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By Steven G. Mehta

I saw an interesting quote the other day that made me think about how people deal with the past and the future.  The quote by Fulton Oursler, a playwright and editor,  is “Many of us crucify ourselves between two thieves – regret for the past and fear of the future.”   I thought to myself do I have regret for things that happened in the past, and I am happy to say that I don’t feel that I want to wind back the clock and do something over again — except perhaps as to my prior attitude towards the need for exercise.  As to the future, I am always worried about the future — as we all are– and try to not crucify myself over things I can’t control.  But sometimes in that light, I fail.

But this quote also made me think that in mediation it is often the case that people are crucifying themselves between the regret for the past and the fear of the future.  How can we deal with such issues to help people avoid the crucification.  As to regrets, there is a new study that helps a little in dealing with such regrets and it essentially finds that “misery likes company.” The study, conducted by Isabelle Bauer, called Making Up for Lost Opportunities: The Protective Role of Downward Social Comparisons for Coping With Regrets Across Adulthood found that when people consider their regrets and life’s decisions, they feel better about it when they compare those regrets with what they perceive other people to experience will regret.  In addition, comparing regrets with other’s regrets is also good for the health.  Here is the abstract:

Two longitudinal studies showed that if adults confront low opportunities to overcome regrets, downward social comparisons can exert self-protective functions across the adult life span, irrespective of age (Study 1 N = 104 young and older adults, Study 2 N= 51 older adults). Both studies found that downward relative to upward social comparisons were associated with improvements in participants’ positive (but not negative) affect, if they perceived low as opposed to high opportunities to overcome regrets. Moreover, Study 2 showed that this beneficial effect on change in positive affect mediated the experience of fewer cold symptoms over time. Supplemental analyses further indicated that the mechanism linking social comparison processes and opportunities with positive (but not negative) affect was associated with the capacity for goal reengagement. In addition, these analyses showed that the obtained effects were largely unrelated to the severity of regret-related consequences and thus ruled out an alternative explanation of the findings.

So taking this study to its conclusion, we should try to compare the client’s lives with how others who have fared worse might feel.  For example, in an employment case of wrongful termination, perhaps we would discuss how would a person feel if they were wrongfully terminated and had no possible remedy; or how most people feel a sense of loss when they lose a job — regardless of the reason.  For an employer who believes he may have been wrongfully sued, you might compare his history of lawsuits with other companies to demonstrate his track record.  The concept in science is called downward social comparison — looking at other people’s lives to make yourself feel better.

This concept of downward social comparison works in many contexts.  Take for example, your own life.  If you feel disappointed or unhappy about your own life, compare your life to that of a homeless person.  Is your life so bad in that context?  What about the regret that you don’t drive a fancy car?  How do you feel about that regret when you compare it to people in other countries are fighting for their freedom and their food?

The other thing that we have in mediation is the fear of the future.  Part of this fear is because of the fear of the unknown.  One of the fundamental rules in physics applies here:  It takes less energy to keep a an object in motion than it does to start an object in motion.  In mediation, it takes less emotional energy (for right now) to continue the path of litigation than it does to start a completely new path.  We need to address both those concepts to address the fear of the future.  By making the future known — as opposed to unknown– we can start the path to eliminating the fear.  Studies show that people are bad judges of their emotions in the future. They fear a consequence, but when that consequence comes they say, “that wasn’t so bad.”  Helping the clients to understand the concept of certainty can help them move away from their fear of the future.

Second, the clients have to see that if they continue in this path of litigation, although they may expend less emotional energy now, they will expend a ton of emotional energy in the near future.  After grasping that concept, they will be more amenable to change because they realize that in the long run, it will take less energy.

To celebrate the fact that we won’t be captive between our regrets and fear of the future, I thought you might enjoy one of my favorite songs by French artist, Edith Piaf, entitled Non, Je Ne Regrette Rien (No, I don’t regret anything).


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By Steven G. Mehta

I have started to read some material written by Jonah Lehrer, a contributing editor at Wired and author of Proust Was A Neuroscientist and the book How We Decide.  He has found some interesting research on different ways that we make decisions and how we come to such decisions.

In one of his posts on his blog, he discusses the research on how to prevent performance anxiety.  He described a study conducted by Daniel Gucciardi and James Dimmock, psychologists at the University of Western Australia, who studied 20 experienced golfers with handicaps ranging from zero to 12 as to what would help them perform better under pressure.  The researchers set three separate conditions. In the first, the golfers were told to fixate on specific components of their swing, such as “hips” or “straight wrist”. The second condition consisted of the golfers focusing on irrelevant words, such as “blue” or “white”. In the third, the golfers were told to focus on general aspects of their intended movement, or what the psychologists refer to as a “holistic cue word”.  Rather than evaluating their swing, they were told to think of things such as “smooth” or “balanced”.

The researchers found some very interesting results: First, anxiety only interfered with performance when it was combined with self-consciousness. Nervous golfers who thought about the details of their swing hit consistently worse shots. In other words, “thinking too much,” was detrimental to the swing.  The golf swing, like other things, is best performed on autopilot.  This was not a major breakthrough in the research, in my mind.

But the second finding was much more compelling.  The second result was that there was a way to ward off choking. When the expert golfers contemplated a holistic cue word, their performance was no longer affected by anxiety. Because the positive adjectives were vague and generic, those things that they were focusing on didn’t overrule their automatic brain and instinctual performance.

According to Lehrer, “this research suggests that the [motivational] pictures might actually work, at least to the extent they allow us to fixate on the cliche in capital letters. Thinking about “determination” won’t make us more determined, but it just might keep us from choking.”

Now how does a golf swing help us become better mediators or negotiators?  The same concept applies in mediation and negotiation.  Much of what mediators and lawyers do is based on instinct and feel.  There is no set rule of what must be done in a specific circumstance.  There is no rule that when a party screams that they are going to walk unless the other side capitulates that you must use maneuver number 36.

In fact, when I have conversations with many mediators and attorneys regarding mediation, one of the biggest fears is the fear of failure.  Other fears include the fear of making the wrong move, the fear of alienating the other side, the fear of not being liked, the fear that the client won’t do business with you again.  All of those fears help a party to choke in the middle of mediation.

Just as in golf, it won’t be that you don’t do anything at all or not swing, it will be that you make a move or take action that could create impediments to settlement – or in golf, that you might slice the ball, or hit the ball badly.

To take the football analogy, even if there are set plays.  The quarterback on the field must have the flexibility to call an audible.  Mediators and negotiators are calling audibles all day long.  When a party makes such a demand, the mediator cannot respond with a conscious decision process that goes through all the various options and negotiating techniques in the span of half a second.  Something must be done, and it must be done now.  In that same regard, mediators and negotiators are like athletes.  They must have the tools already in place.

Thinking of a specific negotiating strategy, or worrying what the party will think if you do something, or worrying if the party will approve of this action, or worrying if you will settle the case, and many other specific thoughts regarding the mediation process will not help you in the negotiation.  Indeed, even thinking about those actions before hand can be detrimental to the process.

Just as I have written in prior posts about being mindful and clearing your head, it is important to not focus on the specific negotiating strategy or techniques right before a mediation.  Instead, if you focus on abstract ideas such as “peace,” “resolution,” “closure,” and focus on the end result “settlement,” you just may find that you will get better results.

By Steven G. MehtaSteve Mehta

 

I have promised several people to try to come up with a list of mistakes that mediators make.  Rather than create one long list of mistakes I thought it might be better to have a few mistakes at a time so that each mistake can be digested and considered fully.  My view is that I learn more from my mistakes than from my successes. 

Before we address the mistakes made by mediators, it is important to understand the context of how mistakes should be viewed.  In that light, the following are comments from many great people regarding mistakes.

 

  • “All men make mistakes, but only wise men learn from their mistakes.”  — Winston Churchill
  • “Experience is the name everyone gives to their mistakes.” — Oscar Wilde
  • “If you’re not making mistakes, then you’re not doing anything. I’m positive that a doer makes mistakes.” — John Wooden
  • “After making a mistake or suffering a misfortune, the man of genius always gets back on his feet.”  — Napoléon Bonaparte
  • “The greatest mistake you can make in life is to be continually fearing you will make one.” —  Elbert Hubbard
  • “It is necessary for you to learn from others’ mistakes. You will not live long enough to make them all yourself.” — H. G. Rickover
  • “A life spent making mistakes is not only more honorable, but more useful than a life spent doing nothing.” — George Bernard Shaw
  • “Creativity is allowing yourself to make mistakes. Art is knowing which ones to keep.” Scott Adams

 

It is obvious to see that mistakes are not only necessary to success, but they are at the very foundation of our existence.  From mistakes come the greatest rewards.  The mistakes are in no particular order and are by no means are exlusive list.  Eventually, I will compile a complete list of mistakes.   But for now, let’s start with a few.

 

Fear of Failure

 

            The fear of failure and the fear of making mistakes is probably one of the biggest mistakes made by mediators.  Many mediators feel that they have to be perfect; that they aren’t allowed to make mistakes in mediation; and that if they make a mistake during mediation, that it should be covered up.  Usually this feeling is created because of the fear of failure.  Namely, that the mediator feels that if a mistake is made, the mediation may fall apart and the case won’t settle.  However, we should not judge mistakes by whether or not the mediation falls apart. 

             Often, you may not be able to control the fact that the mediation falls apart.  However, if you are governed by fear of having the mediation fall apart, you will not be open to the possible new ideas that may be available to try to resolve the case.

             Although there can be a certain pattern to mediations, no mediation is exactly alike.  Each time you enter into a mediation, the mediation requires different tools and ideas.  Being afraid to try new ideas because you are afraid that you may fail with those ideas is the deathblow to any successful mediation.  I’ve had many mediations where a possible creative solution failed.  However, those failed possible solutions often opened the door to the actual solution to the case.

             Early in my career as a mediator, I was afraid of making mistakes.  Some of the reasons why I was afraid was because I was concerned that if I made a mistake the parties would not come back to me. In addition, I was afraid because I thought that the attorneys would recognize my idea as a mistake and then would judge me negatively. What I learned from those mistakes was that most mistakes that you make are only mistakes in your mind.  Often, the parties and their attorneys do not believe that those failed ideas are mistakes.  It is important to understand that the parties and attorneys view you as the expert in mediation. They view your mistake as merely a tool in your arsenal of techniques that failed. They won’t think it’s a mistake unless you let them know.

             Ultimately, to be an effective mediator you must be willing to try new things.  We all talk about solutions outside of the box.  However, that phrase means that we need to be willing to try things that don’t fit the mold.  On many occasions those ideas will fail.  But rest assured, that idea failing does not mean that the mediation will fail. It only gets you closer to resolution.

Giving Up

This next mistake was provided by @abegler from my twitter network.  She states that the ABA report indicates that advocates want the mediator to be persistent and not ‘give up’ during challenging junctures.  This is critical to success of the mediation.  Persistence, according a recent study done on mediation and listed in my prior post on the key to success in mediation is a vital part of a mediator’s success.  In addition, as noted, the advocates want you to persist, even if they say otherwise.

Fear of the unknown

Fear of the unknown

Fear or No Fear affects Deal or No Deal
 
 

 

 

 Often, fear can be a significant motivating factor in negotiations.  People fear the unknown; they fear losing; they fear having a large verdict.  All of these fears can help the parties to have realistic expectations of the negotiation.  Indeed, often when a party does not fear the future result, such lack of fear can be a recipe for a failed negotiation.    

Recently, however, researchers have discovered that there are other things that people fear that is beyond what is normally expected.    Researchers have discovered that people are often motivated by fear of regret.  The concept is often called “anticipatory regret.” In four separate studies researchers tested whether and how anticipatory regret affected things like escalating a position or commitment to a position.  The researchers found that people desire to minimize future regret and that such a desire significantly motivated the decisions they made in escalating situations. 

Other researchers have found that past regret over a decision will also affect the decision in the future and the commitment to such a choice.  This research demonstrates that when people persist in a failing course of action, their decisions are formed by what considering what happened in the past and what they fear could happen in the future.   One of those future fears is the fear of future emotional pain. 

There are several ways this “anticipatory regret” research can be applied in negotiations.  First, when preparing for mediation, you should try to consider what a person may regret in the future and what value that might have on someone.  The more value that a choice may have, the more that a person may regret it, and conversely, the less the value of the choice, the less they would regret it.  

Second, think about how you can best use anticipatory regret to your advantage.  NBC game show Deal or No Deal plays on the issue of anticipatory regret.  It shows the participants what they could get.  By knowing whether the participants have a possible $1,000,000 case or a $1 case substantially affects their decision.  They are, in part, motivated by future regret:  Regret, that they might end up with the case that is $1, regret that they didn’t strive to get the million, and then regret that they may go home with no “real money” in pocket.  It is no coincidence that for several years that the game show has been in existence, no one has won the million dollars until recently.  

Lawsuits are similar to the game show.  The parties can be faced with anticipatory regret on many levels.  Will they do better at trial?  Will they be exposed to any risk by going to trial?  Will they have given up their one chance to be heard?  By thinking about these options further before negotiating, you can be better prepared to respond to issues of anticipatory regret and to persuade the other side to pay more attention to your position by using the concept of anticipatory regret. 

Further, you can then prepare your offers to best take advantage of the other person’s anticipatory regret. 

Research Source: 
 
 

  

Wong, K.F.E & Kwong, J.Y.Y, The Role of anticipated regret in escalation commitment, Journal of applied Pyschology 92(2) 545-554

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