From Rich Webb’s Healthcare Neutral ADR Blog.
Every dispute comes to mediation wrapped in emotion. Sometimes it relates to the wrong or harm arising from the conduct that triggered the dispute. Other times, it is simply the emotion surrounding months or years of being on one side of the dispute and believing the other side to be wrong. Or it can be both. Traditional mediation theory holds that it is vitally important for both sides to have the opportunity to express their emotions, and for the mediator to acknowledge them. This is thought to be beneficial because:
– It may be the first and only opportunity a party has to meaningfully “vent,” without which that party can never put the dispute to rest.
– It enables each party to hear what the other really feels, without which a willingness to address those feelings in a settlement cannot be achieved.
– It educates the parties and their counsel on what the mediator is up against, thus guiding realistic negotiations.
I have always accepted the wisdom of encouraging parties’ expressions of emotion in mediation, and have permitted parties to “vent” with few limitations. (“Venting” by counsel is another matter, and generally not worthy of much leeway.) I have found that parties appreciate the opportunity to express strong emotions, and that my acknowledgment of their feelings goes a long way towards building the credibility required to resolve the dispute later in the day.
Recently, Dan Ariely, the author of the terrific book Predictably Irrational and the blog of the same name, wrote about “The Long Term Effects Of Short-Term Emotions.” His research in the field of behavioral economics is fascinating, and can be related to the decision-making process of parties in the midst of dispute resolution. He has found that decisions made under the influence of short term emotions are often poorly made, by objective standards. Moreover, such decisions have a powerful, precedent setting effect on all later decisions. What does this mean for mediation?
1. Expressions of emotion can create an ideal environment for bad (i.e., irrational) decision-making. Letting parties “vent” may be valuable for the reasons noted above, but the mediator must recognize that it creates the potential for momentum that may be difficult to keep on the tracks.
2- A decision motivated by negative emotions that creates a dispute will tend to lead to subsequent decisions consistent with the first, long after the initial motivating emotions have subsided. People look for and value consistency in their actions. Revisiting the emotions associated with an early decision will help only if those emotions can be carefully separated from the objective consequences of adhering to that original position.
[Runaway coal train at Fishs Eddy, New York, in the East Branch of the Delaware River, January 1, 1870, Cornell University Library]
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