In many cases, I come to wonder, would the outcome have been different if a particular party was treated any differently before litigation.  Recently, a study evaluating the effect of emotions on satisfaction has proven that the way that we say something has as much to do with the reaction as what we say.  Researchers Barclay, Skarlicki and Pugh researched the interaction between the emotional state of workers who had been laid off and their perceived fairness of the process.  They evaluated two different types of emotions:  emotions focused inwardly such as guilt and outward focused emotions such as anger towards others.  As hypothesized, the researchers found that the level of outward emotions and anger was lower when the employees perceived that they were treated fairly.  Interestingly, anger towards unjust treatment was not reduced by monetary compensation. 


This principle is true in many cases in mediation.  Often the perceived unfairness of treatment by one of the parties long ago feeds the emotional anger of people during the mediation.  This is especially true, as the researchers suggest, when the people were in times of vulnerability and uncertainty, such as impending unemployment, problems with health due to injury, or the loss of a loved one. In mediation, often times both sides need and want to have resolution of both the emotional and economic issues. 


Applying the Research


Prior to litigation ever commencing, it is important to understand that, “it’s not what you say, it’s how you say it.” Many cases can be avoided by being aware of the impact of the action on the other person.  Make sure to have good bedside manner.


Second, in litigation, it is helpful to recognize that the people may be holding that perceived injustice for a long time and that they need to be able to let go of that anger before they can address the financial considerations.  Don’t underestimate how much time this can take. 


Creating a fair process in which to resolve the dispute may be extremely valuable in helping the parties come to terms to a financial resolution.


Research Source:   Barclay, L.J, et. Al, 2005, Exploring the Role of Emotions in Injustice Perceptions and Retaliation.  Journal of Applied Psychology90(4) 629-643