rational manner. It is not the role of a medi-
ator to diagnose or treat mental illness, and it is often wise to con-
sult or co-mediate with a mental health professional when
psychological issues seem to be impeding progress in mediation.
Second, when parties in mediation behave in a manner that
disrupts the process, frustrates progress, and may even seem self-
defeating, mediators need to consider whether psychological fac-
tors are at work and, if so, how to address them. There is, of
course, no easy way to answer these questions. A mediator’s in-
volvement with the parties is usually quite brief—possibly only a
few hours, or just one day—and therefore it may be difficult if not
impossible to determine even some of the relevant psychological
factors at work, much less develop a comprehensive understanding
of them. This is true even in those mediations that consist of multi-
ple sessions over many months—in part because the parties are
coming to mediation for settlement, not therapy, and therefore the
type and extent of their self-disclosures are geared toward a resolu-
tion of their conflict as opposed to insight about the internal
dimensions of their difficulties. For the mediator, however, conflict
presents a three-dimensional problem whose solution often re-
quires a three-dimensional examination of its origins. Once again,
consultation with a mental health professional or co-mediation, in
which, one of the mediators is a mental health professional may be
advisable in seemingly intractable cases where psychological issues
are evident.
Third, although mediation is not psychotherapy,172 it can have
therapeutic effects, as well as counter-therapeutic effects. In other
171 See National Institute of Mental Health, CDC Mental Illness Surveillance, CENTERS FOR
TION Q. 33 (1983).
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173See Lois Gold, Mediation and the Culture of Healing, in BRINGING PEACE INTO THE
ROOM: HOW THE PERSONAL QUALITIES OF THE MEDIATOR IMPACT THE PROCESS OF CONFLICT
RESOLUTION 183 (Daniel Bowling & David Hoffman, eds. 2003).