By Steven G. MehtaSteve Mehta

 

Mediator Jeff  has a great blog post on entrapment in mediation.  It addresses how people feel that they are trapped into one course of action and can’t get out; whether that course of action is continuing with litigation or continuing in a relationship.

As Jeff explains it, “Another way I like to explain the ADR version of entrapment is the party being guilty of having tunnel vision. All the party sees is one ‘route’ for them to take, which is the currently destructive one they are on. The best example is the person involved in litigation, and wanting to continue despite the costs rising, time lost preparing instead of being dedicating to other projects, and the decimating of what was once possibly a professional, multi-beneficial relationship with the other party.”

Jeff discusses the fact that people need to see options.  I agree.  Often the choices that the parties have are not appealing at all and that is what helps them to get into the mindset of having no choices.  After all,  if a person has a choice of going to trial and probably losing or settling for something he hates and definitely losing (at least in his mind) the choice of a probable outcome is probably easier than accepting the outcome voluntarily.

I think, in additon to giving choices, the parties need to be able to reframe the solutions.  For example, in a mediation recently, the plaintiff had the choice of probably losing the case (80% or more) or taking a deminimus amount of money that didn’t (according to her) address the injury that she had.  Part of the solution was to allow her to feel that the deminimus amount of money was a victory and not a loss.  Second, when framing the question as would you rather get $-5,000 after all costs or would you rather recover $2,000 after all costs.  Any sane person would say the $2,000 choice.

In other cases people need to frame things to a perspective that they can understand.  Most people don’t truly understand the consequences of going to trial.  By reframing the discussion into an analogy or metaphor that they can understand it helps them to reframe the discussion to something that they can understand.

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