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By Steven G. Mehta
Recently I saw an article that addressed the issue of what effect attorneys have on the mediation process. Interestingly, the article discussed the claim that many mediators view attorneys as having a negative impact on the medition. I do not necessarily share that view and believe that it might only apply to consumer mediations as opposed to litigated mediations.
In my view, many attorneys often help the the mediation process by reinforcing the statements made by the mediator. They remain in the room when the mediator leaves and continue to reinforce the process. There are some occasions where an attorney may not want to settle the case. Generally, however, it is not because they simply want to try the case, but instead it is because of a genuine belief that the case is stronger than what is being reflected in the mediation.
In addition, attorneys often help the process by adjusting the expectations before the parties arrive in mediation. To reflect the other view, however, there are occasions when the attorney has inflated the expectations — but usually it is not the attorney inflating expectations; it is the client who had the extreme expectations from the beginning.
On several occasions, the attorney can act as a buffer for information that the client doesn’t want to hear. It can allow the attorney to become an extra level of filter for extremely damaging information that might be difficult for the client to understand.
From an anecdotal perspective, attorneys are generally more helpful to the mediation than not.
The following is a summary of the findings of a recent study related to the impact of attorneys in mediation called The Negative Impact of Attorneys on Mediation Outcomes: A Myth or a Reality? Interestingly, the study finds that the fairness of the process and the usefulness of the mediator is diminished by the attorney’s presence. I believe that this study may be flawed in that it is not clear whether the attorney and mediator are collaborating as partners or as opponents. I find that by making the attorney a partner in the negotiation process and asking them to help you with the clients can be more effective in creating a fair process for the client. Moreover, rather than treating the attorney as an adversary that is not helping the process, I find that making them allies makes the attorneys more collaborative and makes the parties more involved in the process — thus allowing the parties to feel that the process is fair and that the mediation is useful.
|Variable||Mediation without Attorneys||Mediation with Attorneys||Significance Level|
|Initial conflict level||3.42||3.25||0.271|
|Time required to reach an agreement||147.8 minutes||177.5 minutes||0.100|
|Fairness of the process||5.44||5.10||0.155|
|Satisfaction with the agreement||4.72||4.18||0.175|
|Confidence in the agreement||5.36||4.98||0.126|
|Reconciliation of the parties||3.79||2.68||0.002*|
By Steven G. Mehta
Feeling slighted, miffed, or offended can influence how a person responds much more than being the recipient of perceived generosity, even if the net value of the social transaction is the same, the research on reciprocity—giving and taking—shows.
“Negative reciprocity, or taking, escalates,” said Boaz Keysar, Professor of Psychology at the University of Chicago and lead author of the paper “Reciprocity is Not Give and Take: Asymmetric Reciprocity to Positive and Negative Acts,” published in the Psychological Science. The study was based on giving-and-taking games conducted on students and people in downtown Chicago.
The games provided data on how people respond to give-and-take social exchanges.
In one experiment, subjects were divided into two groups and asked to conduct experiments that began in two different ways using money. In the first group, one player learned that another player had $100 and was going to share it. In each situation, the player with the money gave the other player $50. When the roles were reversed, the players who received the $50 received $100 which they could share with the other players. In that exchange, those players gave their partners on average $49.50.
On the other hand, In a companion experiment, the researchers found when they changed the act to taking instead of giving, that the act of taking had a far bigger impact on people’s responses than did the act of sharing. Just as in the first experiment, when the roles were reversed, the first players took back much more, leaving the partners with an average of $42.
Further, as each round continued, each person “taking” became increasingly greedy over repeated exchanges.
The study, which was supported by the National Science Foundation, the National Institute for Mental Health, and the Templeton Foundation, shows various social exchanges differ from those in the marketplace, where goods are bought and sold, Keysar said. “Acts of giving are perceived as more generous in social exchanges than objectively identical acts of taking,” Keysar said. “Taking tends to escalate.”
Applying the Research
Most studies involve positive reciprocity – the giving of gifts in anticipation of coercing positive action from the other person. However, this study demonstrated that negative reciprocity can often be more powerful a motivating factor than positive reciprocity. This directly applies to the litigation negotiation context. Often in litigation, one party feels slighted. Take for example, when an offer is made that is a “highball offer” or “lowball offer,” the other side tends to reciprocate with their own version of an offensive offer. This research demonstrates that unless the cycle is broken, the conflict of negative reciprocity will continue to escalate.
Moreover, people are often also slighted by some action that occurred that instigated the litigation. The same cycle of negative reciprocity and increasing escalation can substantially increase the transaction cost to the litigation by forcing parties to conduct more discovery, more motions, and more time and energy.
It is, therefore, important to break the cycle. According to Louis Kreisberg, professor of sociology, all conflicts will escalate until a point of stalemate, and then only can the parties de-escalate. As such, whether the conflict is the litigation or the negotiating offers, the parties must first come to a stalemate. In negotiations, that means that the parties need to realize that the escalating moves that are “offensive” won’t work. The parties need to realize that they won’t be able to achieve their goal by pursuing the “offensive offers.” But that may take some time. The parties won’t realize that there is a stalemate in the negotiations until several moves have taken place.
Second, after realization of the stalemate, the parties need to have some way to start to de-escalate. Some ways that negotiators and mediators can break the escalation cycle is as follows:
- Make a unilateral gesture of good faith
- Change the focus of the negotiation
- Take the initiative to identify the stalemate — I.e. “we all know that these moves aren’t going to get us anywhere. We need to get to the realistic negotiations, otherwise we will be at a stalemate forever.”
- Make a small gesture whilst indicating a desire to receive such a small gesture also. This is also known as GRIT, an approach developed by Charles Osgood. In his original writing he said it stood for “graduated and reciprocated initiatives in tension reduction; later he simplified this to gradual reduction in tension. The basic idea is that disputant can initiate de-escalation by making a small, unilateral (one-sided) concession to the other side, and at the same time, communicating a desire or even an expectation that this gesture will be matched with an equal response from the opponent. If the opponent does respond positively, the first party can make a second concession, and a “peace spiral” is begun. If the first initiative is ignored, Osgood suggests that it be followed by a second–or even a third–attempt. These concessions should be designed to build trust, but should not be terribly costly (materially or strategically), nor should they suggest weakness. However, they should indicate a willingness to transform the conflict to a more cooperative and less adversarial approach.
- Apologize – whether this is for something substantive or procedural. An apology can help to significantly de-escalate a conflict.
- Take a time out from the negotiations so as not to escalate the conflict.
- Identify that the conflict is escalating and that you do not wish to escalate – State your intention to de-escalate.
- Ask the other side to help you de-escalate. – Former enemies will becomes the greatest of allies when they share the common goal or enemy.
By Steven G. Mehta
There is a saying by an unknown author that “anger is one letter short of danger.” This statement has never been more true than in the context of negotiations and mediations.
Anecdotally, people have expressed significant disapproval of anger and negative emotions during negotiation. Indeed, the usual response to anger is often to dig in heels even further. Nevertheless, there are always people who will feel that using negative emotions will cause the other side to capitulate to their demands. Although on some occasions, the “tantrum” tactic can work, on many occasions, the other side will simply refuse to participate in such conduct. In one mediation, one party attempted to tactically use anger to persuade the other side to take the final offer that he was proposing. Instead of having the desired outcome, the other side outright refused to accept any terms that the other lawyer offered. The negotiation then took an additional few hours to return to a sense of normalcy.
In another case, one party became known early on in the mediation to have a tantrum when things did not go his way. Within a short period of time, the other side became immune to his conduct and would simply wait out the tantrum, much like a parent might do with a petulant child. Needless to say the tantrum tactic was not effective.
Researchers Kopelman, Rosette, & Thompson, have found that tactics of using negative emotions can clearly be detrimental to negotiations. One study tested the influence of strategically displayed emotions, both positive and negative, on the outcome of negotiations. Contrary to popular belief, the study found that the strategic injection of “positive” emotions did not statistically affect the outcome of the negotiations. On the contrary, the introduction of “negative” emotions, such as anger significantly decreased the chance that the other side would accept the offer presented. In addition, when the opposing party was given a chance to counter the offer when negative emotions were introduced, the counters were more extreme and participants were less concerned whether the other side would accept the counter-proposal. Negative emotions clearly affected the outcome of the negotiations.
As a small side note, another study found that people who were optimistic, based upon standard personality tests had a lower risk of dying. Moreover, pessimistic participants were 42% more likely to die of any cause in the long run.
Applying the Research
All of us will have negative emotions at some time. If you have these emotions during a mediation or negotiation, take a time out. Take the time to collect your thoughts and find a way to express your feelings differently.
Use the mediator! Express your negative emotions to the mediator and not the other side. If you don’t have a mediator, then find someone on your team to vent your frustrations.
Seek to understand what is triggering your anger. Often anger stems from a feeling of being hurt or disrespected. For example, someone might be angry that the other side has such a low opinion that they would make such an outrageous offer. Once you understand the source, you can shut it off.
Choose not to get angry! Anger is within your control and is a choice. Simply choose not to get angry at the other side for what they are doing.
By Steven G. Mehta
There is not a day where you cannot see some type of negative advertisement; and less and less positive political advertisements. But how do those negative and positive ads really fare in the real world. The research shows that negative and positive messages can have a substantial impact on the receiver of the message. This research can also be applied into the everyday negotiations, during mediations, or when presenting arguments to a third party such as a judge or jury.
Most people agree that the ability to maintain trust is a critical part of the negotiation process. Many people believe that the more that you are trusted, the more likely another person will accept your message. Recent research, however, has shed some new light on this concept.
Recently, researcher Gideon Keren in the Journal of Organizational Behavior and Human Decision Processes tested how negative messages and positive messages affected trust and willingness to accept or buy a statement from one person. One study, for example, analyzed the same factual message regarding a product, but framed it as either positive (75% lean meat) or negative (25% fat meat) to determine if one message over another was more trustworthy or whether persons were willing to buy the product more based on the type of message. The study found that people were more willing to buy the meat when framed positively, but trusted the salesperson more when the message was framed negatively. Strangely, a sizeable percentage of subjects also were willing to buy from the salesperson with the positive message despite the fact that they trusted the person with the negative message more. The phenomenon was called “trust-choice incompatibility.” Even when this study was repeated in different environments, the results remained similar.
Other research demonstrates that when a person negatively attacks another person or his or her product, the person making the attack is most affected. The study found that people are less likely to trust the person making the negative comment or message except in circumstances where there is a limited ability to process the information or there is a short period of time.
Interestingly, much like the judicial process, according to John Geer, PhD, a political scientist at Vanderbilt University, “Politics is a one-day sale.” In law, just as in politics, the advertisement or message must make a strong impression – and do it fast! According to a study conducted by Ted Brader, PhD, a political scientist from the University of Michigan, fear ads or negative ads involving fear were the only ones that persuaded people to change their minds. However, such ads would fail if there was not an environment that would foster the fear.
In another study conducted of every presidential ad between 1960 and 2000, Geer found that negative ads were much more specific because the negative ads “demand evidence.” Geer further stated, “People are willing to believe the positive messages without evidence.” The same is not true of negative ads. Nevertheless, Geer also noted that negative ads can easily backfire. In fact, one study found that although negative ads could influence some voters to make a favorable change in their position, it also could disenfranchise an equal number of voters in the opposite direction.
Unfortunately, politics is not the only place where negative messages are made regularly. In the legal environment, it is difficult to go a day without some type of negative message being communicated in court or a hearing. Thus, it is important to be able to apply some of this research to the legal environment.
One way this research can be applied in law and negotiations is to make sure to establish trust first, and then make an attempt to persuade. Thus, provide negative information or weaknesses in your case early on in order to establish trust. Then, once trust has been established, focus on the positive aspects of your case. According to the research, this approach has the best ability to minimize the “trust-choice incompatibility.”
Second, focus on what you are trying to accomplish with the message you are communicating. Are you trying to persuade or are you trying to develop trust? Are you trying to change the other person’s mind?
It is important to note that lawyers are under a significant time constraint to present their position; whether it is to the judge, the jury or the mediator. Just as in politics, they have one day (and sometimes less) in which to persuade both the other side and the neutrals of the validity of their position. As such, sometimes it is difficult to avoid attacking the other side’s case. Nevertheless, when trying to convince third parties such as judges, or neutrals, make sure that you focus on the strengths of your case and not necessarily the weaknesses in the other party’s case. For example, instead of claiming that the other side cannot prove causation, you might reframe the issue as you having a strong defense based on causation. If, however, you must attack the other side’s case, reframe the attack first by identifying a small weakness in your case, and then attack the other’s position. By doing so, as shown in the research, you can establish trust as a credible source of information, which could assist you in delivering your negative message about the other side.
Further, as noted above, if you have to go negative, then you must be precise and support your statements with evidence. This can be achieved by the use of demonstrative evidence such as documents, depositions, photographs or video. For example, in one personal injury case the defense accused the plaintiff of making up some or all of her complaints of injury. The defense then proceeded to provide the video evidence showing the truth of their statements. That negative ad or message had a significant impact on both the neutral and the party who was being attacked.
In addition, the negative message forced the plaintiff to change her position. This was partly based on the fact that the negative message targeted the fear of losing in the plaintiff. By providing the specific information, the defense achieved the effect of creating doubt in the plaintiff’s mind as to the outcome of the case. If, however, there was no specific evidence of such allegations, then the plaintiff would not be in the right environment to understand the full significance of the message.
Negative ads or messages can be very powerful while at the same time very dangerous. Even in today’s political environment, the politicians may not fully understand how the advertisements are affecting their audience. It is important, however, to make sure that you focus on your message first, and then consider what effect you desire to achieve by going negative. But remember, just as in politics, one who lives by the sword can also die by the sword.
Modified from my prior article in November, 2008 Los Angeles Daily Journal