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By Steven G. Mehta
One of the things that I hear often in mediation is the concept that the case is about money. Although the answer to the issue does depend on what perspective, new research helps to address how to possibly try to be satisfied with the results in mediation. One study found that people who are directed to think about time plan to spend more of their time with the people in their lives while people who think about money fill their schedules with work.
Cassie Mogilner of the University of Pennsylvania designed an experiment in which participants concentrated on money or time. Those who had been asked to think about time planned to spend more time socializing; Those who’d 
been primed to think about money planned to spend more time working. Interestingly, when this study was conducted on lower income people, the same effect occurred when thinking about time, but not when it was about money.
In mediation, unfortunately, the conversation often gets focused on money. The lawyers focus on it and consequently the parties do so also. However, it might be worthwhile to try and redirect some of the parties’ thoughts on what they will do with their time when the litigation is over. Asking them to consider the impact on the existing relationships might also help to change the focus subtly from money to relationships. “There is so much discussion and focus on money, optimal ways to spend and save it, and the relationship between money and happiness,” says Mogilner. “We’re often ignoring the ultimately more important resource, which is time.”
You cannot take the money issues out of a litigated mediation, but you can help to change the focus so that the money is not the sole focus.
Research Source: Association for Psychological Science (2010, October 8). Thoughts about time inspire people to socialize. ScienceDaily. Retrieved October 9,
By Steven G. Mehta
With Daylight Savings Time going into effect, and with me getting up in a terrible mood this morning, and then ending up messing up the timing and location of a meeting that I was supposed to attend, I started to think about the effect Daylight Savings Time has on conflict.
While it appears that there is no research designed to address this issue specifically, there is some indirect research that Daylight Savings Time can have an effect on our ability to handle conflict effectively.
First, there is a conflicting body of research on the effect of DST and injuries. According to one article, a 1996 study in the New England Journal of Medicine claimed an 8 percent jump in traffic accidents on the Monday after the switch, but a follow-up report two years later suggested that figure was lower. In 2000, a group of Swedish researchers concluded that the change did not have any significant effects on the number of crashes in that country. Jump forward to 2009, though, and Michigan State University psychologists Christopher Barnes and David Wagner report that there are more workplace injuries on the Mondays following that lost hour.
According to Till Roenneberg, a chronobiologist at the University of Munich, our internal clocks set themselves according to the environment. So, our natural chronometers keep time with the sun, not the alarm clocks sitting by our beds, and this is the main reason it is hard for us to adjust.
According to Roenneberg DST throws our internal system out of balance. When we move back our clocks, Roenneberg says: “The social times change but the sun time does not.” This causes our system to feel sleep deprivation.
The effects of this deprivation are that people tend to lag in the afternoon. Further, this change affects people who are “afternoon” people more as opposed to “morning” people.
According to one website dedicated to sleep deprivation issues,
Sleep deprivation can have serious effects on your health in the form of physical and mental impairments. Inadequate rest impairs our ability to think, handle stress, maintain a healthy immune system and moderate our emotions.
Some of the symptoms of even minor sleep deprivation include irritability, easier to get angry, lack of concentration, and forgetfulness.
The problem is that these symptoms can be exhibited by everyone during this time and can these effects can easily last for at least a week, if not up to a month after the time change.
How do we combat against this phenomenon during mediation or conflict resolution?
First, you should try to make sure that you go to bed earlier for the first week after the change to make sure that you get adequate rest. You don’t want to be the one to instigate some conflict based on your “crankiness.” In addition, as a mediator or attorney representing a party, it is important that you don’t get sucked up into some conflict or head down an emotional path simply because you weren’t thinking straight.
Second, press the pause button on your reactions to other people. If someone displays negative emotions towards you, simply slow down your reaction and press the pause button. Take a few moments to think about your reaction rather than having an automatic reaction.
Third, as has been indicated in prior posts, (see The Raisin and Negotiator,) being mindful before you enter the mediation can be very powerful in minimizing the negative emotions and helping prevent a negative response to a negative stimulant.
Hopefully, you can avoid major conflicts. But if you can’t, maybe you might give the other person a little slack. Who knows, you may need that slack in the next few days yourself?
By Steven G. Mehta
A new study published in Economic Inquiry addresses the question: “If we can make a deal, why fight?” The authors conclude that a combination of each side recognizing the probable outcome and both sides considering the use of time similarily allow a potential loser of a conflict to use small concessions to successfully appease an expected winner. Given those conditions, small negotiated concessions can work, but in situations where clear and specific inequities exist, small concessions to avoid a fight won’t work.
The article offers support for their theory that “in the baseline case of common beliefs and identical time preferences, if the size of indivisibility is sufficiently small, conflict can always be avoided by a series of small concessions, with both parties recognizing that there will be additional concessions in the future.”
According to the research, both sides to the conflict must recognize the relative strengths of their positions and conflict can only be avoided when both parties agree that peace is preferable. However, if the perceived winner is more impatient than a likely loser, then this factor is a major consideration in talks failing and conflict being inevitable.
Although this research is not in the field of mediation, some of this research can be translated to litigation. First, the research supports the concept of ripeness for mediation. See my prior article on ripeness. There is a time that is better for mediation than others. Both sides must recognize their strengths and weaknesses, and must be willing to consider peace.
Second, how each side views time is also important to resolution. Recently, I had a mediation that nearly failed because of time perception disparities. The defense had a very strong case to demonstrate that there was limited to no liability. The plaintiff, however, was extremely emotional about the underlying facts, regardless of whether liability was good or bad. As the mediation progressed, the defense got increasingly more impatient with the progress of the mediation because the defense could not understand why the plaintiff wasn’t making more concessions and would not accede to what the defendants thought was a fair offer.
Each side had a different perception of time: Plaintiff believed that the process was about her and her emotions. She was not looking at the clock. She was not paying hourly to her attorney. Defense on the other hand felt that if the mediation was not going to work, why waste time when they would eventually win at trial. Only after both sides could understand the other’s perception of time, then the case became ready to resolve.
- · Practice Point — In all aspects of litigation and life, people will have different times in which they can handle a certain matter. No two people react to the same scenario in the exact same way. If you are finding yourself stressed because of time constraints, step back and pause to consider why the time constraints are important. Are the time constraints necessary? Consider whether the other side has the same perceptions as you and whether they perceive time in the same way as you. If they don’t, and if time is critical, consider letting the other side know of your time constraints. Often a little patience can go a long way.
Reference:
- Jack Hirshleifer, Michele Boldrin, David K. Levine. The Slippery Slope Of Concession. Economic Inquiry, Volume 47 Issue 2 , Pages 197 – 393 (April 2009) DOI: 10.1111/j.1465-7295.2008.00154.x
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