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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.

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By Steven G. MehtaSteve Mehta

Recently, I’ve been investigating the issues of the different parties perceptions in litigation and mediation. Oftentimes, you will hear phrases such as “this isn’t a lottery,” or “it’s really about the compensation to the family.” On many occasions, the attorneys for both sides will express that they believe the case is about money at the end of the day. However, during many mediations, I have felt that from the plaintiff/claimant’s perspective, it is often more about other things than the money.

In further pursuit of this investigation, I’ve started to read a book entitled Perceptions In Litigation And Mediation: Lawyers, Defendants, Plaintiffs, And Gender Parties by Tamara Relis.  This book conducts independent research as well as compiling the prior research in this field.

One of the interesting results of this research is that the aims of the claimants in litigation appears to be substantially different than what the attorneys on both sides perceive. It appears that neither the plaintiff nor the defendant’s attorneys are fully aware of the true nature of the aims and desires of the plaintiffs. Moreover, somewhere along the line, however, it is possible that the claimant’s interests may have changed.

graph

The following charts summarize some interesting findings regarding perceptions of the plaintiff’s litigation aims in medical malpractice cases.  This first chart describes the opinions of physician attorneys as to the motivation of plaintiffs in bringing a lawsuit  As you can see, most physician’s attorneys believe that money is the primary motivating factor for bringing a lawsuit.

The Second chartgraph (2) asks the same question, but this time to lawyers representing hospitals in medical malpractice case.  There is some difference between the perceptions of the physician and hospital lawyers.  Interestingly, the hospital lawyers looked at other motivating factors that the physician lawyers did not consider.  Moreover, less hospital lawyers focused on money as being the sole consideration.

When Plaintiff lawyers were polled, an even further difference is seen as to the perceptions of what the plaintiffs wanted out of litigation.  This may be possible because the plaintiffs lawyers may have a closer connection to their clients than the defense attorneys.  It is also interesting to note that no matter what side, each of the attorneys (regardless of side) considered monetary goals as being one of the primary goals of the plaintiffs.

graph (3)

Finally, when the claimants or plaintiffs were polled, they responded very differently than what the attorneys believed.  As you can see from the chart, only 24% of the claimants or plaintiffs polled considered money to be the primary or sole focus of why they brought  a lawsuit.  It is also interesting to note that out of all of the  attorneys, only 17% of the plaintiff’s lawyers (and no defense attorneys) mentioned that plaintiffs wanted defendants to admit fault or accept responsibility.  Whereas, on the other hand, 59% of claimants stated that they wanted the defendants to admit fault or accept responsibility.  Similarly, very few attorneys identified the issue of never wanting the incident to happen again or obtaining answers or explanations as a reason for litigation. Yet both of those categories also were stated in more than 50% of the claimants’ responses. As another example of a disconnect between the attorneys’ and the claimants, not a single physician or hospital lawyer ever mentioned the issue of an apology and only 17% of the plaintiff’s lawyers made such mention. Yet an apology was mentioned by 41% of the claimants.

graph (4)In analyzing this data, Ms. Relis also made some interesting observations. She stated as follows:

“Plaintiffs’ lengthy accounts of their motives and objectives for litigation demonstrated that their extralegal aims of principle remained important objects of plaintiffs’ desires throughout the processing of their cases. This was notwithstanding their lawyers’ delineations of what the litigation system could provide, the legal reformulation of plaintiffs’ cases, or the passage of time.”

Other research in this field has also found similar results. For example, in 1995 a survey was done of plaintiffs in Britain which found that “prevention of similar occurrences, physician acknowledgment, admissions that something had gone wrong, and answers were objectives most often rated as “very important.” Likewise, another British survey of plaintiffs found that only 17% of claimants described compensation as a reason for suing.

One study in Florida of 127 perinatal injury plaintiffs found that money was only an objective and 24% of the cases.

Other research not involving medical malpractice have also mirrored similar results. For example, a 1998 study of sexual assault claimants found that “most claimants discussed therapeutic as opposed to monetary goals. They frequently wanted to be heard; they wanted validations of their experiences, public declarations of the wrong, closure, retribution, apology, and to deter similar events. One study of small claims courts has also demonstrated that litigation may be used to express feelings, to let off steam, or for moral vindication and may have a symbolic or psychological value.

One set of researchers, Merry and Silbey, argued based upon their research “that it is misguided to assume that plaintiffs choose various paths on the basis of rational calculation of stakes, costs, and probable results alone, as to this must be added the noneconomic reasons for litigating, which include respectability, responsibility and being a good individual.”  In fact, according to some researchers, “the fact that the formal justice system does not deal with litigants’ perceived requirements and real objectives, including the nonmonetary agendas, has been found to be a major reason for litigants’ dissatisfaction” with litigation.

Ms. relis also observes that:

“Some plaintiffs may have sought compensation as a signal of being heard and acknowledged or as a deterrent to future conduct. Yet, through litigation, these principles were ultimately manifested in money alone, in a system that was repeatedly described them as one which could only provide financial compensation for their harm. Consequently, plaintiffs who also mentioned pecuniary recompense when speaking of their litigation aims at the same time and vehemently stressed, “it’s not about the money!”

Ms. relis concludes this chapter in her book by indicating that plaintiffs’ primary concerns in litigation were non-monetary. However, the civil litigation system did not provide for remedies relating to the nonmonetary needs and issues. Further, lawyers conditioned their clients on the realities of the legal system preparing them to expect only money instead of nonmonetary issues.  As a result of that conditioning, plaintiffs lawyers may also serve to cement their own convictions that financial compensation is either entirely or primarily with their clients seek. In turn, this may affect how the plaintiffs lawyers present the case to the opposite side.

Ms. relis concluded this chapter by stating “Thus, a paradox of legal entitlement is that plaintiffs who engage the power of the legal system lose control of their disputes to that same power as their cases are reformulated, reinterpreted, and renamed, altering meaning and also consequences.”

This research has several ramifications in the mediation and negotiation context. First, it is important for all attorneys to understand that the monetary issues (although important to the defendants) are not as important to the plaintiffs. However, the monetary issues will gain importance as a symbolic statement that reflects the other nonmonetary concerns that were raised by plaintiffs. For example, it is common to hear in a mediation that the amount of money symbolizes the extent that the defendant has taken responsibility for its actions. It would be helpful for attorneys to try to evaluate how to separate monetary issues from the nonmonetary issues to see if there is an opportunity for settlement resolution.

This is not to say that monetary issues will not be relevant in the negotiation or mediation. They will continue to maintain relevance because the matter is now raised the litigation context. As such, it is important to address both the monetary component of resolution/settlement as well as the nonmonetary component.

By understanding the reasons for why litigation has been brought in the first place, the parties can better understand how to arrive at a resolution of that litigation. Given this research, it might be helpful for attorneys to think about some of the following items as well as monetary issues to assist in the resolution of medical injury case:

  • Will a genuine apology assist in the negotiation efforts?
  • Would it be helpful to have a joint session between the parties where the claimants can ask questions of the defendants?  Would such a meeting require the presence of attorneys?
  • Can better communications between healthcare providers and the claimants (and claimants family) help to avoid litigation?
  • Can the parties discuss how such an incident would be prevented in the future?

I have always believed that nonmonetary issues are often more important to the plaintiffs than the monetary issues. This research has confirmed my beliefs in that regard.  it is also important that the monetary issues are often the most important issues to be insurance defendants representing healthcare providers. As such, there is a great chasm that must be filled during mediation in order to arrive at a resolution of both the defendant’s interests as well as the plaintiff’s interests.  A mediator who handles these disputes must be able to maneuver between these two countervailing interests if he or she wants to have any chance of resolving the dispute.


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