In order to be effective, the mediator must be able to exert some degree of influence, persuasion and authority. Although the transformative and facilitative schools of mediation seek to intervene in the process to the minimal extent possible, it will be found that even the transformative mediator is exercising the principles of persuasion in order to help her clients.
In the mediation of litigated cases, parties often use retired judges, and the reason is very simple. A retired judge has authority. It is easier for a corporation or insurance company or firm or attorneys to turn to a retired judge, because at a certain point in the mediation they will able to turn to their clients and say: “The judge thinks this, the judge thinks that.”
The subject of persuasion impacts directly into questions of ethics. This question cannot be avoided by denying one’s self the use of the principles of persuasion, because that in itself is a decision leading to a course of action. Ethics is the subject of right and wrong actions, and the decision not to act is as much an ethical decision as the decision to act.
A sick person seeking a doctor wants to find a physician with experience, with confidence, with authority and someone on whom they can place reliance. Anyone with a legal problem wants to find a lawyer who knows what she is talking about, a person with authority. People seeking help want to find someone who is persuasive, authoritative.
AFFINITY: Affinity or liking is a principle known to every trial lawyer: Juries give money to lawyers they like, and to plaintiffs they like or can feel empathy with. Bill Clinton was a personable guy so the public forgave him. Richard Nixon was not and was forced from office. People are attracted to good-looking people, as every beautiful woman or handsome man soon finds out.
AUTHORITY: People tend to rely on persons in authority. It is as simple as that. That’s why retired judges are in demand as mediators. That’s why Jimmy Carter successfully brokered the peace treaty between Israel and Egypt.
CONSENSUS: In any social situation, starting in early childhood, people will tend to observe what other people do in order to decide how to act. Cialdini tells a charming story of a child who learned to swim from one day to the next. Why? Because he saw his little friend of the same age swimming, and said to his father: “Well, Tommy can swim, so I can too.” That makes building consensus by tiny steps from the very start of the mediation an important task for the mediator. The mediator will seek agreement on seemingly unimportant points in order to start the process that will eventually lead to the “tipping point” that results in a final agreement.
CONSISTENCY: In politics, in negotiations, in life human beings value consistency very highly. A politician deemed inconsistent in her positions loses credibility very fast. In a negotiation, the surest way to kill the process is to make a demand and then increase it, or make an offer and then decrease it, or to make any kind of statement and then contradict it. This is important as well for the mediator. Human beings value consistency in others. That is why politicians almost never change their party affiliation.
RECIPROCITY: This is the age-old concept of “tit for tat.” It is also called “stick and carrot.” It is the fundamental process of negotiation. A small concession is made, and the conceder then waits to see if a concession will be made in return. Cialdini’s reciprocity principle states that people feel an obligation to return a favor.
SCARCITY: Retailers use this principle all the time to persuade people to buy. They put items "on sale," making sure that there appears to be a limited quantity. They advertise “one vehicle at this price.” It has very often been observed that an item that simply would not sell at a certain price suddenly becomes in demand twice that price. People value what they think is scarce. The great art dealer, Joe Duveen, exploited the perceived scarcity of Old Masters by waging a highly successful one-man campaign over a period of 30 years to sell renaissance paintings to American millionaires in the 1920s and 1930s at astronomical prices. Realtors used this principle to sell undeveloped land: “They’re not making any more of it.” Negotiators like to exploit this principle by making an offer accompanied by the words: “This offer is good until 5:00 today.” The Hunt brothers from Texas tried to corner the world market in silver, which gave them enormous influence for a while until their scheme utterly collapsed. The story of “bubbles,” (the South Sea bubble, the Dutch tulip bubble, the dot.com bubble) are stories of manufactured scarcity. “Get in now before it’s too late.”
Cynics are apt to say that the trial court system is merely a contest to determine which side has the best lawyer. Certainly, a great advocate has a genius for persuasion. How do they do it? All great advocates are extremely likable. They establish their authority over the jury. They build a consensus among their listeners, by weaving a tale that is consistent yet entirely in favor of their client. They establish rapport with the jury, and rapport is an exchange of good feeling, a kind of reciprocity. And they make the jury believe that this is their one chance, a scarce opportunity because it is unique to them, to do right and justice in favor of their client.
All these tools are available to the mediator. It is just a matter of using them creatively.