I was fortunate enough to be asked to contribute an article (co-authored with the fantastic Ken Chackes) for the Bar Association Of Metro St. Louis (BAMSL) spring edition of the St. Louis Bar Journal focusing on Alternative Dispute Resolution.
We decided to explore the role of psychology in mediation and how attorneys need to acknowledge and understand the non-rational side of decision-making. Emotions play a powerful role in alternative dispute resolution, and recognizing this is critical in helping guide a mediation session to a successful outcome.
I am thrilled with how this article turned out and want to give a huge THANK YOU to BAMSL for letting me contribute. If you’re a legal professional in the St. Louis area, I highly recommend joining — BAMSL is an incredible organization and resource that we are fortunate to have!
I hope you enjoy this article, and feel free to reach out if you are in need of ADR services!
Ken Chackes has extensive experience as a litigator, mediator and hearing officer. Since his graduation from St. Louis University School of Law in 1976, Chackes has specialized in legal matters involving sexual abuse, education law, disability rights, employment and housing
discrimination, and other civil matters. He has served as a mediator for more than 20 years, for the Missouri Department of Elementary and Secondary Education, the U.S. Equal Employment Opportunity Commission, the U.S. District Court for the Eastern District of Missouri, and USA&M. Chackes taught full-time at Washington University School of Law for four years in the 1980s, teaching Trial Practice, Pre-Trial Practice, and in the Civil Litigation Clinic.
KIM L. KIRN works exclusively as a mediator and arbitrator throughout the Midwest, and she completed more than 300 personal injury, real estate, contractual, employment and other civil disputes with USA&M and AAA. Prior to joining USA&M, Kirn practiced law with Lord, Bissell and Brook in Chicago and served as legal counsel for Southern Illinois University Edwardsville. She has also taught senior level Business Law and Ethics courses at SIUE. She is a graduate of the University of Missouri-Columbia and the University of Notre Dame Law school. Her blog “Mediation Under the Arch” can be found at: https://kimlkirnlaw.com/blog/.
This article was originally published in the St. Louis Bar Journal Vol 67, No. 4 Spring 2021
Economic theories about financial decision-making traditionally are based upon the premise that people are rational and make thoughtful, logical decisions. Psychologists Amos Tversky and Daniel Kahneman, along with other colleagues, tested this premise and discovered that people may be rational, but their financial decisions, much like other decisions they make, were subject to biases and unconscious factors.1
Researchers even demonstrated that conscious decisions were biased.2 The conclusions they reached, after much direct experimentation, were explosive enough to win a Nobel prize in Economics. Although Tversky and Kahneman were psychologists, not economists, they rocked conventional economic theories.3 As lawyers helping clients make financial decisions, and attempting to influence opposing parties, we need to acknowledge the non-rational side of decision-making. This article will delve into the most important psychological forces affecting parties in mediation.
Conformity Bias (Group Think)
Human nature contains a strong bias to conform to the group. This pull to conform can lead to irrational or non-optimal decisions. Psychologist Irving Janis first introduced the concept of “group think” in 1971, after his experiments demonstrated that individuals refrain from expressing doubts or disagreeing with the consensus.4 For example, six people in a group setting were shown two lines projected on a large screen and asked which was longer. The differences in length were obvious and all was well when the six individuals answered correctly out loud, but later the five confederates in the room gave intentionally wrong answers. Over a series of questions, the non-confederate test subjects ignored their own judgment and conformed to the group between 40% to 75% of the time. This conformity grows as the questions become harder and the subject matter less familiar.5
Similar studies, replicated across 17 countries and more than 130 experiments, repeatedly prove that conformity bias strongly influences decisions.6 Just recently, two professors demonstrated that stock market investors made better decisions on their own than when they accessed more public information.7 The wisdom of crowds is not always so wise.
Why do we conform? Professor Daniel Levitin writes of our “strong desire to conform to others’ behavior in the hope that it will allow us to gain acceptance within our social group, to be seen as cooperative and agreeable.”8 Conformity bias occurs when the group experiences an “us versus them” mentality – exactly the mentality present in a lawsuit. Group think can be minimized by encouraging individual members to voice their opinions and respecting even the most radical opinions.
Responsibility falls to the leader. In a mediation, determine who is leading the room and their leadership style. As a lawyer or mediator, you can temporarily wear the leadership hat while you are in the room and ask for individual feedback. When a member voices dissent, use active listening by repeating back to the speaker any criticism of the decision. Your acknowledgment spurs others to speak and move towards a robust discussion.
Even better, head off group think by asking who will attend the meeting and respectfully ask why each person is attending. Discourage anyone other than the ultimate decision-maker to attend. Ultimately, you may have to give on this point. In a recent mediation, a party showed up with four family members to “provide comfort and aid.” In such a situation, consider moving the “comfort and aid” group to a separate room for consultation when appropriate. Explain that more people slow down the process and they can reconvene whenever they like. Show all group members where the others are and keep the groups informed of progress. This process, although difficult, will diminish group think.
Power of the Status Quo
In mediation, lawyers are trying to change the other side’s mind; clients are arguing with their spouse to re-think an issue; and the mediator is trying to change everyone’s mind. The decisions are complicated and can come at you fast. The easiest path is to cling to the status quo, resulting in no settlement, and consequently we dive into more discovery and wait for the all-important trial date. Humans frequently take whatever option requires the least effort, or the path of least resistance. Expect that many people will take the default option even when it is against their best interest.9 The status quo feels comfortable and steady; change brings new choices that create uncertainty.10 Uncertainty and ambiguity lead to paralysis.11
Consider this study: a gourmet grocery store set up a table with 24 flavors of jams offering samples. The next day, the same table offered only six flavors to sample.
Although the 24-flavor table attracted more customers, customers were 10 times more likely to buy a jar from the six-flavor table. So many choices overwhelmed the customer and discouraged the customer from making a purchase.12
Ambiguity is the enemy, so confront it head-on. In mediation, limit the options to two or three and clearly state them. Use pen and paper, or a whiteboard, and lay out the settlement options, including dollar amounts and dates, if necessary. Use good listening skills to confirm your message is being received. Make decisions simple yes or no questions. You can script the critical moves.
Oftentimes in mediation, plaintiffs have experienced some serious loss, perhaps a death, or the loss of physical “able-ness,” employment or money. Possibly defendants, too, have a loss: a good employment relationship has ended, a customer will not be returning, or the chance of future business dealings is gone. When confronted with a loss and its accompanying sadness, humans will turn to positivity and cheerfulness. Maybe it is a way to shut down the pain of the loss, maybe it is a way to distance ourselves from the loss, maybe it is just empathy.
“[T]he quest to determine who is right and who is wrong is a dead end.”
A positive attitude can lead to good results. Positive psychology informs us that optimistic people live longer, earn more money and are healthier.13 Alas, this can go too far. If cheerful phrases are glib, superficial or one-sided, the person with the loss feels worse after a dismissively positive comment.14Upbeat phrases telling an injured person that things will work out, or that life doesn’t give more us than we can handle, or that everything happens for a reason, are all examples of dismissive positivity. A recent study asked people what they find most helpful and most unhelpful when they are awaiting important news. Although some people said they appreciated words encouraging them to be optimistic, it was far more common for people to find this kind of interaction downright annoying.15
A better strategy for the advocate and the mediator is to listen to the injured person.16 Let them tell their story. If mediation is successful, this will be their proverbial “day in court,” so make it meaningful. This may take time, but clients who feel genuinely heard and respected are happier clients, better for referrals and reviews.
Remind the injured person that this is hard; it is hard for everyone there. If you have experienced something similar, consider sharing that experience with the injured person. It can generate a rapport that helps the case along towards settlement.
Engage in Learning Conversations Instead of Delivering Messages
Mediation almost always involves a series of difficult conversations: with your client; opposing party and counsel; and sometimes even the mediator. Often those difficulties arise from three causes: differences about “what happened”; someone’s “feelings” have been hurt; and/or the discussion challenges a person’s “identity,” their self-esteem or self-image. Lawyers representing litigants in mediation often face the same issues. There are disputes over the facts of the case. The parties have injured feelings about what happened or the fact that they are in litigation. And a defendant accused of improper behavior, or any party whose credibility is attacked, faces a challenge to their self-identity, i.e., “I’m not that kind of person.”
People feel vulnerable when their self-esteem is implicated; when issues are important, and the outcome is uncertain; and when they care deeply about what is being discussed. Consider drawing a distinction between delivering messages and engaging in “the more constructive approach … call[ed] a learning conversation.” 17 It has been observed that “delivering a difficult message is like throwing a hand grenade” and there is no way to throw it with tact or without consequences.18
When a lawyer in mediation talks about what happened (the facts of the case), ponder this: “[T]he quest to determine who is right and who is wrong is a dead end.”19
Mediation does not require agreement on the underlying facts. The alternative is to try to understand and discuss the perceptions and interpretations held by both sides. That allows the participants to move away from delivering messages and toward asking questions, exploring how each side sees the facts, and to offer the lawyer’s or party’s views as perceptions and interpretations rather than as the truth. The same principles apply when discussing an opposing party’s intentions20and blame or liability.21
Stop arguing about who is right, and instead try to focus the discussion on understanding that each party has their own perspectives and feelings. An advocate in mediation can do that by inviting the opposing party into a conversation to help figure things out and suggesting that both sides have something to learn from the other. That approach makes it more likely that the opposing party will be open to being persuaded, and might even allow each party to learn something that changes the way they understand the problem.
Start with the Third Story
Applying those principles to an opening session in mediation, an advocate should not start with a description of the facts from their own client’s perspective. That kind of opening triggers negative reactions, conveys a judgment about the opposing party, and provokes defensiveness. Instead, start with the third story: how an outside neutral observer would describe the dispute in a way that rings true for both sides. Starting with the third story entails:
- Removing judgment but describing the difference.
- Acknowledging that the parties see the situation differently.
- Sharing how you and your client see it and that you want to learn more about how the opposing side sees it.
Invite and Request, not Impose and Demand
Moving toward the proposals for an agreement, application of the same principles involves:
- Extending an invitation to the other side rather than trying to impose your side’s view.
- Making requests, not demands (“I wonder if it would make ..”).
These practices help in any situation in which a person has to discuss something that involves differences in perspective and understanding, injured feelings, and matters that impact the listener’s self-concept. They are doubly helpful for lawyers representing clients in any context, including mediation, and for mediators who are guiding their conversations.
Improve Mediation by Reducing Stress
It is well known that mediation can be stressful to the participants. Science can help identify the causes of stress and teach us how to decrease its harmful effects in mediation.
Conflict situations trigger stress, which has both positive and negative effects on human behavior. The stress response evolved to help organisms deal with threats.
We are all familiar with adrenaline, which is one of the stress hormones triggered by conflict. We can feel the effect of adrenaline as it increases our heart rate.
Another hormone triggered by conflict is cortisol, which is more subtle than adrenaline, but can have significant and lingering impact on our judgment. Cortisol can have positive effects, by helping a person focus and by sharpening their mental abilities, but increased levels of cortisol can also interfere with a person’s judgment.22
According to research, a stressed party in mediation tends to perceive their opponents as being angrier and more threatening and will be more likely to misinterpret the other party’s intentions. High cortisol levels can cause people to become more fixed in their positions and have difficulty seeing things from the other party’s perspective.23
There are strategies attorneys can employ to decrease the impact of stress in mediations. Attorneys for the participants can use them separately with their clients and/or suggest that the mediator use these methods:
- If there is going to be a joint session, begin the mediation with a separate caucus with each party.
- Talk to the parties about the stress of mediation and suggest ways of dealing with it, such as taking deep breaths, calling for breaks, or taking notes.
- Suggest that parties name their emotions; ask them how they are feeling.
- Build in time to allow parties to recover from stress before making decisions. Following a session that likely caused stress to a party, take a break or engage in a more casual conversation before asking for decisions.
- Minimize venting. This may be contrary to other literature about mediations, but researchers found that venting triggers a stress response in both parties and can make settlement less likely. If a party is determined to “speak their mind” it is best done in a separate caucus with the mediator.
- Summarize what was said earlier in the day to help stressed parties accurately recall what was said.24
Attorneys in mediation, whether advocating for a party or acting as the mediator, can borrow from psychology and other disciplines that involve the study of human emotion and behavior to improve their interactions with clients, mediators and just about everyone else.
1 Ben Yagoda, The Cognitive Biases Tricking Your Brain, The Atlantic, Sept. 2018.
2 John Bargh, Before You Know It 125-151(2017).
3 Michael Lewis, The Undoing Project 103 (2017).
4 Groupthink, Psychology Today, https://www.psychologytoday.com/us/basics/groupthink (last visited March 3, 2021).
5 Richard Thaler & Cass Sunstein, Nudge 55-60 (2008).
6 Id. at 55-60.
7 Zhi Da and Xing Huang, Harnessing the Wisdom of Crowds, Management Science, Vol. 66, Issue 5 (May 2020), abstracted at https://pubsonline.informs.org/ doi/10.1287/mnsc.2019.3294.
8 Daniel Levitin, The Organized Mind, 157 (2014). See also Ken Schechtman, Can Scientific Thinking and Progressive Activism Coexist? St. Louis Post- Dispatch, Feb. 2, 2021.
9 Thaler and Sunstein, supra note 5, at 85-89.
10 Kim L. Kirn, Why We Like Things to Remain the Same (September 10, 2019) https://kimlkirnlaw.com/why-we-like-things-to-remain-same/.
11 Chip Heath & Dan Heath, Switch 52-72 (2010).
12 Id. at 50-51.
13 Martin Seligman, Learned Optimism (2013).
14 Tim Herrera and Anna Goldfarb, 8 Ways to Help You Live Smarter in 2020, N.Y. Times, Dec, 30, 2019, at B5
15 Kate Sweeny, The Downside of Positivity, The Psychologist, Vol 30 (Feb. 2017), https://thepsychologist.bps.org.uk/volume-30/february-2017/downsides- positivity.
16 Allen Rucker, Dismissive Positivity, (Feb 19, 2020) https://www.christopherreeve.org/blog/daily-dose/dismissive-positivity.
17 Douglas Stone, Bruce Patton & Sheila Heen, Difficult Conversations (1999).
18 Id. at xvii.
19 Id. at 10.
20 “The error we make in the realm of intentions is simple but profound: we assume we know the intentions of others when we don’t.” Id. at 11.
21 “[T]alking about fault is similar to talking about truth – it produces disagreement, denial, and little learning. It evokes fears of punishment and insists on an either/ or answer…. Talking about blame distracts us from exploring why things went wrong and how we might correct them going forward.” Id. at 11-12.
22 Tanz, Jill, Using Neuroscience to Understand Stress and Improve Mediation, https://www.mediate.com/articles/tanz-using-neurocience.cfm (2019). Tanz is an attorney and mediator who has worked extensively on this topic with Prof. Martha K. McClintock, a neuroscientist, psychologist, and evolutionary biologist. See, e.g., Jill S. Tanz and Martha K. McClintock, The Physiologic Stress Response During Mediation, 32 Ohio State J. Disp. Res. 29 (2017).
24 Tanz, supra note 22.