The Mediator’s Role in Decision Making

©2017 John C Edwards, Esq.

In a previous article, I wrote about the importance of leaving the critical decision making up to the parties to a mediation, especially if the party has a “high conflict personality.”  (I will refer to people with a high conflict personality as an HCP.)  As a mediator, my goal is not to make decisions for the parties, rather it is to help create an environment that allows the parties to be reflective, logical and thoughtful in their approach to conflict resolution and decision making as opposed to reactive, persuasive blaming that almost never solves the problem at hand and frequently leads to escalating conflict.

It’s important to allow HCPS to make their own decisions for a number of reasons. HCPs typically suffer from cognitive distortions which lead to a preoccupation with blaming others, all-or-nothing thinking, and unmanaged emotions which lead to extreme behaviors. They do not respond well to being told what they should or must do.  One of the hallmarks of HCPs is the utter absence of insight, so therefore they do not respond well to advice, admonishments and threats, and even if they are induced into accepting a resolution that they feel has been forced on them, there will likely be negative consequences in the future.

Catch the HCP’s EAR

At the High Conflict Institute we have been educating professionals dealing with HCPs in legal disputes to build connections with HCPs by communicating with Empathy Attention and Respect (EAR®) and by focusing the HCPs on taking their concern about the past and making proposals for the future.  Focusing on the future can interrupt the cycle of high conflict thinking and blaming and help put the HCP in a mental state more conducive to logical productive decision making.

I have come to realize that helping create an environment for logical decision making is perhaps a mediator’s most important task, even in cases in which the parties are not HCPs.  As a mediator, I am most assuredly not a decision maker, but I am very much in a position to be a decision “influencer.”  Using EAR® is always important, but can I and should I be using other tools and techniques to help influence parties to make decisions to resolve their conflicts at mediation?

The Issue Is Not The Issue

In his fascinating, influential book “Thinking, Fast and Slow” (2011. New York, Farrar, Strauss and Giroux), Daniel Kahneman, Professor of Psychology Emeritus at Princeton University and winner of the Nobel Prize in Economics, explains the profound effect of cognitive biases on human decision making.  In the everyday world that I inhabit (civil litigation mediations) I am continually astounded by the decisions made by people that are not economically rational, and that are often based on intuition and anecdotal evidence, and I am not limiting this to HCPs.  Although cognitive distortions may be at the heart of HCP behavior, everyone has cognitive biases, and these biases profoundly affect our decision making.

A thorough examination of “Thinking, Fast and Slow” and how it addresses the processes involved in human decision making is beyond the scope of this brief article, but one of the key points describes a “puzzling limitation of our mind: our excessive confidence in what we believe we know, and our apparent inability to acknowledge the full extent of our ignorance and uncertainty of the world we live in.”

In civil lawsuits this manifests itself in an overconfidence in what will be the likely outcome of a trial and underestimates the role of chance in events.  When each party assesses their chances of winning at 75%, we know they can’t both be right, and more likely than not, neither are right.  When faced with this dilemma, I know that it serves no purpose to argue or attempt to persuade either or both that the analysis they have come up with is wrong.  After all, who am I to predict the likely outcome?

Priming for Decision-Making

Numerous psychological experiments have confirmed the powerful effect of priming on the human mind in the context of behavior and especially decision making.  Priming occurs as a result of our associative memory, in which each idea is linked to many others.  Many civil litigators think of priming only in the context of numbers, which leads to the typical negotiation over money wherein the plaintiff demands $1,000,000 for a case with an expected value of $200,000 and the defendant offers $5,000.  Priming effects, however, take many forms, and are not restricted to concepts and words.

There are many examples of this that can be found in Thinking, Fast and Slow, as well as in a new book I have found to be very helpful, PRE-SUASION, a Revolutionary Way to Influence and Persuade (2016. New York, Simon and Schuster) by social scientist Robert Cialdini.  Cialdini explains how the best communicators capitalize on “privileged moments for change” in which audiences become receptive to a message before they receive it.  To change minds, we must first change “states of mind.”

We know how important this is with HCPs, but the revelation for me is how important this can be in any case.  My goal is not to alter the party’s attitudes, beliefs, or experiences (after all, mediation is not therapy) but rather it is to channel the party’s focus of attention just before requesting a relevant action.  Cialdini provides a great deal of scholarly work that demonstrates that savvy communicators who learn this skill can increase the chances that the message they send will be accepted.  I think that is a great skill every mediator should attempt to learn.


High-Conflict People in Legal Disputes

John Edwards, Esq., earned his J.D. from the University of San Diego Law School and received his mediation training at Harvard Law School. After years of litigation, he began his mediation practice here he has successfully mediated hundreds of cases. Contact us about reserving John for your speaking or training needs:

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