The Role Of Emotions In Mediation

June 10, 2021By Bill RatliffUncategorized

 

I recently read an article in the Wall Street Journal that reminded me of the effect that emotions and moods can play in mediation. The title alone says a lot: “Good Moods Often Lead to Bad Judgments.”

Written by three thought leaders on the topic (including a Princeton professor of psychology who’s also a Nobel Prize winner in Economics), the article states, “Mood has a measurable influence on what you think: what you notice in your environment, what you retrieve from your memory, how you make sense of the signals.”

The article goes on to say that mood changes how you think. In a negotiation setting, a good mood can be helpful in making everyone at the table more cooperative, and it typically elicits reciprocation from opposing counsel and clients.

So what can we, as attorneys or mediators, do with this scientific information? A couple of thoughts:

Consider the other side’s mood in timing a mediation.
In cases I’ve mediated where the injured plaintiff is still in significant pain from an accident, that pain is the greatest obstacle to resolving the case.

People in pain have a hard time focusing on anything else besides their pain — which tends to negatively impact their thinking, and causes them to overvalue their case. In death cases, where the loss is still way too fresh, the pain of that loss makes it difficult for family members to objectively process information about the value of their case.

Mediations have a much better chance of succeeding if an injured plaintiff has reached Maximum Medical Improvement, or — in a death case — a year or two has passed since the death. Parties are better able to process information relating to compromise settlements.

If you’re thinking that’s pretty obvious advice, you’re right. But again, I’m speaking from personal experience — and the attorneys involved in those cases were good lawyers.

Preparing clients if you’re the plaintiff’s attorney.
If you’re representing someone struggling with pain or loss, spend some time preparing your client for the emotional difficulty that comes with a mediation — particularly the negotiation process. Acknowledge your client’s pain (physical and/or emotional). Remind them of your desire, and your commitment, to walk alongside them through their struggle. Remind them that the mediator can’t take sides, but serves as a neutral party who’s there to help both sides reach an agreement they can accept.

What about lawyers’ emotions during mediation?
In my experience, the most effective lawyers are the ones who keep their emotions in check during the negotiation process — particularly frustration, disappointment and impatience. I also know, from experience, that some lawyers believe the biggest A-Hole in the process gets the best results. I doubt I can convince you otherwise, but I strongly disagree.

Adjusters, corporate representatives and other lawyers are human. Nobody likes being bullied. Nobody likes disrespectful treatment. And nobody likes an A-Hole.

That said, I’m not suggesting there isn’t a place in the process for attorneys to express their anger or frustration. I still remember, during Oliver North’s congressional hearing, his attorney being questioned about his display of emotions, and responding, “I am not a potted plant”.

As the Wall Street Journal article points out, “negotiators who shift from a good mood to an angry one during negotiations often achieve good results — something to remember when facing a stubborn counterpart.”

Consider this analogy:
As a landowner, that thought reminds me of the difference between a controlled burn and a raging, out-of-control wildfire. They’re both fires. But one is an important tool for maintaining the health and safety of a forest, while the other destroys everything. Use your burn wisely!

In short, don’t let your emotions or moods hijack the process. Also, anticipate that emotions, good and bad, are involved in the process, and try to control them. Use them to your advantage.

Enjoy the journey!

BY THE WAY: If you’d like a PDF copy of that Wall Street Journal article, feel free to send me an email. I’d love to hear from you!

Please Click Here if you’d like to review my calendar of available dates and schedule a mediation with me. And thank you!
—Bill Ratliff

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