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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 Two

by Jennifer Winestone
November 2014 Jennifer Winestone

Review Part One here.

Mediation: Generating Great Expectations

In William Ury’s sequel to “Getting to Yes”, “Getting Past No,” 1 the co-innovator of the principled (interest-based) negotiation method considers the problem of impasse in negotiation.  Ury proposes a strategy for breaking through barriers.  The first barrier Ury identifies is closely related to Ariely’s principle of the effect of expectations: your natural reaction.

Since the first barrier is your natural reaction, the first step involves suspending that reaction.  To engage in joint problem-solving, you need to regain your mental balance and stay focused on achieving what you want.  A useful image for getting perspective on the situation is to imagine yourself standing on a balcony looking down on your negotiation.  The first step in the breakthrough strategy is to Go to the Balcony. 2

The mediator, as architect of the negotiation process, helps to build the parties’ respective balconies.  First, she designs the setting for the mediation.  From the location of the boardrooms to the placement of the chairs, the mediator can help foster a comfortable and inviting space for clarity of thought.  Juxtapose this image from one in which a four-way meeting between clients and their attorneys takes place at one of the lawyers’ law offices (i.e. defense attorney).  The prestige and opulence of the firm setting may trigger expectations in terms of the settlement range available to the plaintiff or defense counsel’s aggressiveness and comfort in drawing out expensive litigation.

David Hoffman and Richard Wolman considered the effect of expectations in mediation, which they identify as “cognitive biases” in their article “The Psychology of Mediation.” 3  The authors state:

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 psychology can help us identify the lenses and filters that prevent us - parties, counsel, and mediators alike - from seeing the world with greater objectivity. 4

The “cognitive biases” Hoffman and Wolman identify include: fundamental attribution error and negativity bias (e.g., attributing an adversary’s successes to circumstance and failures to character), 5 reactive devaluation and confirmation bias (e.g. devaluing an offer because it came from the other party), and self-serving bias and overconfidence bias (the tendency to think that we are “fairer, smarter, and more capable”). 6  Mediators consistently work to counteract the effect of biases by illuminating disparities between positions and intent, eliminating negativity, generating optimism and positive emotion, normalizing the impact of the biases, and facilitating the exchange of information. 7 

One of the most common expectations in party negotiations is impasse, often a form of confirmation bias.  Negotiation impasse is often what brought parties to engage in the mediation process to start.  However, impasse bias is what restricts the parties from engaging in creative problem solving to move the negotiations forward.  Parties may enter mediation with the affirmation: “This is never going to settle.  We are wasting our time here.”

Mediators utilize various techniques to counteract the effect of this expectation and inject hope and optimism into the negotiation process.  A mediator sets the stage for good faith negotiations.  He works to develop rapport and trust between himself and each party respectively.  The mediator may operate through shuttled diplomacy in order to change the “face” of the negotiations from adversarial to one that is familiar and friendly (his own).  The mediator may direct parties to subtle inconsistencies in their reasoning and encourage small acts of generosity between them.  All of these techniques, which are not exclusive, operate to drive parties from expectations of impasse and back to conscious reasoning and informed problem-solving. 

Ethical Persuasion in Mediation

Awareness of the psychological principles of influence and persuasion is not incidental to a mediator’s responsibilities, but essential to her ability to be effective.  Accordingly, utilizing the tools of influence, like commitment and consistency, and employing the effect of expectations, does not in and of itself generate an ethical dilemma.

Some mediators call themselves communication facilitators and take the position that mediators do not engage in persuasion at all. But in our experience, this claim ignores the reality of most mediation practice…In the vast majority of disputes in which the assistance of a mediator is needed or requested, far more than mere "facilitation" is necessary to help the parties resolve deeply held or competitively bargained differences. Mediators in different practice settings and with differing ideological perspectives may well disagree about specific goals and methods of persuasion, but most mediators engage pervasively in persuasion activities. 8

Notwithstanding, ethical implications do arise when a mediator engages psychological tools of influence in order to coerce or trick parties into agreement.  This practice contradicts the foundational principles of mediation: voluntariness and self-determination. 

The mediator’s goal in utilizing the tools of influence ought to be to disengage parties from their psychological short-cuts and help them process decisions with full consciousness and clarity.  Of course, in order to achieve this, the mediator might be required to employ certain counteracting techniques.  For example, mediators routinely engage in “process persuasion.” 9  For example, when a mediator requires the parties to sign a mediation agreement, the mediator is using process persuasion and engaging the commitment and consistency principle (i.e. getting the parties to “commit” to the mediation process generates the psychological need to appear consistent, such as by engaging in good faith negotiations).

The goal in the mediator’s use of psychological tools of persuasions must be process-driven and principled. The mediator might use the commitment and consistency principle by framing concessions in reason to maintain the appearance of consistency.  Similarly, the mediator might employ the effect of expectations by coaching parties through strategic negotiations, for example by dissuading disputants from making extreme demands that would cause impasse. 

If, however, the goals are settlement-driven or self-interested, the mediator risks crossing the line of persuasion and influence and robbing parties’ of their self-determination.

Conclusion

The art of mediation requires mastery of many arts and disciplines, including persuasion and influence.  Cialdini and Ariely’s respective psychological concepts of influence provide us with some powerful tools that can assist mediators in setting the stage for a fair and effective negotiation process, including commitment, consistency and the effect of expectations.  Like any power, the tools of persuasion, ought to be utilized with selfless intention.  Effectiveness in mediation must always be second in priority to integrity.  Mediators must strive to preserve their personal character and the integrity of the mediation process in utilizing psychological influences, like commitment, consistency and expectation.

1 William Ury, Getting Past No: Negotiating Your Way From Confrontation to Cooperation (Bantam, 2nd ed. 1993),

2 Id at 11.

3 Hoffman & Wolman, supra.

4 Id.

5 Id.

6 Id.

7 Id.

8 James H. Stark and Douglas N. Frenkel, Changing Minds: The Work of Mediators and Empiracal Studies of Persuasion, 28 Ohio St. J. on Disp. Resol. 263 (2013).

9 Id.

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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