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By Steven G. Mehta
In mediations, clients are faced with important decisions throughout the day — what move to make, what response to have, and what to have as the bottom line? Many times, you will see a person who can normally make good decisions but is paralyzed in the mediation. Why? Well recent research demonstrates what we may have already believed: that cognitive stress can substantially affect a logical approach to decision making.
Psychologists Jane Raymond and Jennifer L. O’Brien of Bangor University in the United Kingdom wanted to investigate how cognitive stress affects rational decision making. Their findings were reported in the current issue of Psychological Science, a journal of the Association for Psychological Science. The study reveals that distractions and other stressors significantly impact decision making. When volunteers were not distracted or under stress, they tended to excel at making decisions that had been highly predictive of either winning or losing outcomes. However, when they were distracted, they were not as effective in making appropriate decisions.
authors note that when we are stressed and need to make a decision, we are “more likely to bear in mind things that have been rewarding and to overlook information predicting negative outcomes.” In other words, these findings indicate that irrational biases, which favor previous rewards, may guide our behavior during times of stress.
The implication is that in mediation people might revert to decision making that they previously found to be effective rather than based upon fact or information. Further as noted above the decision is biased towards favorable outcomes. As such, it is important to make sure that the decision you are helping the party make be considered as positive as possible in order to factor in the bias of decision making when under stress.
Adapted from materials provided by Association for Psychological Science.
Association for Psychological Science (2009, September 16). Under Pressure: The Impact Of Stress On Decision Making.
By Steven G. Mehta
Recently, I read a blog post regarding attorneys coercing their clients to settle a case. On Victoria Pynchon’s blog, Settle It Now. This made me think about the issue of buyers remorse that can happen in mediation and how to avoid the issue.
This is an important issue there are known cases of clients suing attorneys (or the other side) after having settled the case. For example, Joe Francis of Girls Gone Wild sued to rescind the settlement.
As a litigator and as a mediator I have heard comments that have made me feel that the client had buyer’s remorse in some way or other. Sometimes, a client will ask, “did I do the right thing?” or “did I get a good deal?” Other times, they will outright say, “I shouldn’t have done the deal.”
The reality is that buyer’s remorse happens in some level in many aspects of life. Purchase of personal items, electronics, home sales, and the list goes on. I recently bought a camera and had buyer’s remorse the moment I was using the product. Did I pay too much? Should I have bought a lesser camera that cost less?
First, why does it occur? According to research, people are poor at predicting the true state of their emotions. Second, buyers’ remorse attaches to people’s self confidence about the decision. Often times, mediation and litigation is a foreign environment and the clients fear that they may have made the wrong decision because of lack of knowledge. Buyer’s remorse can also be caused or increased by worrying that other people may later question the settlement and claim to know better alternatives. Another common cause of buyer’s remorse comes from talking to family members and friends, who may mean well, but aren’t happy with the settlement. Often these people will say things like I could have gotten better, or John got double that amount for his case.
It is important to understand that buyer’s remorse is an emotional response to a serious decision.
Steps to Take To Help Eliminate Buyer’s Remorse.
First, in these difficult situations, everyone has a lack of confidence. Now add on whatever insecurities the person generally feels. That is the recipe for Buyer’s Remorse. However, buyer’s remorse can be considered a symptom of the need for confirmation – confirmation that the person made a good decision. In mediation, invariably you will see people who need confirmation that the decision they made is a good one. In fact, I have had people directly ask me, “have I made a good decision?”
Once that person receives some conformation from others, the buyers remorse disappears. As such, after the deal has been put to paper, you can help boost the client’s confidence by giving them confirmation that the deal is a good one. You can’t control what other people will say about the deal, but you can control what you say.
Here are some suggestions to help give your client confidence.
First, build trust and rapport with the client from early on in your relationship. This way when it comes time to making the decision, you already have their confidence.
Second, do not start confirming the sale until the deal is finalized. If you confirm too quickly, the client will only consider that as pressure from you to make the deal.
Third, personalize your confirmation to you. Don’t just say, “you got a good deal.” (Although that is not a bad start) Say “I know that you got a good deal.” Personalizing the comment to you identifies your confidence into the deal.
Fourth, confirm the benefits of the deal. “Now you don’t have to have your deposition taken.” “You don’t have to worry about the trial during the holidays.” Reinforce the decision with the benefits of the settlement that makes it a good decision.
Fifth, congratulate the person on a deal. Have you ever gone to an auction? After the buyer has bid up an extraordinary price for the piece of art, the seller congratulates the bidder and everyone applauses. This is simply a tool to help avoid buyer’s remorse. Do the same thing after the settlement. Call the person a few days later, and congratulate them again. Your call can often eliminate buyer’s remorse before it gets a foothold in the client’s mind.
Sixth, ask the client for a favor such as asking them to pop by when they are in the neighborhood. By doing so, you have also implicitly stated that you are confident in the decision and that you are not afraid of meeting them after deal is done.
Finally, let the client know that she is not the only person to have feelings of buyer’s remorse. Simply letting her know that she is not alone will help her feeling of remorse. She will know that this feeling is normal. Explain that her feelings are so common that there is a name for that moment: It’s called Buyer’s Remorse.
Buyer’s Remorse is a common feeling in mediations. The more you prepare your client for the feeling, the better you will have a chance to avoid the legal implications of having a client unhappy with a settlement.
By Steven G. Mehta
For many years now, my good friends Gig Kyriacou and Myer Sankary and I have presented a seminar at various conventions regarding mediation techniques identified through the movies. One movie that never ceases to entertain the audience and provide meaningful tips for negotiators is the movie “Wedding Crashers.”
Wedding Crashers stars Vince Vaughn and Owen Wilson who are mediators that like crashing weddings for fun and to attract women. The beginning scene is comedic look at mediation. The scene provides interesting food for thought for negotiators as well as mediators. The following is the beginning scene from the movie “Wedding Crashers.”
There are several lessons from Wedding Crashers.
Maintain A Positive Attitude
The mediators maintained a positive attitude throughout the entire process. Even though everything was crashing down upon them, they refused to fall victim to the negativity. Each party to the mediation is negative towards the other person, dismissive, hostile, and volatile. Instead of getting into that feeling on either side, the mediators continued to maintain an upbeat attitude and tone to steer the parties through their difficult times.
Often, negotiations can live or die based upon the attitude of the parties. The emotions of one person in a mediation or negotiation can change or affect the emotions of the other people. As such, it is important that as a negotiator or mediator, you must be the rock that is the foundation for the peacemaking process.
Even in the face of comments regarding the lack of progress, the mediators’ response was to identify the areas in which they had made progress even if those areas were small. The mediators were effective in focusing the parties on the positive aspects as opposed to the negative aspects. As you recall, John’s response was to say,“you want to hear the crazy thing. I know it doesn’t feel like it, but we’re making progress!”
Refocus the negative to another topic
One technique that was used in the mediation was to change the subject when things got too hot to handle. For example, one of the mediators changed the subject of the negative message to a positive message by asking the question “You didn’t always hate each other.” This question in the mediation allows one of the parties to talk about the wedding day and the food at the wedding such as crab cakes. In addition, it allowed the parties to think about something that they had in common – the wedding. This change in topic allowed the mediators to work on refocusing the negative emotions into either neutral or positive emotions.
This technique is a very powerful technique especially in emotional cases. Often, parties will continue to cycle on the negative emotion until some external force helps them to break the vicious cycle. Recently, I mediated a case where a person was consistently focused on the death of her sibling. After she had cycled on this emotion for a long time, I change the topic completely by talking about lunch and different food items. This minor change in topic allowed her an opportunity to refocus away from the death of her sister for a brief moment. This temporary hold in the emotions also allowed her mind to adjust to the new information that had been previously given to her about the merits of her case.
After lunch arrived, I asked her to continue with her discussion and she indicated that she had said all she needed to have said. We then focused on working on resolution of the problem before us as opposed to the underlying death of her sister.
Create a Common Enemy
Research has shown that people who are enemies or opponents in something will join together if there can unite against 
a common enemy. There are many quotes about a common enemy. My favorite quote from my favorite story, Harry Potter and the Sorcerer’s Stone, is the following: “There are some things you can’t share without ending up liking each other, and knocking out a twelve-foot mountain troll is one of them.” The same is true in conflicts such as negotiations or mediations.
Here, the mediators found a common enemy: The institution of marriage. If you don’t have a specific entity to make as a common enemy find something else. In litigation, the fact that the jury can be fickle and biased may be the enemy. This technique can be very helpful in giving the parties something to work towards.
These are only a few of the points discovered from this scene. There are other negotiating points in this scene. Which points do you see?
By Steven G. Mehta
Worrying About Getting Business During Mediation
Once you are in a mediation, you cannot worry about what your actions will do to future business. You have to be in the present, here and now. Focus on what needs to be done to get the case settled and not on how will you be perceived if you did a specific action. Too many people focus on trying to get business rather than focusing on doing a quality job. The best way to get business is to do a good job, letting your work speak for itself.
Failing to Recognize How Time is Moving in the Other Room
On many occasions, as a mediator, you will find yourself in one room discussing the case extensively with the party or the attorney. Soon you find that 20 minutes has expired; then 30 minutes; now 45 minutes is gone by and yet you have still not gone to the other room. Although you are working, the other side doesn’t know what you were doing during this time period.
As a result, you have to make sure that you were able to manage time effectively. There are several things that need to be done regarding time management in mediation. First, you need to be able to recognize how much time to spend with a particular party. In the scenario above, you have to try to make sure that you keep up a reasonable tempo so that one side does not get anxious. If possible, try to make sure that you don’t spend too much time in one room without addressing the concerns of the other room. Second, if you’re not able to keep the pace of the mediation reasonably moving, then try to let the other side know why the pace has slowed down substantially. For example, if you’ve spent an hour in one room, let the other side know that you were facing some difficult issues and that is why it took so long. Sometimes, you will be kicked out of a room and are waiting on one side or another. If you can, take that time, to touch base with the other side and let them know that you are working on the matter.
People in mediation understand that there will be substantial time delays. However, by simply letting them know what you are doing, you will avoid having the parties arriving at different conclusions about what you’re doing with your time.
Judging the Results of the Mediation Based on the Papers Alone
This next one is submitted by KatriK on Twitter, who states “Our biggest problem is that some mediators read papers and decide then if there is going to be consiliation or not.” If the mediator is going to decide the case without having heard the case or the viewpoints, how can that be considered mediation. That sounds like arbitration. It is essential for the mediator to have an open mind. In one case, I read from one side that the other side had committed (and convicted of) perjury to assist her husband with an alibi for a home invasion rape trial. There were other nasty statements that were made about that party. I made a conscious decision to not pre-judge her and to listen to her concerns. By doing as much, she and her family thanked me for “listening” and “understanding” their concerns. She explained that she knew she made mistakes in the past, but that didn’t change what happened here. Not prejudging helped her to build trust in the process which helped to settle the case.
Never Ask to Meet a Lawyer Outside the Presence of His or Her Client, Without First Getting Permission From the Client
On many occasions, mediators forget that they are not always dealing with people who are professionals to the mediation process. Your mediation is often the first exposure for many clients to the legal process in the mediation process. They do not know what is customary for normal circumstances. However, they do know what they feel and how they feel about any particular situation.
Although the attorneys may have met with you on prior mediations, or it may be customary for you to meet with the attorneys separately, the clients often do not know that. In fact, many clients are suspicious of attorneys and the legal process. Rather than risk offending the client regarding why you need to meet with the attorneys separately, simply ask the client’s permission and explain why you need to have a private conference with the attorney.
Mistakes are inevitable. We have a few choices in mediation; one is to willingly make the mistakes and learn from them; the other is to fight the mistakes and remain stagnant. Thomas Edison didn’t make 1,000 mistakes before inventing the light bulb. He found 1,000 ways how not to make a light bulb.
