Aristotle once noted:
“. . . we feel confidence if we believe we have often succeeded and never suffered reverses, or have often met danger and escaped it safely. For there are two reasons why human beings face danger calmly: they may have no experience of it, or they may have means to deal with it. . . .” (Rhetoric, Book II, Chapter 5, p. 1383, lines 25-30).
When parties face a dispute, either they are fearful or confident or a mixture of both. If confident, it is because either they have no knowledge of what lies before them or they do have such knowledge and are fully prepared for it.
The parties face mediation in the same way. In a short essay by James Laflin entitled “Some Brief Notes On BATNA’s Risk Analysis and Overconfidence In The Mediation Process” in the California Tort Reporter: California Litigation Reporter published by Thompson-West (2007), the author notes that in a mediation, the parties negotiate by weighing the possible outcomes of trial “versus settlement and select the choice that offers the highest possible return at an acceptable level of risk.” However, often in deciding what to do, the parties “often have only the vaguest idea of the risks they face”:
” . .studies show that individuals who are less well informed about a subject or problem tend to feel subjectively more confident as to its solution or outcome while the accuracy of their predictions is worse than that of individuals who are better informed. That is to say that individuals who are better informed are less confident about the accuracy of their predictions, while their predictions are, in fact, more accurate.” (Emphasis original).
Which, gets us back to Aristotle’s notion that people face “danger” calmly either because they are wholly ignorant of what lies before them or are very well prepared for it.
In attending a mediation, a party should think about Aristotle’s notion and try to understand whether she (and her opposing party as well) is negotiating out of ignorance or full knowledge and/or preparation. If the former, the outcome is liable to be worse than she (or her adversary) expects. If the latter, she (or the other side) may feel less confident but the outcome will be closer to what she expects. Further, according to Laflin, well informed negotiators tend to be more open to compromise and more accepting of the realities of the situation. Obviously, such openness provides a greater probability of reaching a resolution.
The next time you attempt to resolve a dispute and find yourself to be calm, ask yourself, “am I calm out of ignorance or because I am fully informed?” Similarly, if you find that the other party is calm about the matter, ask yourself the same question: “is she calm out of ignorance or because she is fully informed?” The answer to these two questions will help you decide how to approach and resolve the dispute.
. . . Just something to think about.