The Psychology of Mediation

IDR – The Inflation Stage

Bader comments “It is well established that parties generally enter mediation with overconfident expectations… even if one accounts for posturing.” Parties often truly believe that they are in a much stronger position than is actually the case, but why does this happen? How can rational and intelligent people be blinded by this false sense of security? This is linked to The Fight or Flight Response, a defence mechanism unconsciously engaged in the face of a perceived threat. The perceived threat activates the sympathetic nervous system and triggers an acute stress response that prepares the body to fight or flee. Related to this is the Theory of Territorial Imperative; the inherent human instinct to aggressively defend territory / property. Human behaviour has not yet adapted to the legal security offered by the modern world and this impedes rational and commercial thought and drives resistance to compromise.

David A. Hoffman, an esteemed lawyer, mediator, and academic, comments that our egos can get the better of us via what he calls Fundamental Attribution Error; we are quick to ascribe our own weaknesses to circumstance, and our successes to character, yet we  do exactly the opposite with others. Even if we are able to acknowledge our flaws, we often consider them minor when compared to those of others. This feeds into ‘the good me -v- the evil other’ mindset - we can easily succumb to believing that the other side is so very difficult and unreasonable without there being any real justification for taking that view.

Given the above, one could argue that humans are hard wired to resist compromise yet such barriers to compromise must be overcome for mediation to be successful  and the role of the mediator is key to unlocking this inherent conflict.

 

IDR – The Deflation Stage

Expectations are often dealt a hammer blow when the first offer is made and rejected which can lead to feelings of anger, frustration, and disappointment. This is a key stage in the mediation as the party who has made the offer  could threaten to walk away or follow through on such a threat. This injury to the ego should be recognised by the mediator who should utilise ‘soft’ skills to encourage the disgruntled party to find a route beyond alienation  with a view to keeping the process on the rails.

It is often the case that an impasse will occur at this stage. The mediator must be deployed to bring the parties together. Paul Randolph, a prominent barrister and mediator, comments that; “A good mediator will set up a situation wherein the parties feel that they can speak openly and honestly to each other, with no adverse consequences. This sets up a ‘safe container’ for the negotiations.” An important part of this is recognising the psychological factors that are at play. Julie Somerville, a distinguished lawyer and mediator, comments that “It is highly unlikely that a shift in the attitude of parties in dispute will be achieved solely through rational argument and logical persuasion. This is because each argument will have both a rational and emotional element…it’s the emotional element that turns a difference of opinion into an intense dispute, particularly if the emotional element triggers an amygdala hijack; the adrenaline and cortisol releases by the amygdala shuts off the cortex, the part of the brain that processes logic and reason, making it hard to think clearly and rationally about a situation.” An adept mediator will be conscious of the importance of the emotional element, and in trying to bring about change, should articulate alternative views and allow the parties time to process information. However, it is by no means all down to the mediator. When an  impasse occurs the parties must change their mindsets and this can be very  difficult to do achieve against a back drop of hostility. There is however a need to relinquish the urge to demonise the other side. The mediator must work to try and release the connection often carried by each party between the sense of self and the outcome of the mediation. 

Fatigue can also have an impact on decision making during a prolonged impasse.

It is therefore fundamentally important that the mediator employs all efforts to attempt to de-personalise the dispute as quickly as possible, allowing the parties to come to a less biased view and creating the conditions in which a resolution may be possible particular as tiredness and tetchiness kick in which hinders  judgment and decision making.

 

 IDR – The Resolution Stage

Once all such efforts have been expended, the parties may see a previously unfeasible option as now being a palatable one,  although this is unlikely to occur if there are suspicions that each of the other parties have not backed down from their initial positions. A mentality of ‘well we have moved, so they should too’ is likely to prevail, if the other parties do not back down, it is likely that the mediation will fail. If mediation has been unsuccessful, the parties psychologically disconnect and negative assumptions about the other parties’ motives and mindset can become polarised and cause  entrenchment. Parties can then become convinced that the dispute is not worth resolving via further negotiation, and that the only viable option is to proceed to trial.

Even when a mediation has been successful in resolving a dispute, feelings of dissatisfaction can linger. However, if settlement is truly  the objective, parties should be encouraged to think about and  prioritise the commercial benefits of resolution and accept that it is  the best deal available.

As explored above, a range of psychological factors are at play during mediation. Those of us regularly involved in the process, despite its promise of flexibility and versatility, often adopt the same approach and behaviour. Before mediating again it is perhaps worst pausing to consider adoption  of a more thoughtful and dynamic approach that acknowledges and reflects  some of the psychological issues and factors considered in this piece, to maximise the prospects of success and to take some of the stress out of the process.