In my early training to be a mediator, the trainer often suggested that to help the parties reach an agreement on the really big issues, start with the small ones. Discuss the easy issues first and obtain agreement on those. This will build momentum and a sense that resolution is possible. Once the parties find that they can agree on the simple easy stuff, they feel more confident to tackle the harder issues with success.
Unfortunately, many of my mediations have been single issue: money and so I have not had the chance to implement this simple lesson.
But I was reminded of it (and wish to pass it along) by an article written by Tammy Leski entitled, “Start with a Small Yes” . While Ms. Lenski focuses on difficult conversations involving multiple issues, her wisdom is equally applicable to resolving lawsuits, which, are, indeed, a form of conflict resolution (although not necessarily the preferable one!)
She likens a “yes” to a small or minor issue to the mortar that holds together the “big yesses” or the building blocks of an agreement. (Id. at 2. ). Discussing the psychology of agreement, she notes that it has much to do with the principle of reciprocity:
First, a small yes acknowledges a shared reality, our fundamentally human need to experience something in common with others. Shared realities are especially important to explore and acknowledge when those involved in a conflict want to be or have to be in ongoing relationship.
A small yes also encourages reciprocity. Reciprocity is the idea that one will receive the equivalent of what one gives; the Golden Rule (“do unto others…”) is a common example. One small yes, particularly a very meaningful one, can often trigger a reciprocal small yes from the other(s), leading to a cascade effect over the course of a conversation. It seems to be human nature to reciprocate.
A small yes sparks the potential for cognitive reappraisal, too. Cognitive reappraisal is a method for changing the emotional response to something by reinterpreting the meaning of what happened through a more neutral or positive lens. When people discover a small yes together, that small yes can begin to shift their negative view of the other(s) or the hopelessness of the situation. (Id. at 3.)
Ms. Lenski cautions that one can not rush this process. Indeed, it is a lesson that all mediators learn early on; the process will fail if it is rushed. Psychologically, people must be able to discuss their perspectives or viewpoints (i.e. be heard ) before each is ready, willing and able to listen to the other. Once each person has said what she feels was needed to be said, is she then in a position to listen to the others and begin to explore the “shared reality” of the dispute. Only at this point, can one begin to look for an agreement on a small issue or a “small yes”. And… if one does obtain that “small yes”, Ms. Lenski suggests to “…let it percolate for a moment.”. Allow the opportunity for the other person to reciprocate. Perhaps she will, perhaps she will not but one will never know if you do not allow the opportunity. (Id. at 4-5.) And that opportunity may just lead to further agreement on the bigger issues. (Id.)
I have seen the principle of reciprocity play out in many mediations. The defendant makes a small concession and in response, the plaintiff makes one as well and the parties move closer to resolution if not actual resolution.
So- start with the small issues, using them as building blocks for the larger issues. Before you know it, your “intractable” dispute will be resolved.
… Just something to think about.