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By Steven G. Mehta

As a continued discussion of cognitive discussions, I thought I would bring to light the fallacy of fairness.

Fallacy of Fairness.

Most people are hardwired to understand a concept of fairness.  Even as children, we comment that something is or isn’t fair.  There is an obvious feeling of resentment when we percieve something as unfair.  However, some people take that feeling of resentment to an extreme.  They feel resentful because they think they know what is fair, but other people won’t agree with them.   These people get bogged down in the details of what is fair and what is not fair.  In an employment case, they may get bogged down in the unfairness of being an at will employee.  Or they may feel that it is unfair that they were sued.  As our parents tell us, “Life isn’t always fair.”  People who go through life applying a measuring ruler against every situation judging its “fairness” will often feel badly and negative because of it.

The Solution: First, a great degree of empathy is required to address this issue and before you discuss the issue, you need to make sure that they know that you have heard them.  Second, explain the difference between what should happen and what does happen.  Give lots of examples of unfair things happening to good people in the legal context.  In explaining how this unfairness applies to other people, you can create a sense of fairness in that it is not just happening to this one person, but to everyone.

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By Steven G. Mehta

There are many cognitive distortions that clients make.  One that commonly happens in mediation is catastrophizing.

Making everything a Catastrophe

Often known as “catastrophizing”, this is when an individual expects the worst scenario to happen. For example, a client might say that every improvement or negotiating point in a mediation is terrible.  They may identify every question or issue as being completely out of hand and threatening to walk out because it will never work.  This person could also object to every thing that is recommend.  They may say that we will never settle this case, even if you are close.

THE SOLUTION: First, it is important to acknowledge the feelings.  More importantly, however, the key to such a person is to always think positive.  Before that person has a chance to place his or her negative view on the topic, identify the positive first.  Explain to them about the process that has happened before.  Let them know that this is a common reaction by others, but in those other cases, you were able to overcome this problem.   Change the topic to a positive topic or a fun topic that they enjoy such as vacations.

By Steven G. Mehta

In every mediation, one of the first questions that arises is not what is the bottom line or what do we need to do to settle the case.  Instead, one of the first questions asked by attorneys in mediation is “where is the coffee?”  Well recent research has shown that caffeine and sugar in combination can improve the efficiency of brain activity.

According to the Josep M. Serra Grabulosa, one of the main researchers, “our main finding is that the combination of the two substances improves cognitive performance in terms of sustained attention and working memory by increasing the efficiency of the areas of the brain responsible for these two functions.”

I feel that innately I must have always have known this concept because I have from day one of mediation provided plenty of coffee and sugary snacks at my mediations.  Indeed, I am a firm believer in making sure that food is always available at mediation.

Food can also help on several other levels.  First, food can be for some a comfort.  When dealing with tough issues, sugary, pleasant, meaningless treats can provide the comfort to the participants.  Anecdotally, I find that in tough mediations where there are a lot of difficult issues, the snacks usually go faster than in easier less complex mediations.

Second, the snacks can help to avoid low sugar mania – when people make bad decisions because they are hungry or low on energy.

Finally, some studies have shown that people are more willing to listen to your ideas or accept a sales pitch after they have eaten.  I have dedicated a chapter to this issue in my book, 112 Ways to Succeed In Any Negotiation or Mediation.

So next time you see that coffee and donut in a mediation, you know that you are only helping your cognitive skills by taking them.

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.

Table Two.  Comparison between Mediation without Attorneys and Mediation with Attorneys
Variable Mediation without Attorneys Mediation with Attorneys Significance Level
  • *

    Significant difference at p < 0.01.

Initial conflict level 3.42 3.25 0.271
Settlement rate 68.8% 69.0% 0.986
Time required to reach an agreement 147.8 minutes 177.5 minutes 0.100
Mediator’s usefulness 5.29 4.65 0.005*
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*

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