This article was published in the Detroit Legal News on March 2, 2021.
In last month’s ADR Spotlight my PREMI colleague, Laura Athens, authored an incredibly insightful and important article on the psychology of conflict and how litigants process information when in conflict. As this discussion goes to the heart of the mediation process, a continuation of this discussion is in order.
Mediators and professional negotiators have long known:
The strategies and practices neutrals pursue to meet the psychological behaviors of people in conflict are central to an understanding of the effectiveness of mediation and various negotiation techniques utilized by mediators in helping parties resolve their dispute. As noted by Ms. Athens, while many users of mediation have a tendency to dismiss the “feel good” or “soft side” of mediation as impediments to the goal of resolving disputes as quickly as possible, and become impatient with the processes employed by mediators, “hard” neuroscience,” and cognitive behavioral studies of people in conflict underscore the dangers in attempting of just “getting to the bottom line” too quickly.
Psychological studies underscore that any number of cognitive reactions can be used in both proactive and reactive ways. Negotiations and mediations require, inter alia, the mediator and the attorney to evaluate the reasons a client might be resistant to or apprehensive with the change a settlement may cause. They need to be sensitive in recognizing that a client’s reluctance to resolve a dispute may be driven by one (or a combination) of five distinct motives: 1) fear of change; 2) status quo bias; 3) risk aversion; 4) high uncertainty avoidance; 5) situational distrust. It is essential to have the emotional intelligence to distinguish the differences as each requires unique approaches and negotiation strategies.
The research indicates the human brain has various centers that control and drive different human activities and thinking: the triune brain (the first brain the amygdala; the second brain the mid brain; and the third brain the frontal cortex).
During mediation and the negotiation processes, all of the dynamics of communication, perception, cognition, fear, flight or fight, biases, etc., are grounded on processes in the brain and how the brain deals with conflict and human cognition. Individuals under pressure tend to adopt an adversarial or binary approach to problem-solving. The reptilian brain, (the amygdala or first brain in the above graphic) with its adrenalin-driven protective flight, fight, or freeze response, that evolved to protect our ancestors from physical threats, is still active and thriving in our brains today and often reacts in predictable ways. Indeed, virtually all personal injury lawyers are familiar with the term “reptilian theory” as it has been the basis for the formulation of litigation tactics that allegedly have particular appeal to the fears of typical jurors. While one might question the allegedly irrational positions that parties might take during conflict resolution, it is often more helpful to evaluate whether the opposing party is just being human in predictable ways (rather than irrational) and develop targeted negotiation strategies to minimize the typical psychological impediments to reaching a resolution.
A well-documented predictable attribute of the brain in conflict (related to our fight or flight instincts governed by the amygdala or first brain), which we all share to one degree or another, is “confirmation bias.” Confirmation bias is the natural tendency to search for data that confirms our beliefs, as opposed to looking for data that might challenge those beliefs. Indeed, confirmation bias is one of the brain’s natural ways to catalog and remember (obviously in a selective manner) all the information that floods us every day. As observed by Warren Buffet, “What the human being is best at doing is interpreting all new information so that their prior conclusions remain intact.” For example, how many times have attorneys and clients during a mediation accused their negotiating partners of suffering from “selective memory?” or “refusing to acknowledge” the significance of facts contrary to their legal and factual positions. Rather than believing that one is engaging in dishonest behavior, it most likely reflects the well-known psychological phenomenon that all of us engage in – confirmation bias.
When the brain is in conflict confirmation bias is not easily managed. In fact, vociferously arguing the facts and law with someone inclined to extreme confirmation bias may generate the “backfire effect” – people will cling even more strongly to their positions when challenged with opposing evidence. After all, who wants to admit they are wrong? One reason mediators use “reality testing,” often in private caucus, is to evaluate the extent of confirmation bias. When it exists, rather than continuing the discussion of who is “right” or “wrong,” mediators will use techniques to move on to the far more productive exercise of cortical brainstorming for possible solutions to the conflict.
Other examples of confirmation bias involve the discussions mediators often conduct when asked to convey an offer (particularly if it is the first economic offer or response). Think about all the times you have participated in a mediation as an attorney when your client’s first reaction to an offer was to claim “the other side is not being serious,” or is otherwise “not engaging in good faith negotiations.” Similarly, how many times have you heard from the mediator that the first reaction by your negotiating partner to your first offer was the accusation you are not really interested in settling or are negotiating in bad faith? No better example of confirmation bias is needed – the first offer or demand only confirms the bias the opposing party is not prepared to negotiate in good faith. One of the many strategic issues the counselor and mediator must contemplate is how to best formulate and rationally justify their first offer or response to minimize the adverse and most predictable impact of confirmation bias. When the mediator inquires, “what is the message you desire to send with this offer? or “how do you think the other side will react to this offer?” consider whether this is a potential red flag that your negotiation position is not particularly strategic and will only give rise to counter-productive confirmation bias that will fail to productively advance the settlement objectives of the client.
“Cognitive dissonance” is at play in virtually all mediations. Studies indicate that humans prize harmony between their actions and beliefs. Accordingly, when acting contrary to a strong belief, alarm bells go off in the brain, and we feel discomfort or “dissonance.” To eliminate this tension, an individual can either abandon the belief (which may be difficult if the belief is firmly held) or change the behavior that causes the dissonance. This means that parties who have already invested substantial time and money litigating with an adversary may find it psychologically difficult to accept the weaknesses of their own case, or the strength of their opponent’s position. To avoid the potential cognitive dissonance they may simply resist any resolution of the dispute.
Litigants will also tend to demonize the other side (particularly true in personal injury, employment, partnership dissolutions, family, and probate law) will often question why they would ever want to come to an agreement with a bunch of liars, crooks, or some other negative characterization. Cognitive dissonance is at play when even reasonable offers for a resolution are quickly rejected.
In this context mediators are also very familiar with the concept of “reactive devaluation.” That is, the value of a proposal to resolve a dispute is devalued when presented by the negotiating “adversary” far more than when a neutral party advances the proposal. How many times during a mediation or negotiation have we experienced (either stated or unstated) the perception that “if the other side is offering X then must be good for them; and if it is good for them, X must be bad for me.” While X might be a most reasonable proposal, reactive devaluation may render that proposal unacceptable. One approach a mediator may take to counteract reactive devaluation may involve an exploration of a party’s “checklist” or objectives (other than just monetary) to be accomplished during the course of the mediation. If a party identifies to the mediator several key interests and objectives for the negotiation, both large and small, and the mediator explores with that party proposals that might help achieve those objectives, then a proposal from the other side along the lines desired by that party will not so readily be devalued. It was simply the mediator doing the job of securing the terms that one party wanted. That is why mediators will often deal with the less complicated non-economic issues first and reach agreement on those before moving on to the more complicated matters. The goals are to minimize reactive devaluation and develop positive negotiation momentum. While it may be “all about the money,” there are sound psychological reasons to deal with “small issues” first before moving on to the more problematic aspects of the conflict.
Behavioral science has also taught mediators the importance of “reframing.” Nobel laureate Danile Kahneman and his partner Amos Tversy published a paper in 1979 regarding “loss aversion,” finding that people are more sensitive to loss than to gains. Studies of risk aversion are important for mediators and negotiators to know because “if loss aversion suppresses the ability to imagine reward, it may have additional effects on one’s ability to think creatively about how to meet their desire for reward.” Thus reframing the perceived detriments of the change in the status quo to focus on the potential benefits of such change fosters what all mediators and their attorneys search for – cortical creative problem solving. Thus if business partners are in a dispute and “hate working or dealing with each other,” one reframing exercise might be to ask: “as I understand your position, one of your objectives may be to minimize or eliminate your dealings with your partner; how do you think that might best be accomplished.” Instead of focusing upon the dislike of the business partner, mediator reframing is intended to stimulate the search for solutions through cortical thinking and creativity.
Two other tools sometimes used by mediators during both joint sessions and private caucuses relate to emotions – allowing parties to “vent,” and “looping” (acknowledging the emotions underlying a party’s concerns which is not to be confused with agreeing with the reasons for the emotions). Neuroscience tells us that when someone is angry, it triggers a biological fight or flight response that makes rational choice difficult. As emotions are filters for our perception, the brain’s amygdala interprets our emotions to switch our decision-making process between the reptilian instinctual thinking and higher-level cortical thinking. Thus the mediator develops strategies to assist parties in making the transition to higher-level thinking. During the joint session, and depending upon the circumstances, the mediator may, at some point, summarize the respective positions of the parties, capturing the important points, including the emotional aspects, to ensure the party has been heard. In some instances, the mediator may even be more aggressive than counsel or the clients in summarizing their respective positions (but accurately capture the unstated accusations), which augments the venting of the parties and is also a form of looping. Depending on the circumstances, the technique can help establish that: the mediator “gets it” (i.e., validating the emotion as opposed to agreeing with the reasons for the emotion); there are two sides to every story; prolonged arguing about the correctness of each side’s story is probably futile; and, a greater appreciation for the other side’s position as each client will tend to listen to the other side of the story more intently and calmly when presented by an even-handed neutral.
While most mediators and their counsel understand that “venting” is important to the mediation process and for the parties to have an uninterrupted time to retell events in detail, neuroscience tells us that one’s neurons may actually relive the painful experience associated with the conflict. That is why many mediators will permit an exhaustion of the venting process at the outset of the mediation and discourage retelling of the events that led to the dispute. Instead, the parties will be encouraged to focus and think cortically about the future and how to shape the future to arrive at a more positive outcome. There is a sound, evidence-based reason (i.e., based upon behavioral studies) that mediators will often state something to the effect:
“It is not really my job to determine who was right or wrong but to help you focus on creative solutions to the dispute,” or “we all agreed the goal of the mediation is not an attempt to determine who might be right or wrong – the objective is to determine if a resolution can be reached. Do I have your permission at this time to focus on the possible solutions that will meet your needs? My recollection of the needs you wanted to obtain were (list the needs previously discussed). Is there anything I missed? What are your thoughts on how we can go about achieving those goals for you?”
Mediators will use such strategies and others to harness the emotions at mediation to shift one’s thinking from the amygdala to the cortex of the brain.
The characteristics of brain function may also explain why mediation is sometimes feared or resisted, and why there may be a great reluctance to engage in joint sessions. During joint sessions, the mediator’s ground rules will typically call on the participants to reflectively listen to the opposing party, strive to understand and potentially empathize with the opposing party, and potentially legitimatize the other party’s experiences. While joint sessions, when appropriately managed and orchestrated, can effectively minimize the impact of confirmation bias and other impediments to resolution identified in Ms. Athens’ article and the above, in the hands of some counsel and parties joint sessions can be counter-productive and actually exacerbate the fight-or-flight amygdala paradigm thinking that most parties, including attorneys, bring to the litigation. When evaluating the wisdom of a joint session, consider how best to minimize the adverse consequences of the unproductive biases that are a detriment to the negotiation process. While effective joint sessions can be most helpful, and there are a number of strategies the mediator might suggest for an effective joint session (that cannot readily be duplicated in a caucus only context), when not well done joint sessions can be most inimical to the negotiation process.
Understanding the brain’s impact on conflict resolution does not require a degree in psychology. It does require an appreciation of predictable consequences of the impact of conflict on human behavior, patience and perseverance. While there can be a tendency to become impatient with the processes mediators may employ and believe insufficient progress is being made during the mediation, the mediation process needs to mature over time, and it is not unusual for there to be multiple bargaining rounds in virtually all mediations. While few studies evaluate the number of offers and counteroffers made during the “typical” mediation (a “round” consists of one offer and one response to that offer), the following findings were reported from a review of over 400 mediated employment cases that resulted in a settlement:
Rounds of bargaining No. of Cases
7 or more 64
The average number of negotiating rounds in settled cases in this study was 4.6. In another study, the average number of bargaining rounds in settled cases was 4.86 in mediations involving court-ordered medical malpractice claims. As each mediation is unique, the average number of rounds is instructive only to the extent it underscores the significant range of bargaining rounds that may be required for the successful resolution of any dispute.
It does take time and potentially numerous rounds of bargaining to address the various impediments to a resolution that may be driven more by predictable human behavior rather the terms of a resolution that will ultimately be mutually satisfactory and beneficial to all parties to the dispute. It does take far more time and effort to come to a resolution than it does to come to an impasse. You hired the mediator for process expertise; exercise the patience and persistence to achieve the benefits of that expertise.