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The Art and Science of Mediation: How the Principles of Commitment/Consistency and Expectation May be Applied to Mediation to Help Break Party Impasse - Part One

by Jennifer Winestone
November 2014 Jennifer Winestone

Introduction

Robert Cialdini (“Cialdini”) and Dan Ariely (“Ariely”), in their respective books “Influence: The Psychology of Persuasion” 1 and “Predictably Irrational,” 2 provide us with scientific explanation for the unconscious influences that affect our decisions.  Their respective observations and hypotheses offer useful tools for professionals in the business of sales, negotiation, and influence.  Mediation professionals  are in the business of all three - despite seemingly contradictory job descriptions like neutral, impartial, and insurers of party self-determination and control.  By understanding the psychological predictors, trappings, and tools of influence, mediators will be better able to help parties achieve clarity, retain power in negotiation, and break impasse.

This paper provides a review of two scientific concepts, Cialdini’s theory of Commitment and Consistency and Ariely’s theory of the Effect of Expectations, and considers the practical and ethical implications of both as applied to mediation with respect to party impasse and the mediator’s role.

Consistency - The Last Refuge of the Unimaginative 3

According to Cialdini, humans have a “nearly obsessive desire to be (and to appear) consistent with what we have already done.” 4  The power and attractiveness of consistency is derived from the fact that, “in most circumstances consistency is valued and adaptive.” 5  Consistency is associated with desirable personality traits, like personal and intellectual strength. 6 People who are consistent are considered more logical, rational, stable, and honest. 7 By contrast, inconsistency is considered an undesirable trait, associated with indecisiveness, duplicity, and mental illness. 8 

Consistency can be problematic to our decision-making:

…because it is so typically in our best interests to be consistent, we easily fall into the habit of being automatically so, even in situations where it is not the sensible way to be.  When it occurs unthinkably, consistency can be disastrous. 9

Several sales and marketing techniques are specifically aimed to exploit our automatic consistency reflexes.   Consider Cialdini’s example of the post-Christmas gift.  Toy manufacturers aggressively market a “must have” expensive toy before Christmas. In response to little voices of desperation, parents promise their children the toy for the holiday, only to find that the toy store has run out of it.  In fact, the manufacturers have undersupplied the stores with that particular toy.  The parents purchase a “substitute” toy instead (which substitute toys have been well-stocked by the manufacturers).  After the holiday season, when the original toys are finally in stock again, the parents are forced, by the principles of consistency, to make good on their promises to their children. 10  Thus, the manufacturers and toy stores receive double the profit; the children receive double the presents; and, the parents receive a double-edged sword. Our automatic adherence and faith in the consistency principle has allowed toy manufacturers to toy with the autonomy of  our decisions.

According to Cialdini, the key to engaging the principles of consistency is commitment: “Once a stand is taken, there is a natural tendency to behave in ways that are stubbornly consistent with the stand.” 11  With the post-Christmas gift, the key was soliciting the parents’ promise to their children.  Once a commitment (i.e. promise) is made, people will will engage in otherwise irrational behavior (i.e. purchasing an extra gift) in order to be and appear consistent.

The implications for litigation, and thus mediation, are significant.  Consider for example a personal injury lawyer who values settlement for a particular client in the amount of $200,000.  He later determines the settlement value is actually in the $100,000 range.  The lawyer is trapped but the principle of the rule, and “he might be so embarrassed by the initial public commitment to $200,000 that he cannot bring himself to encourage his client to accept a generous settlement offer of $125,000.” 12 It is not the lawyer’s stereotypical “ego” that has him trapped, but rather his  humanness and psychological impulses. 

Even jurors - who by nature represent a collectively objective population - are vulnerable to commitment and consistency rule.    Researchers have found that in complicated proceedings (i.e. those that were a “close call”), “show of hands” jury voting caused significantly more hung juries than did voting by secret ballot.” 13 The researchers hypothesized that the secret ballots may have allowed jurors to change their position from earlier commitments more easily than “show of hands” voting, which “make it difficult to change one’s position without appearing inconsistent or irresolute.” 14

The Expectation Effect

Ariely’s theory of the effect of expectations, operates from a similar premise:

Think about the Mona Lisa.  Why is this portrait so beautiful, and why is the woman’s smile mysterious?  Can you discern the technique and talent it took for Leonardo da Vinci to create it?  For most of us the painting is beautiful, and the smile mysterious, because we are told it is so.  In the absence of expertise or perfect information, we look for social cues to help us figure out how much we are, or should be, impressed, and our expectations take care of the rest. 15

Like consistency, our expectations operate as a cheat-sheet substitute for independent thought. 

There is a very expensive an prestigious restaurant in the heart of a big city.  The ambience in the restaurant is clean and fresh and the service is staged for royalty.  The restaurant serves a myriad of deliciously prepared food from steak and lobsters to strange exotic dishes that tempt and intrigue the palette.  However, most people visiting the restaurant for the first time will predictably order a hamburger, for this restaurant has made a reputation of offering the most expensive hamburger in the city.  What makes a $40 hamburger at a fancy restaurant taste so much better than a $5 burger at the corner diner? According to Ariely theory, “the mind gets what it expects.” 16

The effect of expectations can be dangerous.  It is a driving force behind our biases and stereotypes and the decisions we make in reaction to them. 

…stereotypes are dangerous because we are often unaware of their influence.  We tend to think that our beliefs about groups are accurate, and we can often draw on experience to support these beliefs.  Experience, however, can be a misleading guide.  Think about the people whom you consider to be the most effective leaders in your company.  What qualities do they have that make them effective?  For a purely historical reason, there is a good chance that the people who come to mind as effective leaders are men.  For that reason, many of the qualities you associate with effective leadership may be masculine.  Consequently you may find it difficult to imagine a woman who could be an effective leader. 17

Consider this effect as it may apply to the legal negotiating table.  For example, imagine two separate scenarios of a case: 1) the plaintiff is represented by a seasoned lawyer with a strong reputation for being a hard-nosed bully negotiator who only takes on high value cases; and, 2) the plaintiff is represented by a young fresh associate flying solo on his first big case.  What expectations does each scenario generate for opposing counsel?  What expectation trappings might the mediator fall into himself? How do these expectations shape the course of the negotiation and choices of the participants?  The effect of the expectations challenges the defendant’s ability to make a free, voluntary and informed decision on the merits of the case and with due consideration to his/her interests.  However, it creates similar challenges for the plaintiff, her hard-nosed attorney, defense counsel and the mediator as well.  The parties are wise to use their experience as their guide, but they must be careful not to be led blindly by experience, and the insecurities or feelings of overconfidence that it generates.

A Case for Mediation: A Safe Space for Inconsistency

Cialdini’s commitment and consistency rule suggests that it will be difficult for a negotiator to change her views once she has made an “active, public, voluntary commitment to something.” 18  Parties often engage in mediation post-litigation, after which time they have already made their assertions of liability and damages.  In the adversarial legal landscape, these assertions are made with zealousness and thrust.  Often by the time meaningful negotiations take place, litigants have not only buried their heels firmly in the sand, but dug a hole for their hands and faces too.  It is then difficult for them to change their position, without appearing “inconsistent or irresolute.” 19

Today’s mediators and negotiators are taught the art of interest-based negotiation, which refocusses adversaries on the motivations underlying their respective positions and seeks to find common ground between them.  According to the principles of consistency and commitment, while positions may have taken root in interests, they have sprouted into principal.  Interest-based negotiation, without consideration of the magnetic force of a person’s psychological trappings (like the need to be (and appear to be) consistent), is insufficient.

There is no escape (…), from the fact that successful mediation requires sensitivity to the psychological dynamics that underlie how people think, feel, and, ultimately behave and make decisions. 20

In giving due consideration to psychological concepts, like consistency and commitment, a mediator may encourage parties to enter into negotiations at an early stage of the proceedings (or before formal proceedings have been initiated).  Early mediation allows the mediator to facilitate negotiations in an environment “where parties can feel free to come to the bargaining table with an open mind and without having made (or having to make) public commitments to a particular position or set of goals.” 21 

Even late stage mediation helps to quell the psychological force of commitment and consistency, because mediation is a private and confidential process.  Take for example a high profile public case where parties issue weekly press releases or public proclamations of innocence, guilt, or morality.  Mediation, by its nature, slows the consistency and commitment momentum down.  Within the confines of the confidential process, parties are quieted and their voices directed to a focussed dialogue between the parties and the mediator.

…negotiating in private can make it easier for the parties to really listen to the views, arguments, and positions of all the parties involved,rather than feeling pressure to "play to the gallery" of constituents attending the negotiation--that is, showing how "tough" and stubborn one can be by exhibiting a largely unfriendly, unyielding, take-it-or-leave-it negotiation stance toward the other parties. 22

The mediator is a neutral “guest in the conflict.” 23  As such, he can help parties “gracefully back down from [their] commitments should they wish to do so” 24 and find alternatives to “either a humiliating defeat or a nuclear war.” 25 By employing single session “caucus” and shuttled diplomacy, the mediator can help parties shift course through reasoned decision-making, without admitting or accepting defeat to the adversary.  Using artful reframing and creative thought, a party’s concession can be a generous, gracious and tactical move in the negotiation, as opposed to an admission of weakness in their case or resolve.

ENDNOTES

1 Robert B. Cialdini, Influence: The Psychology of Persuasion (Harper Collins, 1st ed, 2007).

2 Dan Ariely, Predictably Irrational (Harper Collins, 2nd ed. 2010).

3 Oscar Wilde: “Consistency is the last refuge of the unimaginative.”

4 Cialdini, supra at 57.

5 Id. at 60.

6 Id.

7 Id.

8 Id.

9 Id.

10 Id. at 65-67.

11 Id.

12 Peter Reilly, Resistance Is Not Futile: Harnessing the Power of Counter-Offensive Tactics in Legal Persuasion, 64 Hastings L.J. 1171 (May, 2013).

13 Reilly, supra; See Nobert L. Kerr & Robert J. MacCoun, The Effects of Jury Size and Polling Method on the Process and Product of Jury Deliberation, 48 J. Pers. Soc. Psychol. 349, 349-52 (1985).

14 Id.

15 Ariely, supra at 222.

16 Id. at 199.

17 David M. Messick and Max H. Bazerman, Ethical Leadership and the Psychology of Decision Making, Sloan Management Review (Winter, 1996), at 17.

18 Reilly, supra.

19 Reilly, supra.

20 David A. Hoffman and Richard N. Wolman, “The Psychology of Mediation”, Cardozo Journal of Conflict Resolution (Yeshiva University, Spring, 2013)

21 Reilly, supra.

22 Reilly, supra.

23 Phrasing by Professor Steve Rottman.

24 Reilley, supra.

25 Quote from President John F. Kennedy’s speech to the American University after the Cuban Missile Crisis.

Read Part Two here.

Biography


Jennifer Winestone is a mediator in Los Angeles, California, with a practice focussing on family legal issues.  Jennifer is licensed to practice law in both Ontario (Canada) and California.  A former family law and estates litigator, Jennifer now devotes her practice entirely to conflict resolution, helping families in transition and/or crisis to resolve their legal conflicts and move forward with their lives.  Jennifer obtained her law degree from the University of Ottawa and Master of Laws (LL.M.) in Dispute Resolution from the highly acclaimed Straus Institute for Dispute Resolution at Pepperdine Law School.  Jennifer believes in evolving litigation and dispute resolution processes and strives to be part of positive changes in the future of family dispute resolution.  She is a frequent trainer of mediation techniques and processes and active participant in Los Angeles’ dispute resolution community.



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