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Did Hunger Sabotage A Mediation?

by Phyllis Pollack
November 2014 Phyllis  Pollack
The other day, I conducted two mediations between the same plaintiff's counsel, the same defendants and their counsel. The only different party in the two mediations was the plaintiff. One mediation was to start in the morning and the next in early afternoon, figuring each would take about 3 hours.

Unfortunately, the first mediation lasted much longer than expected; about 5 ½ hours. Although it settled, it was a difficult settlement, and one that took a lot out of everyone to reach.

I noticed that beginning in the early afternoon, towards the end of the first mediation, one of the defense counsel starting getting grumpy, meaning her blood sugar was low. She was also probably tired as she had gotten up very early that morning to drive a great distance to attend the mediation, and no doubt, had the return drive to face.

Although, I had ordered lunch, it had not yet arrived. When it finally came, everyone ate, but I noticed that the mood of the defense counsel did not really change. She was still grumpy.

Why? Being tired and hungry and not taking a break probably had a lot to do with it.

Once again, Katie Shonk has posted a blog on the website of the Program on Negotiation at Harvard Law School revealing that hunger pangs correlate to a sense of entitlement. ("In Business Negotiations, Eat Before You Negotiate." (October 7, 2014).) In an experiment with Cornell students entering or leaving the university dining hall, Professor Emily Zitek at Cornell, and Professor Alexander Jordan of Dartmouth College, asked the students to agree or disagree with the statement that they "feel more deserving than others" or "People like me deserve an extra break now and then." (Id.)

The researchers found that those going into the dining hall, and thus hungry, had a greater sense of entitlement than those leaving, and thus satiated. The researchers defined "entitlement" as "...the sense that one is more deserving of positive outcomes than the other people are." (Id.)

The researchers conducted a second experiment in which some of the participants were able to smell a pizza cooking in a toaster (thus making them feel hungrier) while others were not exposed to the pizza smell. As might be expected, those who smelled the pizza cooking, reported being hungrier and feeling more entitled than the other group.

The researchers commented that having a sense of entitlement will cause one to "...behave selfishly and have difficulty taking the perspective of the others....They are also more likely than others to be dishonest and to have trouble getting along with others." (Id.):

When people are hungry, they tend to be focused to their own immediate needs. Consequently, they may have trouble focusing on anything else or especially the needs of others, a state that leads to a sense of psychological entitlement, according to Zitek and Jordan. (Id.)

I saw the effects of being hungry and tired during the second mediation. It did not settle and lasted only a short time. Why? While the plaintiff herself was fresh, having just arrived, everyone else had used up quite a lot of glucose aka energy to resolve the first mediation. As a consequence, the defense counsel were hoping that the second mediation would not take that long even though prior to the mediation, the parties had figured this second one to be the more difficult one.

Although I invited defense counsel to go outside and get some fresh air and take a break before the start of the second mediation, they were not so inclined. They preferred to sit in the conference room all day.

So, when plaintiff took awhile to make her initial demand as she had to review the amounts involved, the "waiting" irked defendants. So, did the initial demand. Plaintiff was not "cutting to the chase" or anywhere close to it, but started at the very beginning of the negotiation dance. Defendants were not in the mood to dance. They were not focusing on the psychological needs of plaintiff or looking at the matter from her perspective, but rather very narrowly from their own perspective. They wanted to settle on their own terms based on their own valuation and do so very quickly. I could see that defense counsel felt some sense of entitlement - that plaintiff and plaintiff's counsel should simply accept their view of the value of the case and make a deal.

So... the morale here is to never negotiate when hungry and/or tired and/or without taking a break every so often. It will lead either to no resolution or to a very bad one.

... Just something to think about.


Phyllis Pollack with PGP Mediation uses a facilitative, interest-based approach. Her preferred mediation style is facilitative in the belief that the best and most durable resolutions are those achieved by the parties themselves. The parties generally know the business issues and priorities, personalities and obstacles to a successful resolution as well as their own needs better than any mediator or arbitrator. She does not impose her views or make decisions for the parties. Rather, Phyllis assists the parties in creating options that meet the needs and desires of both sides.  When appropriate, visual aids are used in preparing discussions and illustrating possible solutions. On the other hand, she is not averse to being proactive and offering a generous dose of reality, particularly when the process may have stalled due to unrealistic expectations of attorney or client, a failure to focus on needs rather than demands, or when one or more parties need to be reminded of the potential consequences of their failure to reach an agreement.

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