Doubt and Dissonance
Creating a Healthy Tension of the Mind
The reality is that most mediating parties need some encouragement to get off of their positional view of the situation and positional approaches to identifying solutions. To help motivate parties to shift, the mediator may seek to create some measure of doubt or dissonance in the parties' thinking. Some of the most powerful mediation techniques of all are "mutualized dissonance producing techniques." These techniques bear down upon all parties to the conflict, simultaneous inducing them to be more flexible. Because the techniques operate upon all of the parties, they are preferable in the sense that the finesse the issue of potential mediator partiality. It is appropriate, probably preferable, to offer these techniques to the parties in joint session.
Sample mutualized dissonance techniques include the following:
Two Sets of Arrangements
Ask each party to develop at least two acceptable sets of solutions to a defined issue. Each party will come up with the first acceptable set in no time (their well rehearsed positions). They will need to stretch to come up with a second acceptable set of alternatives and this stretching will create some desirable room for additional discussions.
The Exchange Environment
The mediator can create movement toward the center by asking: "What are you prepared to give to the other that you believe they desire to get what you want?" and "What would you need to receive from the other to agree to what they would like?"
The Hypothetical Question
The hypothetical question introduces a new fact or set of facts not previously assumed. The question is whether the assumption of this new information would lead to a new conclusion.
On challenging factual issues or when the parties or their attorneys have widely divergent conclusions as to value or "the law," the mediator may suggest the possibility of the parties (and their attorneys) submitting summaries of their respective arguments to one or more mutually trusted experts for consideration and the offering of a confidential, non-binding, non-admissible recommended settlement.
In situations where parties have advisory legal counsel outside the mediation who are advising the parties to take extreme positions, the mediator may consider recommending that legal counsel be invited to attend the next mediation session so that they can respectively summarize their perspectives for both parties, opposing legal counsel and the mediator. Commonly, legal counsel will temper their position somewhat when opposing legal counsel is present. Doubt and dissonance will typically be created within each party based upon their experiencing opposing legal counsel's capable presentation.
"It Always Amazes Me"
This technique can effectively follow either the mini-trial analogue described above or the parties' reports of the polarized conclusions of legal counsel. It goes something like this: "It always amazes me how such high educated, skilled and competent legal counsel can come to such vastly different conclusions."
"If You Were to Reverse Representational Roles"
The mediator can ask the parties or their representative legal counsel whether, if they were to reverse roles and be arguing the other side, the arguments and suggestions would be very much different, and if so, how?
The Parade of Horribles
This technique can follow "It Always Amazes Me" or be used on its own. After hearing each party's prediction of the extreme legal position or outcome they believe they are entitled to, the mediator may ask: "Understanding then you have very different legal perspectives, can I ask you if your attorneys are prepared to guarantee those outcomes? Will they guarantee that the result won't be ½ or double; 1/3 or triple; 1/4 or quadruple? And have they said how much it would cost to find out if they are right? And are they prepared to guarantee those costs? That the costs won't be double? Triple? Quadruple? And have they said how long it will take to find out? Can they guarantee that? And have they commented on the likelihood of compliance with a legally imposed result, especially if that result is extreme either way? Have they talked with you about bankruptcy? Or the risk of appeal? Have they said how much the cost of an appeal might be? Or the possibility of a second appeal? A third appeal? And, I am wondering, what will the impact of all of this on your relationship? On your family? Friends? Colleagues? What about the opportunities you will give up by perpetuating this conflict? And the stress? Is this conflict making your life less or more stressful? And all of that to roll the dice in court? Remember, it is you, not your attorneys, who will be living with all of this and I am wondering, given all of the costs and uncertainty, if there might be some possible flexibility in the system, perhaps along the lines of considering . . . "
To the extent that creating doubt or dissonance may result in an individual party losing face, it may be best to create doubt and dissonance in caucus. Individual doubt and dissonance techniques should not be utilized until effective rapport has been established with the party. Highlighting a party's vulnerabilities before effective rapport is established will seem like an attack. Highlighting a party's vulnerabilities after effective rapport is established will seem like you are being a good friend who cares enough about the party to give them some potentially challenging information, in confidence, so that they may make a wise decision under challenging circumstances.
It is, also challenging to induce doubt or dissonance in an individual party consistent with the mediator's impartial role. Presumably, if the mediator takes this approach with one party, he or she is prepared and willing do so with each mediating party. A good example of an individualized doubt and dissonance technique is what I call "The Eight Questions:"
1. What do you see as the strengths of your case (or situation)?
2. What do you see as the weaknesses of your case (or situation)?
3. What do you see as the strengths of the other's case (or situation)?
4. What do you see as the weaknesses of the other's case (or situation)?
5. How do you think a judge will view this case (situation) and rule?
6. What is the best ruling you could reasonably expect?
7. What is the worst ruling you could reasonably expect?
8. How do you think the other party would answer these questions?
When utilizing doubt and dissonance techniques, be aware that you are working with the "soft underbelly" of the party's situation, so push lightly. You only need to raise doubt so strongly as necessary to create the "glimmer of recognition" in the party's eyes. If you push any harder, you will create unnecessary resistance to both the concept you are offering and, even worse, to you as mediator.