Mediation Behaviour: Why We Act Like We Do 9781526511362, 9781526511393, 9781526511386

Citation preview

Mediation Behaviour: Why We Act Like We Do

Mediation Behaviour: Why We Act Like We Do

Stephen Walker MA (Oxon), FCIArb Solicitor and Accredited Mediator

Bloomsbury Publishing Plc 50 Bedford Square, London, WC1B 3DP, UK 1385 Broadway, New York, NY 10018, USA 29 Earlsfort Terrace, Dublin 2, Ireland BLOOMSBURY and the Diana logo are trademarks of Bloomsbury Publishing Plc © Stephen Walker 2021 All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publishers. While every care has been taken to ensure the accuracy of this work, no responsibility for loss or damage occasioned to any person acting or refraining from action as a result of any statement in it can be accepted by the authors, editors or publishers. All UK Government legislation and other public sector information used in the work is Crown Copyright ©. All House of Lords and House of Commons information used in the work is Parliamentary Copyright ©. This information is reused under the terms of the Open Government Licence v3.0 (http://www.nationalarchives.gov.uk/doc/open-government-licence/version/3) except where otherwise stated. All Eur-lex material used in the work is © European Union, http://eur-lex.europa.eu/, 1998-2021. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library. ISBN:

PB: ePDF: ePub

978 1 52651 136 2 978 1 62651 138 6 978 1 52651 137 9

Typeset by Evolution Design and Digital Ltd (Kent) To find out more about our authors and books visit www.bloomsburyprofessional.com. Here you will find extracts, author information, details of forthcoming events and the option to sign up for our newsletters

Preface

Why this book now Ten years ago Daniel Kahneman published Thinking, Fast and Slow. It became an international best seller and transformed the way we looked at decision making. Mediators were introduced to a new world where Kahneman showed us how we don’t make decisions in the way that we think that we do. Rationality and logic were not as important as emotions, short cuts and cognitive biases. We take fast instinctive decisions more readily than slower reflective ones. He called these System 1 and System 2. We end up self-sabotaging our best outcomes. His book was a spectacular expression of the research that had been going on since the 1970s into how we process information, answer questions and make decisions. An infodemic of new information about our brain, emotions and behaviour hit us. And it continues. Behavioural economics, neuroscience and psychology are teaching us more than we have ever known about the one subject that we are all interested in: Ourselves. How can we cope with this information overload? What can it teach mediators, clients and their lawyers? COVID, lockdowns, WFH (working from home) ODR and mediating online have made this question even more important and urgent. I am not a neuroscientist, an economist or a psychologist. I am a jobbing mediator and former solicitor. I wanted to try and make sense of this new information and advice – what I refer to as ‘the New Stuff’. I have previously written five books all designed to help people get the best out of mediation. I asked: Are there things that we can learn from the New Stuff which will help us get more out of mediation? Whether we are mediating as clients, advisers or mediators. I  was encouraged to see Michael Mcilwrath, a well-known lawyer, negotiator and mediator, ask the same question in the Kluwer Mediation Blog. He wrote: ‘I’ve been interested in any scientific or behavioural economics research, such as Tversky and Kahneman, that might guide us to better outcomes…The problem that I increasingly pose myself, however, is whether research in these areas can be extrapolated to negotiations and mediation.’ That’s a really good question. Can the New Stuff help us get more out of mediation? I suspected that that it could. But how? I tried to find out by asking three questions about the New Stuff: Is it interesting?

Yes; most of it.

Is it relevant?

Yes; some of it.

Is it useful?

Only if we use it. How we can do this is what this book is about. v

Preface The key questions are: Why do we behave like we do at mediations? We go to mediations to make peace and prepare for war. How can two sets of clients and their lawyers look at the same facts and law and come to fundamentally different conclusions? Why don’t we see the same thing the same way? Are we dominated by self-interest and can’t see that there might be another way of looking at things? If we are, why do we make decisions that are not in our best interests? Is our decision-making, as Rory Sutherland says, not logical but psycho-logical.

Who is this book for? Like my previous books it is for anyone concerned in mediation: mediators, advisers and clients. It’s about mediation behaviour not conflict in general. Although some of the topics have also been discussed in my earlier books I  have tried to keep duplication and repetition to a minimum. There is some, and where there is a more detailed treatment of a topic in one of my other books, I cross refer to it. The three books are: •

Mediation Advocacy: Representing and Advising Clients in Mediation (2nd Edn).

•

FAQs for Mediators.

•

Mediation an A-Z Guide.

This is a practical book drawing on my experiences in over 750 mediations including over 150 carried out online. The focus is on civil and commercial mediations in the UK but applies more widely.

Nomenclature Not all advisers or mediators are lawyers, but many are. In the UK we have a split profession; barristers who mainly advocate in court and solicitors who mainly do not. In the past clients had to go through a solicitor to instruct a barrister. Now you don’t. Many barristers, but not all, now operate on a direct access basis. When describing experiments, I  have referred to researchers and volunteers. A  confederate is a researcher who pretends to be a volunteer as part of the experiment.

How to use the book There are 18 chapters. You don’t need to read the book from start to finish. Dip into those sections that interest you and follow your interest through the cross references. vi

Preface Mediation Message and Top Tip headings point you to the practical applications of the New Stuff for mediation. The ways in which ODR and mediating online have changed our mediation behaviour are highlighted throughout the text and explored in detail in Chapter 18. The first four chapters are framework chapters.

Chapter 1 Introduction I explain the basic approach of the book with its emphasis on practical wisdom. Research findings from neuroscientists and behavioural economists can dazzle us. Their work is fascinating but has it been overhyped? Meet the Dead Salmon. Watch out for the red flags and just as at mediations don’t take everything at face value.

Chapter 2 Brain You can’t consider behaviour without knowing something about the brain. Even our emotions have a neural context. Here is a quick overview of the brain and some of the most misleading myths. The key brain functions for mediation behaviour: memory, intelligence and prediction are explored. We need to know what behaviours we can control and change and which ones we can’t. Bluffers’ guides to the basic neuro concepts and vocabulary are at Appendices 1–3.

Chapter 3 Feeling What are emotions? Where do they come from and what they do? Is it really the case that emotions make our decisions for us? How do we identify and manage them? Feeling emotions is one thing, expressing them is another. Does expressing emotions help or hinder settlement? Can you stop them being expressed? Has ‘venting’ had its day? Are mediators able to express emotions?

Chapter 4 Thinking Here are the mental traps that we can all fall into: Cognitive biases, Heuristics, Logical fallacies? Are they as widespread and harmful as we are told? Has our evolutionary development left us maladapted with mind traps unsuitable for coping with the demands of modern life? If we are more self-aware, can we make better decisions?

Chapter 5 Intuition What is it? Can we rely on gut instincts? Are they such a bad thing? When should we rely on them? After all we don’t always have time for System 2 reflective thinking.

Chapter 6 Self Emotions, heuristics, cognitive biases and intuitions all influence our behaviour. How they do it depends on who we are at the time. This chapter looks at our sense of self. How does it show itself at mediations? How significant are self-interest, selfesteem and self-determination? vii

Preface

Chapter 7 Barriers This is the first of two chapters on Frequently Observed Behaviours at mediation (FOBs). Why do we go to mediation to make peace but prepare for war? Are we programmed to self-sabotage? We look at the common barriers to settlement – the negative FOBs: mood swings, argument, stress, status anxiety and groupthink. Learn what they are and how to identify them. See from the charts how emotions, energy and ways of thinking change throughout the mediation day.

Chapter 8 Bridges This deals with positive FOBs – the bridges to settlement: quantification, rapport, smiling, listening, reality assessment, empathy, mimicry. They help us get over the barriers. How and why do they work? Learn how to make the best use of them. The next three chapters highlight the 3Ps of mediation. The things that our brains enable us to do at mediations.

Chapter 9 Persuasion How to frame your message most effectively. What to avoid saying if you want someone to agree with you. Learn more about the use of language – spoken, written and non-verbal – to influence thinking and feelings. What if anything can NLP and NVC teach us?

Chapter 10 Prediction Why do we find it so hard to predict? Learn how to avoid prediction pitfalls. What to concentrate on. How to read the situation. How to work out your chances. How probability can help you.

Chapter 11 Perception We are often faced with competing realities. How can we reconcile them? Learn how to avoid mistakes that can easily lead us astray. The next five chapters look at mediation behaviour in relation to the Big 5 Issues that occur in every mediation: money, power, truth, fairness and trust. Each chapter highlights and examines the main emotions and cognitive biases that come into play. Learn how they influence decisions and how you can manage them to maximise their positive influence and minimise the negative.

Chapter 12 Money The one guaranteed universal at mediations. The first of the three mediation power words. Even when the dispute is not about money, we cannot ignore the money. viii

Preface Why not? What does money mean? Learn: What it does. How our feelings about money influence our decisions about everything.

Chapter 13 Power Power is the ability to get what you want. How is this shown at mediations? Learn how to recognise the different types of power and who exercises them – clients, lawyers and mediators. How to spot when power is being used and abused. How do you deal with power imbalances? Why might may not be always right. Learn how to make the best use of mediator power.

Chapter 14 Truth The second of the three mediation power words. What is mediation truth? How can we tell if someone is lying to us? What are the different types of lies? Does truth matter anyway when negotiating a settlement?

Chapter 15 Fairness The third of the mediation trinity of power words. Used at every mediation. But why is it so important? Does fairness just mean what I think that I am entitled to? Can we measure it? Learn how we can balance up competing ideas of fairness in order to reach a settlement.

Chapter 16 Trust Trust is usually in short supply at mediations. What does trust mean in the context of a mediation? Learn how it is lost and how it can be created. Can you mediate at all let alone negotiate a settlement if there’s no trust at all?

Chapter 17 The Psychology of Offers Offers are the oxygen of mediation. Without offers mediations die. Learn how best to make and receive offers that can be accepted. Look at how to apply our knowledge of emotions, instincts and mind traps to help us negotiate more effectively. Is there a right way to sequence offers or does it all just depend on the day? How do you most effectively set the price and value of settlement?

Chapter 18 Online Mediation We behave differently online. Do we mediate differently? If yes, in what way? Is it for the better or worse? Learn how to make the most of mediating online and what traps to avoid. And there’s more You will find checklists, graphs, charts, tests and self-audits. To keep things simple detailed references to sources are not given. Endnotes are at the end of each chapter. Stephen Walker October 2021 ix

Acknowledgements

I have found the work of the following researchers and writers particularly helpful and have drawn on them in this book. Adam Alter, Ben Ambridge, Dan Ariely, Miriam Baddeley, Julian Baggini, Simon Baron-Cohen, John Bargh, Lisa Barret Feldman, Buster Benson, Louanne Brizendine, Derren Brown, Henry Brown, Tom Butler-Bowdon, Tony Buon, Neel Burton, Emma Byrne, Tom Chivers, Matthew Cobb, Moheb Constandi, Daniel Covington, Dexter Dias, Nicholas Epley, Dylan Evans, Adrian Furnham, Gerd Gigerenzer, Thomas Gilovich, Malcolm Gladwell, Jonathan Haidt, Tim Harford, Bruce Hood, Alan Jasanoff, Nick Kolenda, Sue Knight, Jack Lewis, Michael Lewis, Martin Lieberman, David McCraney, Mario Magrini, Neil Martin, Ian McGilchrist, Richard Nisbet, David Omand, Daniel Pink, Phyllis Pollack Amanda Ripley, Robert Sapolsky, Stuart Ritchie David Robson, Barry Schwartz, Tali Sharot, Julia Shaw, Olivier Sibony, David Spiegelhalter, Rory Sutherland, Tiffany Watt Smith, Richard Wiseman Also, thanks to Bruce Greig and his ‘Maths For Smart Lawyers’ course for refreshing my understanding of probability.

x

Dedication

To Andy Hill, editor and mentor extraordinaire

xi

Other books by Stephen Walker published by Bloomsbury Professional

Mediation Advocacy: Representing and Advising Clients in Mediation (2nd Edn, 2018) FAQs for Mediators (2017) Mediation: An A–Z Guide (2016)

xii

Contents

v

Preface  Chapter 1

Introduction

1

Chapter 2

The Brain

15

Chapter 3

Feeling: Emotions

41

Chapter 4

Thinking: Cognitive Biases and Mind Traps 

63

Chapter 5

Intuition 

79

Chapter 6

Self

97

Chapter 7

Frequently Observed behaviours (FOBs): Barriers

113

Chapter 8

Frequently Observed behaviours (FOBs): Bridges

137

Chapter 9 Persuasion 

163

Chapter 10 Prediction 

185

Chapter 11 Perception 

199

Chapter 12 Money 

207

Chapter 13 Power 

231

Chapter 14 Truth 

259

Chapter 15 Fairness 

283

Chapter 16 Trust 

295

Chapter 17 The Psychology of Offers 

309

Chapter 18 Online mediation 

327

Index 

347

xiii

Chapter 1

Introduction

Why read this book? 1.01

Try these two questions.

Q1 How many animals of each kind did Moses take on to the Ark? Q2 Jack is looking at Ann but Ann is looking at George. Jack is married but George is not. Is a married person looking at an unmarried person? Yes/No/Can’t be determined. Choose one. Answers at the end of the chapter. How many did you get right? One, two or none? The first question you can answer quickly without a lot of thought. The other you have to think about. At mediations we have to answer both types of questions whether we are mediators, clients or advisers. As explained in the Preface there is an ‘infodemic’ of research from neuroscience, behavioural economics and psychology about how we answer questions, process information and make decisions – the New Stuff. Can the New Stuff help us get more out of mediation? If it can how do we apply it?

Phronesis 1.02 What we are looking for in this book is phronesis – the ancient Greek word for practical wisdom. With equal emphasis on both words: wisdom – research findings that make sense – and practical – that can we use in mediation. We go to mediations to make peace not war. But mostly we prepare for war. Invitations to mediate are often tucked away at the end of lawyers’ correspondence that reads like a declaration of war. Why? When we are at mediation, we all look at the same situation, the same information, the same issues and see things so differently. Why? Is this just self-interest or is there more to it? As I said in the Preface this is a practical book drawing on my experiences in over 700 mediations. It focuses on civil and commercial mediations but applies more 1

1.03  Introduction widely. I have tried to keep it simple and based on real life mediations. You won’t find sentences like: ‘It is through an examination of human existence – how we exist in the world and how we interrelate with and respond to others – that we can acquire an understanding of the various behavioural strategies that we adopt in such conflict situations’.1 Or: ‘‘for discussion’s sake, we can speak of the activation of a neural structure by a particular perceptual stimulus, the natural experience, our neural networks exist as a complex, interconnected and dynamically variable web, and contextual circumstances are multi-modal and multidimensional.’2

Spies, used car salesmen, existentialist philosophers or ‘blobologists’? 1.03 I don’t draw on the works of existentialists such as Kierkegaard, Heidegger, Husserl or Sartre. Instead, I look at what people who have adopted insights from behavioural economics in their business and professional lives say and do. For example, marketers – people like Rory Sutherland, head of Ogilvy Creative, who has embraced behavioural economics in understanding how consumers behave and how to influence their behaviour. See his book Alchemy3 and his Nudgestock website; nudgestock.co.uk. Or spies, like Sir David Omand, former Director of GCHQ, who in his book How spies think describes how intelligence analysts make use of the New Stuff. Or professional poker players, like Annie Duke who in her book Thinking in Bets4 explains how poker players apply the New Stuff to their decision making and risk evaluation. In particular I draw on what active mediators are saying. In case you haven’t come across the word before, ‘Blobologists’ is the rather disrespectful name given to neuroscientists who examine the workings of the brain by using techniques such as fMRI (Functional Magnetic Resonance Imaging) which produces brightly coloured brain scans (see 1.18). Does what they do explain how we behave? Or have we just been dazzled by the images? What about behavioural economists themselves? Let’s remember the words of Amos Tversky, one of the pioneers with Daniel Kahneman of behavioural economics and cognitive biases: ‘What we do is to take what is already instinctively known by usedcar salesman and advertising executives and we examine them in a scientific way.’ Should mediators join the advertising executives and used car salesmen? After all, as mediators aren’t we doing the same thing? Helping people make a decision to do something that they don’t really want to do which will cost them more than they really want to pay. Or are we more like spies with warm smiles and cold eyes trying to find out people’s secret motives and hidden agendas?

Why are cognitive biases so fashionable? 1.04 In simple terms it’s down to Daniel Kahneman and his book Thinking, Fast and Slow5 which was published in 2011 and deservedly became an international bestseller. It summarises the work that he had been doing with Tversky since 2

Introduction 1.05 the 1970s. Tversky died in 1996, but Kahneman was given the Nobel Prize for economics in 2002. He was a psychologist. So how does a psychologist end up being awarded a Nobel Prize for economics? What was happening? The creation of behavioural economics was happening. This was looking at how people actually behave when deciding how to spend their money, not at abstract laws and mathematical models. This boom in behavioural economics saw other books becoming international bestsellers, for example Freakonomics in 2005. We all found this fun. Economics after all was traditionally the dismal science. Now behavioural economists were asking fun questions such as: ‘If drug dealers make so much money why do they live with their mothers?’ Or: ‘Which are more dangerous – guns or swimming pools?’ Gleefully, Kahneman and Tversky carried out multiple experiments to show that people do not act in ways that maximise outcomes as economists define the term. We do not take decisions in a rational way. This is because we are all prone to cognitive biases. These lead us to take instinctive intuitive decisions not reflective considered ones. We rely upon our gut not our brain. When our heart tells us one thing and our head the other, we choose the heart. We let our instincts, not our reasoning, show us the way. Kahneman called this fast reactive way System One and the slower reflective way System Two. Leaving aside the anatomical confusion between heart, guts and head the general idea was that when we make decisions, we don’t naturally make them in the way that will produce the best outcome or even an acceptable outcome. We confuse ourselves. Here is an example. When asked which numbers give the higher answer A

1x2x3x4x5x6x7x8 =

or B

8x7x6x5x4x3x2x1 =

Most people said B. Why? It starts with higher numbers. But A and B give the same result.

Mediation message 1.05

What is going on?

Eventually an answer emerged that delighted many mediators: people rely upon their emotions. Emotions and cognitive biases became the two dominant concepts. They are what matter, not evidence or numbers. Humans are not rational creatures. We all behave irrationally all the time – not just when we are in a dispute. A vocal school of mediation commentators proclaimed that how people behave in conflicts or disputes is all about perception and emotions. Facts don’t matter. Logic and rationality are irrelevant if not impossible. What matters is how you perceive things to be, not how they are. Subjectivity rules. Objective reality is an oxymoron. Psychotherapy-orientated mediators were in heaven. 3

1.06  Introduction At the same time there were developments in cognitive psychology, computer science, Artificial Intelligence and neuroimaging. Cognitive science is now an umbrella term for these various disciplines. Two of the main characteristics of cognitive psychology are: •

It uses the scientific method and finds less room for introspection than say Freudian psychodynamics.

•

Unlike behaviourism it accepts that internal mental states such as motivation, desire and belief exist.

And we must not forget evolutionary psychology which has developed over the last 50 years. This explains our behaviour as being evolved responses to our environment during the centuries of our evolution. The conclusions were also gloomy news. Our evolved responses are generally maladapted for our modern lives. What worked well for us when we were on the savannahs facing daily attacks from the proverbial sabre tooth tigers and snakes doesn’t work now. In fact, they are bad for us. Our fight, flight or freeze response is no good when you are in a mediation listening to the other side’s lawyers trashing your case and integrity. So, apparently, we are emotional, irrational and maladapted. A depressing thought. Looking around at mediations – at the lawyers, clients, experts and mediators – makes you wonder if this really is the case. Back to the original question.

Can the New Stuff help us get more out of mediation? 1.06 1.

You recall from the Preface my three questions about the New Stuff: Is it interesting?

Yes, most of it.

2.

Is it relevant?

Yes, some of it.

3.

Is it useful?

Only if we use it.

I was surprised how much scientists disagree with each other. In behavioural economics and psychology many differences of opinion seem to arise from definitional confusion. To avoid undue confusion here are the working definitions used in this book: 1.07 Behavioural economics is the study of the relationship between psychology and economic decision-making, individual and institutional. Neuroscience is the science of the study of the nervous system. Cognitive neuroscience looks at how neural circuitry produces psychological functions. Psychology is the study of human behaviour in the brain and mind. It is not the same as psychiatry, neurophysiology, psychotherapy, or philosophy although they do overlap. 4

Introduction 1.08 Some early conclusions were promising: •

A lot of the New Stuff really is very interesting. In fact, it’s fascinating and absorbing. So much so that you can easily lose yourself in it and become a neuro-nerd.

•

What’s more difficult to decide is whether it’s relevant to what mediators do when acting as mediators. Or what it can tell clients and their advisers, particularly lawyers, about how to behave at mediations to get the best out of the process. Some insights and findings seem to be transferable from the laboratory and theory to the mediation room and practice. Others don’t.

•

The tough question – is it useful? This can only be answered if we can find ways of actually using it. How can we change our behaviour as mediators, clients and advisors to help make mediation work better for us? You’ll find suggestions in this book.

Some useful definitions to bear in mind: •

Emotion: the immediate physiological reaction to a perceived stimulus.

•

Emotional experience: a short episodic event which triggers an emotion.

•

Mood: a general background state, a mixture of feelings and emotions.

•

Feeling: the physical and mental sensations produced as we process emotions – conscious and longer lasting than emotions.

•

Personality: the collection of patterns of how we act, think and feel that have resulted from genetic and environmental factors.

•

Trait: a characteristic.

Pass the salt please 1.08 You don’t have to spend too long reading into the New Stuff to come across some very challenging conclusions. It’s not just learning that things that you had believed all your life turn out to be wrong. It’s also the brand new findings. Such as: •

Is it really right that our decisions are made for us not by us (Benjamin Libert’s experiments)? If it is does this mean the end of free will? What happens to our system of morality and justice based on the idea of individual responsibility? (See 2.05.)

•

If we are all biased all the time and a bias is a deviation from the norm where are the norms? Are there any standards to judge anything by?

•

If our bodies affect our brains, ie  how we think and behave, what happens when the body goes wrong? See the 1996 case of Charles Whitman, the Texas shooter, who had a brain tumour. Is this the age of Neurolaw? (See 2.29 for more details.)

•

Psychopaths have different shaped brains. That’s why they are less fearful and empathetic than the rest of us. According to experimental psychologist Kevin Dutton they have reduced grey matter in the anterior prefrontal cortex and 5

1.09  Introduction reduced integrity of the axonal tract connecting this to the amygdala. What are we to make of this? You meet plenty of people who behave like psychopaths at mediations. But you can’t ask what their grey matter density is. •

Some research findings work in the lab but what about in real life? Would the best thing be to spray the mediation room with oxytocin – the cuddle hormone – so we would all make peace much more quickly? Am I just being facetious? Not at all. You can buy aerosol sprays that claim to do just this (see Chapter 16).

Be prepared to take some of the New Stuff with a pinch of salt. After all, let’s not forget the dead salmon (see 1.19).

Some more definitions 1.09

Let us look some of the recurrent concepts:

Mediation 1.10 There is no single universal definition of mediation but a conventional working one is: ‘Mediation is a voluntary, confidential process in which the parties to a dispute can meet with the help of a neutral intermediary, to work out their own settlement.’ Not all mediators agree with this. As the legendary mediator Ken Cloke posted on LinkedIn: ‘A  recent effort was made by a number of excellent, highly experienced mediators to define mediation. Here is what I wrote in response, with a few edits, and I thought I would share it: “An alternative approach is to not try to define it, because the nature of each mediation is uniquely determined by the complex, subtle, changing nature of the unique conflict it is meant to address, and consists of all possible ways of understanding and responding to it that might help the parties reduce, resolve, let go of, and prevent it – none of which can be known or relied on to succeed in advance. We learn what mediation is in each moment by being present with it, by watching how it shifts and turns, picks up disguises and discards them, leads us down blind alleys and into hidden chambers no one imagined were there. It is an exploration and an adventure and has a magic in it that will never be defined.”’ As will be clear in this book I don’t agree with him. In my experience this quasimystical approach doesn’t have much real world application in civil and commercial mediation in the UK. Nor does it help us work out how to get more out of the 6

Introduction 1.13 mediation process. Although it may explain why disputants are not flocking to mediation in the droves that mediators think they should be.

Negotiation 1.11 You can find hundreds of definitions of negotiation. A  working one  is: ‘Negotiation Is a process in which two or more parties talk to each other in order to persuade each other to do something which each wants and the other may be reluctant to do.’

Conflicts and disputes 1.12 Conflicts are disagreements which have stopped being friendly and productive and become hostile, unproductive and destructive. A wider definition, used by Edward De Bono, is: ‘A  clash of interests, values, pictures or directions. Conflict refers to the existence of that clash. The conflict is applicable from the instant that the clash occurs. Even when we say there is a potential conflict, we are implying that there is already a conflict of direction even though a clash may not yet have occurred.’ Disputes are the same but don’t last as long and contain fewer non-negotiable elements such as sacred values.

Disagreements and differences 1.13 Disagreements are friendly, cooperative and constructive attempts to resolve differences. Differences turn into disagreements because they are not compatible and a decision has to be made to do something which cannot accommodate all the differences. We can’t avoid disagreements. Why? Differences are inevitable. More than that we positively value differences. Diversity is encouraged and even celebrated. What happens? People can’t agree what to do. At this stage there’s a difference of opinion. The disagreement is usually still friendly and constructive. The aim is to reconcile the differences through collaborative discussion. Sometimes this can’t be done, or it just takes too long. Moods change, impatience and frustration flare up. The blame game starts. Now the disagreement over how to reconcile the differences has become unproductive, hostile and destructive. You have a conflict. 7

1.14  Introduction All conflicts involve some hostility. Not necessarily physical hostility. That would turn a conflict into a fight, a battle or a war. In civil and commercial mediations, you sometimes see violent elements – threats, physical intimidation, damage to property or the occasional punch. But it’s rare.

Confliction 1.14

I came across a new word which was coined by de Bono:

‘This is a new word. Its meaning is very obvious. Confliction is the process of setting up, promoting, encouraging or designing conflict. Note that confliction refers to the actual effort put into creating a conflict. It covers all those deliberate things which happen before the conflict is established. Confliction is meant to refer to a deliberate process. It is the effort to establish a conflict. We do not have to be concerned here with why anybody would want to establish a conflict.’ It describes a different approach – ‘leaning into’ conflict. Some mediators such as Bernie Mayer and Paul Randolph seem to encourage this sort of thing. The mediator and journalist Amanda Ripley distinguishes between High Conflict and Good Conflict. High Conflict is where we are absolutely sure that we are right and they are mad and bad. Good Conflict is catalytic. She refers to ‘walking into the fire.’ Let me declare a bias: I don’t agree. My perspective is that of a mediator, not a conflict management consultant. And I found the suggestions of de Bono, Mayer and Randolph of little relevance to day-to-day civil and commercial mediation. Although they may well be relevant to complex multi-party disputes with public or societal dimensions. But I’m at all not sure about ‘walking into the fire.’ Most people who walk into fires get burned to death.

Red flags 1.15 Before you read any more about the New Stuff here are some warnings. They echo a general concern voiced by Michael Mcllwrath when he said that he wondered whether lawyers can really cope with this sort of material. As he put it: ‘many of us (including myself) tend to play fast and loose with what we can glean from science.’ He questions whether we have the capacity ‘to digest and properly incorporate science into our practices.’ These are good questions. To help you to form a view here are some things to bear in mind.

Does anyone agree about anything? 1.16 Not everyone agrees about everything. Different researchers come to different conclusions. That much is obvious. Often it appears that this is because they are from different disciplines. And they are quite rude about each other. Robert Zion, the social psychologist, describes cognitive psychology as ‘social psychology with all the interesting variables set to zero’. Emma Byrne, a 8

Introduction 1.18 computational neuroscientist, says: ‘Evolutionary psychology is a bit like the Just So stories. There’s no way of knowing for sure that any of this happened’. But even when they are in the same discipline they disagree. Is this just the scientific way as Laura Feldman Barrett says? You do start to wonder whether if in reality there is no science, there are just scientists.

What are they saying? 1.17 Jargon is everywhere. We all use the same word to mean different things and different words to mean the same thing. As a general rule, mediators want to simplify in order to clarify. Academics want to complicate in order to clarify. Keep an eye out for this. Scientists don’t use language designed for public consumption. Some of them are more willing to explain their research in terms that non-specialists can understand. But many still look down on popular science or pop-psychology. And it’s true that some popular formulations of scientific findings are so oversimplified as to be misleading or seem trivial. As psychologist Claudia Hammond says: ‘Sometimes neuroscientific studies can feel as though they reflect what we already know to be true from our experiences.’

The lab rats are university students and ‘WEIRD’ 1.18 Many of the experiments are carried out on university students, often in the USA, under laboratory conditions. Most of them are under 25 – the age at which most people have yet to acquire a fully developed prefrontal cortex in their brain. How well do students’ choices in laboratory experiments correlate with real-world choices made by other adults? How well do the experimental findings translate to the real world? They are often criticised for a lack of ecological validity. Compared with real life practitioners, eg estate agents or bond traders, students have less knowledge and experience. Their motivations to succeed are probably less and certainly different. As William Poundstone says in his book Priceless6 ‘university students do repetitive experiments for little or no cash and get bored. After while they may not even try’. Concern is now expressed that too much of the research was carried out by people from WEIRD countries on people from WEIRD countries. WEIRD stands for White, Educated, Industrialised, Rich and Democratic. So be careful about assuming that research findings are universally applicable. At least as equally important is the gender deficit. Amazingly many of the older studies such as the Milgram and the Stanford experiments were carried out on participants who were all men. Again, do not assume that data is data and algorithms based on it must be right. Data can be incomplete and biased as Caroline Criado Perez explains in her book Invisible Women. 9

1.19  Introduction

Test results can’t be replicated 1.19 A key element in the classic scientific method was that experiments could be replicated. Reproducible means doing the same thing with the same data. Replication means using different data to ask the same questions. There seems to be a continuing crisis. Medicine and psychology have been badly affected. John Ioannides, an epidemiologist, raised alarm in 2005 with his article ‘Why Most Published Research Findings Are False.’ And things are still bad. According to Stuart Ritchie of Kings College London a survey published in 2015 of a hundred studies in three leading psychology journals was only able to replicate 39% of the results. Why is this? There are abuses from the misuse of data. Questionable techniques such as Harking – coming up with a hypothesis after the data has been analysed and p-hacking where the statistical findings are manipulated to get below the magic p < 0.05 – this is the measure of the probability value. Below 0.05 indicates that is statistically significant. That’s vital according to Ritchie because scientific journals only like to publish findings that are statistically significant and ideally have conclusions that are novel. Ritchie claims that about 50% of research findings in psychology have evaporated. A well-known example is Amy Cundy’s work on posture and self-confidence. This was the second most watched TED  Talk, with over 72 million views. Now her findings that the power pose raised testosterone levels and made you feel more confident has been disowned by her lead researcher. There are others, like John Bargh’s fascinating work on social priming. When exposed to words about the elderly – bingo, retired, Florida – people walked out of the room more slowly (Bargh, Chen & Burrows, 19967). Researchers failed to replicate these efforts (Doyen, Klein, Pichon & Cleermans, 20128). Results are re-examined and reinterpreted such as the famous Milgram experiment about electric shocks and authority and Zimbardo’s Stanford experiment about prison guards. In both cases the well-known and influential results about learned behaviour and obedience to authority have been discredited. 1.20 Is it really a crisis? Some like Stuart Ritchie emphatically say yes. Even Daniel Kahneman wrote an open letter to the academics studying social priming. Although he described himself as ‘a general believer’ he told the social psychologists that they had to address the problem of replication of experimental results to avoid a looming train crash. Well, if the train crash happened there seem to have been plenty of survivors and normal service resumed. Others are less alarmist. Professor Lisa Feldman Barrett robustly says that psychology is not in crisis. As she bluntly states: ‘But the failure to replicate is not a cause for alarm; in fact, it is a normal part of how science works’. Nicholas Kolenda explains in his book The Tangled Mind9 that many replications fail because they failed to replicate the original methodology (Stroebe & Strack, 201410). For example, researchers failed to replicate the findings that lonely people take more warm baths and showers (Donnellan, Lucas & Cesario, 201511). The original 10

Introduction 1.22 researchers published a follow-up paper highlighting flaws in that replication. They also conducted a new study that successfully replicated the findings even more robustly (Shalev & Bargh, 201512). But although the effect of slow walking as an example of social priming was not replicated, many studies replicated this core principle in other contexts. It is argued that these conceptual replications are more useful than exact replications. Kolenda concludes that: ‘You can dismiss individual studies, but you can’t dismiss the overwhelming aggregate of evidence’. This is for you to weigh up when reading some of the more mediation-relevant findings.

Don’t be misled by the colourful images of brain scans 1.21 Researchers use a method called functional magnetic resonance imaging (fMRI). This works by tracking blood flows through the brain. Neurons that are working require more oxygen and glucose. Usually, the researcher – a blobologist – administers a stimulus to the patient and watches which parts of the brain become active. This pattern is lit up. Hence the colourful and arresting brain scan images. Don’t be misled. These are the result of some clever computer graphics. What actually happens is: •

Scans can only see large changes in brain activation. This is because the fMRI technique has low spatial resolution. So researchers concentrate on the big changes.

•

Blood flow fluctuations are subtle, so they have to be highly processed to make them visible.

•

Every fMRI picture is in fact a statistical aggregate of hundreds of attempts. Errors can be made. See below.

Dead salmon 1.22 Craig Bennet at the University of California demonstrated the risk and tendency of error by performing an fMRI scan on a dead salmon. Despite the subject having no brain activity the scan could, due to the statistical processing, produce pictures that appeared to show a very active brain. Many researchers do say that there is something fishy about neuroimaging.

TOP TIP As mediators we are used to not taking everything that we are told at face value. Just maintain a polite, curious, sceptical approach to the research findings. Road test them against your own experience for ecological, ie  real world, validity. 11

1.23  Introduction

Are there any givens? 1.23 1

Yes, there does seem to be consensus – on three things:

The brain basically does two things: it • Persuades and • Predicts These are evolutionary responses to the stimuli of our environment. The brain has evolved to persuade and predict. It has not evolved to find the truth. This is significant for mediation and mediators.

2 Our unconscious has been rehabilitated. This is not in the Freudian sense. Rather in the sense that some of our thinking takes places without our knowing it at the time. We may not have access to it at present but it does exist. And in answer to William James’ question – which came first the conscious or the unconscious – it’s the unconscious. James13 (the founder of American psychology) thought it was the conscious (see Chapter 5). 3 Emotions affect our behaviour. We know that from our ordinary life. In fact, neuroscience goes further and now says that we can’t make decisions at all without involving emotions. The work of Professor Antonio Damasio was transformative with his somatic markers hypothesis (see Chapter 3). This is relevant to how we make our decisions at mediations. But is it really the case as a well-known American mediator said in her weekly blogpost that 95% of decisions are emotional and 5% of decisions are rational? Probably not.

Decisions, decisions 1.24 Mediations are a series of decisions. Everyone – clients, advisers and mediators – makes a series of mini-decisions before the big one for clients alone: do we agree on this proposal? Can the New Stuff can answer questions such as: What will help us make a decision? What hinders us? Do we need to make optimal decisions, ie the best possible outcome for us? Should we be maximisers or satisficers? In fact, is a survivable decision all we really need – aka good enough? (See Chapter 5.) Gambling provides fascinating insights. Look at decisions as bets – there is no future, only probabilities. This is potentially relevant to mediations. Plenty of parties talk about playing poker and treat negotiation as being all about bluffing, deception and brinkmanship. A  big underlying question is whether we make decisions at all. Do we reason or do we rationalise? Many such as David Robson in his book The Intelligence Trap14 claim that we don’t think things through in a logical series of steps to arrive at a decision. Instead, we have unthinking responses which we then justify or rationalise. Are these unthinking responses the result of habit, reflex, brain structure or emotions? 12

Introduction 1.23

In a nutshell 1.25 •

The New Stuff is fascinating. But watch out for the hype.

•

Scientists – both neuro and social – disagree a lot. Everything is provisional.

•

Keep an open mind. There is good stuff to learn.

•

Don’t forget to have a pinch of salt handy.

•

Road test the New Stuff against your own experience,

Answers to questions 1.23

Q1 None. Q 2 Yes.

Q1 Noah not Moses took the animals on the ark. If you gave the wrong answer you were acting quickly without thinking. You were sort of right: it was some old guy who was in the Bible. Q2 This takes more reflective thinking. Jack (married) > Anne (not married) > George (not married) Jack (married) > Anne (married) > George (not married) You have to look at the two possibilities: Anne is either married or she is not. In either case one married person will be looking at one unmarried person. NB Using a pen and paper helps.

1 Randolph The Psychology of Conflict (Bloomsbury), p 5. 2 Hicks Embodied Conflict: The Neural Basis of Conflict and Communication (Routledge). 3 Sutherland Alchemy: The Surprising Power of Ideas That Don’t Make Sense (WH Allen). 4 Duke Thinking In Bets: Making Smarter Decisions When You Don’t Have All the Facts (Portfolio). 5 Kahneman Thinking, Fast and Slow (Penguin). 6 Poundstone Priceless: The Hidden Psychology of Value (Oneworld Publications). 7 Automaticity of social behavior: Direct effects of trait construct and stereotype activation on action (1996). 8 Behavioral Priming: It’s All in the Mind, but Whose Mind? (2012) 9 Kolenda The Tangled Mind: Unravelling the Origins of Human Nature (Kolenda Group LLC). 10 The Alleged Crisis and the Illusion of Exact Replication (2014). 11 On the association between loneliness and bathing habits: Nine replications of Bargh and Shalev (2012) Study 1. 12 On the association between loneliness and physical warmth-seeking through bathing: reply to Donnellan et al (2014) and three further replications of Bargh and Shalev (2012) Study 1. 13 (1842–1910). 14 Robson The Intelligence Trap: Revolutionise your Thinking and Make Wiser Decisions (Hodder & Stoughton).

13

Chapter 2

The Brain

In this chapter you will learn: •

What you need to know about the brain.

•

What you need to unlearn.

•

How the brain affects our behaviour.

2.01 Do mediators, clients and their lawyers need to know about the brain’s structure and function? We have never known so much about the brain. About 90% of what we know today we have learned in the last 20 years. Neuro-research isn’t slowing down in amount or scale. Look at the The Human Brain Project – an EU funded ten-year collaborative project started in 2013.1 The aim is to build an ICT-based research infrastructure for brain research. Fascinating, impressive and at times worrying. But does the ‘neuro-infodemic’ tell us anything that we can use to help us do mediation better? Some mediators think that it does. Just to take three examples. •

Paul Randolph wrote often about the amygdala hijack – how stress chemicals stop you thinking about anything except fight or flight.

•

Jeremy Lack has for some years emphasised how the brain operates on glucose and oxygen. When our levels fall, so does our ability to think constructively.

•

Tim Hicks explains conflict in terms of the creation of neural pathways that determine our future behaviour.

A  working knowledge could be useful as background which makes it easier to absorb new information. But this is helping in an indirect way. 2.02 Does it help in a direct way? Can you apply it to what you do in mediations? Tim Hicks, for one, certainly thinks you can. He advises mediators as a specific practice approach to: ‘Consider devoting portions of mediation sessions to educating parties about relevant theory’. He lists ten examples including explaining that there is a dorsal and ventral balance to our experience. An interesting suggestion but one that might not be well received by those participants who want ‘to just get on with it‘ and don’t even want to bother with a joint opening session. 15

2.03  The Brain What you will be able to do is to explain behaviours, particularly negative ones, in context. For example, when someone accuses others of lying you can refer to the way in which the brain recreates memories and the work of Professor Elizabeth Loftus (see 2.24). Emphasising the technical aspects can reduce the emotional ones. But there is a big problem. Even knowing as much as we now do about the brain there is even more that we don’t know or understand. Complexification theorists say that the brain is simply too complex for us to understand. Despite all the new knowledge about the brain there is no agreement about how it works or even what it does. As Professor Matthew Cobbs says, half the problem is because of what we’re looking at: ‘It can be argued that there is no possible single theory of brain function, not even in a worm, because the brain is not a single thing (scientists are even hard put to come up with a precise definition of what a brain is).’ If the scientists struggle what hope is there for mediators, lawyers and clients? Perhaps the pragmatic approach is to just to accept what Professor David Eagleman says ‘If our brains were simple enough to be understood we wouldn’t be smart enough to understand them.’

Are we being bamboozled? 2.03 So, are we being bamboozled? There is a danger that we are. There is a huge expanding neuro industry. The brain is sexy. It sells. Put the word ‘neuro’ in front of something and sales increase. Images of the brain have the same effect. And this can mislead us. See the work of Professor Molly Crockett. Watch her TED talk. Here’s an example: In a 2008 MIT experiment groups of participants, both experts and non-experts, were given descriptions of psychological phenomena with explanations. Some of the explanations were written with neuroscience references and others were not. The explanations and the neuroscience had nothing to do with each other. The findings showed that the non-expert groups ‘judged that explanations with logically irrelevant neuroscience information were more satisfying than explanations without’. The experts did not. We don’t have to completely give up hope. Knowing something is useful for mediators on a practical level. Bearing in mind at all times Alexander Pope’s2 line that ‘a little learning is a dangerous thing’, it provides a framework in which other things can be more easily absorbed. You will be able to process what you hear – some of the concepts and vocabulary will be familiar. You won’t get thrown by the jargon and will be better placed to calibrate your response from awe through utter disbelief, to a pragmatic scepticism.

Fast track 2.04 I have tried to avoid the seemingly mandatory chapter on brain structure and function. I have kept references to lobes, neurons and neurotransmitters to a 16

The Brain 2.06 minimum. Instead, I have outsourced this task to two other writers. My invitation to all fellow neuro-nerds is to read: •

Marco Magrini and his book The Brain: A  User’s Manual – a brilliant short accessible account.3

•

Matthew Cobb and his book – comprehensive, up to date and readable.4

Instead, I highlight: •

how the brain deals with answering the three key mediation questions: How did this happen? – Memory. Why did this happen? – Intelligence. What happens next? – Prediction.

•

a streamlined track to the essentials.

•

golden oldies – theories and information that are past their sell by date.

The essentials Function 2.05 The brain works through chemicals and electricity. It is made up of cells called neurons. Each brain has an average of 86 billion of them. They communicate through synapses by firing, ie emitting action potentials or spikes (see Appendix 1 at p 36).

Structure 2.06

The areas relevant to mediation are:

1 Amygdala – processes emotions particularly fear. It’s also involved in social processing. Those with a large amygdala are likely to have more friends, social networks and make more accurate social judgements about people (see 3.14). 2

Prefrontal cortex (PFC) – rules emotions and puts brakes on the amygdala.

3

Hippocampus – centre for processing, creating and retrieving memory. Larger and more active in women.

4

Nucleus accumbens – part of the reward system which comprises the ventral tegmental areas, nucleus accumbens and medial prefrontal cortex.

The key chemicals are: 1

Adrenaline, aka epinephrine. This is the fight or flight neuro hormone produced in stress situations. Increases blood flow to muscles and oxygen flow to the lungs.

2 Cortisol. A stress chemical. Increases blood sugar. Stimulates flight and fight response. 3

Dopamine. The energiser; one of the feel-good chemicals.

4 Oxytocin. Calms things down. Increases empathic ability, Reduces stress hormones, Can have negative effect of increasing out-group feelings and aggression (see 5.11). 17

2.07  The Brain 5 Serotonin. Contributes to feelings of well-being. Naturally produced by physical exercise and sunlight. 6

Testosterone. Fast, assertive, focused, all-consuming, masculine.

Fuller lists are in Appendix 2 at p 38 and Appendix 3 at p 39.

Golden oldies 2.07 Here are some recurrent statements you hear in mediation circles and Conflict Resolution Literature. If you hear them ask yourself how much of an expert is the speaker.

The brain is a computer 2.08 Many explain the brain by saying that it’s a computer. This is just a metaphor. Metaphors come and go. We have moved on since Plato described the brain as a winged chariot. More recent metaphors include hydraulic systems, telephone exchanges, electrical field theories and wiring diagrams. But the concept goes further: one day computers will be like brains. Deep learning programmes are like neural channels that are developed as we learn things. Whether this is possible is hotly debated. A basic discovery of neuroscience is that the brain is biologically based. As Professor Alan Jasanoff says the brain is: ‘rooted in banal phycological processes and subject to the laws of nature’. In other words it’s just another organ in our bodies. It’s wet, soft and messy – 80% of it is water. It’s not dry, hard and silicon based.

The brain has three main parts 2.09 In the 1960s Paul Maclean described the triune brain. This consisted of the reptilian (the oldest part), the mammalian and the neocortex. According to his theory, all developed at different stages in human history and reflected the evolution in the way that we used our brains. The reptilian brain was the source of our most basic actions, feelings and reflexes. The neocortex was the area that deals with the most advanced cognitive functions. The mammalian or midbrain was the centre of emotion and learning. Not true. His ideas, rejected by neuroscientists, as opposed to mediation commentators, TV science presenters and novelists, have now been debunked. Oxford anatomist Ray Guillery suggested in Nature, that it should have been classified as ‘neuro-mythology’.

Brain areas 2.10 For a long time, we were told that particular parts of the brain specialise in particular functions, eg memory, prediction etc. The current hypothesis is that brain functions are much more distributed and not as localised as previously thought. 18

The Brain 2.13

We only use 10% of our brain 2.11 A comforting thought but a misplaced one. Sadly, the reality is that we use all our brain. We don’t have any spare neural capacity on standby. Thousands of brain scans have shown that the whole brain is activated even when people are asked to think of nothing. After all the brain uses a disproportionate amount of energy. Even when at rest it uses about 20% of our total consumption even though it is only 2% of our body mass. When it is busy it uses much more.

‘Right-brained’ people are more creative 2.12 The fact that the brain has two hemispheres led to the popular suggestion that we all have a dominant hemisphere related to personality, with a right brain being more creative and the left more logical. Not true. Matthew Cobb, in reviewing the latest research and thinking, concludes that: ‘in reality, with the exception of language in the left hemisphere and a tendency for emotional responses to be the responsibility of the right hemisphere (this is also seen in our primate relatives) there are no clear fundamental differences in the functions of the two sides of the brain.’

Mirror neurons make us human 2.13 In 1992 researchers at the University of Parma discovered that a set of neurons in the ventral motor pre-cortex of a monkey’s brain fired not only when the monkey performed an action but also when the monkey saw that action performed by another monkey. Hence the name mirror neuron. Cue much excitement and exaggeration. For some researchers the cells were involved in the evolution of language. For others dysfunctional mirror neurons explained autism. One neuroscientist described them as the ‘neurons that shape civilisation’ because they enabled humans to feel empathy. None of these claims is true. In 2010 neurons with the mirror function were identified in the human brain. Something unexpected was observed. Cells fired when patients either observed an action or carried out one. Some of the neurons produced an inhibitor response, suggesting their role was to prevent imitation. Unexpectedly these cells were not only in the areas where they have been identified in monkeys. 11% of the human mirror neurons were found in the hippocampus – part of the brain involved in the creation and processing of memory (see Appendix 2 at p 38). See Chapter 6 and the section on empathy. 19

2.14  The Brain

New kids on the block 2.14

There are two statements that often made about the future.

Neuroscience is transforming human self-understanding 2.15 Mediators are not so sure that it is. As Henry Brown, a renowned mediator and trainer, says: neuroscience provides data not answers. The competition between classical and constructed theories of emotions show that the data once collected still has to be understood, interpreted and used (see 3.17–3.21). But as the psychologist Dr Christian Jarrett says in his book Great Myths of the Brain:5 ‘Weighing up all the evidence, it seems clear that neuroscience hasn’t yet transformed how we see ourselves… but watch this space’.

Free will is dead 2.16 Free will is our feeling that we can choose how to behave. Whether we decide to do something quickly or slowly we make a decision and then we do it. If I want to move a cup of hot coffee, I see it and reach out for it. I make the conscious decision to do it and then my brain tells my arm to move. Not true, we are told. Apparently, my brain has already taken necessary steps to move my arm before I  decided to move it. We’re talking nanoseconds, but the sequence of events is: first the brain cells activate to enable the action to be taken; then I decide to take the action. Benjamin Libet carried out experiments using EEG (electroencephalogram) traces that reveal that subjects’ intentions to move a finger slightly proceeded their conscious decision to do so. This led some scientists and philosophers to believe that free will was an illusion. The conscious sensation of deciding to move your finger, they claim, is a rationalisation of decision that has already been taken by your nervous system. This is potentially transformative. Bang goes the hallowed concept of free will. Our whole justice system is undermined. How can we punish people if they don’t consciously make decisions to do things? And this is reinforced by the fact that our actions can be influenced by the state of our brain. Irrational acts can be explained by brain tumours. If you have a brain disease, how can you be blamed for deciding to shoot someone? Recall the Texas shooter in Chapter 1. Does this mean that we cannot make moral choices? Exciting and worrying stuff. The results of Libet’s experiments do not appear to be in question but the interpretation and implications are disputed. For example, Koch and others’ research has shown that Libet’s basic findings hold only if subjects are making arbitrary choices not if subjects are making important deliberate decisions. So, no need to abandon free will yet. This will be a relief to mediators who promote mediation as a process which gives the parties autonomy and the ability to make their own decisions on the outcome of their disputes. But it does illustrate a capacity, even a propensity, to act instinctively without conscious rational thought. 20

The Brain 2.20

TOP TIP Keep the salt cellar nearby and remember that everything is provisional. What you are told may be accurate and even true, but probably only for the time being. The same thing happens at mediations: everything is situated in time and context. Keeping this in mind helps maintain flexibility of thoughts, feeling and actions. And you really do need to stay flexible at mediations.

What’s the brain for? 2.17 The short answer is to keep us alive. We are built to survive. That’s what we have done. We are one of the 1% of species who have survived until the 21st Century. Our brain helps us do this – survival means food, water, safety and producing the next generation. The main functions it uses to do this also enable us to answer the three basic questions that arise in mediation, which are (see 2.04): •

What has happened? – Memory.

•

How did it happen? – Intelligence.

•

What happens next? – Prediction.

Memory 2.18 Memory is a survival mechanism. We learn to recognise what is dangerous. This information is not stored centrally. Instead, our brain uses a complex synaptic network that neuroscientists admit that they don’t yet understand. But in it every bit of memory – words, images, emotions – is encoded in the area that created it. Intriguingly no one knows how large the memory is (see Chapter 14 on Truth and Chapter 6 on Self). The big news is that it’s reactivated every time it’s brought back to mind. Memory is an act of recreation not retrieval. This has significant consequences for mediation and for the legal system and is no longer controversial. At least in the sense that the English legal systems accept this – see the comments on Truth in Chapter 14.

How does memory work? 2.19

There are different types of memory:

Short-term memory 2.20 This lasts only 20 seconds or so and records what’s happening to us in life, eg walking down the street, bumping into people, seeing cars passing. Unless 21

2.21  The Brain we associate what we see with something we already know or deliberately try to memorise it, the memory is gone. The big point is that research has shown that we can only hold a small number of chunks of information in our head. A chunk is the largest meaningful unit in the presented information that a person recognises. According to George Miller who pioneered this work the maximum is seven (plus or minus). Others say it is only four. This is relevant to how you talk to people and persuade them (see Chapter 9).

Operative memory 2.21 This is part of short-term memory. We use this for example to repeat a telephone number. The two main categories are: •

Explicit memory which can be episodic such as your mother’s birthday or semantic such as London is the capital of England.

•

Implicit memory which concerns automatic motor skills such as how to ride a bike.

We need short-term memory in order to anchor long-term memory. This includes everything we know: reconstructions, language meanings, locations, events, ideas, emotions and beliefs. We use mechanisms of association to remember.

Long-term memory 2.22 This includes both recent and distant events such as bumping into a friend and also remembering when you first met at a party 20 years ago. This can be surprisingly durable and we can find that we can remember things that happened years ago better than things that happened only hours ago.

Can we trust our memory? 2.23 The short answer is no. That is the current consensus of memory researchers. The longer answer is: maybe and of course. Much depends on: •

what memory

•

when we are remembering

•

how we are feeling.

And there is no need for us to be over concerned about this. As Dr Julia Shaw says in her book: The Memory Illusion:6 ‘if I have done my job, your memory should now seem hopelessly flawed and impossibly inaccurate…’ but goes on to conclude. ‘Although I have been at pains to point out the many ways that our memories are faulty and can lead us astray I must also emphasise how incredible they are’. Our memory’s reliability depends on various factors. 22

The Brain 2.25

1

The questions you were asked

2.24 Professor Elizabeth Loftus’s research has been very influential. She looked into eye-witness evidence. Did subsequent information affect an eyewitness’s account of an event? Could they be misled by visual imagery and the wording of questions when giving eyewitness testimony? Her conclusions were: •

A memory of an event that has been witnessed is highly flexible.

•

If someone is exposed to new information during the interval between witnessing the event and recalling it, this new information may have marked effects on what they recall.

•

The original memory can be modified, changed or supplemented.

In her classic 1974 psychology study Reconstruction of Automobile Destruction people were asked to estimate the speed of motor vehicles when answering different forms of questions. People are not generally good at estimating vehicle speed and therefore can be more suggestible. 2.25 After watching a film of motor accidents volunteers were asked to describe what had happened as if they were eyewitnesses. They were asked specific questions such as: ‘About how fast were the cars going when they smashed/collided/bumped/ hit/contacted with each other?’ The findings were: •

The estimated speed was affected by the verb used. The verb implied information about the speed, which systematically affected the students’ memory of the accident.

•

Those who were asked the ‘smashed’ question thought the cars were going faster than those who were asked the ‘hit’ question.

In a second experiment they tested for response bias and changed memory representation. Volunteers were shown a 60-second film of a car travelling through the countryside followed by four seconds of a multiple traffic accident. •

They were then questioned about the film. 50 students were asked: ‘How fast were the cars going when they hit each other?’, another 50: ‘how fast were the cars going when they smashed into each other?’, and the final 50 – the control group – were not asked a question at all.

•

A  week later – without seeing the film again – the students were asked ten questions. A critical question was randomly included: ‘Did you see any broken glass? Yes or no?’ There was no broken glass on the original film.

They found that students who had been asked how fast the cars were going when they crashed were more likely to report seeing broken glass. They concluded: •

that memory is easily distorted by questioning technique and information acquired after the event can merge with original memory causing inaccurate recall or reconstructive memory; and 23

2.26  The Brain •

this effect is not just due to a response-bias because leading questions actually altered the memory a participant had for the event.

Adding false details to a memory of an event is known as confabulation. And Loftus went on to investigate the wider phenomenon of false memory syndrome. 2.26

Loftus’s research has been criticised:

• It lacked real world realism/ecological validity. The volunteers watched videos rather than a real-life accident. As videos lack the emotional impact of witnessing a real-life accident the participants would be less likely to pay attention and be accurate in their recollections. •

The results were not replicated. A  study conducted by Yuille and Cutshall (1986) had conflicting results. They found that misleading information did not alter the memory of people who had witnessed a real armed robbery. This implies that misleading information may have a greater influence in the lab than in the street.

•

Students were used as volunteers. They are not representative of the general population. They may be less experienced drivers and therefore less confident in their ability to estimate speeds. This may have influenced them to be more swayed by the verb in the question.

As we shall see there are overlaps with the concepts of priming and framing – two key elements in the work of Tversky and Kahneman (see 12.27 and 14.38).

Mediation message 2.27 At mediations people’s recollections and memories occupy huge amounts of energy and time as the parties and their advisers argue about what actually happened. But how can you resolve the differences? Mediators, unlike judges, don’t make findings of fact. Instead think about what influences our memory.

2

Whether you were paying attention

2.28 To consolidate your memory you need repetition. But repetition is not sufficient on its own. You also need attention. If your brain isn’t focused on what you’re reading or listening to, repetition is of no use. To keep your attention you need motivation, ie the inner drive of curiosity or the emotional impact of a future reward, for example a university degree.

Mediation message 2.29 Mediators need to build rapport with people (see 8.34). A great start is to remember their names. Doing this also demonstrates warmth and competence which are two of the qualities we assess people on when we first meet them. So, pay attention. Keep paying attention – all day long. Clients expect you to provide direction, guidance and momentum. Being on top of the detail – who said what and when 24

The Brain 2.31 during the negotiations – shows them that you are in control. Clients may be losing their way or the will to live but you are both the calm centre and the dynamo that drives the process.

3

The context

2.30 Memory is also contextual. The particular memory is imprinted along with the visual, auditory and sensory information experienced at the same time. When trying to remember something, imagine where you were when you first learned the information. Take a mediation. You will receive masses of information. Some new that you have never heard before. Some referring to what you have read in the papers. You are never sure what will turn out to be important. Some things are obvious. But often it’s asides or casual remarks that are clues to what is influencing someone’s behaviour. You cannot take a note of everything. There are no transcripts.

TOP TIP •

Break the day into chunks. Some define themselves – the first caucus with defendant and so on. But as the day progresses, they blur.

•

After each chunk review on your own what you have been told. And who said it. Create an image – it was just after the coffee was brought in or just before the lawyer switched seats so that they could be nearer the door etc.

•

Jot down key words and bullet points in your quiet intervals in your own room in-between sessions with the parties. The images and the jottings will reinforce each other. Being unable to recall something that was said earlier does not inspire confidence in you as a mediator.

4

How you were feeling

2.31 Emotions influence our reconstructions. These can be changed and even be totally wrong. We all remember how we felt at certain key events in our own lives or at public ones like 9/11 or the London bombings. Individual events do the same thing. Sometimes as a protective measure they are erased from our memory. Sometimes quite the opposite happens and false ones are created. Memory is reconstructive not reproductive. In fact, research shows that the brain can be changed physically by remembering. Professor Tali Sharot carried out an experiment to find out what happens inside the brain when you learn the opinions or beliefs of others. Did this change anything physically? In her experiment volunteers were shown a documentary and then completed a questionnaire about the documentary. For example, what colour dress was the woman wearing when she got arrested? How many policemen were there at the time? They took the test a few days later in an MRI scanner. 25

2.32  The Brain Before they took the test they were shown the answers from the other participants. Some of the answers were deliberately fake but this wasn’t disclosed. Some volunteers taking the test thought the dress was red. All the others said it was white – the fake answer. What happened? Amazingly 70% of people went along with the fake answers given by the others. 2.32 At the end of the test it was disclosed that some of the answers given by the other participants were fake. The test was re-taken and the volunteers were asked to answer the questions according to their own memories. Half of the volunteers’ memories were changed forever. They now had an inaccurate recollection of the documentary. Why? The answer lies in the amygdala. This is to do with processing emotions and in particular fear. It is also involved in social processing. But the volunteers only went along with the fake answers if all the participants gave the same fake answer. If only one did not, the volunteers did not change their minds. Groupthink and social proof were in play (see 5.11 and 7.49). Going along with the fake answers was not just to avoid conflict or save face. It appears that their memory trace was physically altered.

Mediation message 2.33 At mediations everybody wants to give their versions of events. The parties want to tell you as the mediator how they remember things. The advocates want to tell the other side: how their clients recall what happened and how the judge is going to accept their evidence rather than their opponent’s. The obstacles to settlement at mediation are often a series of gaps. The information gap is often the most prevalent and important. It’s filled in by information based on what people remember – their versions of the facts. Everybody at mediations, particularly mediators, benefits from understanding how memory is made and used. Mediators can point out by referring to the Loftus research for example how fallible memory generally is. This is especially helpful in diffusing the anger and outrage caused when people are accused of telling lies (see Chapter 14 on Truth). As Victor Hugo said in a very non-PC way: ‘Intelligence is your wife, imagination your mistress and memory your maid’.

Intelligence 2.34 What is intelligence and what do we use it for? There are competing theories. Here are two definitions: •

Jeff Hawkins, who is currently reverse engineering the neocortex, defined intelligence in his book On Intelligence7 as: ‘the capacity to remember and predict patterns in the world… By combining what has been seen before and what is happening now’.

•

Marco Magrini gives a wider working definition of human intelligence including ‘understanding, learning, self-awareness, creativity, logic and the ability to solve problems so as to adapt to increasingly complex circumstances’. 26

The Brain 2.37

What sort of intelligence? 2.35

Is there just one type of intelligence or are there multiple types?

Daniel Goleman popularised the theory of Emotional Intelligence, ie the ability to read and interpret other people’s emotions. This has proved to be very popular in mediation circles. Naturally it has been criticised as not offering anything extra to IQ or the Big Five models (see 6.06) but it seems to be accepted that it may have some application. As with Neuro Linguistic Programming (NLP) (see 9.25) whether you think it is nonsense or not you have to be aware of it at mediations. Howard Gardner identified nine types of intelligence: 1 naturalistic 2 musical-rhythmic 3 logical-mathematical 4

interpersonal (equivalent to emotional intelligence)

5

intrapersonal (the relationship with yourself)

6 verbal-linguistic 7 existential 8 bodily-kinaesthetic 9 visual-spatial. And is thinking of adding more.

Is our intelligence changing? 2.36 Has the intelligence inherent in our genome not developed further over the past 50,000 years? Possibly not, but we have succeeded in exponentially increasing the knowledge available to us. For example, when Johannes Gutenberg, the inventor of the printing press, died in 1468 there were between 160–180 Bibles around. Today 10 million new webpages are published every day. When Alfred Binet introduced intelligence quotient (IQ) at the beginning of the 20th century it was used as evidence that intelligence was fixed. Ironically, he thought that intelligence was common sense, judgement, or the ability to adapt to circumstance and that you could use it to improve your social and economic position.

Have we become more intelligent? 2.37 Over the last 100 years the population’s average IQ has risen. This at least appeared to be the findings of research by the New Zealand academic James Flynn. Does this mean we are more intelligent than our grandparents and greatgrandparents? Since our genetic heritage has not changed over such a short period of time Flynn argued that the answer must be found in culture. For him the brain produces culture, but culture physically alters the brain. This is the Flynn effect. Worryingly, recent research suggest that a negative Flynn effect is now operating, 27

2.38  The Brain with IQ scores declining in Scandinavia, Australia, the Netherlands, France, the UK and German-speaking countries. The concept of static intelligence has been associated with talent (a natural gift) and social class (hereditary). This has been challenged. Professor Carol Dweck has been very influential. She introduced the concepts of: •

a fixed mindset where people are convinced that intelligence and talent cannot be expanded;

•

and a growth mindset which believes that intelligence can be developed. It draws on the research findings about the plasticity of the brain and embraces challenges and failures as a stimulus to growth.

She records how when children are persuaded to move from a fixed mindset to a growth mindset the educational results are astonishing. This partly reflects another feature of the brain which has come to prominence: its plasticity. The brain can change throughout our lives not just in the early formative years. Fresh neural pathways are laid down. It can change shape. A  well-known example is London taxi drivers who have to pass the Knowledge – an examination to test their detailed knowledge of routes. Their hippocampus grows.

Mediation message 2.38 Does this really help at mediations? A little perhaps, but not much. What is really relevant is the finding that intelligence does not prevent you from falling into mind traps. In fact, the more intelligent you are the more susceptible you are to error. David Robertson explains that the more intelligent we are the better we are at coming up with reasons to justify our beliefs, ie rationalisations (see Chapter 1). Take some examples. Kary Mullis8 was a Nobel prize-winning biologist. He believed that he encountered an ‘extra-terrestrial racoon’ and that AIDS was not caused by the HIV  virus. Another Noble prize winner – he won it twice – the chemist Linus Pauling9 claimed that Vitamin C supplements could cure cancer. Both were spectacularly and obviously wrong. How can this be? As mentioned in Chapter 1 evolutionary psychology explains that our brains developed not to find truth but to persuade others (see Chapter 9). When we formed groups, we had to compete with group members for our share of resources. In other words, we had to persuade them. That’s what our brains are good at: advocacy, not analysis. So, the theory concludes we make our decisions based on instinct and emotion, usually unconsciously. Then we work out reasons why we are right. You see this all the time at mediations: •

Persuasion instead of explanation.

•

Advocacy instead of analysis.

•

An overwhelming desire to show that you are right instead of trying to do the right thing.

•

Making a case instead of making a deal. 28

The Brain 2.41 For more on this see Chapter 9

TOP TIP •

Being intelligent makes us better at rationalising – not reasoning.

•

Watch out for this both in others and in yourself.

Artificial intelligence 2.39 More important for mediation than natural intelligence might be artificial intelligence. This has been defined as the theory of development of computer systems able to perform tasks normally requiring human intelligence, such as visual perception, speech recognition, decision-making, and translation between languages. Obvious applications are manging large amounts of data, searching documents for references to particular topics, words etc. Probably the most immediately relevant for those at mediation will be predicting outcomes of trials or modelling risks and settlement options. These are dealt with in Chapter 10. A more sinister use could be software that reads people’s emotions from their voice, facial gestures and body movements. Or assesses their veracity. This is particularly relevant to online mediations. See Chapter 18.

Prediction 2.40 This has two senses: the ordinary one of guessing an outcome and the neurological one of how the brain works. Chapter 10 deals with the first meaning. In this chapter we look at the second. The current thinking is that the brain evolved to ensure that there were enough resources so that the animal could grow, survive and reproduce. It needs to budget resources. Too much food and you become obese, too little and you become fatigued. This balanced state is called homeostasis and is the condition of optimal functioning for the organism. It includes variables, such as body temperature and fluid balance, being kept within certain pre-set limits (homeostatic range). This balancing act is called allostasis. To do this the brain runs an internal model of the body in the world. Psychologists call this embodied simulation. These simulations function as prediction signals or feedback signals that are constantly anticipating events in the sensory environment. This theory is known as predictive coding.

The uncertainty principle 2.41 Relax – this is not a reference to Heisenberg’s principle of quantum mechanics about mathematical inequalities. A principle of human behaviour is that we don’t like uncertainty. We find it difficult to cope with. It cause us distress. For 29

2.42  The Brain example research shows that we are less distressed when we know that we are definitely going to receive a painful injection than when we are not sure whether we are or not. Our preference to avoid uncertainty underlies much of our behaviour at mediation and explains a lot about our use of cognitive biases and heuristics. Memory, explanation and predication all help us survive by identifying dangers and working out what do to do. This reduces our uncertainty.

Who’s in charge: your body or your brain? 2.42 According to Thomas Edison: ‘The chief function of the brain is to carry the brain around’. Many think that the brain is in charge. It tells the body what to do. Stand up. Close your eyes. In fact, it’s a two-way process. We know our basic senses: taste, touch, hearing, smell and sight. These tell us about the external world – exteroception. Interoception tells us about our internal bodily sensations such as butterflies in our stomach. The processing of emotions and internal bodily signals takes place in the anterior insula. Some people have enhanced interoception, ie  they are able to sense their bodily sensations more accurately. An example of a test is when volunteers are played beeps which are synchronised to their heartbeat. Some beeps occur when the heart is beating and some in between beats. Volunteers say whether the beep was synchronous or asynchronous with their own heartbeat. Those with enhanced interoception show greater activity and grey matter density in and around the insula. Researchers have also measured how accurate people think they are at detecting their bodily sensations. As we shall see in Chapter 3 the integration of brain and body is particularly apparent in emotions. As Professor Alan Jasanoff of MIT concludes in his book The Biological Mind:10 ‘Even the idea that your brain is in control of the rest of you is suspect given the interactions between the brain and other organs tend to be reciprocal’.

TOP TIP •

Pay attention to your bodily signals not just to your thoughts.

•

Actively check your bodily signals don’t just wait for them.

Mediation message 2.43 We need to monitor our own behaviour as well as that of others. We do this by reading body language. We also need to monitor our own emotions as well as other people’s and to be aware of our triggers and calibrate our responses. When we observe other people’s behaviour we look at the external signs. When we monitor our own we look at both external and internal. 30

The Brain 2.45 Internal bodily signals are useful information when we make decisions. Interoception can guide our intuition or gut feelings. In one study carried out by Professor Sarah Garfinkel involving traders at the London Stock Exchange showed that those traders who were best at trading also had enhanced interoception. Traders explained that they had to make fast decisions. They used gut instinct to process the incoming information not their brain. And there’s more: we respond to the emotions of others. See mirror neurons (2.13). If your spouse is happy, you will be happy. If they are sad and disappointed so are you. So, interoception tells you both about your own emotions and of those around you. 2.44 At mediations be alert to what your body is telling you. The body can control the brain through mechanisms such as blood sugar, hormone balance and other physical signals. There’s a brain-body loop. Think back to when you have been in a dangerous situation. You felt your cheeks flush, stomach clench and your heart rate increase. This is the famous fight or flight response. It’s produced by your pituitary gland, in your brain and your adrenal gland on top of your kidneys. When you’re scared each gland releases hormones to stimulate the other. This is a feedback and it produces the physical and emotional experience of panic.

Can your brain’s activity be directed by forces beyond your control? 2.45 It appears that it can. A well-known example is SAD or seasonal affective disorder. If your optic nerves don’t sense enough light they tell the suprachiasmatic nucleus in your brain to produce melatonin. This is a chemical linked to drowsiness and sleep. Early sunsets in winter can cause your brain to be flooded with melatonin. And those who suffer from SAD experience this as a depressed mood. So, are all our actions caused by our brain? Probably not. Take the well-known example of Charles Whitman mentioned in Chapter  1. He was a 25-year old former US marine who in 1966 climbed to the top of the tower at the University of Texas and randomly shot at people with his rifle. He killed 16 and wounded 31. Why did he do it? There are various explanations. •

Brain disease. The autopsy found a tumour on his hypothalamus and amygdala, which regulate emotions. Did the tumour impair regulation? The Connally Commission could not conclude definitively one way or the other.

•

Personal. His childhood was unhappy and so was his marriage. He had been court martialled and reduced to the rank of private. He left a well prepared and detailed suicide note.

•

Social. Texas gun laws were lenient.

These alternative explanations reflect different views on human psychology. One is neuro-essentialism which attributes all actions to the internal functioning of the brain. The other is behavourism which says that human action is the result of outside forces. In this eternal struggle neuro-essentialism is currently more popular 31

2.46  The Brain although its supremacy is being challenged by those who emphasise the body mind feedback loop. Whether or not this means that there is no such thing as a freestanding enduring self is an interesting question. It seems that self is the result of complex interaction between our brains, our bodies and the world around us. This is discussed in Chapter 6. Bluffer’s guides to brain parts and brain chemicals are in Appendices 1 and 2 at pp 36 and 38.

The Reward System 2.46 You want to learn about this. Why? If you can activate someone’s reward system you are in business. At mediations you want people to know, like and trust you. It comprises the ventral tegmental areas, nucleus accumbens and medial prefrontal cortex. Dopamine is used to transmit information and distances us from risk while drawing us closer to food and sex. At mediations you, as mediator, can make sure that they have access to the former if not the latter. They’ll like you for it.

TOP TIP Activate dopamine spikes – food, drink and kind words work (see 9.06).

What does the brain need? Energy and fuel 2.47 As mentioned in 2.11 the brain uses a disproportionate amount of the body’s resources. It feeds on glucose and oxygen. That’s why you want to make sure that those Jaffa cakes are available at your mediations. See 4.13 and 5.14 for the importance of blood sugar in decision-making.

Sleep 2.48 The modern world cannot do without electricity. But thanks to artificial light our natural sleep cycle was broken. Thomas Edison wasn’t worried about this: ‘Sleep is an insane waste of time…’. He would say that because he was the founder of the Edison Electric Light Company. He was also wrong. Sleep is essential. The main thing that sleep does is spring clean the lymphatic system and restructure long and short-term memory. This helps the learning process. If you are deprived of sleep you’ll make mistakes and your brain won’t work as well. You will become irritable and less creative. 32

The Brain 2.51

Mediation message 2.49 We see the importance of sleep at mediations. People get tired. See the graphs at Chapter  5. Mediators who do several mediations a week, week after week, become tired. Especially when they do back-to-back mediations. They may think that they are heroic doing 14 mediations on successive days. Their clients are a lot less impressed as their eyes close, their energy level drops and everything just slows down. And don’t forget behaviour is contagious, particularly yawning. Consider power naps – they work. The Japanese use ‘inemuri’ to refresh themselves and the Spanish still have a siesta. Historically many creative people have used power naps: da Vinci, Newton, Tesla and Mendeleev who imagined the structure and layout of the periodic table of elements while asleep in his chair. Ideally, they should be 10–20 minutes long. If you do the sort of mediations when going on past midnight is seen as a triumph think about the clients. Lawyers and mediators may be used to pulling all-nighters. Clients are not. Tired mediators, clients and lawyers make mistakes. As the motorway signs say: ‘Tiredness kills’. At mediations you’re not going to have a car crash but you could wreck the deal.

Physical exercise 2.50 Juvenal wrote in his Satires: ‘Mens sana in corpore sano’ – healthy mind in a heathy body. And he was right. Regular exercise promotes a constant flow of biochemical effects. Regular aerobic exercise such as running, walking briskly, dancing, etc confers benefits to the brain in the long and short-term. In the short-term these activities raise the heart rate thereby flooding the brain with oxygen and alleviating stress by stimulating the release of molecules that promote psychophysical well-being – beta-endorphin (an opiate) phenethylamine (stimulant) and ananadmide (a cannabinoid).

Mediation message 2.51 Mediations consume a lot of energy – mental, physical and emotional. You need to be mediation fit. Recommendations: a balanced diet, sleep and physical exercise. Make sure you have enough food, drink and physical activity at mediations. Walk to the mediation venue from the station or your hotel. Have a nap on the train. Try these for discreet but effective physical exercise: •

Lift shoulders up and let them drop.

•

Raise both arms at the same time and reach as high as you can.

•

Rotate neck slowly from side to side.

•

Press down on the arms of your chair and push yourself off your chair. Keep your hands on the arms of your chair and take your body weight on your own arms. 33

2.52  The Brain •

Walk briskly outside round the block or inside around the building.

•

Use the stairs.

TOP TIP Whenever you can stand up, put your shoulders back, straighten your back and look forwards and upwards. Aggravating thoughts will be less tiresome. You’ll feel more energised and purposeful. This is not mumbo-jumbo. Just try it.

Mediation message 2.52 You won’t have people’s brain scans at mediations – unless you are at a clinical negligence mediation. Usually, you won’t even know their state of health. But being aware of what can cause people to behave in the way that they do helps you influence the way they react to what you say or do. For example: Knowing that the body influences the brain is important. One way that this is done is through having lunch or a break. See 4.19 for the study of the judges and their bail application which shows the importance of keeping everybody fed and watered. Being aware that some of our responses are automatic, instinctive and certainly beyond our conscious control will make you do two things. 1 Be alert to triggers. Ask yourself, given the circumstances of your dispute, if there are certain words or events which are likely to trigger an emotional response. If you don’t want a negative response be careful about using or referencing them. 2

Be careful about assuming that someone’s instinctive response to a trigger is indicative of the way they are going to approach the overall situation. Take care not to respond in kind. If someone snaps bad-temperedly at something you’ve said, don’t snap back. Pause. Count – one elephant, two elephants. If you want to manage other people’s emotions you have to manage your own first.

In a nutshell 2.53 •

The brain is ‘the world’s most complex machine’. We know more about the brain than ever before but there’s even more that we still don’t know about it. 34

The Brain 2.53 •

Keep your brain’s fuel topped up. Glucose and oxygen are essential.

•

Activate the Brain’s Reward Centre as much as you can at mediations, then you will be in business.

•

Memory reconstructs not retrieves.

•

Memory is not infallible. But it’s not completely unreliable either.

•

The brain looks for patterns to find meaning and to make predictions.

•

The brain needs emotions to make decisions.

•

Free will still operates at mediations. Or at least we all act as though it does.

•

If you have any doubts about the difference between your brain and your computer remember brains work better with a cup of coffee, laptops don’t.

35

2.53  Brain Structure

Appendix 1

Brain Structure

The brain consists of two hemispheres which can control and receive information from the other side of the body. The right-hand hemisphere controls the lefthand side of the body. The hemispheres are covered by the cerebral cortex. This is divided into four lobes which perform different functions: 1 The frontal lobe performs complex mental functions such as reasoning and decision-making. 2

The parietal lobe contains the somatosensory parts that process haptic – touch – information. Touching.

3 The temporal lobe processes information from our ears. The outer surface contains areas for understanding speech. The inner surface contains the hippocampus which is vital for memory formation. Hearing. 4

The occipital lobe towards the back of brain houses areas for the processing of visual information. Seeing.

Underneath the cortex (from the Greek word for bark) you find large clusters of neurons or nerve cells. 36

Brain Structure 2.53 The thalamus (deep chamber) is at the centre of the brain and relays information from the sense organs to the appropriate areas of the brain. Basal ganglia surround the thalamus and are involved in the control of voluntary movement. The limbic area is between the basal ganglia and the cortex. It is involved in emotion, reward and motivation. It includes the hippocampus and the amygdala. The midbrain is at the top of the brain stem. It contains neuron clusters that controls eye movement. It’s also the main source of dopamine. The hind brain is at the top of the spinal cord. It has three structures that together make up the brain stem: Medulla oblongata controls involuntary functions such as breathing and heart rate. Pons (bridge) connects the cerebral cortex and the spinal cords. Concerned with arousal. Cerebellum (little brain) involved in controlling and coordinating balance and movement but also involved in emotion and cognition.

Neurons The brain is made up of cells. The two main types are neuron (nerve cells) and glial (glue cells). The circuitry is complex. The average human brain contains 86 billion neurons. Each neuron has about 10,000 synapses. This allows the neurons to maintain about 150 individual connections. So, there are trillions of configurations. As David Hebb said in 1949: ‘neurons that fire together wire together’. i.e. neurons that fire together connect and reinforce their reciprocal links. This is your connectome. Glia or glue cells play their part. Here’s an example. Researchers at the University of Rochester carried out experiments where human glial cells were grown inside the forebrains of embryonic mice. They showed enhanced cognitive abilities as they grew up. They learned how to navigate a maze twice as quickly as untreated mice. Communications between neurons is effected by chemicals called neurotransmitters. The cells give orders to start-up. The orders arrive via action potentials. These are variations of just a few milliseconds in the electrical tension travelling through the cell. They trigger the release of neurotransmitters such as dopamine, serotonin and noradrenaline at the synapse, the junction between cells. The centre of each neuron is called the soma. It is incontestably small. Each neuron has one axon which is like a transmission cable which carries information out of the cell to other neurons. There are shorter extensions called dendrites. These receive information into the cell. The word comes from the Greek word dendron meaning tree.

37

2.53  Brain Parts

Appendix 2

Brain Parts 1 Amygdala: the instinctual core. The Prefrontal Cortex (PFC) (see below) moderates it. Drives emotional impulses. Gets fired up to fight by testosterone vasopressin and cortisol. Calmed by oxytocin. Larger in men than in women. 2

Anterior cingulate cortex (ACC): Fear of punishment. Weighs options, detects conflicts, motivates decisions. Smaller in men than in women. Testosterone reduces worries about punishment. Also the area for self-consciousness.

3

Dorsal Premammillary Nucleus (DPN): deep inside the hypothalamus. Larger in males than in females. Contains special circuits that detect territorial challenges by the males. Men are more sensitive to potential turf threats.

4

Hippocampus: centre for processing, creating and retrieving memory. Larger and more active in women.

5 Hypothalamus: the conductor of the hormonal symphony. Starts pumping earlier in life in women. 6

Insula: processes gut feelings. Larger and more active in women.

7

Mirror-Neuron System (MNS): emotional empathy system. Reads others’ facial expressions, interprets tone of voice and look for other non-verbal emotional cues. More active in the female brain.

8

Prefrontal cortex (PFC): rules emotions and keeps them from going wild. Puts brakes on the amygdala (see above). Larger in women and matures faster in women than in men by 1-2 years. Directs operations. Focuses on the matter at hand. Makes good judgements. Inhibits impulses.

9 Temporal Periodontal Junction (TPJ): area which works out solutions. This ‘cognitive empathy’ brain works out how to use the brain’s resources to solve distressing problems. Takes into account the perspective of the other person or people involved. During interpersonal emotional exchanges more active in the male. Quicker to come online and races towards a fix or fast solution. 10. Rostral Singular Zone (RSZ): brain’s barometer registering social approval or disapproval. Keeps teams from making the most fundamental social mistakes: being too different from others. Question is; am I accepted or not? Processes social errors. 11. Ventral Tegmental Area (VTA): motivation centre. Deep in the centre of the brain. Makes dopamine – a neurotransmitter required for initiating movement, motivation and reward. More active in men.

38

Chemicals 2.53

Appendix 3

Chemicals 1. Acetycholine. The most abundant neurotransmitter in the human body. It stimulates movement in both the peripheral and the central nervous system and in the central nervous system. 2. Adrenaline aka epinephrine. This is the fight or flight neuro hormone produced in stress situations. Increases blood flow to muscles and oxygen flow to the lungs. 3. Androstenedione. The mother of testosterone. Produced in the ovaries. Released by the skin as a pheromone. 4. Cortisol. Not a neurotransmitter, but a molecule influencing the brain significantly. Produced by the adrenal glands it’s called the stress hormone. 5. Dopamine. The energiser. All about feeling good, having fun and being pumped up to win. Addictive. Vital for strategic functions such as attention and movement. 6. Endorphins. These are the category of opioids which inhibit pain signals, ease them and give a sense of well-being and even euphoria. Released during physical exercise and sexual activity and in response to pain. Certain foods like chocolate trigger endorphin release. 7

Oestrogen. Powerful, in control, all consuming. Friend of dopamine, serotonin, oxytocin, acetylcholine and norepinephrine (the feel-good brain chemicals).

8

Noradrenaline. This is an excitatory neurotransmitter. Regulates attention and the fight or flight response. Increases heart rate and blood flow to muscles. In large amounts causes anxiety. Low amounts are associated with poor concentration and sleep problems.

9

Oxytocin. Finds pleasure in helping and serving. Calms thing down. Increases empathic ability. Builds trust circuit, romantic love circuit and attachment circuits. Reduces stress hormones, lowers men’s blood pressure. Plays a major role in father’s bonding with their infants. Promotes feeling of safety and security. At same time can have negative effect of increasing out-group feelings and aggression (see 5.11).

10 Serotonin. This neuro transmitter contributes to feelings of well-being. Regulates pain, digestive and (with melatonin) sleep mechanisms. Low levels are associated with depression and anxiety. Naturally produced by physical exercise and sunlight. 11 Testosterone. Fast, assertive, focused, all-consuming, masculine: aggressive, unfeeling, has no time for cuddling. Dominant, aggressive or powerful. Compelled to beat other males in the pecking order. Stimulates production of sweat. Activates the sexual aggression circuits. 39

2.53  Chemicals 12 Vasopressin. Secretive and subtle. In the background. Influences aggressive male energies. Brother to testosterone and oxytocin. With testosterone this runs the male brain circuit and enhances masculinity. Its strategic role is the continuation of the species. Intervenes in social behaviour mechanisms, sexual drive and couple attachment.

1 https://www.humanbrainproject.eu/en. 2 (1688–1744). 3 Magrini The Brain: A User’s Manual: A simple guide to the world’s most complex machine (Short Books). 4 Cobb The Idea of the Brain: A History (Profile Books). 5 Jarrett Great Myths of the Brain (Wiley Blackwell). 6 Shaw The Memory Illusion: Remembering, Forgetting, and the Science of False Memory (Random House Books). 7 Hawkins On Intelligence: How a New Understanding of the Brain Will Lead to the Creation of Truly Intelligent Machines (Non Basic Stock Line). 8 (1944–2019). 9 (1901–1994). 10 Jasanoff The Biological Mind: How Brain, Body, and Environment Collaborate to Make Us Who We Are (Basic Books).

40

Chapter 3

Feeling: Emotions

In this chapter you will learn •

What emotions are

•

Where they come from

•

What they are for

•

How we can recognise them

•

How we can control our emotions

•

Should we control them?

What is an emotion? 3.01 Why do we need to ask this question at all? It’s obvious what emotions are. They are things like fear, joy, anger. They are what we feel. And we’ve all felt them. Perhaps. Sadly, it’s not as simple as that. As Fehr and Russell say: ‘Everybody knows what emotion is until they are asked to give a definition’. This is not surprising. ‘Emotions’ as a word, category and concept were only invented in 1820 by Thomas Brown, a professor of moral philosophy in Edinburgh. Until then philosophers, physicians, moralists and theologians spoke of passions, appetites, moral sentiments, affections or desires. Even Prof Brown said: ‘the exact meaning of the term emotion is difficult to state in any form of words’. And it doesn’t seem to have become any easier over the last 200 years. 3.02 According to another professor, Caroll Izard, the problem is that ‘emotion’ has too many meanings. There certainly are a lot and trying to cut through them is not easy. Definitions such as this one from Stefan Hoffman don’t really help: ‘emotion is: (1) a multi-dimensional experience that is; (2) characterised by arousal and degrees of pleasure-displeasure; (3) associated experiences, somatic sensations and motivational tendencies; (4), by contextual and cultural factors; and that (5) can be regulated to some degree through intra- and intro-personal processes.’ Izard himself summed up the most commonly cited features as: ‘Emotion consists of neural circuits (that are at least partially dedicated), response systems, and a feeling state/process that motivates and organises cognition and action.’ 41

3.03  Feeling: Emotions This is a lot more helpful. It isolates the three aspects of emotions, namely 1 The neuromuscular aspect which is the facial activity, neural patterning and body response. 2

The phenomenological aspect which is the motivational experience that has instant significance for the individual.

3

The neurological aspect which is the electro-chemical activity within the brain.

Where does this leave mediators? In a word: confused. That is why simpler definitions are used in this book (see 1.07).

What are emotions for? 3.03 The origin of the word is from the Latin ‘movere’ which means to move. This is the same derivation as for motivation. Emotions, movement and motivation are linked. However emotions might be defined, they are in essence a signal – both to other people and to ourselves. They give other people useful information about how to behave towards us. And alert us to take action. As mentioned at 1.22 there is a theory that we cannot make decisions without emotions. Damasio’s hypothesis of somatic markers is that emotions and their biological bases are involved in decision making. He cites his research into patients who had suffered damage to their prefrontal lobes. They suffered from emotional flatness and indecision. Before the damage they had not. In his book Descartes’ Error he challenges the dualist mind/body, emotion/ rationality distinction.

How many emotions are there? 3.04 Again, and unhelpfully, there is no agreement. Professor Sir Simon BaronCohen said that when he was compiling his emotion taxonomy he discovered that there were 412 discrete (ie  mutually exclusive semantically distinct) human emotions. Tiffany Watt Smith in her book: The Book of Human Emotions lists 144. Marco Magrini gives a long list of emotions: ‘Abandonment, admiration, affection, anger, anxiety, boredom, compassion, despair, devotion, dignity, disagreement, enthusiasm, envy, esteem, exasperation, fear, forgiveness, friendship, frustration, gratitude, gratification, grief, guilt, happiness, hatred, honour, indifference, indignation, irritation, jealousy, loneliness, love, melancholy, misandry. misanthropy, misogyny, mistrust, nostalgia, pity, pride, regret, remorse, resentment, revenge, sadness, shame, spite, solidarity, trust, wonder.’ That’s 50. He says there are many more. Looking through this list you might wonder whether these are the same sort of thing. Fear and anger are qualitatively different from boredom or exasperation. Is misogyny an emotion rather than a cognitive stance or settled point of view? The 42

Feeling: Emotions 3.06 same with misandry and misanthropy. If they are not cognitive stances are they just habits of mind? Lists of feelings and emotions overlap. Emotionologists – yes there really is such a word – argue about whether there are basic emotions as well as higher or cognitive emotions and cultural emotions.

Do we all feel the same emotions? 3.05 We are repeatedly told that people feel the same thing differently. Well, they do in the sense that they behave differently in response to the same stimulus. We see this at train stations all the time. As the delayed passengers gather around the information desk you see people angry and swearing. Others are merely frustrated or irritated. Some are anxious: others are forgiving. What’s always interesting is to see how people join up first with those showing the same emotion and then with the opposite. The angry brigade bunch up at the desk gesticulating, shouting and eventually swearing. Egging each other on. The resigned ones hover, smiling and muttering to each other. Reassuring each other. As they become exasperated at the commotion they remonstrate with the ‘angries’ and tell them to calm down and stop swearing. A second front of venting is established. The ‘us’ and ‘them’, the ‘in-group’ and ‘out-group’ syndrome is there for all to see (see 5.11). From all these taxonomies of emotion which ones do mediators need to know about? Let’s start at the three main categories: basic, higher cognitive and cultural.

Basic emotions 3.06 There seems to be some, if not complete, agreement that there are at least six basic emotions. They are: • Anger • Fear • Joy • Disgust • Distress • Surprise These are innate. Some claim that they are universal. Much of the seminal work on this was done in the 1960s by the American psychologist Paul Ekman. They are pretty well automatic biological responses. Mostly we can’t help ourselves experiencing them. For example, newly born blind babies still make facial expressions typical of emotion and they smile and grimace. The fact that we can communicate without words is largely down to our emotions. They may be involuntary and automatic but we do have some capacity to control 43

3.07  Feeling: Emotions the expression of them. This theory of innate and universal emotions is now challenged by those who believe in the constructed theory of emotions (see 3.19).

Higher cognitive emotions 3.07

Professor Paul Griffiths identified these as:

• Love • Guilt • Shame • Embarrassment • Pride • Envy • Jealousy These are not as innate as basic emotions but are more innate than cultural emotions. They are called cognitive emotions because they involve greater activity in the cortical region of the brain (see Appendix 1 at p 36). The basic emotions emerge between the fourth and ninth months of life. Anger shows itself around four – six months. The fact that all children wherever they are born show the facial expressions of the basic emotions at around the same age does support the view that they are universal. The higher cognitive emotions appear around two years old as infants start to be able to understand whether their own behaviour, as opposed to that of others, has been good or bad. If you show an infant of this age that you approve of what they have done they begin to show pride. At around 18 months they start to develop a sense of self. It’s not until about the age of four that they begin to develop a sense that other people may also have their own feelings and interests.

Cultural emotions 3.08 Cultural emotions are not universal. They are context driven. We feel as we do because that is our cultural norm. We feel as others expect us to feel. A wellknown example is:

Wild pig syndrome 3.09 This is found amongst men in the Gururumba tribe in New Guinea. It is very context specific. The tribe see it as normal. The syndrome’s name derives from seeing domesticated pigs temporarily running wild. It appears completely abnormal by Western standards. The characteristics occur amongst men aged 25 to 35 often when they are under financial pressure. Those afflicted engage in apparently involuntary antisocial behaviour such as becoming violent or stealing things of little importance. This is followed by amnesia when they go off into the 44

Feeling: Emotions 3.12 woods by themselves for several days. They return having destroyed the stolen objects and with no memory of the episode. Other tribe members tell them what happened and they resume normal life.

Romantic love 3.10 Disappointingly for romantics love is apparently another cultural emotion. La Rochefoucauld, the famous 17th century French aphorist said: ‘Some people would never have fallen in love if they had never heard of love.’ Others go further and say that nobody would ever fall in love unless they had not already heard romantic stories. Whether this is true or not, what is clear is that there are different conceptions of what romantic love is. According to anthropologists such as Margaret Mead and Bronislaw Malinowski the western idea of romantic love was unknown in Samoa or Trobriand tribes. But inevitably later anthropologists have questioned Mead’s methodology and the validity of her findings and conclusions. Can anyone agree on anything? 3.11 Many in mediation circles confidently assert that at mediations you can forget about facts, the law, logic and argument: it’s all about emotions. They are important but what they are and how they work is not as obvious as some would have us believe. Mediators need to be: •

aware of the different types of emotion;

•

able to recognise and differentiate them;

•

able to work out what people are telling you and how you can use this information.

Positive v negative emotions 3.12 We see some emotions as generally positive and others as generally negative. Positive ones include: happiness, joy, delight, anticipation, calm, cheerfulness, courage, empathy, gratitude, love, relief, satisfaction. Negative ones include: anger, disgust, jealousy, envy, impatience, frustration, boredom, contempt, disdain, dread, fear, humiliation, resentment, shame, panic. Negative emotions tend to last longer. Positive ones are often short lived. Negative actions help us focus on the danger, the task in hand. Positive ones tend to broaden our thinking and attention. Some are mixed. Hope, for example, can be seen as combining a wish for a desired outcome with anxiety that it won’t happen. But most aren’t. Experiencing negative and positive emotions at the same time is difficult. Deliberately cultivating a positive emotion can help defuse a negative one. There are more negative emotions than positive ones. This is probably because emotions are calls to action. Since our primary aim is to stay alive – to survive – we need to be warned about dangers. Negative emotions act as warnings. They prompt us to take defensive action – fear spurs us to escape, anger to attack. 45

3.13  Feeling: Emotions For example, if someone in a mediation is acting in a passive aggressive way, such as holding onto information which they have and which they will have to disclose if the matter doesn’t settle, you know that they are angry. This is your cue for some sensitive probing and guided listening (see 8.16–8.25). There are different types of anger, but in essence displays of anger are telling everyone: pay attention to me (see 13.60). 3.13 The view that some emotions are negative is not uncritically accepted. For example, anger which is often seen as a negative emotion is arguably positive if it motivates us to act in a pro-social way to correct an injustice. The Black Lives Matter movement would be seen by many as a case in point. Some mediators such as Liz Rivers are now recommending that you become ‘good at anger’. This may be sensible on a wider social scale to promote reforms. Whether it works in the same way in the narrow confines of a mediation room is much less obvious.

Where do emotions come from? 3.14 The paradox is that emotions exist only in the brain of the person who experiences them – ie  internally. But they are nearly always triggered by events outside the brain – ie externally. These events are independent of the brain. Does this mean that we have a significant inability to control emotions? Probably, and this is partly explained by the way in which the brain’s connections have been organised by evolution. There are far more neural pathways going from the limbic system (emotions) to the cortex (rationality) than the other way round (see Chapter 2). Take, for example, fear (an emotion that is crucial to our survival) or love (an emotion which is also essential for reproduction and the care of the young) or happiness (which makes us get up in the morning) (see also 13.55). How does fear work? You are out walking in the woods. You see something poking out of the grass. What is it? The information reaches the thalamus. This is immediately dispatched to the amygdala the control centre for fear. The information is still vague. But the amygdala orders: •

the brainstem to block all the body’s movements so you don’t get nearer to the danger;

•

the facial muscles to open the mouth and eyes wide so you can warn of the danger; and

•

the thalamus to stimulate production of adrenaline which increases the heart rate, blood pressure and breathing.

This is the well-known fight or flight response. All this takes about 40 milliseconds – less than half a second. And this happens before your brain realises that there’s a poisonous snake a couple of feet away. In other words unconscious precedes conscious activity. 3.15 The amygdala also told the hippocampus (memory) what has happened as well as the prefrontal cortex (cognitive learning). A memory is formed that will be useful in situations of danger in the future and help us to predict what will happen next time (see Chapter 2). 46

Feeling: Emotions 3.18 The cortex processes the distinction between the rational fear of a snake and the irrational fear of a dry branch. Although we have to ask, was the fear irrational? It was a warning. Better safe than sorry. Fear is one of the few innate emotions. Note in this example the fear was not triggered by the danger itself but by the anticipation or forecast of the danger. That’s fear. What about love? Further bad news for romantics is that although love is symbolised by the heart that’s not where it lives. Love lies entirely in the brain, specifically in the limbic system. Love may not be as Tina Turner says a ‘second hand emotion’ but it is an entirely neuronal experience.

Mediation message 3.16 Given that fear is often an anticipatory emotion what fear do we see at mediations? 1

Fear of the unknown. Clients have not been to mediation before. They don’t know what to expect. They fear the worst.

2

Fear of the known. The clients have dealt with each other before. They know what each other is like. The other side loses their temper. They are bullies.

3

Fear of the future. They are afraid of going to court and being cross-examined. They are scared that they will lose their house if the court decides against them.

4

Fear of making the wrong move. ‘I don’t want to inflame things by telling them this but I want you as mediator to know it.’ This can paralyse them: ‘We are so far apart. Our offer will annoy them, and they might walk out. I don’t want that to happen.’

Where do emotions come from? 3.17 The two main theories about the origin of emotions are the classical and the constructed.

Classical theory 3.18 According to this theory emotions are innate reflexes which are adapted to accommodate our evolutionary needs. People have followed it for millennia including Aristotle, Buddha, Darwin, Descartes and Freud and even up to the present day with Stephen Pinker, Paul Ekman and the Dalai Lama. Emotions are universal, innate and have an essence. From that we can assume that each one of us is not only equally emotionally expressive but we can also automatically recognise the same emotion in others. In fact, it appears that our brains were prewired with neurons for specific emotions. These characteristics are known as fingerprints and it’s through them that emotion is identified. 47

3.19  Feeling: Emotions

Constructed theory 3.19

This theory says that emotions are not innate. In fact, we create emotions.

Professor Lisa Feldman Barrett has advanced this theory. According to her experiments: •

There is no single brain region dedicated to a specific emotion or even to emotions alone. It’s a far more distributed system.

•

There are different expressions of the same emotion. Test this yourself by asking if you always have an angry face when you are feeling annoyed. Each emotion can be expressed in different ways.

For her the brain produces our emotions through interoception. This is an ongoing predictive system that means that you don’t have to be conscious of what’s going on all the time. You experience interoception through two basic spectrums covering two affects. The first spectrum covers the affects of pleasure and pain. The second covers agitation and calmness (see 2.42). Imagine you are out in the sun. You feel it pleasantly warming your skin. Or remember that bad stomach ache you had after that spicy meal. You experience strong affective feelings but they’re not actually emotions. They don’t in and of themselves make you happy or sad. It appears to be accepted that affects are innate. Babies perceive the affects of pleasure and displeasure from birth. That’s why they cry (see 5.17). Feldman Barrett says that emotions are concepts formed by cultural convention. When we have learnt to know the concept we will experience the emotion. That’s essentially what La Rochefoucauld said 300 years ago. 3.20 Back to the baby crying. Babies learn anger because their parents ask whether they are angry or sad because they are leaving them at the nursery. We construct emotional experience. What we often think of as an innate emotion is in reality a construction made by the relationship between culture, the brain, and our interpretations of our bodily sensations. Recall what was said about AI in Chapter 2. The debate about universal emotions is central to our understanding of the nature, causes and functions of emotions. The theory goes that in our evolution our ancestors facing daily challenges capitalised on specific, universal emotional expressions as a means of communicating those challenges to one another and cooperating to overcome them. In 2020 research using AI to examine thousands of images on social media provided evidence to support the universalist theory. Or does it? Two experiments using deep neural networks (DNN), examined the extent to which 16 types of facial expression occurred systematically in thousands of contexts in 6 million videos made in 144 countries in 12 regions around the world. They found that: 48

Feeling: Emotions 3.22 •

each kind of facial expression had distinct associations with a set of contexts that was 70% preserved across 12 world regions; and

•

across diverse geographical regions, there is a 70% overlap in the association between context and facial expression – evidence for substantial universality in our cyber-connected world.

Using social media was better than small samples of participants who typically label photographs of posed expressions with five or six words. This method is sensitive to the language norms and values of the participants and it also addresses the problem that inconsistent findings have supported diverging viewpoints about the universality of emotion. The 16 emotions were:

1 Amusement

5 Confusion

9 Disappointment 13 Pain

2 Anger

6 Contempt

10 Doubt

14 Sadness

3 Awe

7 Contentment

11 Elation

15 Surprise

12 Interest

16 Triumph

4 Concentration 8 Desire

3.21 But Professor Feldman Barratt has not given up. She highlighted three caveats: 1

The DNN to detect facial configurations learnt from human evaluators (‘raters’). The raters annotated the facial movements contained in each video clip by choosing from a set of English words describing emotion that were provided by the researchers.

2

The raters viewed the faces in context, not in isolation, so it is difficult to claim that the raters’ annotations were driven solely by the emotional meaning of facial movements.

3

Perhaps most central to the question of universality, the annotations were made by English speakers from a single country, India. In effect, the DNN enshrined a set of culture-specific beliefs about emotional expressions in its code.1

Words can’t describe how I feel 3.22 No one disputes that different cultures and languages have words that express emotions that have no linguistic equivalent in other languages. There are concepts for which English doesn’t have a word. Well known ones are ‘Schadenfreude ‘in German, ‘hygge’ in Danish, ‘pena ajena’ in Spanish. Here are some more examples: Han: Korean, meaning sadness and hope at the same time. Amae: Japanese, meaning the feeling of temporary surrender in perfect safety – or an emotion that takes the other person’s love for granted. You can depend on someone’s help without any obligation to be grateful in return. 49

3.23  Feeling: Emotions Hygge/Gezelligheid/Gemutchlichkeit/Kodikas: Northern European, describing feelings of physical enclosure and emotional comfort. They all reflect the physical environment of the countries. Similar words and concepts are much rarer in the languages of warm, sunny Mediterranean countries.

How do I know what I feel? 3.23 The same stimulus might provoke different emotional reactions in different people. At mediations some laugh, some swear and some throw their hands up on hearing an outrageous proposal from the other side. Emotions are often mixed. We can feel both. For example, grief and relief on hearing that someone with a long and cruel illness has died. Or love and hate which have been the core of much poetry from time immemorial such as the Latin poet Catullus: ‘I hate and love. If you ask me to explain the contradiction I can’t but I can feel it, and the pain is crucifixion’ Being able to identify and label your own emotions has been shown to be a valuable tool in controlling them. Instead of just saying that you are angry specify whether you are feeling frustrated, impatient, vengeful. Doing this helps you focus on what is causing you to feel angry and makes it easier for you to do something about it. Knowing this and practising can help your own emotion management. It can also help you respond appropriately to others’ expression of emotion whether verbal or visual or both. More help is provided by some revealing research into where we feel emotions in our body. Professor Lauri Nummenmaa asked 700 volunteers from Finland, Sweden and Taiwan to map on silhouettes of the human body where they felt 14 different emotions. They were not identical but remarkably consistent. People felt happiness over most of their body and envy in their head and heart, pride in their head and chest and so on. And there was some evidence that if you changed your posture you could change how you felt – standing up straight like your teachers told you. Have a look at the chart below. It’s even better in colour. Click https://www.pnas. org/content/111/2/646.

50

Feeling: Emotions 3.23

51

3.24  Feeling: Emotions

Was that a blink or a wink? 3.24 Can we read emotions? Can we read them in other people and in ourselves? We all feel we know how we are feeling. The problem is •

how can others tell how we are feeling?

•

how can we be sure that what we are feeling is what others would be feeling if they were feeling the same as us?

At mediations you are often interacting with strangers. You are working out how to deal with them with limited information and time. You are looking for signals. Are you decoding them accurately? 3.25

On an experimental level researchers use four main methods:

1 Self-report. Give people questionnaires and ask them what they say about themselves. 2

Observation. You watch and report on what you see.

3

Measure behaviour while the subject is performing a task, eg how quickly they did it while being subject to pleasant or unpleasant sensations.

4

Physiological. Take the subject’s blood pressure, test their salvia or galvanic skin response etc.

Obviously not all the above can be used in a mediation (try taking someone’s blood pressure at a mediation!) but observation is incredibly important in a mediation as it tells you so much about those participating. And there remains the common problem of the lack of concordance between the various measures. Someone may say that they were not nervous but the physiological tests show a high state of arousal. This means that you have to remember the red flags from 1.15 – not many things in cognitive science are always as definitive as some would have you believe. Recall the advice in 1.22: you have to road test the findings against your own experience. Does it make sense to you? Does it work in your own interactions with people and especially does it work in mediations? We know when we’re feeling angry but how do we know when someone else is? We look at their face, listen to their voice – the language they use and their tone and watch other bodily gestures. The face is the place to start. Especially the eyes. How true is this? Try the test at Appendix at p 61. 3.26 One of the most telling signs of someone’s emotional state is a rapid change in their face. There is quick movement of facial muscles in three areas: the eyebrows, the eyes and the mouth. These can be macro expressions which are visible for a few seconds or micro expressions which are visible for just a fraction of a second. We can easily confuse micro and macro expressions or miss them all together. So pay close attention to your conversational partner’s face. A  warning: learning to recognise emotions is one thing. Working out whether they are genuine or not is another. No problem: read their micro expressions. 52

Feeling: Emotions 3.28 Remember this sounds a lot easier to do than it is. The duration of a fraction of a second is too short for someone talking to you to detect a micro expression. Only experts can really interpret them by careful analysis of filmed interviews frame by frame. In practice, micro expressions are of no real value at mediations unless you have been professionally trained to spot them and are able to look closely enough into someone’s eyes to even see them. For light relief have a look at Nexi the robot and see how just a few movements of pupils and eyebrows give different emotional messages.2

Can we control emotions? 3.27 Morphology is the name given to the controlling of a displayed emotion for a certain purpose. By working on certain facial muscles we can increase or decrease the appearance of an emotion. If we want to mask our emotions we can control the muscles around our lips, holding them firmer instead of letting them tremble or turn down. The famous stiff upper lip. You will still be able to see the sadness around the eyes and brows that shows that our feelings are more intense than we want to display. By looking for inconsistencies between the three key facial areas – eyes, mouth and eyebrows – we can spot forced facial expression. Timing can also help us. If someone takes just a little too long before showing a certain emotion or goes on with it for an unusually long time the chances are they are struggling to communicate something that they don’t actually feel. When we tell a joke and someone takes a bit longer than usual to smile or laughs a bit too much we know they didn’t find it funny. In a mediation if someone ponders for a long time before replying to a simple factual question such as ‘How much was the property sold for?’ or ‘How much are your costs to date?’ you know that there’s backstory or hidden agenda. More sensitive probing is required. Mock expressions such as showing a deliberately serious face while telling a deadpan joke are playful and not serious. Sometimes they allow us to express emotions that we are really feeling but don’t take responsibility for. Say you are about to take a bungee jump. You are really scared but you pretend to be even more scared. This mock exaggerated expression of fear helps you work out how your friends are feeling. If they respond the same way they are admitting that they are also afraid and you are all in the same place. But if in fact they’re all cool about it you can then pretend you’re only joking about being afraid and hide your fear.

Mediation message 3.28 You see a lot of mock emotions at mediations. Lawyers who enjoy the theatrical side of mediations deploy them, but clients join in as well. Exaggerated expressions, tears, apparent shock and dismay and fulsome if synthetic sympathy. 53

3.29  Feeling: Emotions Controlling emotions is possible and sensible. Expressing them is something different. Is venting as it is called in mediation circles a good thing? This remains a contentious issue. See 3.33 on Venting. Some mediators actively encourage uninhibited expression of emotions. Others say that mediation is not therapy for the benefit of an individual. It’s a joint enterprise designed for mutual benefit of the parties. Because emotions are powerful influences on our behaviour, an inappropriate expression or suppression of emotions can hamper the free discussion that you need to reach settlements. Professor John Bargh points out that when we are subject to strong emotions such as anger: ‘we feel sure that we are right, and that we are seeing the world and other people as they really are’. We act accordingly and fail to recognise that emotional states are temporary. This is an important lesson for anyone attending a mediation.

Expressing emotions 3.29

How we express emotions overlaps with our personality.

For over 100 years we have been testing ourselves to see what we are really like. There’s a huge industry. For present purposes consider OCEAN. This acronym represents the five conventional main personality traits: Openness – this measures your openness to new experiences Conscientiousness – organised, efficient Extroversion – outgoing and energetic Agreeableness – kind and friendly Neuroticism – anxious, sensitive, worriers. These are not binary classifications. You are not agreeable or disagreeable. They are a range. See Chapter 6 on Self for more details. If in the meantime you want to check your personality try the online tests at Appendix 4 at p 61.

Non-verbal expression 3.30 To get a better idea of the interplay between your personality type and how you express emotion try Ekman’s Eight Styles of Facial Expression. 1

Withholders. They have naturally inexpressive faces. If you have ever been accused of trying to deceive someone online then you might want to have this as your facial expression style.

2

Revealers. They have very expressive faces. They struggle to hide their emotions which can get them into trouble.

3

Unwitting expressors. They struggle to hide their feelings in social situations where it could be more appropriate for them to do so. They usually believe they’re doing a good job of hiding their emotions even though they are not.

4 Blank expressors. They are the opposite of unwitting expressors. They think they’re showing the appropriate emotions but in fact their faces are blank. They 54

Feeling: Emotions 3.32 can find it difficult being in close relationships where they may be thought to be cold or uncaring. 5 Substitute expressors. They have a confusing situation. They might be under the impression that their faces are showing one emotion such as sadness but those looking at them see anger. If you find yourself confused by someone’s reaction consider whether you are in fact a substitute expressor. 6

Frozen-affect expressors. They can also confuse their conversational partners by showing one emotion that always seems to be on their face even if they are feeling something different. This is often due to the shape of the face and features. For example, a natural downturn at the corner of the lips or heavy lidded eyes indicates that you are feeling depressed even when you are not.

7 Ever-ready expressor. They tend to show the same initial reaction whatever the situation is. But soon after that they will show their real emotional response when it is often too late. Most people react to initial expressions not subsequent ones. 8 The flooding-affect expressor. They send out the most mixed signals. Their face is never neutral. There is always some emotion on their face. They can put off people who find this constant expression of emotion overwhelming.

Know yourself 3.31 You can find out what sort of expressor type you are by going on Google images search and looking for an image of a typically angry person. Then take selfies of yourself being angry, surprised, sad etc. Compare how you look with the Google stock image. Doing this gives you a better understanding of how others perceive you. This could help you in working out how to behave towards others and in particular how to get them to react towards you in the way you want. For example, if you are a mediator you want people to trust you. Pay attention to your facial gestures. The amygdala responds strongly to faces and in particular to eyes. This is why lots of adverts have faces on them. So be aware where you are looking and whether your eyes crinkle when you smile.

Know others 3.32

Ekman’s analysis also provides some useful life tips.

•

Revealer expressor types don’t often make good liars. If you are aware that you show your inner feelings on your face you can in situations where that expression would be inappropriate consciously suppress it and replace it with something more appropriate. That helps you manage both your own emotions and the messages or signals you are giving to the others at mediation.

•

By contrast if you are the blank expressor type you might understand why you have difficulty holding down close relationships. People like to see expressions of emotion in their loved ones. At mediations where you need to establish rapport be alert to the importance of appropriate facial expressions. The power of smiling or approving nods of the head should not be underestimated (see 8.03). 55

3.33  Feeling: Emotions

Verbal expression and venting 3.33 Expressing emotions verbally at mediations is still a contentious topic. Mediators in the UK refer to this as venting. What this means is talking openly about negative or unpleasant emotions. The theory is that doing this will help them go away. They will be released in a cathartic manner. Ventilation therapy was developed in California in the 50s and 60s and gave rise to the Primal Scream Theory. Outbursts of anger at yourself or others was seen as revealing an individual’s authentic identity. Let all your pain out. Barriers were broken down. You could see the real self. This view was particularly popular amongst therapists.

Letting it out 3.34 Many mediators, trainers and commentators still believe that venting is not only positive but necessary. Richbell says: ‘There is no better way to build rapport with a party than to let them freely vent their emotion… Best done in the open session so that the cause of their emotion, usually the other party, can see the strength of feeling.’ He goes further: ‘There are few rules in mediation but one is that if the parties (or anyone in the mediation for that matter) are becoming emotional, DON’T sit on it and DON’T avoid it. If the mediator stops it there will be a head of steam that will affect the mediation and eventually burst.’ Brown and Marriott say: ‘Suppressed anger can sabotage attempts to reach an agreed resolution.’ Christopher Moore refers to a Circle of Conflict including ‘strong emotions…that need to be addressed before people can engage in effective negotiation about interests. Boule and Nesic say: ‘Intense and strongly expressed emotions can seriously affect the climate of the mediation…. Some mediators attempt to prohibit the expression of negative emotions as it is seen as dysfunctional in the mediation… Suppressing emotion is not normally effective.’ 3.35 Randolph rightly explains that the revelatory nature of emotions is habitually overlooked or underestimated by mediators. He goes on to say that they should not try and persuade parties not to express their emotions: ‘The display of emotion is likely to reveal the roots of the dispute: what it is that triggered such anger… These are the realities of the conflict: so why should the mediator shield parties from this reality? It is neither required nor 56

Feeling: Emotions 3.37 is it helpful to protect parties from the emotions that form the very essence and underpin the entirety of the conflict.’ Giving a textbook example of stereotyping he concludes: ‘that the Anglo-Saxon temperament is quite averse to demonstrations of emotion’ and the ‘examination of the underlying feelings of a party in conflict is not a digression, but is, rather, a vital exercise for any existentially informed mediator.’ Alan Limbury in a Kluwer blog in October 2019 says: ‘I have learned that venting matters to the parties – although I often observe it makes their lawyers nervous and they instinctively try to shut it down. I encourage the lawyers to let the venting play out as something their clients need to get out of their system before they can start to move on.’

Bottling it up 3.36 So why should there be any doubt? At mediations we are usually talking about the expression of negative emotions such as anger, frustration, or vengefulness. The idea that unless these are expressed they will build up and in some way burst or act as a block to thinking constructively about the future and settlement is based upon the hydraulic theory of emotions. Emotion builds up inside an individual in the same way hydraulic pressure builds up in a closed environment until it is released. This Freudian based hydraulic theory is losing credibility amongst non-mediators. As Dylan Evans, a former Lacanian psychotherapist and academic, summarises in his book Emotions: ‘however, psychologists are increasingly realising that the hydraulic theory of emotion is too simplistic. It may well be very good on some occasions to indulge in the spontaneous expression of emotion. On other occasions, however, it can be positively harmful.’ But still, as we saw, the idea persists amongst mediators that people who bottle their anger and who do not let it out will eventually explode in an aggressive rage. Accepting that it might be helpful on some occasions, there is research to suggest that this is generally not the case. Prof Brad J Bushman tested the theory by letting people get their anger out. This did not make them feel less angry, in fact, people who vented their anger became angrier. Some mediators seem to be retreating from their earlier cathartic, letting off steam positions. Henry Brown in his book Psychology, Emotion and Intuition in Work Relationships3 refers to ‘the myth that venting an emotion will resolve it’. He concludes that although it might provide temporary relief for an emotional issue at mediation it will not cure a deep-rooted one.

Mediation message 3.37 As mediators we are not treating people for emotional difficulties. That is for trained health professionals. We are dealing with the effect of emotional outbursts on people’s ability to make decisions. 57

3.38  Feeling: Emotions Anger raises people’s stress levels. Expressing anger towards someone can make them angry. A spiral of stress starts. Stress is one of the main barriers to settlement at mediation (see 7.24). What should mediators do? For further discussion on how to manage anger at mediation, see Chapters 8 and 13.

Should mediators show emotion? 3.38 This simple question raises some fundamental issues about the role of mediators. We have been hired by the parties to perform a service. We describe ourselves as professionals. They expect us to be professional. This means that we have to act in certain ways. As mediators we belong to the helping professions along with accountants, lawyers and surveyors. We don’t belong to the caring professions, like doctors, nurses, psychiatrists, therapists. We are not treating people. So how are expected to behave? We are expected to: •

Have the necessary skill and competence.

•

Behave appropriately – with a professional demeanour – courteously and ethically. This goes to the heart of it: what is appropriate? Some clients prefer informality, others formality.

•

Be authentic. Carl Rogers the American psychotherapist who has had a huge influence on mediation training described this as being ‘dependably real’.

Of course mediators are humans and, therefore, display the same flaws and foibles as anyone else. But we are trained to be aware of them and to manage them. Mediation is an artificial environment. It might not be as theatrical as court but mediation is still a performance. Mediators are playing a role just as much as the lawyers who attend the mediation to represent their clients. If you are being authentic and human will you show emotions? If so, which ones? 3.39 Mediators will probably be excused for showing a positive emotion more readily than a negative one. Showing that you are happy that the parties have reached a settlement is more acceptable than showing contempt that they have not. In practice the emotions that mediators are likely to experience are Anger, Sadness, Happiness, Irritation, Frustration and occasionally Disgust. Some mediators think that it is not only permissible to show emotion but desirable or even necessary. One successful mediator habitually shouts at the parties and their advisers. He is a barrister and also shouts at his clerk. He is much liked and gets work as a barrister and a mediator. Another even more successful mediator, Rosemary Jackson QC, says that it is acceptable to show anger. She describes how to deal with the problem of the opinionated and over enthusiastic expert and concludes: ‘I begin to feel annoyed. Sometimes it is fine for a mediator to show her annoyance. She is human’.4 Alan Limbury a well-known Australian mediator advises restraint ‘I  regularly feel impatience and frustration.’ But he says: ‘I have learned from long experience to bide my time and let the parties do what they need to do before they are ready to consider resolution.’ Wise words. 58

Feeling: Emotions 3.40

TOP TIP If as mediator, you believe that you are there as the process manager then manage your human reactions. You may feel annoyed or bored but be slow to show it. If you start to feel these emotions take time out. Go for a walk. Ask yourself why you are feeling like this and what will stop it. From time to time you will feel annoyance, impatience and frustration. Others in the room will see that. They are hypervigilant. Don’t forget sometimes they are trying to test you. Poise under pressure is a highly regarded quality in mediators. If you are feeling annoyed, self-audit. Say’ ‘I don’t want to sound grumpy but…..’ Or ‘I am sure that we might all be feeling a frustrated but what we can do is …’ ‘I don’t want to sound impatient but we do need to move along and agree the wording of …. People have trains to catch.’ ‘I sense an air of …..’ And if you do express a negative emotion which is not well received then apologise. Your apology may or may not be accepted but it shows strength of character. Another much valued quality in mediators. You can also share emotions. When one room tells you that they are not making an offer, respond with ‘This is disappointing.’ ‘I can see that you are frustrated. I can understand it. I’m feeling a bit that way too.’ At all cost avoid Contempt or Disdain – see Chapter 12.

Mediation message 3.40 Is it true to say, as some mediators do, that because all conflicts involve people and people are never without emotions that emotions are always present at mediations? In this simplistic way yes it is. In the same way, you can say there’s blood at every mediation. That’s because people have blood in their veins. The question is: Is there blood on the carpet or not? In other words, are the emotions contained or spilt? Are they being used or abused? 59

3.41  Feeling: Emotions

In a nutshell 3.41 •

Emotions are powerful influences of behaviour.

•

No one knows for sure what emotions are and how many there are. Don’t worry about this lack of certainty.

•

Accept that emotions exist: good, bad and neutral.

•

Don’t ignore them. You can’t. Instead manage them – your own and other people’s.

•

Allow people to express emotion but not to turn the mediation into therapy or counselling session.

•

When you see emotions label them.

1 2 3 4

Cowen, A. S. et al. Nature https://doi.org/10.1038/s41586-020-3037-7 (2020). www. Youtube.com?watch?v=aQS2zxmrrrA. Brown, Dawson, McHugh Psychology, Emotion and Intuition in Work Relationships: The Head, Heart and Gut Professional (Routledge) Bond ed Mediation Practice (International Chamber of Commerce), p 44.

60

Personality tests 3.41

Appendix 4

Personality tests We all want to know what we are like at some time. You can find hundreds of tests that purport to tell you. Look at the ones online at www.16personalities.com or www.themuse.com.advice.14-free personalitytests.

61

Chapter 4

Thinking: Cognitive Biases and Mind Traps

In this chapter you will learn •

What cognitive biases are.

•

How they affect behaviour at mediations.

•

How to avoid mind traps.

•

Why they are a misnomer.

•

Why their effect is often exaggerated.

What are mind traps? 4.01 In simple terms they are cognitive behaviours that lead us astray and prevent us making optimal decisions. Recall the simple definitions in the Preface: Cognitive biases: predictable patterns of thought and behaviour that lead you to incorrect conclusions and sub-optimal decisions. Heuristics: just like cognitive biases, they are mental shortcuts, rules of thumb that enable us to deal with problems quickly. Logical fallacies: errors in thinking. There are two types. A formal fallacy (aka a non-sequitur) is a breakdown in how you say something. The ideas don’t follow-on correctly. It may a true premise but a false conclusion. An informal fallacy may have a valid logical form but be unsound because one of the premises is false. Let’s look at them in more detail. Here are some examples.

Cognitive biases 4.02 ‘I  am a better than average driver.’ Most people think that they are better than average drivers. And it’s not just the general public; 94% of American 63

4.03  Thinking: Cognitive Biases and Mind Traps academics when surveyed thought that they were above average. That cannot be correct. This is the self-serving or ‘Lake Wobegon’ bias. There are many more. And most of them influence our behaviour.

Heuristics 4.03

Do more words begin with ‘r’ or have ‘r’ as their third letter?

This is known as the availability heuristic. It’s easier to think of words beginning with ‘r’ than to recall words with ‘r’ as the third letter. Although the answer is there are more words with’ r ‘as their third letter. Heuristics are short cuts or rules of thumb. We all use short cuts all the time; not least in mediations. See Chapter 5 for more on heuristics and short cuts.

Logical fallacies 4.04 •

All elephants are green.

•

This is an elephant.

•

Therefore, it must be green.

Logically valid, factually untrue – Informal fallacy. Contrast with: •

If it rains the grass will be wet.

•

The grass is wet.

•

Therefore, it rained.

This may be true if it did rain but the grass could be wet because you turned the sprinklers on. Therefore, not logically valid – Formal fallacy.

Mediation message 4.05 At mediations people often tell each other that they are being illogical. Sometimes they mean emotional. Sometimes they are saying that the other person’s thinking is flawed. What they often mean is that they don’t like the conclusion that has been drawn. Propositional logic does not feature much at mediations. Situational logic – ie where the analyst tries to reconstruct the problem situation facing the agent in order to understand the agent’s choice – does (see Chapter 10). 64

Thinking: Cognitive Biases and Mind Traps 4.07

Cognitive biases: their development 4.06 From the early days of the research by Kahneman, Tversky and Richard Thaler a cognitive bias industry has developed. This is apparently dedicated to showing that people do not take decisions for the reasons that classical economists think they do and that they can’t easily make rational decisions at all. Here is an example: People were asked: Would you rather accept £100 today or £110 in a month’s time? Most chose the £100 today. People were then asked: Would you rather accept £100 in 12 months’ time or £110 in 13 months’ time? Most chose the £110 in 13 months’ time. The difference in both cases was £10. But people would rather have less money now than more money in the future. But when the money is in the future, they would rather have more money even if they have to wait a month longer. 4.07 This drives traditional economists mad. This is not maximising outcome. Kahneman and Tversky developed prospect theory. That is what won Kahneman his Nobel Prize. Prospect theory attacks the traditional expected utility theory. Three of its key points are: 1

When choosing and making decisions we make comparisons. We don’t just base our decision on all the information available to us. For example, if we are buying a new mobile phone, we look at the deal we already have and compare with what we’re being offered and decide whether it is better or not. We don’t start with a clean slate. We compare the options against a starting point which they called the reference point. Our decisions are driven by changes relevant to our reference point and not by all the information available to us. This fits in with the economists’ idea that we have a preference for the status quo (see Chapter 2.) It also links to the physiological concept of homeostasis. That says that from a physiological point of view we have a set point and our bodily responses are determined by that set point. If it’s a very hot day and you feel a blast of cold air that will feel pleasant. If it’s a very cold day and you feel the same blast of cold air it will be unpleasant.

2

In our everyday lives we tend to take the line of least resistance. We choose the option that will cause us the least trouble. On top of that we have a natural tendency to procrastinate and to be lazy. There are good evolutionary reasons for this. Why waste energy when you don’t have to? Reserve it for when you need it. This may have made sense when food was scarce and we had to hunt for it. For much of the world this no longer applies. For the first time in history, we live in a time of having too much food that is too readily available. But our thinking has not adapted. Or has it? 65

4.08  Thinking: Cognitive Biases and Mind Traps 3

We care more about losses than we do about gains. This is reflected in the endowment effect that Thaler revealed, ie we value the same thing more highly once we possess it than before we acquired it (see 12.29). Thaler carried out a well-known experiment about mugs. In a much-repeated experiment you imagine that you are at a car boot sale and buy a mug for £2. The seller wanted £3 for it but you beat them down. You’re not that keen on the mug. You just needed something on your desk to put your pens in. You’re starting to regret your purchase. Someone comes along and offers you £2 for it. Would you sell it for that? Almost certainly you wouldn’t. Why not? Now that you own it, it’s worth more to you in your mind than it was before you bought it.

We can see the differences in valuation: most people’s highest WTP – willingness to pay – was less that the lowest amount of their WTA – willingness to accept. This applies even though they may have only owned the object for a few minutes and have no reason to feel attached to it. It can make them reluctant to exchange an object for another of similar value. In another experiment volunteers who were given a Swiss chocolate bar were reluctant to exchange it for a coffee mug of equal value. Those who were given the coffee mug first were reluctant to exchange it for the chocolate. 4.08 But is this really right? Do the experiments involving buying and selling mugs necessarily show an endowment effect? Aren’t they simply reflecting the dynamics of any bargaining process? And in that process sellers bring the price down and purchasers take their price up. To stress test the concept Kip Vascusi’s team carried out a different experiment. They wanted to measure people’s attitudes towards chemical poisoning. Consumers were presented with cans of insecticide and toilet bowl cleaner. They were asked two questions: 1

How much would they be willing to pay for a safer product with a lower risk from poisoning?

2 Would they be willing to accept a price reduction on the product with an increased risk of poisoning? Traditional economists predicted that consumers would give consistent answers. The amount that they were ready to pay for a safer product would be similar to the amount of compensation they would want if there was a price reduction for a product with a greater risk. But the experiment showed something different: people were less willing to pay for higher levels of risk reduction. They were even less willing to accept any sort of increase in poisoning risk in return for some financial compensation (see 12.41, zero risk bias). Two other mediation relevant behavioural economic theories are:

Mental accounting model 4.09 This was developed by Richard Thaler. It emphasises the importance of context in our decision making. This emphasised two important conclusions: 66

Thinking: Cognitive Biases and Mind Traps 4.11 •

Our view of our money depends on how we get it. We have different mental accounts. For example, we treat money that we won on the lottery differently from money that we have earned.

•

Framing a decision as a loss might lead us to make a different choice than if the decision is framed as a gain. For more on framing see 14.38.

These influence how we decide to spend the money. For example, if money has come to us easily through a lottery win, we might treat ourselves. If we earn the same amount through hard work, we might save more. We all know that buying things online using a credit card can appear cheaper than paying for the same thing in cash. Attitudes towards money vary. And the differences can be crucial in mediations. See Chapter 12 on Money.

Regret theory 4.10 Regret is a frequent emotion at mediation. ‘Regret theory’ was developed by Graham Loomes and Richard Sugden. This says that our evaluation of our own happiness depends on how the world appears and our anticipations of future regret. When we look into the future we cannot know what is going to happen tomorrow. The choices that we make today interact with the unknown future to determine how happy or sad we will be. We end up regretting some decisions but being pleased with others (see 5.30). For example, we often face the umbrella dilemma. Should you take an umbrella to work? You don’t know what the weather will be like. Taking an umbrella is a nuisance. You have to carry it. You might lose it. If it rains, you will be glad that you took the trouble to bring an umbrella. Your happiness or satisfaction is determined by something completely beyond your control – the weather. But if it turns out sunny you will regret the trouble of bringing your umbrella. Our happiness doesn’t just depend on our perceptions, preferences and choices. It also depends on how we judge our past choices. We do this retrospectively, when it’s too late to change our minds. The consequences of our decisions are determined not only by our own choices but also by events in the world around us. Annie Duke explains this in her book Thinking in Bets,1 see 10.05. Adopting this mindset helps decision-making and mediations (see Chapter 8).

How many cognitive biases are there? 4.11 Just as with emotions, no one agrees on the number. Wikipedia listed 201 as at 17 January 2021. New ones are discovered all the time. Some say that they boil down to about 100. Others distil them even further to about 20. Numbers in the hundreds are far too many to cope with. There is duplication. Many appear to be restatements of the same concept, eg confirmation bias – the tendency to remember information that confirms one’s preconceptions and 67

4.12  Thinking: Cognitive Biases and Mind Traps the Semmelweis reflex – the tendency to reject new evidence that contradicts a paradigm. Some appear trivial – eg the IKEA effect (see 5.26) – the tendency of people to place a disproportionately high value on something that they have partially assembled themselves regardless of the quality of the end product. These concepts might have emerged from an artificial experiment in a laboratory but so what? Do they have real world relevance? Which ones are the ones you really need to know about? And which ones are most likely to be encountered in mediations? 4.12

There have been many attempts to pick out the essentials. For example:

Dwight Golann and Jay Folberg in the second edition of their case book: Mediation: The Roles of Advocate and Neutral  2 selected ten – listed in alphabetical order: 1. Anchoring 2. Confirmation Bias 3. Consensus error (Projection) 4. Framing 5. Loss aversion (Status quo bias) 6. Naïve realism 7. Overconfidence 8. Reactive Devaluation 9. Selective perception 10. Self-serving biases 4.13 Others group them by theme. Buster Benson for example identifies four problems which the cognitive biases help us deal with: 1. Information overload 2. Lack of meaning 3. The need to act fast 4. How to know what we need to remember for later. He has produced a circular cheat sheet. It’s very helpful. You can see it on his website: medium.com/better-humans/cognitivebiascheat-sheet. In fact, I think you can boil down to two main categories. Those that help us: •

absorb information; or

•

use information.

When you go to mediation, whether as mediator client or adviser, you will see cognitive biases in operation. See Appendix 5 at p 74 for the ones that you will encounter. 68

Thinking: Cognitive Biases and Mind Traps 4.16

Are we being bamboozled? 4.14 How helpful to mediation is all this talk about cognitive biases? The terminology is unhelpful. A bias is a deviation from a norm. The word has a negative connotation – being told that you are biased is not an expression of approval. It’s a criticism. Bias is often a synonym for prejudice. Kahneman in his new book ‘Noise’ defines a bias as ‘any predictable error that inclines your judgement in a particular direction.’ Interestingly there have been attempts to replace ‘biases’ with the word ’blinders’ by those investigating judicial and arbitral decision making. They have had little effect. In the context of decision-making, is there a difference between a cognitive bias, a propensity, a tendency, a predisposition, a reflex, or a habit? In many cases there seems to be no difference. No doubt a reflex can have an inappropriate outcome. If you are trained in unarmed combat and someone touches you on the shoulder you might instantly turn round and disable them. A good outcome if that was a mugger. A bad outcome if it was your teenage child. We have to be careful about treating a tendency as in some way wrong. Take loss aversion. What is wrong about safety first? (See 12.39.) Back to the well-known example of walking through the jungle and hearing a rustling in bushes. You think it’s the proverbial sabre-toothed tiger. A choice. You run away or attack it with your spear. It turns out to be the wind. So your prediction was a false negative. It wasn’t a tiger. But that’s better than a false positive – with you thinking it wasn’t a tiger and walking on to become lunch. 4.15 In real life how often do we rely upon reflective thinking when it really matters? Gerd Gigerenzer recalls a story about a professor from Columbia University who was dithering about whether to accept a job at another university or to stay where he was. An exasperated colleague took him aside and said: ‘Just maximise your expected utility. You always write about doing this.’ The professor responded: ‘Come on, this is serious.’ The power and importance of intuition and gut feelings is explored in more detail in Chapter 5. As mediators we encourage the parties not to look at the best possible deal but to consider deals that are good enough. We may not realise it, but this reflects a well-established economic principle of satisficing – this is a portmanteau word combining satisfy and suffice. This theory, developed by another Nobel laureate, Herbert Simon, is based on his concept of bounded rationality. This explains that when we make decisions our rationality is limited by the nature and complexity of the problem we have to address, the time available and our own cognitive limitations. Or as the old saying puts it ‘Don’t let the best be the enemy of the good.’

Mediation message 4.16

Beware of the hype. Remember the salt (see 1.08).

Even enthusiastic supporters of behavioural economics have challenged some of its assumptions. One of the experimental tests that Kahneman and Tversky amongst 69

4.17  Thinking: Cognitive Biases and Mind Traps others use is the Ultimatum Game (see Chapter 15 on Fairness). This and other experiments, such as the Dictator Game, are drawn from game theory. This is the science of logical decision making. Rory Sutherland calls them stupid. He points that they are conducted under test conditions by volunteers who have no ongoing relationships. In the real world we don’t make decisions likes this. Everything has a social context. This something to bear in mind when considering how useful some of the New Stuff is. Especially at a mediation, which is a hyper-social environment.

4.17 Economists have also, as might be expected, been critical of behavioural economists’ work.. The usual criticisms are that •

The methodology was inappropriate. Setting puzzles with an identifiable ‘right’ answer for small groups of students who often came up with the ‘wrong’ answer as the experimenters wanted them to (ie ‘wrong’ by the definition of the economic rational choice theory).

•

There is confusion over what rational means: is it normative that is how people should behave or positive that is how they in fact behave? But does this mean that the model does not fit the observations or is the behaviour inappropriate?

•

There is confusion over puzzles which are determinate problems with right and wrong answers and mysteries with ill-defined questions that may have equally ill-defined outcomes.

•

In any case what is wrong with people not thinking in terms of probability to try and make sense of the world and to devise stories instead?

As we shall see in Chapter 5 being irrational might not be so irrational after all.

Mediation message 4.18 Cognitive biases and heuristics matter at mediations because clients, advisers and mediators make decisions in circumstances where there are constraints, pressures and incomplete information.

Constraints 4.19 Time is rarely unlimited. Even if time itself is not an issue, people run out of energy. They simply become too tired to cope. One of the reasons for this is the intensity of the mediation experience – in particular coping with cognitive overload. That is made up of receiving information, processing it and then having to make decisions. All this uses a lot of energy – we end up with ego depletion. As was explained in Chapter 2 the brain needs oxygen and glucose. If we get tired or hungry we make different decisions and perhaps worse ones. In a well-known experiment carried out by Professor Shai Danziger his team looked at eight Israeli judges (six men and two women) when they were making parole decisions. They found that parole was more often granted: •

at the beginning of the working day or working session.

•

after a food or rest break. 70

Thinking: Cognitive Biases and Mind Traps 4.21 When judges made repeated rulings, they showed an increased tendency to not grant parole. Mental replenishment was apparent, whether as a result of a short rest, positive mood or glucose levels, after eating some food. These findings were challenged. The methodology was criticised. The results were not replicated and alternative explanations based upon statistical analysis were offered. But we know from our own experience that we feel and behave differently when are hungry. A meal or rest can improve our mood. Importantly, how we feel affects how we think (see Chapter 5 and Chapter 17).

Pressure 4.20 Clients – the ones paying the money and making the decisions – often feel they’re under pressure. This may be external. For example: •

Commercial pressures on their business – the contractor is being sued by their sub-contractors and the employer is not paying. Insolvency looms.

•

Political pressures where they have been brought in to clear up the mess that someone else has created. Even more stress inducing is clearing up their own mess. Everyone is accountable to someone. We have to be able to justify our decisions even if only to ourselves.

•

Personal pressures. For example, their spouse is seriously ill, their daughter is about to have a baby or they are suffering from stress and are under medical care.

•

Social pressures. For example, where because of the dispute some of their relations are not talking to them. They are being excluded from family weddings and birthdays.

•

Financial pressures. These are usually of three sorts: 1 The continued professional fees for lawyers and experts. They just keep on going up. Both individuals and businesses can find it difficult to fund litigation out of cash flow. 2 The opportunity cost. Spending time and money on the dispute or the litigation can harm your business. Profits are down. New business opportunities can’t be followed up. 3

The potential impact. If you are the receiving party, having to wait for your money has an impact on both your cash flow and balance sheet. If you are the paying party you might not be able to find the money without putting your business or your family under financial stress. Facing the threat of bankruptcy or liquidation creates enormous pressures.

Uncertainty 4.21 This is the general sense of uncertainty, ie not knowing how the dispute or litigation is going to turn out. In addition, at mediation new information or interpretations often emerge. Clients may be hearing some things for the first time. Especially if they have not been closely involved in the dispute but have been brought in as the decision-maker to sort it all out. Lawyers may be told things by their clients that they haven’t previously known. Assumptions about documents, 71

4.22  Thinking: Cognitive Biases and Mind Traps information, evidence and witnesses can be shaken. Situations are reviewed. Advice may have to be revised. Information is never complete. There’s nothing unique to mediation about that. Even after a long trial where all the evidence has been deployed information is rarely 100% complete. We have to work on probabilities (see Chapter 10). Guess what might happen. Fill in the gaps. Many cognitive biases and heuristics operate. All this creates pressure. Inherent conflicts of interest may be revealed. Where insurers or funders are involved, they might want to settle when the client wants to carry on. Or the other way round. Lawyers may be on a risk-sharing fee arrangement such as a conditional fee agreement or damages-based agreement. Their financial interests are not necessarily aligned with their clients’. They may want to settle to make sure they get paid something: the client wants to fight on because they think they have very little exposure. This creates further pressure.

Heuristics: their development 4.22 Bias is a poor choice of word: heuristics is even worse. Nobody knows what heuristics means without looking it up. The word comes from the same ancient Greek word eureka ‘to find’. Basically, it refers to approaches to problem solving that are based on previous experience. They look for outcomes that are good enough – not perfect or optimal. They are often synonymous with short cuts that lead us into blind alleys and wrong turnings. As explained at 4.03 heuristics are shortcuts and rules of thumb that we use to enable us to make decisions quickly and to get on with life. They are justified or explained by being an efficient use of energy especially when time is short and decisions need to be made without delay.

Mediation message 4.23 What does ’quickly’ mean in the context of a mediation? If a proverbial sabre tooth tiger leaps out of the bush then you have to decide whether to run or freeze or fight. That’s not what happens at mediation no matter how much people may feel ambushed. Sometimes the decisions that have to be taken have enormous repercussions. For example, the house has to be sold or half the shares in the company have to be transferred. Eight hours seems a long time. Is it enough time for clients and advisers to take all decisions in a calm cool rational way? You start: all the options are examined and weighed up. You carry out a comprehensive and objective risk analysis using decision trees to show you the optimal outcome. You have worked out your BATNA. You’ve run the numbers. Either the other side meet your terms or they don’t. You can always walk away. No worries. Sometimes mediations work like that. Usually, they don’t. Even if you have done all these things, are well prepared and have the right mindset, things change during 72

Thinking: Cognitive Biases and Mind Traps 4.24 the day. There’s the wear and tear of the process. You don’t like the way the other side are behaving. You don’t like the mediator’s approach. Things are not going according to plan. And you start feeling frustrated, irritated, disappointed even annoyed. Emotions, usually negative ones, start to make themselves felt. Subjectivity erodes the objectivity. Proposals are put on the table. They’re rejected. Counterproposals come and go. No progress is being made. And then, eventually, you start to move towards the Deal Zone. You receive a proposal that is at the bottom end of your range. You’re nearly there but you need more. Just a little bit but still more. The other side argue that it’s too much. An ultimatum comes in. Take it or leave it. You have ten minutes. That’s time pressure. What do you rely on to decide: head, heart or guts? Given the circumstances, is the deal good enough? At mediations people don’t know for certain what is going to happen. They make an educated guess. That’s a heuristic. What is wrong with it? An educated guess is better than an uneducated guess, isn’t it? Or no guess and therefore no decision at all? See Chapter 5 for more details.

TOP TIP It’s always easier to see cognitive biases in other people than in ourselves. We are all subject to them. Self-audit your own thinking.

In a nutshell 4.24 •

There are mind traps that we all fall into. This is true both when we are at mediations and when we are away from them.

•

All participants are prone to them: clients, lawyers, mediators and even judges.

•

Not all cognitive biases are biases. Most of them are not. They are inclinations, predispositions or tendencies.

•

Heuristics and other short cuts are essential. We could not get through life without them.

•

As with emotions, heuristics are powerful influences on our behaviour. You can’t ignore them but you can manage them.

73

4.24  Checklist of biases and heuristics

Appendix 5

Checklist of biases and heuristics 1

Ad hominem fallacy: the belief that if you cannot trust someone, you cannot trust what that person says.

2

Affect heuristic: an affect is an instantaneous judgement. You like something or you do not. They prevent people from considering risks and benefits to be independent variables.

3 Alternative blindness: people tend not to compare an existing offer with the next best alternative. 4 Ambiguity effect: the tendency to avoid options for which missing information makes the probability seem unknown. 5 Ambiguity aversion: humans do not like uncertainty. Their distaste for it leads them to make hasty and wrong decisions. This tendency is aggravated by a confusion between risk and uncertainty. 6 Anchoring: the tendency to rely too heavily or anchor on a past reference or piece of information when making decisions. 7 Association bias: (also known as ‘shoot the messenger’ syndrome). Our brains like to make connections but sometimes the connections are false. For example Pavlov’s dogs which learned to salivate at the sound of the bell while not being able to experience the sight or smell or taste of food. 8 Authority bias: the tendency to allow the status and credentials of a person to influence the perception of information or advice he gives. 9

Blind spot bias: the tendency to see oneself as less biased than other people or to be able to identify more cognitive biases in others than in oneself.

10 Catastrophising: the tendency to see a situation as worse than it actually is and to predict the worst possible outcome and to exaggerate the consequences of things going wrong 11 Choice supportive bias: the tendency to remember one’s choices as better than they actually were. 12 Cluster illusion: the tendency to underestimate how variable random data is and to overestimate the inevitability of a perceived pattern. 13 Cognitive dissonance: the discomfort experienced when holding two contradictory thoughts. 14 Confirmation bias: the tendency to search for and interpret information in a way that confirms one’s preconceptions. 15 Curse of knowledge: the tendency to allow one’s knowledge of the subject to reduce one’s ability to think about the problem. 74

Checklist of biases and heuristics 4.24 16 Decision fatigue: intensive decision-making can drain will power. 17 Default effect: people are drawn to it and should make a choice based on what they already know and are comfortable with. 18 Domain dependence: insights may not transfer well from one field to another. Just because somebody does well at one thing or something works in one context does not mean it will work in another. 19 Empathy gap: the tendency to underestimate the influence or strength of feeling of either oneself or others. 20 Endowment effect: the fact that people often demand much more to give up an object than they would be willing to pay to acquire it. In other words people value something more highly as soon as they possess it. 21 Easy come, easy go: When people at mediation say it is just about money even when they are offered money or have to pay money that is not free of emotion and value judgements. They are more likely to spend money that they won on a treat than money that they worked hard to earn. 22 Envy: there’s a difference between envy and jealousy. Envy is about a thing such as status, money or someone else. Jealousy is about the behaviour of someone else. Envy needs people. Jealousy needs thought. 23 Expectation bias: what we forecast influences our emotional response even if the forecast turns out to be wrong. Eg if we don’t expect to like a film and then enjoy it we will tend to enjoy it less than if we had not had this negative expectation in the first place. 24 Fading affect bias: similarly describes how we forget negative emotions more quickly than positive ones. 25 False consensus effect: the tendency for people to over-estimate how much other people agree with them. People frequently believe that everyone else thinks and feels exactly like them. 26 Fear of regret: If you do not follow the crowd you tend to feel more regret, hence last chances make people anxious and nervous and fear of regret makes us conform to the default position. 27 Feature-positive effect: what is present has more influence than what is absent. The information that is not there can be more important. Also positive advice, eg ‘Do this!’ has more impact than negative advice ‘Forget about that!’ 28 Framing effect: Drawing different conclusions from the same information depending on how or by whom that information is presented. 29 Fundamental attributable error: believing that other people’s behaviour is a reflection of their personality rather than as a result of their situation. 30 Gambler’s fallacy: the belief that you can spot a pattern in a series of random events such as a pattern of red and black squares in roulette. 31 Hammer effect: this derives its name from what Mark Twain said: ‘If your only tool is a hammer, all your problems will be nails.’ We tend to find solutions based on our own expertise. 75

4.24  Checklist of biases and heuristics 32 Halo effect: the tendency to allow our perceptions of something or someone to be positively influenced by a specific characteristic eg we think that good looking people are nicer or taller people more competent. 33 Hindsight bias: the tendency to overestimate our ability to have predicted an outcome when there was no basis for us to make that prediction. 34 Hothand fallacy: the belief that a successful outcome means that the next outcome is likely to be successful, eg where in basketball shooters are more likely to score if they scored on their previous attempt. 35 Hyperbolic discounting: the closer a reward is to us the more we are willing to pay. 36 Illusory superiority effect (aka self-serving bias). 37 Immune neglect: our lack of awareness that we adapt to negative events. In particular we don’t realise that we recover more quickly from an intense negative experience than from a less intense one. We get over things more quickly than we think we will. 38 Impact bias: tendency to overestimate the length or the intensity of the impact of future feelings. 39 Information bias: the tendency to seek information even when it cannot affect action. 41 Introspection illusion: is the belief that reflection leads to truth or accuracy. 42 Inability to close doors: we find it difficult to sacrifice an option. People prefer to have as many choices as possible. This makes it difficult to concentrate and dilutes the chances of success. 43 Irrational escalation (also known as sunk cost bias): the tendency to justify increased investments in a decision based on cumulative prior investment, despite new evidence suggesting that the decision was probably wrong. 44 Lake Wobegon effect (aka self-serving bias): the tendency to overestimate our abilities and achievements. 45 Limelight bias (aka spotlight bias): tendency to think that people are talking about us or paying attention to our situation more than they are. 46 Loss aversion: tendency to prefer avoiding losses than acquiring equivalent gains. 47 Omission bias: is being deliberately passive when there is a clear opportunity to be decisive and active. 48 Optimism bias: the tendency to be too confident in one’s predictions, and in particular the tendency to overestimate one’s chances of success. 49 Overthinking: what happens if people think too much is that they do not rely enough on their emotions and therefore cut themselves off from the wisdom of your emotions. 50 Paradox of choice: the more choice you have the more uncertain you are about the choices that you made and the greater the anxiety and dissatisfaction. 76

Checklist of biases and heuristics 4.24 51 Peaks and troughs of our experiences are remembered more clearly which can distort recollection of the past, our perception of the present and our expectation of the future. Memory as we have seen is not always reliable. 52 Personality neglect: not taking account of how our personality influences our decisions. This is a contentious one because who knows their personality? 53 Personification: people like to see that other people are not just figures. This is why charities have photographs of children not lists of percentages. 54 Planning fallacy: people systematically take on too much to do. People habitually take between 30 per cent and 50 per cent longer than they anticipate to complete a job. 55 Pollyanna effect: see Rosenthal effect. 56 Primacy and recency effects: first and last impressions are very important. If you have to make a decision based on a series of impressions the primacy effect prevails. If however impressions were formed some time ago the recency effect prevails. If you saw a film or heard a speech a few weeks ago you remember the ending more than the beginning. 57 Projection bias: where we wrongly project our current preferences onto a future event. If we are in low mood now, we will underestimate how happy we will be in a few weeks’ time. Similarly, an empathy gap can distort our perception – where for example if we are hungry now, we will overestimate how much we will want to eat in the future. 58 Pseudo-certainty effect: the tendency to make risk-averse choices if the expected outcome is positive, but risk-seeking choices to avoid negative outcomes. 59 Reactive devaluation: this is the tendency of one side to reject any suggestion from the other side simply because it came from the other side. 60 Rosenthal effect: expectation influences outcome and performance. We are more likely to succeed if we and others expect us to succeed. 61 Selective perception: the tendency for expectations to affect perception. 62 Self-serving bias: this is where we attribute blame for failures to other factors and success to our own efforts and talents. 63 Simple logic: it has to be remembered that thinking is more tiring than sensing or feeling. Exercising rationality requires more self-discipline and will than simply relying on intuition. 64 Sleeper effect: this is where we tend to forget the source of information or argument quicker than we forget information or argument. Always ask who is giving this argument or information and why are they doing it? Why do they hold it? 65 Sour lemon bias (aka sour grapes bias): the tendency to give ourselves a rationalisation for failing as in convincing ourselves that the job we failed to get would have been the wrong job for us anyway. 66 Story bias: the tendency to see meaning in details, which can lead to false understanding and a predisposition to risk taking. 67 Sunk cost fallacy (see irrational escalation fallacy). 77

4.24  Checklist of biases and heuristics 68 Twaddle tendency: filling the silence with meaningless words just for the sake of talking. Or, as Mark Twain said: ‘If you have nothing to say, say nothing.’ 69 Ultimatum game: the belief that you choose to accept or refuse an offer based on logic rather than on status. 70 Wishful thinking: we want to be successful and achieve everything that we would like to achieve and take on. 71 Zero-risk bias: this is the tendency to neglect probability and instead of concentrating on the likelihood of an event to concentrate on the magnitude of the impact of the event.

1 Duke Thinking in Bets: Making Smarter Decisions When You Don’t Have All The Facts (Portfolio). 2 Golann and Folberg Mediation: The Roles of Advocate and Neutral (Aspen Publishers).

78

Chapter 5

Intuition

In this chapter you will learn •

What intuitions are.

•

When to use them.

•

When not to use them.

Intuition 5.01 ‘I know that logically I should do this but it doesn’t feel right.’ ‘My head tells me to do this but my heart tells me to do that.’ At mediations everyone relies upon their gut feelings and instincts at some stage in the day. Some seem to rely upon them exclusively. Is this a bad thing? Shouldn’t they really be relying upon more considered logical and rational thought processes? Gut feelings are part of the System One described by Daniel Kahneman which he says usually lead us into mistakes which System Two can help us avoid (see Chapter 1). Gerd Gigerenzer, a German psychologist at the Max Planck Institute, has headed up the challenges to the Kahneman and Tversky orthodoxy. This was not well received. According to Michael Lewis in his book about the Kahneman-Tversky partnership, The Undoing Project,1 Tversky ‘couldn’t mention Gigerenzer’s name without using the word sleazeball’. If nothing else this is a fine example of the influence of emotions in decision making even amongst behavioural economists.

Where do our gut feelings come from? 5.02 They come from our unconscious. That is the part of the brain process that we are not actively aware of and at the moment cannot access. We do things that we are not consciously aware of. Recall when you have been in a crowded room and are chatting to someone. Suddenly you hear someone else on the other side of the room say your name. You hear it clearly. Before you heard your name, you didn’t even know the person was there let alone could hear what they were saying. 79

5.03  Intuition Your brain was filtering out all the other noise in the room so that you could hear and concentrate on what the person you were talking to was saying. How come? Our brain is us. We automatically process information about ourselves and our selfimage. As discussed in Chapter 1 scientists have only recently been able to see how the unconscious interacts with our thoughts and actions. When we think of the unconscious we think of Freud. But he was not the first to have the idea that we have mental processes that operate without our being aware of them. Charles Darwin in 18592 described how farmers used principles of natural selection to grow better crops without knowing what they were doing or why they were doing it. Then along came Eduard von Hartmann in 18693 and William James who described the unconscious as ‘a tumbling ground of whimsies.’ Freud based his theories on apparently observing his patients and recording what he saw and heard. He promoted the unconscious to the number one spot. He in turn, was challenged by the behaviourists led by John B Watson who argued that we were the products of our environment. In the 1960s cognitive psychology started up. This explains that our behaviour is consciously controlled by us and not by our environment. Currently the received wisdom is that our behaviour is influenced by both our conscious and unconscious minds and they work best when used together. Our rational conscious is not superior: we need to give our unconscious more respect. The apparent fact that humans are the only animals which have a rational consciousness and that this therefore sets us apart and above all others is dangerous. It has led us to exaggerate the importance of the conscious and devalue the unconscious. 5.03 We have all had experience of our unconscious solving a problem for us. You are struggling with a crossword puzzle. You put the paper down. When you return an hour or so later the answer is obvious. You wonder how you didn’t get it in the first place. More seriously, you have a complex decision to make. There are multiple options with pros and cons. You go to bed worrying about it. You wake up in the morning. You are calm and the answer is clear. Our conscious mind switches off when we go to sleep. Our unconscious does not. It’s working in the background all the time. Not only should we not disregard it, we should learn to make better use of it. Professor Richard Nisbett social psychologist and author of Mindware: Tools for Smart Thinking4 concludes: ‘The most important thing I have to tell you – in this whole book – is that you should never fail to take advantage of the free labour of the unconscious mind’. He is also of the firm opinion that the unconscious is better at solving some types of problems than the conscious mind. The unconscious can absorb and process more information than the conscious mind. Especially information about our environment. And since our behaviour is our response to the circumstances in which we find ourselves – ie our environment – you can readily appreciate the importance of the unconscious. And that in turn helps explains the importance of our intuitions. As Albert Einstein said when being criticised for his new theories which challenged hundreds of years of scientific thinking: ‘The intuitive mind is sacred gift and the rational mind is a faithful servant’.

What are intuitions for? 5.04 To save us time and energy. Thinking is tiring and hard. As Daniel Kahneman said: ‘Thinking for humans is like swimming is for cats. They can do it but would prefer not to’. It also uses up a lot of energy. (See 4.19 on the Danziger research.) 80

Intuition 5.06 Intuitions are quick, energy efficient survival responses. We haven’t got time to think consciously about everything that we have to do in a day. We process about 11 million bits of information at any one time. Our conscious mind could not cope with this. The most it can process is about 50 bits (see Chapter 2). In simple terms intuitions are quick and ready insights.

Are intuitions a good thing or not? 5.05 Here the experts disagree. No, say Daniel Kahneman and Amos Tversky. Yes, say Malcolm Gladwell and Gerd Gigerenzer. So does Steve Jobs, who said that his work at Apple was influenced by his intuition: ‘Intuition is a very powerful thing, more powerful than intellect…’ The reasons why they are bad is that they lead us to make wrong or at least sub-optimal decisions. Gigerenzer points out the advantages of gut feeling: •

We rely for our intelligence more on our unconscious than we give credit for, especially when processing more complex information.

•

Much of our intelligence is not deliberate and conscious but is based on processes which are unconscious and alien to logic. These are intuitions or gut feelings.

•

Short cuts, intuitions, rules of thumb, inferences, hunches and judgments are much the same thing. They help us cope with all the information that hits us every day and to make decisions when we have incomplete information and are under time pressure.

•

He emphasises their importance and relevance to real life as opposed to research life. Recall the great anecdote about a professor at Columbia University at 4.15.

5.06 Heuristics in particular are not flaws in our thinking. They are tools that have evolved to help us cope where optimal decision making is not an option. In real life optimal decision making often isn’t an option. The trick is to know which of our short cuts or rules of thumb are likely to work in the circumstances in which we find ourselves (see Chapter 4). They are at work all the time in different contexts. For example: Less is often more. You don’t need more information to come to a decision. Having more information will not help you make a better decision. In fact, often it will help you make a worse decision. Take three different studies: 1

The first one was about football results. Gigerenzer asked two sets of supporters, one Turkish and the other British, to guess the results of a game between Manchester United and Shrewsbury Town. The British were better informed. The Turkish supporters were right 66% and the British 63%. In other words, the additional knowledge made no real difference.

2

Gigerenzer asked Austrian students about German and US cities. They had to guess which of a pair of US cities or German cities had the larger population. 81

5.07  Intuition They knew more about the German cities than the US cities. But they guessed more correctly for the US cities. 3 Two groups of people were asked to look at the performance of 20 bluechip shares. One group were professional portfolio managers: the other were laypeople. The laypeople’s predictions were correct 50% of the time. In other words, the same level as chance. The professionals were only correct 40% of the time and they were using more complex information. So, having more information and consciously analysing it will not necessarily help you make better decisions. In fact, surprisingly having to work out your decisions and give reasons for them may cause you to make worse decisions. See the cognitive bias of information bias and over-choice (see 5.36).

How does this happen? 5.07 For a start, working at decisions uses brainpower. It is tiring. In an experiment carried out by Timothy Wilson two groups of women were offered posters as a thank you for taking part in an experiment. In one group each woman was asked to pick their favourite poster out of a selection of five. In the second group they were asked to describe their reasons for liking or disliking each poster before choosing one. Four weeks later they were asked how much they enjoyed their poster. Those who had given reasons were less satisfied with their choices more often than those who had not given any reason. In much the same way surveys of shoppers show that those who go shopping and carry out exhaustive searches before buying something are less happy with their purchase than those who find something that they like and buy straightaway. In other words, the difference between the approach of the maximisers and the satisficers (see Chapter 4). Instead, you can be better off using heuristics. Two in particular help when coming to decisions in circumstances of uncertainty. 1

Recognition heuristic When German students were asked to guess which had the largest population, Detroit or Milwaukee, they didn’t know the answer. More of them had heard of Detroit than Milwaukee and so chose that. They were correct. Similarly, when laypeople were asked to predict the outcomes of the Wimbledon tennis tournaments they were as good as the experts. They simply chose the player whose name they recognised. Chances are that if you choose something that you recognise you’re more likely to be right than trying to work out the answer from a baseline of ignorance.

2

Take the best heuristic This derives from the conclusions of experiments which suggest that people often base their intuitive judgements on a single good reason. When you have several cues, but in the end only one determines the final decisions, you work through them. This is known as sequential decision making. The sequence is: 82

Intuition 5.09 •

Search rule: look at reasons in the order of importance.

•

Stopping rule: stop searches as soon as the alternatives for one reason differ.

•

Decision rule: choose the alternative that this reason suggests.

Are intuitions second best? No. For many purposes they are not only the best thing they are the only thing. Let’s look at some of them we use all the time not just at mediations.

Stereotypes 5.08 One of the main shorts cuts that we use are stereotypes. We react instantly to stereotypes. Stereotypes are a shortcut or heuristic. Using them helps us come to a quick decision or evaluation. They are an expectation that individuals of a particular group will behave like our expectation of the group. We meet someone with red hair and assume that they will have a fiery temper because stereotypically redheaded people are fiery tempered. Stereotypes are often national, racial or gender based. They are nearly always seen in a negative way. The word stereotype is usually preceded by the adjective ‘inappropriate’ followed by ‘national, racial or gender’. Nobody can doubt that there are stereotypes that are often inappropriate and negative. The trouble is that they are also automatic and inevitable. We all form first impressions. They may be accurate. They may not be. They can last. And they are potentially dangerous. Over time you learn to keep your first impressions under review. Equally our automatic instinctive impression of someone may conflict with our conscious decisions and evaluations. We can consciously not give expression to our unconscious impressions when we are aware of them. 5.09 Stereotyping applies to us all. We all do it. In practical terms it’s impossible not to. But in practical terms we can make sure that it does not dictate our behaviour. And remember other people stereotype us. Once we have assessed someone based upon a conventional stereotype we will tend to reinforce it unless we are on the alert. We will hear what they say and observe what they do and process it in accordance with our preconceived model or schema of what they are like. This is confirmation bias on steroids. We can also self-stereotype. Claude Steele carried out a series of experiments on stereotyped threats and academic underperformance particularly amongst African Americans. He has shown that if the stereotype can be modified so the performance is changed. Usually, it’s improved. The same phenomenon has been seen with women and their performance in maths exams. If they sat their maths exams in a mixed gender setting, they tended 83

5.10  Intuition to underperform. If they sat them in a single gender setting and in particular with pictures of inspirational women in the hall they tended to excel. 5.10 Outside academic performance stereotyping, or labelling as it also called, matters in ordinary social interactions. Take this experiment carried out in the 1970s at Dartmouth College. The students were divided into two groups. They had not met before. One group was then taken aside. Half of them were told that they had allergies. The others had a fake scar applied to their foreheads. They were shown the scar in a mirror and they could see what they looked like. The researcher then applied cream to the scar, telling the subjects that it would not fade. Both sets of students were then introduced to the other group they had not met before and asked to just socially interact. Those who had the allergies acted normally. Neither side changed their behaviour because of the allergy. The other group with the scar was different. Those who had the fake scar acted in a nervous uneasy manner because they felt that the other person was looking at their scar all the time. In fact, when the experimenter had applied the cream they had rubbed out the scar so it was no longer visible. But the students did not know that. The students they were meeting didn’t know anything about the scar, but they did realise the person was acting in an agitated way. Just thinking that you have something wrong with you when you don’t, can influence the way you behave towards someone and therefore of course the way they behave towards you in response. Stereotyping is not always negative. There is also stereotype gain. Asian children are assumed to be good at maths. And they often do very well at maths.

‘In groups’ and ‘out groups’ 5.11 The negative aspects of stereotyping are reinforced by our other natural tendency to dislike and distrust other people the more they are different from us. This is the ‘in-group’ bias aka tribalism. To make matters worse we tend to notice the similarities between us and members of our ‘in-group’ and the differences between us and members of the ‘out-group’ ie those who differ from us. This is a fundamental behavioural influence which has significance far beyond mediations. According to the seminal work of Henri Tajfel membership of a group is a fundamental source of social identity. Group membership teams, clubs, social class, gangs give us a sense of pride and self-esteem. We feel good about ourselves. This in turn reflects our normal cognitive process of grouping things together. When we carry out this social categorisation we tend to exaggerate the differences between our group and other groups and exaggerate the similarities of the group members. There is a three-stage process: 84

Intuition 5.14 Social categorisation > Social Identification > Social Comparison These steps can happen very quickly as the famous Robbers Cave experiment demonstrates. Some 11–12-year-old boys arriving at a summer camp were divided into two groups: the Eagles and the Rattlers. At first, they didn’t know of their other group and just interacted within their group. After a short time, they learned of the other group. As soon as they did and began competing for trophies relations became hostile, escalating from trading insults to burning each other’s flag. Also, each group became internally more cohesive. 5.12 The good news is that this in-group v out-group mentality disappeared when they ate meals or watched films together. But the big change came when they had a common overarching problem that affected them all such as the camp’s water supply being cut off. By the end they were sharing the bus home and buying each other drinks. According to the stereotype content model (SCM) we form our group stereotypes and interpersonal impressions along two dimensions: warmth and competence. So, when we meet someone there are two steps: 1

To decide if they are a friend or foe. Are they a threat ie do they want to harm us or can they help us? We do this as a result of our evolutionary development (see Chapter 7).

2

To ask ourselves whether we think they are competent, ie are they capable of helping or harming us?

The two dimensions – warmth and competence – do not overlap. A high reading on one dimension might be matched by a low (or high) reading on the other. And this doesn’t necessarily lead to cognitive dissonance (see 14.33) where we hold contradictory views or are expressing a public view which conflicts with our private view.

Mediation message 5.13 In-group and out-group behaviour is seen all the time at mediations. So, encourage parties to see the mediation as a chance to achieve a common overarching goal – a settlement. Create a sense of ‘us’ (see Chapter  18). Joint meetings can help this. Caucus based mediations are said to militate against it. In practice a blend works best.

Trust your intuition? 5.14 Research indicates that we tend to trust our own intuition. If we find that our intuition conflicts with the conclusions of more careful thinking and reflection, we still tend to trust our intuition. Why is this? The underlying reason seems to be that information that comes to us easily is trusted – see the availability heuristic below. 85

5.14  Intuition Our intuitions are not infallible. When they are wrong it is usually when we have been overconfident or fearful. Red flag: our instincts aren’t always the same. They are influenced by: 1

Our current goals. We have positive feelings about things that help us attain our goal and negative feelings about things that don’t. If you are trying to lose weight you will not eat the Jaffa Cakes which you know that you will enjoy and will give you an energy and mood boost. If you are not dieting and are feeling a bit jaded after eight hours of intense mediation and need to recharge yourself, you will.

2

Which Self are we? Research shows that we are different people at work from when we are at home. And we behave differently (see Chapter 6). Consider this interesting online experiment of Swiss bankers who are at home over the weekend. With one group they primed them about their workplace identity by asking them questions about the office environment. They didn’t with the other group. Both groups played a coin toss game. They won $20 each time they called it correctly. They reported on the outcomes themselves. No one would know whether they cheated except themselves. The researchers compared the outcomes with the expected 50/50. The results showed that the group that had been primed about their workplace selfreported being successful significantly more than 50% of the time. The other group did not. In other words, the bankers in their workplace identity cheated. Why are we not surprised? One answer could be because of stereotyping bias. Another could be…? Complete the rest of this sentence as you see fit. This was carried out by Fehr and Gachter who also carried out the experiment on Fairness (at 15.11).

3 Ego depletion. Our blood sugar levels matter. Hungry shoppers buy more items, both food items – which you might expect – and also non-food items. Also recall the research by Danzinger into judges’ parole decisions (see 4.19). 4 Our mood. If we are happy, we react differently. Studies of financial traders who had to make instant decisions to buy or sell show that they took more risks when feeling happy and optimistic. Sunny weather could put them in a sunny mood. On grey rainy days market activity was less. Specialists disagree about whether we should trust our gut or not. Those who say yes, tend to be psychologists or evolutionary scientists studying the ordinary pressures of life. Trust your instinct when you are under time pressures to make decisions and don’t have quantitative information that will help you measure them. Those who say no, tend to study complex financial business decisions where there are no time pressures and plenty of reliable data. Check your intuitive response if you have time. At mediations you usually have time. ‘Why am I feeling or thinking this?’ ‘What could cause me to change it?’ Are there any rules of thumb about when we can rely upon our instincts? Professor John Bargh has researched this topic for most of his professional life and in his book Before You Know It5 comes up with the following eight rules. 86

Intuition 5.17

Bargh’s Big Eight 5.15 1

Supplement your gut impulse with at least a little conscious reflection if you have time to do so.

2

When you don’t have time to think about it don’t take big chances for small gains going on your gut alone.

3 When you are faced with a complex decision involving many factors and especially when you don’t have objective measurements of those important factors, take your gut feelings seriously. 4

When you can trust your gut be careful what you wish for.

5

When our initial gut reaction to a person of different race or group is negative, we should stifle it.

6 We should not trust our appraisal of others based on their faces alone or in photographs before we have had any interaction with them. 7

You can trust your gut about other people – but only after you have seen them in action.

8

It’s fine for attraction to be one point of the romantic equation but not so fine for it to be the only one.

Mediation message 5.16 Instinctive reactions or unthinking reflexes can easily lead us into making mistakes. Here are some of the most common ones at mediations.

Affect heuristic 5.17 ‘Affect’ in this sense means emotion. This tendency can be seen whenever we make a decision. In essence our decisions are affected by our emotional state. We make different decisions on the same facts when we are happy than when we are sad. More generally, we form an early impression on whether something is good or bad. That influences how we make a decision. We might think that when we make decisions, we weigh up the risks and the rewards. We make a choice which maximises our gains and minimises our losses. That may sometimes happen, but it takes a lot of conscious effort, thought and self-discipline. What usually happens is that we make a quick decision about any new information we receive. Interesting experiments have shown how this works. Take the 1994 one carried out by Veronika Denes-Raj and Seymour Epstein. You are given the chance of getting money by picking red beans out of a bowl. You are shown two bowls of beans. The big one has hundreds of red beans mixed with hundreds of others. The small bowl has 50 mixed beans with a higher ratio of 87

5.18  Intuition red beans than the in the big bowl. Each bowl is labelled with the odds of winning. Small bowl has 10%: big bowl has 7%. Most people chose the big bowl rather than the little bowl even though the ratio of red beans was higher in the small bowl. Why did they do this? They said that they thought their chances were better because there were more red beans in the big bowl. They said this despite knowing that the odds are against them. 5.18 This also explains the power of first impressions. First impressions count and influence us when we make subsequent decisions. How a person is looking can be important. Are they smiling or frowning? Students in a 1997 study were shown images of either a happy or sad face. They were then shown an unfamiliar Chinese character from the alphabet. They were asked whether they liked the Chinese character. Those who had been shown the happy face liked the character more often than those who had seen the unhappy face. When they were later shown the same characters but with the preceding expressions swapped round, they didn’t change their mind. The first impression lingered. This links into stereotyping (see 5.08).

Mediation message 5.19 These reactions prevent us from considering risks and benefits as independent variables. Looked at logically, risks and benefits should be judged separately. They are different things. But we usually don’t do that. Check that you not falling into this mind trap at mediation. The heuristic also leads us to treat risks and benefits as emotionally the same. Therefore, if you like something you underestimate the risks and overestimate the benefits. If you don’t like something, you do the opposite. If we think that something is going to benefit us, we perceive it to be less risky. When something seems risky, we find it more difficult to see the benefits. This is why vegetarians who avoid meat for health reasons may still smoke cigarettes. (See Chapter 10 on Prediction.) It’s contradictory and in that sense it’s illogical. And it can cause us to act against our best interests. Cutting through this confusion is not made easier by our self-satisfied delight in paradox. As the oft cited quote from the American novelist F Scott Fitzgerald6 says: ‘The test of a first-rate intelligence is the ability to hold two opposing ideas in mind at the same time and still retain the ability to function.’ Amusing but remember that Fitzgerald was the epitome of dysfunctionality. Bear this in mind when you receive information that is framed in language designed to arouse fear. Remember that we tend to stick with our first impressions. This can be dangerous when someone is trying to talk up the benefits of a proposal and begins to spin the language. Problems become challenges. Risks become opportunities etc. We can find it hard to shake these off when we come to make our decision. 88

Intuition 5.24

TOP TIP Identifying risk comes from our unconscious. Calculating risk comes from the conscious (see Chapter 10). Be clear which you are doing. Mixing them up is dangerous.

In a nutshell 5.20 •

We are always looking to see what the risks and rewards are.

•

When we want to believe that something is good, we downplay the negatives.

•

When we think that something is bad, we downplay the positives.

Availability heuristic 5.21 We use this shortcut when making decisions about the probability of events. We tend to be over influenced by the ease with which examples come to mind. Remember the illustration of this given in 4.03 about whether more words start with the letter ‘r’ or have it as their third letter.

Curse of knowledge (aka information bias) 5.22 The tendency to allow one’s knowledge of the subject to reduce one’s ability to think about the problem. Experts are particularly prone to this (see 13.31).

Mediation message 5.23 This happens all the time at mediations. Parties and their advocates get bogged down in the detail of the case, which they know intimately. They do not consider the underlying problem or the bigger picture. Experts can be particularly afflicted by this. Germans have a great word: Fachidiot – a professional idiot – in particular an expert who cannot see beyond their own expertise even when a problem has multiple facets.

Default effect 5.24 We are drawn to make a choice based on what we already know and are comfortable with. 89

5.25  Intuition We tend to stick with the status quo because it is simply too much trouble to change. This inertia is why we stick with low interest paying bank accounts and badly performing share portfolios.

Mediation message 5.25 At mediations the default effect can inhibit creative structuring of settlements. We do need to think laterally, outside the box and sometimes think the unthinkable. How flexible are you? Try this:

Join the nine dots with three straight lines without lifting pencil from page or retracing. And finish on the same dot that you start from. (Answer is at the end of the chapter.)

Effort heuristic (aka the IKEA heuristic) 5.26 We value something that we have had to put effort into more than something that we didn’t. You can see this in the attitude towards money with easy come, easy go.

Mediation message 5.27 At mediations we see those who have had to put in effort and time or overcome difficulties in order to achieve something will value it more highly than those who haven’t. This is very common in shareholder disputes or partnership break-ups. Often the cause of the dispute or breakup is that someone feels that they have contributed more to the success of the business than others. The classic example is two people setting up a joint venture. One has the knowhow and the business connections. The other has the money. Without the money the business would never have got off the ground. Without the idea there would have been no business. Without the joint effort and hard work and connections the business would not have flourished. 90

Intuition 5.30 Often such ventures are set up on an informal basis and a 50-50 split. Over time the person who put up the money becomes less involved in the business. The person who has the knowledge and connections becomes more involved. They see it as their baby. This perception of relative contribution also overlaps with the perception of fairness. What is usually overlooked by the knowledge worker as opposed to the money worker is that the money worker risked their money. Looking back the initial risk is often seen as much lower than it seemed at the time – hindsight bias operates (see Chapter 15 on Fairness).

Familiarity heuristic 5.28 This is where we assume that the circumstances or facts that applied in the past and which influenced our behaviour still apply in the current situation. We therefore tend to apply our past behaviour to the present circumstances. This leads us to underestimate how things have changed and how different the new situation can be from the one what we found ourselves in previously.

Mediation message 5.29 We default to this way of thinking more easily when we have a lot to think about. Another example of cognitive overload. And this can easily happen at mediations when there’s a lot of new information and analysis taking place.

Fear of regret 5.30 We don’t want to regret our past decisions. Recall what was said about Regret Theory in Chapter 4. Consider this: John owns £2,000 worth of the shares in a company. During the year he thinks about selling them but does not. At the end of this year the shares are worth £500. He has lost £1,500 over the year. David owns shares in another company. Early in the year he sold them and bought some shares in the same company that John has shares in. If he had stayed with his original company shares he would be £1,500 better off. Who would you feel sorrier for? In a research project 92% of those asked chose David and 8% chose John. 91

5.31  Intuition Why? They are both in the same position. They have lost the same amount of money. The difference is that David took a conscious decision to buy the shares during the year but John decided to stay with what he knew. If you do not follow the crowd you tend to feel more regret. Hence the prospect of this being the last chance makes people anxious and nervous. Fear of regret makes us conform to the default position. (See also Scarcity, at 5.40).

Mediation message 5.31 At mediations, parties find it difficult to think how their world might be different when asked to contemplate the consequences of not settling. See the section on affective forecasting in Chapter 10.

First and last heuristic 5.32 We tend to remember most clearly and be influenced most by what happened first in an experience and by what happened last. The classic example is going on holiday. We remember arriving and our first drink on the balcony. We also remember the last thing that happened to us. If we have a fabulous farewell dinner with delicious food and wine and brilliant company, we will think that we had a great holiday. If we get stomach ache after the farewell meal or have an argument when checking out that will sour our memory. We will think worse of our experience.

Mediation message 5.33 In mediations the parties explain to the mediator how they have come to be where they have in their dispute. They will dwell on the most recent events. Insufficient credit or value is given to the previous interactions with the other side that were good. Parties who see mediation as an exercise in sharing, or even just inflicting, pain are prone to this heuristic.

Impact bias 5.34 The tendency to overestimate the length or intensity of the impact of future feelings. At mediations people say: ‘We could never agree to that. Members of our community know about this dispute. We have a good reputation, not like them’. In practice the community are usually already talking about something else. 92

Intuition 5.36

TOP TIP Remember the wise words of the prophet: This too shall pass.

Naive diversification 5.35 When we are asked to make several choices or decisions at once we tend to diversify more than if we make the choices or decisions one after the other sequentially. For example, in an experiment people were given a choice of six cakes and asked to choose which ones to eat over the next three weeks. Those who had to choose now went for more variety than those who chose sequentially and chose one cake a week to eat in that week. In mediations some negotiators think that is a good idea to present multiple options at the same time aka MESOs (see Chapter 17 on the psychology of offers). Having choice is not always a good thing.

Over-choice or the paradox of choice 5.36

Having a large choice can have three negative consequences:

1

Analysis paralysis. In one experiment 24 types of jam were offered for sale on a table in a shopping mall. Shoppers could try as many as they liked and buy them at a discount. The next day they repeated the experiment but with only six jams. They sold ten times as many on the second day with the more limited choice.

2

The more choice you have the less sure you can be that you made the right choice. Researchers found that shoppers who look at lots of items before choosing one, even going back for second looks, are less satisfied than those who make their minds up having seen only a limited number of items. More doubt and dissatisfaction.

3 Warped decision criteria. Before the internet, when you wanted to choose a life partner you had a choice generally limited by where you lived, worked or played. Now with online dating you can swipe left millions of times before making your choice. Research suggests that men at least reduce their criteria to one: physical attractiveness.

Mediation message 5.37 •

Satisficers are happier than maximisers.

•

At mediations look for the settlement that is good enough. 93

5.38  Intuition

Representativeness heuristic 5.38 We use this a lot when trying to work out probability. We tend to judge how similar the situation is to what we already know or believe we know. In personal matters we tend to judge people by how much they conform to our model of such people or stereotype. This is well illustrated by one of the best-known examples from Kahneman and Tversky – the Linda test. Linda is a 31-year-old woman who is single. She is considered outspoken and very bright. She studied philosophy at university. As a student, she was deeply concerned with discrimination and social issues. She participated in several demonstrations. Is it more likely that Linda is a bank clerk or that she is a bank clerk who is active in the feminist movement? You may well have chosen the second answer. Most people do. What this overlooks is that there are more bank clerks than bank clerks who are feminists. David McRaney gives another example: ‘Donald is a very intelligent student and does well in all his classes but he lacks creativity. He is extraordinarily tidy and feels compelled to bring order to every aspect of his life. When he writes, it lacks emotion and is filled with science-fiction references. He doesn’t like people but has high moral standards.’ This description came from a set of interviews with 30 engineers and 70 lawyers. Is it more likely that Donald is an engineer or a lawyer? The answer is that he is more likely to be a lawyer. Out of the 100 people interviewed 70% were lawyers. Even though this particular description might more closely match your idea or stereotype of an engineer.

Simulation heuristic 5.39 We find it easier to imagine some events than others. We tend to decide how likely an event is to happen by how easy we find it to imagine it happening. We do this for ourselves when predicting our own behaviour and also when trying to predict other people’s behaviour. And predicting other people’s behaviour is at the core of what goes on in mediation (see Chapter 10 on Prediction).

TOP TIP At mediation you want to achieve something that the other room doesn’t want you to have. In order to achieve it they have got to agree in some way with you. In other words, you have to engage in persuasion and negotiation (see Chapter 9 on Persuasion). 94

Intuition 5.42 If you want to persuade someone you need to know what they’re likely to find attractive. You have to look at the situation from their perspective and try to read their minds and emotions. A  good discipline when you’re at mediation is to try and predict the other room’s response to a question or proposal. You are after all trying to influence their behaviour. So, ask yourself how they will react. Generally, people are reluctant to do this. For example, when asked to say what the other side have offered, they ask ‘Is this a game? We don’t play games.’ Or insist ‘I can’t imagine. I have no idea. Just tell us.’ It’s not a game – it’s an important part of negotiating and persuadingie getting inside their minds and seeing the situation from their point of view. In Chapter 10 (on prediction) we discuss the reasons why people are reluctant to do it. Surprisingly as the day goes on people get much better at their predictions. That is until there is a complete change of mind and one of the options that had been rejected earlier as part of a MESO (Multiple Equivalent Simultaneous Offers) is resurrected and put back on the table (see Chapter 17 on the Psychology of offers, at 17.45).

Stereotyping 5.40  This is discussed above at 5.08. It is linked with confirmation bias and the Pygmalion effect (see 10.11).

Scarcity 5.41 The tendency to think that something is more valuable if it’s difficult to obtain. Particularly if we think that someone else – eg  one of our competitors – might get it instead of us. Professor Cialdini identifies scarcity as one of the seven main influences in persuasion (see 9.10).

In a nutshell 5.42 •

Emotions are easier to recognise in ourselves than in others.

•

Cognitive biases are easier to recognise in others than in ourselves.

•

Intuitions get us through the day. Don’t underestimate their value.

•

Manage them all, use them and control them. 95

5.42  Intuition Answer to puzzle at 5.25. NINE DOTS

1 Lewis The Undoing Project: A Friendship that Changed the World (Allen Lane). 2 Darwin On the Origin of Species by Means of Natural Selection, or the Preservation of Favoured Races in the Struggle for Life. 3 von Hartmann Philosophy of the Unconscious. 4 Nisbett Mindware: Tools for Smart Thinking (Allen Lane). 5 Bargh Before You Know It: The Unconscious Reasons We Do What We Do (William Heinemann). 6 (1896–1949).

96

Chapter 6

Self

In this chapter you will learn •

Why self is so important.

•

The different types of self.

Self 6.01 When we go to mediation, we take ourselves. If there’s one thing that we think we know about and we are expert in, it’s ourselves. The concept of Self is crucial when considering behaviour, both our own and other people’s. 1

Self itself

2 Self-esteem 3 Self-interest 4 Self-gratification 5 Self-determination 6 Self-pity 7 Self-control 8 Self-justification In mediation the concept of self is revealed in its different meanings. Let’s look at some.

1

Self itself

6.02 What is self? Does it exist? Is it really an illusion as Professor Bruce Hood explains in his book The Self Illusion: Why there Is No ‘You’ Inside Your Head.1 A big philosophical and psychological question with religious overtones? Perhaps. For present purposes we will take as a working assumption: Self doesn’t really exist outside your brain. It’s a cerebral construct. 97

6.03  Self Doing this helps clear away some of the thickets of contradictory and conflicting data, interpretation and explanation. We are still left with an uncomfortable question. Can we even contemplate that the self is an illusion? Let’s look at two basic theories – the core theory and the bundle theory.

The core theory 6.03 Aka the ego theory. This says that there is an essential us. We have a self which is what and who we are. We have it for the whole of our lives. Of course, the person that we see in the mirror looks different as we age. We move differently as we get older. Our bodies not only change but they renew – our cells are constantly replacing themselves. Our opinions may change. We develop new skills. But still, we are the same person. We believe that we are individuals inside our bodies. And we see the same thing in other people. We may have known them for decades. We see the ways that they have changed but in some sense they are still the same. The essential person is there. We feel that there is something, real, true and authentic about that essential person: the self. Professor Paul Bloom also thinks that this belief about the essence of something explains why we value genuine articles over replicas. This core view is the dominant one. Most of us instinctively hold it. As we shall see it both explains and influences much of our behaviour.

The bundle theory 6.04 This is not new although some of the scientific evidence in support of it is recent. This theory can be traced back to David Hume,2 the Scottish Enlightenment historian, economist and philosopher. For him, self was a bundle of perceptions, sensations and thoughts. Neuroscience supports the bundle theory. The big implication is that if the self is the sum of our thoughts and actions it depends on our brain. Not just on our brains as we also use our bodies to help us think about and act upon things around us (see Chapter 2). But it’s our brain which coordinates what we do and think. Look at how people who suffer brain damage or changes to the brain function caused by disease. They become different people. A  similar thing happens to people who take drugs which change the way the brain functions. They behave differently. They are different people. One of the constants that we think that we have and everyone has is our personality. Defining that can be tricky. As with many of the other concepts discussed in this book there is no generally agreed definition. Let us take the following as a working definition: ‘Personality – the bundle of characteristic thought, feelings and behaviours created by our genes and our environments.’ Although there are different theories the consensus is that our personality is relatively stable over time. Personality is distinguished from temperament which is less stable. 98

Self 6.07

What sorts of personality are there? 6.05 As briefly mentioned in 3.29 there are various ways of looking at personality. The Big Five analysis is often used.

OCEAN 6.06 •

Openness

how open to new experiences are you?

•

Conscientiousness

how organised and reliable are you?

•

Extraversion

how talkative, outgoing and positive are you?

•

Agreeableness

how kind, cooperative and trusting are you?

•

Neuroticism

how worried, pessimistic and negative are you?

Another variety is the HEXACO model. This overlaps with OCEAN but has six factors or dimensions. Three of them are similar to OCEAN: Extraversion, Conscientiousness and Openness. Its six factors are Honesty-Humility; Emotionality, Extraversion, Agreeableness, Conscientiousness and Openness to Experience. Its distinguishing feature is the Honesty-Humility factor which has been used in measures of ethical and pro-social behaviour. We all want to know what we are like at some time. You can find hundreds of tests that purport to tell you. Look at the ones online at: www.16personalities.com or www.themuse.com/advice/14-free personality tests.

Are you temperamental? 6.07 Temperament is linked with but separate from the concept of personality. Four rather than five basic categories have been identified: •

Harm avoidance

•

Reward dependence

•

Novelty seeking

• Persistence You can see the resemblance to the Ancient Greek four humours of melancholic, sanguine, choleric and phlegmatic. Normally you won’t have the results of personality tests available at mediations. But you will be weighing everybody up. As Professor Nicholas Epley says: ‘We are all instinctive psychologists’. Although we tend to rely on folk psychology. But is that less reliable than lab based psychology whose results can’t be replicated? (see 1.19). 99

6.08  Self

Mediation message 6.08 There are three types of personality that you need to be alert to and will encounter at mediations more than you might think. • Psychopaths • Machs • Narcissists. Why is this?

Psychopaths 6.09 People in disputes often describe each other in extreme and unflattering terms. This is known as demonising. Just because one room calls the other a bunch of psychos doesn’t mean they are. But they might be. Psychopaths are much more common than most of us imagine. They are not all repressed loners with long knives and weird eyes. You are likely to encounter them at mediations because occupations popular with those with high psychopathic readings include: • CEOs • Lawyers •

Media professionals

• Salespeople •

Accountants interestingly came out at number 10 on the scale of jobs with low readings.

Psychopathic tendencies are •

exaggerated self-grandiosity

•

superficial charm

•

low risk aversion

•

lack of regret or remorse

•

manipulative behaviour

• ruthlessness 6.10 The emerging consensus is that a moderate dose of psychopathy helps you to succeed in life, especially in ‘high octane’ jobs like lawyers, surgeons, traders and Special Forces. It improves your ability to focus on the job in hand, not to be distracted by emotions, the future or the past and to charm people. Charm is an elusive concept. But has been usefully defined by a Broadmoor inmate as: ‘the ability to roll out a red carpet for those you cannot stand in order to fast track them as smoothly and efficiently as possible in the direction you want them to go.’ Quoted in Kevin Dutton’s The Wisdom of Psychopaths. A vital skill in rapport building and persuasion? Possibly, see Chapters 8 and 9. 100

Self 6.13 Psychopaths are also better at reading other people’s minds, ie  cognitive or cold empathy. But they are worse at reading their emotions, ie emotional or hot empathy. That is why they are successful manipulators.

Machs 6.11 Machs exhibit Machiaveliianism. They get their name from the measure used to measure this tendency – the Mach IV. Those at the upper range are called High Machs. They behave in ways that show they are manipulative, callous, deceitful, amoral and with low emotional empathy. They value money, power and winning – at any cost. They want to get what they want and they don’t mind how they do it. They are attracted to business careers and often do very well in less regimented environments where they can be opportunistic. You meet a lot of Machs at mediation.

Narcissists 6.12 Narcissists need self-gratification. Everyone needs to love themselves. Narcissists love themselves excessively. But their self-esteem is fragile. As a result, they tend to behave in ways that show that they think they are better than others, have an exaggerated sense of their abilities and importance, are susceptible to flattery and status symbols and are selfish. Interestingly research shows that we are becoming more not less narcissistic. Studies by Sarah Konrath of the University of Michigan concluded that students are about 40% lower in empathy than their counterparts 20–30 years ago. Self-reports also reveal much higher levels of narcissism. You find plenty of narcissists at mediations and not just among the clients and their lawyers!

2 Self-esteem 6.13 As Magrini says: ‘Psychology requires that your brain should have a good reputation in its own eyes’. Self-esteem is semi-automatic in the sense that it can be adjusted. You tell yourself you’re good at things. We need it to help tackle unforeseen events and support our motivation. You may think it odd that your brain believes in such self-suggestion. But this is exactly what happens at both the conscious and subliminal level. This is driven by a need to predict the future and to reassure ourselves that we can cope. Studies have shown that self-esteem activates the brain right where the central portion of the prefrontal cortex (which deals with self-awareness) connects to the ventral striatum (which manages motivation and reward).Recall the Reward System 101

6.14  Self at 2.46. We all tell ourselves we are above average. If you think this, you’ll find your serotonin levels rise. (See the Lake Wobegon effect in 6.17.) We all suffer setbacks. But mental strength combined with sociability and selfesteem provide good antidotes. Remind yourself that there is always something positive to think about: ‘Yes I’ve just been sacked but I have three lovely children and my house has been paid for’. 6.14 Self-esteem is a crucial part of self-perception. So is self-awareness, ie your own individuality. Only humans, chimpanzees, gorillas, elephants and dolphins can recognise themselves in the mirror. Humans are the only animals that have the ability to project themselves mentally into a future time and place, project words and actions and take responsibility for them. For some mediators, self-esteem is the most important driver of mediation behaviour. For example, Paul Randolph says: ‘Self-esteem is one of – if not the – most powerful motivating factors in all conflict in human existence’. He defines it widely and emphasises the different ways that this is seen at mediations – the need to be heard, the need to seek approval – including from the mediator, the need to avoid disapproval and loss of face. Self-esteem may as Randolph says be an existential given. What in practice it boils down to is: people will do things that they think will make them feel better.

TOP TIP •

Take any opportunity at mediation to maintain and bolster people’s selfesteem.

•

Avoid showing disdain at all costs or exposing anyone to the risk of humiliation (see Chapter 12).

•

Being self-aware is an essential quality for mediators (see 3.31).

3 Self-interest 6.15 It is a truism that our sense of self is vital – we want to promote what we believe, feel or think is good for us. That is what motivates us. There are limits placed on us by norms, laws and conventions. And some of us act more consistently and obviously out of self-interest than others. We just have to recognise that. We also engage in motivated reasoning. In other words, what we think is in our self-interest will influence what information we take in, remember and use to make decisions. We will underestimate the risks of doing something that we want to do and overestimate the risk of doing something that we don’t want to do (see Chapter 5). 102

Self 6.18

Mediation message 6.16 You see living proof of the above at every mediation. Don’t assume that someone will act against their self-interest, at least not intentionally. Ask them to focus on how their self-interest can best be served. Surprisingly often they will see the benefit of settlement.

Self-serving bias (aka the Lake Wobegon effect) 6.17 We are all prone to this. We all think that we are above average in everything we do. There have been masses of experiments to show this. We think that we drive better than everybody else, are better looking than average, and are more popular than average. When we compare ourselves to our colleagues, we tend to think we are better than they are. There is nothing surprising in us thinking this. It’s an offshoot of optimism bias and is also known as the illusory superiority effect. In other words, it’s the self-confidence that gives us the energy and resilience to get up in the morning and go and do things. How does it affect us in mediations? At every mediation the blame game is played. Sometimes this lasts for most of the day. In more productive mediations it’s short lived or sporadic. Usually played at the beginning of the day, at times of stress and at the low point (see 7.06–7.08 when people hit the wall). We can see how: •

This bias explains our tendency to attribute our successes to ourselves and our failures to others or to the circumstances in which we find ourselves.

•

We judge ourselves by our intentions and others by their deeds. In other words, we judge ourselves by what we tried to do and others by what they actually did. We are more forgiving of ourselves than of others.

•

We underestimate the extent to which we may have contributed to the dispute and over- estimate others’ contribution. This is understandable, natural and often automatic. This leads to self-justification.

Remember that it’s called the Lake Wobegon effect because Garrison Keillor’s monologues about Lake Wobegon all ended with ‘where all the women are strong, all the men are good-looking, and all the children are above average’. It was a fictional place.

4 Self-gratification 6.18 The well-known marshmallow test suggests that those who can postpone self-gratification early in life do better later in life (see 6.19). By the time people attend mediations they’re not two-year olds with a sweet tooth. Although sometimes their behaviour can make you wonder. Delaying 103

6.19  Self self‑gratification is linked with impulse and emotional control, and the ability to balance short-term and long-term benefit. All qualities that are very relevant in negotiations.

Mediation message 6.19 One inquisitive mediator decided to restage the marshmallow experiment with chocolate biscuits at mediations. They were placed on the table and people invited to help themselves. The mediator noted the pattern of consumption. Who ate them, when and what sort? And in particular what happened when there was only one biscuit left? People dived in: •

When they had to take a decision – no doubt to top up their blood sugar and ego depletion (see Chapter 4).

•

When they had received unwelcome news: ‘Oh well might as well have one.’ as they engaged in stress eating or comfort eating (see Chapter 7).

•

When they felt successful, eg  when they had guessed what the other side’s offer was. As a reward. ‘You take the biscuit.’

Not eating a biscuit was an exercise in self-control and also control of others ie ‘Look at me I can resist the foiled wrapped chocolate gingers.’ (see Chapter 13 on Power). Handing the plate round the table was a way of showing leadership and process control. Mediators did that but so did group members. The ultimate decision maker – the senior person present – tended not to do that until there was only one biscuit left. Everyone declined except the one offering the plate around. 6.20 Can we postpone self-gratification? The 1988 study by Walter Mischel on marshmallow consumption is well known. He concluded that those who can exercise self-control and delay gratification at the age of four or more likely to do well later in life and achieve greater success. But if the future is uncertain why is a marshmallow in the hand not worth more than two in the tin? Perhaps the child wasn’t convinced the researcher would come back. Perhaps they would run out of marshmallows. Were they being optimistic or pessimistic? As Professor Tali Sharot concludes: ‘sociability and optimism have been shown to significantly affect how our lives unfold, with more social and optimistic individuals doing better in life, on average’. The marshmallow test has had variations. Researchers in Rochester wanted to see if their view of the reliability of the researcher would affect their behaviour. Before being given the marshmallow the testers produced some crayons. They invited a group of three to five-year-olds into room and gave them a ‘create your own’ kit. They could use the kit to decorate a piece of blank paper that could be inserted into a special cup. They were divided into two teams. The first team were also given a set of old crayons in an old box. The testers said that they were sorry. The other team were given new sparkly crayons. 104

Self 6.22 Both teams were then given the marshmallow test. What happened? •

Kids who were not given new crayons waited on average three minutes and two seconds.

•

Kids who were given new crayons waited on average 12 minutes and two seconds.

•

In other words, disappointment and lack of trust affected their ability to delay gratification.

At mediations many parties often express disappointment and a lack of trust in the other side.

5 Self-determination 6.21 Party autonomy is one of mediation’s big selling points. No one can force you to settle. No decision or outcome is imposed on you. You may not have much choice about whether to go to mediation, but you do have a say in choosing the mediator, the date and the venue. When you are in the mediation you can decide whether to meet and talk to the other side. You don’t have to if you don’t want to. Also, you can leave when you want to. No one can make you stay. Having this degree of self-determination should make it easier for everyone to engage in the process. It is their day. These influences may be significant in setting up and preparing for the mediation but are less so once the mediation is underway. Self-determination in a second sense of not wanting to be bullied is much more evident. This is linked with questions of power and fairness (Chapters 13 and 15).

What does bullying mean? 6.22 In the context of mediation, it means undue pressure or being treated unfairly which can be sometimes be seen as threats or unfairly exploiting a negotiating advantage (see also Chapter 13). Here are a few recurrent examples, some of which sound surprising when you hear them: The Claims Director ‘We are not going to be bullied into settlement. They have a very weak claim and are just trying to bully us into settlement with their funding arrangements.’ The Claimant ‘They are trying to bully us. They know that we don’t have much money and they have loads’. On receiving an ultimatum ‘They are trying to bully us with this ultimatum. They are bullies. They have always been bullies and we won’t stand for it anymore.’ 105

6.23  Self On reputational risk ‘If they want to report us, flame us or go to the newspapers so be it. We won’t be bullied. And we have very good defamation lawyers.’

Mediation message 6.23 The underlying text in the above accounts is about fundamentals such as imbalance of power, regret, envy and frustration. But it’s best not to give people a reason for even thinking in terms of bullying. So, think twice before using trigger phrases such as: • Unless •

Take it or leave it

• Non-negotiable • Never •

They have to accept/understand …

•

We don’t want to make them bankrupt but we will if we have to.

•

They don’t have the money. We do.

TOP TIP There are much better ways of getting the same message across. Use safety catch phrases instead. •

If we …. can you …?

•

You’ve beaten us down/up to our final offer. We have nothing more to give. Do they?

•

We can’t see how we can agree to …

•

In the present circumstances that is not going to be possible.

•

We understand that, do they understand this.

•

We are not out to get anyone we just want our money.

•

We do have the resources to take it all the way. It’s worth it for us to do that. Is it the same for them?

6 Self-pity 6.24 In a two-party mediation at least one party will see themselves as victims. Sometimes both will. They have been wronged in some way. Why would someone want to be seen as a victim? From a slightly glib perspective being able to claim victimhood can give you a sense of occupying the moral high ground. This is always a useful starting position 106

Self 6.27 in negotiations, and enables people to justify to themselves, if not to anybody else, why they rejected various offers. ‘It’s a matter of principle’ is said at most mediations at some stage by somebody. Sometimes this rather cynical view is unjustified. One party really is a victim. Worryingly they have been overwhelmed by self-pity. They have lost their sense of agency. They become resigned, passive and disengaged in the mediation process. They sit there waiting for their lawyers to sort it out for them. Sometimes they have actually become depressed and are under medical treatment. This is the most worrying state for the mediator and for the party’s advisers. How can you be sure the clients are in a fit state to take informed decisions? It can be very troubling. If there is real doubt you, as the mediator, have to raise it with the lawyers. If the advisers are in any doubt they have to raise it with medics. There is simply no point in trying to construct a settlement which is signed and agreed to by someone who really wasn’t up to it. It leaves open the possibility of an application to set aside the agreement. Or even negligence claims against advisers. Perish the thought – but satellite litigation does happen. Nobody wants that. It defeats the whole purpose of mediation.

Mediation message 6.25 Repetitive recitations of self-pity can be wearing. What you have to do is suck it up. If you as the mediator begin to feel fed up just imagine how they are feeling.

7 Self-control 6.26 You can’t control others if you can’t control yourself. As a mediator resist expressing anger, irritation, dislike, boredom, disdain or ideally any negative emotion (see 3.28). A gentle ‘I’m sure that we’re all finding this frustrating’ is allowed. Let them test, challenge or even bait you. Remember: stay cool; stay calm; stay collected. Advisers need to exercise self-restraint otherwise they become part of the problem not part of the solution. Clients are permitted to lose control or at least to forcefully express strong emotions – venting (see 3.26). Advisers also do this but in a more limited way. Suspicions are always aroused those emotional outpourings are all a bit of theatre put on for effect. Often they are, but not always.

8 Self-justification 6.27 As long as we are aware of a tendency to engage in self-justification we can check ourselves. And also realise that the other side are probably seeing things 107

6.28  Self in the same way as we do but from the perspective of their self, not our self. We are all prone to self-justification which is a variety of self-serving bias. How do you deal with it?

Substituting assumptions 6.28 Look out for self-justification. Gently identify it and point out that both sides are doing the same thing which is creating an obstacle to settlement. One technique for mediators is to say to one side, let’s take your assumptions and follow them through and see where it takes us. You are modelling their outcome. Then highlight the assumptions and consider what happens to their model if they are changed. It’s a sort of pre-mortem as described in Chapter 8. Then do the mirror exercise and look at the other side’s assumptions. Which ones can be accommodated within your model? This can be really useful when talking figures. The parties are a long way apart. How are they calculating the potential loss or damages? Nearly always different assumptions are made. So, you say to one party: ‘OK, you think that the interest rate is 2% and they are claiming 8%. Take their figures what does it do to your model?’ You do the same for both rooms. What actual difference does it make? How confident are they in their assumptions? What is the percentage chance that the court could adopt a different assumption? At mediations you see witnesses and advocates announce and assert that they are very confident in their ability to persuade the judge to accept their evidence and arguments. They know they will win. But of course, this is based on the information they are choosing to rely on and their assumptions.

Mediation message 6.29 Identify working assumptions. As mediator you don’t need to judge which assumptions are more likely to be accepted. Just say to the parties: ‘Can we take X% as a working assumption? Let’s see where that takes both sides.’ It stimulates discussion. This is a very effective way of finding the common ground. When you have opposing experts identifying and isolating their assumptions and modelling really comes into its own (see Chapter 13 on experts).

108

Self 6.30

TOP TIP The mediation ideal is to provide a space where people feel: •

that they are doing the right thing

•

good about themselves

• proud • heard. Mediators obviously have to do this. Advisers and clients can do themselves a favour by collaborating with the mediator.

Happiness or joy? 6.30 The most desired mental and emotional state. But it does vary according to the definition used. Is it contentment, fun, satisfaction, gratification, joy, euphoria? Like every other mental state, it depends on a combination of chemicals – neurotransmitters, electrical actions – brainwaves, as well as structural connections. The left prefrontal cortex is particularly attentive to feelings of happiness. The right one seems linked to sadness. Recall the Reward System: dopamine and oxytocin are involved as well as endocannabinoids such as anandamide. Happiness is also relative (see Chapter 2). The Happiness industry has identified many factors which contribute to happiness: strong social connection, health, religious belief, enough money to meet reasonable requirements but not great wealth. What has emerged is that my happiness does not depend on what I have got but on what you have got. This is the comparative view of happiness. Your boss asks what will make you happy at work. You tell them a rise. They say: ‘I can’t give you a rise. What else would do it?’ You reply: ‘Don’t give my colleague a rise’ (see Chapter 15 on Fairness). But as Magrini says: ‘a healthy bank balance generally improves happiness’ (see Chapter 12 on Money). You should be able to recognise joy and happiness in people. They smile. It’s not just the mouth that reveals joy. It’s the eyes as well. Happiness is largely shown through changes in the lower face and lower eyelids. The corners of the lips are drawn back and raised slightly. In addition, wrinkle lines form running from the nose to the corner of the mouth (see 8.03). To calibrate how happy someone really is look for more subtle signs than a smiley face. Take the nasolabial fold or the wrinkles at reaching the side of the nose to the 109

6.31  Self corners of the mouth aka laughter lines. The more pronounced the laughter lines the more the person is experiencing intense happiness such as joy or elation. Joy is an extreme form of happiness. The Dutch philosopher Spinoza3 defined it as: ‘Joy is pleasure accompanied by the idea of something past, which has had an issue beyond our hope’.

Mediation message 6.31 You might expect as a mediator that the parties would be full of joy when the settlement agreement is finally signed. They have what they wanted and some of them did not think that it was possible. Far from it. The conventional wisdom is that ‘a good settlement is where everybody leaves feeling unhappy’. This cliché is trotted out at mediations by legal advisers trying to reassure their client that happiness is not a goal attainable through negotiation. Although they may be feeling that they got a little less than they deserve so is the other room. It is this equilibrium of dissatisfaction that characterises a good settlement. This is an unduly depressing point of view. In fact, at most mediations where there is a settlement at least one party and usually both are pleased that it’s over. They may not feel joy – although according to Spinoza’s definition they should – but they probably do feel relief, an absence of worry, and yes happiness. At one mediation there was a boundary dispute between two couples. It was the usual incomers versus natives scenario. The incomers were a professional couple. The wife was feeling the strain and stress of the confrontational situation more than the mediation itself. Her husband was worried about her. He told me he wanted to settle for her sake. She was dressed up for the occasion but looked flat, down and a bit hopeless. We settled. I was sitting in the room with her husband when the door opened, and this woman came in. I must have looked startled. She asked ‘What’s wrong? It’s me, Jane’. I shook my head and looked at her husband, who said ‘You look completely different’. She did. She had put on fresh make-up and her eyes were shining. She was lively and engaged. Her husband shook my hand and said: ‘Thank you for getting me my wife back’.

6.32 You want people to be happy at mediation. In desperation you could try these two suggestions: 1

Hold your mediation on 20 March. That is International Happiness Day. The UN Resolution in 2012 created The International Day of Happiness and defined happiness as ‘a fundamental human right.’

2

Choose your venue carefully. Where do you think people are happier: where it’s hot or where it’s cold? The United Nations World Happiness Report tested 155 countries. The three happiest were Norway, Denmark and Iceland. The three unhappiest were Tanzania, Burundi and the Central African Republic. Of course, factors other than temperature could be involved such as the political or economic situation. 110

Self 6.33

TOP TIP •

Always road test what the scientists are telling you against your own experience.

•

Think for yourself.

•

If it works in practice, if not in theory, use it.

In a nutshell 6.33 •

Self matters more than anything else to us.

•

We are egocentric and see the world through our own eyes.

•

Our sense of self influences our behaviour and decisions.

•

We have various versions of our Self.

•

Avoid trigger words: use safety catch ones instead.

•

If you can’t manage your own Self you won’t be able to manage other people’s.

•

As the cabin crew tell us: put your oxygen mask on first.

1 Hood Self Illusion: Why There Is No ‘You’ Inside Your Head (Constable). 2 (1711–1776). 3 (1632–1677).

111

Chapter 7

Frequently Observed Behaviours (FOBs): Barriers

In this chapter you will learn •

What the five biggest behavioural barriers are at mediation.

•

How they block settlement.

Why do we go to mediation? 7.01 This is an easy question to answer. We go to mediation to make peace not war. That takes a different skill set and mindset. At mediations people often turn up without the right mindset. What mindset do they have? A ‘they are wrong and we are right’, mindset. This the root of the behaviours that are barriers to settlement. Fear not. Things change during the day. Everyone gradually changes the way they behave. Let’s look at the five main factors influencing negative behaviour at mediations. 1

Mood swings

2 Argument 3 Stress 4

Status anxiety

5 Groupthink

1

Mood swings

7.02 Moods change during mediations. Not just an individual’s or group’s mood but also the mood of the mediation as a whole. Moods come and go. A big part of the mediator’s job is creating the right mood for settlement and managing that mood.

Mediator DJ 7.03 Your job is to be the DJ. You are Fat Boy Slim and Paul Oakenfold. From the start you create the mood music. You vary the sounds, the beats and the rhythm as you build up, hold and let down moods. All the while you are creating the 113

7.04  Frequently Observed Behaviours (FOBs): Barriers atmosphere, the environment, the moment for the parties to take the crucial steps and to be able to say ‘Yes. We can do that. We have a deal’. So, you have to be on constant alert for the mood of the moment. Where people are now, where they were and where they are heading. To help you do that look at how emotions and cognitive biases come into and out of play during a mediation day. As we have seen both of them are context dependent. Energy levels are a big influencer. (See Chapters  4 and 6 on egodepletion and Self.)

Emotions 7.04 Let’s look at the ones that you see in play. Most of them are negative emotions. But remember the context: mediation. Recent research from CISA (the Swiss Centre for Affective Science) suggests that ‘mediation improves conflict resolution and is associated with increased activity in the nucleus accumbens, a key region in the brain’s reward circuitry’ (see 2.46). In other words, people like mediation! So, let’s see how emotion and energy can get in the way of a successful mediation. Here is a graph showing the pattern of energy levels over the mediation day.

Energy levels graph 7.05

114

Frequently Observed Behaviours (FOBs): Barriers 7.07 They will not all be in play all the time at mediations. Mediation is a dynamic process. The participants and the issues change throughout the day. Everyone feels and thinks differently at different stages. Here is a chart showing how different emotions are engaged at different stages.

Emotions graph 7.06

This is key. Our behaviour is influenced by how we feel. How tired, how hungry, how upbeat we are. All these things shape how creative, optimistic, co-operative, resistant, open or shuttered up we are. Have another look at the constructed emotion theory of emotions in 3.19. We decide how we feel. Let’s map energy levels and emotions onto the stages in the mediation day.

Mediation stages 7.07 Look at this representation of the activities of the day with the usual stages and milestones.

115

7.08  Frequently Observed Behaviours (FOBs): Barriers 7.08

Mediation Clock Agreement start 18.00

s cu au nt t c ma 1s clai

10.45

De

s aucu 1st c dant defen

Temp incre o ases Final offers

17.00

10.30

JOS

ing

Draft

al

17.30

10 AM

11.30

15.30

h f 4t d o es un s ro ucu d e ca 3r ang rs ch ffe ex f o o

w Revie n io sess

The wall

14.30

3rd round of cauc uses 2n exch d ange offers of

First ange x e ch rs e o f o ff h Lunc

2n de d c fe au nd cu an s t 2nd cau claim cus ant

16.30

12.00

12.30

13.30

You can see how the energy levels map the stages. One of the worst things about the usual mediation timetable is that our best hours are spent in arguing and advocacy. When we come to the most important parts of the day – constructing, agreeing and documenting the settlement – everyone is often at their lowest energy levels. Not good news. World weary mediators tell each other that tiredness, boredom and impatience bring about settlements. Even allowing for some professional cynicism this is dangerous. Adopting this defeatist approach generates frustration and ultimately dissatisfaction with the mediation process. You can see how different emotions are displayed at different times of the day. Even the same emotion will be experienced and expressed with different levels of intensity. For example, anxiety will be felt more at the start of the day. It fades as people become used to the process and to each other. Activity builds up which is always good for dispelling worry. Then frustration, disappointment, anger and surprise come to the fore as the first offers are exchanged. Gradually momentum is generated along with surprise, rising self-esteem, hopefulness and cheerfulness. In the end as the deal is done, surprise, triumph, pride, relief, smugness, remorse, disappointment, satisfaction are felt as people fold away their screens, walk to the station or drown their sorrows. We can see the same sort of thing with cognitive biases. Look at the chart. 116

Frequently Observed Behaviours (FOBs): Barriers 7.08

117

7.09  Frequently Observed Behaviours (FOBs): Barriers

Cognitive biases 7.09 At the start of the mediation, you will see authority bias, selective perception, false attribution bias, naive realism, optimism bias. As the day develops, with exchange of information and first offers, you will have confirmation bias, reactive devaluation, anchoring. Momentum builds up and decision making becomes more nuanced. You see loss aversion, endowment effect, consistency bias. And as the settlement emerges, so does decision fatigue, fear of regret, hyperbolic discounting and the ultimatum game. 7.10 Let’s now look at the relationship between the mediation stages, energy levels and how we feel and think. Here is another chart which maps them against the emotions and cognitive biases that are in play.

What affects our moods? Weather 7.11 Our spirits rise with the sun. We are more optimistic. We take more risks. We place bigger bets. All mediators can do is to take note of this. Sadly, not even the mightiest mediators can organise the weather (see Chapter 3).

Temperature 7.12 We feel warmer towards each other if we are physically warm. Research has established links between physical and social temperature. Feeling warm makes us ‘act’ warm. Brain scans show that our insula (see Chapter  2) is activated by both types of warmth, eg  holding a cup of hot tea and emailing a loved one. But be careful. We feel homicidal if the temperature is too high. High temperatures can mean lower concentration, patience and receptivity.

TOP TIP •

Mediators can do something about temperature. Check with everyone whether they are too hot or too cold.

•

Remember that there are gender specific requirements. Women often feel the cold more than men.

•

Showing interest in these details and more importantly arranging for temperatures to be adjusted helps with rapport building. 118

Frequently Observed Behaviours (FOBs): Barriers 7.16

Colours 7.13 Some colours calm us. Pink for example has been used in cells – ‘Drunk Tank Pink’ is the title of an excellent book by Adam Alter and a shade of paint used very effectively to calm down violent drunks. Red has the opposite effect. It arouses people. Unless you are designing your own mediation suite or using an expensive hotel for the mediation you probably can’t do much about that. But it’s worth noting in case the rooms have different decors. You might be able to match people to colours.

Sounds 7.14 Sad music makes shoppers buy more. Listen to the play list next time you are in the supermarket. By contrast catchy tunes by Mozart revive us and improve concentration. Again, in practical terms there’s not much that you can do unless you have influence over the management of the venue. If the mediation is being held in your offices think about the choice of background music in the waiting areas. Noise is a sound that you don’t want to hear. Road works, faulty alarms, malfunctioning air conditioning can all irritate people. Ego depletion is aggravated. Quiet is best.

Smells 7.15 Fresh coffee and newly baked rolls all raise the mood. Can the caterers help? Possibly with a bit of planning. Research has shown that being near unpleasant smells made people take harsher decisions. So even if you can’t provide perfumed suites for the parties make sure that there are no bad smells. What about room scent? Well worth thinking about. Perhaps aromatherapy has a part to play. And flowers? They always cheer people up. Pot plants are widely recommended as stress reducers and mood improvers.

Images 7.16 Think a bit more carefully about what pictures you have on your walls. What messages are you sending out with sculptures and ceramic displays? Calming images of empty skies, lakes, trees, beaches and seas can help. Most times, you will have no ability to influence these things. But if you do, grab the chance. 119

7.17  Frequently Observed Behaviours (FOBs): Barriers

Food 7.17

Which foods are associated with which shape? • Honey/lemon •

Sparkling water/Still water

•

Milk chocolate/Plain chocolate

•

Strawberry jam/ Gooseberry Jam

•

Brie cheese/Mature cheddar cheese.

7.18 Answers Jagged shape: gooseberry jam, plain chocolate, sparkling water, lemon and mature cheddar cheese. Rounded shape: strawberry jam, brie cheese, milk chocolate, still water, honey. Hold this thought. You cannot mediate without food. We discussed in 4.19 how we all need glucose. Low blood sugar makes people, tired, impatient and prone to making poorer more impulsive decisions and taking a harder line. Eating is a form of emotional management. Comfort food and stress eating are common phenomena. Gorging, snacking, grazing and bingeing – you can see all four types of eating styles during an eight-hour mediation. Some food-conscious clients try to manage this by bringing their own food. Hampers, cake tins and cool bags are opened. Hams and poached salmon emerge with bottles of Sancerre, baguettes, camembert, and pork pies. Hard pressed mediators gaze enviously. Perhaps it is also dominance behaviour and an expression of status anxiety (see 7.38). 120

Frequently Observed Behaviours (FOBs): Barriers 7.20

Mediation message 7.19 Be careful: large lunches slow down mediations. Thinking can be disrupted. Energy levels dip after lunch as the body’s blood supply is transferred from the brain to the gut. Time and energy is spent digesting food instead of digesting proposals. Not always a good use of resources. Make sure that you are not hungry when you arrive at mediation. Stay topped up. Unfortunately, mediation diets are often unhealthy. Sandwiches full of carbs and fats, biscuits, cakes, crisps, fizzy drinks, coffee and tea and John Sturrock’s favourite bacon butties and late-night pizzas or Dave Owen’s boxes of pastries. To be sure some venues now offer herbal teas, fruit, healthy protein bars and salads. But the temptation is to gorge and snack. We have become addicted to sugar. It’s hard not to be. Brain scans show the nucleus accumbens which you remember is part of the rewards pathway responds more strongly to high-fat/high-sugar foods than to low calorie healthier options (see Chapter 2). Mediations can influence this by triggering emotions. Monitor what you are doing and saying. Much better to concentrate on promoting feelings that will generate releases of oxytocin (trust) which stops us feeling the need to eat more food. Cortisol (stress) by contrast encourages us to overeat. It increases the sensitivity of the reward pathway to high calorie foods. Worse it weakens the communication links between the reward pathway and the brain that tell us that we have had enough to eat. Back to the rounded and jagged food shapes. Generally, you want people not to be jagged and spikey at mediations. Better for them to feel comfortable and rounded. But of course, it’s the sugary sweet foods and tastes which are round.

2 Argument 7.20 At the start of the mediation everyone says they want to try and reach a settlement. Everyone says that they have come to make peace not war. Yet most people are on a war footing. They are in combat mode. The argument mindset is intensified by our pre-mediation behaviour. By the time the parties arrive at the mediation venue they are usually as angry about the way the dispute has been conducted as they are about the original dispute. They bring this baggage with them. Mediators often have to defuse a dispute about the dispute before dealing with the dispute itself. Why does this combat mode arise? After all in real life we negotiate deals all the time. Where shall we go on holiday? We buy cars and sell houses. At mediation the deal is a settlement. Mediation has been defined as assisted negotiation. Not all mediators agree with this. For them mediation is a more complex and important activity in which problems are not just solved but people’s behaviour and relationships are changed. It is less about argument and more about therapy. 121

7.21  Frequently Observed Behaviours (FOBs): Barriers This transformative approach is rarely evident in civil and commercial mediations. Why not? Time. Most mediation clients don’t want to pay for more than a day’s mediation. That is usually eight hours of contact time with the mediator. Whether this model is outmoded or not is another matter, but it is still the current model in the UK. So, within this setting, what happens?

Mediation message 7.21 In practice, all mediations start with an argument. Clients and their advisers turn up to argue their case. Either they do it directly in Joint Opening Sessions and position papers or by proxy through the mediator. They know they’re not in court. They know the mediator is not a judge and cannot decide who is right and wrong but still they do it. Why? Evolutionary psychologists tell us that it’s because we can’t avoid it. Our brains are designed to help us survive. They have been very efficient. Humans are among the 1% of all the species which have ever existed on earth to have survived (see Chapter 2).

As part of our survival, we have to get what we need. We can do this if everybody agrees with us, but they probably won’t because they will want what they think they need. We can obtain it by force. If we all do that, we end up annihilating each other which we haven’t done so far. Or we persuade people. As was said in Chapter 2 brains are not designed to find the truth but to win arguments. 7.22 Culturally this can be seen throughout history. In the ancient world rhetoric was taught as a skill. And this has carried on to the present day. Our legal system, our systems of government, our organisational decision making are based upon argument. There’s a risk of generating semantic confusion. For these purposes, argument is the same as debate, discussion, dialectic or clash. They all come down to the same thing, ie how argument is supposed to work. You set up or make out your case. That’s your thesis. Your thesis is met by a counter argument or antithesis. What is meant to emerge is a synthesis combining the best of both worldviews. This underpins transformative or narrative mediation. That is the dialectic. It rarely works out in practice – although sometimes it does. If I’m putting forward a point of view or argument, why would I select the best bits from the other person’s point of view? What’s the motivation? I want to win. Usually at best synthesis is regarded as either a half-hearted compromise or a withdrawal and retreat from a stated position. So argument becomes a trial of strength. Many people, especially advocates, see negotiation as all about winning the argument. And here’s what happens in argument: •

The attacker attacks.

•

The defender defends and probably counter-attacks.

•

The attacker attacks again and defends the counter-attack. 122

Frequently Observed Behaviours (FOBs): Barriers 7.23 •

Each side becomes more entrenched and rigid.

•

Neither side makes any attempt to develop an idea different from the one that they are about. They are locked in their argument.

•

Time, energy and costs are spent. A stand-off is reached. How long will it last?

•

Each side uses up their energy, creativity and resource not in trying to improve their idea but in defeating the other side’s idea.

•

In the end the argument that triumphs is the stronger argument not necessarily a better idea.

There is no collaborative exploration of the problem. Most of the time there is not even a joint overall assessment of the situation. The underlying philosophy of principled negotiation is that there should be this mutual approach to the problem. It’s all well set out by Fisher and Ury in their book Getting to Yes.1 But as we shall see that is far from being universally accepted as either desirable or workable (see 7.47). 7.23

There are three basic ways in which you can sort out a conflict.

1

Fighting. In mediations we are not talking about violence. The parties may be engaged in proxy violence ie litigation. But let’s be clear: no matter how aggressive, demanding and stressful courtroom battles are they are nothing compared with a firefight. All the military metaphors and bellicose attitudes that advocates and clients use and display have to be put into perspective or better still discarded (see 9.20 on language).

2

Negotiation. You trade. In many ways this is an extension of argument. With moves, countermoves, tactics, positions, ammunition aka evidence, and legal authorities.

3

Problem-solving. You think about it. You scope the problem and try to find a solution. Usually that means first finding the cause. But often there is no single cause. You may not know what the solution is. But even when you do you have to find a way of getting there – so identifying and overcoming obstacles is how we spend our time and energy.

Some more creative commentators such as Edward De Bono have identified limitations in all these approaches and come up with a different one which he calls design. As he says: ‘It is not just a matter of removing a problem or effecting a compromise. There is a designed something that was not there before’. Again, this resonates with the idea of principled negotiation where circumstances of mutual gain are created. Although both ideas are sound, and probably better ways of approaching conflict resolution at mediation, they are too idealistic for most participants. Mediators find it hard enough to move the parties from arguing to negotiating, ie from advocacy and rhetoric to assessment and collaboration. Why is this? To find the answer, we have to look at the ways we think and feel which influence the way we act. So, what cognitive biases and emotions are in play during mediations? You won’t see all 201 cognitive biases or all 451 emotions. The main ones are identified and discussed in Chapters 12–16. 123

7.24  Frequently Observed Behaviours (FOBs): Barriers

3 Stress 7.24 We have all told ourselves that we are feeling stressed. Whether that was just feeling the pressure of events or actual stress is another matter.

What is stress? 7.25 Stress is not just one thing. At its most basic, stress is a feeling of emotional strain – both physiological and psychological. It’s the way that our body is reacting to stressors such as a threat, challenge or a physical and psychological barrier. It’s a survival mechanism. Stress affects both how we feel and how we think. Most of us think that we can tell when someone is stressed. Conventionally stress is divided into good stress and bad stress. We have all seen signs of bad stress such as: Behavioural symptoms: •

Depression or anxiety.

•

Anger, irritability, or restlessness.

•

Feeling overwhelmed, unmotivated, or unfocused.

•

Racing thoughts or constant worry.

•

Difficulties in remembering or concentrating.

•

Making bad decisions.

Physical symptoms include: •

Low energy.

• Headaches. •

Upset stomach.

•

Aches, pains, and tense muscles.

•

Chest pain and rapid heartbeat.

• Insomnia. 7.26 Not all stress is bad. There is good stress, aka eustress. We need a certain amount of stress to achieve things. So it’s natural for mediators or advocates to feel slightly stressed at the start of the mediation as they check everything is ready. They want to do their best – a sort of performance anxiety. But someone else, perhaps the clients, could feel bad stress aka distress in the same circumstances. You can have too much stress and be overstressed aka hyper-stress. This interferes with how you function. The main symptom is inability to focus or concentrate. Your mind is everywhere. Your mood control can be impaired. You see lots of fast talking, swearing, jerky gestures or facial tics at mediations. You can also have too little stress and be under stressed aka hypo-stress. The signs are similar and include feeling sad or down, anxiety, apathy, irritability and mental 124

Frequently Observed Behaviours (FOBs): Barriers 7.30 fatigue, confused thinking or reduced ability to concentrate; excessive fears or worries; extreme feelings of guilt, exaggerated mood changes of highs and lows. Sufferers appear to be avoiding their responsibilities and relationships. You see both behaviours at mediations.

What causes stress? 7.27 Professor Shari Talot in her book The Influential Mind2 tells the story of how on 14  September 2001 she was walking in New York. Suddenly a middle-aged man started running down the road towards her. He seemed in panic. Within a few seconds other people sat around behind him. She joined in. Why? It was three days after World Trade Centre bombings. The man didn’t say a word he simply ran down the street in panic. She did not know what was going on inside his head. But he was able to influence how she felt and acted just by his silent actions because of what was already inside her head. And that is the big point. An event that stresses one person does not necessarily stress another. It depends on their emotional state when the event occurs.

Mediation message 7.28

Remember: at mediations stress is in the air and it’s catching.

Tali Sharot describes the process: ‘Within seconds, stress hormones such as cortisol are secreted, triggering a chain reaction – your heart pumps overtime and your breath shortens. There are no spare resources to go around, so non-urgent functions must shut down; your immune system temporary quiets, as do your digestive and reproductive systems. This is no time to deal with a healing wound or digest whatever you were chewing an hour ago; you must focus all your resources on one goal. Surviving in the moment.’ This is not a good state to be in when you are trying to make peace.

Acute stress or chronic stress? Chronic 7.29 You often see this at mediations. Over time chronic stress really damages your health – your immune system becomes weak, your digestive system slows down and you get fat around the middle. Your brain changes.

Acute 7.30 Acute stress can alter the way you think within seconds. And also influence the way you make decisions and the way you behave. 125

7.31  Frequently Observed Behaviours (FOBs): Barriers In one experiment Neil Garrett and Anna Maria Gonzales-Garzon carried out they had two sets of students. They tested their saliva for stress hormones. The students completed a questionnaire about current levels of anxiety. Their Baseline skin conductance level (SCL) was measured They were told they had to complete a simple computer task for 30 minutes. So far so good. Then they were told they would be given a piece of paper with a topic written on it. They had about five minutes to present the topic in front of a group of 30 people. They had no time to prepare and their presentations would be recorded so that others would be able to view them online. Their saliva was reanalysed. The other group were told the same thing but told that their essay would not be read by anybody. So, half the group was stressed, and the other half were not. 7.31 They were all then presented with descriptions of dreadful events that could happen to them in the future: being robbed, a car accident, breaking a rib. They were then given information about the likelihood of these happening, eg 30% of people are robbed in London. Then they were asked how likely they thought it was that these things would happen to them. The findings were: •

Those that were stressed were more likely to take in negative information than when they were relaxed.

•

The more stressed they were the greater their tendency to alter their response to unexpected bad news. It did not affect the ability of good news to change their beliefs

These findings help explain panic selling of shares. Underdogs who think they have no chance of winning tend to be more conservative and will concentrate on preventing a loss. But some people who think they have no chance go for broke. They have nothing to lose. You see this a lot in sport. And you see it surprisingly often at mediations.

Mediation message 7.32 Sometimes people who think that they have no chance decide to take a chance. They tell mediators and their own advisers that they will take their chance in court. “Let’s roll the dice” they say. This happens even when their lawyers have told them they have no chance of winning at court. If the situation is hopeless, what do you have to lose? You might as well cling to the smallest crumb of hope and go to trial. You might be lucky. At least you put off the evil day of reckoning. Coping with this is one of the most difficult balancing acts that mediators have to perform. You don’t want to undermine the lawyers and you don’t want to overpress the clients (see Chapter 13). 126

Frequently Observed Behaviours (FOBs): Barriers 7.37

Stress is catching 7.33 We pick up on each other’s stress levels whether we realise it or not. An experiment was carried out on mothers and their one-year old children. They were measured for base line stress levels. The children were then taken to play with another researcher. The mothers were split into two groups. One was given a stress inducing task of public speaking. The others were not. When they were reunited with their children researchers monitored the stress levels of both mothers and children. Guess what? The children with stressed mothers became stressed themselves. The children with the unstressed mothers did not.

Stress can be cumulative 7.34 You can suffer chemical build up. Adrenaline and cortisol, the two chemicals that are produced in stress reactions, act differently. Adrenaline travels through the nervous system. It fires up quickly and dies down quickly. Cortisol travels through the blood stream which is slower. It tends to linger – for up to two hours. So, if there are repeated stress triggers at mediation the cortisol level will be topped up. The Yerkes-Dodson law shows the relationship between performance and stress. Performance improves with stress or arousal. But only up to a point. Then it declines. Keep an eye on the stress levels. 7.35 Moderate levels of stress are good: high and low levels are not. What relevance is this to mediation?

Pre-existing stress 7.36 Some people will come to the mediation feeling stressed. Often clients will tell you as mediator that the dispute or the litigation is getting to them. They are not sleeping. There may be accounts of suicidal thoughts or attempts. Others will be on medication or receiving treatment. It’s affecting their lives for the worse. They see the benefit of bringing the dispute to an end.

Triggered stress 7.37 The circumstances of the dispute are themselves distressing. Obvious examples are: family disputes over wills; break-ups of relationships both personal and business; life changing injuries; or financial disaster. Those involved find it difficult and upsetting to think about events that have led them to the mediation difficult and upsetting – or they react with anger, swearing, temper tantrums and tears. High emotional expression. You see clients who are not engaged in the process. They have handed control of the operation to their lawyers. They say very little even when encouraged to by the mediator and their own lawyers. They tune out. They just want to be told what to do. They may become ultra-suggestible. Sometimes they are open about this. They feel overwhelmed. They don’t know which way to turn. Their passivity 127

7.38  Frequently Observed Behaviours (FOBs): Barriers can turn into a fatalism. Que sera, sera. ‘What can I do about it? I’ve had enough. I  just don’t care anymore.’ This leads to feelings of helplessness and victimhood (see 13.10).

Future-induced stress 7.38 Clients are extremely worried about the future: they fear they will lose their house, be made bankrupt, their business will be liquidated. They catastrophise (see 10.07). Or it’s just the not knowing. The uncertainty. Not many of us like uncertainty (see 2.41). This can make people more susceptible to cognitive biases that influence how we see the future (see 5.34 on impact bias).

MIS (aka mediation-induced stress) 7.39 This affects clients the most. After all, many clients will not have been to mediation before. They are outside their comfort zone. Mediations are not as intimidating as courts, but they are still stress-inducing. And even clients with mediation experience know that they will have to take decisions that day. That usually raises stress levels to some degree. Advisers can also feel stress. Especially if they have made funding arrangements where they are sharing the risk with their clients. Or where their conduct and advice will be criticised by the other side and possibly examined by the mediator (see Reality Testing in Chapter 8). This often manifests itself in procedural battles. Are we going to have a Joint Opening Session? Who is in the other room? Objections are made to attendees in the other room. You see refusals to have any sort of joint meeting or even to say ’Good morning’. Or there is displacement activity. Let’s avoid the issue by talking or doing something else. It takes many forms – excessive requests for information, repeated criticism of the way the other side have behaved, texting family members with updates, never ending smoke breaks. Sensitive but clear direction is needed from the mediator.

Mediation message 7.40 Mediators can make this sort of stress worse by heavy handed process control. Why have arguments about process? Why press reluctant clients to have a joint opening session? All this does is raise stress levels. The name of the game for the mediator is to get stress levels down and trust levels up. So, focus on rapport building (see Chapter 8) and not on early challenging conversations. 128

Frequently Observed Behaviours (FOBs): Barriers 7.42

4

Status anxiety

7.41 A  key part of our evolutionary development was working out what the pecking order was and where we were in it. That persists. In any gathering there is social jostling to see who is Top Dog and where everyone else is in relation to Top Dog. Once we find our place and role we can relax and get on with it. This also applies to short lived ad hoc groups, eg half a dozen colleagues meeting for drinks after work or new work teams created after a merger of departments. It applies at mediations as well. Everyone gathers for a day’s shared experience. Sub-groups form. The different rooms fill up with the disputing parties. Cross-over groups form, for example joint sessions of experts or lawyers only meetings. This is the forming, norming and storming model (see Chapter 13 on Power). Sorting out the pecking order and role allocation generates stress. People anxiously ask themselves what they are supposed to be doing here. What is their role? As has been explained, mediation is an artificial environment with touches of theatre (see 3.38).

Mediation actors – their roles 7.42 ‘I don’t know how much time I wasted before discovering that deals aren’t usually blown by principals; they are blown by lawyers and accountants trying to prove how valuable they are.’ How often have clients and mediators wondered the same thing as Robert Townsend did? He was the co-author of the universal bestseller Up the Organisation: How to Stop the Corporation From Stifling People and Strangling Profits3 and president and chairman of Avis. Let’s be fair: people at mediation have different roles and they are not always sure what they are. It seems so simple. •

The client: their job is to provide information to their advisers and make decisions.

•

The professionals: their job is to advise their clients and to represent them in negotiations. This is particularly the lawyers’ role. It is less of a role for experts despite what some of them think.

•

The mediators: their job is to identify and create the environment in which clients and their advisers can openly explore settlement options, identify the real obstacles to settlement and create momentum. They bring direction, energy and the third-party gaze.

As everyone works all this out, they negotiate agreement on their place in the pecking order. Authority becomes an issue. Dominance behaviour is on display. Usually, it’s from lawyers. They want to seize control of the agenda and the process and win the mediator over to their side. But it can be mediators who want to emphasise that they are the ones in control. It may be the client’s day but it’s the mediator’s show. And they are the star. Less frequently it’s the client who wants to 129

7.43  Frequently Observed Behaviours (FOBs): Barriers show everyone who is boss: their own team, their own advisers, the other side and the mediator (see Chapter 13 on Power). And then there are the experts. Expertise brings its own status which experts expect everyone to acknowledge. Especially if they have been trained or accredited as expert witnesses and earn a reasonable slice of their income from expert witness work (see 13.30–13.31). So, mediators need to undertake a lot of ego management (see Chapter  6 on Self).

Problems with lawyers and experts 7.43 Many lawyers wonder what their real job in mediation is. Consider this example: Liquidators sued the directors of an insolvent company over related party transactions at an undervalue. At mediation the directors’ lawyer was articulate and forceful in his presentation of their defence which he said would succeed at trial. The liquidators and their lawyers were not convinced. In private sessions with the mediator the directors’ lawyer continued to energetically express the same level of confidence. Progress was slow. During a stage-managed encounter at the coffee machine the mediator asked the lawyer how he thought the discussions were going. To the mediator’s surprise the lawyer said he thought they were making very good progress. ‘Why?’ The lawyer said that his clients knew they would have to pay more money. Asked why he was saying in private sessions that they were going to win at trial he replied: ‘I’m advocating’. This raises a fundamental point about the role of lawyers or advisers at mediations. Lawyers do three things: 1

They analyse the information given to them by their clients.

2

They advise their clients what to do.

3

They advocate – in other words they put their clients’ best case forward.

Some lawyers mix up these three roles. Some do it deliberately. Some do it without realising what they’re doing. Everybody must be clear what role the lawyers are performing. Lawyers need to be clear. Their clients need to appreciate the difference between advice and advocacy. Mediators want to understand what each side’s analysis and advice actually are. Are both sides really seeing the situation so differently? How much is just posturing? 7.44 Lawyers tend to adopt three roles. For more detail on this, see Chapter 2 in Mediation Advocacy.4 Hired guns see their role as destroying the other side’s case through a combination of forceful and persuasive presentation of their clients’ best points and sustained destructive attacks on the other side’s weak points. Barristers and solicitors who 130

Frequently Observed Behaviours (FOBs): Barriers 7.47 practice advocacy in court favour this role. Non-legally qualified experts are also not averse to it. Bodyguards see their role as protecting their clients from themselves, the mediator and bad deals. This essential and laudable intention too often slips into control freakery with both the mediator and the client feeling alienated and sidelined. Bodyguard lawyers don’t allow the mediator to talk to their client even in their presence. They have multiple private sessions without the mediator being present. They do all the talking. Coaches see their role as supporting their clients to achieve settlement. They are proactive but don’t feel the need to dominate or to be seen to be taking the lead all the time. They establish rapport with the mediator. These roles aren’t mutually exclusive. Lawyers dip in and out of them at different stages of the mediation. But they tend to have a dominant or default role.

Mediators or moderators or monitors? 7.45 Mediators also have different roles. De Bono’s description of the role of a negotiator is apposite: ‘There is also something weak about the role of a negotiator. He is supposed to be the humble servant of the warring parties. He has to scuttle to and fro carrying communications they refuse to direct to each other. He must try and keep them all happy. He is a sort of lubricant.’ Recall the definition of mediation in the Introduction at Chapter 1. Are mediators meant to be facilitative? Should they be evaluative? Or should they go further and make suggestions or even recommendations?

Mediation message 7.46 Some mediators are happy to act simply as moderators or even as messengers. But be careful about being so low key that no one can hear you. In the words of one experienced barrister-mediator who was representing a client at mediation ‘The mediator was so passive. He was as much use as a chocolate teapot.’

Mediation mindset 7.47 Most civil and commercial mediators have imbibed the theory of principled negotiation. This was developed by the Harvard Negotiation Project and is summarised Roger Fisher and William Ury’s book, Getting to Yes.5 The four key principles are: 1

Separate the people from the problem. 131

7.48  Frequently Observed Behaviours (FOBs): Barriers 2

Focus on interests not positions.

3

Invent options for mutual gain.

4

Insist on using objective criteria.

Their emphasis is on cooperating to find mutually beneficial outcomes rather than trying to score points off each other. Mediators encourage clients and their lawyers to adopt this approach. For how this actually works in the mediation context see Mediation Advocacy. Many regard this approach as a panacea. Others have criticised it as being too idealistic and not grounded in what actually happens at mediations. In particular, its underlying assumption that people behave rationally in their own best interests is unrealistic. Fisher and Ury don’t allow for irrational behaviour and the importance of emotions in decision making. See Thierry Garby in his book Agreed!6 As you saw at 7.06–7.09, background emotions and cognitive biases are in play most of the day. They are humming away and from time to time are dialled up and can be heard and seen when something triggers them. 7.48 Mediators have to monitor what is happening with all the participants. Only they can see what is happening in both rooms. Advisers have to do something similar. As an adviser you need actively to create the right mood in your room, ie coaching your clients. And you also need to be alert to how to change the mood in the other room, ie persuasion. You have to read your own clients, the other room, the mediator and yourself. It’s difficult and demanding work. Clients: you are the stars of the show. Settlement doesn’t happen without you. All the time you need to be checking how you are. Taking your emotional temperature. Am I feeling angry? What is making me angry? Is feeling angry going to help me get what I want? No, I’m not angry I’m sad. Why? What’s making me sad? What will cheer me up? The more precisely you can calibrate and label how you feel, the easier you can manage and use your emotional energy (see Chapter 3). Whenever any sort of suggestion, proposal or offer is made, ask yourself ‘Why can’t I say yes to it. What’s the barrier? What would make me say yes?’ Be proactive not reactive. Tell your advisers what you feel and think. You may have hired a lawyer to speak on your behalf, but you write their lines. Stay engaged. Watch out for boredom and decision fatigue.

5 Groupthink What is it? 7.49 Groupthink occurs within a group of people where the desire for harmony or conformity in the group results in irrational or dysfunctional decision making. This causes the group to minimize conflict and reach a consensus decision 132

Frequently Observed Behaviours (FOBs): Barriers 7.51 without critical evaluation. Members of the group don’t express dissent or challenge consensus. The result is that: •

Members of the group take more extreme positions as a group than they would individually.

•

Decisions are taken without being thought through or challenged and are more susceptible to cognitive biases especially ones like self-serving bias, same side bias or confirmation bias (see Chapter 14).

•

An in-group mentality develops and with it an undue antagonism towards outgroups and an exaggerated confidence in the correctness of their own position (see 5.11).

Equality bias 7.50 The above tendencies can be aggravated by equality bias (see Chapter 15). Bahador Bahrami, a researcher at UCL, argues that in a group there is a tendency for us to assume that everybody’s opinions are equal. This is regardless of people’s reliability or expertise and experience. In reality some people are better at some things than others are. The hard fact is that most decisions result in some people being unhappier than others. Our own behaviour is influenced by others. We tend to follow their example. In one well known experiment Albert Bandura worked with a child volunteer Harold who was told not to hit an inflatable doll. He was either told off or given a sweet when he did hit it. Other children who watched him copied him. They were more likely to hit the doll if they saw Harold being rewarded than if he was being told off. One reason why your brain reacts differently to your own experiences relative to those of others is in the brain structure. The striatum is part of the brain which processes joy and warnings of harm. Dopamingeric neurons in the striatum fire up when the outcomes observed are better than expected and reduce when worse. Say your boss tells you in front of the team that your presentation was really good. Your striatum’s neurons fire up. If you are told that your presentation was poor, they calm down. But if your friend Fred was reprimanded, your striatum neurons would fire up, and reduce their firing if he was praised. Our brain processes our friends as competitors and therefore sees their failure as a win for us.

The theory of mind 7.51 This impressive sounding title simply means putting yourself into the mind of others. Can we ever know what someone else is really thinking? Probably not. But we can know how they are behaving, and we often copy it. This explains why we have bubbles on the stock exchange. 133

7.52  Frequently Observed Behaviours (FOBs): Barriers Research by Benedetto De Martino and Colin Cramer showed that traders who are most likely to buy at inflated prices are the ones who also did better at guessing people’s internal states by looking into their eyes. So be aware of the influence of the opinions of others. What about the wisdom of crowds? Aren’t two heads always better than one? Not necessarily. Think of writers whose manuscript is rejected by multiple publishers before one accepts it and it becomes a world best seller. Unlikely? What about J K Rowling and Harry Potter? 7.52 Where did the idea of averaging the answers to get a better result come from? Answer: at a Fat Stock and Poultry Exhibition in 1907 in Plymouth England. 800 people guessed the weight of an ox. The median guess was 1,207lb. Only 1% off the actual weight. Francis Galton7 promulgated the idea. Look at the maths. Ten people guess the weight of a cow. They will make their estimate from their own perspectives, based on their own experiences. Some will over-estimate. Others under-estimate. But they will bracket the real weight. The errors on each side cancel each other out. But this only works under specific circumstances. The opinions of the people in the crowd need to be independent of one another. In meetings where people are asked their views, they tend to the consensus. Nobody wants to rock the boat. On average only 30% express dissent. What works better is asking people for their opinions or valuations before they discuss the thoughts of each other. Also, if a fat cow is standing next to a skinny cow the comparison will tend to make people overestimate the weight of the fat cow.

TOP TIP •

Always think for yourself.

•

Don’t always think by yourself or about yourself.

In a nutshell 7.53 •

There are behavioural barriers. Be alert and adapt.

•

Moods change: your own and other people’s. Pick your moments carefully.

•

Argument: negotiation is not winning an argument it’s winning a deal. 134

Frequently Observed Behaviours (FOBs): Barriers 7.53 •

Assessment not argument produces settlements at mediation.

•

Stress: you need some. But there’s often too much at mediations.

•

Groupthink: mediation is a team effort. We need to work together not think the same.

1 Fisher, Ury Getting To Yes: Negotiating an Agreement Without Giving In (Random House Business). 2 Talot The Influential Mind: What the Brain Reveals About Our Power to Change Others (Macmillan USA). 3 Townsend, Bennis Up the Organisation: How to Stop the Corporation From Stifling People and Strangling Profits (Jossey Bass). 4 Walker Mediation Advocacy: Representing and Advising Clients in Mediation (Bloomsbury Professional). 5 Fisher, Perry Getting to Yes: Negotiating an agreement without giving in (Random House Business). 6 Garby Agreed! Negotiation/Mediation in the 21st Century (ICC Publishing, SA). 7 (1822–1911).

135

Chapter 8

Frequently Observed Behaviours (FOBs): Bridges

In this chapter you will learn •

How to build the seven bridges over the barriers to settlement.

•

Why mediation is a team effort.

•

How agreements emerge from assessments not arguments.

Back to basics 8.01

The seven bridges are:

1 Smiling 2 Empathy 3 Listening 4 Mimicry 5 Rapport 6

Reality Assessment

7 Numbers

The essence of the process 8.02 Negotiation is a process of the mutual recognition of reality: your own and other people’s. It’s about getting buy-in to an overall assessment of the situation. When this happens outcomes can be generated, not imposed. Outcomes that fit the realities of the situation. Trying to convince other people that they are wrong doesn’t work. Explaining how you see the realities is a better approach. Mediation uses this process with the help of mediators who bring the Third Gaze. Their job is to chair the Joint Assessment Committee not to referee a contest between two competing teams. 137

8.03  Frequently Observed Behaviours (FOBs): Bridges Many commentators stress the importance of empathy, rapport and active listening. They are important. But let’s start with the most important and easiest technique – one that anyone can do.

1 Smiling 8.03 In negotiation we make progress when trust develops. In mediations trust is another name for people starting to feel more confident and comfortable about each other. The simplest and best way to start this process is by smiling. And to keep it going you keep smiling. This is not surprising. Smiling is one of the first things that we do after being born. After crying and burping, babies communicate with us by smiling. We communicate with them by smiling. It’s natural, universal and instinctive. Often you smile at something without knowing you are doing it, let alone why. Smiling is a powerful social signal that says that you are non-threatening. You are answering the basic elemental questions that we all ask: Friend or Foe? Threat or not? Be warned that there are two types of smile: the genuine and the fake. There has been a lot of research into this. •

A  genuine smile is involuntary and involves the contraction of two sets of muscles: the zygomatic major, (raising the corners of the mouth) and the orbicularis oculi (raising the cheeks and producing crows’ feet around the eyes). This genuine smile is known as the Duchenne smile after the French physician Guillaume Duchenne (1806–1875) who studied the physiology of facial expressions in the 19th century.

•

The fake smile is known as the Say Cheese or Polite Smile. This smile is controlled by the motor cortex in the brain’s left hemisphere, while the emotion related to the Duchenne smile is controlled by the limbic system (the emotional centre of the brain).

The conventional wisdom is that you cannot voluntarily engage the orbicularis oculi while you can voluntarily engage the zygomatic major. Research has cast doubt on this and suggests that you can fake a genuine smile. But it is, far from clear if you can do this in a real-life situation as opposed to a neutral laboratory. Certainly, babies as young as ten months offer Duchenne smiles to their mothers and false smiles to strangers. And there’s a third smile: the Mona Lisa smile. The enigmatic half smile that we have all seen. Very useful as a sort of resting state – unthreatening and inviting. You can produce it just by thinking of a pleasurable memory. Look in the mirror. Try it. Think of a loved one. It works.

Mediation message 8.04 Smiling has a positive effect on others. It also has a positive effect on yourself. Just practice smiling and you will feel more cheerful and energised. Try it. 138

Frequently Observed Behaviours (FOBs): Bridges 8.08 Look in the mirror and hold a smile for 20 seconds. If you have difficulty smiling use a prop. Take a pencil. Hold it between your teeth without it touching your lips. You see you are smiling. When people smile, they feel happier and less anxious, resentful, angry or sad. 8.05 Smiles don’t always mean the same thing. Yes, they can signal happiness and well-being. They can also signal embarrassment, deceit and grief. General culture and context influence the frequency, intensity and intention of smiles. And research shows that women do smile more than men. You have to pay attention not just to how others smile at you but to how you smile at them. Avoid non-Duchenne smiles. As Professor Michael Bernstein of Penn State University wrote: ‘Non-Duchenne smiling isn’t necessarily bad – it doesn’t mean you’re nefarious – but it’s not a great signal’. Use Mona Lisa smiles instead.

TOP TIP •

At mediations, every time you go back into a room smile before speaking. You can still do this even when mediating online.

•

As you leave, say you will be back in 20 minutes or so. Ask them is there anything else they want to ask you. Tell them what you are going to do and say in the other room and finish with a smile.

•

Remember that smiling is a shorthand form of engaging in empathetic behaviour.

2 Empathy 8.06 The superstar of emotions, at least for mediators. And not just mediators. American presidents are keen on it as well. Barack Obama said: ‘it seems like we have got an empathy shortage, an empathy deficit. More serious than the federal budget deficit’. Perhaps but what sort of empathy did he mean? There is more than one variety.

Are you off your trolley? 8.07

Consider this scenario devised by the Oxford philosopher Philippa Foot.1

Scenario A 8.08 A railway trolley is hurtling down a track. In its path are five people who are were trapped on the line and cannot escape. Fortunately, you can flip the switch that will divert the trolley down a fork in the track away from the five people – but at a price. There is another person trapped on the fork and the trolley will kill them instead. Should you press the switch? 139

8.09  Frequently Observed Behaviours (FOBs): Bridges What would you do? Adopting ‘the least worst choice’ option you would flip the switch. But what about scenario B?

Scenario B 8.09

This alternative one was devised by the philosopher Judith Jarvis Thomson.2

As in Scenario A, a railway trolley is speeding out of control down a track towards five people. But this time, you are standing behind a very large stranger on a footbridge above the track. The only way to save the five people is to heave the stranger over the bridge. They will fall to a certain death. But their considerable girth will block the trolley, saving five lives. Should you push them over the bridge onto track? Is the answer as straightforward this time? Probably not. If not, why not? What this question goes to is the different type of empathy. Hot/cold or emotional/ cognitive. One answer that has been given is that in Scenario A the moral dilemma is more impersonal. The parts of our brain that are activated in dealing with that sort of information are the ones we use for reasoning and rational analysis – the prefrontal cortex and the posterior parietal cortex. Cold empathy. Scenario B Is a more personal moral dilemma. And this activates the amygdala, the brain’s emotional centre (see Chapter 2, Appendix 2 at p 38).

What is empathy? 8.10 For many conflict resolution professionals, empathy is a cure-all. Professor Sir Simon Baron-Cohen describes it as a universal solvent and any problem immersed in empathy becomes soluble. Many mediators take this approach. All you have to do is display empathetic behaviour and attitudes towards the parties and encourage them to do the same towards each other. Hey Presto! You have a settlement. Without doubt if you can get people to be more understanding of each other’s situation you are a long way down the road to settlement. It’s the same as sympathy, right? Woe betide any mediation trainee who confuses empathy and sympathy. Empathy is mandatory: sympathy is forbidden. Empathy shows awareness and sensitivity: sympathy shows bias and partiality. Show the former at your assessment and you pass: show the latter and you fail. That’s the theory – or at least one theory. In practice the demarcations are blurred. What you are trying to do is show someone that you have heard what they have said. You have taken it on board. You may not agree with them, but you have listened. You are not rejecting what they are telling you. In fact, you are trying to show that their pain resonates with you in some way. It’s part of establishing rapport. 140

Frequently Observed Behaviours (FOBs): Bridges 8.12 In fact, this theory may be all a bit redundant. Effectively they are the same thing. As Professor Robert Sapolsky says in his book Behave: The Biology of Humans at Our Best and Worst:3 ‘Empathy, sympathy, compassion, mimicry, emotional contagion, sensorimotor contagion, perspective taking, concern, pity. Let the terminology and squabbles begin over definitions of ways in which we resonate with someone else’s adversity (along with the question of whether the opposite of such resonance is gloating pleasure or indifference).’ You will not be surprised to learn that there is no consensus on what empathy actually means. Various definitions have been suggested. Professor Sir Simon BaronCohen defines empathising as ‘the drive to identify another person’s emotions and thoughts and to respond to them with an appropriate emotion’. Is this realistic? Can we ever know what someone else is thinking and feeling? We can in certain circumstances experience the same emotions as somebody else. We can even feel the pain of someone we have never met and only know from having seen them on TV. When we watch a film, we can care or even worry about what happens to a character that doesn’t actually exist at all. Back to the distinction that is drawn between emotional empathy and cognitive empathy. Aka hot empathy and cold empathy. As the two trolley scenarios show, hot empathy is emotional and is when we feel what someone else is feeling. By contrast cold or cognitive empathy is when we understand what someone else is thinking or feeling without feeling it ourselves. This distinction is important in many aspects of ordinary living. And it can be crucial in mediations. Questions arise, such as are there right and wrong times for displaying the different types of empathy. Is one better suited for some decisions and tasks than others? (See 6.9–6.11.)

What’s empathy for? 8.11 One theory is that evolution made us empathetic because as we evolved, we needed to get along with each other and be sociable. For this we have to be able to understand other people’s needs. As mentioned in Chapter 7 this is known as the theory of mind. What it means is that we are aware that other people’s mental states such as their desires and intentions exist and are separate from ours. We develop this awareness at around the age of four. What tends to happen is we assume that other people are the same or very similar to ourselves. This gives rises to the cognitive bias of naïve realism (see 14.39). The big point is that in order to understand someone else you use yourself as a model. This is a basic step in empathy. But be aware of the limitations of yourself as a model for the rest of the world.

Do mediators use empathy? 8.12 Surprisingly the word empathy is hardly ever used at mediations. Very rarely do mediators say: ‘I have every empathy with you’. Some say: ‘I empathise 141

8.13  Frequently Observed Behaviours (FOBs): Bridges with you’. When they do this they can be on dangerous ground. One self-identifying empathetic mediator said to a client who had suffered a life changing injury: ‘I empathise with you. I understand what you must be feeling…’. ‘No, you don’t’ interrupted the annoyed client: ‘You can’t know what I am going through’.

Mediation message 8.13 Sometimes clients use empathy to challenge the mediator. They explain the situation they see themselves in. They describe how it is making them feel or why they are angry, outraged, vengeful or disgusted. And they finish with: ‘You can’t imagine how awful it is for me, my family etc’. How do you respond? The risky option is to try persuading them that you do and can. You might say that you have experienced something similar yourself and you relate a personal anecdote: ‘I do. I lost my parents in a car crash when I was ten and was brought up in a children’s home’. This may be more or less similar to the client’s experience but is unlikely to be accepted without further questioning. So be prepared for further self-disclosure if you choose this approach. The safer option is to acknowledge that you can’t but also confirm in a sympathetic tone of voice: ‘No, I can’t but I can see how awful/ distressing/upsetting it is for you…’. You have acknowledged both that they are right and also their pain. Do you go on to say: ‘And I can understand why you feel that way’? This is close to being judgemental. Is it partisan? Are you showing sympathy and support for one side as against the other? Are your finer feelings eroding your impartiality? Possibly but probably not.

Is empathy always a good thing? 8.14 Not always. On an individual basis you may need to suppress your empathetic feelings in order to be able to perform a task. Surgeons performing life-threatening operations or soldiers fighting wars have to learn to suppress their distaste for killing other human beings. Professor Paul Bloom in his book Against Empathy4 challenges the idea that it is always the appropriate basis for making optimal decisions. He concentrates on questions of allocating scarce resources: whether on a macro scale such as supplying food to drought-stricken areas or on a micro scale such as selecting a patient for an organ transplant. He promotes as an alternative the concept of rational compassion. Mediators can adopt this. Do mediators need to suppress empathy? Sometimes but not as often as brain surgeons or snipers. Most usually it’s when they need to engage in some robust reality testing. Two commercial mediators were asked about empathy. One replied: ‘I don’t do empathy’. The other added: ‘I do – at a price!’ . Even making an allowance for professional joshing we can see that empathy is not the universal solvent or solution in mediations. Showing compassion at the right time in the right way, ie rationally, is a sensible alternative. 142

Frequently Observed Behaviours (FOBs): Bridges 8.15

TOP TIP There is a danger that you might be thought to be showing a lack of impartiality. But in practice what do you do? Try this four-stage process: 1 Ask the client: ‘Do you want me to tell the other side what you’ve just said?’ You have to get their permission otherwise you will be breaching confidentiality. You also want them to realise that you’re taking what they have said seriously and are going to be proactive. This will also give them time to say it again. They may use exactly the same words. They may tone it down. They may rev it up. 2

You repeat back to them exactly what they have said they would like you to say to the other room. This is one of the few occasions when taking a note while talking to someone in private can be useful. Your note is a memory jogger for you, a record of what they asked you to do, and a demonstration of your commitment to them.

3

You go to the other room and you tell them. Stick to the script. Depending on their reaction ask them in one way or another: ‘If this had happened to you what would you be saying? How would you be feeling?’

4 Then you confirm with them what you can report back. The client who asked you to deliver their message will want to know how it was received. They are gratified by what they hear. if you tell them that it was negative, they can say: ‘I told you that’s what they were like’. If it’s positive they can say: ‘Well that’s a first step in the right direction.’ You could also try reverse empathy. Instead of trying to imagine what the other person is feeling or thinking try and remember what you felt or thought when you were last in the same situation. When you see that someone is angry, recall the last time you were angry. What made you angry? What did other people do? What thoughts and feelings did you have? What did you want to happen? Doing this generates guidelines on how to tackle the ‘angry’ behaviour. And that really is the core of what empathy means to mediators. Perspective sharing leading to perspective shifting.

Are women better mediators? 8.15 Many studies have shown that the female brain has more pronounced empathy, language, communication and human relationship skills. Does this mean that women make better mediators than men? At the moment all that can be said by way of answer is that the jury is out. Time will tell. 143

8.16  Frequently Observed Behaviours (FOBs): Bridges

3 Listening 8.16 Active listening – don’t try mediating without doing it. That’s what we are told. ‘As every mediator knows, one must first build trust and rapport with the other person before she will “open up” and discuss the issue bothering her. And active listening on “third things” provides the means to build that trust and rapport. And… responding by silence sometimes shows more empathy than words can ever express.’ These are the words of Phyllis G  Pollack a well-known US mediator and prolific blog-poster. (See www.pgpmediation.com.) The late Paul Randolph, a leading UK mediator and trainer, also adopted this approach in his book The Psychology of Conflict.5 ‘By listening without judgement, we enable defences and guards to be dropped and we allow the parties to reveal their values and their value systems with greater transparency. In turn they will expose their own ambiguities and vulnerabilities.’ Without doubt the ability to listen is a key skill for any mediator. But does this really mean that all you need are broad well-padded shoulders and a big box of tissues? You just listen? No, that would be overstating the case. You need to listen properly. And for this you need to be non-judgemental, sensitive and patient. Another word for this is active listening aka deep listening or compassionate listening. Mediators like other professional listeners such as hairdressers, bar staff and spies need to know when to just listen, when to nudge along with encouraging sounds and gestures and when to ask questions. But like them you can’t just listen – that’s an ancillary activity to cutting the hair, selling the drinks, extracting the information or delivering the settlement.

What is active listening? 8.17

Mediators are specifically trained in it. What it boils down to is that you:

1

Listen without judging what is being said or working out your response. Just listen and absorb both the expressed and the implied messages.

2

Let the conversation go in the directions that the speaker wants to take it.

3 Let the speaker know that you are taking in what they are telling you by summing up and checking with them that your summary is accurate. Are you a good active listener? To find out complete the self-audit checklist in Appendix 6 at p 161. It’s not just mediators who need to be skilled in active listening. So do advisers and clients. Advisers have to actively listen, not only to their own and the other side’s 144

Frequently Observed Behaviours (FOBs): Bridges 8.18 clients, but also to what the mediator says to them in both public and private sessions. It’s more than just reading between the lines although that is another important part of an adviser’s job. Clients need to listen to the mediator and to their advisers. But more importantly if they have the opportunity, they should listen to what is being said to them by the other side. In particular by their opposite number.

Why is it important to engage in active listening? 8.18 You’re receiving information. You’re deliberately trying not to assess it, categorise it or form a judgement about it. You’re just receiving it and seeing where it goes. That does not mean you switch off all your mental apparatus. You not only send an encouraging message to the speaker, you learn information. Pay attention to: 1

The tone of the delivery as well as the content.

2 Is this a well-rehearsed polished presentation or is it a stumbling, bumbling attempt to articulate things that they feel, but not yet found a way of expressing? 3

Are particular word or words repeated? Do they keep returning to the same topic or person?

4 Are they using recurring metaphors? Eg’ My dream is to…’ Or ‘This is a nightmare…’ 5

Do they express themselves in terms of seeing, hearing, thinking or feeling? Do they say: •

‘I  see what you mean …’. ‘From my point of view.…’. ‘The way we see things here is…’.

•

‘I hear what they’re saying but it doesn’t sound right to me.’ ‘I don’t like the sound of that.’

•

‘There’s a funny smell about this.… It’s fishy.’ ‘I don’t like the smell of this proposal ’. ‘The whole thing stinks to high heaven’.

•

‘I feel that we are not going to get anywhere today…’ ‘My sense is that…’ ‘My own feeling about this is…’.

•

‘My own thoughts on this are… ‘Our thinking is…’ I  think that…’ ‘I understand what they are saying but…’ ‘Our analysis shows…’.

6 When they are really trying to nail a point do they use words, numbers or diagrams? For example: •

Do they put bullet points lists on the flip chart? Or do they produce extracts from legal cases, books of authority and witness statements?

•

Do they do their calculations on the flip chart or their iPad? Or do they produce schedules and spread sheets?

•

Do they draw diagrams on the flip chart? Or produce photographs, drawings and plans? 145

8.19  Frequently Observed Behaviours (FOBs): Bridges This is often contextual. How people express themselves depends on the problem that they are trying to analyse. A dispute over a right-of-way will inevitably involve plans. A shareholders’ dispute wouldn’t. But there are still essentially three different ways of encapsulating the key point: words, numbers or pictures. You might use more than one or even all three. Generally, one way predominates.

Mediation message 8.19 Is there anything bad about active listening at mediations? Yes, the drawbacks include:

Over-repetition 8.20 Non-interventionist listeners hear repetitive torrents of words that don’t really go anywhere. At mediation you experience a lot of duplication and repetition. People easily end up going round and round in circles.

Demotivation 8.21 Active listening can easily morph into passive listening. Are clients paying you as a mediator to just sit and listen without saying anything? They can go to their therapist for that. And it would be cheaper. As a mediator, be prepared to intervene and minimise the repetition. Why? It uses up time and energy. Thinking doesn’t get developed. People are pitting their narrative against each other’s and not formulating or discussing proposals. How many tellings and retellings do you allow? One, absolutely. Two, certainly. Three yes. Four possibly but not five or six.

Stalling 8.22 The more that people are encouraged to tell their side of the story the more they’re looking backwards and not forwards. Talking about what has brought this conflict about triggers negative emotions. Rumination becomes a problem – this is not constructive behaviour. Ask any therapist. Replaying old grievances and going over the past blocks developing options for sorting things out or just moving forward. Instead, they just stall. You need to find a balance between rehearsing the past, imagining the future and dealing with the present.

Hard work 8.23 You have to work hard and really concentrate. Making notes as people speak is off-putting. Someone who wants to freely express their thoughts and feelings will be discouraged if they see you writing everything down. So best not to take detailed notes. 146

Frequently Observed Behaviours (FOBs): Bridges 8.25 Instead use paraphrasing and reframing. This is sometimes called reflective listening. You reflect back what you have been told (see 8.13). Doing that effectively means that you have to remember what is being said and not drift off as you hear the same point made for the third or fourth time. Instead pay close attention to the fact that it is the third or fourth iteration. And ask yourself why? Bear in mind what was said about memory in Chapter  2. If someone starts on the fourth or fifth telling point this out to them. Tell them what message you are receiving. For mediators the fundamental question to always be asking yourself is why is somebody telling me this information at this time, in this way? 8.24 Active listening theory stipulates that you should not be judgemental while listening. If you are, you block your ability to receive messages, both express and implied. That is a danger, But you can’t just passively receive information. You might lose concentration. Staying curious and asking yourself: Why are they telling me this and what do they want me to take away? will keep you tuned in. By all means keep an open mind. But don’t have your mind so open that your brain falls out. You can’t suspend your critical faculties completely. Being nonjudgemental does not mean that you are obliged to accept as accurate, relevant or true everything that you are told. If you do how will you be able to engage in reality testing? And reality testing is another technique in which all mediators are trained and encouraged to use. It’s often one of their main tools when trying to encourage the parties and in particular their advisers to move forward (see 8.37). As world renowned mediator Bill Marsh says having challenging conversations is at the core of what mediators do.

TOP TIP •

Be careful about saying or doing anything that could suggest that you are forming opinions about what you are hearing.

•

Keep your mind free of any preconceptions. But once the conversation is over and you are in your own room review what has been said.

•

Jot down the main points – the word clusters, the hints, the omissions, recurrent adjectives and topics. What do they tell you? Interrogate the information.

Guided listening 8.25 In practice mediators engage in guided listening. As the day proceeds the issues – legal, evidential, personal, psychological and financial – that have to be addressed become clearer. Concentrating energy, effort and time on those issues is more productive. Start cherry picking. Bring speakers back to those key expressions and phrases. How you do this is a matter of your personal mediation style. 147

8.26  Frequently Observed Behaviours (FOBs): Bridges For example: You can say that you have been doing a word count. The three words or phrases that get most mentioned in this room are: •

‘Wrong,’ as in ‘They’re wrong’. ‘That’s wrong’. ‘What’s wrong with that…?’ ‘Our expert’s advice was wrong.’ ‘Their figures are wrong.’

•

‘Fair’ as in ‘We want to be fair.’ ‘They’re not being fair.’ ‘That’s a fair offer.’

•

‘Time’ as in ‘We’re running out of time.’ ‘We need time to… ‘In three months’ time…’.

Naming and shaming, aka labelling is an effective technique. It only works if those hearing it recognise that this is what they have been saying. To be able to frame your naming effectively means listening attentively.

4 Mimicry 8.26 Human beings are copycats. As children we learn by watching others and imitating them. As we mature, we develop our own way of doing things. But we are still influenced by others’ behaviour. Our mirror neurons ensure that. We like mimicry. After all, as the saying goes: ‘Imitation is the sincerest form of flattery.’ And we do like being flattered (see 9.09). It works. Dutch psychologists looked into why some waiting staff received bigger tips than others. Half the staff were asked to repeat the customers’ orders back to them. The other half said something positive such as ‘coming right up’. Those who repeated the orders back doubled their tips. They also found that we act in more pro-social ways and help others and give bigger donations to charity if we have been copycatted. Mimicry is also vital in establishing trust as it signals bonding and friendship. A clever experiment used fMRI scans of participants in an economics game. Before the game started the brain waves associated with natural imitation fired up. When a volunteer felt that the other player had cheated their brains turned off the circuitry used to produce mimicking. Mimicry is a way of communicating by both giving signals and responding to them. And we communicate whether we want to or not. At least in the sense of sending out signals. We can’t help it. And even if we try and not do it by suppressing and repressing our feelings, thoughts and gestures others will be tempted to see this as a signal.

Body language 8.27 Body language is widely regarded as a tool for finding out what people really feel and think. Mediators complain that they cannot use it as effectively when mediating online. It is not always possible or wise to believe what people say. By reading body language you can double-check what you are being told. You can find a mass of material about interpreting body language on the internet. Much of it is highly entertaining and interesting. 148

Frequently Observed Behaviours (FOBs): Bridges 8.30

Mediation message 8.28

The question is: How much use is body language in practice at a mediation?

The difficulties are: •

Anybody who wants to be able to reliably interpret body language has to undergo a great deal of training and practice. If you have any doubts about this, take one of the tests available on YouTube. Just interpreting facial expression is much more difficult than might be thought.

•

Signals are ambiguous. People may scratch their nose because they have a spot on it not because they are telling an untruth.

•

Different people interpret the same signals differently – a tendency made worse by confirmation bias (see 14.34).

Your own body language 8.29 Despite the difficulties, guidance on your own body language can help you avoid sending unintended negative signals. It is often said that body language is not a science. Dr Harry Witchel, at the Medical School of the University of Sussex is engaged in trying to establish the science behind body language. His Six Top Tips for body language in mediation are: 1

be engaging during private caucuses;

2

be authoritative in joint negotiation;

3

keep hands above table;

4

use palm up batoning to encourage;

5

lean forward to encourage; and

6

lean back during drama.

Whether it’s scientific or not you can learn something from paying attention to both body language and verbal language – their voice. Take note of both what they say and also of how they say it. What is the choice of vocabulary? This indicates how spontaneous they are. What are the recurrent words and phrases? Identify the things you will need to address? Their timing and tone of voice. Are they flat and monotone? Voice is a good indicator of mood and energy levels. Are they jerky and lively, flitting from place to place? Or are they measured, varying their tone to make their point or to convey information? This gives insight to how much they have thought through their positions, concerns and plans.

Matching movements 8.30 This is where the concept of matching comes in. Watch what those around you are doing. If they lean back, you lean back. If they lean forward, you 149

8.31  Frequently Observed Behaviours (FOBs): Bridges lean forward. Matching behaviour can be observed in all sorts of situations. Where two people’s body language is matched this indicates a higher degree of closeness. The classic example is when people meet each other socially, say at the bar. As they get to know each other, become lost in each other, like each other and trust each other the more their body language will match. And they end up sharing the same glass. Match the frequency and speed of their gestures. Be careful that it’s not seen as deliberate mimicry. That will appear contrived, artificial and manipulative. Feeling manipulated will impede not promote trust building. The same with the voice. If they’re speeding things up there’s nothing wrong with you speeding up as well. If they’re slowing things down because they are wanting to be reflective and deliberate you can do the same. Remember the research findings about waiters and waitresses who mimicked the tables that they served. Those who did that received bigger tips (see 8.26).

Matching language What do you do? 8.31 Use the same vocabulary – if they are referring to their chairman as Peter you refer to him as Peter not as Mr Walker. If they refer to the barrister by their first name do the same and don’t refer to them as Counsel. There are limits to this of course. If they are using abusive epithets, for example, don’t do the same. Note the recurrent phrases and words they use. If the word ‘fairness’ crops up in every other sentence, make sure you don’t do the same. Instead emphasise it. Let them know you have recognised its importance to them. Highlight it as an objective.

Mediation message 8.32

But a warning. Matching can have a negative outcome.

In one mediation there was a dispute between insurers. In one room there was a group of self-made men who had not been to university and were from the East End of London. In the other room there were university-educated lawyers and accountants from the reinsurers’ Claims Department. The well-known and respected mediator is a rather plummy-voiced, shiny-faced public schoolboy. He knows a lot about insurance and is well known and liked in the market. Quite early on in the mediation he realised that the East Enders were perhaps not seeing him as one of them. As everybody got to know each other a bit better and the discussion got livelier the East Enders started ‘effing and blinding’. The mediator decided to join in. Progress was made during the day, but the gap couldn’t be closed. During the post-mortem in the pub afterwards the East Enders said that they noticed how the mediator had started ‘effing and blinding’. ‘What did he think he was doing?’ they asked. ‘Did he think he was being one of us? He’s just a wally.’ 150

Frequently Observed Behaviours (FOBs): Bridges 8.33 As they saw it the mediator was patronising and clumsy. They lost trust. Eventually a deal was done but without any further involvement of the mediator.

We have already referred to the different ways in which it is said that people process information, in other words impart it and receive it. Recall what was said about hearing, seeing and feeling (see 8.18). Examples of matching styles in mediation. You bring a proposal into the room and someone says: ‘I can’t tell if this is right for me. Your response is: ‘What more do you need to hear? Or someone says, ‘I can see the way forward.’ Your response is ‘what is your vision/picture?’

Angry birds 8.33 Voice matching can be particularly important when handling anger. When someone is angry and openly expressing it they are showing that they want your attention. You can handle this in two ways: 1

Mirror behaviour In mediation this means matching their urgency and energy. You repeat what is being said to you. If they are shouting at you, you can shout back and match their volume and intensity. That is a shock tactic. Sometimes it works but not often. Instead try and do this in a slightly dialled-down manner. You don’t want to dial-up. There’s no need to show that you can shout louder than they can. That will only inflame things. Keep the same vocabulary and tone but use a lower key. Then you can keep on lowering the key. NLP practitioners refer to this as pacing and leading (see 9.25).

2

Sit back Be the opposite of the angry person. You are not being dismissive or unresponsive. You are giving the person space to express themselves. You’re not being provocative. You are deliberately using the situation.

Sit back, palms up looking at the person who’s talking. Don’t take notes. Don’t interrupt. Let them talk themselves to a standstill. Never ask them if they feel better. Don’t tell them to calm down. They simply won’t listen. If their anger is real anger and is intense, they can’t listen. Remember what John Bargh said (see 13.63). 151

8.34  Frequently Observed Behaviours (FOBs): Bridges Be careful about the technique of cross-over matching. This is where you don’t match the person’s tone of voice. You pick up on the rhythm of their speech and move a part of your body at the same beat. It can work but the risk of it backfiring makes it a dangerous option.

5 Rapport 8.34

Mediators are told that they have to establish rapport.

What is rapport? 8.35 Rapport is an ambiguous concept. At its simplest it’s getting on with someone. Feeling comfortable in each other’s company. So, there are elements of mutual appreciation, trust, confidence, respect, relaxation, shared information, humour. In other words, you find it easy to talk to each other.

So how do you establish rapport? 8.36 Identify who you want to establish rapport with – in most mediations, to start with it will be the decision-maker in the room and the chief adviser. Talk to them. As previously discussed mediators are told that the most important technique they have to develop is active listening. This is only half right. You have to encourage people to talk to you. If they are not talking to you, you have nothing to listen to, actively or otherwise. Go for intelligent prompting which is essentially questions and expressions of interest. When they talk pay close attention to: •

How they communicate as much as what they communicate.

•

What is significant about their behaviour, language, body language. You can’t concentrate on all of these things a time so choose one.

•

Match the one you have chosen (see 8.30).

•

What is the subject that people like to talk about? Themselves.

How do you get people to open up and talk about themselves? The theory is that establishing rapport works best when you are able to engage or meet with people in their own world model. This is sometimes referred to as their universe. In other words, try and deal with people on their terms. You acknowledge who they are and what they’re saying. You recognise what why they’re saying it and you respect it. And don’t forget the importance of flattery or at least being appreciative, encouraging and positive (see 9.09). 152

Frequently Observed Behaviours (FOBs): Bridges 8.38

6

Reality assessment

8.37 Reality testing is something that all mediators are trained and encouraged to do. For many mediators it’s the best part of mediating. Especially for barristers who also love cross-examining in court. What is it? Some definitions from experienced practitioners and trainers in the UK include: ‘It is part of managing expectations of the parties and keeping those expectations grounded, rather than in fantasy and is the time when optimistic expectations are usually abandoned and the realistic shape of the deal hits home.’ ‘Sometimes it is the time when a party’s solicitor breathes a sigh of relief because what they have been advising an unaccepting client suddenly gets accepted.’ Richbell How to Master Commercial Mediation6 Randolph describes reality testing as confronting the party with the best or worst case scenario whereby the mediator provides an opportunity to contemplate and analyse the best and the worst that could happen. In doing this he says ‘the mediator is adopting and implementing the existential approach to the concept of ‘freedom of choice’ whether as advocated by Kierkegaard, Merleau-Ponty or Sartre.’ More prosaically and more realistically The Jackson ADR Handbook7 says at 15.16: ‘The mediator will carry out a reality check by: Assisting the parties to review and accurately evaluate the strengths and weaknesses of their own case and that of the other side in challenging their factual and legal perceptions about the case.’ Jonathan Dingle says in Practical Mediation: A  Guide For Mediators, Advocates, Advisers, Lawyers And Students8 that: ‘Difficult or challenging questions, or reality testing, when conducted neutrally with no compulsion to answer, is part of that catalytic chapter in mediation that can be so enervating (sic)’ 8.38 CEDR, in How to Master Negotiation,9 seem to equate reality testing with establishing alternative outcomes to settlement and explaining those to others engaged in the negotiations. They refer to the Harvard Negotiation Project acronyms BATNA and WATNA. They concede this can be difficult because emotions are involved. 153

8.39  Frequently Observed Behaviours (FOBs): Bridges

Questions, questions… 8.39 The obvious way of reality testing is by asking questions. They are not all the same. Questions are asked: •

to obtain information;

•

to engage with or show the other person that you are interested in them – this is important for rapport building and empathy;

•

to clarify a point;

•

to find out what they feel the about an issue – this is vital in mediations where each side is trying to find out what the real problems are for the other side;

•

to test knowledge – your own and theirs;

•

to encourage further thought and change of perspective;

•

to show acknowledgment by asking for an opinion or reaction – in groups, this helps people feel engaged in a group activity and to keep attention;

•

to exert control – asking questions can be seen as manipulative and intimidating.

A successful and well-known mediator and trainer, Gerry O’Sullivan has developed the S Questions Model for developing and asking questions for clarifying existing information, gathering new information and creating new insight in parties. It’s a comprehensive, systematic and elaborate method. The four dimensions of questions in the model are: S1: Subject Matter Dimension questions. S2: Structure Dimension questions. S3: Seeking Information Dimension questions. S4: Shift Thinking Dimension questions. On a simpler level here are several different types of questions that everybody knows. The two main types are open and closed – those which cannot be answered with a simple ‘yes ‘or ‘no’ and those which can be.

Open questions 8.40 These are used a lot in mediation both by the mediator and by skilled advocates. The usual open questions are ones that begin with: • Who • What • Why • When • How 154

Frequently Observed Behaviours (FOBs): Bridges 8.42 • Where They are used to open up discussion, thought or lines of enquiry. Mediators may ask questions such as: •

How do you think this will be received in the other room?

•

What are the advances to you/them of this proposal?

•

What will your net financial position be if you go to court and win/lose?

•

How is that point going to be treated by the court?

•

How do you get over this…?

•

What do you say about the Case of X v Y?

8.41 Advocates when talking to the mediator in the private session during a mediation might use questions such as: •

‘How is it going in the other room?’

•

‘What was their reaction to …?’

•

‘What do they say is wrong with our proposal …?’

•

‘How do they see this matter being sorted out?’

•

‘What is your impression of …?’

•

‘How do you see the progress so far?’

•

‘What do you think we’re going to need to do to get things moving/unblocked?’

For more on reality testing and the use of questions at mediation see Walker Mediation Advocacy and O’Sullivan The Mediator’s Toolkit.10

Mediation message 8.42

In practice reality testing is oversold. It assumes that:

•

Parties will not be locked into their positions by confirmation bias, boomerang effect, optimism bias, motivated reasoning etc.

•

Parties will accept that there is an independent reality and change their views.

• Reality testing is often only a way of helping people find acceptable rationalisations. •

Mediators will be able to explore reality without appearing, rightly or wrongly, as favouring one side over the other.

•

The word ‘testing’ is not necessarily negative but it has connotations of failure, pressure and examination. Clients complain of feeling badgered.

Assessment is a much better approach. Reality recognition is a better name and mindset – balancing your confidence in your case with the other side’s confidence in theirs. It includes: 155

8.43  Frequently Observed Behaviours (FOBs): Bridges •

Looking at the likelihood of achieving different outcomes either through litigation or negotiation.

•

Weighing competing priorities.

•

Stepping outside the dispute and imagining that you were an observer not a participant and how you would explain to a third party what is going on.

7 Numbers 8.43 Numbers at mediations are just as important as gestures and words. In fact, they are often more important. This is not just because of the operation of Wood’s First Law: Never underestimate the healing power of money (see Chapter 12 on Money). Numbers are just seen differently from words. They appear to be objective. Words are always subjective. They appear in some way scientific, rational and logical. In many ways they are more powerful. They can influence our behaviour just as much as words if not more. As Sir David Spiegelhalter, Chair of The Winton Centre for Risk and Evidence at Cambridge, says about numbers and statistics They are really ‘arguments that can change our emotions’. Why? 8.44 The dispassionate numeric spreadsheet can be more persuasive than the passionate oral presentation. ‘That’s what the numbers tell us’. And we are impressed. There are several reasons for this: •

We fear numbers. Most of us are not as comfortable with numbers as we are with words – arithmophobia (see Chapter 10).

•

We don’t understand them.

•

We can’t use them.

•

We often misinterpret them.

Getting to them 8.45 •

To scope the dispute. –

•

‘How much are we arguing about?’ ‘What will it cost to fix the building?’

To reality check. –

•

At mediations you use numbers in different ways.

‘Can you afford to pay what they are asking for?’ ‘What will it cost to go to trial?’

To move the debate from emotional expressions of grievance and past issues to the technical ones of the cost of sorting out the problem. 156

Frequently Observed Behaviours (FOBs): Bridges 8.46 The sooner this is done the better (see Chapter 17 on the Psychology of Offers).

Using them 8.46 Numbers are used in risk-reward assessments and calculations. Even now lawyers in the UK particularly barristers are reluctant to undertake quantitative assessment. They prefer to rely on qualitative ones – using phrases such as ‘good case’, ‘very strong case’, ‘arguable case’, ‘winnable’ etc (see Chapter  10 on translating qualitative into quantitative). Although lawyers may be reluctant, using numbers to convert qualitative expressions into quantitative ones can effectively in bring home to everyone the financial realities of the situation. Sometimes with devastating effect when working out the net financial positions of going to court and winning compared with accepting an offer. This often happens when costs have become disproportionate to the claim and will continue to be so. Under the UK system of the winner being entitled to a contribution towards their legal costs from the loser there is always an amount of irrecoverable costs. As a rule of thumb that is often assumed at mediations to be 30%. Consider this example:

You have a claim for £100K and costs of £60K. Costs to do date are £30K. At trial you win £100K – pay costs of £60K = Net £40K Plus costs contribution of £42K = Net overall £82K Offer is £80K – Plus costs of £20K – £30K (already paid) = Net £70K. Better off going to court and winning provided that you are awarded 100% of your claim. But tweak just a little: You get £95k and your costs rise to £70K Then it looks like £95K minus £70K = Net £25K Minus costs contribution £42K = £67K Better off settling and not going to court. 157

8.47  Frequently Observed Behaviours (FOBs): Bridges

Understanding them 8.47 Most of us admit, almost with pride, to not being good with numbers. Even successful and influential mediators do this. Martin Plowman in his book Zen and the Art of Mediation11 says: ‘I’m definitely a stupid bear when it comes to figures and my maths can be a bit rubbish’. Behavioural economists show how we find probability difficult. Few of us receive even basic statistical training. We are all prone to simple errors and we know it. Try these questions: Q1. Babies You have two maternity hospitals: a large one where about 45 babies a day are born and a small one where 15 babies a day are born. 50% of babies are boys. The precise percentage for each hospital will vary day to day. Sometimes it will more than 50%, sometimes lower. For a year each hospital recorded the days on which more than 60% of the babies born were boys. Which hospital recorded more such days? When asked, most people said: •

It would be the same in both hospitals.

•

Nearly as many said that it would be larger hospital.

In fact, it’s much more likely to be in the smaller hospital. The reason is that deviant outcomes are more likely in smaller samples. Q2 Cards on the table. You have 4 cards: Card 1

N

Card 2

4

Card 3

A

Card 4

3

Test this rule: if a card has a vowel on one side then it has an even number of the other side. Turn over only those cards that are necessary to establish that the rule is being followed. Which is the correct answer? a

Card 3 only

b

Cards 1,2,3,4

c

Cards 3 and 4

d

Cards 1,3 and 4

e

Cards 1 and 3 158

Frequently Observed Behaviours (FOBs): Bridges 8.48

Q3 Coins When tossing a coin how likely is it that it will be heads? Answer 50%. When tossing coin how likely is it that it will be heads after there have been four heads in a row? How likely is it to be heads when there have been four tails in a row? Answer in both cases: 50% What are the odds of heads coming up four times in a row? 50% × 50% × 50% × 50% = 6.25% Q4 Going back to the cards. There is a restaurant. Your job is to check the customers are obeying the rule that if a customer is drinking alcohol they must be at least 18. You should check only those customers necessary to establish that the rule is being followed. First table has 4 customers. Customer 1 looks to be over 50 Customer 2 isn’t drinking anything Customer 3 is drinking beer Customer 4 looks to be under 18 Do you need to check? a

Customer 1

b

Customers 1,2,3,4

c

Customers 3 and 4

d

Customers 1,3 and 4

e

Customers 1 and 3.

You probably chose Customers 3 and 4[c] When you picked the cards you probably didn’t chose 3 and 4[c] Why is this example easier to solve than the other? Same problem: different contexts. One is a more concrete example.

Lies, damned lies and… ? 8.48 Yes, statistics. That is according to the old saying, variously attributed to Mark Twain, Benjamin Disraeli, and the Duke of Wellington. It’s not just 19th 159

8.49  Frequently Observed Behaviours (FOBs): Bridges Century luminaries who warn of the dangers of statistics. As Sir David Spiegelhalter, says of numbers and statistics that: ‘They can be manipulated, chosen and framed… to support whatever arguments you want to make..’. Numbers are not as obviously value-laden as many words are – remember the Elizabeth Loftus memory research and the effect of different words to describe the same event – collided, crashed and smashed (see Chapter 2 and the section on memory). When making calculations people make assumptions. Those assumptions can be challenged. Figures are often calculated on a different basis – do you take a multiplier of 5 or 6 when valuing shares, an interest rate of 3% or 4%? Do you assume a uniform profit margin of 25%? Then there is the way in which numbers are presented. •

Remember the multiplication example at 1.04.

•

Take note, people look at figures from their left so £25 seems a lot more than £20 and a lot less than £30. Even though the difference is the same: £5.

(See Chapter 17 on the Psychology of Offers.) And always any numbers are better than no numbers.

TOP TIP Adopt the wise words of Sir David Spiegelhalter: ‘One has to have that critical ability, which involves examining one’s feelings and examining motivations, in order to understand numbers…’ But as has been said: ‘It’s easy to lie with statistics. It’s even easier to lie without them’.

In a nutshell 8.49 •

Mediation is a team effort.

•

Mediation only works if everyone works. We all have to play our part.

•

The pen might be mightier than the sword but the spreadsheet can be mightier still.

160

Self-audit checklist – Active listening 8.49

Appendix 6

Self-audit checklist – Active listening Do you: 1

Think about what you’re going to ask next before the talker has finished?

2 Nod? 3

Talk over the talker?

4 Smile? 5

Finish their sentence?

6

Paraphrase (aka reframing)?

7 Interrupt? 8

Say nothing?

9

Fill the silence?

10 Maintain eye contact? 11 Make notes? 12 Clarify that you understood what has been said? 13 Have a pen in your hand? 14 Use phrases such as ‘I understand’, ‘Tell me more’. ‘What did you do then?’ 15 Glance at your mobile 16 Encourage the talker to say more? The more even numbers that you circled the better you are at active listening.

1 (1920–2010). 2 (1929–2020). 3 Sapolsky Behave: The Biology of Humans at Our Best and Worst (Vintage). 4 Bloom Against Empathy: The Case for Emotional Compassion (Vintage Publishing). 5 Randolph The Psychology of Conflict: Mediating in a Diverse World (Bloomsbury Continuum). 6 Richbell How to Master Commercial Mediation (Bloomsbury Professional). 7 The Jackson ADR Handbook (OUP). 8 Dingle Practical Mediation: A  Guide for Mediators, Advocates, Advisers, Lawyers and Students (Law Brief Publishing). 9 CEDR How to Master Negotiation (Bloomsbury Professional). 10 Walker Mediation Advocacy (Bloomsbury Professional); O’Sullivan The Mediator’s Toolkit: Formulating and Asking Questions for Successful Outcomes (New Society Publishers). 11 Plowman Zen and the Art of Mediation (Law Brief Publishing).

161

Endnotes 1 (1920–2010). 2 (1929–2020). 3 Sapolsky Behave: The Biology of Humans at Our Best and Worst (Vintage). 4 Bloom Against Empathy: The Case for Emotional Compassion (Vintage Publishing). 5 Randolph The Psychology of Conflict: Mediating in a Diverse World (Bloomsbury Continuum). 6 Richbell How to Master Commercial Mediation (Bloomsbury Professional). 7 The Jackson ADR Handbook (OUP). 8 Dingle Practical Mediation: A  Guide for Mediators, Advocates, Advisers, Lawyers and Students (Law Brief Publishing). 9 CEDR How to Master Negotiation (Bloomsbury Professional). 10 Walker Mediation Advocacy (Bloomsbury Professional); O’Sullivan The Mediator’s Toolkit: Formulating and Asking Questions for Successful Outcomes (New Society Publishers). 11 Plowman Zen and the Art of Mediation (Law Brief Publishing).

Chapter 9

Persuasion

In this chapter you will learn •

Why persuasion matters at mediations.

•

What makes us more persuasive.

The persuaders 9.01 At mediation there are no hidden persuaders. Everyone is out in the open trying to persuade someone or other. No surprises here. Our brains have evolved to help us persuade others that we are right not to find out who is right (see Chapter 2). At mediations this natural behaviour is intensified. Clients want to persuade: •

The mediator that they are right.

•

The other side that they are wrong.

•

Their own room that what they want is reasonable.

•

Themselves that what they want to do – either agreeing to or rejecting a settlement proposal – is the best thing.

Professionals – the lawyers, advisers and experts – want to persuade: •

Their clients to follow their advice.

•

The other side that they are better than them.

•

The mediator that they are right and are trying to find a settlement.

•

Themselves that they are doing a good job.

Mediators want to persuade everybody else that this dispute is capable of being settled and also: •

The professionals – that they are there to make a deal not make a case. 163

9.02  Persuasion •

The clients – to take the macro view – where do they want to be in two years’ time and what will help them get there: litigation or settlement?

•

Themselves and their clients, ie  the lawyers and clients that they’re doing a good job.

The different participants approach persuasion differently. But they can usefully learn general lessons: the dynamics of influence and the power of language.

Influence 9.02 What can we learn from the investigation into emotions and cognitive biases that will help us when we try to persuade someone? The answer is quite a lot. The starting point is the work of Professor Robert Cialdini. He has been investigating and researching how you persuade people for years. He has distilled seven key principles: RASCLS. What is interesting is how they tie into emotions and cognitive biases. Here they are: 1 Reciprocation 2 Authority 3

Social proof

4

Commitment and consistency

5 Liking 6 Scarcity 7 Unity These are explored in detail in my book Mediation Advocacy (at Chapter 4).1 Here is a quick guide. They are behavioural buttons. At mediations you want to press as many as you can.

1 Reciprocation 9.03 All human societies follow this principle. Anyone who doesn’t incurs the disapproval of their group. It boils down to this: if you do someone a favour they are more likely to do what you ask them to do when you ask them later. Doing someone a favour or a good turn triggers a dopamine hit. You feel better. Bear in mind the Benjamin Franklin Effect. If you want someone to think better of you or to do you a favour in the future, ask them for a favour first. Franklin found that when he asked one of his political rivals if he could borrow one of his books the man lent it to him. After Franklin had returned it relations between them were much improved. In other words, people like people who have done them a favour and to whom they have done a favour. None of us likes to incur in-group disapproval. Therefore, we tend to comply with the norms. All of us have an innate and deep sense of fairness. Our definition of 164

Persuasion 9.07 fairness may be subjective but reciprocity addresses the universal sense of fairness (see Chapter 7 on Groupthink and Chapter 14 on Fairness). After all, trading concessions is the heart of negotiation and that’s reciprocity.

2 Authority 9.04 Plenty of research shows that people tend to follow authoritative figures. The shocking Milgram experiment where students acted out the roles of guards apparently shows that (but see 1.19). It’s just not seen in controlled experiments like that. Titles and clothes matter. People are more likely to follow someone wearing a suit and tie when crossing the road at a red light than someone who is wearing a casual shirt and jeans. Status Anxiety and the need to allocate places in the pecking order was discussed in Chapter 7 on mediation barriers.

Experts 9.05 Experts are a particular type of authority. Like most things they can be an asset or a liability. We like to hear from experts when they support what we already believe to be the case (see 14.34) on confirmation bias). The danger is that we rely upon them too much. Remember experts are subject to the same emotions and cognitive biases as the rest of us. Professor Cialdini recommends that when an expert tells you something ask two questions: 1

How much of an expert is this authority?

2

How truthful can I expect them to be?

They are particularly susceptible to earned dogmatism bias. For more on experts in mediation see Chapter 13.

3

Social proof

9.06 In-group bias is one of the most powerful influences on our behaviour. See Chapter  7 where the evolutionary origins and the enduring significance of tribalism were explained. An effective way of persuading someone to agree to do something is showing them that other people have already agreed to do it. We follow the crowd. And following the crowd can often be an effective shortcut when having to make a decision under time pressure with limited information.

4

Commitment and consistency

9.07 Consistency bias is explained in 14.34. In mediations this works both positively and negatively. When people publicly state a position, they find it difficult to do something that is inconsistent with it. This leads to sunk cost fallacy and 165

9.08  Persuasion confirmation bias which doesn’t help settlement discussions. If someone says they are fair or open-minded and have come to mediation to seek a commercial settlement this does help. You can remind them during the mediation of what they said earlier. Professor Richard Wiseman’s research into motivation found that writing down proposals and plans increased the chances of them being successfully completed. Having people write down their proposals shows a degree of commitment. So encourage them to do that. They are less likely to backtrack (see Chapter 5).

5 Liking 9.08 We all like to be liked. This can have negative results. If we like somebody we tend to agree with them and adopt whatever they say, even if it is not in our interests or is demonstrably wrong. We also tend to favour good-looking people. Research has shown that good-looking people are more likely to receive favourable treatment in the legal system and are often seen as being more intelligent. This is known as the Halo Effect.

Flattery 9.09 We like people who like us. The common perception that women are more susceptible to flattery than men has been disproved by experimental evidence. We all like flattery, even when we know the compliment is untrue. Research shows that people who give only positive comments about others tend to be liked more. Contact and cooperation means that the more we meet someone and work with them the more that we will get on together. That’s why there are so many dinners and lunches in commercial deal-making and diplomacy. Eating and drinking together hasn’t really caught on at mediations – although some mediators insist that the parties start the day with a joint breakfast of croissants and coffee and have lunch together (see Chapter 8 on Bridges). Something that is not easy to replicate in online mediations.

6 Scarcity 9.10 We value things more that are in short supply or that we are in danger of losing. Check the biases about loss aversion and the endowment effect (Chapter  12). There’s a psychological phenomenon known as psychological reactance. This is when the possession of something that we already have is threatened leading us to desire it more. This can also be seen in regret theory and the fear we have of losing an opportunity or a potential gain (see Chapter 5). The famous Worchel biscuit experiment shows this. Identical biscuits were placed into jars. Ten were put in one jar and only two in the other. People were asked to say which tasted better. They rated the biscuits from the jar with only two biscuits in it more highly. 166

Persuasion 9.13

7 Unity 9.11 We like people who are like us. Our preference can lead to in-group bias (see Chapter  7). Cialdini’s concept goes a little further. In essence unity is an existing or perceived relationship which is more than just us favouring people like us. The relationships that matter are the ones that allow us to say: ‘oh that person is one of us’. It’s about shared identities. As Cialdini says: ‘put simply, we is the shared me.’ This is potentially very influential at mediations. In Chapter  8 we discussed behavioural bridges: how encouraging a sense of team or in group is the best way of creating the mediation mood music and atmosphere for settlement. Mediations start with ‘us’ v ‘them’. The mediator is in the middle – a referee between two opposing teams, each wanting to beat the other team. They see mediation as litigation by other means. Argument is the dominant mode of behaviour. Mediators need to think about using ‘we’, ‘us’ and ‘our’ instead of ‘you’ and ‘them.’ Does this show a lack of neutrality and impartiality? Some mediators think so. Others don’t. What mediators want to do is to try and get all those at the mediation engaged in the joint enterprise of finding a way out of a situation that no one likes being in. And to breakdown the in-group and out-group mentality and combine into one group. Unity is mutuality. And this can include mutuality of relationships with the kinship and place the most obvious examples are home, locality or region.

TOP TIP Frame your presentation so that you press as many of these behavioural buttons as possible. Especially think about: • Priming. •

Power of Language.

•

Expectation Management.

What do you do? 9.12

In practical terms start on the front foot:

Be there first 9.13 Arrive at the mediation early. Dress in a formal manner. Be there to greet the participants. Know what rooms they are in. Direct them to their rooms if you can. You are demonstrating control of the process, concern for their wellbeing and acting in an authoritative way. If mediating online, log on 30 minutes before the 167

9.14  Persuasion start time so you are there ready to admit and welcome people before allocating them to their breakout rooms.

Be attentive 9.14 Go and see them. Make sure they know where everything else is including the toilets. Ask the clients and their advisers if they have what they want. Do they like the room? Is it big enough? Is the temperature comfortable? Offer them tea, coffee, water and biscuits. (Remember rapport building in Chapter  8.) Again, you are showing concern for their wellbeing. Offering to do something for them. They will start to like you. This is not relevant when mediating online but you can still show concern for their wellbeing by asking them when they would like breaks and time away from the computer screen, Do all this before the mediation actually starts and it is just a private chat with a party in their room. You establish authority and start building rapport. Having engaged in some reciprocation people start to know and hopefully like you.

Ask for commitment 9.15 If they have not already signed a mediation agreement, ask them to sign it. Summarise the main terms, eg it’s confidential, it’s voluntary etc. Getting them to sign it is a sign of commitment. See Chapter 4 for the importance of public demonstration of commitment and the power of writing something down.

Reassure them 9.16 Ask them if they have been to a mediation before. If they haven’t – and most clients haven’t – explain the process. Check with the lawyers that they’re happy with what you’re saying. This provides reassurance and again demonstrates competence and authority. As we saw from the charts in Chapter 5 anxiety is a prominent emotion at the start of the mediation day.

Similarity 9.17 Try to find as many links as possible. Look up the lawyers and experts on their websites. See if you know the same people or belong to the same organisation or share the same interests. Do the same for the clients.

Social media 9.18 We can all find out about people more easily than ever before: Facebook, Google, websites, LinkedIn etc. Clients and lawyers often look you up as their mediator before the mediation. Should mediators do the same? 168

Persuasion 9.21 Be careful about searching on LinkedIn or on any platform where you leave a footprint. People can see who has been looking at their profiles. Some will love it and feel flattered that you are taking the trouble. Others will hate it and find it creepy and controlling.

Confidence 9.19 Radiate confidence. Let them see that you have read the papers and know what’s in their mediation statements. If you are confident in what you are doing, they will feel confidence in what you are doing. Remember moods and emotions are contagious (see Chapter 3). Once they have decided that you are competent, they can start to trust you. Think about your breathing and voice. Warm these up (see Walker Mediation Advocacy pp 87–88). At all times keep smiling. The importance of smiling can’t be overestimated. We are not talking manic perma-grins or inane fixed smiles (see 8.02–8.04). As a mediator you’re a chameleon. You adapt your colouring to the environment that you are in. The mood in one room will not be the same as the mood in the other room. Be adaptable. Remember that people do business with people that they know, like and trust. You have a very short time to get the parties and their lawyers to know, like and trust you. So, don’t waste a moment.

Getting your message across 9.20 We persuade people by our language and our actions. Language means both spoken and body language; your own and other people’s. The absolutely key point is that it’s not the words that you use that matter – it’s the words that they hear. So use words and phrases that: •

Trigger positive emotions not negative ones – progress, constructive, helpful, good suggestion.

•

Neutralise the cognitive biases that will be in play – review, step back, avoid, analyse, compare.

Above all remember what was said in Chapter 2 about humans only being able to hold between four and seven chunks of information at one time. Don’t overload – use short sentences. Speak for a short time – a maximum of 30 seconds before pausing.

Start priming 9.21 The concept of priming is well documented. As we saw in Chapter 1 there have been many challenges to the research findings on which it is based. What it means is that we are more likely to respond to a stimulus if we have previously been 169

9.22  Persuasion exposed to another relevant stimulus. A simple example is that in one experiment participants recognised the word ‘nurse’ more quickly if they had previously seen the word ‘doctor’ than if they had seen the word ‘bread.’ This is verbal priming and is the most easily used. The other common sort is social. Researchers have shown that where participants were exposed to rude words instead of polite ones, they were more likely to interrupt the researcher. We have referred to the effect on behaviour of holding a hot or a cold drink before being interviewed. Those who held the hot drink where more likely to find the interviewer had a warm manner than those who held the cold drink. Images work as well. In one experiment participants who saw images of the Apple logo flashed on the screen showed higher creativity later than those who were exposed to the IBM logo. Volunteers just before they started a test saw either a naked light bulb or some other form of lighting. Those who saw the light bulb did better. Participants who were exposed to words about helpfulness were more likely to pick up something that the researcher had apparently accidently dropped.

Mediation message 9.22 Will this work at mediations? It might. Mentalists such as Derren Brown have used this sort of priming to great effect. But the context is very different from a show with a suggestible audience. At mediations people do not arrive in a suggestible mood. Far from it. They are often suspicious and even resistant to the whole idea of mediation. They have needed persuasion even to attend. In any case who wants to feel manipulated like a volunteer at a magic show? But you can create the mood. Mediators are best placed to do it. But advocates and clients have their part to pay as well. Choose your words carefully. To help you do this effectively you need to use their language. What is their mode of talking? You find that out by listening to them. Re-read Chapter 8 on Active and Guided Listening. By listening to people you do three things: 1 You show them respect by encouraging them to express themselves and letting them see that they have been heard. 2

You gain useful intel about them. Not just from what they say but how they say things.

3

You build a rapport.

The importance of listening can’t be overestimated. A mediator returned to a room with the news that the other side had accepted their proposal: ‘Amazing, how did you talk them into that?’, he was asked. ‘I didn’t’ he replied, ‘I listened them into it’ (see 8.16–8.25). 170

Persuasion 9.25

Language According to Steven Pinker: ‘language is the most accessible part of the mind’. It may be. It’s certainly the thing we use most in mediations. Three types of language are used at mediations: spoken, written and body.

The spoken word 9.23 Let’s concentrate on the spoken word first. Mediation is predominantly an oral culture. The use of the written word for persuasion is limited to mediation statements or position papers.

What do you use language for at mediation? 9.24 •

To explain things.

•

To find out things.

•

To persuade people.

•

To record decisions.

•

As a way helping our thinking. Many people can only think when they speak.

•

To alleviate stress by talking.

•

To establish a rapport and just communicate.

As a preliminary we need to discuss two approaches to language that have been influential in mediation circles: NLP and NVC. Whether you are a believer or a sceptic you cannot ignore them. What are they and are they useful?

Neuro-linguistic programming (NLP) 9.25 NLP is an approach to communication and behaviour modification – your own and other people’s – which was devised in California in the early 1970s by Richard Bandler and John Grinder. A huge international business developed with courses, treatments, franchises and certifications. Inevitably there was litigation. After 20 years Bandler and Grinder settled their differences. NLP techniques have been imported into mediation training and practice. Primarily they are to do with establishing rapport and modelling people’s behaviour through matching, pacing and leading. To what extent these techniques are exclusive to or were originated by NLP is open to debate. One former NLP practitioner, the mentalist Derren Brown, complains that: ‘One of the many irritating habits of NLPers is to claim that anything remotely concerned with looking at one’s inner processes is NLP’ (see Chapter 8 on rapport). 171

9.26  Persuasion 9.26 NLP has a set of presuppositions. Here they are with comments on their applicability to mediation behaviour 1

People respond to their map of reality and not to reality itself. Yes, we see this at mediation. People prefer to believe what they want to believe. What constitutes reality is another question (see Chapter  11). Communicating effectively with someone means talking in their terms.

2

Human behaviour is purposeful. The NLP gloss on this is that we are not always conscious of what that purpose is. If this means that we always do things for a reason then this is not behaviour that is seen at mediations. More often than not any reasons offered are rationalisations (see Chapter 4).

3

All behaviour has a positive intention. In the sense that generally we behave in a way that we think is to our advantage or will make us feel better this is accurate. But in the sense that people at mediations never intend to do something that has a negative effect on someone else it is not true.

4

The unconscious mind is benevolent. In most cases this is probably correct – people are generally pro-social. Evolution has made us that way to help us survive. At mediations people’s behaviour often suggests the contrary (see Chapter 7).

5

Having choice is better than not having choice. Yes, within limits. Having a choice gives us a sense of control or autonomy (see Chapter 6). But remember the Paradox of Choice (see Chapter 5).

6

People make the best choice they can at the time. The whole Kahneman-Tversky school of behavioural economics says that we don’t do this. At mediations we are concerned with a decision that gives an outcome that is good enough. There is enough anecdotal evidence that parties who chose to reject an offer at mediation have regretted it when they did worse at trial.

7

People work perfectly. The NLP gloss on this is that no one is wrong or broken. Therapists may find this inspirational. Mediators less so. At mediations we see plenty of examples of people behaving badly both before the mediation and during it.

8

The meaning of the communication is the response you get. Yes, in the sense that it’s not the words that you say that matter, it’s the words that they hear. And yes, if the response or feedback is not what you expected that tells you something about your messaging and about what’s important to them.

9

We already have all the resources we need, or we can create them. The NLP gloss on this is that there are no unresourceful people only unresourceful states. Possibly, but we see a lot of self-proclaimed victims who are wedded to Seligman’s learned helplessness. 172

Persuasion 9.27 10 The mind and body are one system. They interact and influence each other. Yes, this does seem to be the current neuroscience orthodoxy. At mediations we clearly see the effects of hunger, thirst and sleep deprivation on people’s behaviour. 11 We process all information through our senses. Yes. Very probably in the sense that it comes to us through our senses, but it is processed in the brain, for the most part (see Chapter 2). 12 Modelling successful performance leads to excellence. If one person can do something it is possible to model it and teach to it to others. Mediation trainers would like to think this. Mediators would be grateful if this were true given the lamentable advocacy and negotiation skills so often displayed by advisers and advocates at mediation. 13 If you want to understand – act. If this means that you learn best by doing. Absolutely.

Mediation message 9.27 Is NLP useful? It has been criticised by scientists for lack of evidence and for using outdated theories of how the brain works, and is generally regarded as a pseudoscience. For example, a metasurvey of all properly controlled empirical tests of NLP published up to 2009 found that out of the 33 relevant studies 54.5% were unsupportive, 27.3% were ambiguous and 18.2% were supportive. The conclusion was that the “analysis leads to the statement that NLP represents pseudoscientific rubbish which should be mothballed for ever.’

NLP has not been mothballed. And this research finding doesn’t mean that NLP doesn’t work or is irrelevant in mediations. Plenty of mediators have undergone NLP training, and become accredited practitioners. One leading mediator’s website says this: ‘Recognised as one of the best civil, commercial, employment and workplace mediators in the country by Chambers & Partners and Legal 500. He is a: •

Master Practitioner in Neuro-linguistic programming (NLP)

•

member and trainer for the International Education and Training Faculty of ADRg

•

member of the International Coaching Federation (ICF)

•

neuro-linguistic programming accredited coach

•

professional member of the Association of NLP Practitioners’

Professor Joel Lee a well -known mediator and trainer based in Singapore promotes the use of NLP in mediation. See his articles in the Kluwer mediation blog. His key message is ‘from my perspective NLP has never claimed to be a science. It is a model, which in my experience works. I’m pretty sure that there is no scientific evidence that ‘mediation’ works. But I know that it works as do many readers of 173

9.28  Persuasion this blog. And interestingly enough you do not have to believe that it works for it to work.’2 Gerry O’Sullivan’s book on the S  Questions Model for developing and asking questions described at 8.37 is based on NLP. Many books on how to influence behaviour with titles such as Words That can change Minds: The 14 Patterns for Mastering the Language of Influence and Manipulation: or Methods of Persuasion: How to Use Psychology to Influence Human Behavior3 often draw on NLP Theory and practice. They are described as Dark Psychology. Use these techniques with care. If not used skilfully they can appear to be blunt attempts at manipulation. Even when they’re done skilfully those in the room familiar with NLP can spot the techniques.

In the Joint Opening Session at one mediation the sales director for the claimant was making a presentation. One of the defendant’s solicitors was a trained NLP practitioner and asked point-blank: ‘Have you been trained in NLP? ‘Yes’, said the sales director. ‘I  thought so.’ The implication was clear at the time that this use of NLP techniques was unwelcome and probably not working. This impression was confirmed in even blunter language during the day.

Mediation message 9.28 NLP is largely concerned with communication and personal change. Communication is essential at Mediation. Personal change isn’t. Although people may adjust their behaviour towards each other. But as with much else in the New Stuff, if it seems to you to work, use it. For example, Derren Brown who trained in NLP casts doubt on some of NLP’s claims and in particular their theory of eye cues (see figure on p 175). This is the idea that where people look tells you what their favoured method of processing information or thinking is. This is their PRS (primary representational system) in NLP speak. But he concludes that some people do behave in the way this describes. So be aware of  it.

TOP TIP If you are engaged in mediation – whether you are trained in NLP or not and whether you think it works or is pseudoscientific rubbish – make yourself aware of it. There is a good chance that someone at the mediation is familiar with or trained in NLP. 174

Persuasion 9.30

K

VC Visual constructed images AC Auditory constructed images VR Visual remembered images AR Auditory remembered images K Kinaesthetic/feelings AD Auditory digital (interior dialogue)

Non-violent communication (NVC) 9.29 Marshall Rosenberg developed this approach in the 1960’s to be used when communicating with yourself, with others and within groups. He wanted to improve communication. Rosenberg worked with the American psychologist Carl Rogers who has had an immense influence on mediation theory and practice. Rogers founded the clientcentred approach to psychology, aka the humanistic approach. His original theory had 19 propositions which frankly I found incomprehensible. You might do better. They are listed at Appendix 9 (p 182). Again, some well-known and successful mediators are trained in NVC and use it. Some claim good results and tell inspiring stories of habitual violent criminals who have changed when exposed to NVC. Even expressing regret that they did not know about it earlier. If they had, they say, they would have behaved differently – been less confrontational and used words instead of knives. Whether that is wishful thinking, manipulative behaviour or truly felt conclusions is another matter.

What is NVC? 9.30 Rosenberg in his book Nonviolent Communication: A Language of Life4 set out four things to focus on: •

Observation: just focus on the facts, ie  what we are seeing, hearing, or touching. Don’t evaluate them for meaning and significance. If people hear our combined observations and evaluations, they hear criticism and resist what we are saying.

•

Feelings: emotions or sensations, free of thought and story. Feelings reflect whether we are experiencing our needs either met or unmet. Identifying feelings 175

9.31  Persuasion helps us to connect with one another. Rosenberg claimed, ‘Allowing ourselves to be vulnerable by expressing our feelings can help resolve conflicts.’ •

Needs: universal human needs, as distinct from particular strategies for meeting needs. ‘Everything we do is in service of our needs’.

•

Requests: make requests not demands. Use clear, positive, concrete action language. If they say ‘No’ don’t give up. Instead empathise with what is preventing them from saying ‘Yes.’ Then decide how to continue the conversation. Don’t just jump in as soon as you hear the negative. According to Rosenberg too many of us use life-alienating communication. This blocks our compassionate self and makes us more violent. This applies both to individuals and societies and leads us to engage in:

•

Moralistic judgements. These  imply that people who don’t act in accordance with our values are wrong and bad. Blame, insults, labels, criticisms, comparisons, and diagnoses are forms of judgement. (Moralistic judgements are not to be confused with value judgements about the qualities we value.) As Rosenberg says: ‘Our attention is focused on classifying, analysing, and determining levels of wrongness rather than on what we and others need and are not getting.’

•

Demands.  These implicitly or explicitly threaten listeners with blame or punishment if they fail to comply.

•

Denial of responsibility via language. We deny responsibility for our actions when we attribute their cause to other factors, eg  vague impersonal forces (‘I  had to’); our situation, personal or psychological history; the actions of others; the dictates of authority; group pressure; institutional policy, rules, and regulations; gender roles, or uncontrollable impulses. This is fundamental attribution error (see 16.16).

•

Making comparisons between people (see Chapter 12 on Money).

•

An assumption of deserving, that certain actions merit reward while others merit punishment.

NVC assumptions and mediation 9.31 Inbal and Miki Kashton who are both NVC trainers have described NVC’s assumptions. Here they are with comments on how they apply in mediations. 1

All human beings share the same needs. Possibly. See Cialdini’s RASCLS at 9.02–9.11. But priorities vary. Needs are contextual.

2

Our world offers sufficient resources for meeting everyone’s basic needs. Probably – it’s the logistics of getting what people need to them when they need it.

3

All actions are attempts to meet needs. Yes, in a general sense. But not always seen at mediations where people will cut off their noses to spite their faces. 176

Persuasion 9.33 4

Feelings point to needs being met or unmet. Probably, but it’s so general as to be of limited practical use.

5

All human beings have the capacity for compassion. Yes, subject to the research findings about psychopaths. But we also have the capacity not to show compassion, as we see at mediations.

6

Human beings enjoy giving. Most but not all do. And not all the time. Open handed generosity is not often in evidence at mediations.

7

Human beings meet needs through interdependent relationships. Again, yes, in a very general sense.

8

Human beings change. Yes, but some more than others.

9

Choice is internal. Not always – choice can be imposed.

10 The most direct path to peace is through self-connection. If we are talking about an inner sense of calm and contentment this is true. But external peace, ie peace between people, then no.

Mediation message 9.32 Mediators and advisers need to be aware of both NLP and NVC. You may find it helpful to undertake training in their approach. You may be more sceptical. Either way remember that both of them and in particular NLP are influential in mediation as practised in the UK and elsewhere.

Arousal 9.33 A  key message is that at mediations most people present are aroused. For the advisers and the mediator, it’s a performance. They have to display their professional skills. In that sense it’s much like a court appearance. They will be feeling performance anxiety. At least they should be. If they are not, then are they still up to the job? For clients the mediation is a time when they will be invited to take responsibility for their dispute by deciding whether or not to settle. Most clients haven’t attended a mediation before. It’s their first time. They are nervous anyway. They are not sure what to expect. They fear that they may be attacked or humiliated and are worried about the outcome. What is going to happen? 177

9.34  Persuasion Levels of arousal will depend on who they are and what mediation stage has been reached. People’s receptivity varies at different stages. They may be feeling more or less defensive. If progress is being made and a settlement momentum has developed people will become more relaxed, more open to suggestion, and be thinking more about how to implement a settlement than ruminating about the past. Messages can be delivered and received completely differently after six hours of mediation than after six minutes (see the energy graph at 7.05).

Mediation message 9.34 What people at mediations will be on the lookout for is meaning. They may not be in such a concerned state as one psychologist was when he met a colleague in the street who said good morning and how are you? The psychologist wandered off asking himself – what did he mean by that? Clients and their advisers in a private session with a mediator will be looking for clues as to what the mediator is thinking. Is the mediator on their side or not? All clients want the mediator to be on their side.

How to choose your words 9.35 We can easily fall into over-interpreting what is said. Or equally importantly what is not being said. So, whether you’re the mediator or the adviser pay particular attention to the words you use, the order you put them in and the form. 1

Are they statements or questions, options or threats?

2 Think about the context. The same words can have very different meanings to the listener depending on the context. For example: ‘We ran into a bank’ conveys very different meanings to the bank manager and the yacht owner. 3 Watch where you put the emphasis. Just think of the different meaning conveyed in these four sentences. •

You want me to do that?

• You want me to do that? •

You want me to do that?

•

You want me to do that? Read them out to yourself putting the emphasis on the words in bold.

4

Pick your vocabulary carefully. Start verbal priming. Seed your conversations with triggers. Use Power Words that convey the sense of what you want to achieve, the mood and mind set you want to create – settlement, agreement, certainty etc. See Appendix 7 at p 180 for a list. 178

Persuasion 9.38

Expectation management FUD OR FUN? 9.36 The biggest single outcome that most clients at mediations want is to get rid of the uncertainty. As described in Chapter 2, humans find coping with uncertainty difficult. We are also loss averse. Loss causes us twice as much pain as gain causes pleasure. We buy pain relief tablets before vitamin pills. The clearest simplest message which will resonate with clients is FUD: Fear, Uncertainly and Distress. ‘This is what you are suffering from. I can cure it.’ The universal message of marketers, pharmaceutical companies, pension providers, and psychotherapists. Mediators can distil their offering into one message: FUN. Not jokes and laughs but: Fixing Uncertainty Now.

TOP TIP Use Power words – they are positive. Go easy on the Fear words – they are negative (Appendix 8 at p 181).

Mediation message 9.38 By all means do some reality testing – better still reality assessment. Consider WATNAs and BATNAs (see 7.47). But be careful not to overdo the fear factor. Plenty of well-known mediators spend a long time recounting tales from their time as QCs or judges on how cases fell apart or witnesses didn’t show up. And the costs. They go on and on about costs. How awful it all is now. How much worse it could all be in the future. Their messages are not always well received. Consider as an alternative: ‘I  can see that what is troubling you most is the uncertainty. Today you can have certainty. It’s for you to put a value on the benefit of achieving certainty. Let’s see how we agree a fair price’. Generally, spin doctors and marketers advise selling hope not fear. Remember people do business with people that they know, like and trust. Once you have lined up these three you are on your way. That’s true for most people not just those at mediations. 179

9.39  Persuasion

In a nutshell 9.39 •

Our brains are built to persuade.

•

We are much better at advocacy than analysis.

•

Show people hope and gains not fear and losses.

•

It’s not what you say that matters: it’s what they hear.

180

Power words 9.39

Appendix 7

Power words

Agreements

End

New

Solution

Benefits

Energy

Outcome

Start

Certainty

Feel

Over

Time

Chance

Finality

Peace

You

Choice

Finish

Positive

Your

Close

Forward

Profit

Up to you

Common

Free

Receive

Value

Confidential

Freedom

Regain

Voluntary

Consent

Future

Save

Control

Gain

Self

Direct

Negotiate

Settle

TOP TIP •

Seed your conversations with these words.

•

Start doing this at the earliest possible opportunity. Include them in your emails making arrangements for the mediation. Use them in any pre-mediation chats you have with the advisers or the client before the mediation day.

•

Start using them in the mediation when you go into the parties’ private rooms and talk to them informally before the mediation has actually got underway.

•

Use them in any joint sessions. Repeat them in the caucuses.

•

Don’t forget the power of repetition. Saying something often enough gives it its own truth (see 14.09).

181

9.39  Fear words

Appendix 8

Fear words

Afford

Deadline

Liability

Reject

Against

Difficult

Liquidation

Risk

Bad

Downside

Lose

Trial

Bankruptcy

Downtime

Loss

Ultimatum

Blame

Expense

No

Uncertainty

Can’t

Exposure

Pain

Witness box

Cost

Final

Pay

Won’t

Cross-examination Hard

Never

Damages

Refuse

Last

TOP TIP Conducting a mediation without using some of these words some of the time is impossible. When reality testing you will use the words ‘risk’ or’ cost’. When talking about the alternative of court you will refer to ‘trial,’ ‘witness box’, ‘cross-examination’. They are powerful so: •

Pick your time to use them.

•

Monitor how many times you use them.

•

Check for how people respond when they hear them.

•

Counterbalance the FUD that they induce with the FUN that can be achieved by working out settlement structures.

182

Carl Rogers’ 19 propositions 9.39

Appendix 9

Carl Rogers’ 19 propositions

Nineteen propositions. His theory (as of 1951) was based on 19 propositions: ‘1. All individuals (organisms) exist in a continually changing world of experience (phenomenal field) of which they are the centre. 2. The organism reacts to the field as it is experienced and perceived. This perceptual field is ‘reality’ for the individual. 3. The organism reacts as an organised whole to this phenomenal field. 4. A portion of the total perceptual field gradually becomes differentiated as the self. 5. As a result of interaction with the environment, and particularly as a result of evaluative interaction with others, the structure of the self is formed – an organised, fluid but consistent conceptual pattern of perceptions of characteristics and relationships of the ‘I’ or the ‘me’, together with values attached to these concepts. 6. The organism has one basic tendency and striving – to actualize, maintain and enhance the experiencing organism. 7. The best vantage point for understanding behaviour is from the internal frame of reference of the individual. 8. Behaviour is basically the goal-directed attempt of the organism to satisfy its needs as experienced, in the field as perceived. 9. Emotion accompanies, and in general facilitates, such goal directed behaviour, the kind of emotion being related to the perceived significance of the behaviour for the maintenance and enhancement of the organism. 10. The values attached to experiences, and the values that are a part of the selfstructure, in some instances, are values experienced directly by the organism, and in some instances are values introjected or taken over from others, but perceived in distorted fashion, as if they had been experienced directly. 11. As experiences occur in the life of the individual, they are either, a) symbolised, perceived and organised into some relation to the self, b) ignored because there is no perceived relationship to the self-structure, c) denied symbolization or given distorted symbolisation because the experience is inconsistent with the structure of the self. 12. Most of the ways of behaving that are adopted by the organism are those that are consistent with the concept of self. 183

9.39  Carl Rogers’ 19 propositions 13. In some instances, behaviour may be brought about by organic experiences and needs which have not been symbolised. Such behaviour may be inconsistent with the structure of the self but in such instances the behaviour is not ‘owned’ by the individual. 14. Psychological adjustment exists when the concept of the self is such that all the sensory and visceral experiences of the organism are, or may be, assimilated on a symbolic level into a consistent relationship with the concept of self. 15. Psychological maladjustment exists when the organism denies awareness of significant sensory and visceral experiences, which consequently are not symbolised and organised into the gestalt of the self-structure. When this situation exists, there is a basic or potential psychological tension. 16. Any experience which is inconsistent with the organisation of the structure of the self may be perceived as a threat, and the more of these perceptions there are, the more rigidly the self-structure is organised to maintain itself. 17. Under certain conditions, involving primarily complete absence of threat to the self-structure, experiences which are inconsistent with it may be perceived and examined, and the structure of self-revised to assimilate and include such experiences. 18. When the individual perceives and accepts into one consistent and integrated system all his sensory and visceral experiences, then he is necessarily more understanding of others and is more accepting of others as separate individuals. 19. As the individual perceives and accepts into his self-structure more of his organic experiences, he finds that he is replacing his present value system – based extensively on introjections which have been distortedly symbolised – with a continuing organismic valuing process.’ In relation to No. 17, Rogers is known for practising ‘unconditional positive regard‘, which is defined as accepting a person ‘without negative judgment of …. [a person’s] basic worth’. He concentrated on the development of the self-concept and progress from an undifferentiated to a fully differentiated self: ‘Self Concept  … the organised consistent conceptual gestalt composed of perceptions of the characteristics of “I” or “me” and the perceptions of the relationships of the “I” or “me” to others and to various aspects of life, together with the values attached to these perceptions. It is a gestalt which is available to awareness though not necessarily in awareness. It is a fluid and changing gestalt, a process, but at any given moment it is a specific entity.’ (Rogers, 1959) 1 Walker Mediation Advocacy: Representing and Advising Clients in Mediation (Bloomsbury Professional). 2 Kluwer mediation blog 12 January 2018:Mediationblog.kluwerarbitration.com. 3 Charvet Words That can change Minds: The 14 Patterns for Mastering the Language of Influence and Manipulation (Institute for Influence); Kolenda Methods of Persuasion: How to Use Psychology to Influence Human Behavior (Kolenda Entertainment LLC). 4 Rosenberg Nonviolent Communication: A Language of Life (Puddle Dancer Press).

184

Chapter 10

Prediction

In this chapter you will learn •

Why prediction is vital.

•

How to do it better.

Crystal balls 10.01 ‘Prediction is very difficult especially if it’s about the future.’ This wellknown quotation, variously attributed to Niels Bohr, Mark Twain, Sam Goldwyn and Yogi Berra sums up the problem for us all, and not just at mediations. You don’t see many crystal balls at mediations. But people spend a lot of time and energy on prediction. This is not surprising. Along with persuasion it’s one of the two fundamental purposes of the brain. Being able to predict helps us to survive. It’s a survival mechanism. Remember the rustling in the savannah bushes from Chapter 2. Is it wind or a tiger? We have incomplete information. We have to make a decision. Get it wrong and we die. Do something and do it quickly. In modern life we still have to predict. If we couldn’t, we wouldn’t be able to do simple things like drive a car or catch a ball. Prediction is everywhere all the time. Whether we realise it or not. Scientists used to think that the brain reacted to external stimuli. Now apparently, we know the brain doesn’t react – it predicts. As Professor Lisa Feldman Barrett says in her book How Emotions Are Made1 ‘new scientific studies suggest that thoughts, emotions, perceptions, memories, decisions, classifications, imagination and many other mental phenomena considered historically as distinct mental processes can be brought together under a single mechanism: prediction’. We look out for threats and risks. We weigh them up and decide what we do. We make fast decisions and we make slower ones. Hence the importance of Kahneman’s work on cognitive biases and his System One and System Two (see Chapter 4) and Gigerenzer on intuitions (see Chapter 5). 185

10.02  Prediction From an evolutionary point of view our brain has had to learn to cope with all the information it receives every second. Most of this is incomplete and unclear. It lacks certainty. Therefore, the brain has to infer what can happen. This requires imagination, anticipation and prediction. 10.02 Prediction is linked to the brain’s reward mechanisms. The release of dopamine significantly influences our behaviour. This explanation goes back to Pavlov and his dogs and the theory of classical conditioning which leads to behaviourism (although the dopamine circuits involved were not discovered until 1958) (see 1.46). Studies of monkeys have shown that once they learn that pushing a button produces food, they experience a dopamine release when they anticipate receiving food even before they have pressed the button. In other words, dopamine floods the brain to trigger the action before it is made, not to reward it after it has been made. Interestingly researchers found when that when they started to reward the monkeys for only 50% of the time the dopamine discharge was not halved. In fact, it more than doubled. What this shows is that when faced with a degree of uncertainty the reward system actually multiplies the feeling of well-being modulated by the dopamine. This basic inconsistency encourages many of us to play roulette with a 1 in 30 chance of winning or the lottery with a 1 in 139,838,160 chance of all your numbers being drawn as to win the Euromillions jackpot. We saw that Jeff Hawkins defined intelligence in his book On Intelligence2 as ‘the capacity to remember and predict patterns in the world… By combining what has been seen before and what is happening now’ (see Chapter 2). When we do this we are not reinventing the wheel each time. We rely on what we already know – what we have previously experienced. In other words, we base our prediction for the future, which we are making now in the present, on the past. But how do we predict? What influences the way we predict? Can we improve how we do it? We are talking about prediction in the mediation context. Not into the bewildering world of Nate Silver and political prediction or Nicholas Teleb who seems to be telling us that you can’t predict anything and everything could be a black swan.

Pattern making 10.03 Following on from Jeff Hawkins’ definition of intelligence we can see that pattern recognition is vital. We see faces everywhere in the fire, clouds and puddles. Our tendency to see patterns is also a manifestation of the human desire for meaning. We like to know why things happen. We are uneasy if we don’t have explanations for things. We like dots to be joined up. This is why we like stories and narratives so much. They give shape and meaning to our experiences. This has been labelled as a cognitive bias – the story bias. 186

Prediction 10.05 These tendencies can lead us astray. We can look for patterns and see them when none exist. People have seen the face of Jesus Christ in a piece of toast or the bark of a tree. This is known as pareidolia, which is a type of apophenia. That is the tendency to mistakenly perceive connections and meaning in unrelated things. Significantly this term was introduced by the psychiatrist Klaus Conrad in his 1958 book about the early stages of schizophrenia. One of the characteristics of schizophrenia is a withdrawal from reality. We now use it in a more general sense to describe our tendency to see patterns in random information. This also explains the clustering illusion. This uncovers why many explanations which we have about our behaviour are wrong. For example, the idea that you play a sport better when you are on a roll. Aka the hot hand fallacy. Thomas Gilovich and others investigated that the idea of basketball players possessing a hot hand, ie tending to shoot better in streaks. They exploded this through statistical analysis and in the dismal language of economics and statistics said: ‘There was no evidence for a positive correlation between outcomes of successive shots’. We see the same in the cognitive bias known as the gamblers’ fallacy. Gamblers often think the turn of the wheel or the fall of the cards follows a pattern which they can detect. They can’t. Look at the coin tossing example in 10.14.

Mediation message 10.04 Our propensity to seek patterns has been elevated to the status of an overwhelming human desire or need to find meaning. This is particularly relevant to mediations. In transformative mediation for example the parties in conflict are encouraged to explain their narrative of what’s brought them to the conflict. They exchange their narratives. The idea is that a changed synthesised narrative then emerges. Transformative mediators claim that it works. Most civil and commercial mediations are not transformative in this sense. Although a successful outcome can transform people’s circumstances and even their lives. As described in Chapter  5 the argumentative/dialectical model of behaviour is always displayed to some extent. How do people at mediations approach the job that they have which is to make a decision on whether or not to settle? A big part of their decision-making will be working out what will happen in the future. What do they want to happen in the future? How likely is it to happen?

Want a bet? 10.05 One way of approaching prediction and decision making is to treat all decisions as a bet. This approach has been developed and recommended by Annie Duke. She abandoned her doctoral research on cognitive psychology to become a professional poker player. In her book Thinking in Bets3 she says: 187

10.06  Prediction ‘Treating decisions as bets I discovered helps me avoid decision traps, learn from results in a more rational way and keep emotions out of the process as much as possible.’ Drawing on her academic and practical experiments in decision making she concludes that two things determine how our lives turn out: luck and the quality of decisions. You can’t do much about luck except enjoy it when you have some. Remembering at all times, of course, that luck tends to favour the prepared mind. Luck can be defined as the intelligent appreciation of opportunity. This is particularly relevant at mediations. But this definition doesn’t always work. Things can just go against you. As the former British Prime Minister Harold Macmillan4 used to say: ‘Events, dear boy, events’.

Hedonic forecasting 10.06 What we in fact do when we make decisions is predict how we will feel in the future. Emotions influence our behaviour and our decision making. In essence we decide to do things that we think will make us feel better. This influences how we predict. Affective forecasting (aka hedonic forecasting) investigates how we predict how we will feel in the future and how accurate our predictions are. Researchers have concentrated on four elements: whether the emotion is negative or positive (its valence); the specific emotion, its intensity and its duration. The overall conclusions are that 1

Generally, we are not accurate in forecasting our future emotional states.

2 We are reasonably accurate in predicting what emotions we will feel in response to future events. We tend to be more accurate for positive effects than negative. 3

We tend to be more accurate for positive effects, the further in the future the triggering event will be and more accurate for negative effects, the closer to the present the trigger will be.

4 The conventional view that we tend to be inaccurate about the intensity of our future feelings has now been challenged by findings that suggest we are usually accurate.

TOP TIP •

Agonising over whether to accept the settlement can be tough and unpleasant.

•

Try the 30/30/30 test.

•

Ask yourself if I accept this: How will you feel in 30 minutes’ time, in 30 hours’ time ie the day after tomorrow and in 30 months’ time? 188

Prediction 10.07

Why is predicting so hard? 10.07 The big problem with prediction is that we want the prediction to confirm what we want to happen. It’s a sort of confirmation bias. It’s motivated reasoning. Research into how people make financial decisions and predictions has thrown up some very useful guidelines. 1 When we want something to happen, we underestimate the risks and overestimate the benefits. In other words, your willingness to believe a prediction is influenced by how much you need the prediction to be true. A  lot of decisions are statistically wrong but support the incentives of the person making them. Bear this mind when analysing the predictions you use to explain what you plan to do, ie justify your own actions and decisions. Check back on 2.38 about rationalisation. 2

When working out what we think will happen in the future we look to what’s happened in the past. In fact, the latest research into the unreliability of memory about significant events, such as 9/11, show that the same brain structures we use to remember past events are also engaged when we think about the future. This makes sense. Recent performance is more likely to be an accurate guide to future performance. It is more likely to have emerged from causal circumstances which are still relevant rather than from older ones which have lost relevance.

3

When we look back, we tend to have a rosy retrospection. We overlook the bad things and concentrate on the good things. This can be as trivial as a holiday. When we think back, we remember the good bits more than the bad bits. This can lead us to underestimate how unpleasant a future experience might be if it is a repeat of a past experience. As in: ‘I know that I lost last time and went bankrupt but it will be better this time’.”

4 We can catastrophise. This is the opposite of rosy retrospection, it is dark prospection. It is the tendency: •

to see a situation as worse than it actually is;

•

to predict the worst possible outcome and to exaggerate what can go wrong and how bad the consequences will be.

At mediations when people are recollecting their dealings with each other, they tend to dwell on the bad bits, ie  when the other side did something wrong. When recollecting their previous litigation experiences, they tend to dwell on the good bits, ie when they were right and won at trial. 5

Resulting is dangerous. What is resulting? It’s the tendency to judge decisions by their outcome. A good outcome means that the decision was good: a bad outcome means that the decision was bad. Annie Duke is adamant that this is the wrong approach. A good decision might not lead to a good outcome because of bad luck. And conversely a bad decision can have a good outcome. In mediations we are more concerned with good outcomes than the purity of the decision-making process. We don’t want the mediation equivalent of the medical assessment: ‘The operation was a great success but the patient died’. 189

10.09  Prediction 6

Prediction is about probability. Usually, decisions are either good or bad. When in poker you predict that a hand has a 24% chance of winning and a 76% chance of losing you are saying that it’s more likely to lose than win. When it wins were you wrong? Not according to Annie Duke. That was just one of the 24 times out of 100 that it won. This simple probability truth is not well understood at mediations.

False consensus bias 10.09 Predicting the behaviour of other people relies on our understanding of their motives, priorities, social norms, incentives and how they can change. This is a lot easier to do if you are all in the same in-group. How do well-paid Oxbridgeeducated claims directors know what the financial, social and personal drivers of a long-term unemployed, poorly educated claimant or policyholder are? With difficulty. To compensate for this difficulty, we tend to be drawn towards the false consensus bias. When we predict how others will behave, we tend to compare what we think they will do with what we would do. Generally, we overestimate how much other people agree with us and see the world in the same terms that we do. 10.10 Other biases are also engaged. These ones are especially relevant in affective forecasting. •

Impact bias – overestimating the duration and intensity of future emotional states (see Chapter 5).

•

Expectation bias – what we forecast influences our emotional response even if the forecast turns out to be wrong. Eg if we don’t expect to like a film and then enjoy it we will tend to enjoy it less than if we had not had this negative expectation in the first place.

•

Immune neglect – our lack of awareness that we adapt to negative events. In particular we don’t realise that we recover more quickly from an intense negative experience than from a less intense one. We get over things more quickly than we think we will.

•

Fading affect bias – similarly describes how we forget negative emotions more quickly than positive ones.

•

Time discounting – where we prefer immediate gratification to be delayed (see 4.06).

•

Peaks and troughs of our experiences are remembered more clearly which can distort recollection of the past, our perception of the present and our expectation of the future. Memory as we have seen is not always reliable (see 2.18–2.26).

•

Projection bias – where we wrongly project our current preferences onto a future event. If we are in low mood now, we will underestimate how happy we will be in a few weeks’ time. Similarly, an empathy gap can distort our perception – where for example if we are hungry now, we will overestimate how much we will want to eat in the future. 190

Prediction 10.12 •

Personality neglect – where our personality influences our decisions. This is a contentious one because who knows their personality? (See Chapter 6.) Especially when you are the standard lab rat – an American in their late teens or early twenties (see 1.18).

Great expectations 10.11 Predictions and expectations are not always the same thing although they often are. An illustration of the difference is if I know that that there is an economic slump every five years I expect there to have been six by the time I retire. I will not be surprised or disappointed when they happen although my investments will be affected. A prediction is when the slumps will happen and how bad they will be. Expectations can influence our behaviour. The Pygmalion effect aka the Rosenthal effect says that expectation influences performance. This was based on studies of educational achievement. Researchers found that when teachers had high expectations of their students, their students did better. When they had low expectations of their students they did worse. Both the teachers and students seemed to be affected by the expectations. The teachers behaved differently towards the students and the students internalised the expectation. Of course, these findings have been challenged, but the observer-expectancy effect seems to be accepted ie we behave in accordance with how others expect us to behave.

Mediation message 10.12 You can see this at mediations. Mediators are told at the start of the day or even before that: ‘We don’t expect this to settle. We are too far apart. They are too unreasonable’. Or during the day as the parties’ offers are rejected and frustration sets in: ‘To be honest we didn’t think would settle’. Why do people say this? Partly as an alibi – it’s not our fault, we didn’t fail, the whole thing was doomed. This is a variation of the sour lemons bias – when you have been turned down for a job you tell yourself that you didn’t want it anyway and it wouldn’t have been any good. So you are reassuring yourself and your clients (see 17.15). Partly as self-justification. Clients who have reluctantly come to mediation because their lawyers have explained the possible costs consequences of not doing so use it as a sort of: ‘I told you so. I was right’. The problem is that this attitude has two significant negative effects: If you expect the mediation to fail you don’t 1

Prepare for it to succeed. Not enough time and effort is invested in working out your negotiating framework, or how settlements could be structured.

2 Engage in the process on the day. You become reactive not proactive. You spend time and energy doing other work and not thinking about how obstacles can be overcome. Creativity is stifled. 191

10.13  Prediction

TOP TIP •

Remind the lawyers and clients that expectation influences outcome. Be cheerful about it. Urge them to have faith in the process.

•

Ask them why they have come to mediation if they thought that it would fail. What needs to happen for it succeed? Get them thinking and involved.

•

Keep them at the table. Everyone has experience of settlements emerging from the ashes of despair, frustration and frustration.

•

Have review sessions. Ask the lawyers and clients why they think that more progress has not been made. Identify the obstacles as you see them.

What are my chances? 10.13 One of the most common predictions at mediation is litigation discount. Clients ask: ‘What are my chances of winning?’ Lawyers work out litigation discount all the time. They get good at it. At least the good ones do. Some ways of doing this are discussed at 10.16–10.20. Three steps are involved: •

A realistic assessment of the various issues that have got to go your way.

•

Adjusting for the emotions and cognitive biases that will influence your assessment. In particular the ones listed below.

•

Quantifying. You have to convert the qualitative expressions of confidence into quantitative ones. If you can’t measure it you can’t manage it.

It’s the third stage that causes most difficulty. We have to overcome a particular emotion that is rarely mentioned but is widespread at mediations: arithmophobia, aka numerophobia. This is the fear of dealing with numbers. 10.14 Try this Q1 You are tossing a coin. You have the following sequences. HHHHHHH TTTTTTTH HTTHTHH Which is the most likely on the next go: H or T? Q 2 You have two defences to a claim. A limitation defence with a 20% chance of succeeding and reliance defence with a 40% chance of succeeding. What is your overall chance of succeeding? 30% 60% 48% 52% 8% Answers at the end of the chapter. 192

Prediction 10.16 10.15 How do you work out odds of winning at trial? There are two basic rules when you have two possible outcomes or events: •

to work out the probability of either of them happening if they are mutually exclusive – ie they can’t both happen – you add the probability of each event;

•

to work out the probability of both of them happening you multiply the probability of each event. But be careful:

You have two claims. You have a 50% chance of winning on one of your claims and a 50% chance of winning on the other. What is your chance of winning? Do you add the two 50% chances together? That gives a 100% of winning. How can this make your chances better? That doesn’t look right. Do you multiply the two 50% chances together? That gives a 25% chance of winning. That doesn’t look right either. How can this make your chances worse? The answer is that you do both. You add the probability of one happening ie 100% and then subtract the probability of both happening ie 25%. This gives the answer of 75%. (50% + 50% = 100%) minus (50% × 50% = 25%) = 75% This also helps with working out pricing the exit fee from the dispute as explained in 8.46. See www.disputecalculator.com.5 10.16 But how do we translate qualitative assessments into quantitative ones? What does it mean when someone says that they have a good case? Some help is available from an unlikely source: spies. They don’t just spend their time in blackmailing people, burglary and deception in order to gain secret information. They spend a lot of time and effort in analysing information. They need to standardise expressions of assessment. Here is the scale devised by the Professional Head of the Intelligence Analysis profession (PHIA) in the Cabinet Office.

Chance

%

Remote

0–5

Highly Unlikely

10–20

Unlikely

25–35

Realistic possibility

40–50

Likely/probable

55–75

Highly likely

80–90

Almost certain

95–100 193

10.17  Prediction As you can see there are gaps. The reason for this is to avoid potential problems if you say that your estimate is around 20%. For comparison the CIA use the following

Plain speech

Formal speech

%

Almost no chance

Remote

01–05

Very unlikely

Highly improbable

05–20

Unlikely

Improbable

20–45

Roughly even chance

Roughly even odds

45–55

Likely

Probable

55–80

Very likely

Highly probable

80–95

Almost certain

Nearly certain

95–99

Can we use this at mediations? 10.17 One of the big differences is that these scales go up to 100%. No lawyer ever says that something has a 100% chance of happening. The most they go to is 80%. They automatically factor in the inherent risks of litigation – the unpredictable judge, the disappearing witness or the rogue expert.

What lawyers say

What lawyers mean

Chance of my case succeeding

%

Not the strongest

5

Speculative

15

Respectable

20

50/50

30

Could go either way

40

Better than evens

50

More likely to win than not

55

Good

60

Strong

65

Very strong

70

Guaranteed

80

Probability is not well understood. At a recent mediation a well-known mediator barrister was taking the parties and their advisers through a decision tree. They were looking at the various steps that had to be taken to win and their percentage chances. Worryingly they added the percentages together. What should they have done? 194

Prediction 10.19

What are the odds? 10.18 Some people prefer to convert percentage chances into odds. They understand that ‘Evens’ is 50/50 or 50%. But if you had a 20% chance of winning at trial what are the odds? Percentage chances and bonds are not the same thing. Percentages are used to measure successful attempts out of 100 attempts. A 20% chance means you will win 20 times out of 100. Odds are the number of failures per success. Odds of 4-1 mean that you fail four times for each success or successful per five attempts. The formula is: Convert percentage to a decimal × by multiplying by 100 and then (1/x -1 = first number of the odds ratio. The second number is one. Let’s take an example of 40% chance of success. What odds ratio is this? 40 ÷ 100

= 0.4

1 ÷ 0.4 = 2.5. 2.5-1 = 1.5 Odds are 1.5-1. Or 3-2. 10.19 At mediations when making a prediction about the outcome at trial remember that everybody is subject to emotions and cognitive biases. Take note of two general tendencies which influence our behaviour and often, distort it. •

Self-serving bias: We calibrate our decisions to promote or preserve our reputations and career goals. This can make us over-cautious. If you don’t make a prediction you can’t make a bad one. Reputation preserved.

•

Optimism bias: we overestimate our chances of success when we want to win.

And remember: mediators are often told by each side’s lawyers that they have a 70% or more chance of winning. One thing is 100% accurate – they both can’t be right.

Optimism 10.20 Most of us are optimists rather than pessimists. Experimental results show that we tend to think that we will experience •

positive events 50% of the time compared to negative events 30% of the time.

•

positive events sooner than negative ones.

Just as with stress, there’s good and bad. Good optimism feeds our self-esteem. We need to feel that we can accomplish things and achieve our goals (see Chapter 6 on Self). 195

10.21  Prediction Bad optimism which leads to optimism bias. Most of us are not aware of our optimistic tendencies. We overestimate our ability to remember and to predict. We underestimate how we can be swayed by factors not connected with what we have to predict.

Mediation message 10.21 Lawyers, as well as clients, are prone to optimism bias. Research shows that lawyers tend to overestimate their chances of success at trial. Both claimant and defendant lawyers when looking at the same set of facts overstated the favourable outcome for their clients: claimants thought they would receive more and the defendants thought they would pay less. In another study where lawyers predicted the outcomes of their cases coming up for trial within the next 12 months: 44% were less successful than predicted, 32% matched and 24% were more successful. Women tended to be more accurate than men. And computers have been even more accurate (see 10.22).

Do we get wiser as we get older? 10.22 Possibly, but we don’t get better at predicting the future. Surveys show that older adults (60–80 years old) are just as likely to see the glass half full as middle-aged adults (36–59 years old) and younger adults (18–25 years old). Optimism cuts across every age group, race and socio-economic category.

Mediation message 10.23 Refusing to make predictions because you know how hard it can be could damage your credibility. Think about some ways of doing it. Pre-mortems/back-casting When looking forward at what could happen at trial, we think about the things that need to go right for us to secure the outcome we want. That is essential but it’s not sufficient. We will still be emphasising our good bits and working out how we need to make sure that our good points and our good evidence are all there. What happens if it goes wrong? Try this: assume that it has gone wrong. We are used to carrying out a post-mortem when something has gone wrong. We lost. How did that happen? Try doing this before you have lost. Imagine you have lost. How did it happen? What went wrong? What could you do now to make sure that those things don’t go wrong in the future? You can identify them. When you work out how you could prevent them you will come up against not only the practical problems of mistake prevention but the realisation that you can’t control everything that went wrong. Back to Regret Theory 196

Prediction 10.26 which tells us that outcomes and our future happiness is sometimes dependent on future events over which we have no control. As Annie Duke says, from the professional gambler’s perspective, your happiness depends on the quality of your decisions and luck. This is the unknowable part of your decision making. And that increases uncertainty. Recall that uncertainty is one of the things that we most dislike having to endure. Keep asking yourself what value you put on securing certainty? How much are you willing to pay for it? One of mediation’s eternal questions. And to help you fix it remember forecasting and back-casting are equally valuable.

All change? 10.24 Will we have ever have to predict again? What about the rise of litigation analytics? Several litigation funders are already using them. The tools use enormous databases of reported judgments. They can tell you what percentage of a particular type of case has been won lost or settled. Even how individual judges have decided similar cases. This makes conversations about possible outcomes more granular. It is, as the well-known mediator and litigator Alex Oddy says, ‘a different calibre of conversation’ with your client. Watch this space!

In a nutshell 10.25 •

To predict is to survive.

•

Information is never complete. Time is often short. Prediction, probability, instincts and short cuts are essential.

•

Forecasting and back-casting: you need to do both to come to accurate assessments.

•

Look at the numbers. Quantify.

•

Watch out for the robots and their predictions.

Answers to questions 10.26 1

Add 40% + 20% = 60%.

2

Multiply 40% × 20% = 8%.

3

Subtract 60%-8% = 52%.

1 Barrett How Emotions Are Made: The Secret Life of the Brain (Mariner Books). 2 Hawkins On Intelligence: How a New Understanding of the Brain Will Lead to the Creation of Truly Intelligent Machines (Non Basic Stock Line). 3 Duke Thinking in Bets: Making Smarter Decisions When You Don’t Have All the Facts (Portfolio). 4 (1894–1986).

197

10.26  Prediction 5

Try the free app at www.disputecalculator.com. This has been developed by two mediators, Bruce Greig and Robin Somerville to help lawyers and mediators do these calculations. It combines the different elements of a claim, each with a different probability of success, into one overall expected value for each party. It was still rough round the edges at the time of writing but it’s worth trying.

Endnotes 1 Barrett How Emotions Are Made: The Secret Life of the Brain (Mariner Books). 2 Hawkins On Intelligence: How a New Understanding of the Brain Will Lead to the Creation of Truly Intelligent Machines (Non Basic Stock Line). 3 Duke Thinking in Bets: Making Smarter Decisions When You Don’t Have All the Facts (Portfolio). 4 (1894–1986).

198

Chapter 11

Perception

In this chapter you will learn •

The different meanings of perception.

•

Why they cause confusion.

•

Which ones are relevant to mediations.

What do you see? 11.01 People often say I won’t believe it until I see it. So far so good – except our brain also believes what it cannot see.

Muller-Lyer illusion The lines are different lengths – the top one is longer than the bottom one. Right? Wrong. They are the same length. Measure them. These are optical illusions. We think we see one thing, but we don’t. They can seem like tricks. You don’t come across things like this in real life. And definitely not in mediations. So, why is perception important?

What about this? 11.02 Stephen Covey the author of Seven Habits of Highly Effective People,1 tells this story of when he was on the New York subway on a quiet Sunday morning: 199

11.03  Perception ‘Suddenly a man and his children entered the subway car. The children were so loud and rambunctious that instantly the whole climate changed. The man sat down next to me and closed his eyes, apparently oblivious to the situation. The children were yelling back and forth, throwing things, even grabbing people’s papers. It was very disturbing. And yet, the man sitting next to me did nothing. It was difficult not to feel irritated. So finally, I turned to him and said, ‘‘Sir, your children are really disturbing a lot of people. I wonder if you couldn’t control them a little more?” The man lifted his gaze … And said softly, “Oh, you’re right. I guess I should do something about it. We just came from the hospital where their mother died about an hour ago. I don’t know what to think, and I guess they don’t know how to handle it either”. Suddenly, I  saw things differently, and because I  saw differently, I  thought differently, I  felt differently I  behaved differently. My irritation vanished. I  didn’t have to worry about controlling my attitude or my behaviour; my heart was filled with a man’s pain. Feelings of sympathy and compassion flowed freely … Everything changed in an instant.’ Seeing is perceiving.

Mediation message 11.03 Some mediators say that Perception is All. For example: Thierry Garby in his book Agreed!2 says that in mediations: ‘We can only work on perceptions. … All we can reasonably expect to do is reconcile the perception … The reconciliation will reside in the acceptation of a different perception and in the work done to understand it’. Paul Randolph says: the single most vital objective of a mediator is to secure an attitude shift on the part of one or more of the parties …The shift of attitude will be fundamentally one of perception’. But many other others apparently don’t give it the same importance. Look at Practical Mediation by Jonathan Dingle and John Sephton.3 There is no mention of it in the index although persuasion, rapport and reality testing are included. It’s the same with Eileen Carroll and Karl Mackie’s book, International Mediation: Breaking Business Deadlock4 and Boulle and Nesic’s Mediator Skills and Techniques: Triangles of Influence.5

Meanings 11.04 In a simpler sense perception is how we see things. That’s not the same thing as perspective or point of view. 200

Perception 11.05 •

Perception is your understanding and/or interpretation of people, situations and the world around you.

•

Perspective is the angle you are looking from – it is your point of view.

•

Perception is what you interpret – it is your understanding of a given situation, person, or object. It is the meaning you assign to any given stimulus.

•

Perspective is your point of view – it is the lens you see the world through and determines how you view yourself, others, and everything else around you.

So, if we have the same information why don’t we see things the same way? In fact, we usually do. The optical illusion above showed that. We all think the lines were of different lengths. What they also show is that we can be mistaken. There was an objective reality: the lines are the same length. Measure them. See for yourself. There is an objective reality. In this case, length. Our immediate response to them was wrong. This is easier to check and to accept when it’s an optical illusion which has been designed to trick us. It’s harder to accept when it’s the other side’s case.

Approaches Psychological 11.05 There is no unanimously accepted explanation of the origins and purpose of perception. For example, the ecological theory suggests that perception is a prerequisite for action. If we didn’t have perception our actions would be unguided. If we don’t have action, perception has no purpose. How do we receive sensory inputs or information about the world and what do we do with them? Although there appears to be a high degree of consensus that we perceive the world in the first instance through our senses, there is not unanimity. For example, the biochemist Rupert Sheldrake does not think that we see things because of light striking our retina but that our eyes send out a force towards external objects. That is why for example, he says, surveillance operatives are trained when following someone not to look directly at the person that they are following. Why not? Because the target can sense that they are being observed from behind. Although his ideas have been dismissed by other scientists. Nevertheless, surveillance operatives are trained this way. You can try it yourself. There are different theories of how we process stimuli and data once we have received them. One that is currently in vogue says that we don’t perceive an external reality but that we construct a mental model. The purpose of the model is to help us predict what to do next (see Chapter 8). What does seem to be agreed is that the processing goes on without deliberate or intentional effort – in other words outside our conscious awareness. But whether this is a passive process with incoming data simply being taken in or it is more active with the data being shaped by what is already happening in our brain, for example our memory or expectation, is unresolved. 201

11.06  Perception More importantly our brain wants to make sense of the data. Hence the optical illusion above. Take this textual example. ‘Pmrie miiestnr olpeny rdueilcis Ldonon myoar oevr leniavg the EU and akctats his leahsedrip aitniboms’ It’s nonsense. Even though the first and last letters were in the same place, as the text says they should be, it’s pretty difficult to decipher. But we can do it. The ‘Prime Minister openly ridicules London mayor over leaving the EU and attacks his leadership ambitions’.

Philosophical 11.06 Others think that the purpose of perception is knowledge. The nature and purpose of perception inevitably leads to disagreements about whether there is an external reality – an objective state of affairs accessible to all. Or whether there are only individuals’ own internal realities based on their mental models. This leads to some mediators like Garby saying that facts don’t really matter; it’s what people think are the facts that matters. Hence the view that it’s all a matter of perception.

Behavioural 11.07 A key question as identified in Chapter 1 is: why do people with the same information not see the same situation in the same way? For some it’s not so much a matter of perception as a matter of misperceptions. Take one example: David Richbell in his book How to Master Commercial Mediation6 under a section headed Perceptions says: ‘what is actually under consideration here are misperceptions. Misperceptions are assumptions that we all make about the people we meet, their appearance, their intellect, their behaviour, and their motivations. Invariably these assumptions are incorrect.…’ This view that we don’t have perceptions just misperceptions is not confined to mediators. Hence the title of a book The Perils of Perception: Why We’re Wrong About Nearly Everything,7 an entertaining and informative explanation of mass delusions and universal ignorance by Bobby Duffy Professor of Public Policy at King’s College London. As he says after years of research and discussion ‘we’re still just as wrong about nearly everything’. If you have any doubts about this try these topical questions. No Googling. You’re on your own. Q1 Is the Great Wall of China visible from space? Q2 Out of every 100 people aged 20 or over how many do you think are overweight or obese? Q3 Out of every 100 people aged 20–79 how many have diabetes in your country? 202

Perception 11.09 For the answers to Q 2 and 3, see the end of the chapter. Answer to Question 1. 50% say it is and they are wrong. Why? Probably they had not thought it through or had misapplied scales. Yes, the Great Wall is big. But so is space. This is another example of our general unease with and lack of instinctive feeling for numbers. Or they may have been told that it was visible. We just have to accept that a lot of what we know isn’t true. And that can mislead us (see Chapter 14 on Truth). 11.08 Our perceptions are fallible. We are all subject to the influences of our situation, our past, our present and our future, our values, beliefs, sources of information and advice. Here are some examples that researchers have found: 1

People who looked at pictures of celebrities who were frowning thought that they were less famous than when they saw them in pictures when they weren’t frowning.

2 A  group of males were told that their heartbeat would be measured while they were looking at pictures of females from Playboy. They could hear their heartbeat while they looked at the pictures. But because the audio was poor, they should ignore the sound of their heartbeat. They heard the heartbeat increase when looking at five pictures. The sound was fake and controlled by the researcher. The men found the women that they were looking at when the sound of their heartbeat increased more attractive. They still found them more attractive two months later. 3

Wine is much loved and studied. In an experiment at the California Institute of Technology volunteers were asked to drink different samples of red wine. They had to lie inside a brain scanner while drinking. They weren’t able to spit out the wine, so they were asked to savour it and swallow it. They were told that they wines ranged in price from $5 to $90 but they didn’t know which was which. They were just told the grape variety and the price which was often false information. As by now you will have guessed, they thought that the wines they had been told were expensive tasted better. A clear illustration of confirmation bias and of expectation influencing outcome. The really interesting thing though was that the part of the brain, the medial orbitofrontal cortex, that is activated when we experience something pleasant was activated when the volunteers were thinking that the wines were top quality ones.

What about mediations? 11.09 The reason that we don’t see the same information in the same way is because we don’t want to. And the reason we don’t want to is because it’s not going to help us get what we want. In other words, we are using motivated reasoning. We are back into the realms of cognitive biases and emotions – the 203

11.10  Perception things that influence our immediate response. Our need to make a quick decision can distort our perceptions (see Chapters 3 and 4).

Are our perceptions unique to us? 11.10 We are using perception in the sense of someone’s understanding and interpretation of a situation. These may be subjective. They may correspond to objective interpretational measurements. They may not. Many mediation commentators, like Garby, claim that they do. We all see things in our own way. None of us can be sure that others who are looking at the same thing as us, see the same thing as us. All these different perceptions are equally valid. At a theoretical level this might be true. But does it matter? On a practical level, no. Many people have the same opinions about things and people. Our route to them might be different but our conclusion is often the same. In any case how would we find out about individual differences in how people see things apart from the opinions they express?

Mediation message 11.11 At mediations you can’t take a case history of everyone else in the room. How they were brought up? Where are they are on the extravert/introvert spectrum? How happy they are in their personal life? During the day you will be told information. You may gain insights. You will form a relationship. Your Point of View (POV) and your perceptions change. If perceptions, or misperceptions, are wrong or at least different from the other side’s how do we reconcile them?

TOP TIP 1 One approach is the transformative mediation technique. Everybody tells a narrative story. People listen to each other’s story and reflect on whether they accept that someone else is holding a different opinion, has a different perspective et cetera. With the help of the mediator some sort of synthesis of the different narratives is achieved. People now see the world differently. 2

Or we change perceptions. Again, you do this by listening and then seeking commonalities. This is easier to do within an assessment framework (see 8.37). Maybe you can identify some overarching shared purpose or objective. People argue with each other because they have a difference of opinion and different perception. Get them to focus on a shared objective. Take the example of parents who are splitting up. Both want the best for their children. That is the overarching common shared objective. Emphasising this will help them realise that they could work together to achieve it. All they have to do is not insist that their opinion is the only 204

Perception 11.12 one. That’s not quite the same as changing their opinion. It’s more making room for the other person’s opinion. 3

Another approach is based on enlightened self-interest. The fundamental principle is that people make decisions for their reasons not yours. So, it’s back to finding out what matters to them. What do they regard as beneficial or helpful in achieving their goals? Having identified what they are, encourage them to put a value on the benefit of the goal. Nearly always that has to be expressed in money. As long as people can see that they are gaining something, even if it’s only buying off a risk, you can help people settle.

In a nutshell 11.12 •

Ask if there is any benefit to settlement. If there is, put a value on it.

•

Move away from arguing points to valuing benefits.

•

Stop trading insults and start trading gains.

•

There are things called facts.

•

There are objective standards and measurements for some things.

•

You can’t get people to change their opinions and beliefs. You can get them to reassess their: • Options • Chances • Priorities

Answers to Q2 and Q3 in 11.07 Here are the results for three countries. Many more were surveyed. Most got the wrong answer. For a fuller explanation and the answers for lots more countries, see Duffy, The Perils of Persuasion, at p 34. Average Answer %

Real Answer %

Brazil

47

56

US

50

66

UK

44

62

Q 2 Obesity

Q3 Diabetes Brazil

47

10

US

34

11

UK

27

5 205

1 Covey Seven Habits of Highly Effective People: Powerful Lessons in Personal Change (The Free Press). 2 Garby Agreed! Negotiation/Mediation in the 21st Century (ICC Publishing, SA). 3 Dingle, Sephton Practical Mediation: A Guide for Mediators, Advocates, Advisers, Lawyers and Students in Civil, Commercial, Business, Property, Workplace, and Employment Cases (Law Brief Publishing). 4 Carroll, Mackie International Mediation: Breaking Business Deadlock (Bloomsbury Professional). 5 Boulle, Nesic Mediator Skills and Techniques: Triangles of Influence (Bloomsbury Professional. 6 Richbell How to Master Commercial Mediation (Bloomsbury Professional). 7 Duffy The Perils of Perception: Why We’re Wrong About Nearly Everything (Atlantic Books).

Chapter 12

Money

In this chapter you will learn about: •

How mind traps and emotions influence our behaviour towards money.

•

Why this is so important for mediations.

•

How money can be the problem, the solution and the language of settlement.

•

Mind traps and emotions that come into play: Anchoring, priming, endowment effect, hyperbolic discounting, sunk cost fallacy, loss aversion and zero risk bias. Guilt, greed, triumph, jealousy and envy.

Is money important? 12.01 What a crazy question. Of course, money is important to us all and especially to those engaged in disputes. That’s what they are arguing about. Or is it? Clients and their advisers tell mediators and each other: •

‘It’s not just the money.’

•

‘It’s not about money: it’s a matter of principle.’

•

‘It’s not even the money. I just want to teach them a lesson.’ Or

•

‘It’s just about money. There’s no emotion in this.’

Mediators often tell themselves and each other: ‘It’s never about money.’ The implication being that there’s always some hidden agenda. Through skilful and sensitive questioning, the mediator will uncover it (see 12.06). 207

12.02  Money

Mediation message 12.02 Not everyone agrees that money is important at mediations. We know that in life outside dispute resolution people have different attitudes towards money. For some it’s everything: for others it’s nothing. But one thing definitely is true: money is a constant at every mediation. There’s never been a mediation where money wasn’t mentioned and there never will be. Money may not be the cause or even the subject matter of the dispute. But parties always at some point talk about what it’s cost them so far. They refer to professional fees and in particular legal costs. They also mean the opportunity cost to them of lost time and increased aggravation on which they can put a monetary figure.

What is money? 12.03 Is this another crazy question? Potentially it’s a deeply philosophical one. When you reflect for a moment, you realise that money is a mysterious concept. As the historian Yuval Noah Harari points out in his book Sapiens,1 money ‘was a purely mental revolution. It involved the creation of a new inter-subjective reality that exists solely in people’s shared imagination’. Now, while that is a penetrating and illuminating definition, only a very daring and brave mediator would talk about creating a new inter-subjective reality when discussing quantification of loss at mediations. Harari nails another key point which has profound implications at mediations. ‘Money is accordingly a system of mutual trust, and not just any system of mutual trust: money is the most universal and most efficient system of mutual trust ever devised.’ We talk about trust in Chapter 16. The psychologist Claudia Hammond, in her book Mind Over Money2 says: ‘…we are profoundly psychological beings – it is our minds that make us what we are – and money is a mental construct, that doesn’t exist beyond our idea of it, but on which we now depend for most of the things we need to live’. We can accept philosophically that money is a mental construct with no real value, function or importance except what we give it. But in practice money influences our behaviour at mediations and often dominates it.

Why is money important? 12.04 The answer can be found in its different uses. Money can be: 1

A means to an end With money you can: 208

Money 12.05 •

Acquire assets – buy things you want, things that you think will improve your life or make you feel better.

•

Get rid of liabilities – make your life problem free.

2 A weapon With money you can: •

Exercise power.

•

Punish others.

•

Exert pressure.

3 A measure With money you can: •

Keep score: how much do you have compared with how much they have.

•

Quantify losses, gains, costs and benefits.

•

Set prices and measure value.

4 A language •

Negotiations may open by using words and disputes might be defined verbally, but the language of settlements is money.

•

Offers are the vocabulary. ‘Let’s talk figures.’ say the clients. And most negotiations at mediations end with money.

•

Risk reward calculations translate percentages into money.

5 Reassurance Money: •

Confers status.

•

Provides security – you can buy protection.

•

Insulates us from the aggravations of life.

•

Or as the writer Terry Pratchett3 says: ‘It’s a way of keeping score’.

6 A solution •

Money may not be the root of all evil or even the cause of all disputes. But it is the universal solution.

•

Legendary mediator Bill Wood has formulated his First Law: ‘Never underestimate the healing power of money’ (see 8.43).

Why are we so shy about money? 12.05 Traditionally at mediations we don’t talk about money in any detail until late in the day. The early part of the mediation day is spent talking about evidence, facts, perceptions, legal cases and legal analysis. We move through emotions, feelings, excuses, explanations and rationalisations. Only then – after about six hours – do we start talking about money. There are various reasons that lead us to be reluctant to talk about money early on. 209

12.06  Money

Scoping the discussion. 12.06 What’s the dispute about? You need to find out first – what’s the key issue that has to be sorted out? Is it a big number either in relative or absolute terms? Take some examples: •

Your car has been stolen and you make a claim against your insurance company. You’re trying to agree a figure for compensation.

•

Your roof is leaking and you need to confirm the cost of the remedial works – which depends on the scope of the works.

•

In a shareholder’s dispute, one shareholder wants to buy out the other. What is the value of the shares?

But many mediators say that this will only be the surface dispute. The real dispute is about relationships, values and unmet needs. That may well be. In practice the expression of them is nearly always in monetary terms (see 12.04).

Are we talking price or value? 12.07 They are not the same thing. As Warren Buffett says: ‘Price is what you pay. Value is what you get’. Economists describe money as a store of value. They usually mean value in the sense of its potential – what you can do with it – in fact what you can buy with it. In other words what is the benefit to the client of settling? What value does that benefit have? Getting these two questions clear helps you work out the price. And remember that when we talk about price what were really talking about is the exit price. What it is worth to the parties to pay to get out of the dispute.

Do you know what you want to buy? 12.08 We are not all the same kind of purchasers. Academics have devised various taxonomies. Take the well-known one devised by American psychologists Goldberg and Lewis in 1978. Have a look at what your attitude towards money really is: 1

The freedom buyer – if you have money, you have independence and control. Nobody can tell you what to do.

2 The freedom fighter – you disapprove of the way which some people are constrained by not having money. You think it should be shared more equally. 3

The compulsive saver – you save money whether you need to or not. You are not saving for a purpose.

4

The self-denier – you spend money on others not yourself. You are exceptionally frugal and thrifty. Generally, you have a pessimistic mindset and don’t want to spend money if you don’t have to.

5 The compulsive bargain hunter – you only want to buy things that are discounted. You never want to pay full price for anything. 6

The fanatical collector – you don’t collect money. You collect the things that money can buy and you never want to get rid of them. 210

Money 12.10 7 The love buyer – despite received wisdom you think that you can buy love. And that’s what you do by being generous. 8 The love-seller – you’re kind and generous to people. You only go out with people who are richer. If they fall on hard times, you drop them. 9 The love stealer – this is the sort of public figure who says they love their audience but secretly despises them. 10 Manipulator – for you, money is a means of getting power. You exploit people or even steal from them and you’re not wracked by guilt. 11 The empire builder – you want to be top dog. You really like being in control and do not like being told what to do or having your decisions challenged. 12 The Godfather – you bribe people. Provided that they do what you want, you are nice to them. So, are you a freedom fighter, a love stealer or an empire builder? This sort of analysis is all very entertaining. If you have enough time at mediation, you can observe the various participants displaying behaviours which fall into these categories. And you will see them all.

How do you see money? 12.09 Our attitude towards money is determined by how we look at it. Remember Thaler’s theory of mental accounting (see 4.09). This says that we tend to put money into different mental ‘accounts’. It defines mental accounting as the set of cognitive operations we use to organise, assess and track our financial decisions. Our attitude towards money is influenced by how we got it. We have different mental accounts. For example, we will treat money that we received by winning the lottery differently from money that we have earned. That also influences our spending decisions. If money has come to us easily through a lottery win, we might treat ourselves. If we earn the same amount through hard work, we might save more of it. In a similar way buying things online using a credit card appears cheaper than paying in cash. Say you have a holiday account. You don’t mind spending money from it when you are on holiday. So, you will pay £20 for a gin and tonic in the hotel bar by the beach. You wouldn’t pay that in a pub at home. You can buy a bottle of gin for less.

How to price 12.10 What do we do when we price something? How do we decide whether something is too expensive? We tend to do this by relative pricing. We contrast. This is why shops display £100K handbags and restaurants have £20K bottles of wine. This is decoy pricing. They don’t expect anyone to pay these prices or buy these goods. They are there to make the things that they do want you to buy look cheaper. It’s a form of anchoring (see Chapter 10). 211

12.11  Money

How to value? 12.11 We have the time value of money. Will £10K be worth the same to you in a year’s time as it is today? The basic principle is that money is worth more to the recipient today than it is in the future. You can work out the future value of a sum of money, ie what interest would have to be earned and what inflation rate is assumed. You can also work out the present day value of a future payment (see below). But the value of money changes.

It’s contextual 12.12 The big question is: is it your own money or not? The claims director of an insurance company, the loans officer from the bank, the HMRC collector are not dealing with their own money. They will say that they are dealing with money on behalf of their policy holders, shareholders and taxpayers. They are correct. But they don’t have the same relationship towards money as for example the spouse cut out of their life partner’s will, the owner-run SME business which needs the money to avoid insolvency or the property owner who has run up thousands of pounds of legal costs just to get their neighbour to put the fence back where it should be.

It’s temporal 12.13 You can work it out. There are well-known formulae. Time Value of Money Formula The most fundamental TVM formula takes into account the following variables: •

FV = Future value of money

•

PV = Present value of money

•

i = interest rate

•

n = number of compounding periods per year

•

t = number of years

Based on these variables, the formula for TVM is: FV = PV × [1 + (i / n) ] (n × t) Examples Assume a sum of £10,000 is invested for one year at 10% interest. The future value of that money is: FV = £10,000 × (1 + (10% / 1) ^ (1 × 1) = £11,000 212

Money 12.15 The formula can also be rearranged to find the value of the future sum in present day currency. For example, the value of £5,000 one year from today, compounded at 7% interest, is: PV = £5,000 / (1 + (7% / 1) ^ (1 × 1) = £4,673 A useful free app is gigacalculator.com.

Mediation message 12.14 People at mediations rarely carry out these calculations. Some do; especially if there are big numbers involved and actuaries or investment analysts are present. The legendary UK based American mediator David Shapiro used to take discount tables with him to mediations and work out with the parties the value of money. What we do is to rely on a short cut such as hyperbolic discounting – see 12.33. The time value of money can be important when structuring deals. Especially where money is being paid over time. Both the payer and the receiver have to work out the cost to them. In times of low interest rates and low inflation what you are really looking at is opportunity cost. What will you not be able to do without the money? How valuable is that to you?

TOP TIP •

Don’t forget opportunity gain. What can you do with the money? How valuable is it to you to be able to do that?

•

These questions are just as important as: –

Who is the judge likely to believe on this contested point?

Or –

Whether you will recover 80% or 75% of costs if you win at trial.

It’s relative 12.15 Take this example. You are on holiday and want to hire a bike. You see one shop offering a day’s bike hire for £30. It’s next to your hotel. You see a second shop advertising the same thing for £15. It’s a ten-minute walk away. Would you take the trouble to go to the second shop? You probably would. You save £15 which is another day’s bike hire. You come home and want to buy a car. In the nearby garage they offer the car that you want for £10,200. In a second garage, a five-minute drive away they are offering the same car for £10,185. Would you drive to the second garage to save £15? Probably not. 213

12.16  Money We tend to look at the proportion of the saving to the overall cost, not the absolute sum itself. Or at least we do if we are relatively well off. Very poor people don’t. Experiments show that they will make long and inconvenient trips to save money whether it’s a proportionally large amount or not. It’s the sum itself which is important to them. Even affluent people act differently in some circumstances. In one experiment people shopping for a blanket were asked this question. The shoppers are expecting to pay $50 for a blanket. The first shop’s ticket price is $75. In a second shop, a five-minute drive away, the same blanket is offered at $60. Would they make the trip to save $15? The answer was yes. The difference was their expectation. They were expecting to pay $50. A price of $75 was a 50% increase. That was too much to contemplate.

Mediation message 12.16 We see this at mediation. £100,000 can be a life changing amount to some: a drop in the ocean for others. There are often financial imbalances between the parties. These imbalances can affect the negotiation and the outcome. The question is: will they affect the litigation and the outcome at trial to the same or a greater or lesser extent? And outcome doesn’t just mean the court’s decision – it means the consequences of the decision as well. After all it’s not just the risk you have to quantify, it’s the impact as well. It’s not just how likely I am to lose but also how bad will it be if I do. This helps fix the exit price. (12.07)

Can money buy happiness? 12.17 Given that we decide to do things that we think will make us feel better, ie make us happier this is a vital question (see Chapter 6). A conventional view is that: Poverty makes you unhappy. Once you are out of poverty you become happier as your wealth increases but only up to a point. After a point having more money doesn’t make you happier. The cross over point varies from country to country. In 2020 in the UK it stands at an annual income of about £64,500. After that the hedonic treadmill starts. That’s our tendency to quickly return to a base level of happiness despite major positive or negative life events. Bear in mind that the median household disposable income in the UK was £30,800 in the financial year ending 2020, based on estimates from the Office for National Living Costs and Food Survey.

Mediation message 12.18 In mediations, as mediator you need to find out what is the acceptable figure that the payer is willing to pay (WTP) and the receiver is willing to accept (WTA). No one will tell you. They will announce their bottom lines. What they are 214

Money 12.21 much more reluctant to do is disclose the figure that psychologically leaves them intact – they don’t want to feel worse than they do now because they have agreed that figure. This hidden figure is their reference figure.

One way to approach this is through simple but basic cost analysis. If you settle today for £500K you will have £425K in your pocket after deducting all the expenses. You are claiming £1m. Will you see that as less than half of what you think you are entitled to? How will that feel? There are three key points.

Loss of face is a painful loss 12.19 No one wants to be worse off than if they had never started the litigation. If the claimant thinks they have suffered loss they will not want to see that they have increased that loss because of their actions. They will feel foolish, humiliated and lose face even if only to themselves. They will also look at who they can blame. In smaller value cases the legal costs are the anchor. Offers are sometimes made to the receiving party that don’t even cover their costs to date. Or that will leave them in a claim for £50K with only £10K after paying their costs. The sunk cost fallacy is important there (see 12.35). Paying parties do have to take that into account. Why make such offers? (See Chapter 17 on The Psychology of Offers.)

Losing hurts more than winning heals 12.20 Experiments by Kahneman and Tversky, amongst others, have established that as a general rule when you suffer a loss it feels twice as bad as the pleasure you feel when you gain something. The pain is twice as bad as the gain. To make someone happier than they are you have to increase the amount that you pay them by a power curve factor. If paying someone £1m will make them happy, paying them £2m will not make them twice as happy. You have to pay them about £4m. This is the power curve.

Comparisons count 12.21 Imagine going to a casino with a £500 stake in your pocket. It’s your lucky day. After 20 minutes you have £1,000 and you still have your original £500. How would you feel? Do you stop or carry on playing? You carry on. You lose the whole £1,000 that you had won. How do you feel now? You still have your £500. How would you feel if you had lost £1,100 or £900? Better or worse or the same? Do you stop or carry on? You carry on. By the end of the evening, you have lost £1,500 – your £1,000 winnings and your £500 stake. How do you feel? 215

12.22  Money It’s hard to predict how you would feel. But feelings about money are powerful and drive our decisions. Professor George Loewenstein is an American behavioural economist who has investigated inter-temporal choices and affective forecasting (see Chapter 10 on Prediction). He developed the theory of hot and cold empathy gaps (see 8.09– 8.10). This says human understanding is ‘state dependent’. When you are angry you find it difficult to understand what it is like for you to be happy, and vice versa. This is important when working out value. As Lowenstein says: ‘Today’s pain, hunger, anger, etc are palpable but the same sensations anticipated in the future receive little weight’.

Mediation message 12.22 This is why clients at mediation should be encouraged to think ahead about what their life is like now and what it will be like if they settle today or if they don’t. Will it be better or worse? Be careful about relative value. When talking about smaller sums of money, try not to convey the impression that they are too small to worry about. Especially when as mediator you could be being paid more for a day’s work than a client earns in a month, let alone a week.

Timing 12.23 Back to the question of why money is often not discussed until late in the mediation day. One of the reasons is that some mediators and many trainers think discussing money early is dangerous. Money myopia can develop. Your focus becomes too narrow. You get tunnel vision. Better, they say, to fully discuss issues and emotions before money and take a broader view. The argument goes like this: 1

One of the big advantages of mediation is that it gives parties the opportunity to be creative. By concentrating on money other potentially helpful ideas and solutions could be overlooked. There is no doubt that this can happen. This is particularly true where there are non-monetary elements in the dispute that can be put into the settlement mix.

2

Money is often the most difficult item to agree. Therefore, park that and work on agreeing the rest. This builds a sense of momentum and co-operation. Again, this approach does work.

But take note: 1 Clients, as opposed to mediators and lawyers, are not so reticent when it comes to talking about money. They want to know whether they are wasting their time being at the mediation. One way of finding out is by exchanging offers. To do that money has to be discussed. 216

Money 12.25 2

Clients often say if we can sort out the money, we can sort out the rest. Let’s agree the headline figure first, then work out the details. Usually there is a trade-off between monetary and non-monetary items. Both parties look at the settlement package. They may be unhappy with individual items but does the settlement make sense for them overall?

3 There are dangers in parking the subject of money. You make progress on all sorts of other issues only to run into a road block over money. Often, it’s legal costs. Clients don’t react well when they learn that the effort they’ve put into agreeing the other issues is wasted. The money obstacle was too big. On balance put all the issues on the table. This avoids lots of time and effort being spent on a fantasy. It’s best to find out that there’s no money to fund the settlement before lunch rather than after midnight.

TOP TIP Recoverability is often an issue at mediations. Mediators and receiving parties need to find out early on if it’s a case of won’t pay or can’t pay. Paying parties who are pleading poverty need to frame the discussion – show everyone that you can’t pay even if you wanted to (see 12.34).

Know your client 12.24 Time spent chatting with your clients about themselves is not wasted. You don’t need to spend all your time taking instructions on the facts as they recall them. Spend time learning about what they are proud of – this will reveal their values and priorities and give an idea about their approach to money. When people tell you that they worked hard all their lives to build their dream house and are not going to give up the right of way or move the boundary you can guess that for them money is about security and autonomy.

Mediators 12.25 Ask clients early on what shape a settlement has to have for them. Explain that you are not asking for proposals you just want to see what boxes have to be ticked. Be aware of the mediation money paradox: All mediators are told by their trainers and many also echo that •

When the parties tell you it’s just about money, it isn’t. 217

12.26  Money •

When the parties tell you that it’s not about money, it is.

In fact, empirical observation and field research at civil and commercial mediations suggests that: •

When mediators tell you that disputes are never about money, they are wrong.

•

When the parties tell you it’s just about money, it is.

•

When the parties tell you it’s not about money, it is.

That doesn’t mean that emotions are irrelevant at mediations. They influence people’s attitudes towards money. So do cognitive biases (see Chapter 4).

Mediation mind traps: money Anchoring 12.26 The tendency to rely too heavily or (anchor) on a past reference or piece of information when making decisions. We all do it all the time. It’s a variation of the rule that first impressions count, stay with us and influence our eventual decisions. In essence it means that whatever we learn first influences how we interpret later information and how we eventually process that information to arrive at a decision. The metaphor comes from sailing. You moor your boat and put the anchor down. The boat will gradually drift towards the anchor. Negotiation research has shown that the person who makes the first offer usually does better. If, for example, you say we want £1m all further discussions about figures will be under the shadow of that £1m figure (see Chapter  17 on The Psychology of Offers).

Priming 12.27 Once again Kahneman and Tversky carried out some significant experiments. They had a roulette wheel with numbers 1 to 100. They doctored it so that no matter how you spun it, it always landed on 15 or 65. First, they asked the participants in the experiment to spin. Then they asked them to guess how many African nations were in United Nations. None of the participants knew what the real answer was. They had to guess. They did not know that the wheel was rigged. The findings showed that those who had spun and landed on 15 guessed about 25% of what those who had landed on 65 guessed. We all know how car salesman and traders in souks operate. They show you the list price or mention a high normal figure before starting to offer you a discount. 218

Money 12.29 You get sucked into the discount, thinking it is more attractive because it’s so much lower than the original opening figure. You estimate value by the figure that you were first given. We all have to start somewhere. We cannot guess or estimate in a vacuum. We need a reference point. Anchoring can provide one. Another experiment showed how people are influenced in their demands for payment. Researchers offered a group either $90 or $10 to listen to an awful electronic noise. After they had listened to it once they asked the people how much would be the lowest price they would need to be paid to listen to that awful noise again. Those who had been offered $10 say said that it would take $33 to continue. Those who had been offered $90 said that it would take $73 to continue. At mediations you will see the anchoring and priming effects operate in different ways.

The first offer 12.28 For more discussion see Chapter 17 on The Psychology of Offers. Parties are often reluctant to make the first offer. ‘No, we’d like to hear from the other side first.’ ‘We think that since they’re the claimant they ought to make the first offer.’ ‘They are the defendant and the paying party they should make us an offer first.’ When asked why they don’t want to make a first offer they say things like: ‘We don’t want to enter into a Dutch auction’ or ‘We don’t want to bid against ourselves’.

TOP TIP Explain to them that they are ignoring the effects of anchoring. In fact, you are usually better off making the first offer and setting the tone for all subsequent negotiations.

Endowment effect 12.29 We demand more to give up an object than we would be willing to pay to acquire it. In other words, we value something more highly as soon as we possess it. Recall the mugs experiment at 4.07. You see this all the time at mediations. For example, shareholder disputes always expose differences of opinion about the value of the shares. Some of that is inevitable. The seller wants to receive as much as possible and the buyer wants to pay as little as possible. Apart from greed there is this tendency to value something that you own more highly than something that you don’t own. 219

12.30  Money At mediations clients say: ‘I cannot agree to transfer my shares of £2m. They are worth much more than this. I  know that the company is only valued at £10m which makes my 10% shareholdings worth £1m but they are worth more than that to me’. Or ‘I know that I offered to buy his 50% shareholding for £2m but I will not sell my 50% shareholding to him for £2m. It’s not enough’. In boundary disputes the person who has to give up some land or a right-of-way finds it much harder to reconcile themselves to the fact that this is the best solution to the dispute. This applies even when they gain an advantage such as a lot of money, the grant of an alternative right of way or an amended restrictive covenant to allow them to build on retained land. The endowment effect helps explain why the psychology of the paying party’s room is different from that of the receiving party’s room (again, see Chapter 17 on the Psychology of Offers). Research shows that people who think that they are losing something or facing a loss are more likely to take a riskier decision than those who think they are gaining something. Here’s a well-known example to test people’s appetite for risk and also their consistency bias. Again, it comes from the research of Kahneman and Tversky.

Scenario One 12.30 You have £1,000. You are offered two choices. •

Option A – you have a guaranteed extra £500. A 100% chance. Or

•

Option B – you have a 50/50 chance of winning an extra £1,000.

Which would you take?

Scenario Two 12.31 This time you have £2,000. You have two options: •

Option A – a guaranteed loss of £500. Or

•

Option B – a 50/50 chance of losing £1,000.

Which would you take? Most people in Scenario One take Option A. Most people in Scenario Two take Option B. This is inconsistent. If they wanted to secure their upside in Option A by taking the guaranteed extra £500 and ending up with £1,500, they should have taken Option A in Scenario Two. That would have left them in the same position having taken 220

Money 12.34 the guaranteed loss of £500 and ending up with £1,500. They would be securing their downside.

Mediation message 12.32 Most people prefer to gamble when facing a loss. This sort of approach to decision-making drives insurance companies’ actuaries mad. This is not just the endowment effect: giving up something you have is harder than giving up something that you don’t yet have. There’s another influential bias called loss aversion (see 12.39). Bear this mind when discussing offers with the paying party.

Hyperbolic discounting 12.33 The closer a reward is to us the more we are prepared to pay for it. This is linked with present bias which is the tendency to prefer smaller, more immediate, rewards to larger longer terms ones. Recall the example in Chapter 4. Which of the following options would you choose? •

Option A – £1,000 in 12 months’ time.

•

Option B – £1,100 in 13 months’ time.

Most people choose option B. Which of these options would you choose? •

Option A – £1,000 today in cash. The sunk cost fallacy is very here important there (12.35).

•

Option B – £1,100 in a month’s time. Most people choose option A.

It is inconsistent. The reasoning goes: ‘I  have already waited 12 months and so another month doesn’t matter.’ This contrasts with: ‘I can have my money now’. The power of now cannot be overestimated.

Time and money 12.34 At mediations the timing of payments is often discussed and a lot of mind clearing is needed on both sides to see the real value of money. The paying party frequently underestimates the drawing power of cash. This really shows up when constructing settlement proposals. During negotiations there is often a trade-off between less money now and more money later if the paying party is given time to pay. Also, parties compare an outcome achieved by negotiated settlement today with the outcome by litigation at a trial in a year’s time. This can reveal the difference in the time cost of money. 221

12.35  Money Ask is it better to receive money sooner rather than later? What can you do with it if you get it now? These are important questions. They help sharpen thinking about the value of benefits which is often surprisingly underdeveloped at mediations. Recall opportunity gain in 12.14. If you want time to pay, make sure that you bring evidence to the mediation that shows that you can’t afford to pay right now but that over time you could pay. Be ready with details of the security that you could offer. The more you have worked this out in advance the more chance you have of getting your proposal accepted. This helps to combat the tendency which we all have to underestimate the risks of things we want and to exaggerate the risks of things we don’t want. If the receiving party reluctantly accepts less than they want and faces having to wait for instalments they will dwell on the risks of you defaulting. To avoid that, bring your supporting material (see Chapter 5).

Irrational escalation (aka sunk cost fallacy) 12.35 This is another very common tendency both in business and life as well as in mediation. What is it? It’s the inclination to carry on doing something even when the reasons for doing it have changed or new information has become available that means the original reasons are no longer valid. This bias is sometimes referred to as throwing good money after bad. You invest money time, effort, reputation and emotion into doing something. People say: ‘We are reluctant to write off that investment. What a waste. We get nothing for it’. That is only partly true. What you have is a learning experience and some lessons for the future. You have been able to work off some of your emotional frustrations along the way, test driven ideas and realised they don’t work as well as you thought they would.

Fancy a weekend in Paris? 12.36 Take a moment to consider what wasted means in these circumstances. Try this example which Tim Harford gives in his book Adapt.4 You decide on a romantic weekend with your spouse. You have both been looking forward to it. You book the hotel and buy the tickets on Eurostar. The day before you are due to go your spouse goes down with a heavy cold. They’re feeling rotten. Should you cancel? Your spouse says ‘no’ – they are sure that they will feel better the next day. The next day the cab arrives and off you go to St Pancras. As you get there your spouse starts to feel bad again. In fact, they feel worse. You are on the concourse at St Pancras looking at the departure board. What do you do? The reasons for going to Paris are to enjoy a romantic weekend with a nice hotel and a special meal in one of your favourite restaurants. If you get on the train, will you be able to do those things in three hours’ time? No. Your spouse will not feel well. Even if they are very brave, dinner won’t be an enjoyable romantic evening. The reasons for going have disappeared. The money that you have spent on booking the hotel and the train tickets has gone. If you don’t cancel you will have a miserable weekend. You will be disappointed and you will spend even more money. Your spouse might even feel worse. If you 222

Money 12.37 cancel, you go back home, put your spouse to bed and look after them. They will feel better. And a bonus, you will feel better because you’re doing them a kindness. Cancelling and going home is a better use of your time than boarding Eurostar and enduring an unromantic flu-ridden weekend in Paris. What value do you put on your time? And what’s more instead of feeling a warm glow for having done the right thing you will just have disappointment. In the words of Daniel Kahneman: ‘You have to learn to make peace with your losses’. Don’t chase them. Back to the romantic weekend. If you had packed your bags to go to Paris, booked the hotel and restaurant and were waiting in the ticket hall at St Pancras to buy your tickets and someone came up and offered you two free tickets, would you get on the train? If your spouse is feeling wretched you wouldn’t. That’s the way to look at losses. They are gone. Sunk costs are sunk. Trying to refloat them will simply make them bigger.

Mediation message 12.37 You see a lot of sunk cost fallacy thinking at mediations. The most obvious manifestation is over legal costs. ‘We’ve already spent £75,000 on this case. It will only cost another £25,000 to go to trial. We might as well go to trial’. Well, that depends. Look at the figures and do some calculations. How do you estimate your chances of winning at trial? It has to be acknowledged that sometimes the chances of a favourable outcome do make spending another £25,000 a sensible bet. But don’t be under any illusions. It is a bet. And the nature of betting is that you can win and you can lose. Remember what Annie Duke said about the things that determine your life: luck and the quality of your decision making (see Chapter 10).

Less obvious, but still very common, manifestations of this same fallacy are when reputation or status have been invested in the dispute. In commercial disputes you often see tensions in the negotiating team. There are the people who were involved in the situation that led to the dispute and there are those who come in later to clear up the problem. The latter can more easily recognise the sunk cost fallacy and decide to cut their losses. They have no skin in the reputational game. The others do. They have given their explanation to management which underpins the decision to fight this claim. They have provided instructions and information to the lawyers who have advised that the case should continue. If things go wrong, they are in line to be blamed. It’s self-serving bias again (see Chapter 10). Lawyers invest their reputation. They give advice. They find it as hard to change their mind as everybody else. Senior lawyers find it easier. They have more self223

12.38  Money confidence. They have made a name for themselves. For those still trying to make a name for themselves it’s more of a problem. What about clients who are their own bosses? Cutting their losses is easier for them, isn’t it? They are not accountable or answerable to anybody except to themselves. Not necessarily. ‘I couldn’t live with myself if I agreed to this.’ We are all accountable to ourselves. We all have a self-image that is made up of our past experiences, opinions, values, ambitions and desires (see Chapter 6 on Self). We also like to be consistent (see 14.35 on consistency bias). Loss of face is linked with this. This usually means loss of reputation or loss of status in someone else’s eyes, not in your own. And this can lead to principles being brought into the equation.

It’s a matter of principle! 12.38 Sometimes the sunk cost fallacy is expressed as a matter of principle. Lawyers’ hearts are torn when they hear these words from a client. Their hearts beat faster because the client is carrying on and income will continue to flow. Their hearts sink because lawyers know the client will never accept their advice and will always be disappointed at trial whatever the outcome. No one leaves a court case unscathed. Having a sinking heart that’s racing at the same time is a disorientating experience. Trial always cause some collateral damage whether it’s irrecoverable fees, a humiliating experience in the witness box, critical remarks from the judge in an otherwise favourable judgment, for example the critical remarks about Barclays Banks and some of its directors in PCP Capital Partners LLP v Barclays Bank Plc .5 Or the sleepless nights which cause the parties to be bad-tempered and snap at their spouses. Sometimes the outcome is still worth it. Often, it’s not. Mediations are damage limitation exercises – at least for one of the parties and usually for both. And don’t forget disputes change. Is it still worth carrying on? New information becomes available. Priorities shift. Resources are limited and have to be allocated elsewhere. Feelings don’t stay the same. The case that you start with when you issue your claim is not the case you have when you open at trial. Cases get bent out of shape. The reasons for starting litigation are rarely the same as the reasons for continuing with it. In simple terms as a client, you are cutting your losses. Sophisticated analysts say that not making a loss is the same as making a profit. This doesn’t sound credible but in both cases, you have more money.

TOP TIP •

Mediators try to find a dignified exit for the parties. Advisers should help the mediator and their clients to look for the exit. And clients and advisers should recognise when the exit is shown to them.

•

Being aware of the sunk cost fallacy and deliberately asking how it applies to your particular case will be very instructive. Do the maths. 224

Money 12.41

Loss aversion 12.39 This tendency reflects the fact that the pain of losing something is more than the pleasure of gaining something. Researchers found that the pain is twice as strong as the pleasure (see 12.20). Loss aversion is linked with the pseudocertainty effect which is a concept from prospect theory (see 4.07).

Pseudo-certainty effect 12.40 This is the tendency to perceive an outcome as certain when in fact it is uncertain. Often seen in multi-stage decisions where an evaluation of outcomes in a previous decision stage is ignored when choosing an option in subsequent stages. Both can be illustrated by another example from Kahneman and Tversky. They called this the Asian disease problem. Imagine that United States is preparing for the outbreak of unusual Asian disease which is expected to kill 600 people. Two alternative programmes to combat the disease have been proposed. Assume that the scientific estimates of the consequences of the programmes are as follows: •

Programme A – 200 people will be saved.

•

Programme B – there is a one third probability that 600 people will be saved and a two thirds probability that no people will be saved.

Which option would you choose? In another version of the problem the outcomes of the programmes are framed differently. •

Programme C – 400 people will die.

•

Programme D – there is a one third probability that nobody will die and a two thirds probability that 600 people will die.

In the first version a substantial majority of people choose programme A. They prefer the certain option over the gamble. In the second version a large majority chose to gamble, ie they chose programme D. Look again at the two versions. The consequences of programmes A  and C  are identical. The consequences of programmes B and D are identical. This example also illustrates framing bias (see 14.38).

Zero-risk bias 12.41 The tendency to prefer to eliminate risk completely not just reduce it. For example, take a vaccine with two side effects. Is it better to eliminate the risk of one while leaving the risk of the other untouched even though reducing but not eliminating risk on both would lower the overall risk? 225

12.42  Money Other cognitive biases are involved here such as framing, our preference for winning much more than losing, and a tendency to think in terms of proportions rather than absolute numbers – a larger reduction in the proportion of deaths is better than a bigger reduction in actual deaths. 12.42 This is reinforced by neglect probability. This is the tendency to concentrate on the magnitude of the impact of the event instead of concentrating on the likelihood of an event. At mediations people say: ‘But if I win at trial they will be ruined. They have ruined me so I will ruin them’. They seem to say this even when they have been told that the chances of winning a 50/50 or 60/40 at best.

TOP TIP When considering a proposal always flip it in your mind. What does it really mean for me? What if it was the other way round? For example, when someone offers to buy your shares, ask yourself could I buy theirs instead? This helps put things in context even if you decide not to which is part of the process of producing an assessment of the overall situation (see 8.37–8.42).

Money-related emotions Guilt 12.43 Does guilt have any place in mediations? After all mediation is not about deciding who is right or wrong and apportioning blame. That is what litigation is about. Judges do that: mediators don’t. But do people attend mediation feeling guilty? They might but they are not readily going to admit it to you as mediator or to the other side. They might admit it to themselves but probably not even to their advisers. The preferred word is liability rather than guilt. Even though liability usually means paying out money, that’s the origin of the word guilty. It’s from the Old English gielden to pay which is traced back to the German word Geld which means money. On the other hand, aggrieved parties often want to apportion blame. Piling on the agony and the multiple instances of wrongdoing to induce a guilt trip is a recognised negotiation tactic. Sometimes it works. 12.44 The well-known construction mediator and arbitrator Robert Gaitskell tells the story of a mediation about a fatal accident claim arising out of an incident on an oil rig. The insurers were disputing liability and arguing amongst themselves about who might have to pay what share. 226

Money 12.46 At the mediation there are five insurers and their lawyers. The claimant walks in. She is the widow. She has not brought any lawyers, but she has brought her three children. The insurers are looking a bit uncomfortable. She reaches down to her bag and takes a photograph of her husband and places it on the table. The insurers are now decidedly uncomfortable. She says in a low calm voice that she has come here to say that all she wants is justice for her dead husband and his children. By now the insurers are squirming. She finishes. They thank her and ask her to leave so that they can discuss things. The case is settled with a significant pay-out in record time. Moral blackmail? Guilt? Atonement? Who knows? It worked. 12.45 Here’s another more common type of example. There was a 1975 Act case. The widower was not divorced but estranged although still living with his wife at the time of her death. His wife left everything to her daughters. Early on they had mentioned that he had not sent a card or flowers, paid anything towards the funeral or even attended. They were disgusted by his behaviour. They told the mediator not to mention it. They didn’t want to inflame things. But in the end as they got to the last £10K and asked the mediator to tell him. It settled. Although what was said was denied. Emotions have a price. Just like everything else at mediations.

Triumph 12.46 Triumph is that uplifting surge of joy when you have won. Anybody who plays sport knows what it feels like. It’s not limited to sports. But triumph is all about winning. Winning of course means someone else losing. You win by defeating, conquering or overcoming someone or something. That’s not the prevailing theory of mediation – certainly not the Getting to Yes6 version of principled negotiation. No one wins and no one loses. Mediation is about finding a win-win outcome for everyone. Mediators work with the parties to create mutually beneficial solutions: value is created. You grow the pie. Everyone shares the increased value. Well, that’s the idea. In fact, it’s a bedrock principle of the Harvard Negotiation Project approach. Roger Fisher and William Ury immortalised this in their book Getting to Yes. A  good idea and a great read but how feasible is it? Generations of mediators have been trained on it. Principled negotiation good: positional negotiation bad (see 7.47). Mediators want to frame the discussions in terms of gains, not losses, to overcome loss aversion bias and to encourage a collaborative not a confrontational approach. 227

12.47  Money Finding the common ground on which the problem can be assessed and a platform a settlement can be built on. Talking of winning and losing is not favoured. But inevitably parties do see the outcome in terms of winning and losing. Who did better out of the negotiations? Even some mediation providers and trainers think in these terms. JAMS, the largest provider of mediation services in the USA, published a pamphlet Winning At Mediation. What does winning mean? Two obvious meanings are: 1 You got the outcome you wanted. You settled under reserve if you are the defendant insurer. You got the figure you wanted for damages and a beefedup restrictive covenant if you are the claimant employer. 2

They suffered more pain than you did. They made bigger concessions. They are not as happy as you are. In other words, winning is just as much about inflicting loss as acquiring gain. The comparative view of happiness strikes again: it’s not what I’ve got that matters it’s what you’ve got (see 6.30).

Greed 12.47 Greed has an ambiguous role. At mediations we see people being greedy. But generally, greed is not considered to be an emotion. It’s usually defined as a character trait (see 1.07). Perhaps this is why it’s not even listed in many of the standard books on mediation or emotions. Greed under the name avarice is one of the Seven Deadly Sins. Despite a brief elevation to a positive good by the likes of Ivan Boesky, greed has been and is still seen as a negative behaviour. It puts individual benefit in conflict with group, social or public benefit. Greed is not conducive to co-operation, collaboration or compromise. Greedy people will not easily be empathetic. They are not interested in other people’s point of view: only in their own. Greed is seen as destructive. John Stuart Mill7 in his essay Utilitarianism sums it all up brilliantly: ‘The love of money is not only one of the strongest moving forces of human life, but money is, in many cases, desired in and for itself; the desire to possess it is often stronger than the desire to use it, and goes on increasing when all the desires which point to ends beyond it, to be compassed by it, are falling off.’ We have to be realistic and accept that many commercial disputes involve the capitalist system and many people who attend mediations are capitalists. As Marx said: ‘avarice and the desire to get rich are the ruling passions’ in the heart of every would-be capitalist.’ At civil and commercial mediations you find more capitalists than socialists. Sad possibly; true certainly. The point about greed is that it can never be satisfied. By definition it is inordinate and usually insatiable. But there are limits. As Donald Trump writes in his book The Art of the Deal: ‘The point is that you can’t be too greedy. If you go for a home run on every pitch, you’re going to strike out a lot’. Most people do not own up to being greedy and would prefer not to be thought of as greedy. Instead, greed is often expressed through power plays, intimidation, and bullying (see Chapter 13 on Power). 228

Money 12.49

Jealousy and envy 12.48 They go together but are not the same thing. The two main differences are: 1

We are jealous of someone. We are envious of something. ‘I envy your lifestyle’ is often seen and intended as a compliment. ‘I am jealous of your lifestyle’ carries a more negative connotation.

2

Jealousy is associated with fear of loss. Particularly of losing someone that you have and want.

3

Envy is associated with disappointment or resentment of not having something that you want.

At mediations you see both emotions. They are rife in disputes about wills, estates and jointly owned or acquired properties (TOLATA claims). They are often expressed through the oft heard words, ‘it’s not fair.’ Or in questions •

‘Why should they have it?’

•

‘What have they done to deserve it?’

•

‘I built this business. Without me there wouldn’t be a business.’

•

‘They are alright they don’t have a mortgage on their house.’

In a nutshell 12.49 •

Money is emotional.

•

Money helps you manage emotions.

•

Money can change emotions.

•

Money is present in every mediation.

•

Money may not be the cause of the problem but it’s usually the cause of the solution.

•

Don’t be shy about talking about money. Don’t leave it until the end.

1 Harari Sapiens: A Brief History of Humankind (Harper Collins USA). 2 Hammond Mind Over Money: The Psychology of Money and How To Use It Better (Canongate Books). 3 (1948–2015). 4 Harford Adapt: Why Success Always Starts with Failure (Abacus). 5 [2021] EWHC 307 (Comm). 6 Fisher, Ury Getting To Yes: Negotiating an Agreement Without Giving In (Random House Business). 7 (1806–1873).

229

Chapter 13

Power

In this chapter you will learn •

What power means in mediations.

•

How you see power.

•

How power is used and abused.

•

The mind traps and emotions that you will meet: Authority Bias, Earned Dogmatism. Fear, Anger, Disgust, Humiliation, Pride.

What is power? 13.01 Put simply it’s the ability to get what you want. Even if someone else doesn’t want you to get it. You can have positive power – the power to say yes – and negative power – the power to say no – the power of veto. Power is not the same as status and dominance but is closely linked as we frequently observe at mediations. Inevitably power has been the subject of much academic research and dispute. A lot of it is interesting and some of it is relevant. Different types of power have been identified. And you can learn a lot about the circumstances in which you can acquire and lose different types of power and the effects of using it. Power is used and abused at all mediations. Sometimes it is also enjoyed. As we know all power is delightful and absolute power is absolutely delightful. Thankfully at mediation nobody has absolute power. What you see are constantly adjusting power balances. Negotiations reflect that balance. How does power influence mediation behaviour? Knowing this will help your mediations to be successful. Moreover, mediators are enjoined by the European Code of Conduct for Mediators to address imbalances of power.

Real life power 13.02 Studies of power draw some broad distinctions. For example, between positional power and personal power. Or between outcome power – the ability 231

13.03  Power to bring about an outcome – and social power – the ability to influence others to bring about an outcome.

Legitimate power 13.03 Aka ‘positional power,’ which derives from the person’s position. Quite often they have the trappings of power, such as titles, uniforms or impressive offices.

Reward power 13.04 This depends on your ability to confer valued material rewards, eg time off, pay rises or promotions. This power is obvious but also ineffective if abused.

Coercive power 13.05 You can apply negative influences – sacking people, withholding bonuses, threats and punishments. It’s obvious but not effective if it causes resentment and resistance in the people who experience it.

Referent power 13.06 This is your ability to attract others and build loyalty. It is based on your charisma and people skills. People admire you for some quality or other and want to be liked by you. This why advertisers use celebrity endorsements.

Expert power 13.07 This is an individual’s power deriving from their skills or expertise. People tend to listen to them. When experts can demonstrate expertise, people tend to trust them and will look to them as leaders in their area of expertise. Expert power is linked with legitimate power (see 13.03). We don’t often see coercive power or reward power at mediations. But we do see legitimate power and expert power. These are linked with authority (see 13.53 on authority bias).

Mediation Power Who has power? The parties 13.08 Mediation is their time. It’s their day: the process, the dispute and the settlement belong to them. Party autonomy is the watchword. They are the 232

Power 13.09 decision makers. But the actual decision makers are not always at the mediation. This raises the issues of absent power. See below. Parties have the power of position – legitimate power. They can say yes or no. Having power may make them powerful. But they may not see it this way. Power brings responsibility. Everyone is accountable to someone. Even if only to themselves. So often decisions on whether to settle or not have to be explained or justified. This influences mediation behaviour (see Chapters  7 and 12). Parties don’t always want to disclose how much power they have or who in their team has it. Cards are not on the table: they are close to the chest. A key question in understanding who has the power: Who has the most to lose? This works in two contrary ways: 1 BATNA (Best Alternative to a Negotiated Agreement) power. The person who can walk away more easily has the upper hand. According to the Harvard Negotiation Project theorists having what they call a strong BATNA gives you power. What it boils down to is this: if you have thought through the consequences of not settling and can live with them you can walk away if the deal is not good enough for you. It’s another way of saying who needs the deal most does worse. It’s a sort of relational power – the one who has less to lose can hold out for better terms. This is true. But in disputes as opposed to commercial negotiations the BATNA and the WATNA (Worst Alternative to a Negotiated Agreement) are often the same thing – a trial. Then you are into guessing what judges will do. If you win it was the best alternative: if you lose it was the worst. The better question is: Is there any benefit to you in settling? If there is put a value on it (see Chapters 10 and 12). 2 TINA (There Is No Alternative) power. The parties are desperate. They can’t accept the deal. They can’t afford to go to court and lose. They will be ruined. Or worse they can’t afford to go to court and win. In fact, they can’t afford to go to court at all. They have no money, no chance, and no hope. Do your worst. They don’t care anymore. They won’t co-operate. You can just keep spending money time and effort and see what you get at the end of the day. If they are right, you end up worse off than you are now. And there’s always reputational risk and adverse publicity. The adage that ‘There’s no such thing as bad publicity’ doesn’t really apply outside showbiz. And as we have seen with the Me Too campaign that is not holding true either in many cases. It’s a self-destructive mentality. They may be going down but they will take you down with them. 13.09 Parties can see themselves as victims. Sometimes this is a tactical pose. Other times they have fallen into a sort of learned helplessness. They can’t cope, or at least have convinced themselves that they can’t. They leave it all to their lawyers. They ask them to do all the talking. They tell the mediator that they are relying on their lawyers and will do whatever they say (see 7.37). Often, they appear to switch off. They don’t make eye contact. They go for lots of walks and are constantly texting (see Chapter 7 on stress). 233

13.10  Power

Advisors 13.10 Conventionally advisors have influence rather than power. After all their job is to give advice, not make decisions. In practice, at mediations the distinction can become blurred. Advisors do take process decisions: we will not exchange position papers; we won’t have a Joint Opening Session; we want them to make the first offer. Process decisions can affect the progress of the mediation and sometimes the eventual outcome. Rarely do advisors take decisions on the substantive dispute and in particular they don’t decide whether or not to accept an offer. Sometimes they do or come very close to it. As the client is pondering whether to accept an offer or not they say things such as: ‘I  can get you more at trial.’ ‘I  have advised you that this is offering too much.’ Or ‘It is my professional duty not to allow you to accept this offer.’ The power balance does shift where funding arrangements are in place and the advisors have skin in the game. As mediators you will not always be privy to the financial discussions between advisers and clients. Although sometimes they develop into an ancillary mini-mediation. But you will sense when they have taken place and whether anyone is feeling bruised. More usually advisors have negative power. They can sabotage mediations by the way they conduct themselves and interact with the mediator and the other side (see Chapter 7).

Mediators 13.11 Mediators have both power and influence. But it is consensual. They have been appointed by the parties. They can be removed by the parties. Sometimes this is forgotten. Big egos are not the exclusive property of former judges, captains of industry or media superstars. Mediators can make suggestions such as: ‘I  would like to have a Joint Opening Session’ or: ‘My intuition is that it would be better if you made the first offer’. But they have no effective sanction. They can’t impose anything on anyone. They only have persuasive power and in the last resort, the nuclear option of calling the mediation to an end. But mediators do have the power of authority and some process power. Generally, parties go along with their suggestions about process. Often, they actively ask what you advise: ‘We will be guided by you as to whether we have a Joint Opening Session’ (see below).

Experts 13.12 Experts enjoy the power of authority and expertise. See 13.31 for how this power is exercised and the pitfalls that arise. 234

Power 13.15

Who exercises power at mediations? 13.13 Power is exercised in the following ways: 1 Between the two parties. Each side would like to think that they are in a dominant position and that the other side is weaker in some way. 2 Between the parties and the mediator. One or other of the parties tries to gain control of the process in order to diminish the mediator’s influence and increase their own. 3

Between the mediator and the parties. Mediators start off with a lot of apparent power: they have been jointly appointed; they are not on anyone’s side – although both sides would like to co-opt them to their side. Parties look to the mediator for guidance and direction. This is exercising power by invitation. –

Often mediators are told: ‘We will take our cue from you. If you think that a Joint Opening session would be helpful, we will have one. We don’t care either way’.

–

At every mediation someone will ask the mediator at some stage. ‘What do you think?’

The mediator’s secret weapon 13.14 Questions like these disclose that knowledge is power. Only the mediator knows what is happening in both rooms. That is their secret weapon. They can use this inside information to shape the discussions and thinking in each room. They do this primarily by the questions they ask, the language they use and their time management (see 13.45).

Within the teams 13.15 As mediators you have a clear view of how the parties behave towards you and towards each other. You don’t have the same unimpeded view of how they behave towards the members of their team. You have at best glimpses and snapshots. But what you see can be revealing and important.

TOP TIP •

Watch closely to find out who is the real decisionmaker. Sometimes this is obvious but often it’s not.

•

Don’t be afraid to ask: ‘who makes the decisions?’ Start by asking the lawyers. If they can’t say, ask the clients.

•

Check who is sitting where. If there’s a rectangular table and counsel is at the head, you know that this is their show. If it’s the clients with the lawyers to one side, they are calling the shots – watch for the dynamics and the power swings.

•

Be ready to contrive occasions for a private chat with the lawyers. Expect them to seek your help in controlling their clients’ behaviour. 235

13.16  Power

What sort of mediation power? 13.16 We looked at general types of power in 13.02–13.07. Let’s consider the mediation-specific types of power:

Process power 13.17 Although the mediator’s power is consensual the parties usually are happy for the mediator to run the process. They look to them for direction. Some mediators go further and tell the parties that while the dispute and the solution belong to the parties the process belongs to the mediator. Others say the opposite and tell the parties that it’s their day and as mediator they will do whatever the parties want.

Host power 13.18 If one of the parties has arranged or is providing the mediation venue, they have both responsibility and power. They decide on the rooms. They can regulate the temperature, the supply of refreshments and the availability of wi-fi and other facilities including parking.

Financial power 13.19 Money confers power. But it’s relative and not usually as conclusive as you might think (see 13.28).

People power 13.20 Who is actually present at the mediation is important. It’s quality not quantity. Are the decision makers there? Are the people who created the problem the same as the people with the job of clearing it up? •

If they are the psychology will be different: self-serving bias, confirmation bias, need to avoid humiliation and shift blame will be in play.

•

If they aren’t it’s all about disconfirmation – new information and ways of looking at things, pride in being able to get a good result (see Chapter 7 on Groupthink).

Absent power 13.21 Sometimes the most powerful person isn’t there. The power resides outside the mediation. It could be the funders, or insurers. Or the higher level of management that needs to sign off on any deal. Or a spouse who needs to be convinced that the deal is acceptable. They have the ultimate power of veto. You need to get buy-in and commitment from those who are at the mediation. Mediators should have a settlement agreement drawn up. Clients should sign it. 236

Power 13.23 The lawyers can hold it in escrow. Remember the power of writing things down engenders commitment. You have a deal subject to sign off.

Mediation message 13.22 The empty chair gambit is still used at mediations. •

‘We would like to do a deal today but what you are asking for exceeds our mandate and we need to make a call. And the person we need to speak to has gone home/is on a plane/will be back tomorrow.’

•

‘Of course, if you could accept our lower offer we can sign now.’

Are they bluffing? Do calls really have to be made? What do you do? (See Chapter  17 on Psychology of Offers.) You can do the same thing. Draw up a settlement agreement. Sign it. Give it to them. Say please refer to those you need to. If it’s not signed by you by 12 noon then the agreement with our signature is withdrawn.

TOP TIP •

The last step. You can’t quite agree the figure. You are one more move apart. Remember the influence of scarcity (see 9.10).

•

Use the wide-angle lens: in three months’ time will the extra £5k or £50k matter? Do you really need it? Ask yourself: how will you feel tomorrow with the deal done or without the deal being done?

•

If the deal is done this problem will be over. You will have something else to worry about. After all, as Winston Churchill said: ‘the future is just one thing after another’.

Approval power 13.23 The person who can say yes. This is usually the client. But not always: it could be the insurers, spouses, creditors or banks. It’s a big part of the mediator’s job to make sure that they are involved in the process even if not physically present and that they are available during the mediation. Online mediations have made this much easier. People behave differently when negotiating a deal that can be concluded on the day and made final, from when they are negotiating a conditional deal. One of the things that parties want most at mediation is an end to the uncertainty. They are more committed to the process if they know that they can potentially achieve that. They are more guarded if only a conditional deal is in prospect. The question – what happens if the approval isn’t given? – will dominate their thinking. 237

13.24  Power

Veto power 13.24 Clients have the power to say no. Ideally you want the person who can actually say no to be present at the mediation so that they can see the situation for themselves and take a fully informed decision based on their own participation and not just on the edited highlights that their team feed them. With insurers and funders, they can also say no. Increasingly they are not physically present at the mediation which just makes the whole process harder for everyone. Again, online mediations make it easier for them to participate. Lawyers behave differently when clients are not present. Some are hesitant being mindful of what their absent clients might say. Others are the opposite. They confidently assert legal positions without taking commercial or personal considerations into account. This is not always conducive to settlement. Often lawyers recognise the realities of the situation and feel able to speak freely. Even sometimes to the point of sharing with you as mediator what their actual advice to their clients is. This is often conducive to settlement.

How is power exercised? 13.25 It’s no good having power if people don’t know you have it. How do you let them know?

Pecking order 13.26 Chronologically and psychologically, this is one of the first things that has to be sorted out at mediation. People need to feel comfortable. Knowing where you are in the pecking order helps. Refer back to Chapter 7, where it’s explained that status anxiety as an FOB (Frequently Observed Behaviour) is a barrier to settlement at mediations. The relative positions of influence and power have to be established. Evolutionary psychologists tell us this is basic survival behaviour. As we formed groups to cooperate in order to survive thousands of years ago it was vital for everyone to know their place in the group. We constantly see such atavistic behaviour. Probably more amongst males. You see this outside mediation and you definitely see it in mediations.

Mediation message 13.27 Barristers and retired judges seem to be particularly keen on making sure that everyone else knows that they are the Senior Person Present. This applies whether they are there as advocates or mediators. For how this affects mediation behaviour see 13.33–13.37 on power plays and dominance displays. 238

Power 13.29

Money 13.28 Is power really only about who has the most money? In reality it often is. But big bank accounts and balance sheets don’t always translate into power at mediations. Those with deep pockets can afford to pay for lawyers to go all the way to trial. Perhaps they can afford more and better lawyers and experts. The stronger their financial position the more they can withstand the impact of losing. But can they afford to take more risk? Everyone is accountable to someone. Even the parties who have seemingly limitless funds for example and internal spending constraints. In commercial disputes people have budgets. They have to justify expenditure. Public bodies and charities have to justify spending decisions to auditors. Rivals back at the office will be looking to score points. Wealthy people don’t like wasting money. That’s often one of the reasons why they became rich. In fact, the meanness of the wealthy is a well-documented phenomenon (see Chapter 12). Reputation is something most of us value. It’s a reflection of our need to have a good opinion of ourselves. We want to think well of ourselves and we want others to think well of us. Often there is an imbalance of power when it comes to image management. The richer, bigger and more powerful you are the more you value your reputation. That’s why there are so many prosperous defamation lawyers and image consultants (see 13.70).

‘Knowledge is power’ 13.29 Francis Bacon1 the English philosopher and statesman said that 400 years ago. And it still holds good. How much do you know about the other side? How much can you know or need to know. Remember the information bias (see Chapter 5). As mediator you have your inside knowledge and your secret weapon. At mediations one of the biggest obstacles to settlement is an information gap. If people have different information, they are more likely to see things differently. A key part of the mediation process is information exchange. The mediator’s job is to manage the disclosure of information.

TOP TIP •

Managing the disclosure of information gives mediators both power and responsibility.

•

Ask at each stage: how will this information help settlement?

•

The timing and extent of disclosure can be crucial. Too little, too late is an obvious danger. Too much, too soon can be just as bad. 239

13.30  Power

Expertise – experts 13.30 In disputes, everyone, including mediators, can be tempted to defer to experts if they are present. In practice this is rare. Most mediations don’t have any experts involved. Some do. The most common expert input is valuation or tax advice. But in building cases surveyors and architects produce experts’ reports on the scope and cost of work. In shareholder disputes there are share valuations. More often than not the experts are not present at the mediation either in the flesh or remotely but their reports are available. When experts are present, they can be helpful. But at least as often they can be unhelpful. This usually happens when they: •

mistake their role and become advocates for their clients.

•

want to take centre stage and display their expertise by destroying the other side’s expert.

•

become too much of a friend to their client. This is particularly the case where the company’s auditors or accountants give advice on valuations or financial reports.

•

give legal analysis and opinions.

Mediators are often entertained by discussions between over optimistic experts who are encouraging their clients to think that they have a strong case and the more pragmatic lawyers who are encouraging their clients to have a more realistic outlook. For experts, negotiation is about being right and letting everyone else know it. See also earned dogmatism at 13.54.

Mediation message 13.31 Expertise is hard won. Experts don’t give it up easily. The trap of earned dogmatism lies in wait. Experts need careful management.

Power plays 13.32 Often at mediation there is someone wanting to control the process, choose the mood music and set the agenda. Usually, it’s a lawyer. More often than not in the UK it’s the barristers. Expect as mediators to hear and see things like this: ‘I  find that much more progress is made if I  go and talk to my opposite number. No need to involve you.’ Usually, these remarks come from barristers who have not done a lot of mediations. They don’t see them as a contribution towards access to justice but more as a threat to their livelihood. Or Sending texts to the other side without telling the mediator that’s what they are doing. 240

Power 13.34 Or Control freakery. Not letting their clients talk to mediators directly even in their presence and insisting everything goes through them. Why do they do this? Insecurity, fear, anxiety, pride – see Chapter 7 on the role of lawyers at mediation. If only they knew what their clients say to mediators when they are out of the room having their private chats. Or instructing solicitors who say: ‘Counsel is being counsel. I was in two minds whether to bring them’. This sort of behaviour just introduces additional friction into the process and slows down momentum. To help clients achieve what they want advisers need to minimise it in their team.

TOP TIP There is no point in mediators having a row with the parties or their advisers. But if you identify this behaviour as an obstacle to settlement say so. Bring it out into the open. How and when do you do this? – well that’s the secret. You have to go with your instinct (see Chapter 5). When calling it out, describe it as an approach rather than as personal conduct. For example, if one room is relentlessly criticising the other and just repeating themselves you could say: ‘If you keep on attacking them in this way and demonising them we will get nowhere’. No doubt true but helpful? What about: ‘The attritional approach of relentlessly attacking the other side and repeating all your best points sometimes works. But not often. Why not try…?’ Doing it this way gives a little more space for face saving.

Intimidation – venues 13.33 Some parties feel intimidated by all the glass and polished steel in modern temples of justice and profit which is why they prefer neutral venues. These temples are expensive. The building and the fixtures and fittings shout this out. Should you feel intimated because you can’t afford it? Not at all. Remember it’s easier to walk out of their offices than it is to walk out of your own. Instead enjoy the ride. And use flattery. Tell the hosts that they have nice offices. They like to hear it. They won’t think the less of you. They might even like you more (see Chapters 8 and 9). Online mediation is a great leveller. No one need feel intimidated by what they see on screen from the comfort and security of their own home.

Big teams: loads of lawyers 13.34 How many people does it take to negotiate a settlement? This is not the set up for a changing a light bulb joke. Teams vary with layers of lawyers from trainees to QCs to just the client and their solicitor. Or even the client on their own. 241

13.35  Power Big teams cost money. What are they all there for? Just to intimidate the other room? Possibly. Is there people power? Does having more people at the mediation make you more powerful? It’s a power display: ‘Look, I can afford all these people’. But no, it doesn’t make you more powerful. You only really need the decision maker and their trusted adviser. Two is enough. The bigger the team the greater the chance of disagreement and delay in decision making. Groupthink becomes a problem (see Chapter 7). Online mediation is changing things: teams are smaller (see Chapter 18).

Behaviour 13.35 Researchers have found that people who communicate through  selfconfidence and expressive, composed behaviour tend to be successful in achieving their goals and maintaining good relationships. Watch out for negative behaviour – your own and other people’s.

Flattery – the power of praise 13.36 Everyone likes to be liked and praised (see Cialdini in Chapter  9). Remember people at mediations are in a state of arousal. They are ultra-sensitive both to criticism and praise. Be positive, encouraging and appreciative.

Emotions 13.37 Experiencing emotions and expressing them are not the same thing (see Chapter 3 on Venting). Feeling angry can be empowering (see the sections on anger in Chapters 8 and 12). It gives you focus and energy. You get a dopamine hit. Expressing it can reinforce this but at a cost. You can end up feeling depleted. It doesn’t make you feel better in the sense of a cathartic release. Instead, it sets up a loop of repeated behaviour. As you subside and the dopamine levels drop you top them up with another display of anger. Unhelpful – no one settles when seething with expressed anger.

Mediation message 13.38 Displaying anger can signal a loss of control. Losing control is the opposite of being powerful. You might start to feel slightly guilty or ashamed of your behaviour. This could make you more malleable.

Pride 13.39 Pride can also be empowering. You feel good about something and yourself. But it can also cause you to become inflexible and rigid – which are not always desirable qualities at a mediation (see 13.69). 242

Power 13.43

Contempt and disdain 13.40 These two emotions are displayed at mediations more often than any other. They are the clearest signal that you see yourself as much more powerful than those you are disdaining. Some of the disdain is synthetic. As when lawyers express their dismissal of the other side’s legal arguments. Canny mediators note the frequency and intensity of such expressions and wonder whether it’s not avoidance rather than dominance behaviour.

Posture, clothes and breathing 13.41 Although Amy Cuddy’s well publicised work on posture and in particular the power pose may have been challenged, the importance of posture generally on energy levels, self-confidence and how others see you is well established (see Chapter 1). All the things that our mothers and aunts told us to do are for a reason: •

Sitting up straight not slouching in chairs

•

Standing with shoulders back

People dress to impress. Some dress down to do this by studiedly casual attire: ‘I’ve made it. I don’t have to try anymore’. Some dress up and overdo it. Like the trustee in bankruptcy who turned up in a mink stole at a mediation with the bankrupt’s family who were facing losing their home. This didn’t go down well with anyone even with her own QC (female). Your clothes are messengers. What do you want them to say about you? Recall how people are more likely to follow someone in a suit or obey someone in a uniform (see 9.04).

Joint Opening Session or not? 13.42 Joint Opening Sessions are a forum for power displays. People use: •

Extravagant language and gestures.

• Posture. •

Eye rolling. Head turning.

•

Outbreaks of emotion.

•

Keeping everyone waiting.

This is partly why they are falling out of fashion.

Time 13.43 Controlling time is used as a power tool at mediations. You see: 243

13.44  Power •

Pre-mediation skirmishing about start times.

•

Stipulations about finish times.

•

Phony deadlines.

•

Announcements that unless a realistic proposal is made by 12 noon they are leaving.

•

Setting time limits for responses.

•

Using ultimatums to shape the discussion. ‘We are going unless…’.

•

Keeping the mediator waiting while you discuss things. Continually asking for another 10 minutes.

Time as a dominance technique can be easily abused at mediations. At one Joint Opening Session involving litigation funders one of the funders explained that they had much better things to do and they were going to leave unless we had sensible and realistic proposals on the table by 12 o’clock. Their lawyers didn’t look best pleased. The dispute was eminently settleable. All the lawyers thought that it would settle. But it didn’t. And the reason was the negative impression created by what the funders had said. And when the case settled later it was on less favourable terms for the funders than they were offered at the mediation. So much better to have said something like: ‘I am sure that we have all got things we would rather be doing today. But we’ve all made the time to come here so let’s spend it wisely and give it our best shot.’

Mediation message 13.44 Time is not a limitless, free good at mediations. Mediators have to manage time carefully to make sure they get the best use out of the best hours when energy and commitment are highest. See the charts in Chapter  3. Tackle tough issues when people are alert, energetic and engaged. They will be more creative and open to new information. Do this in the early part of the day. Or after rest or meal breaks – recall the research on the judges making parole decisions (see 4.19). And bear in mind that people do sometimes have genuine deadlines. Scarcity will kick in. People may start to value the last offer more highly if they think that time is running out and there won’t be time to exchange one more round of offers (recall 9.10). Running down the clock or keeping the other room hanging on so that they can sweat a bit is often done. But impatience and frustration will build up. Will these emotions make it more or less likely that they will accept your offer? Remember that people do business with those that they know, like and trust. This includes making deals at mediation. 244

Power 13.46 Imposing an ultimatum can be seen as bullying. People just push back. If you are setting a time limit, explain why. And always ask yourself how you would feel and react if you received this ultimatum and explanation. Deadlines and ultimatums feature less at online mediations. People are often already in their office or home and don’t have to travel. They can also multi-task and drop in and out of the mediation.

13.45 Time can be used as an avoidance mechanism. Sometimes lawyers say that they are feeling rushed. Or that there won’t be time today to draft the full settlement agreement, so we had just better have an agreement in principle or heads of terms. This often signals: •

That the lawyers are not feeling confident about drafting the agreement – this is common if it involves property or share transfers which is outside the expertise of litigators.

•

That they have not brought a draft settlement agreement with them or can’t access a precedent online because they have not prepared properly for the mediation.

•

That their clients are having second thoughts.

TOP TIP Clients don’t usually say that they are feeling rushed. They just want to get on with things. Sometimes they might say that they need time to think about things either by taking a break during the day or overnight. Encourage them to take the time they need. Nobody wants to make an agreement that can be challenged because it was made under pressure. All that does is inspire satellite litigation and anger, remorse, resentment and frustration. All negative emotions.

What can you tell from time? 13.46 Chronemics is the study of tempo in human communication. The use of time is a non-verbal means of communication. Mediators especially will want to be alert to punctuality, willingness to wait and speed of speech. You can learn a lot from how long someone talks for and how long any responses are. Usually, the person who does most of the talking is: 245

13.47  Power •

wanting to exert control of the process in their room. Quite often the lawyers do all the talking in one room and the client in the other.

•

feeling that they are being blamed and need to justify themselves by telling their story often and at length. They may not be the decision maker.

But there are apparently contradictory findings. One rule of thumb says that the person who talks fastest and longest is the most powerful. Another is that the person with the slowest breath pattern and the deepest voice is the most powerful. You can see both at mediations. But power can swing during the day. And one marker of this is: How useful are you to the process?

Finding where the power is 13.47 Canny mediators watch the face, especially the eyes. Just as importantly they listen to the tone of voice and the phrasing of what is being said. Ask yourself at all times: ‘Does this add up? Is it all congruent?’ (See Chapter  8 on body language and also Chapter 14 on cognitive dissonance.) They also monitor the Visual Dominance Ratio (VDR). This a nonverbal indicator of a person’s perceived dominance over another based on eye contact in an interaction. The ratio is calculated by dividing the percentage of time a person looks into the other person’s eyes while speaking to them by the percentage of time spent looking while listening. You don’t need a stopwatch and calculator. Just take note. Someone who spends more time using eye contact when speaking than when listening will have a higher VDR. A  high VDR indicates high  social power. The correlation of social power and VDR in same-sex interactions is strong. The results have been consistent in multiple studies where social power has been calculated by personality variables, expert power, military rank or educational level.

Power shifts and swings Power is dynamic not static 13.48 As a mediator you can only see and hear what is happening in a room when you are present. You don’t know what happens when you are not there. You may only see snapshots but these do give you an insight to what is happening. Usually but not always the power balance in a room changes during the day. The key power dynamic is the relationship between the decision maker and the representative. As a general rule the bigger the team in the room the more power dynamics are in play. How big a team is present depends on the size and nature of the case. But in most mediations, there will be at least a client, who is usually the decision maker, and a lawyer. Sometimes just the lawyers just turn up. Most usually this is where the claim is covered by insurance – neither the insurers nor the policy holder are there. In most cases mediations in these circumstances are doomed to 246

Power 13.50 fail or are just being used tactically either to tick a box or to help scope a Part 36 Offer. But not always. And again this is less common with online mediations. To start with, the lawyers are in the forefront. They do most of the talking. That is what they have been hired to do after all. Also, they usually have more experience of mediation than their clients. As the day passes and settlement and offers are framed, discussed and rejected the clients come to the fore.

Client assertion 13.49 Sometimes, they take over from their lawyers. They ask for a private meeting with the mediator and express their unhappiness at how their lawyers are behaving. Or they want to talk to their opposite number one to one. Sometimes it’s the other way around. The vocal client who was doing all the talking retreats. They even move away from the table and distance themselves from what is happening. They seem to be telling their team: ‘It’s up to you. I’m not part of this any more. Don’t blame me if all goes wrong’. In other words, avoiding responsibility. What has usually happened is that there have been some difficult conversations while the mediator is out of the room. There are recurrent triggers: •

Advice on chances of winning. The clients don’t like what they are hearing. Either they have been told it before and they don’t want to hear it again. Or they are hearing a revised and less favourable assessment of of their prospects.

•

Frustration, boredom and disengagement- especially when discouraging offers keep being made.

•

Legal costs – money again (see Chapter 12). And that has a lot to do with perceived value. Clients who realise that under the proposed settlement they will receive twice as much as they expected will happily pay their lawyer’s fees. Those who will be receiving half what they expected won’t.

Mediation message 13.50 Mediators can inadvertently trigger client assertion. They discuss what will happen if the case doesn’t settle and goes all the way to trial. What will the client’s net financial position be after costs have been paid? Often this has not been done before the mediation. Or at least not very specifically. Clients express different emotions: surprise being the mildest. Shock, disgust and anger are also seen (see 13.60). At one mediation it became clear that costs and net outcomes had not been discussed. The lawyers asked the mediator for a few minutes to have a private discussion with their clients. A few minutes turned into 20, 30 and eventually 60. Loud voices, table slamming could be heard. The other room heard some of this. They were intrigued and inquisitive. 247

13.51  Power A  new partner arrived. More discussions. And obviously some decisions. The mediator was invited back in. Not a lot of direct eye contact. Quite a bit of slumping in chairs, sideways body posture and jaw tension. They knew they must be giving off some signals. With a resigned shrug the senior lawyer said: ‘Thank you. We’ve cleared up some issues…’. The mediation carried on. It settled. In extreme cases clients turn on their lawyers. ‘I am not going to accept that offer. I will take my chances in court.’ says the client. ‘I have just told you that you haven’t got a chance at trial.’ replies their lawyer. 13.51 Why can’t clients accept their lawyers’ advice? They chose them, they have stayed with them, they have paid them. They probably have confidence in their expertise. The answer is confirmation bias and motivated thinking. We hear what we want to hear. Recall the discussion in 10.06 about how we overestimate the chances of something that we want to happen and underestimate the risks of something we don’t. Then there is the negative power of veto. Being able to say no can be delightful. Provided you can afford it. And as discussed in Chapter 7 people don’t like feeling bullied. They value self-determination. Time and again lawyers tell mediators that the real mediation advocacy starts when the mediator leaves the room. They mutter during the course of the day. ‘Counsel is working on them… [the clients].’ Or ‘They [the clients] are coming round’. Of course, mediators are aware that they are also being worked on – the good cop bad cop routine. Or the early alibi warning. ‘It’s not us…’ the lawyers want to be able to say. ‘It’s the clients…’. They want to feel that the mediator thinks well of them. They also want the mediator to somehow, however subliminally, convey the message to the other room that their clients are dangerous – stubborn, proud, angry and full of righteous indignation. ‘It’s a matter of principle. Uncontrollable – so you never know what could happen. Much better to buy them off.’

Offers 13.52 These are the ultimate power tools in mediations. They are so powerful they have a chapter to themselves (see Chapter 17 on the Psychology of Offers).

Mediation mind traps: power Authority bias 13.53 The tendency to allow the status and credentials of a person to influence the perception of information or advice they give. 248

Power 13.55 At mediation, advocates and experts display this, eg  ‘this is the strongest case I have ever seen in 25 years of practice’. They expect their listeners to be impressed. That doesn’t usually happen. Such ringing endorsements sound hollow.

Earned dogmatism 13.54 The bias that people who are regarded as experts experience when they are displaying their expertise. They become closed-minded. They tend to look for patterns based on their prior experience. As the Zen monk Shunryu Suzuki said: ‘In the beginner’s mind there are many possibilities; in the expert’s, there are few’. This is backed up by brain scans which show that experts’ brains have greater activity in the temporal lobe associated with pattern recognition than in the visual cortex associated with fine detail. Ideally, we should all be open minded, analytical and creative. Experts need to take note. Expert status can be conferred by others or can be a result of self-perception. They believe that because they have worked hard to acquire the status of expert, they earned the right to be more dogmatic in their views.

Mediation emotions: power Fear 13.55 Fear is universal. We have all felt afraid at some time. It’s a cliché that we have nothing to fear but fear itself. The point about that cliché and which explains why it is so potent is that it goes to the heart of the nature of fear as an emotion. There is an anticipatory emotion. We are afraid of what is going to happen. Recall the snake at 3.14–3.15. Walking along, we see a brown object sticking out of the grass. Is it a poisonous snake? It moves. We stamp on it. We’re not afraid while we are stamping. We’ve done that. We’re breathing heavily. We look round to see if there are any more. Now we start to feel afraid again when we hear some rustling in the bushes. It’s only the wind. We feel relieved. We don’t get poisonous snakes at mediations despite what some people say about their opponents. What we do get is people feeling so worried that they say that they are feeling afraid. Of what? Of what is going to happen. Things like the prospect of the Joint Opening Session. Or simply bumping into the people on the other side. They don’t want to see them. They certainly don’t want to talk to them. And they really don’t want to be asked any questions by anybody. Online mediations help reduce this sort of fear. You are not even in the same building let alone the same room. Sitting at home on a screen makes people feel more protected and less exposed. 249

13.56  Power

Are fear and dread the same? 13.56 They are often used as synonyms: dread being more intense fear. But there is an added dimension which picks up on the The Uncertainty Principle described at Chapter 2. Researchers have found that our brains respond differently to them. Neurologist Martin Goldstein of the Icahn School of Medicine at Mount Sinai using fMRI identified the activation of the anterior cingulate cortex (ACC) in dread. Giles Storey of University College London showed that people will accept more pain to avoid dread. Volunteers were offered a choice between a less painful electric shock later or a more painful one now. Most people chose to take more pain now. In other words, to get it over with. Amanda Riley in her book The Unthinkable: Who survives when disaster strikes and why2 suggests a formula: Dread = Uncontrollability + Unfamiliarity + Imaginability + Suffering + Scale of Destruction + Unfairness.

Mediation message 13.57 This is readily translatable into the mediation context: Just replace ‘Suffering’ and ‘Scale of Destruction’ with ‘Loss’ and ‘Impact’. The other words describe feelings and emotions that are routinely experienced and observed at mediations – the sense of not being in control, not knowing what is going on, imagining the worst and the overwhelming sense of it all being unfair (see Chapter 15). Uncontrollability + Unfamiliarity + Imaginability + Loss + Impact + Unfairness = Mediation Dread. Clients often experience dread at mediations. See below how to deal with it.

Fear and surprise are not the same 13.58 Fear and surprise have similar facial expressions (see Chapter 3). There are however three key differences. 1

Fear is always unpleasant. Surprise can be both pleasant and unpleasant. Fear is so unpleasant that it triggers further physiological responses for example perspiration, paleness and rapid breathing.

2 Surprise is experienced after an event. Fear is experienced both before and during an event. It’s anticipatory. 3

Expressions of fear last much longer than those of surprise. Fear that we feel at the moment when we face physical harm can be brief. But still, it’s nowhere near as fleeting as surprise. Fear can be much longer lasting. We are fearful as we try to work out whether the situation is dangerous or not. You hear a noise downstairs while you’re asleep. You wake up. Hear it again. You’re afraid. What is it? You have a stabbing pain down your left arm. Is it a heart attack? You’re afraid until the doctor reassures you. 250

Power 13.58 A person who is feeling fear will show it in their face. Look at the same three areas of the face, the eyebrows, the eyes and the mouth. As with surprise, fear causes us to raise our eyebrows, widen our eyes and retract our lips. But the end result is very different. When we are afraid our raised eyebrows are drawn closer together. Eyes that have widened with fear have a tense lower lid. With surprise remember our mouth was slack. When we are fearful it’s open and is characterised by tense not slack lips. Fear can follow surprise. If it does, fear will be the dominant expression. Fear is powerful and can override other emotional and mental faculties. For example, as Charles Darwin said: ‘My will and reason were powerless against the imagination of the danger which had never been experienced’.

TOP TIP Provide assurance. Explain that the mediation process is not like going to court. We all come to mediation to make peace not war. Nobody is on trial. Nobody gets cross-examined. You don’t have to talk to or see anybody that you don’t want to talk to or see. Mediations after all are meant to be safe environments. It does work: In one mediation about brokerage there were also allegations amongst other things of sexual harassment. The claimant, who was also the victim, did not want to see, let alone talk to the defendant. The whole dispute was covered by insurance with teams of lawyers on both sides. All the lawyers were quite keen to have a Joint Opening Session so they could explain to the other side the error of their ways. The claimant was really worried. She said that she was dreading the whole thing and didn’t really want to be there. In the end she said she would attend the joint session. She was a successful businesswoman and was no shrinking violet. She had had her share of confrontations in her business career. She put on her dark glasses because her eyes were red through crying. She sat there and listened. As the defendants wound up to their peak of righteous indignation that such a hopelessly misconceived case could even be contemplated, let alone actually brought, she took off her dark glasses. She looked right at the barrister and then she looked at the defendant. Her face was expressionless except that she was radiating determination. She didn’t say anything. Back into the claimants’ room. The mediator thanked her and asked her how she felt. She said: ‘I’m really glad I did it. That showed them’. It certainly did. The case settled just after lunch. It’s the same thing in other dangerous situations. If you can confront the fear and overcome it you feel much better. 251

13.59  Power

Mediation message 13.59 •

Mediators rarely experience fear; they often experience surprise.

•

Always expect the unexpected. Don’t be surprised to be surprised.

Anger 13.60 This is the most easily recognisable of emotions. It can also be the most alarming and the one that changes the mood of the room more quickly than anything else. Anger covers a range of different feelings or emotions. For example, resentment, exasperation, rage or indignation. Is anger a positive or negative emotion? Instinctively most of us would say it is a negative emotion. The Roman Stoic philosopher Seneca described it as: ‘the most hideous and frenzied of all the emotions’. When you have a red mist you can’t see clearly. But we can’t ignore that some say it’s a positive emotion. Roger Bacon, the 13th century physician and alchemist, argued that getting frequently annoyed slowed the ageing process. People thought that it heated up a cooling body. Freud thought that giving expression to anger venting was good for people. 13.61 In the 1950s and 1960s ventilation therapy was developed in California and gave rise to the Primal Scream Theory. Outbursts of anger were seen as revealing an individual’s authentic identity. Barriers were broken down and you could see the real self. This view was particularly popular amongst therapists (see 3.16). Now even psychotherapists have moved on. Although anger can motivate us to try harder and make it easier for us to bear physical pain it’s no longer regarded as invariably authentic. In fact, anger is often seen as a decoy emotion. It covers up and diverts attention from other more painful and relevant emotions. When someone shows anger you have to ask yourself – what are they really angry about? Why are they angry at this moment? We discuss venting in Chapter  3 but for the moment just take note that not everybody accepts venting is a good idea. 13.62 Clients or lawyers are more likely to display anger than mediators. Clients may arrive feeling angry about what has happened to them in the past. Quite often this is a combination of the original event giving rise to their dispute, for example that they were dismissed or their fence was taken down. In addition, they are angry at the way that their complaint or grievance has been handled. This is very common when dealing with complaints against utility suppliers or insurance companies. But it’s in no way limited to them. 252

Power 13.63 Lawyers’ letters incite anger with partisan and aggressive responses to their complaints. Such correspondence is frequently overly legalistic without any indication that there might be another way of looking at the whole problem or discussing it and sorting it out. Most lawyers do not realise how aggressive their letters sound to clients who are not lawyers. What passes for ordinary badinage between lawyers with the stock phrases, the coded messages and the licensed blustering is completely alien to most clients. Even when lawyers say that their clients are open to ADR – which of course in the UK they’re required to say by the Protocols – the rest of the correspondence is at variance with this. In fact, most invitations to mediation read like declarations of war.

How do mediators deal with anger? 13.63 What you don’t do is tell the person who is expressing their anger that there is no need for them to feel angry or to calm down. They are angry. They’re aroused. They will not be able to listen to reason. Save your breath and energy. As John Bargh concludes about how we behave when we are subject to strong emotions like anger: ‘we feel sure that we are right, and that we are seeing the world and other people as they really are. We act accordingly and fail to see that emotional states are temporary’. Don’t run the risk of inflaming things. Also ration the empathetic active listening. The soothing: ‘I know how you must be feeling…’ may be heard not as comforting but as patronising. This will not help the situation. A  better way is to let them express their anger. Let them talk themselves to a standstill. Do not say or do anything which gives the impression that you are humouring them. Never say: ‘OK, so you’ve got that off your chest…’. Or: ‘You feel better now?’ Don’t pause, give a thin smile and say: ‘Can we move on,  now?

TOP TIP •

Be careful even saying something like: ‘I see that. Do you want to take time out/have a moment/get a glass of water?’ They are in a state of heightened arousal and are hypersensitive to any imagined criticism, disapproval or challenge.

•

Try: responding to an outburst with: ‘Okay. What do you want me to say to the other side?’ By doing this you are showing them that you are not ignoring them and that you are prepared to be proactive.

•

Depending on what has been said and how much rapport you have developed you could say something like: ‘Right. You’re angry/annoyed/ furious. What will fix it for you? What will make it right for you?’ 253

13.64  Power Being able to recognise anger is a good thing. It might save you from physical danger. It’s one of the easier emotions to recognise with clear facial signals around the eyebrows, eyelids and lips. Look at these faces:

13.64 Look at eyebrows. When we are afraid, we draw our eyebrows together and form wrinkles on the forehead. When we are angry our eyebrows are drawn together and angled downwards or flat. Instead of wrinkles on the forehead a vertical line may appear between the brows. Our mouth is usually open when we verbally express our anger. Our lips are usually drawn together when we are showing our anger through bodily gestures including acts of violence. All emotions have different levels of intensity. It’s particularly important that we can calibrate the intensity of anger. Mild-to-moderate anger tends to be expressed in only two of the three areas of the face – the eyebrows, the eyes and the mouth. More intense anger activates all three at the same time. If there is tensing around the eyelids and bulging eyes this shows real fury or rage.

Disgust 13.65 In the mediation context you probably won’t experience disgust very often. Not the visceral physical rejection of the smell of rancid milk, fresh vomit or pus and blood pouring from an infected wound. But you will hear it as an expression of disappointment, disagreement, even outrage. It’s a reflection of the ‘Disgusted of Tunbridge Wells’ bye-line on the letters page. ‘I  think that the way that they have behaved is disgusting’ is a reflection of the speaker feeling that the other side is being disrespectful in some serious way. It’s an interesting emotion because it brings together moral and physical revulsion. In one experiment psychologists Paul Rozin and Carol Nemeroff asked a group 254

Power 13.67 of people if they would wear a pullover. They said they would. Then they added some information: it was one of Adolf Hitler’s pullovers. Most people grimaced and refused to wear it. We might be disgusted by different things but we react to disgust in the same way. If we see something gruesome or smell rancid food that tend to retch. It’s an aversion feeling. Disgust and contempt have similar facial expressions. Both are aversion feelings. The big differences are: Disgust is usually a response to certain things and contempt is a response to certain people. Contempt is marked by an additional element of superiority. Disgust and contempt make us want to avoid unpleasant things. By contrast, anger makes us want to confront them directly.

Mediation message 13.66 Under extreme circumstances mediators may express disgust. Never express contempt.

Humiliation 13.67 This is been called the nuclear bomb of emotions. Kofi Annan the former UN  Secretary General said: ‘All the cruel and brutal things, even genocide, start with the humiliation of one individual’. This may well be an overstatement but it highlights the potent influence of humiliation and the desire to avoid it. Remember Richbell’s Law: behind every dispute is a damaged relationship. Nothing damages a relationship quicker than humiliation. That and its evil siblings: shame and contempt. Nobody enjoys being humiliated – outside some specialised bars and clubs – and a sure way to alienate people or to lose the room is to humiliate someone. The risk of being humiliated is one of the main reasons why parties are often reluctant to have a Joint Opening Session. They don’t want to be criticised in public. They don’t want to be asked direct questions or to be cross examined. Avoiding all this is one of the advantages of going to mediation rather than straight to litigation. At mediations you don’t hear the word ‘humiliation’ but occasionally you hear the word ‘humiliating’. Unacceptable offers or proposals are described as humiliating. When people say this, they mean that the other side are simply not paying them proper respect. They are treating the offeree with disdain. You’ll often hear one 255

13.68  Power party say: ‘We’ve come here in good faith. We prepared properly. We supplied all the information that was requested and they are not even making us an offer’. Or it’s used to describe what might happen to the other side in court. You will be told that the other room’s case is so weak that they will be humiliated. This is often a reflection of the cognitive bias of limelight and catastrophising (see 10.07).

Mediation message 13.68 If as a mediator, you are energetically reality testing, stray into being a crossexaminer. You can expect lawyers to be robust enough to look after themselves but not their clients. Even hardened commercial professionals such as insurance claims directors find it difficult to be openly questioned in front of others. Especially in front of colleagues both junior and senior. If you have highlighted some cracks in their ironclad case, they might see this as humiliating (see Chapter 8 on reality testing, FOBs and Bridges).

Pride 13.69 Historically pride has a bad reputation. Fabled as one of the Seven Deadly Sins, it’s usually labelled as the most serious of them (see 13.39). Philosophers have distinguished between true pride and false friend pride. The latter is dangerous at mediations. We may think we are sticking up for ourselves. In fact, we are being inflexible and defensive. This is not conducive to settlement. Thanks in large part to the personal improvement self-esteem movement pride has been rehabilitated. It’s acceptable to feel proud about achievements whether they are your own or other people’s. For example, we have parades for Gay Pride and Black Pride as expressions of people’s desire, appetite or need to establish their own identity.

Mediation message 13.70 Reputation is considered at most mediations. You may benefit by settling a dispute to uphold or protect your reputation. It’s not just the threat of adverse public criticism in court by a bad-tempered judge or the fear of publicity on social media. It’s also the desire to be consistent with your own stated values. This is particularly true of corporates but can also apply to individuals. Many of us think that we have a reputation to uphold or a belief that we act in a way consistent with our own self-image. Yet another example of consistency bias. At mediations, pride often leads to unhelpful behaviours and attitudes. For example, when clients proclaim ‘It’s a matter of principle’. Recall lawyers’ ambiguous reactions when they hear this. Such bold assertions used to warm lawyers’ hearts. Now with the introduction of risk-sharing funding arrangements, they don’t. Every experienced lawyer knows that while clients might mean it in the moment that they say it, deep down they don’t really want to spend the money to prove their 256

Power 13.71 point of principle. And they absolutely hate it when clients, having gone to court on a point of principle, complain when they lose and even when they win. Points of principle and pride cause clients and their advisers to take inflexible positions. They’ve invested too much of themselves or their professional reputation in their previously stated opinions and positions (see 13.30). They struggle to find a way out. That is the mediator’s job. Finding a way for a dignified exit. Letting people leave with their heads held up not with their tails between their legs.

In a nutshell 13.71 •

Mediations can be a series of power plays.

•

Power shifts happen all the time. Usually, clients start to feel more empowered as the day goes on and become more involved.

•

Power displays need to be managed; egos massaged, and face preserved or restored.

•

At most mediations someone will say that they will not be bullied or that they are being bullied.

•

Power often is simply with those who others think have it, whether they do or not.

1 (1561–1626). 2 Riley The Unthinkable: Who survives when disaster strikes and why (Arrow).

257

Chapter 14

Truth

In this chapter you will learn •

If the truth matters at mediations.

•

If you can expect the truth, the whole truth and nothing but the truth.

•

How to tell if people are lying.

•

The mind traps and emotions you will meet: – Choice supportive bias, Cognitive dissonance, Confirmation bias, Consistency bias, Framing effect, Naïve realism, Selective perception, Story bias. –

Impatience, Indignation.

The big distinction 14.01 Truth is one of mediation’s three power words. The other two are money (Chapter 12) and fair (Chapter 15). Heard at every mediation these three words are magnets for emotions, opinions and argument. There is a fundamental difference between ‘truth’ and ‘the truth’. Rarely is the definite article so significant. What is ‘truth’ is a philosophical question. What is ‘the truth’ is a practical one.

Why are they important at mediations? 14.02 Philosophically this goes to the question of perception (see Chapter 11). How can mediators deal with truth in any sense? Mediators are not judges. They are not there to find facts and work out who is telling the truth. How will they know in any case? Parties are not witnesses on oath. So why is the concept of truth important? For two reasons: self-image and trust. 259

14.03  Truth

Self-image 14.03 One thing is guaranteed at mediations – being accused of lying makes people more annoyed than anything else. They are outraged. You can understand why. We like to think well of ourselves – to have a good self-image (see 6.13). We like to be consistent. That’s the respectable reason (see 14.35 on consistency bias). A less respectable reason is that outrage is used as camouflage and misdirection. ‘I’ve never been so insulted. That’s outrageous.’ ‘I’m leaving. There’s no point trying to talk to people like that.’ The accused uses the accusation as an alibi – to give themselves an excuse to halt the mediation. Or to buy time: ‘I’m sorry. I’m so angry I can’t think straight…’. The accused behave as if they are angry (see Chapter 13). They are not angry. It’s all a distraction. Not everyone wrongly accused of lying at mediations displays anger. Instead, they laugh it off, show disdain or counterattack: ‘It’s not me who’s lying. Let’s see them say that in court’. Displays of anger as indicators of whether someone is telling the truth are unreliable.

Mediation message 14.04 Self-image is linked to self-identity. This is where the question of ‘truth’, ‘your truth’ and ‘my truth’ collide. The idea is that there are personal truths. A subjective truth is no less worthy than an objective truth. To deny this personalised version of truth is to deny my right to have my own truth. This can be seen as disrespecting me as a human being. Once we move into this territory mediations become more challenging (see Chapter 6). Challenges to someone’s veracity or truthfulness are seldom conducive to settlement. Do we need to go near the truth at mediation? (See 14.48 on Indignation.)

Justice 14.05 Many parties at mediation expect that the truth will emerge and be reflected in the settlement proposals and agreement. They know, or at least are told, that the mediator is not a judge. No one at mediation is on trial. No one gets cross-examined. Mediators don’t decide anything. Even if the parties accept this, they behave as though truth is important. And they expect or at least hope that the mediator will agree that what they say is the truth. The idea of truth is linked to the idea of justice. In court the truth will come out in some way and the judge will see it and decide accordingly. That’s justice. All sides expect to be vindicated at trial. Or at least they say that they do. By hearing evidence and argument, by observing people being cross-examined and applying their own analytical and interpretive skills judges will find the truth. On this view, the truth is out there. It just has to be uncovered, identified and labelled. Doing this is like archaeology. Finding facts not artefacts. 260

Truth 14.08

Mediation message 14.06 This approach has some difficulties for mediation: •

Fact-finding and digging for truth are not what mediators do.

•

How confident can anybody be that the judge having excavated and cleared away the rubble will come to the decision that favours you? Even if the court finds that the facts, the chronology, the dates, the figures and the recollections are as you say, will they agree with your interpretation?

•

Optimism bias, naive realism and false consensus bias are much in evidence (see 10.20 and 14.39).

•

Lawyers often say that most legal disputes are disputes about the facts. They often are. But at mediations surprisingly often the facts are not really in dispute. The interpretations of them are. We return to the fundamental question. How can people see the same situation so differently?

Truth constructed 14.07 Relativists tell us that there is no truth, only truths. We see the same thing differently because we are different. Everything is relative. There are no facts, only perceptions (see Chapter 11). Just look at memory. When we are talking about what happened, we are remembering. As we know, memory is not retrieval. It’s a reconstruction. So, how we can have confidence in our memory? (See 2.18–2.33.) Having different recollections doesn’t mean that we are deliberately telling lies. A lot will depend on when we saw, what we saw, what else we were doing, what our emotional state was and the operation of various cognitive biases. In other words, truth is constructed. Finding the truth is more like architecture than archaeology. Relativism rules – nobody’s version of what happened is better than anyone else’s.

Truth revealed 14.08 People may say they believe in this form of relativism. But at mediations they don’t act as if they believe this. Try telling a director that their company was insolvent in a wrongful trading case and they will produce bank statements to show that they are telling the truth. Or see what happens when someone is accused of forging a signature. They believe that there are objective facts which prove that they are right. Parties behave like archaeologists not architects. They are also advocates in the sense of people trying to persuade each other (see Chapter 9 on Persuasion). 261

14.09  Truth The trouble is that at mediation who is to say who is right or what the facts are? Judges do this in court. That’s their job. Mediators don’t. It’s not their job. Without someone to adjudicate on the competing interpretations and versions of the facts what’s the point spending time on the truth? In fact, there are facts. As the German general was told when he surrendered at the end of the First World War and was asked: ‘What will history say about this?’ – ‘Well, history will not say Belgium invaded Germany in 1914.’ Yes, but it’s the causes and consequences that are important.

Mediation message 14.09 At mediations everyone needs to focus on consequences not causes. Paying parties declare that they haven’t got the money to pay if the other side wins. What happens? Usually, receiving parties don’t accept what they’re being told. They ask questions about assets, access to capital, income or earnings streams. Sometimes they already know the answer to these questions, sometimes they don’t (see Chapter 12 on Money). Are these questions just to check the veracity and accuracy what they’re being told? Often, they are. So, when you say that you have no money make sure that you can show it. Have the valuations, the bank statements, redemption figures, the mortgages and the title deeds to hand. It’s not just Ronald Reagan who lived by the motto: ‘Trust but always verify’. You are trying to persuade someone to do something that they want don’t want to do. Credibility helps persuasion. We know from our own experience that if something is asserted confidently and often enough it gains a sort of acceptance. Repetition can work but corroboration is better.

Bluffing, puffing and lying Bluffing 14.10 In negotiation no one is on oath. Bluffing, exaggeration, partial truths, incomplete information and explanations are the stock in trade. Not only are you not on oath you are not even under a duty to negotiate in good faith. Who says so? The English courts. ‘However, the concept of a duty to carry on negotiations in good faith is inherently repugnant to the adversarial position of the parties when involved in negotiations. Each party to the negotiations is entitled to pursue his (or her) own interests, so as long as he avoids making misrepresentations.’ Lord Ackner in Walford v Miles.1 This view gives mediation providers and regulators apoplexy. See what the Law Council of Australia say in their current code of conduct which has been adopted by the SCMA – the Standing Conference of Mediation Advocates. 262

Truth 14.11 ‘2.2 good faith Lawyers and clients should act, at all times, in good faith and attempt to achieve settlement of the dispute.’ ‘6.1 The skills required for successful mediation are different to those desirable in advocacy…A  lawyer who adopts a persuasive rather than adversarial or aggressive approach and acknowledges the concerns of the other side is more likely to contribute to a better result. 6.2 offers and settlement A primary aspect of the lawyer’s role is to help formulate offers, assess the practicality/ reasonable offers made by other parties and assist in drafting settlement terms and conditions.’ ‘Comment (a) Never mislead and be careful of “puffing”.’ In any case defining what amounts to a misrepresentation in these circumstances is an interesting question. Finding out could be difficult because of mediation confidentiality. The English courts at least will not necessarily help you. For example: 1. Berkeley Square Holdings v Lancer Property Asset Management2 – where mediation confidentiality was lifted and the court allowed position papers to be used in a subsequent trial where the Claimants asserted that they were ignorant of facts they had been told at the mediation. 2. Brigg v Clay3 – the court took the opposite approach and mediation documents were not ordered to be disclosed.

Puffing 14.11 For a more up to date and experience-based view read what William Poundstone says in Priceless:4 ‘Negotiation isn’t a pretty picture. Much of the time, the skilful negotiator is the one who best misrepresents value. It is not ‘fairness’ so much as the appearance of fairness that drives the psychology of prices.’ This will be anathema to the Harvard Negotiation Project school of principled negotiators. But let’s face it, we have to deal with what Kant called the ‘crooked timber of humanity’. As he said: ‘Out of the crooked timber of humanity no straight thing was ever made’. Idea for a Universal History with a Cosmopolitan Purpose.5 Exaggeration can be harmless. We all indulge in it at some time. In fact, it acts as a social lubricant in the same way that flattery or swearing can. As with so many behavioural questions context, purpose intensity and extent are key. What happens at mediations? 263

14.12  Truth

Mediation message 14.12 People exaggerate at mediations. •

They overstate their confidence in their case.

•

They refer to offers of After the Event (ATE) insurance which they do not have.

•

Cost estimates are inflated.

•

Calculations of damages are routinely set at the most generous levels.

•

Paying parties underestimate the value of their assets.

•

Parties confidently assert that they have the money to take this all the way to trial when they don’t.

Bluffing and puffing are acceptable and accepted as part of mediation behaviour. But remember bluffs can be called and puffs are so much hot air. What about lying? Are there boundaries?

Lying 14.13 Lying raises lots of questions. What is lying? Why do we lie? How do we spot a lie? Does it matter whether we lie or are lied to? Everyone knows what a lie is. Don’t they? In adversarial negotiation, let alone in court, many responses are characterised as lies. Some responses are untrue. Sometimes they are just wrong. Or they are just an alternative version or recollection. There are different types of lies: •

Those which describe a situation which we know to be untrue when we say it.

•

Those which we believed to be true when we said them but were in fact not true.

•

Those that were true at the time but became untrue in a way we could not have foreseen.

•

Harmful lies and harmless lies. Reassuring someone nervously preparing for an interview that they look great in their new outfit when they don’t is a harmless lie designed to protect someone. A harmful lie would be to tell the nervous interviewee that they didn’t look great when they did.

•

Accidental and intentional lies. For example, you are the Prime Minister giving an answer at Prime Minister’s Question Time in the House of Commons. Your brief prepared by your civil servants gives you the incorrect figures. You rely on them. You thought that they were correct – accidental. But if the civil servant tells you that they are incorrect and you give them anyway – intentional.

•

Suppressio veri and suggestio falsi. The first is allowing someone to believe something is true which you know to be false. This is lying by omission. The second is misleading someone so that they believe something to be true which you know to be false. This is lying by commission. 264

Truth 14.14 •

Paltering. An archaic word revived to mean the active use of truthful statements to create a false impression. As in the famous 1998 Bill Clinton interview about his relationship with Monica Lewinsky: JL: ‘You had no sexual relationship with this young woman?’ Clinton: ‘There is not a sexual relationship – that is accurate.’ As the Starr investigation found Clinton had had a sexual relationship with her but it had ended by the time of the interview. Technically Clinton’s answer was true but was he telling the truth?

Why do we lie? 14.14 •

To make ourselves feel better.

•

To impress someone. We might tell them we earn £50K more than we do or that we have read Proust three times in French and twice in English.

•

To avoid negative comments or outcomes. When accused of murder we deny it and blame someone else.

•

To avoid humiliation. At the weekly sales meeting we hide the bad figures or say we have finished the report and are just checking it, when we haven’t even started.

•

To shift blame and cover up.

•

To strengthen our case. We falsify evidence. Create fake invoices.

Basically, it’s all down to wanting to preserve our own good image of ourselves and others’ image of us. It’s pride, status anxiety, self-esteem again (see Chapters 7 and 13). Or it’s just how we see things. Our self-serving bias triggers motivated reasoning and recollection. We remember the good bits and relegate the bad bits. In extreme circumstances they lead us to invent memories – confabulation (see Chapter 2). It’s a sort of selective amnesia.

TOP TIP At mediation parties accuse each other in trenchant language of dishonesty and lying. This behaviour is not conducive to settlement. What to do? Mediators can diffuse this by: •

referring to different recollections. It’s perfectly possible for people to have different recollections of the same event. Help yourself by being able to refer to the work of Elizabeth Loftus on memory (see Chapter 2). That shows how memory changes over time and is influenced by the way questions are asked.

•

reminding people of how memory works. As has been described in Chapter 2, memory is a reconstructive not a reproductive exercise. We 265

14.15  Truth automatically tend to remember the things that support our present needs. If we have to explain why we did something we will remember the good reasons not the bad ones.

Mediator and advocates when trying to assess the overall situation have to take into account the inherent unreliability and plasticity of memory. This has nothing really to do with honesty. People do sometimes deliberately tell lies and say they don’t remember something when they do. That is a different scenario. Here we are talking about people who are giving their explanation of what has happened and recalling the factual context. Memory is fallible. So are witnesses. So are judges. All good reasons why it is better to settle than litigate. When parties are reluctant to consider settlement because they absolutely know that their recollection of events is accurate and will be accepted by the court and the other side’s isn’t and won’t be, remind them of nature of memory (see Chapter 2) and what the courts now say. The fallibility of the memory is well understood by the UK courts. For example, in the Practice Direction 57AC issued under the Civil Procedure Rules it expressly states in relation to the preparation of witness statements that: ‘1.3 Witnesses of fact and those assisting them to provide a trial witness statement should understand that when assessing witness evidence the approach of the court is that human memory: (1) is not a simple mental record of a witnessed event that is fixed at the time of the experience and fades over time, but (2) is a fluid and malleable state of perception concerning an individual’s past experiences, and therefore (3) is vulnerable to being altered by a range of influences, such that the individual may or may not be conscious of the alteration.’

Mediation message 14.15 As a mediator or advocate, don’t abandon your critical disbelief but do suspend your instinctive suspicion that someone is lying just because they have a different recollection. Be careful about challenging the strength of someone else’s belief. This can make them even more obdurate. Mediators can say: ‘I  can see that. I’m not here to judge. All I can say is that both rooms are equally robust, sincere and confident in their recollection’. Consider with the clients whether they really need to be vindicated. How much do they need to be proved right? Is that what they absolutely need and it’s worth going to court to try and get it? Or does the benefit of settlement at least match the need for self-justification. This conversation is much easier if you have previously identified with them the benefits of settlement. This enables everybody to see settlement as a process of gaining something, not losing something. 266

Truth 14.17

Do most people lie? 14.16 Truth is linked to trust (see Chapter 16). In order to trust someone, you have to have confidence in what they’re saying. In other words, you have to believe that they are not telling you lies. Are they? Research evidence is conflicting. Robert Feldman reports that in a routine tenminute conversation with a stranger or casual acquaintance we will lie three times. Some lie 12 times. Hardly any one doesn’t lie at all. We saw Paul Ekman’s work on emotions and facial expressions in 3.23. He has concluded that: ‘Lies are everywhere’. However, other research (carried out by Serota and Halevy) suggests that we lie much less than this. More like twice a day. Even that is misleading because most people don’t lie at all and some people lie a lot which skews the results. So, it seems that generally we don’t lie, and we don’t believe that others are lying. Tim Levine calls this the Truth Default Theory. We assume that people are telling the truth. We have to. We don’t have the time, the means or the energy to check what we are being told all the time. Without this approach, social, let alone business, interactions would seize up. We are affected by what others say and do. Even to the extent of having our own memories changed. Recall Tali Sharot’s experiment in Chapter 2. At mediations groups and sub-groups are formed. See Chapter 5 for a discussion of groups and their influence on mediation behaviour.

TOP TIP •

If the atmosphere becomes a little tense at mediations remember that in fact most people do not tell lies most of the time.

•

Very few tell two lies a day on average. But everyone tells occasional lies and some people lie a lot. For an interesting discussion see Tony Buon’s book Communication Genius6.

How do you tell when someone is lying? 14.17 With great difficulty, if at all. Research has established that most people overestimate their ability to tell when somebody is lying. Charles Bond of Texas Christian University carried out studies in 75 countries in 43 different languages and asked the question: How can you tell when people are lying? Here are the responses: 267

14.18  Truth Gaze Aversion

66%

Incoherency

25%

Nervousness

28%

Tells

25%

Inconsistencies

25%

Filler words

20%

In fact, practised liars don’t look away or shift in their seats. It seems that the more that you lie the easier it becomes for you and the harder it is for others to spot. Even people who are experienced or trained in spotting lies don’t do well. In one study auditors were asked to pick out the lies in fraudulent financial statements. They found 45% of them. An algorithm found 85%. We overestimate our ability to spot lies. In research carried out by Robert Kramer students were asked: How good are you at judging someone’s trustworthiness? Here are the responses: •

95% said they were better than average.

•

75% put themselves in the top 25% at character reading.

•

20% put themselves in the top 10%.

So, at mediations, remember: trust – but verify. Sound advice but in practice you can’t always verify. But you can remain cautiously sceptical. Treating everything as provisional helps maintain the balance between disbelief and credulity. 14.18 Skilled questioners listen to the words the respondent uses and watch how they speak. Any discrepancies between what is being said, ie the verbal language, and what is being shown, ie the body language, can be revealing. This is the area of cognitive dissonance (see below). Three factors influence our ability to tell when someone is lying to us: 1

Truth Default Theory: this leads us to assume that people are telling the truth. We only stop believing them when doubts emerge that are so great that we cannot explain them away (see 14.16).

2

Transparency bias: most of us tend to think that we can read other people’s facial expressions, behaviour and demeanour to ascertain what they really believe and feel. This is why live evidence is given in court, we interview people for jobs, and we meet people to shake hands before concluding a deal. In a mediation context many lawyers and their clients want to have the other side physically present at the mediation so that they can ’see the whites of their eyes.’ In practice doing this is of limited value. We have learned this with the greater use of online mediation. See Chapter 18.

3

Exceptionalism bias: we are complex and they are easy to read. Especially if they are strangers. Just look at them. A common belief but we are not good at it. Algorithms are better. 268

Truth 14.19

Demeanour 14.19 Lawyers in particular think that seeing a witness and how they look and hold themselves gives valuable clues about whether they are lying or not. But is this confidence misplaced? Sendhil Mullainathan of the University of Chicago researched bail decisions made by judges in the New York city courts for 558,689 defendants. The judges granted bail to 400,000. The judges had the defendant’s records and saw and heard the defendants and their lawyers. A  computer processed the data of the remaining 158,689 defendants. Who were more likely to reoffend while on bail – those bailed by the judges or those bailed by the computer? Those bailed by the computer were 25% less likely to commit an offence while on bail. In other words, just analyse the data. You don’t need a personal assessment. In the English courts there is much judicial doubt about the reliability or relevance of a witness’s demeanour in deciding whether they are telling the truth. See for example what Leggart LJ said in R. (on the application of SS (Sri Lanka)) v Secretary of State for the Home Department:7 ‘33 The term “demeanour” is used as a legal shorthand to refer to the appearance and behaviour of a witness in giving oral evidence as opposed to the content of the evidence. 36 Generally speaking, it is no longer considered that the inability to assess the demeanour of witnesses puts appellate judges “in a permanent position of disadvantage as against the trial judge”. That is because it has increasingly been recognised that it is usually unreliable and often dangerous to draw a conclusion from a witness’s demeanour as to the likelihood that the witness is telling the truth. The reasons for this were explained by MacKenna J in words which Lord Devlin later adopted in their entirety and Lord Bingham quoted with approval: “I  question whether the respect given to our findings of fact based on the  demeanour of the witnesses is always deserved. I  doubt my own ability, and sometimes that of other judges, to discern from a witness’s  demeanour, or the tone of his voice, whether he is telling the truth. He speaks  hesitantly. Is that the mark of a cautious man, whose statements are for that reason to be respected, or is he taking time to fabricate? Is the emphatic witness putting on an act to deceive me, or is he speaking from the fullness of his heart, knowing that he is right? Is he likely to be more truthful if he looks me straight in the face than if he casts his eyes on the ground perhaps from shyness or a natural timidity? For my part I rely on these considerations as little as I can help.” 37 … To rely on demeanour is in most cases to attach importance to deviations from a norm when there is in truth no norm. (emphasis added) See Bingham, “The Judge as Juror: The Judicial Determination of Factual Issues” (1985) 38 Current Legal Problems 1 (reprinted in Bingham,  The Business of Judging at p11). … 269

14.20  Truth 41 No doubt it is impossible, and perhaps undesirable, to ignore altogether the impression created by the demeanour of a witness giving evidence. But to attach any significant weight to such impressions in assessing credibility risks making judgments which at best have no rational basis and at worst reflect conscious or unconscious biases and prejudices. One of the most important qualities expected of a judge is that they will strive to avoid being influenced by personal biases and prejudices in their decision-making. That requires eschewing judgments based on the appearance of a witness or on their tone, manner or other aspects of their behaviour in answering questions. Rather than attempting to assess whether testimony is truthful from the manner in which it is given, the only objective and reliable approach is to focus on the content of the testimony and to consider whether it is consistent with other evidence (including evidence of what the witness has said on other occasions) and with known or probable facts.’ (emphasis added) 14.20 People attending mediations rarely possess the necessary specialist expertise to decode behaviour. We are better at guessing whether someone is lying when their level of truthfulness corresponds to how they look. So if someone fidgets nervously and coughs a lot, we think that they are lying. If they are lying, we will guess that. If they are not and are telling the truth, we will not guess that. In other words, do they meet our expectations of how people behave? It’s another form of stereotyping (see Chapter 5). Former members of the military and the intelligence services might have the necessary training. Even then they are not good at it. Tim Levine conducted an experiment with FBI agents. When they observed matched suspects, ie ones whose behaviour matched their level of truthfulness, they were right 100% of the time. Most people are right about 70% of the time. But when they were mismatched, they only got 20% right. They were even worse when they were observing sincereacting liars. Then they only got 14%. But the forum which professional interrogators use to question people is very different from a mediation room. You can’t put them on a swivel chair to see how much they fidget while being questioned. Rarely can you see below their knees and watch whether they hook their feet together or tap their heels – alleged signs of physical dissonance reflecting cognitive dissonance. Online mediation makes this even more difficult. You only see their face and shoulders from the second button up. Perhaps this will change when software is used to analyse people’s facial and bodily gestures, tone of voice, vocabulary and sentence structure. It exists but its overt use is apparently negligible. And online mediation may make this easier.

Mediation message 14.21 There is a fundamental difference between asking someone questions and questioning them. Ask questions you must. Different types of questions on reality testing were considered in Chapter  8. Questioning someone aka interrogating or cross270

Truth 14.28 examining them is something different. It’s inherently hostile. Mediators who do this, and there are some, tread a thin and fuzzy line. When they step over it during robust reality testing they lose trust, destroy rapport and generate counter measures. None of which helps settlement (see 8.37–8.42). Listen to and reflect on the answers. The following may indicate that someone is lying.

Out of context 14.22 The person provides information or comments on something that has nothing to do with the question or the subject matter of the question. They may try and change the question. In these circumstances reword the question.

Partial answer 14.23 The person ignores part of the question and is selective.

Avoiding the question 14.24 Politicians and those who have received media training are extremely skilled in this. They deflect the question by reinterpreting it, restating it in a more positive way for them to answer or they answer the question with a question.

Stalling 14.25 People buy time to work out an answer. A common way of doing this is to answer a question with a question.

Distortion 14.26 This is a type of lying in the sense that the respondent knowingly exaggerates what it suits them to say, eg how strongly they feel about the case or even the amount of their salary.

Refusal 14.27 A simple non-response, ie silence itself, or by a statement, eg: ‘I will not answer that’.

Attack 14.28 Sometimes the respondent can be aggressive, eg: ‘That is a stupid question’. Respondents who attack the question or the questioner believe that attack is the best form of defence. 271

14.29  Truth

Mediation message 14.29 As mediators, when you hear these types of responses recognise that there is another story that you are not being told. Return to the topic later. This is one reason why mediations can drag on. If as a lawyer or client you want to move forward, be straightforward.

Should mediators expect to be lied to? 14.30 ‘I may be slippery but I don’t tell lies.’ That was the disarming admission in a mediation by a company director in a dispute over service levels and bonus payments. What he is saying was that he recognised that there was a boundary between ducking and diving or not being open and straightforward and being dishonest. At another mediation during the pre-mediation private chat the mediator was explaining that everything that was said to him in a caucus was confidential: One client asked ‘Oh, does that I  mean I  can tell lies then?’ Were they testing the mediator? Or displaying some client assertion and dominance behaviour? (see 13.32–13.49). At mediations, each side assumes that the other is not telling the truth, either to them or the mediator. Mediators are routinely told by one side that they are not hearing the truth from the other side. And they explain why. Often at length and repeatedly. This can create echo chambers full of confirmation bias (see 14.34). Knowing what we know about people’s propensity to lie ie people don’t lie very often but they will lie if they have to, what do mediators do? After all sometimes one room will ask mediators when they report something that the other room has said: ‘Do you believe them?’ ‘Is that true or are they just bluffing?’ Obey the flashing red light: never warrant anything to one room that the other has told you. Instead consider using the Richbell formula: ‘I believe everything that I am told, but I know that not everyone tells the truth’. A cynical definition of litigation is: a process where out of the clash of lies emerges truth. That might provide some comfort. Or if accurate suggest that mediation is a process where out of the clash of recollections emerges resolution. As a mediator you don’t need to angst about the truth. Let the decision makers decide how much they value it and put a price on it.

Checklist 14.31 Here is a quick checklist for mediations. But be aware of concluding that because you have spotted these signs that the person must be lying. 272

Truth 14.33 These are signs that you can spot when people are lying. Good liars might not show them. People telling the truth might. •

If standing and their feet are angled away – they want to move out of a difficult situation.

•

Repeated crossing and uncrossing of legs.

•

Blinking – lying uses up more brain energy than telling the truth. Liars blink more.

•

Shoulders – normally they would be parallel with yours. Turning to an angle is a defensive measure.

•

Short explanations: they may be long winded but are superficial. Often lacking in details of say what the building looked like or how they felt themselves.

•

Avoid using ‘I’ – instead say ‘everyone’ or ‘no one’, or ‘people.’

•

General denials: Instead of saying flatly: ‘I did not say that…’ They say: ‘That’s not the sort of thing I would say…’.

•

Assurances of honesty: ‘To be honest…..’ ‘I’m telling the truth…’.

•

Slower responses: They have to work out the answer.

•

Lower voice: When we are engaged we tend to speak more quickly and at a higher pitch.

•

When you don’t really want to say anything or be heard, you speak more slowly and quietly.

Mediation mind traps: truth Choice supportive bias 14.32 The tendency to remember one’s choices as better than they were. At mediations people say things like: ‘In the last case I  was involved in we did not settle that mediation and took the matter to trial and they gave in at the door of the court.’ Closer examination of their respective net financial results often reveals that both sides were worse off than if they had settled at mediation.

Cognitive dissonance 14.33 The discomfort felt when you have two contradictory thoughts at the same time. The concept was developed by Festinger in A Theory of Cognitive Dissonance.8 This can lead people to reinterpret what has happened to justify the situation they are now in. They seek consistency (see 14.35 on consistency bias). For example, when we apply for a job and do not get it we rationalise this by saying we did not want it anyway and we did not like the new company. At mediations, people especially clients but also advocates, self-rationalise in this way. When they do, they are showing that they have difficulty acknowledging that they may have been wrong in the past. 273

14.34  Truth Body language experts love cognitive dissonance. The theory is that when you are having to say something which you do not agree with the tension shows up in your body. Feet twist round each other. Eyes blink. Noses and ears itch and have to be scratched (see 14.20). In one sense all goes back to trust: can we rely upon what someone is telling us?

Confirmation bias 14.34 We accept information that supports our existing opinions. We reject information that doesn’t. When we are presented with new information we cherry pick. We look for the bits that help us and discard the bits that don’t. We interpret information in a way that supports perceptions or existing opinions. At mediations you see it all the time and for most of the day. The classic example is when new evidence is presented. Often a report is produced which a party says they have only just received. Both sides tell the mediator that having read the report they think their case is much stronger than they did before. This habitually happens when there’s a jointly appointed single expert. It even happens when one side receives the other side’s expert’s report. When asked why they feel encouraged in this way advocates and clients highlight those parts of the report which can be interpreted in their favour. They ignore the rest of the report which can be interpreted in the other side’s favour. Result? Their assessment of the new evidence is unbalanced. More reality checking to be done by the mediator (see Chapter 8). You also see parties displaying confirmation bias in the way in which they approach mediation. They are presenting their best case. They explain why they are right and the other side is wrong. They find it difficult to acknowledge that the other side may have any good points at all. Private sessions turn into echo chambers. All anybody does is repeat their best points to each other and to the mediator.

TOP TIP •

Try to move them away from this self-propagandising so that they can see the overall situation. That’s what a judge will do at trial.

•

Mediators are ideally placed to do this. After all, only the mediator knows what is happening in both rooms – that’s their secret weapon. This thirdparty view is the single most valuable contribution mediators make to the process of finding a settlement. In fact, it’s the magic ingredient which explains why mediation works as well as it does: the presence of a stranger (see Chapter 13 on Power).

•

At all times bear in mind what Aldous Huxley9 said: ‘Facts do not cease to exist because they are ignored’. 274

Truth 14.37

Consistency bias 14.35 We all display this tendency every day. Consistency bias is another manifestation of confirmation bias. We accept information coming to us which is consistent with what we already believe. We like to be consistent with what we have said or believed in the past. It is harder to change our minds because of confirmation bias and sunk cost fallacy (see below). It’s what lies behind cognitive dissonance (see above). Most of us do not enjoy feeling or saying one thing and doing something different. It challenges our sense of self (see Chapter 6).

Beliefs and values 14.36 Our beliefs and values are part of our self-identity. If information is presented to us which challenges that, we are likely to reject it. We act instead to reaffirm our self-identity. An experiment was conducted in 1998 by Elaine Scharfe and Kim Bartholomb. Couples were asked how happy they were in their relationships and completed a questionnaire. Some were just going out with each other, others were living together, and the rest were married. Eight months later they were asked again and also asked to recall their previous responses. Some interesting conclusions emerged. Those people whose relationships have stayed the same tended to give the same answers as they had done previously. They remembered what they had said. Those whose relationships had either got worse or better did not remember the past so clearly. 78% of the women and 87% of the men inaccurately recorded what they had previously said. The final conclusion was that while most people had a good recollection of their original responses those that didn’t tended to assume that they had always felt as sad or as happy in the past as they felt now. Remember the brain is built to predict (see Chapters 2 and 10). So, when we look back, we interpret or re-remember what happened to be consistent with our present state and the one that we predict for ourselves (see 14.32 on Choice supportive bias). Surprisingly consistency bias is something that you can prompt at will. For example, if you are primed to believe that you are an honest person you are more likely to act like an honest person. It’s a form of self-priming (see Chapter 12). 14.37 Professor Don Airely carried out an experiment at MIT. A group of students were asked to do as many maths problems as they could in five minutes. They were told that at the end of the experiment that one student would be randomly chosen and be given $10 for each correct answer. Before the test began half the students were asked to list ten books that they could remember reading at secondary school. The other half were asked to list as many of the Ten Commandments in the Bible as they could recall. 275

14.37  Truth In both groups half the students were given the chance to grade themselves. They could cheat by simply telling the researchers how many answers they had got right. The others had to hand in their papers. In the group that listed the books the total scores were 33% higher than the average. This indicated that they had cheated. In the group that listed the Ten Commandments the scores were less than average ie no one had cheated. Remember half the students had been primed to think about honesty by reference to the Ten Commandments. They had acted consistently. Consistency bias reveals itself in other ways. In a Canadian study of horseracing, they found that the confidence of punters that their choice would win was higher after they had placed their bets on it than it was before they placed their bets. In other words, they wanted to believe what they now thought was consistent with what they had done. Consistency can have advantages. Just like the other forms of automatic responding it gives us a way to deal quickly and efficiently with the complexities of modern life. It’s a shortcut. Sometimes we don’t want to engage in reflective thought. Apart from it being very demanding of energy and effort, the consequences of thinking hard about something might be unpleasant for us. This explains why it is difficult for people who have previously stated their opinion or position on a matter to change their mind. Although Ralph Waldo Emerson described consistency as the hobgoblin of little minds, he was referring to ‘foolish consistency’. In fact, consistency is often seen as a positive quality. Acting consistently suggests that you are a person of principle and are reliable and trustworthy. That makes it easier to do business with you. We all find it more difficult to deal with unpredictable or erratic people. You don’t know where you are with them. You can’t predict what they’re going to do and therefore what you should do. And as we know our brain is built to predict (see Chapter 2). Consistency bias like all shortcuts and automatic responses helps us save time in coping with the complexities of modern life. We don’t have to keep reinventing the wheel and thinking from first principles every time we encounter a problem or issue. We act as we’ve acted in the past. We behave in character (see Chapter 10).

TOP TIP If you find yourself in the position when you’re having to contemplate changing your mind take comfort form the words of the great economist John Maynard Keynes:10 ‘When the information changes I change my mind. What do you do?’ 276

Truth 14.39

Framing effect 14.38 How a message is received depends how it is communicated in the first place. Recall the experiment conducted by Daniel Kahneman and Amos Tversky about the two options for the epidemic-control plan. Depending on the framing of the option and the use of the word ‘survive’ or ‘die’, the decision of the participants who heard the options was changed (see 12.40). At mediations everyone frames: asking questions in a way which will prompt the answer they want. Mediators spend quite a lot of time saying: ‘Well yes but there is another way of putting it.’ When trying to persuade someone to accept your proposal put it in terms of what they gain. You know from reading this chapter the sorts of things that happen in people’s minds when they have to make decisions. They have to process information, access emotions and make decisions. We know the importance that emotions have in decision-making. We also know the importance of non-emotional processes as well, ie logical analysis, reflective thinking and quantification. But in the end, people do things because they think, ie predict, that it will make them feel better. So, when you’re looking at the overall situation or carrying out a risk reward analysis make sure the parties don’t just talk about litigation discount but also talk about the benefit of settlement and the value that they put on it. The more someone can see a settlement in terms of it giving them a benefit ie a gain, the more likely they are to accept a proposal. Framing is crucial.

Naïve realism and false consensus bias 14.39 Naïve realism is the belief that through our senses we see the world as it actually is. There is a lot of philosophical debate about this. For the purpose of mediation we don’t need to go into it. We only need to know that a manifestation of naive realism is that we believe our view of the world is accurate and everybody else should see or does see the world as we see it. This leads us to think that if only people would listen to our explanation, they would see things our way. At mediations lawyers are prone to this bias. They are keen to explain their case to the other side. They tell the mediator before the mediation starts that they don’t understand the other side’s case. What this usually means is that they don’t agree with it. Or that they think it is in some way logically flawed. The evidence does not in their view support the legal conclusion. When they say they don’t understand the case what they’re really saying is they don’t believe that the other side is advancing their case with any confidence. And if the other side do have any confidence in the case it will be shaken once they hear the real explanation. 277

14.40  Truth

Mediation message 14.40 People who approach mediation with a naive realism mindset are usually disappointed. The false consensus effect flows from this. This is the tendency for people to think that their own views and behaviour choices are appropriate and widely shared. It is an egocentric bias. It can be linked with groupthink (see 7.49). Members of the group tend to think that their views are shared by the wider population. Even if people do not think that their values are shared by the majority this bias causes them to overestimate the extent of the agreement. It also predisposes people to reject information that challenges their opinion. Another example of confirmation bias in operation.

Pluralistic ignorance 14.41 False consensus should be contrasted with pluralistic ignorance. This is where members of the group privately disagree with what is being said by the group but publicly support it. You see this a lot at mediations. The mediator goes into a caucus with one of the parties. They’re all expressing their confidence as to why they should not move in their negotiating position. All the best legal and evidential points are referred to. And then one of the lawyers has a quiet word with the mediator and confirms that they are working hard on their client. Or more unusually the client seeks out the mediator and says that they are not happy with the way things are going and want to have a private word with the mediator and the decision-maker on the other side (see Chapter  7 on groupthink). This happens more often in commercial cases than those involving private individuals.

Selective perception 14.42 The tendency of expectations to affect perception. Remember the experiments with wine (see 11.08). At mediations, parties tell the mediator in the first private session: ‘I do not think that this mediation is going to work. The other side are not here in good faith. It is going to be a waste of time’. When settlement has not been reached the client says: ‘I told you this was really a waste of time.’ Expectations and perceptions affect performance and outcomes. If you go in expecting to fail you increase your chances of failing. Recall the Rosenthal effect (see 10.11). 278

Truth 14.44

Story bias 14.43 The tendency is to see meaning in details which can lead to false understanding and a predisposition to risk-taking. The meaning is added afterwards. In part it stems from the brain’s ability to see patterns. This in turn reflects our basic drive to predict in order to survive. Part of predicting is working out what happened and why. This helps us to recognise when it is likely to happen in the future (see Chapter 10 on prediction). Another bias, hindsight bias comes into play. This is our tendency to overestimate how accurately we predicted an outcome after it has happened. ‘I knew it all along.’ It can also lead us to believe that what happened was inevitably going to happen. When we know how things turned out it is easier to interpret events in the light of the known outcomes. It’s a sort of retrospective anchoring. It happened that way it was always going to happen that way (see 12.26). If we look to past experiences to guide present and future behaviour, we can mislead ourselves with this sort of deterministic approach. Things were often a lot less certain at the time than they appear later. Our desire to find meaning and explanations can lead us to search for a conclusion that isn’t there to be found. Accidents do happen. Not everything is explicable. Correlation is not causation. As Armin Mueller-Sthal says in the film The International: ‘The difference between truth and fiction is that fiction has to make sense’.

Mediation message 14.44 Mediators have to be able to tolerate ambiguity. Just accept that people have their own recollections and motivations and because they want to persuade others, they compose them into a story. After all, from the earliest of times, we have been telling each other stories as a way of communication, information, teaching and entertaining. What we are doing most of the time is providing justifications, not explanations. The hard question is: does it matter if it makes sense as long as it works? Why should we be worried about the logical coherence of a settlement if it is doable and acceptable? Does it matter whether the other side knew that the sewage system was defective provided that they are buying the property back from you at the price you want? Liability is for courts: affordability is for mediations. As the atmosphere becomes a little tense at mediations remember that in fact most people do not tell lies most of the time. Very few tell even two lies a day on average. But everyone tells occasional lies and some people lie a lot.11 Linked with this is the belief that there are no facts or truth. Recall the discussion in Chapter 11 on perception. There are simply narratives and truths. We all have our own view, ie perception of what has happened or is happening. Our narrative 279

14.45  Truth is as valid as anybody else’s. There is no objectivity. This view of reality is reinforced by the findings from neuroscience that memory is an act of reconstruction not retrieval (see 2.18–2.33).

14.45 Bring all this together and you can see why people find it difficult to agree. What do mediators do? First understand that this is how things are. Explain to parties who are resistant to any other interpretation or explanation of events that this is what happens. Move away from stories and narratives which are all about the past. Instead encourage the parties to think about the present and where they want to be in the future. The future of course has different timelines. We could be talking about tomorrow, next month or ten years’ time. Try and anchor people in a timeframe. This is why one of my first questions in mediation is ‘Where do you want to be in three months’ time?’ And then you are appealing to the thing that interests them most – their self-interest.

Mediation emotions: truth Impatience 14.46 People become impatient: they think the other side is playing games, prevaricating and just not facing up to reality or the truth. If the other side would just accept the truth then they would accept our offer. We have all felt impatience in ourselves and seen it in others. We find it hard to accept the situation that we are in. We want something to happen, to change: the queue to start moving; the train to leave. And, in mediations, we want the other side to make up their mind about an offer. The word impatience comes from the Latin meaning failure to bear suffering. This emotion will be felt at some stage in every single mediation that you ever attend in any capacity. Sartre was wrong when he said that: ‘Hell is other people’. Hell is waiting for other people. And impatience feels infernal. You finish a private session with one room. You tell them that you are going to be 30 minutes or so with the other room. They will be watching the clock. If you’re not back on time they will start to feel fidgety. They want to know what’s going on. What are the other side saying to you? Are they trying to brainwash you? Have you gone over to the other side? They become impatient. As mediator you take an offer into one room. It meets quite a few of their points. Only a couple of things are left for them to think about. They ask you for a few minutes. Back in ten minutes you say. Fine. In you go. ‘Can we have another five minutes?’ ‘Sure’. To be on the safe side you give them another ten minutes. You knock on the door. ‘Sorry we need a bit more time.’ And on it goes. 280

Truth 14.49

Mediator message 14.47 Be careful not to let your impatience show. You have to manage the other side’s impatience as well. You do that by popping in and telling them what’s going on. Keeping people informed and communicating what is happening is the best way of reducing impatience. We all know that when standing on the concourse wondering why the trains are delayed and no one is telling us anything. It’s much the same at mediation. Communication is all. Sometimes impatience works in a positive way. A  party is becoming frustrated. They want to bring the day to an end. They’ve had enough. Or time pressure is building up. People are checking the train times. They become impatient. And that’s when they can actually end up taking the final step to close the gap: ‘I’ve had enough. It’s not worth it. Let them have what they want’. Or: ‘Let’s get this over with. OK I’ll split the difference’. Mediators, however, must never show impatience. You have infinite patience. You will feel impatience. But express it or show it in your own room to yourself or with your observer. Not to the parties or their lawyers.

Indignation 14.48 Accusing someone of lying provokes indignation. Sometimes genuine, sometimes synthetic and tactical (see 14.03). Amongst political theorists indignation is currently regarded as a positive emotion. It inspires action which is what most emotions are meant to do anyway. Indignation is most often felt when someone in power is showing disdain for others. They’re not playing by the rules. They are acting as if the law did not apply to them just to others. That causes indignation. In mediation indignation is most usually expressed when someone makes a ludicrous offer or demand. It’s a way of expressing depth of feeling. Less hostile or threatening than anger it can nevertheless be an effective marker of the strength of someone’s feelings. Often preceded by the word ‘righteous’. People swell up at the suggestion that what they say is inaccurate or wrong. Accusations of untruthfulness inflate the righteous indignation balloon. When you see it, you can’t help wondering how much is bluster, camouflage or displacement activity. Expostulation is easier after all than explanation.

In a nutshell 14.49 •

Mediators can’t expect to hear the truth, the whole truth and nothing but the truth. 281

14.49  Truth •

Some people tell lies at mediations but most people mostly don’t.

•

People can have honestly held different recollections of the same event.

•

We tend to remember what helps us and forget what doesn’t.

•

Facts do in fact exist.

1 [1992] 2 AC 128. 2 [2020] EWHC 1015 (Ch). 3 [2019] EWHC 102 (Ch). 4 Poundstone Priceless: The Hidden Psychology of Value (Oneworld Publications). 5 Kant Idea for a Universal History with a Cosmopolitan Purpose (CUP). 6 Buon Communication Genius: 40 Insights From the Science of Communicating (John Murray), at p 28. 7 [2018] EWCA Civ 1391. 8 Festinger A Theory of Cognitive Dissonance (Stanford University Press). 9 (1894–1963). 10 (1883–1946). 11 For an interesting discussion, see Buon Communication Genius: 40 Insights From the Science of Communicating (John Murray), at p 28.

282

Chapter 15

Fairness

In this chapter you will learn •

Why the word ‘fair is used in every mediation.

•

What fairness means in mediation.

•

How to measure fairness.

•

Mind traps and emotions: Self-serving bias, false consensus bias, naive realism, exceptionalism, equality bias. Jealousy and envy.

15.01 Fair is a word heard at every mediation. With money and truth it completes the trinity of mediation power words. Everyone wants to be treated fairly. ‘Yes’, a party will tell the mediator ‘I want to settle today. I will pay something. But only what is fair.’ Or ‘Yes, I want to settle today. I only want to be treated fairly.’

Why is fairness so important? 15.02 Everyone tells themselves and the others that they’re trying to be fair. No one ever describes themselves as unfair. People don’t want to be seen as being unfair. Insurers describe their claims handling policies as being ‘firm but fair’. Insolvency practitioners explain to the defendant directors and their families that they have to be fair to the other creditors. In shareholders’ disputes the Shareholders’ Agreement often requires the transfer of shares at a fair price (see self-image and consistency bias at 6.13 and 14.35). Researchers have established the importance and power of the idea of fair by countless iterations of trust games, in particular the Ultimatum Game. The big problem is agreeing what fairness means. There are plenty of subjective interpretations. Many are self-serving. Does the New Stuff offer any clues about 283

15.03  Fairness what fairness means? The answer is yes. The starting points are the findings from the work using the Ultimatum Game and its offshoot the Dictator Game. Any discussions of the concept of fairness have to take these findings into account.

Ultimatum game 15.03 This experiment is designed to test the belief that you choose to accept or refuse an offer based on logic rather than status, ie logical rather than psychological decision making. At mediations we see that the importance of satisfying people’s sense of fairness and of cooperating to achieve this is often overlooked until the day is well advanced. This classic and well-known experiment produces two conclusions which are relevant to mediations: 1 We might think that we accept or we reject offers based upon logic. Even though the economic case points only one way we don’t always accept it. 2

Our sense of fairness often overrides financial logic.

What is the Ultimatum Game? You have two players. The rules of the game are: •

One player – the Giver – is handed £100. The Giver decides how much of that sum to offer to the other player – the Receiver.

•

If the Receiver accepts the offer both players keep their share of the £100. If the Receiver rejects the offer neither player keeps any of the £100.

You might think that the obvious thing for the Giver to do is to split the money equally so that each player keeps £50. Most Givers don’t do that. They offer a lower percentage. The interesting question is: what percentage should the Receiver insist on being offered before they can accept it? On a logical financial basis: £1 would be enough. After all, before the game starts, they have no money. Even if they only accept £1, they are better off than they were. Most Receivers don’t do that. They think it unfair. Their sense of unfairness means that they would rather suffer a financial detriment, ie not having what they didn’t have previously, rather than see the other player retain what they think is an unfair share. Yes, in the words of the cliché they are cutting off their nose to spite their face. Psychological or what?

Mediation message 15.04 This is important for mediations What do you think is the minimum percentage share that Receivers tend to insist upon before accepting an offer? It’s not 50%. It’s more like 25%. Not many Receivers set their offers below that percentage. The going rate seems to be about 284

Fairness 15.05 35% – about a third in other words. We seem to be able to tolerate someone having twice as much as us, but not more than that. This may reflect the same impulse and feelings which make the pain of a loss twice as intense as the joy of a gain (see 12.20). Interestingly, when the Receiver is a computer it will accept any amount above zero. Why? Computers don’t have emotions. In humans, emotions are triggered by any assault on our concept of fairness. This raises the important question of whether emotions prevent us from making the best deal for ourselves. Do we selfsabotage? We do if we are not careful. A variation on this theme is illustrated by the Dictator Game.

The Dictator Game 15.05 This was devised by Daniel Kahneman and Richard Thaler. A  group of students were each given $20 to split with an unknown stranger. The difference from the Ultimatum Game was that the Giver – the Dictator – decided how much to share with the Receiver. The Receiver had no input at all. In the first experiment the Dictators had two options. They could keep $18 for themselves and give the Receiver $2. Or they could split the money 50/50. In other words, the Dictators could avoid being unfair. Most, 76%, chose to be fair and offered the 50/50% split. These results have been replicated many times. Significantly when the Dictators had a wider range of options than in the original experiment Dictators were less generous. As with the Ultimatum Game the acceptable split is generally around 30%/70%. About 20% of Dictators gave nothing at all. What has been described as the definitive version of this experiment was carried out by Elizabeth Hoffman at the University of Arizona. To remove any suggestion that the conduct of the Dictators had been influenced by the presence of people they knew and, in particular, their course supervisors, they changed the format. Each Dictator was given a plain white envelope. They opened the envelope inside a cardboard box so that no one could see what they were doing. Most of the envelopes contained ten one-dollar bills and ten blank slips of paper. The Dictator could take as many of the bills as they wanted leaving the rest inside the envelope for the Receiver. They then had to remove enough blank slips so that the envelope would contain exactly ten pieces of paper, ie blanks plus bills. The Dictator handed the envelope to a monitor who gave it to the Receiver. The twist was that everyone was told that a few of the original envelopes contained no bills, only 20 blank pieces of paper. A  Dictator who received such an envelope would have to remove ten slips and leave the other ten slips for the Receiver. So that the Receiver who received nothing could not be sure that they had been intentionally cheated. 285

15.06  Fairness What happened? 60% of dictators took all ten one-dollar bills for themselves. They acted unfairly in their own self-interest. Or did they?

Implications 15.06 Is taking more than an equal share being greedy? (See Chapter 12.) Or is it acting in rational self-interest to maximise the return to yourself? From the rational economic point of view taking more made sense. But the results also show that •

We retain a residual sense of fairness even when we can be unfair with impunity.

•

Not all the power is always with the richer party – in the Ultimatum Game the Receiver can refuse and deprive the Giver of the chance of receiving anything.

•

Concepts of fairness are influenced by contrast. Just as with the comparative view of happiness, it’s not so much what I have got that matters, it’s what you have got (see 12.48 on Envy and Jealousy).

What does fairness mean anyway? 15.07 The problem is that definitions of fairness are usually subjective. Often the mediator can see, even if the parties can’t, that their definitions are grossly selfserving. Mediators have to work hard to understand what is included in everybody‘s definition of fairness. And then to see if there is any overlap.

Where does the idea of fairness come from? 15.08 As Cialdini reports fairness has been found to be a universal value. It underlies the key negotiation concept of reciprocation (see 9.03). It ties into the ideas of justice, and right and wrong ie morality. But as Jonathan Haidt concludes morality is more than just avoiding doing harm and being fair. For him morality has a functional definition. He defines it by reference to what it does, not by its content. He says that moral systems are: ‘interlocking sets of values, virtues, norms, practices, identities, institutions, technologies, and evolved psychological mechanisms that work together to suppress or regulate self-interest and make cooperative societies possible.’ This is a very full definition, but does it help at mediations? One feature of it is that it emphasises the pragmatic. It’s a functional definition. In other words, at mediations let’s concentrate on what works – what is doable.

What is a fair price? 15.09 That’s not to say doing this is easy or straightforward. There are still legitimately different ways of looking at things. Take the classic case of trying to agree a fair price. 286

Fairness 15.10 This crops up all the time in shareholder disputes where shares are being sold or transferred. Transferors and transferees never agree on a fair valuation of the shares. The valuers they each employ rarely agree on a fair valuation. In other words, although fairness is a universal emotion, what it really means is what’s good for me or my client. But is it all hopelessly subjective and self-serving? For example, within the context of professional share valuations subjectivity is not surprising for two reasons: 1

The different definitions of fair value and the different bases and assumptions professional valuers are entitled to use.

2

The purpose of the valuation. For example, a valuation of a property for lending purposes is likely to be lower than one for marketing the same property for sale.

In property disputes the parties agree to the property being sold or valued at Fair Market Value. What’s that? A working definition might be: A subjective estimate of what a willing buyer would pay a willing seller for a given asset, assuming both have a reasonable knowledge of the asset’s worth. But different definitions are used by professional valuers, eg: •

‘The price that would be received to sell an asset or paid to transfer a liability in an orderly transaction between market participants at the measurement date.’

•

‘The estimated price for the transfer of an asset or liability between identified knowledgeable and willing parties that reflects the respective interests of those parties.’

•

Definition of fair value is generally consistent with the definition of market value, which is: ‘The estimated amount for which an asset or liability should exchange on the valuation date between a willing buyer and a willing seller in an arm’s length transaction, after proper marketing and where the parties had each acted knowledgeably, prudently and without compulsion.’

Mediation message 15.10 As we can see even in a technical sense ‘fairness’ cannot be objectively defined. But it’s more complicated than that. Fairness has different conceptual meanings. A distinction is often drawn between procedural fairness and substantive fairness. In other words, process and outcome. This is particularly relevant to mediations: •

Process: This implies that you play by the same rules. And these are applied in an honest, open and impartial way.

•

Outcome: This implies that people get what they deserve. That the shares are fair. No one is disproportionately better off than someone else. Equality is often seen as equity, ie fairness.

Is fairness a sort of enlightened self-interest? Perhaps the evolutionary explanation is correct. Robert Trivers explains that in order to survive we realised that we had to work together and form groups. This taught us that we had to cooperate and a sort 287

15.11  Fairness of reciprocal altruism developed. According to him our genes for fairness evolved because those who had them did better than those who didn’t. But there could be limits – reciprocal altruism works where you play tit for tat. In twos and threes it makes sense. But what about groups? How do you enforce reciprocation? How is group disapproval expressed to those who don’t reciprocate? (see 9.03). The answer may be in self-regulation. A sense of fairness seems to be universal and subjective. It’s also innate. Research shows that we are born sensitive to breaches of the rules of fairness and are able to identify who is breaching them and to apportion blame. Even children as young as three to five years old are sensitive to fairness in social interactions. They preferred in one experiment to forgo an extra prize, an eraser, than to give more to one child than to the other. 15.11 A better explanation of group influence on behaving fairly can be found in the findings of an experiment by Fehr and Gachter. They also worked with Swiss bankers (see 5.14 on Intuition). They had students play 12 rounds of the Public Good Game. The rules were 1

You and your three partners each get 20 tokens on each round. Each token is worth about 10p.

2

You have a choice. You can keep your tokens, or you can invest some or all of them in the group’s common pot.

3

At the end of each round the experimenters multiply the tokens in the pot by 1.6.

4

They divided the pot amongst the four players so if everyone puts in all their 20 tokens the pot grows from 80 to 128.

5

Everybody gets to keep 32 tokens. They can cash them in for real money at the end of the experiment.

6

Each individual does best by holding onto their tokens and not investing any. If you don’t invest any tokens and your partners put in 20 each you get to keep your 20 tokens plus a 25% of the pot provided by your partners, ie 25% of 96. You end up with 44 tokens instead of 32. You are ahead.

Each player sat at a computer in a cubicle. Nobody knew who their partners were on any particular round. They saw a feedback screen at each session showing how much each of the four players had contributed. After each round the groups were mixed up so that each person played with three new partners. This meant there was no chance to develop the norms of trust or to use tit-for-tat tactics. Rationality has been defined as selfish self-interest. Here being rational in this sense would have been the right thing to do. The best option for each person is to contribute nothing – ever.

What happened? 15.12 Each player contributed about ten tokens to the common pot on the first round. As the game went on the contributions dropped. So, by the sixth round 288

Fairness 15.13 they were down to six tokens. A pattern of partial but increasing cooperation could be seen. Here was the twist. At the end of the sixth round a new rule was introduced. After round six you could learn what your partners had contributed and you could use some of your tokens to punish them. For every token you paid to punish, three tokens would be taken away from the players that you were punishing. Again, selfish rationality says never pay to punish. The reason is clear – you will never again play with those three partners so there’s no possibility of benefiting from reciprocation or from building up a tough reputation. And here are the interesting findings. •

84% of players paid to punish at least once.

•

Cooperation shot up on the very first round. It increased. By the 12th round the average contribution was 15 tokens.

•

Punishing bad behaviour promoted benefits for the group.

•

Why did most players pay to punish? It appears that it was because in part it felt good.

•

We don’t like to see people getting away with things. We want fairness to be enforced.

•

With reciprocation when we each trade something with each other, people end up more or less equal. You could think that this love of equality or egalitarianism originated from the evolving sense of reciprocal altruism. In fact, it appears to come more from a distaste for domination. People don’t like being bullied (see Chapter 6 on Self-determination).

Mediation message 15.13 You see this being expressed in mediations all the time. The receiving party will say that the way the other side have behaved in the past is unfair. What they’re proposing by way of settlement at the mediation is not fair. This is coupled with ’They shouldn’t be allowed to get away with it.’ ‘I don’t want it to happen to other people.’ ‘We are not going to be bullied into settlement’. These sentiments are usually expressed when the receiving party is turning down an offer from the paying party. It’s a sort of restatement of: ‘It’s a matter of principle – it’s not just the money’. No doubt these sentiments are genuinely felt when they are expressed. What is interesting is that as the offers are improved the receiving party agrees to not make a test case of it or go public. In exchange for more money, they will agree to a confidentiality clause. In the end fairness has a price much like anything else. 289

15.14  Fairness

Fairness: when and where? 15.14 As we have seen in Chapter  12 on Money, price is contextual. So is fairness. Kahneman and Thaler carried out a series of experiments to discover if there were rules of fairness. Partly this was done by asking scenarios such as: Q1 A hardware store has been selling snow shovels of $15. The morning of a large snowstorm the store raises the price to $20. R

82% said that was unfair. Supply and demand is no justification for increasing prices. The exact opposite of what economists say.

Q2 It’s Christmas. In a crowded toyshop there is a shortage of a particular type of doll. Shoppers hear an announcement that the doll will be sold by auction to the customer who offers to pay the most. R. 74% said that was unfair. Q3 A football teams has a limited allocation of seats for a cup final. There are three options: auction the seats, have a lottery and randomly choose the supporters who can have the seats or queue up – first come first served. R

The queue was the favourite. The auction was overwhelmingly thought to be least fair.

The rule seems to be: •

don’t increase your profits at my expense.

•

your gain shouldn’t be my loss.

This is not surprising given what we discussed about the pain of a loss being twice as great as the pleasure of a gain (see 12.20). And don’t forget framing (see 14.38). Presenting something in terms of a loss or a gain changes our conception of fairness. 15.15 Take this example. A  company is making a small profit. The local community is suffering a recession and substantial unemployment but no inflation. Many people want to work at the company. Management decides to cut wages and salaries by 7% this year. Is this fair or not? 62% said it was unfair. In another version: A  company is making a small profit. The local community is suffering a recession and substantial unemployment and inflation of 12%. Management decided to increase salaries by only 5% this year. Is this fair or not? 78% said that it was fair. In real terms the workers are both suffering the same 7% loss of buying power. Kahneman and Thaler concluded •

Our rules of fairness are self-serving. 290

Fairness 15.17 •

We don’t worry about consistency. By overwhelming majorities, we rejected the laissez-faire capitalist version of property and free enterprise. Equally we rejected consistent concepts of workers’ rights and the common good.

•

We see free markets as unfair because they could work just as much against our selfish interests as for them.

And what about biology? 15.16 We met oxytocin and testosterone in Chapter 2. Research has shown that increased levels of these affect how fairly people behave. Paul Zak administered oxytocin to players of the ultimatum game. The Givers were far more generous. In a 2007 experiment carried out by Stanton and Ahmadi the Givers increased their offer by 21%. The Receivers’ minimum acceptable offers were not changed. Contrast this with testosterone. In another version of the Ultimatum game carried out by Alina Verashchgina each player sat isolated in front of a button. They were told that by pressing the button they could reduce the amount of money paid to their unseen partner. The unseen partner had a similar button. They could retaliate and reduce the amount that the other person received. This was a stand-off. Nobody should be the first to press the button. One group was told that their partner had pressed the button. When learning this those who had been given testosterone retaliated massively by repeatedly pressing the button. They were not more likely to be the first to press the button. Testosterone has been found to increase competition for social dominance, which after all is relative. In the context of the Ultimatum Game receiving £1 is not worth having if the other person has £99. Better for both of us to get nothing. In summary fairness is: • Universal • Innate • Subjective • Self-serving • Influential • Contextual • Relative

How do mediators deal with it? 15.17 Parties look to the mediator for some sort of indication that the settlement is fair or at least fair enough. They know the mediator isn’t a judge but they still 291

15.18  Fairness seek mediator approval. Sometimes mediators are asked point-blank: ‘Do you think that’s fair?’ What do you do when you are asked this? You can decline to make any comment at all. Many mediators do. And that apparently is the safest course. But is it providing what your customers want or are paying for? If you think that the offer is at least reasonable you can say something like: ‘Well in all the circumstances, you can’t describe this as a rubbish offer. But I am not saying that you can’t get more either today or at court if you win’. Some mediators will say that they think a proposal is fair. Even going so far as to say that they would take it if they were offered it. Some caveat that by saying that they are not risk takers, etc. If as a mediator you are inclined to give an opinion, take the precaution of checking with the lawyers first. You don’t want to step on their toes or appear to be a rival source of knowledge and expertise power (see Chapter 13).

Mediator fairness 15.18 The concept of fairness doesn’t just come into the consideration of offers at mediation. Mediators have to be very alert to any perceptions of unfairness by themselves towards any party. In this sense we are talking about fairness as being impartial or even-handed. As explained in 15.10 there is a distinction between substantive fairness and procedural fairness. Mediators can definitely make sure that there is no procedural unfairness. Obvious ways that you can do this are by ensuring that: •

Each side is given the same opportunity to say whatever they want to say either to each other or to the mediator.

•

In any joint meeting use neutral language to each party.

•

In private caucuses you don’t show by gesture, tone or choice of words disapproval of what one party says.

Mediation message 15.19 Parties at mediation want to think that the mediator agrees with them and is on their side. This means that you must be particularly careful when engaged in reality testing or challenging conversations. Avoid a hectoring tone. Keep the tempo a little slower. You have to be very brave to do what one commercial mediator did in a caucus when he told the defendant’s barrister: ‘The reason that you’re saying we have to take a commercial view of this today is because your case is rubbish’. Evaluative mediators constantly run the risk of appearing to favour one side over the other. But since evaluative mediation, at least in the UK, is becoming more popular in commercial disputes perhaps the risk is worth running. But risk there is. 292

Fairness 15.24 When parties consider fairness, they look to see if what is being paid or received is proportional. This translates into the concept of shared pain. Vengefulness makes an entrance. The Ultimatum Game never goes away!

Fairness-related emotions 15.20 We have met them already when discussing Money, Power, and Truth.

Vengefulness 15.21 At mediations you see elements of retribution and revenge. And that really means punishment. Mediation is sold as a means of sharing gains by growing the pie. Fine in theory and sometimes in practice. More often people start a mediation wanting the other side to share the pain. This is linked with the idea of justice and blame or liability. These feelings may be subtexts. They may not be what people are actually talking about. But they influence people’s behaviour. Do not pretend otherwise. Be prepared to label it if you see it. Ask point blank ‘Is this about revenge?’ Most people say that it’s not but surprisingly often they admit that it is. The pain is usually financial. But sometimes it’s inflicted by just being unreasonable on terms which don’t really matter – is it three or five days to move out, who will pay the fee to lodge the order at court, etc – power plays. Recall that all power is delightful and absolute power is absolutely delightful – especially when you are exacting revenge (see 13.01).

Anger 15.22 See 13.60.

Disgust 15.23 See 13.65.

Mediation Mind Traps 15.24 We have also already met them: •

Naïve realism and false consensus bias (see Chapter 14).

•

Self-centred bias

•

Confirmation bias (see Chapter 14).

See also Chapter 6. 293

15.25  Fairness

In a nutshell 15.25 •

Fairness is a word used at every mediation.

•

Fairness is an elastic concept.

•

Fairness is a power word – refer to the Ultimatum Game to show this.

•

Fairness is situational – ask ‘Would you think this fair if you were in the other room?’

•

No one wants to be thought unfair.

294

Chapter 16

Trust

In this chapter you will learn •

Why you need a touch of trust at mediations.

•

How to win and lose trust.

•

The value of nasal sprays.

The problem 16.01 Two of the biggest obstacles at mediation are stress and trust. The presence of stress and the absence of trust (see 7.24 on Stress).

Want a new car? 16.02 For a lot of people buying a second-hand car is a stressful experience. And worrying whether they can trust what they are being told by the vendor causes some of that stress. Consider this scenario proposed by Rory Sutherland. You have seen the advert for the car. You go round to the vendor’s house. You see the car in the driveway and knock on the door. The vendor opens it. He’s a vicar. He tells you about the car. Or when you knock on the door a man in his underpants opens it. He tells you about the car. Who are you more likely to trust? And why? Remember what was said about clothes and authority at 13.41.

Mediation and trust 16.03 Trust is needed at all mediations. At best it’s asymmetrical. In other words, some mediation participants trust each other, and others don’t. Often no one trusts anyone very much. Or at all. 295

16.04  Trust Obstacles to settlement at mediations are often a series of gaps: •

Information gap – they have different information.

•

Power gap – one side is just bigger, richer and stronger. And they know it and want everyone else to know it too.

•

Investment gap – some people are more committed to the process.

•

Advice gap – lawyers are giving their clients different advice, sometimes diametrically opposite opinions on apparently the same facts.

•

Outcome gap – the parties will suffer or gain to different degrees whatever the outcome.

•

Relationship gap – the previous relationship has broken down. Sometimes it has turned toxic. Or some of the people at the mediation are not the people involved in the problem or dispute. They are new to it and to each other.

•

Credibility gap – no trust. This is usually the biggest gap. Lack of trust influences how we receive information, interpret it and act on it.

TOP TIP Explain to the parties and their lawyers that: •

Without a minimum level of operational trust any sort of agreement or deal let alone a legally binding settlement is impossible.

•

If you can’t trust anything that someone says even when they sign a written settlement agreement or a consent order, how can a workable settlement ever be achieved?

Trust as a concept has been investigated in all sorts of ways and at different levels, nations, organisations, in economic, sociological and philosophical terms. We are concentrating on trust at individual and small group level.

What is mediation trust? 16.04 Trust at mediation means two different things: 1 As a measure of belief in someone else’s honesty, fairness and benevolence. This tracks what is discussed in Chapters 14 and 15 on Truth and Fairness. 2 A  belief in someone’s competence. Another word for trust in this sense is confidence.

Truth Default Theory (TDT) 16.05 Researchers have shown that humans are predisposed to trust others and to evaluate other’s trustworthiness. This is the Truth Default Theory at work. Are 296

Trust 16.06 you friend or foe? Knowing the difference has always been important. In earlier times it was vital. Get the answer wrong and you died. You were living in a time and place where there were no communications or artificial lighting. The world around you was dark and silent for much of the time. There were no public police forces or armies. Personal security was really a matter for you and your village. How did you check on people? In the 21st Century knowing who our friends are and who our foes is less of an everyday concern for most of us most of the time. Except of course in business and politics (see 14.13 on Lying). We are more likely to trust someone than not. In a real sense it is a heuristic, a short cut (see Chapter 4). If we couldn’t take people on trust how would we be able to interact? We cannot check people out the whole time and verify everything that they tell us. This is part of the same predisposition to believe that someone is telling us the truth (see 14.16).

Nasal sprays 16.06 Trust and liking can be chemically induced. Spraying oxytocin up someone’s nose can trigger areas in the brain which process trust and liking. But will buying an aerosol of Liquid Trust be enough? No – the science says using oxytocin like a deodorant or perfume aerosol doesn’t work. But it’s a nice idea. Our trust can be misplaced. We are let down. We tend to react badly when that happens. No one likes being lied to, as discussed in Chapter 15. We like people we can trust, and we trust people that we like. At both individual and group level not being able to trust others means that we can never decide to do anything. Everything is a contingency. It might be true; it might not be. Trust makes everything more efficient – things are more predictable, co-operation and collaboration become easier. What we really need to know is will someone do what they say they will do. Although we may all have evolved to be naturally trusting not everyone has the same propensity to trust. Our trust level is a result of our life experiences including how we were brought up. Are we well adjusted, with no attachment disorders from our childhood? Is our baseline mood contented and optimistic? If the answer is yes we tend to be more trusting. In deciding on whether we can trust someone or not we jump to conclusions (see Chapter 5 on Intuition and Chapter 10 on Prediction). We are influenced by: •

Are they one of us? – group bias.

•

Do I know them – or people like them? – stereotyping.

•

Are they good looking? – halo effect.

•

Are they self-confident? – authority bias.

•

Do they look as though they know what they are doing? – also authority bias. 297

16.07  Trust What do we do when assessing people in this way? We look at their faces and in particular their eyes. The more people look like us the more readily we trust them. We all immediately size each other up in this way. But rather than rely upon seeing the whites of their eyes we should look at the context. Perhaps you have a problem – financial or health. It’s serious. You need to find a solution. Someone offers you one. You are predisposed to believe what they tell you. You want what they are saying to you to be true. This is how confidence tricksters work. When someone they want to cheat – the mark – is under stress they are more vulnerable and therefore more susceptible.

Mediation message 16.07 Mediators are in a potentially powerful position. Some of the decision makers will be in an aroused and stressed state. They will want to trust you when you explain how the mediation process can help deliver a solution in 90% of cases. You want to build on that trust throughout the day. Let’s look at how.

Mediators are short of time 16.08 Time is a problem. Most civil or commercial mediations only last a day. Trust needs time to develop. You don’t have lots of time at a mediation. Each mediation team’s members usually know each other and will have spent time together. The teams may not know each other. And usually they have never met the mediator. So, can trust be established? Yes, says the Swift Trust theory. This says that trust can be generated within ad hoc and even virtual teams. How quickly and how well it can be established depends on two pre-conditions: •

trustworthiness; and

•

trust propensity.

Even then the theory only really applies to teams belonging to the same organisation and sharing the same objective. This is not the usual situation at mediations. What we are talking about is a pentangle of trust. Typically: 1

Parties trust the mediator. At least to start with.

2

Parties don’t trust each other.

3

Their legal advisers might trust each other but not always.

4

Within mediation teams, clients and lawyers usually trust each other, but again not always.

5

Do mediators trust the parties? They have to. Do they trust the parties’ lawyers? They must do.

16.09 Mediators have a stock of goodwill. They have legitimate power from having been appointed by the parties (see Chapter 13). What mediators have to do is to demonstrate their competence early on. How can they do this? 298

Trust 16.10 Apart from building rapport (see Chapter 8). •

Be on time.

•

Show everyone that you know where everything is and can organise coffee and biscuits. Not possible in online mediations but you can ask if people need breaks or to have lunch.

•

Explain the mediation agreement and outline the process simply to the parties. The lawyers will usually know this. By doing it, and checking with them as you go along that they agree with what you are saying and inviting them to say if they disagree, you are both showing and inspiring confidence in yourself.

•

Show that you have read the papers.

•

Have a Joint Opening Session which you orchestrate and conduct well and smoothly.

•

Remember people’s names. Easier online with name tags.

•

When mediating online really know how to act as host and master the technology. Don’t let yourself be flustered or show technoangst.

•

As the caucuses follow on: –

Sum up accurately.

–

Double check about confidentiality – what you can disclose.

–

Cross refer to position papers, witness statements and documents.

–

Refer back accurately to previous sessions and statements.

Swearing 16.10 Think about language (see 9.23). We are constantly enjoined to be authentic. Some think that swearing is authentic. Well, it may be an expression of real frustration or anger. But whether it’s correlated with honesty is a more open question. Interesting research on this was published by David Stillwell and colleagues in 2017. They looked at people who said that they didn’t swear much and were measured on the ‘the Lie scale’ test. Those who said that they didn’t swear much seemed to lie more. This finding was reinforced by a study of Facebook feeds. They found that the more people swore the less ‘lying’ language they used. But research at Erasmus University in Amsterdam by Doctors Rassin and van der Heijden suggested a different result. When people were asked whether they thought that someone who was swearing was more or less likely to be telling the truth or not, more than twice as many thought that swearing made you sound unreliable.

TOP TIP •

Generally, it’s better to moderate your language.

•

It’s also better to moderate your assertions: What sounds more credible? ‘I’m 80% sure’ or ‘I’m 100% sure’? 299

16.11  Trust

Building trust between the parties 16.11 Mediators want to build trust between the parties. You may not be able to do it. At mediations each team wants to know that the other team is attending the mediations ready, willing and able to have a serious conversation about settlement. They each need to receive a signal or message from the other side that they are here with the right mindset. There are some good ways of doing this. •

Early wins: For example, one room is keen to have a Joint Opening Session and the other is at best ambivalent or needs to be reassured that the clients are not going to be bullied, berated and humiliated. You are able to sort out the expectations. The Joint Opening Session starts. You have shown your competence and lowered distrust levels. The parties have seen that each of them is joining in the process. You are increasing the sense of mutual buy-in, ie trust.

•

Let the parties see that the process works. If one team has a request for information, encourage the other side to provide it if they can. They may not be able to do it immediately. Explain to the requesting party what is going on, what the other side is doing and as soon as the information is available bring it in.

•

Do the same with requests for explanations. Try and make sure that they are coherent and deliver them. The sooner the better. Delivering information quickly reflects well on both the mediator and those providing the information, showing efficiency and commitment to the process. It also keeps the momentum going.

16.12 As mediator you have to persuade both rooms of the need to have a minimum level of operational trust. Encourage them to suspend their distrust and dislike of each other. Doing this frees up the process of exploring settlement options. This won’t guarantee a settlement but will clear the undergrowth so that everyone can see the path to settlement more clearly. To do this be prepared to warn people of the dangers of demonising each other. Ask how repeatedly criticising each other will help achieve settlement. Persistent personal attacks on each other are often a form of displacement activity. Building trust between the teams is best done by building settlement momentum through timely and orderly exchanges of offers. Once each party sees that the other is making serious offers they are encouraged. Their confidence grows. Trust starts to rise. Certainly, mistrust and distrust fall (see Chapter 17 on the Psychology of Offers). Recall Chapter 12. Money may be the language of settlement but offers are the vocabulary. As the Canadian media theorist Marshall McLuhan1 said in another context: the medium is the message. At mediations both the medium and the message is money. Be careful: building trust is vital and so is not losing it. 300

Trust 16.13

How do mediators lose trust? 16.13 Here are the ways that this can happen: 1

Appearing biased. This is the most corrosive of trust. Remember that the parties are aroused and hyper-sensitised.

2 Appearing to spend too long with one party and not enough time with the other. Time management is difficult. Make sure that you note the start and finish time with each party when having a caucus. Warn each room how long you will be with the other room. Try to stick to the timings. If you are overrunning let the other room know – send a text or just pop your head round the door. We can all lose track of time at mediations. Remember, when you are the one waiting, time lengthens. Be ready to call time on a caucus. You can always bring sessions to an end by saying: ‘I don’t want the other room to feel neglected’ or: ‘It’s important that they hear what you have been telling me so that they can factor it into their thinking’. 3

Body language. Re-read Chapter 8. Try to not express disapproval, disbelief or dislike by your facial and body gestures. Watch your posture. If you feel yourself slumping back, lean forward. Keep hands palms down on the table and don’t fiddle with your pen, coffee cup or phone. As the day wears on ego depletion can set in. Stay attentive (see 4.19).

4

Phone calls. Taking or making phone calls is very occasionally unavoidable. If you know that you will have to make or take a call tell people in advance. Try and find an interval between caucuses. Even then keep phone calls as short as possible. Parties at the mediation that you are doing that day don’t want to feel that you are thinking about a mediation that you did last week or will be doing in two days’ time.

5

Too much information. You may candidly share your assessment of the other room with one room, but they may think: ‘if the mediator is saying that about the other room, what are they saying about us?’

6

Interrogation. Refer back to Reality Testing in Chapter 8. Some of the most successful UK civil and commercial mediators go in for robust reality testing and an evaluative approach. Even highly regarded ones can overstep the mark and dismay solicitors by bullying their clients. This can happen either because of the overconfidence of the expert mediator – confidence bias – or the under confidence of the inexperienced mediator (see Chapter 15).

7 Too much pressure. Mediation is sold as a process that allows the parties to construct their own settlement. They decide the terms and, in the end, whether they want to settle or not. One side may be keener than the other. Mediators can be optimistic, encouraging and energetic. What you have to avoid is pressuring clients or their advisers to settle just to maintain your settlement rates. 8

Arguing with the lawyers. You might win the point, but they will stab you later. Nothing in the legal jungle is as vengeful as a lawyer who has been exposed in front of their client.

9 Bringing bad news. Mediators are told during their training not to bring bad news to the parties. Let the parties do it themselves. In practice this is unrealistic. 301

16.14  Trust Mediators are often the bearers of bad news. As a result, they risk being tainted with the distrust that the receiving party feels towards the other team. Tell them: ‘Bad news. They want…’. After the explosion of indignation, disgust, frustration and bad temper say: ‘Please. I’m only telling you want the other room asked me to tell you. Don’t shoot the messenger’.

Mediation mind traps: trust Ad hominem fallacy 16.14 This is the belief that if you cannot trust someone, you cannot trust what that person says. At mediations one side repeatedly criticises the untrustworthy nature or conduct of the other and dismisses as unreliable whatever the mediator reports them as having said. This overlaps with reactive devaluation. This makes it harder for mediators to establish the minimum level of operational trust (see 8.34 on Rapport).

Empathy gap 16.15 Empathy is a mediation rock star. Recall what Barack Obama said about the empathy deficit (see 8.04). This is the tendency to underestimate the influence of strength of feeling of either oneself or others. At mediations, one party will often say that this is just business but reveal that they are not taking decisions based on a business case. ‘I know that it makes make sense financially but it doesn’t feel right.’ Each side starts off the mediation by doubting whether the other side realises how cheated or let down they feel. Until someone feels that this has been understood by both the other side and the mediator, they don’t feel they have been acknowledged and heard. And until they have been heard they are not going to hear anyone else (see Chapter 3 on Emotions and 8.34 on Rapport).

Fundamental attribution error 16.16 The tendency when judging other people’s behaviour to overemphasise their personal characteristics and underestimate their situation. We attribute other people’s actions to their personality, not to the situation they find themselves in. So, if we think that somebody is doing something bad towards us we blame the sort of person they are not their circumstances. But when we do something good or achieve success we attribute that to our personality and ability 302

Trust 16.17 and not to our circumstances. When we do something bad or fail it is not our fault. It is down to the circumstances in which we find ourselves. The seminal experiment which illustrates this tendency is the Stanford Experiment. This was carried out in 1971 by Philip Zimbardo. For the experiment he had a group of 24 male students. They were chosen at random to be prisoners or guards. Background checks were carried out to make sure they had no history of violence or substance abuse. The prisoners were given smocks with numbers on their backs and chains around their ankles. The guards were given uniforms with mirrored sunglasses and wooden batons. The guards were told to refer to prisoners by their numbers but not to physically harm them. The experiment was designed to last 14 days. They stopped it after six. Why? It all went badly wrong. At first the prisoners and the guards didn’t take the experiment very seriously. They joked about. Gradually they got into role. The guards in particular became more aggressive, abusive and cruel. By the second day the prisoners revolted and barricaded their cells with mattresses. The guards responded with fire extinguishers and forced their way into the cells. They stripped prisoners naked, took away their beds and began to insult them. The experiment was stopped because it had gone too far with cruelty and degradation. The prisoners were glad that it was over. The guards weren’t. In the follow-up the prisoners said that they felt they had lost their identity. They started to worry about their own sanity and simply forgot that they could leave the experiment at any time. They were willing to do what was asked of them. By contrast the guards said they were only following orders. The problem is that a re-examination of the experiment and its methodology in 2019 by Thibault Le Texier showed extensive and unjustified intervention by the research team.2 As Stuart Ritchie concludes: ‘Despite the enormous attention it has received over the years, the results of the Stanford Prison Experiment, such as they are, are scientifically meaningless’. Another example of social scientists disagreeing with each other. Recall the replication crisis in 1.19. 16.17 Much later Zimbardo examined the behaviour in the Abu Ghraib prison in Iraq. He argued that the explanation given by the authorities that what happened was a result of a few rogue individuals was wrong. They were making a fundamental attribution error by blaming individuals, not the situation in which they found themselves. His conclusion were that: •

people are not inherently good;

•

they are good because their environment encourages them to be good; and

•

anyone is capable of behaving like a monster in circumstances which gives them the power and the opportunity to do it.

This bias leads us to label people and make assumptions about them. In other words, we engage in stereotyping. We often do this on the basis of first impressions. These can often be wrong. But our first impressions stay with us and influence 303

16.18  Trust us until we get to know someone better. In particular we need to understand the circumstances in which people find themselves (see 5.11 on stereotyping).

Mediation message 16.18 At mediations one room will often blame the personalities of the people in the other room for the situation. You hear a lot of personal criticism. Sometimes it’s justified. One side describes the other as unreasonable. When proposals are received they reject them saying that this just proves that they are unreasonable. ‘They’re just like that. There’s nothing you can do.’

TOP TIP •

Try to get each room to see the other side’s perspective. –

•

Ask one room: ‘What would you do if you were in the other room and in that situation?’ You often get the usual flippant reply: ‘We wouldn’t be in that situation’. Tell them: ‘That’s not helpful. Engage in some imaginative reconstruction. Ask yourself if you found yourself in the same situation what would you be doing and saying?’

Adopting a situational interpretation of the problem depersonalises the dispute and makes it easier to tackle it as a technical exercise. – Instead of vindictive enemies and unreasonable people we have a situation – a problem which is capable of assessment. We pick it apart and look at possible solutions to the various issues. That can engender a more collaborative and less confrontational approach. After all, people do business with people that they know, like and trust. –

At mediation, knowledge, affection and trust are often absent. But you can build it. Each side can get to know the other side. The more they get to know each other the more chance there is that they come to like each other a little more. Especially if they engage in some joint activity. It might be just having coffee and biscuits together. It could be the two experts meeting on their own without clients or lawyers. By reducing the personal element and replacing it with the situational element distrust can be reduced. The effect of that is to increase trust.

Mediation message 16.19 Mediators are not just messengers they are also interpreters. They don’t just ferry information from one room one room to the other. They make sure that as far as possible each room understands what the other is saying to them and each room feels confident that their message is being understood by the other room. Once you have achieved a higher degree of mutual understanding, and this is not the same as agreement, you have a lot more chance of reaching a deal. Doing this helps to counter the negative effects of fundamental attribution error. 304

Trust 16.21

Reactive devaluation 16.20 This is another universal bias. We are all susceptible to it in everyday life. What is it? Put simply, since this is not your idea or suggestion it must be a bad one. In ordinary business a common reaction is: ‘not invented here’ followed by rejection. When parties are in conflict it’s an automatic response. They are on a war footing. The other side is the enemy. Anything they say or do must be designed to weaken our position, undermine us or do us down. How does this apply to mediations? It begins before the mediation starts. Who is going to be the mediator? One side suggests some names. Immediately the other side want to reject them because they are the other side’s suggestion. This is repeated over choice of venue, date, organisation of the mediation bundle. Much time and energy and more importantly clients’ money, is wasted. The parties arrive at the mediation. The first question from the mediator is: are we going to have a Joint Opening Session? The automatic response to the question is: ‘Do the other side want one? What do they say?’ Eventually negotiations about settlement terms start. Suggestions and ideas are put forward to resolve particular issues. Time and again you see reactive devaluation. A property needs to be valued. One side suggests a valuer: the other side never agrees the name. The timescale for paying off the agreed sum is suggested. It’s never accepted. Strangely after further toing and froing the names and the timeframes originally suggested end up being agreed as part of an overall package. Why do we do this? Probably apart from a simple lack of trust in the person who is making the suggestion it’s either: •

ad hominem bias – in simple terms this means we think that the other side are bad people therefore anything they say must also be bad – which in turn is an illustration of authority bias; or

•

naive realism: that is the assumption that other people think the same way that we do. They share our worldview, ie  our standards, goals and values. This of course is not the case. Also, it can be seen as a sign of weakness. Any concession to or any agreement with anything the other side says means we are not confident in our position. They will receive the wrong message from us. In any case, if you give them an inch they will take a mile.

How do you cope with this at mediations? Be contrarian 16.21 Parties and their advisers should first ask themselves: ‘Wait a minute, actually what is wrong with agreeing with their suggested valuer?’ Or: ‘I know we want the money paid within six months. Could we accept 12? How bad would it be if we did?’ In other words, think the opposite. Adopt the other side’s assumptions, apply them to your situation and ask what difference they make? Why can’t we live with what they suggest?’ Often you find that you can. 305

16.22  Trust

Be conditional 16.22 Attach a condition to your acceptance of their suggestion: ‘We can agree with your suggested valuer but if he can’t do the report within four weeks then we will use XXX’ or: ‘If you’re asking for 12 months as opposed to six months then you will have to pay us interest’. ‘ What you’re doing is acknowledging that they want something from you, moving towards meeting it ie showing them respect, but asking for something in return. Never at a mediation, or indeed at any negotiation, make unilateral or unconditional concessions. Always trade them.

Use camouflage 16.23 Ask the mediator to support the suggestion by presenting it to the other side as though it was their suggestion. Some mediators are happy to do that. Some actually encourage it. Others don’t like it. Certainly, it can cause credibility problems if they do make a suggestion and the other side ask point-blank if this your idea or the other side’s. Mediators can never lie. If anybody starts to doubt the mediator’s credibility, impartiality or honesty they are finished and so is the mediation. The best that a mediator might be able to say when being asked point-blank is: ‘the idea emerged out of discussions’. But in the end, you cannot deceive.

Try compromise 16.24 Recognise that reactive devaluation will probably mean that the other side will reject your suggestion for a third-party expert or valuer out of hand. Therefore, either link it to another concession that you’re prepared to make towards what they want. Suggest a name that you don’t expect them to accept. Invite another name from them. Reject their suggestion. Come up with a compromise candidate. This ploy is often used when trying to select mediators right at the start of the process. In all cases ask yourself three questions: 1

What I have I got to lose by accepting their suggestion?

2

What do have I to gain by accepting their suggestion?

3

Will progress towards settlement be advanced if either I accept or reject their suggestion?

For example, at mediation you see reactive devaluation when you as mediator walk into the room with an offer from the other side. Without pause and without looking at their clients the lawyer, especially the barrister, firmly says: ‘That’s no good’. One of the problems with this reaction is it shuts down thinking. A much better approach is for lawyers not to say anything but look at their clients and ask ‘What do you think?’ They might even say that’s disappointing or that’s not very constructive. As mediator turn to the client and ask them what they think? 306

Trust 16.25 The vital question having received a proposal or offer is: what do we do with it? And the best answer is to say that it can’t be accepted in its present form but if they were able to amend it in this way or that way it would be acceptable. Don’t bin their suggestions, or proposals. Build on them (see Chapter 17). As a client or an adviser your reaction to a proposal even if it’s unacceptable should not cause your thinking to close down; it should be one that prompts you to open up your thinking.

Mediation emotions: trust Contempt 16.25 This is a really destructive emotion. If as a mediator, you see signs of contempt this is a flashing red light. You know you’re in for a hard day. Contempt is often linked with disdain, anger, resentment and scorn. Whatever you are using you are describing a state of rejection and distancing. Some theorists distinguish between: •

resentment, which is anger directed towards a higher status individual.

•

anger which is directed towards an equal status individual.

•

contempt which is anger directed towards a lower status individual.

So, when someone describes an offer or an argument put forward by one room as ‘beneath contempt’, you know you’re going to have to work hard to re-engage them. They are not listening. Their minds are closing. Whether you call it contempt or disdain or scorn they are very destructive emotions and attitudes. One of the disadvantages of having Joint Opening Sessions is that people have the opportunity to display contempt. They don’t have to say anything. This is the power of the emotion. All they have to do is adopt a dismissive body posture, close their eyes and tighten their lips when the other is speaking, roll their eyes, look deliberately out of the window when the other team is making their best point, sigh heavily, etc. Displays of contempt are always treated as signs that the other person is feeling that they are in some way superior. If one of the main purposes of the Joint Opening Session is to create the right mood for settlement, then displays of contempt are anathema. Experts show contempt for the opposite number and of course for non-experts. Having decided that the answer to the whole dispute is their technical analysis they have no time for anybody who does not agree with them and does not adopt it immediately. Clients can be tempted to express contempt for their opposite numbers especially if they have had a previous relationship with them. This is where the elements of anger and resentment feed into the concept of contempt (see Chapter 13). What can you do about it? 307

16.26  Trust

TOP TIP If you’re on the receiving end of the contempt don’t react. Show your resilience. Say something like: ‘So, you don’t think that’s worth considering? What would you like to consider?’ Just keep on. Show that you are corrosion resistant. As a mediator you have to suck it up.

Not everybody thinks that contempt is a negative emotion. Like rage, scorn and anger it can inspire people to protest, demonstrate and bring about reform. For some, conflict resolution is not just about helping people get rid of conflicts – it can also be about helping people engage more constructively with conflict. For example, Bernie Meyer argues this. He is from the therapist wing of mediators. In ordinary civil and commercial mediations this approach is of no value. It might help in other contexts (see 1.14).

Disgust 16.26 See Chapter 13.

In a nutshell 16.27 •

Trust everyone but verify.

•

Our default state is to trust.

•

Losing trust is quick and easy.

•

Don’t waste trust.

•

Using Liquid Trust nasal sprays won’t work at mediations. Being trustworthy will.

1 (1911–1980). 2 See Debunking the Stanford Prison Experiment.

308

Chapter 17

The Psychology of Offers

In this chapter you will learn •

How to make offers.

•

When to make offers.

•

How to receive offers.

•

How to make use of emotions and mind traps.

O2 17.01 Offers are oxygen. Without them mediations die. No offers: no settlement. You can have discussions, explorations and arguments but without offers they won’t lead to deals. Can we use what we have learned about emotions, mind traps, language and behaviour to formulate, present and receive better offers? Yes. Here’s how.

Zones 17.02 Look at the path to settlement at mediation as a journey through four zones: •

The comfort zone.

•

The credibility zone.

•

The deal zone.

•

The red zone.

The comfort zone 17.03 The parties arrive at mediation. Some are anxious or apprehensive, especially if they have not been to mediation before. They will be comforted by their advisers who are telling them they have a good case. Everyone at mediation tells themselves and the mediator that they have a good case. This is not surprising. If they did not have a good case, surely they would have already settled? 309

17.04  The Psychology of Offers Everyone is confident that they are right. They are comfortable with their stated position. They are prepared to listen. Graciously they extend to the other side the opportunity of persuading them. During the early private sessions, they repeat all their best points, both legal and evidential. Rooms become echo chambers. Full of confirmation bias, motivated reasoning and over optimism. They admit to being concerned about three things: •

The other side are not at the mediation with a genuine intention of trying to settle.

•

The other side do not understand the weakness of their own position.

•

The gap in understanding and financial expectation is too wide.

Both sides assure each other and the mediator that they want to settle, while expressing confidence in their own case. Settle if we can, fight if we must and win without doubt.

The credibility zone 17.04 Most parties at mediation want three things: 1 To be credible to the mediator, even seeking the mediator’s approval. They think well of themselves and they want their good opinion to be shared by the mediator. Ideally, they want the mediator to not just understand their case but to adopt it and be their advocate in the other room. We all like approval (see 9.08). 2

To be credible to the other side. When they say that if the case doesn’t settle today, they will take it all the way to trial the other room had better believe it.

3

The other side to be credible to them, ie to show that they are at the mediation ready, willing and able to have a grown-up conversation about reaching a settlement.

Both sides test each other with requests for explanations and information. Mediators start some gentle reality testing (see Chapter  8). Gradually the ‘we can’t lose under any circumstances’ rhetoric is tempered by acknowledgments that there is always some degree of litigation risk. Offers emerge. This is the first real test of credibility. Mediators remind them of the 5 categories of offer: Insult, Extreme, Credible, Reasonable and Acceptable. Most first offers are usually classed by the recipients as insult or extreme. The ritual begins (see below). The mediator is trying to find out where the deal zone is.

The deal zone 17.05 Both parties come to the mediation with some idea of where they would like to end up. They have some idea of what the other side are looking for and will settle at. If they haven’t, they haven’t prepared properly. 310

The Psychology of Offers 17.08 As the parties discuss things and transition from the credibility zone to the deal zone, mediators form impressions of where they are prepared to move to. Sometimes this is based on express instructions. More often on interpreting clues and cues. Mediators begin to see the outlines of the Deal Zone. They may share this with the parties. Some do it indirectly with nudges and coded comments. Others do it explicitly with bracketing (see 17.37). Eventually the deal is agreed. Job done. We can all relax. Well not quite. The settlement agreement has to be drawn up and signed off.

The red zone 17.06 This is a dangerous time. The parties have agreed the settlement but have not recorded it in writing. It’s not legally binding. Some people switch off and can’t wait to leave and go home or to the pub. Others start to replay the day. Could they have done better? Should we change our mind? Let’s sleep on it/run it past the accountants/double check with the CEO. Lawyers engage in deal improvement. Whatever terms have been agreed they want to make them better for their clients in the drafting. Sometimes they are acting on instructions but mostly they are acting on their own initiative. Professional pride kicks in – they want a well drafted agreement. They want to make sure that their client is protected. It can all go wrong at this stage. The iron law is that drafting the agreement always takes longer than you think or than it should. We must not overlook our inbuilt optimism bias (see Chapter 10). Eventually everyone one signs. Deal is done.

What do you do? 17.07 Having read this far you know the emotions and mind traps that come into play. All the participants – that’s clients, advisers and mediators – are prone to them. How can you use this knowledge to navigate through the zones to signature?

Look at the eight Ms of making offers 1 Mindset 17.08 Remember why you have come to mediation: to make peace not war. You find deals by looking for the common ground not the battleground. Recall what has been said several times throughout this book – that people do business with those they know, like and trust. The more the other participants, 311

17.09  The Psychology of Offers including your opponents, know, like and trust you the easier it will be to do a deal. This applies to clients and advisers. Recall the power of flattery, mimicry, praise and kind words in Chapters 8 and 9. Being pleasant costs nothing: being unpleasant costs deals. No matter how frustrated angry or resentful you feel, manage your emotions and present a calm confident and agreeable demeanour. There is no point in doing anything else. You may have to say hard words or explain unpleasant truths to the other side. They may not like what they hear you say but don’t let them take objection to the way you say it. Prepare for negotiation. Have your offers worked out. Know in advance what you can trade. Stay flexible.1

2 Messages 17.09 Parties and advisers, as well as mediators, want to know that each side has come to the mediation to have a grown-up conversation about settlement. So think about the messages you send. Messaging starts before the mediation day. Recall what was said about solicitors’ correspondence making clients angry. Be aware of the dangers of annoying people in your mediation statement or position paper. Balanced assessments are more persuasive than partisan and tendentious presentations (see Chapter 13).2 When you make an offer, you are not just telling the other side your terms, you are sending them a message. Ask yourself: what message do you want to send and what message will the other side receive? Be clear about the purpose of your offer. What is it for? What impact do you want it to have? If it’s a first offer are you making a serious offer to try and conclude an early deal? Are you anchoring (see Chapter 12) or are you just starting the ball rolling? For example: •

In a claim against related parties by a trustee in bankruptcy (TIB) for just £1m there had been pre-mediation offers that had been rejected. TIB had offered to settle for £750K. The defendants offered £50K.

•

At the mediation the defendant offered £76K with a calculation of how the sum had been calculated. They put the offer in the acceptable category.

•

The TIB rejected it as insulting. Their offer was £490K. The defendant rejected it as insulting. They provided a calculation. Having annoyed each other with their first round offers the parties looked at each other’s’ calculations and commented on them. The second round of offers were calculated using a shared methodology. Negotiations continued on that basis, Settlement was achieved well within time. 312

The Psychology of Offers 17.10

TOP TIP •

Clients and advisers: When formulating offers try and adopt as many of the other side’s assumptions as possible. That could be methodology as in the above example or an assumed profit margin.

•

When doing this always preface your offer with ‘If’, as in: ‘If, for the sake of argument, …’ or ‘If we just assume your interest rate of X% … then’. This shows that you are engaging with them, not dismissing what they say out of hand and t are being constructive. All this promotes warmer feelings.

•

At the same time by making it conditional with the word ‘if’ you are giving yourself both room for manoeuvre and the chance for re-examining the assumption later and replacing it with one of your own.

•

Mediators: Encourage framing the discussion in terms of assumptions not arguments. Explore alternative assumptions. This is more conducive to settlement than arguing.

•

Using process depersonalises the dispute. Emotions, personality and bias are still present and are influencing behaviour, but they are not at the forefront.

3 Money 17.10 Some mediations are not primarily about money. Examples include disputes over rights of way, enforcing restrictive covenants, delivery up of infringing material, etc. But most are. And even when they aren’t, money is always discussed (see Chapter 12). Similarly, even when the issues are primarily financial there are often non-monetary elements, eg  a reference, an extended licence, withdrawal of complaint, an apology, etc. Sometimes, these non-monetary elements could not be obtained from the court. They are non-judicial remedies. They can still be valuable. Parties can use them as carrots: ‘If you can agree £X for your employment claim then we could let you have this reference/testimonial’. Identifying non-monetary issues which could be included in any deal demonstrates an open-mindedness. In the classic words of Fisher and Ury you are demonstrating a willingness to create value or grow the pie. This can be very encouraging. How best to introduce them? (See Chapters 9 and 12.) There are two competing temptations: 1

To spend a lot of time discussing the non-monetary elements and defer talking about money. The danger is you make good progress on the non-monetary issues only to come up hard against the roadblock of money. When that happens, people feel resentful that they have wasted all their time and goodwill in discussing a deal that was never going to happen because the key ingredient, ie money, was not going to be agreed (see Chapter 12 on Money). You can end up with a lot of activity and no progress. Frustration, resentment and even anger predominate. 313

17.11  The Psychology of Offers An advantage of this approach is generating a sense of cooperation and settlement momentum. Pick low hanging fruit. Secure some easy wins. It can work. The trick is to keep the money issue on the table at the same time. Don’t lose sight of it. Remind everyone that nothing is agreed until everything is agreed. 2 Put everything on the table. Deal with the hard issues first. If you can crack them the easier ones fall into place more smoothly. Recall reality testing, discussed in Chapter 8. Mediators perform a reality test to help parties avoid wishful thinking or even self-delusion. And if the reality is that agreement can be reached on a range of non-monetary issues but not on the money then the sooner everyone knows that the better. For example, you could say ‘If we can agree the money then we could agree to X, Y  Z…’. Make money the carrot, not the stick. You are showing flexibility, pragmatism and realism. All essential qualities for doing deals. What matters, in the end, is the overall package. You may feel that you gave too much on one element, but you got more on another. You can live with the overall package. 17.11 You saw from Chapter 12 the different meanings money has for people. Be aware of what it means to you. Don’t fall into the trap of naive realism (see 14.39) and think that it means the same thing to everyone else. Instead bear in mind: 1. Wood’s First Law: never underestimate the healing power of money. In other words, most settlements revolve around money even though there may be non-monetary issues involved (see Chapter 12). 2. Money is a very emotional subject. It means different things to different people in different circumstances. The big difference being whether you are paying or receiving (see Chapter 12). 3. The psychology of the paying party is always different from that of the receiving party. Why? (a) We are all loss averse (see 12.39). (b) We are all prone to the endowment effect (see 12.29). (c) The pain of a loss is roughly twice the intensity of the pleasure of a gain (see 12.20). (d) We are more likely to take a risk to avoid a loss than to secure a gain (see 12.31).

4 Management 17.12 Three things we manage at mediations: • Process. • Time. • Expectations. 314

The Psychology of Offers 17.15

Process 17.13 Mediators are process managers, but they operate by the consent of the parties. They need to have a consensual collegiate style of management. In fact, mediations, whether we like it or not, are team efforts. Everyone has to play their part (see Chapter 8). Recognising this is a huge step to any peace-making effort. Breakout meetings between different members of the two teams become easier. Barristers of course are always keen to talk to their opposite numbers on a one-to-one basis without anyone else being present. But solicitors and in particular clients should feel able to assert themselves and talk to each other. Mediators need to keep track of time and cues and monitor moods and energy levels (see Chapters 3 and 5).

Time 17.14 Time management is crucial. As a mediator you want to make sure that the best hours are spent in the best way. You may have eight hours at the mediation, but they are not equal hours. People’s energy and concentration levels drop (see Chapter 7). Is it fair to say that mediations only produce settlements when everybody is exhausted, fed up and can’t wait to go home? That can happen. Equally when people reach exhaustion they give up and go home without a settlement having been achieved. Surprisingly often, because of the dynamic nature of mediations, unexpected ways forward suddenly emerge, but if everyone is too tired they are not explored properly and the opportunity is lost. Mediators have to regulate the time spent on different activities and issues. There is no point going over legal issues for hours before any sort of settlement proposal is even discussed privately let alone exchanged. Watching the time like this and using it wisely helps keep the momentum going. Mediators should check the time, give each room updates and identify milestones. Reminding people of how much time has passed and how much is left helps them focus. Be careful about deadlines. Statements such as: ‘They have ten minutes to accept our offer then we are leaving’ are hostile. People see them as another power play – raising the stakes to try and dominate the agenda. But asking for time estimates helps to keep structure and momentum (see 13.43).

Expectations 17.15 Manage your own expectations as well as the other side’s. Do your PMA (pre-mediation analysis).3 315

17.16  The Psychology of Offers Use your mediation statement/position paper and the Joint Opening Session to manage theirs. Recall the Rosenthal effect – expectations influence performance and outcomes (10.11). Coming to a mediation convinced that you are going to not settle almost guarantees that you won’t settle. Change your mindset. Underplaying the prospects of success is a way of inoculating yourself against disappointment if the mediation doesn’t succeed. Giving yourself an alibi in advance is known as sour grapes bias. That’s where having failed to get the job you applied for, you talk yourself into believing you wouldn’t have liked it anyway and not getting the job was the best thing. It’s a variation of cognitive dissonance where our actions and beliefs conflict so we adjust our attitudes to relieve the discomfort that dissonance induces (see 14.33). It’s also a way of reassuring yourself that you didn’t fail. The mediation was doomed. There was nothing that you could have done. This removes the responsibility from you. What this approach overlooks is the transformative element in mediation – namely the presence of a mediator. Time and again parties tell mediators after signing the settlement agreement that they never thought it would settle. Some are gracious enough to tell the mediator that it wouldn’t have settled without the mediator’s efforts. Without doubt the presence of a third-party stranger to the dispute changes the environment completely. Be prepared for that. Use it.

How do you manage expectations? 17.16 Consider the sort of things that are heard at mediations: 1

‘We want to have a Joint Opening Session so that we can set our parameters for discussion today.’ In other words, manage expectations through framing and anchoring.

2

‘We want to hear from them first. We don’t want to show our hand. We don’t know where they’re coming from. We might make too high an opening offer.’ Not anchoring, handing the initiative to the other side. Telling the other side that they will have to do the running.

3 ‘We don’t want to bid against ourselves. We need to know where they are.’ A combination of 1 and 2. 4

‘Unless they realise that they are going to have to pay us some money there is no point in carrying on with this mediation.’ Dominance behaviour. Better to leave it to the mediator to ask the other room: ‘How likely do you think that this will settle without money moving from this room to the other?’

5

‘They are so far off the planet that there really is no prospect of a settlement unless they change their minds.’ Negative expectation setting. Better to say to the mediator that the gap is enormous and ask how they see it being bridged. Co-opt the mediator. Remember they are not just messengers and moderators. They are also interpreters and guides. 316

The Psychology of Offers 17.19

5 Movement 17.17 As has been explained, mediations are dynamic. Things are constantly changing. New issues emerge. Fresh information is produced. Moods, feeling and emotions come and go (see 7.02). Relationships change as the power balance shifts (see 13.48). •

The mediator’s job is to keep track of the movement and to channel it.

•

The advisors’ job is to help their clients monitor the changing environment and to adapt it. Be ready to move from stated positions. Be careful how you frame this.

When considering making a fresh proposal resist treating any movement by either side as a climbdown. Seeing movements in this way is really unhelpful. Think of any change not as a movement away from a stated position ie a concession but as a movement towards what you want – settlement, ie an advance. As explained in 7.20, the mindset that negotiation is winning an argument is unproductive. It’s much more a case of finding out what they want and seeing whether you can let them have it so that you get what you want.

‘Look how far we’ve moved’ 17.18 During the negotiations as people make their proposals, counter-proposals and gradually move from the opening positions the process can stall. Clients often call foul. They expect reciprocation (see 9.03). They tell mediators: •

‘It feels like we are doing all the work. They’re not moving at all.’

•

‘Look how far we’ve moved. Look how far they’ve moved – hardly at all.’

This is another example of automatic behaviour which hampers rational analysis of relevant factors and information before making a decision.

What do you do? 17.19 Mediators have to be able to sort this out. Try comparing absolute movements in cash terms with percentage movements. Claimant

Defendant

Claimant move

Defendant move

£

£

£

£

350K

50K

300K

75K

50K

25K

250K

90K

50K

15K

200K

100K

50K

10K

50K

50K

66.6%

200%

Split the difference Split the difference 150K

150K

Total move £200K

Total move £100K

Percentage move

317

17.20  The Psychology of Offers

6 Momentum 17.20 The ‘Big Mo’. You have to keep moving forwards. This energises people and encourages creativity and flexibility. You see moods change and energy levels plummet if there is no sense of progress or even worse a sense of going backwards. That doesn’t mean that you can’t explore possibilities that in the end turn out to be dead ends. Just as long as the general direction of travel is forward.

For clients 17.21 Don’t ruminate on the past. Imagine what life will be like with a settlement. Remember the temptations to misjudge how you will feel in the future – reread the section on affective forecasting (see Chapter 10). Bear in mind the influence of mind traps when deciding how to make and receive offers of settlement of a dispute. Here are some of the basic ones: 1

We underestimate the risks of something we want to do and overestimate the risk of something we don’t want to do – motivated reasoning (see 10.19).

2

We are all susceptible to consistency bias (see Chapter 14).

3

Nothing is as important as it is when you are thinking about it.

4

Nothing is ever as bad or as good as you think that it will be.

5

Everybody lies in negotiations. Or to put it more politely nobody is completely frank in negotiations. It’s never the truth, the whole truth and nothing but the truth (see Chapter 14).

6

Everybody is accountable to somebody. Even if only to themselves.

7 Monitor 17.22 Mediators and advisers have to constantly keep checking what is going on. How are the clients feeling? What signals are we getting via the mediator from the other side? Where are we at in our negotiation/strategy/settlement framework? How is the mediator doing? What is the mediator doing? What’s the timeline, what’s the agenda? Monitoring prevents you becoming passive and reactive. If you want them to buy your deal sell it to them.

8 Meaning 17.23 Mediators aren’t just messengers. They do spend a lot of time taking information from one room to another, but they are also interpreters. What message, overt or subliminal, is being expressed? What are people really saying? 318

The Psychology of Offers 17.26 We all look for meaning. Be careful about over-interpreting. And be very careful about interpreting things so that they fit in with your existing view or opinion – confirmation bias (see Chapter 10). The same thing can be presented in different ways, eg  framing, power words, contrasting. You need to know which will be the most effective (see Chapters 9 and 11). How will a proposal or comment be received? What’s the best way of maximising its impact? Some mediators refer to this as coaching the parties. Experienced and successful mediators seem happy to do this. But not all mediators think that it is appropriate.

Mind reading 17.24 At mediations we want people to change their minds and agree with us. We want them to do something that they don’t really want to do. So, what is in their minds? Try and find out. Re-read Chapter 7 on the Theory Of Mind. Check your own behaviour. Are you engaging in stereotyping, confirmation bias or naive realism? Can we use this knowledge to help make and receive offers?

Here’s a checklist Beware the sunk cost fallacy 17.25 •

We have spent £XX we might as well go to court.

•

Make peace with your losses, as Daniel Kahneman advises.

•

Be prepared to cut them not chase them.

(See 12.35.)

Frame as gains 17.26 What will they have after the deal that they don’t have now? • Money. • More time. •

More money in the future, ie less expense.

•

More energy to spend on their life /business.

•

Opportunity to do other things. But note that opportunity cost is always underestimated.

•

Better relations. 319

17.27  The Psychology of Offers •

Peace of mind.

• Certainty.

Contrast and compare 17.27 •

What are the outcomes? Do the sums.

•

Show how much the offer is a movement or improvement on the previous or earlier one or opening position.

Context 17.28 •

The shared pain reflects the shared blame of being in this position in the first place.

•

Explain what you have lost or suffered. ‘I am hurting more than you are.’ If the other side think that, it will make it easier for them to settle.

Timing 17.29 •

Work out your strategy in advance.

•

What is the cross over point? When does the law of diminishing returns set in?

•

What is the business case for carrying on with litigation?

Mind reading 17.30 Guess their offers. Guess their reactions.

Price and value 17.31 •

Separate benefit from cost. What will you gain from settling this case today whether you’re the receiving party or the paying party? Be as clear and as granular as you can be.

•

Work out what you could have at the end of the day that you don’t have at the moment and put a price on it. 320

The Psychology of Offers 17.35 •

Separate the value of the benefit from the likelihood, ie the risk of you getting it.

•

Remember people buy pain relief before vitamins. Getting rid of uncertainty and stress is available for both sides today.

Story telling 17.32 What message am I sending? Be very clear about your message and the expected response.

Give rationale, context and calculations for your offer 17.33 Do you just give a figure with no explanation and let the other side worry about it? Or do you explain your thinking? Remember that we like to understand, find meaning and patterns. Giving some explanation is usually helpful. •

It can give offers more credibility. Figures which appear to be plucked out of the air are often not taken as seriously by the recipients.

•

It can help establish a shared methodology.

•

But it can open up the danger of nit-picking detailed discussion over minor points.

Pre-mediation offers 17.34 When they have been made they become part of people’s mental furniture. Parties attend the mediation expecting the offers to be improved. The receiving party expects the paying party to go up and the paying party expects the receiving party to come down. Making opening offers which repeat offers that have been previously rejected is not helpful. Opening offers which are less generous than previous ones that have been rejected are a waste of time. They just delay movement and momentum and send negative messages.

Post-mediation offers 17.35 Make it clear whether they are made on the same terms as the mediation agreement, ie  not legally binding, until incorporated into a written document signed by all parties. Offers can look better next day. Especially in the light of increasing legal fees. There is nothing to be lost by leaving offers on the table. Make sure that they are capable of being accepted as binding offers. Ask the mediator to sound out each side. Most mediators offer an after sales service. For example: 321

17.36  The Psychology of Offers •

Seeing if there is any appetite for further discussion.

•

Acting as the intermediary in a blind bidding exercise to try and close the gap.

•

Helping resolve any drafting difficulties.

•

Just being available for further discussion.

Some charge for doing this. Others don’t. 17.36 What all clients and their lawyers want is guidance on where the Deal Zone is and how to get there. In particular, clients want to know: 1

What is it going to cost me to settle? In other words, how much am I going to have to pay or how much am I going to have to come down.

2

Could I have got more? Could I have paid less?

Should mediators coach? 17.37 There are potential problems: •

Confidentiality is an issue but not an obstacle. Mediators can give assessments without disclosing confidential information. It’s only their view.

•

Offering a view threatens perceived impartiality. This is a danger, especially if you offer a view about the merits of the case. Less so if you are commenting on the presentation and structure of a proposal.

•

Passing on messages is what mediators do BUT don’t just become a messenger. Act as interpreter, manager and coach.

•

Asking leading questions: eg how realistic is it that this case will settle without you paying them some money? Tone and timing are vital. Some parties will see this as you being hostile against them. ‘At the moment I can’t see this settling unless the figure starts with a 3. But I may be wrong.’

•

Being proactive by using bracketing. Can be seen as being too manipulative. Bracketing is where the mediator asks both sides if they would prepared to move into a range if the other side will. ‘If they will offer to settle for less than £500K will you offer to settle at more than £350K?’

Sequence the offers First offer 17.38 First offers are always a tense moment. Most parties are nervous about making the first offer. They worry it will be seen as a sign of weakness. They may be 322

The Psychology of Offers 17.40 giving too much away. They don’t want to bid against themselves. Remember the power of anchoring (see Chapter 12). Offers not arguments are the best way of influencing the other side to get what you want. Decide upon your approach. You could: 1

Start with an extreme proposal. That gives you plenty of room for manoeuvre. It tells the other side that they’re in for a long hard day.

2

Start with a credible proposal. That will help you get over the first hurdle of mutual credibility and operational trust.

3

Just make an offer to start the ball rolling. This hands initiative to the other side.

Come to the mediation having worked out the first offer. Don’t leave it until the day to start thinking about it for the first time. But be prepared to adjust it in the light of what you learn from the mediator or the other side in the Joint Opening Session and during the exchange of information. Always think in terms of what an offer will buy you. Remember the power of framing. Frame offers as gains not losses. Even if you’re the paying party think in terms of what of what you are gaining by not staying involved in this dispute any longer (see 14.37). 17.39 No one has ever been recorded as accepting the first offer at mediation. It may have happened but no one is talking about it. More often lawyers talk of first offers being made which were acceptable to the receiving party but which were turned down. Usually, they say that they did better by hanging on, but sometimes they didn’t, or didn’t improve the offer by very much. Making one offer and saying that it is the first and final offer and that you will not change it at all no matter what happens is a bold step. The risk is that it will be seen as being extremely aggressive. It will not establish credibility. Does this approach work? Hardly ever, if at all. Remember the IKEA effect – people value something more if they helped build it. Let people think that they have worked hard to get something from you (see 5.26). Most people come to mediations with an idea of the final figure. Sometimes that is an absolute figure. Those that they report to mandate them up to a certain level. They simply don’t have more. Usually, it’s not that absolute and can be varied by judicious phone calls. But you need to have a clear idea of where you want to end up otherwise you become directionless. In sequencing offers be proactive not reactive. That’s why setting the scene by making the first offer works.

How many rounds? 17.40 Mediation trainers refer to the Rule of Three. •

Round 1 is the posture figure. They are laying down a marker or just getting the ball rolling. 323

17.41  The Psychology of Offers •

Round 2 is the real figure. This reflects the offeror’s risk-reward assessment.

•

Round 3 is the value figure. What they will pay to achieve a settlement – what it is worth to the offeror.

In practice you see parties move from posture to real to value. Usually there are four or five rounds of offers before you are close to or at a final figure. The scale of the movements is always interesting to watch. Many mediators claim that the jumps never get bigger – only smaller. In fact, there is a well-established negotiating formula based on the reducing steps. Here is an example: •

If you are the paying party start with 65% of your final figure, then 80% then 90% then 95% as the final offer. –

•

You are moving in reducing increments – 15, 10, 5.

If you are the receiving party it’s 135%, 120%, 110, 105% then final.

In practice most parties don’t do this. Especially with their first and second offers. But there is usually one offer which changes the mood – the psychological moment or plot change – and demonstrates that the offeror is serious about settlement. Much of the day is spent trying to reassure each other that you are there in good faith to settle, rather than actually trying to settle by making and discussing proposals. You don’t just have to talk the talk; you have to walk the walk.

Explaining offers 17.41 Be prepared to provide an explanation of your offer even if you don’t volunteer one. The mediator will ask you because almost always when a mediator takes an offer into a room the other side ask how it has been calculated. ‘Is there any science behind the figures?’ they ask. It’s up to you to decide whether or not you authorise the mediator to disclose your rationale. Ask yourself if you find unexplained offers more or less credible than explained ones (see also 17.33). The danger is that the more explanation you give the more there is to argue about. But at least you are arguing about settlement offers not legal cases. You are also controlling the agenda.

Non-monetary elements 17.42 •

Work them into the offers from the start.

•

Be alive to the danger of building up expectations by agreeing the easier issues while avoiding the hard ones – such as the money. It’s a question of trust. People who have made concessions on the easier items will feel betrayed if the money issue was always an obstacle that could never be overcome.

•

Don’t lose sight of the money. All non-monetary concessions should be made on the basis of: ‘If you agree our figure we can do this…’. 324

The Psychology of Offers 17.46

Flipping 17.43 Expect the unexpected. Be prepared to change places. Instead of buying their shares, offer to sell them. Instead of granting a new right of way buy their property.

How do people react? 17.44 How will I feel? •

if I win?

•

if I lose?

• tomorrow? • next year?

Naive diversification 17.45 When we are asked to make several choices or decisions at once we tend to diversify more than if we make the choices or decisions one after the other sequentially. You can see this in a lot of mediations. Some negotiators think that is a good idea to present multiple options. There is a well-established negotiation technique known as MESO (Multiple Equivalent Simultaneous Offers). The idea is twofold: you appear to be flexible while still being aggressive. You can generate goodwill and you can then use it to find out where the other side’s preferences are. There is research to suggest that making offers as a package is a better way of achieving integrative outcomes than negotiating each issue sequentially.

Mediation message 17.46 At mediation the downside of multiple offers is that they can produce a lot of activity and no progress. Parties can spend their time discussing each one and toggling back back-and-forth and never moving forward on anything. This phenomenon is often seen in boundary or right-of-way disputes. Straightaway there are various alternatives that are clear to everybody. Should the right-of-way be bought off and cancelled? Should one right of way be replaced by another right of way? Should the owners of the property over which the right-of-way runs transfer that part of land? Should they sell the whole of the property? Considering different proposals certainly frees up thinking. Provided that the whole day is not spent discussing various options without making any decisions this can be very fruitful. Staggeringly often, as the day is drawing to an end with no conclusion but bucket loads of frustration, an option that has previously been 325

17.47  The Psychology of Offers rejected as unworkable re-emerges as the front runner. Everybody looks at each other wondering how this happened. Usually, they jump on it and gallop over the settlement line.

In a nutshell 17.47 •

Offers are oxygen.

•

Simultaneous exchange of offers is better than sequential.

•

Remember the five categories of offer: insult, extreme, credible, reasonable and acceptable.

•

See the negotiation as a journey.

•

Are you taking the scenic route or the direct one?

•

Be a satisficer not a maximiser.

•

Don’t be afraid of making offers – first or last.

1 For more detail on this, see Walker Mediation Advocacy (Representing and Advising Clients in Mediation) (Bloomsbury Professional), Ch 7. 2 For more detail on this see Mediation Advocacy, Ch 15. 3 See Mediation Advocacy, Ch 7.

326

Chapter 18

Online mediation

In this chapter you will learn •

Tips for mediating online.

•

Why ODR works.

•

What you need to do differently.

•

Why you need to be able to do it.

The scene 18.01 In this chapter, we are talking about using audiovisual (AV) systems to mediate, eg  platforms such as Zoom, Teams and Skype. We are not talking about other ways of mediating online by using blind bidding systems such as Smartsettle ONE. The big question is do we behave in the same way when mediating online as we do when everybody is physically in the same room? What’s the same? What’s different? See the A-Z of ODR at 18.05. 2020 was the year that ODR really became established. This was a direct result of Covid-19. We had gradually been adopting it but lockdowns and enforced working from home (WFH) caused the sudden acceleration. AV systems have been used for business meetings for many years. But somehow their use has never really taken off. Hence the profitable business travel industry. Why was this? There was a feeling that AV meetings were second-best. Many continue to feel they still are second-best. You really need the personal touch – to shake people’s hands, to look them in the eye, to offer them a drink. All desirable and helpful – but are they essential? (See 8.34 on rapport.) 18.02 ODR has obvious advantages for mediations: People don’t have to travel to and from the mediation venue. No worrying about delays on motorways, at airports or on the trains. We save time, money and energy. 327

18.03  Online mediation Stress is reduced. Anyone with childcare or mobility problems finds it easier to mediate online from home. Mediations for trans-national disputes are easier to arrange. You can accommodate different time zones without people having to travel long distances and negotiate while jet-lagged. But still the take-up was low before the pandemic. In the flesh mediation was the norm. Covid-19 changed all this. It transformed the ways that we try and resolve disputes. Legal systems embraced it. There had been telephone hearings for some time in the UK. Now trials and hearings both civil and criminal are taking place remotely using AV, out of necessity. Mediators embraced ODR enthusiastically. In truth they had no choice. Thought leaders who had eschewed online mediation became overnight converts and zealots. Since no one was flying round the world to sort out mega commercial disputes what alternative was there? This transformation raises important questions: •

What do you do differently?

•

What do you do the same?

•

Do the conclusions about mediation behaviour identified in this book apply to mediating online?

The big news is that ODR is making the mediation process more streamlined. Some of mediation’s most cherished articles of faith are being abandoned.

Red flag 18.03 Mediating from home and mediating online are not the same thing. ODR doesn’t have to be done from home. If people are working in their offices with the usual backup facilities and infrastructures they can still use ODR. Some of the changes in process and behaviour that we have seen are due to the fact that from early 2020 most people are working from home. Facilities at home at home are not as good as the ones they have in their offices. The two biggest differences are:

Internet connection 18.04 Nearly everyone is using their domestic broadband. This is a shared facility. The speed and reliability depend on how many other people are using it. The UK’s domestic broadband infrastructure was not designed for this sudden upsurge in use. We have coped pretty well but the speed and reliability of the connections are not as good as if we were using the sort of dedicated Internet connections that most businesses have. 328

Online mediation 18.07

Printing and signing 18.05 Getting the settlement agreement signed is always a fraught time – the red zone – whether you’re mediating online or not (see 17.06). Doing this from home brings extra issues. Do we need ‘wet signatures’? How do we get them? Domestic scanners and printers are nowhere near as good as the ones used in offices. Even when people can link into their office systems, they have problems, usually for security reasons, with out-of-hours protocols, passwords and compatibility. Connectivity is also a problem. Sending material over domestic networks is harder than from office to office. Formatting problems are the least of them. Systems like Google Docs and DocuSign help but are not widely used. Good humour is needed more than ever. The most widely frequently felt emotion during online mediations is frustration. Mainly as a result of trying to get the settlement agreement printed and signed.

Streamlining 18.06 This is where you can see the process being simplified: •

Fewer documents – slimmer bundles and less frequent position papers.

•

Joint Opening Sessions are practically extinct.

•

Less rapport building and body language reading.

The A-Z of mediating online Artificial 18.07 One of the paradoxes of ODR is that while being on screen might be less natural than meeting people in the flesh, it’s also less artificial. Courts are artificial settings, but we still follow the norms. These carry over to mediations – we dress smartly. We speak in connected sentences. There is a studied civility. When people are sitting in their own homes these norms are relaxed. See discussion of clothes (18.14 and 18.39) and safety. There is less formality. The same thing has happened in court hearings. But is this a good thing and will it last? The Chancellor of the High Court, the Rt Hon Sir Julian Flaux, warned of the dangers in his speech to the Chancery Bar Association in March 2021. He worried about the erosion of the dignity of the court, in the sense of formality in the courtroom. For him, this is essential to ensuring open justice especially where the outcome can be life changing. He stressed the necessity of ensuring that: ‘in hearings that are inevitably stressful with much at stake all can be assured of courtesy, respect and above all a fair hearing – and the perception of a fair hearing – in their case’. 329

18.08  Online mediation Dignity in this sense does not apply in the same way at mediations. But courtesy, respect and perceptions of fairness do.

Back channels 18.08 On screen there are fewer shadows in which we can spend a few minutes having off the grid chats with others in the mediation. One barrister explained how much they missed the back channels. They valued the chance to speak one-to-one with the mediator. Those helpful accidental meetings on the way to the kitchen or the toilets are not possible. The raised eyebrows out of sight of clients have all but disappeared. All are very useful but not available anymore. Instead you have to rely upon texting or leaving the room by putting your screen on mute and turning off the video so you can speak to the mediator in private on your mobile.

Back drops 18.09 What sort of backdrop or background should you show? Do you have a real one or a virtual one? A plain one or a busy one? There’s almost infinite choice. And nearly as many opinions. Presentation coaches tend to prefer the plain background. It looks professional and isn’t distracting. Some mediators think that sharing a little about themselves by letting people see their bookshelves or wall coverings tells something about themselves. This helps rapport building. Others try to create a mood with virtual backdrops, from the Sistine Chapel, to the Library of Congress or Bondi Beach. Be careful: decide what message you want to send about yourself. Ask people what they think of your choice. Always see it through the viewer’s eyes. It’s not what you show them that counts it’s what they see.

Body language 18.10 Mediators and mediation trainers stress the importance of body language. You need to be able to see people and interpret their facial and bodily gestures. As suggested in Chapters 8 and 14 the significance of body language in mediation is often overrated and its actual use in practice is limited. Especially when working out whether someone is lying or not. Online, body language is much less relevant. In gallery view you can’t see very much. You can see the face and eyes if they’re on an individual screen. Even then you don’t usually see the person clearly in detail or in close up. When mediating online from someone’s office several people may be in the same room and using a wall-mounted screen. The idea is that you can mediate better if you can see someone’s whole body. But not in every case. In fact, it’s far more 330

Online mediation 18.12 difficult to read people when they are using a wall-mounted screen than when they are using individual screens on their laptops. The images are smaller and less distinct. Clients and advocates complain that they can’t see the whites of their opponents’ eyes. Or as one US attorney said, he can’t smell the fear of the other side’s witness. If you switch to speaker view on Zoom you can see a larger image of the speaker’s eyes and faces. But that’s pretty much it. Some mediators, for example Graham Ross, advise asking a party to sit further back from the camera so that you can see their hands. Frankly this is a waste of time. Hands tell you very little. It is feet (which you can’t see online), eyes and voice which are more important. You can see their faces. Being able to recognise emotions is useful. See Chapter 3 on how to do this. Does not being able to read body language online matter? The UK courts have not found online trials an impediment to assessing witnesses (see 14.19). Settlement rates at mediations are much the same so probably the answer is no.

Breaks 18.11 People need breaks in mediations. They eat lunch. Often the host provides sandwiches. Sometimes they go out for lunch together. They get fresh air and a change of scene. You can’t do this online. Some online mediators claim they are able to take longer and better breaks. You can but often you will be on your own at home. But generally, the pressure is to keep going and to eat at desks and not move away from the screen for very long. Nobody can sit at a screen for eight hours without a break. Concentration and attention falls off. Shoulders and necks start to ache. You do need to take a break, whether you are the clients, advisers or the mediator. Most, but by no means all, claim that they find mediating online more tiring.

Bundles 18.12 There’s never been universal agreement about mediation bundles or files. Some mediators don’t like them. ‘I don’t want all this paper. Tell me in your own words what it’s all about.’ Others say: ‘Send me everything’. Some lawyers argue about what should be included in the bundle believing that it’s like an agreed bundle in court proceedings. Others just download or photocopy the latest bundle used in a court application and send that. Scrolling up and down screens makes reading documents harder and more tedious than turning the pages in a lever arch file. But we are all getting used to doing it. Hyperlinked indexes help. 331

18.13  Online mediation Mediators often comment on how little use is made of the bundle at mediation. Very few documents are actually looked at. In ODR there is even less referring to mediation bundles. They are also becoming thinner – which is a good thing.

Cameras/lights 18.13 Online mediations are onscreen, at least most them are. Some are conducted by telephone or email. But most are on AV systems such as Zoom. This is a different visual experience. Everything is 2D not 3D. Think about cameras. For most AV systems using an inbuilt camera on an iPad or laptop means you can just see the head and shoulders or as they say ‘from the second button up’. Wallmounted cameras give the mediator a view of the room. But what you gain in a wider view you lose in close-up. The people in the room see the mediator’s head and shoulders on a large screen which can be dominating. Talk to the camera. When you do that, you’re looking at people eye to eye. If you look at their image on one of the tiles in gallery view, you’re looking at them but you won’t be looking at the other people on screen. Doing this means that you can’t immediately pick up on how people are responding to what you’re saying. So you just have to be a lot more careful in what you say. Think about what you say in advance and the likely impact your words are going to have. Reread Chapter 9 on language. It’s hard work because you have fewer non-verbal cues to help you get on the same wavelength.

Clothes 18.14 Clothes matter in mediation. What to wear on screen causes angst and generates torrents of advice both online and in print (see 13.41–13.53 on authority). Choice of clothes is a matter of individual taste. It’s really down to what image you want to project. Bear in mind that on screen you have fewer tools at your disposal for your image management. At in the flesh mediations most people, certainly advocates and mediators, dress formally. Not everyone wears the same clothes that they might wear in the office but they don’t often turn up in shorts and hoodies. People do for online mediations. Whether wearing T-shirts makes people more comfortable or not is open to question. The outcome, ie the settlement rate, doesn’t appear to be affected.

Camaraderie 18.15 Some mediators report that mediations which don’t conclude in a settlement on the day using ODR would have settled if they had been held in the flesh with everybody together. Being together physically in the same building creates a greater sense of unity and shared purpose. Also, people have made a greater personal investment in terms of money, time and effort. They are more likely to take the extra step to get the deal done. They are psychologically more committed to the process. 332

Online mediation 18.18

Confidentiality 18.16 The same rules about confidentiality apply to online mediations. The stipulations in the mediation agreements are usually the same. What is different is the practice. Online you can only see what the camera shows you. You haven’t got a 360° view. If people are off-camera you can’t see them. Recording is also more of a problem. Most mediation agreements stipulate that no recordings should be made. You can disable the recording function on systems such as Zoom but it is more difficult to be certain that people are not recording from their own computers. Recording at in the flesh mediation has also become more of a problem in recent years because recording devices are cheaper, more available and easier to conceal. But it doesn’t seem to have become an obstacle to the growing use of mediation.

Control 18.17 Some advisers report that they feel it easier to ask the mediator to leave the room in an online mediation. This reduces the scope of the mediator to shape the conversation. You can’t walk into someone’s room and remain standing while talking to them. Doing that can add an extra urgency and authority to what you’re saying. On the other hand, some mediators think that acting as host on Zoom gives them greater control. You can put people into waiting rooms, meet them in breakout rooms and move them from one room to the other. But anyone can leave the mediation any time they like. One click of ‘leave meeting’ and they’re gone and there’s nothing you can do to stop them.

Distraction 18.18 Mediation is no longer seen as an immersive experience where you cut yourself off for the day and don’t do anything else. Instead, it’s a swimming pool. You dip in and out. This is the biggest change to the way we mediate. When we mediate online from home, we are subject to many more distractions. Not just from deliveries, dogs and children. We are on screen with our mobile phones as back up. Emails, texts and WhatsApp messages keep on coming up. This reflects a growing trend of us all working in more distracted environments. Our attention spans are dropping. We constantly check emails and texts. Mediation has traditionally been promoted as an immersive experience. Parties and advisers go to a designated venue for the day for a specific purpose. In practice they spend much of the day in caucuses without the mediator being present. They have limited opportunity to do anything else. In fact, mediators discourage this. They leave one team with tasks or homework to do or think about while they go to the other room. 333

18.19  Online mediation These periods of down time – when the mediator is with the other room – often just feel like sitting around. Time drags. Boredom sets in. People switch off. This can happen online but it’s much easier to do other things. When the mediator is away you can send emails, work on a different matter or makes calls. Many professional clients see this ability to multitask and manage their time more efficiently as one of the main advantages of online mediation. See also Engagement and Time.

Emotions 18.19 Emotions don’t go away just because you’re on screen. People still feel them. And you can certainly hear them even if you can’t always see them. In fact, online mediations can be more emotion-packed. Mediators are more anxious because they are in charge of the process and if the technology fails people look to them. There’s always a high degree of techno-angst. Frustration is also ever-present. It often peaks towards the end of the day as the advisers labour to produce the settlement agreement for signature. During the day there are sporadic feelings of frustration as Internet connections become unstable. So, emotions are felt just as much as at in the flesh mediations but are they expressed? Do people feel more inhibited, or less? There was a shareholders’ dispute. The minority shareholders felt used and abused by the majority. They were in a business that used online communication all the time. They were very familiar with the technology. No lawyers were present. They were available if they were needed. They had a Joint Opening Session. One of the minority shareholders/directors let rip. Everyone else was on mute. When he finished he apologised. Throughout the mediation he continued to apologise. In the end he confessed to the mediator that he wouldn’t have acted like that if everyone had been in the same room. He felt he was able to because he was on screen. People sitting on their sofas at home have exploded in a burst of bad temper when being told something that they didn’t want to hear. People have burst into tears. Much the same as in the flesh mediations but possibly they felt less inhibited in the online setting (see 3.33). In fact, they are more likely to turn off their video if they want to cry.

Energy 18.20 There’s less energy exchange. You don’t pick up on people’s energy levels from interacting on screen. Fatigue sets in sooner. Nobody likes being at a screen for hours on end. This has implications for decision-making (see 4.19). Many find mediating on screen imposes a heavier cognitive load. Why? You have fewer visual cues to help you process the information you receive and work out how to respond. You have to concentrate far more. This is one reason why people say that working on Zoom, whether mediating or not, is more tiring. 334

Online mediation 18.22 Even more tiring is the slight gap between someone speaking and you hearing what they are saying. This is a result of two things: 1

The cultural conversational convention of no gap no overlap. Most of us follow a turn-taking speech habit.

2

The technology. Most video calling platforms use audio that is of middle quality but arrives fast. Zoom claims there is only a time lag of 150 milliseconds. That’s quicker than you can blink. Impressive even though it’s often longer at busy times on the Internet.

But the problem is that this time is longer than you think. Under the no gap no overlap rule, the time between taking a conversational turn is typically 200 milliseconds. If there’s a 150 millisecond lag, after the first speaker followed by another 150 milliseconds for the reply this is longer than 200. And then you have people being on mute, the fuzzy sound and poor-quality mics. You need your rests. As Winston Churchill said: ‘Nature has not intended mankind to work from eight in the morning until midnight without that refreshment of blessed oblivion which even if it only lasts 20 minutes is sufficient to renew all the vital forces’. And he was not even working online all day!

Engagement 18.21 Keeping people engaged in the process is a problem for all mediators. Being online makes it worse. Members of each team are more detached from each other. It’s easier for them to drop out of the session. All they have to do is click the mute and video buttons. They can then go and do something else. Many professionals do this at mediations. They emphasise it as one of the big advantages of being online. They can do extra work. It’s much more time efficient. From the mediator’s point of view there is a leakage of momentum as people switch off and switch on to something else. There’s always a time lag bringing people back up to speed and refocused.

Food 18.22 Sharing food can help people share information and opinions. This can make finding the common ground easier. At in the flesh mediations some mediators insist upon parties eating together by providing breakfast or pastries. Others insist that everybody has lunch together. This doesn’t happen online. The fact that it doesn’t seems to have no effect on outcomes. But people do need food breaks. Some make very good use of them. In one multi-party boundary dispute there were a lot of breaks and downtimes. The mediator asked at the end of the mediation as the settlement agreement was being signed how they how found the online process. One party said it was fine 335

18.23  Online mediation and she had been able to do some baking and produced two lemon drizzle cakes for the camera!

Gradualism and Gentleness 18.23 You have to take it easier and more slowly on screen. There are three reasons: •

Mediation advocacy has to be more muted. Gestures and tones of voice that work well in the flesh don’t translate to the screen. Their impact is lost.

•

Anyone can leave the meeting much more easily. Don’t provoke this. Avoid triggers. Treat them more gently.

•

Holding people’s attention is harder. Shorter sessions, shorter sentences and simpler messages work much better.

Height 18.24 The screen is a level playing field. The good thing for the vertically challenged is that on screen everyone is the same height. The advantages that tall people have are neutralised. No more five-inch heels to be endured. Much less physical intimidation by the big and burly.

Humour 18.25 There tends to be less humour online. Humour, often the most effective solvent of aggression, defensiveness and frustration, is of less help. Zoom is no place for jokes or even amusing asides.

Influence 18.26 Expect as mediator to be asked to leave the breakout rooms. Advocates have said that they felt it was easier to ask the mediator to leave a virtual breakout room than a physical breakout room. And, because it was easier, the mediator had less scope for shaping the conversations. Also, as a mediator, you have to be careful not to cross the line of formality and thereby lose the influence of your position as mediator (see 13.11).

Joint Opening Sessions 18.27 They were disappearing before Covid-19 and the increase in online mediation. They are harder to manage on screen. You can’t use non-verbal cues to choreograph the discussion. You have to rely upon verbal interventions. On most systems there is a slight time lag between the speaker finishing what they’re saying and the listener hearing it. You have to be careful to make sure that 336

Online mediation 18.29 the speaker has finished before you start speaking yourself so that you don’t you cut off the words of each other’s sentences. That’s harder to manage online. The usefulness of Joint Opening Sessions for influencing the other side or learning intelligence about them is curtailed. The impact of the spoken word is less when delivered online than it is in the flesh. You have less chance to see how your words are being received (see Chapter 8 on body language). People feel more protected. At in the flesh mediations they are usually in an unfamiliar place with just a table between them and the other side’s lawyers who want to attack them. Online they are in their own home on a screen. They feel more insulated. Quasi-courtroom advocacy with synthetic showboating is useless on screen. Displays of emotion have less impact. So, the way in which presentations are made or points put across needs to be different. Advocacy needs to be less emotional and more analytical and evidence-based. People are also now providing more context and calculations when putting forward their proposals. There seems to be more agreement whether express or tacit to adopt a shared methodology in formulating proposals (see 17.33).

Kicked out 18.28 Lockdown’s dreaded message is: ‘Your internet connection is unstable’. It can happen to anyone and everyone, especially if they are working from home using a domestic broadband connection. These are shared lines and the strength of your connection is affected by how many other people are using it. Upgrading to higher specifications and in particular dedicated lines which are only for your use can make economic sense if you think online mediation is the new norm. In any case make sure that you have the host’s mobile number to text or call so you can ask to be let back in.

Leaving: the paradox 18.29 Parties to a mediation can always leave whenever they want to. Whether the mediation is in the flesh or online makes no difference. In fact as already discussed it’s much easier to leave online. But why leave? What do you gain? The power is the threat. Mediators are asked to tell the other room that if they don’t make an offer within the next 30 minutes we are going. Or: ‘Here is our final offer. We will not be increasing it and will leave at 16.00. It’s up to them’. Mediators do as they are asked but remind parties that you don’t get deals done by walking out. You get deals done by talking and listening. 337

18.30  Online mediation Often leaving a mediation is a power-play. Usually, it’s an expression of frustration at not being taken seriously or a act of resistance at being bullied. But here’s a paradox. It’s easier to leave an online meeting – one click and you have gone. But it’s also easier to reconvene it. People are not in their cars on the motorway or on the train. They are still at home with their laptops and mobiles. Mediators need to make sure that they have the contact details of all participants.

Meetings 18.30 Don’t be afraid of having breakout meetings or review meetings. They are easy to set up. Just move people into a different breakout room. Nobody has to physically move and bring their files and laptops with them. It’s all very easy. Doing this varies the tempo and maintains focus especially if you review with all participants where the mediation has got to and where it might need to go. Clients do look for mediators for direction. So signposting and timetabling can really help.

Mute 18.31 A word heard at every online mediation. As in: ‘You are still on mute’. Or: ‘Can you mute yourself?’ Muting can be especially important if several devices are being used in the same physical location and reverb becomes a problem. A  sensible protocol for joint meetings is for everyone to be on mute except the speaker. And remember if you want to take a mini break to click Mute as well as Stop Video. Just because people can’t see you doesn’t mean they can’t hear you.

New norm 18.32 Will online mediation become the new norm? In other words, the first choice. At the moment opinions vary. A  lot will depend on whether people continue to work from home. The more WFH there is the more online mediation there will be. Even if people start working from offices again, they may still prefer to mediate online. The main benefits being no travel and better time management. But there are those who think that physically being in the same room as others is simply a different and better experience, especially if you want to persuade, cajole, explain, or apologise. Or if you want to threaten, intimidate or assess the other side. Sadly, whether a mediation should be conducted online or in the flesh will be another pre-mediation topic to argue about along with the choice of the mediator, the start time, the venue, who can attend and what documents to send to the 338

Online mediation 18.35 mediator. Or at least it will be for those clients and advisers who think that the best way to prepare for peace talks is through sustained guerrilla warfare.

Outcomes 18.33 Do the differences in technology and technique make any difference? Not to outcomes. Mediators report much the same settlement rate in online and in-theflesh mediations. Although there is a suspicion that because there is no pressure to catch the last train home discussions are dragged out over increasingly minor points which would not happen at in-the-flesh mediations. Also, because it is easier for people to click and leave the meeting, there is a greater temptation to leave things unfinished. ‘I’m tired. We can come back another day.’ They have had to put in the same effort to attend an online mediation. Therefore, they think another mediation session or discussion could be arranged easily and quickly. They are often mistaken about that of course because of people’s diaries.

Process 18.34 Mediation is becoming simpler. Fewer documents, position papers and opening statements. Fewer Joint Opening Sessions. Less social chat and interaction. It’s much harder to join someone’s breakout room online than it is in the flesh. You can’t just knock on the door and poke your head round in the same way. The format is essentially the same. There may be fewer side meetings. But they still take place with the parties talking directly to each other without lawyers. Or the lawyers doing the same without clients. Or even one set of lawyers having a private word with the mediator in a separate breakout room. This is all possible online. As people become more accustomed to the online process it will become even more common. The interesting question is whether the in the flesh process will be changed? Some of the streamlining may become permanent. It is too early to say.

Questions 18.35 Questions are used for different purposes at mediations. Sometimes they are disinterested enquiries for information or clarification – to improve understanding. Just as often, they are assault weapons used to probe for weaknesses or raise alarms and warnings. When asking questions for whatever purpose remember two things: •

Be gentle because people can just leave the meeting with one click. It’s much harder to soften a hard message with a gesture, the smile, the raised eyebrow, the unclasping of the hands on screen.

•

Be short and simple because people find it harder to focus on screen.

See Reality Testing. 339

18.36  Online mediation

Rapport 18.36 You can still build rapport. You just have to do it differently. You can’t shake hands or share biscuits and hand round cups of warm drinks. Don’t forget the research by John Bargh and Lawrence Williams on how holding a warm drink can make people feel warmer towards you. And if someone breaks down, you can’t offer tissues. Matching behaviour is a favoured technique for establishing rapport (see 8.34). Doing this online is much more difficult. Voice is much more important in online mediations. Remember to look at the camera and speak in an appropriate voice. Imagine that you are speaking to one person. All of those who are seeing you will think it’s them. That builds a sense of intimacy and therefore rapport. Beware: it’s not easy and takes a lot of practice.

Reality testing 18.37 This is another treasured technique of mediators. Don’t forget – one click and people can leave the meeting. You therefore have to be hyper vigilant to avoid giving anyone an excuse to log out. Everyone has to be more tactful, lighter in tone and nicer towards each other. This affects reality testing and what we say in joint sessions. The traditional forensic knockabout tough talking as the advocates trash and burn each other’s cases is high-risk. Don’t do it and discourage others from doing it. Robust and challenging conversations which are the staple of reality testing have to be carefully monitored. You don’t have the same verbal cues to soften the message. The lesson is that if you attack or challenge people too vigorously, they will pack up and logout. And you can’t chase them down the corridor or waylay them in the lift or the car park and ask them to come back because another final offer is available (see 8.35).

Recap 18.38 You need to recap more on screen in order to: •

make sure that you have understood and been understood;

•

vary the tempo and keep people attentive and focused; or

•

offer encouragement and keep them engaged and avoid the feeling that they are just watching TV.

Safe environment 18.39 Being in their own home can make people feel liberated, protected and just more relaxed. 340

Online mediation 18.42 In a building dispute over high-end West End properties the construction director said at the end of the mediation that he liked being online. He would not have been as flexible in his approach if he had to be in the same building, never mind the same room, as the disaffected clients.

Seating 18.40 Another mediator’s shibboleth. Mediation commentators and trainers emphasise the importance of seating. Strasser and Randolph in Mediation: A  Psychological Insight into Conflict Resolution1 advise that mediators need to consider and arrange the seating so that none of the parties feels unduly ill at ease and be sensitive to hierarchies. You can’t do that on screen. There is no opportunity to seat the client closest to the mediator to make them feel important and protected. There’s no distancing lawyers from the centre of attention.

Small talk 18.41 There is less informal chat between mediators and parties and between members of the same team. Many lawyers report that people seem to want to get to the real business and to cut to the chase more quickly. One advantage of mediating online is it reduces the amount of time people have to spend chatting to each other while the mediator is absent. Talk about holidays and hobbies as well as sandwiches dries up. All that is very tiring and dispiriting. But so is sitting for hours in front of a screen – it is hard work. Therefore people want to move on and drop out of the session by clicking the mute and stop video icons.

Time 18.42 Online time is different. There’s a paradox. An hour spent online passes more slowly than an hour in the flesh. Especially when you are waiting for the mediator to return. Time really drags. Everyone is in their own home. There’s less interaction. But the tempo seems to be faster. Just by being on a screen people think that they have to react more quickly and hurry along. We’ve all picked up bad habits like responding to emails the moment they arrive or texting back immediately. And yet things take longer. Toggling from one room to another is slower and more cumbersome than just walking along the corridor to the other room. Producing the settlement agreement is so much more drawn out and laborious (see 18.05). Time pressure is less. No journeys home. You are already there. Deadlines evaporate. Indulge in more drafting toing and froing. Why not? No one is going anywhere. Time saved in getting to the settlement more quickly is lost in documenting it more slowly. 341

18.43  Online mediation Mediators have to manage time more attentively. Keeping people in the loop. Making sure that they all still engaged. Nudging people along even when they are relaxing with a glass of wine on their sofa.

Us 18.43 Mediation is a team effort whether we like it or not. Everybody has to play their part. It only works if everyone works. Generating a sense of being all involved in a joint enterprise is a lot easier if everyone has made the effort to physically be in the same building. Doing it online is harder. That’s why shorter sessions, breakout and review meetings are important. Also using the right language helps, for example, talking of ‘teams’ – not ‘sides’. In caucuses don’t be afraid as mediator of using the word ‘we’. As in: ‘We are discussing this here what is the way forward?’ or: ‘How are we going to tackle this? It’s the same question for both rooms’. Emphasising the mutuality of the situation and of the outcome really helps. It helps at in-the-flesh mediations. It’s just more important in online.

Visuals 18.44 For some mediators flipcharts are essential. Others don’t use them at all. You can use flipcharts immediately online with Zoom. You can’t if you mediate by phone or email. Most AV systems have a document sharing facility and a whiteboard. You share your screen and people can see documents you create. It’s much like using a flipchart. You can allow the participants to annotate or change what you have written. This is much the same as handing someone the marker and asking them to write on the flip chart. The impact is effective. But drawing on the screen is not as immediate as standing in front of people writing on a flipchart. And it’s usually slower. In practice, at online mediations whiteboard and screen sharing are not used much. If you want to use the whiteboard, practise with it. Using a screen has advantages. One is that you can share visuals and images. For example, plans, drawings and photographs often look better on a computer screen than they do in a photocopied hardcopy. So, take the opportunity to think more creatively about using images in mediation. Have them prepared. This applies to both mediators and advocates. But resist PowerPoint. Keeping an audience engaged in the flesh is difficult enough if you are taking them through a set of slides. This is especially true if you just read out what is on the screen. It is even worse doing it online.

Voice 18.45 Just as important as the visuals are sounds, ie  the voice. You have to concentrate on your own and other people’s. 342

Online mediation 18.46 You saw in Chapter 8 the importance of matching tone, vocabulary and tempo when speaking on the telephone. It also matters when you’re face-to-face in the flesh. We looked at the power of mimicry and matching. Paradoxically this is even more important on screen. This is for two reasons: 1

It’s harder to hear each other on most AV systems than it is in the flesh or even on the phone. The sound quality is just not as good. There’s usually a delay between what the speaker says and what the listeners hear.

2

You have to articulate more clearly. You also have to speak more slowly and then pause. This means that conversations are slightly more stilted and less free-flowing. So, make your words count. Think more about the order of your words. Use fewer of them. Structure what you say better. The whole online experience is more deliberate. It’s not as easy as you think and you need to practise.

3

Effective talking requires effort. So does effective listening. Your main source of information about what people are thinking is what they are saying. There is much less non-verbal information available to you. You really have to concentrate. You have to process what they say.

Take more and longer breaks in between sessions with the parties. Work through what is being said. Look for word patterns. Recall the hesitations, repetitions and deviations. Check what was said and what was not said. Ask yourself – what was the tone? Was it flat and monotone, or lively and upbeat? Who was doing the talking? What are other members of the team doing? When people are in their own home they behave differently from when they are in someone else’s office. Clients sometimes leave their barrister to do all the talking. They just turn side on and tune out so that you can’t see their face just their profile. They don’t do this as much when you are all physically in the same room. For mediators it’s harder to look at the client and direct the question to them. If you ask a question you need to preface it with: ‘Can I ask Simon or Jane?’ Otherwise, their advocate will assume you’re talking to them and answer for their client.

Waiting rooms 18.46 A useful feature on Zoom, but not used as much as breakout rooms. When you are in a waiting room you are on your own. You can’t see or hear anyone else and they can’t see or hear you. And the host can’t barge in. Some mediators say they use them as crowd control. If a participant is behaving inappropriately, they put them in a waiting room to calm down. This is rare. More common is using them as a security feature. Having invitees in a waiting room as they click to join the meeting allows you as the host to check that they are who you are expecting. Then you can assign them to their breakout room. With people logging on from someone else’s device or with a different name how do you know that ‘Ipad 72’ is in fact ‘Alex Smith’? If you allow invitees to be automatically assigned to their breakout rooms you can’t do this. 343

18.47  Online mediation

X Factor 18.47 Why do so many people say that they prefer mediating online? For clients they feel less intimated. As one client said, she realised that mediation was not like court. But when you are in a room full of lawyers, it can feel like court. Lawyers and clients value the opportunity for better time management, ie doing other work during the day.

Yourself 18.48 Another iconic lockdown word is wellbeing. Working from home on screen with restricted social interaction has produced all sorts of health issues – mental and physical. A  few things that make an online mediation go better without increasing the mental and physical overload. •

Avoid moving straight from breakfast to the screen and logging on for the mediation. You would not do this if you were mediating in the flesh.

•

Get some fresh air. This doesn’t have to be much. Just walk down the garden or round the block.

•

A  few gentle stretches. And repeat during the day. Sitting hunched over a screen produces aches and pains in necks, shoulders and backs.

•

Prolonged peering at a screen and straining to hear people causes eye strain and headaches. Take breaks. Drink water. Stand up.

•

Our environment influences how we think and feel and therefore our behaviour including decision making. Therefore check your environment. Make it as stress free as possible: uncluttered, with what you need to hand, back up equipment, fresh air and no distracting noise. Not all of these are possible all of the time.

•

Move away from the screen. This combats tunnel vision, both physical and more importantly mental. Just a brief change in environment can help dislodge fixed patterns of thought.

Zoom 18.49 The most suitable platform for mediations, with vital features such as breakout rooms. Sign up for the professional version.

In a nutshell 18.50 •

ODR is here to stay. 344

Online mediation 18.50 •

ODR is changing the way we conduct mediations. All of us: mediators, clients and advocates.

•

Online processes are more streamlined.

•

Upgrade your technology and master it. If the technology doesn’t work well, the mediation process won’t work well.

•

The 3 Ps of mediation are even more important online: perseverance, patience and perma-smile. Especially the last two.

1 Strasse, Randolph Mediation: A  Psychological Insight into Conflict Resolution (Bloomsbury Continuum).

345

Index [All references are to paragraph numbers] A About this book concluding points 1.25 definitions used 1.07, 1.09–1.14 drawing on works of others 1.03–1.04 New Stuff see New Stuff reasons for reading book 1.01 answers to questions 1.23 phronesis 1.02 warnings see Red flags Active listening 8.16, 8.17 checklist App 6 drawbacks demotivation 8.21 hard work 8.23–8.24 over-repetition 8.20 stalling 8.22 importance of engaging in 8.18 mediation message 8.19 Advisor’s power see Power Anger fairness, and 15.22 mediation power, and 13.60–13.62 mediators dealing with anger 13.63– 13.64 Argument behavioural barrier 7.20 mediation message 7.21–7.23 Arousal generally 9.33 mediation message 9.34 Artificial intelligence generally 2.39 Attentiveness showing 9.14 Authority experts 9.05 generally 9.04 Authority bias power and mediation mind traps 13.53

B Barriers argument 7.20 mediation message 7.21–7.23 bridges see Bridges concluding points 7.53 groupthink 7.49 equality bias 7.50 theory of mind 7.51–7.52 mood swings 7.02 cognitive biases 7.09 mapping chart 7.10 emotions 7.04 energy levels graph 7.05 graph 7.06 influencing factors colours 7.13 food 7.17–7.18 mediation message 7.19 images 7.16 smells 7.15 sounds 7.14 temperature 7.12 weather 7.11 mediation stages 7.07 graph 7.08 mediator DJ 7.03 reason for going to mediation 7.01 status anxiety 7.41 mediation actors, roles 7.42 mediation mindset 7.47–7.48 mediators or moderators or monitors 7.45 mediation message 7.46 problems with lawyers and experts 7.43–7.44 stress 7.24–7.26 accumulation 7.34–7.35 acute 7.30–7.31 mediation message 7.32

347

Index Barriers – contd stress – contd catching 7.33 causes 7.27 mediation message 7.28 chronic 7.29 future induced 7.38 MIS (mediation-induced stress) 7.39 mediation message 7.40 pre-existing 7.36 triggered 7.37 Basic emotions generally 3.06 Behavioural barriers see Barriers Behavioural economics cognitive biases, and 1.03–1.04 definition 1.07 generally 1.03 Biology fairness, and 15.16 ‘Blobologists’ meaning 1.03 Bluffing truth, and 14.10 Body language generally 8.27 mediation message 8.28 online mediation, and 18.10 your own 8.29 Brain artificial intelligence 2.39 bamboozlement 2.03 body or brain in charge 2.42 brain’s activity directed by forces beyond your control 2.45 mediation message 2.43–2.44 chemicals App 3 concluding points 2.53 essentials energy and fuel 2.47 mediation message 2.52 physical exercise 2.50 mediation message 2.51 sleep 2.48 mediation message 2.49 evolution, consensus on 1.23 function 2.05 functional magnetic resonance imaging (fMRI) scans being misled by 1.21 performing on dead salmon 1.22 generally 2.01–2.02

Brain – contd intelligence 2.34 artificial 2.39 development 2.36 increased 2.37 IQ 2.36, 2.37 mediation message 2.38 static, concept 2.37 type or types 2.35 memory 2.18 mediation message 2.27, 2.29, 2.33 trusting 2.23 context 2.30 how you were feeling (emotions) 2.31–2.32 questions you were asked 2.24–2.26 were you paying attention 2.28 types 2.19 long-term memory 2.22 operative memory 2.21 short-term memory 2.20 other reading materials 2.04 parts App 2 prediction 2.40 purpose 2.17 intelligence 2.34–2.38 artificial 2.39 memory 2.18–2.33 prediction 2.40 uncertainty principle 2.41 recurrent statements heard in mediation circles/Conflict Resolution Literature 2.07 brain areas 2.10 brain has three main parts 2.09 brain is a computer 2.08 mirror neurons make us human 2.13 ‘right-brained’ people are more creative 2.12 we only use 10% of our brain 2.11 reward system 2.46 statements often made about future 2.14 free will is dead 2.16 neuroscience is transforming human self-understanding 2.15 structure 2.06, App 1 neurons 2.05, App 1 mirror 2.13 subjects covered in Ch 2 2.04 Bridges back to basics 8.01

348

Index Bridges – contd concluding points 8.49 empathy 8.06, 8.10 always a good thing or not 8.14 deficit 8.06 mediators using 8.12 mediation message 8.13 moral dilemma, different scenarios 8.07–8.09 purpose 8.11 suppressing 8.14 women making better mediators 8.15 essence of process 8.02 listening 8.16 active 8.17 checklist App 6 drawbacks demotivation 8.21 hard work 8.23–8.24 over-repetition 8.20 stalling 8.22 importance of engaging in 8.18 mediation message 8.19 guided 8.25 mimicry 8.26 body language 8.27 mediation message 8.28 your own 8.29 matching language handling anger 8.33 mediation message 8.32 what to do 8.31 matching movements 8.30 your own body language 8.29 numbers 8.43 assumptions 8.48 concluding points 8.49 dangers of statistics 8.48 getting to 8.45 presentation 8.48 reasons for 8.44 understanding 8.47 using 8.46 rapport 8.34 concept 8.35 establishing 8.36 reality assessment 8.37–8.38 mediation message 8.42 questions asking 8.39 reality assessment – open 8.40–8.41

Bridges – contd smiling 8.03 mediation message 8.04–8.05 Bullying self-determination, and 6.22 mediation message 6.23 C Checklists active listening App 6 cognitive biases App 5 heuristics App 5 lying 14.31 offers beware of sunk cost fallacy 17.25 context 17.26 contrast and compare 17.27 frame of gains 17.26 giving rationale, context and calculations for offer 17.33 mind reading 17.30 post-mediation offers 17.35– 17.36 pre-mediation offers 17.34 price and value 17.31 story telling 17.32 timing 17.29 Clothing authority, and 9.04 mediation power, and 13.41 online mediation, and 18.14 Cognitive biases bamboozlement 4.14–4.15 behavioural economics/economists, and 1.03–1.04 checklist App 5 concluding points 4.24, 5.41 constraints 4.19 development 4.06–4.08 mental accounting model 4.09 regret theory 4.10 generally 4.01, 4.02 mediation message 1.05, 4.16–4.18 mood swings, and 7.09 mapping chart 7.10 number of 4.11–4.13 pressure 4.20 uncertainty 4.21 Cognitive psychology characteristics 1.05 Colours mood affected by 7.13

349

Index Commitment asking for 9.15 influence 9.07 Confidence showing 9..19 Confidentiality online mediation, and 18.16 Confliction definition 1,14 Conflicts definition 1,12 Consistency influence 9.07 Contempt mediation power, and 13.40 trust, and 16.25 Controlling emotions generally 3.27 mediation message 3.28 Cultural emotions generally 3.08 romantic love 3.10 wild pig syndrome 3.09 D Decisions generally 1.24 treating as a bet 10.05 Default effect intuition 5.24 mediation message 5.25 Differences definition 1,13 Disagreements definition 1,13 Disgust fairness, and 15.23 mediation power, and 13.65 mediation message 13.66 trust, and 16.26 Disputes definition 1,12 Disdain mediation power, and 13.40 Dread fear and, comparison for power purposes 13.56 mediation message 13.57 E Emotional experience definition 1.07

Emotions basic emotions 3.06 behaviour affected by, consensus 1.23 concluding points 3.41, 5.41 controlling 3.27 mediation message 3.28 cultural emotions 3.08 romantic love 3.10 wild pig syndrome 3.09 definitions 1.07, 3.01–3.02 everyone feeling same emotions 3.05 expressing 3.29 knowing others 3.32 knowing yourself 3.31 non-verbal expression 3.30 verbal expression and venting 3.33 bottling it up 3.36 letting it out 3.34–3.35 mediation message 3.37 fairness, and 15.20 anger 15.22 disgust 15.23 vengefulness 15.21 feeling, definition 1.07 generally 3.01–3.02 higher cognitive emotions 3.07 identifying and labelling own emotions 3.23 list of 3.04 main categories 3.06–3.10 mediation message 3.11 mediation message 1.05 mediation power, and anger 13.60–13.62 mediators dealing with 13.63– 13.64 behaviour 13.37 mediation message 13.38 disgust 13.65 mediation message 13.66 fear 13.55 dread and, comparison 13.56 mediation message 13.57 surprise and, comparison 13.58 mediation message 13.59 humiliation 13.67 mediation message 13.68 pride 13.69 mediation message 13.70 mediators showing emotion 3.38– 3.39 mediation message 3.40

350

Index Emotions – contd money, and greed 12.47 guilt 12.43–12.45 jealousy and envy 12.48 triumph 12.46 mood swings, and 7.04 energy levels graph 7.05 emotions graph 7.06 number of 3.04 online mediation, and 18.19 origins of 3.14–3.15, 3.17 classical theory 3.18 constructed theory 3.19–3.21 fear 3.14–3.15 mediation message 3.16 personality tests App 4 positive v negative emotions 3.12 purpose 3.03 reading emotions 3.24–3.26 trust, and contempt 16.25 disgust 16.26 trusting our memory 2.31–2.32 truth, and impatience 14.46 mediator message 14.47 indignation 14.48 words in different languages expressing feeling 3.22 Empathy always a good thing or not 8.14 deficit 8.06 generally 8.06, 8.10 mediators using 8.12 mediation message 8.13 moral dilemma, different scenarios 8.07–8.09 purpose 8.11 suppressing 8.14 trust, and 16.15 women making better mediators 8.15 Envy money-related emotion 12.48 Equality bias groupthink, and 7.50 Expectations management fear words App 8 FUD (fear, uncertainty and distress) or FUN (fixing uncertainty now) 9.36

Expectations – contd management – contd making offers 17.15 managing expectations 17.16 mediation message 9.38 predictions, and 10.11 mediation message 10.12 Experts authority type 9.05 power see Power Expressing emotions generally 3.29 knowing others 3.32 knowing yourself 3.31 non-verbal expression 3.30 verbal expression and venting 3.33 bottling it up 3.36 letting it out 3.34–3.35 mediation message 3.37 F Fairness biology, and 15.16 concluding points 15.25 dealing with 15.17 dictator game 15.05 emotions, and 15.20 anger 15.22 disgust 15.23 vengefulness 15.21 fair price 15.09, 15.12 mediation message 15.10–15.11, 15.13 generally 15.01 idea of, source 15.08 implications 15.06 importance 15.02 meaning 15.07 mediation mind traps 15.24 mediator 15.18 dealing with fairness 15.17 mediation message 15.19 rules 15.14–15.15 ultimatum game 15.03 mediation message 15.04 False consensus bias naive realism, and 14.39 mediation message 14.40 prediction, and 10.09–10.10 Fear see also Emotions; Expectations mediation power, and 13.55 fear and dread 13.56

351

Index Fear – contd mediation power – contd mediation message 13.57 fear and surprise 13.58 mediation message 13.59 regret 5.30 mediation message 5.31 Feelings see Emotions Flattery influence 9.09 mediation power, and 13.36 Food mood affected by 7.17–7.18 mediation message 7.19 online mediation, and 18.22 Frequently observed behaviours (FOBs) see Barriers; Bridges G Greed money-related emotion 12.47 Groupthink equality bias 7.50 generally 7.49 theory of mind 7.51–7.52 Guided listening generally 8.25 Guilt money-related emotion 12.43–12.45 Gut feelings see Intuitions H Happiness money buying 12.17 comparisons count 12.21 mediation message 12.22 losing hurts more than winning heals 12.20 loss of face a painful loss 12.19 mediation message 12.18 self-justification, and 6.30 mediation message 6.31–6.32 Heuristics ‘affect’ 5.17–5.18 mediation message 5.19 ‘availability’ 5.21 checklist App 5 concluding points 4.24 constraints 4.19 development 4.22 ‘effort’ (IKEA heuristic) 5.26 mediation message 5.27

Heuristics – contd ‘familiarity’ 5.28 mediation message 5.29 ‘first’ and ‘last’ 5.32 mediation message 5.33 generally 4.01, 4.03 intuitions, and 5.06 ‘affect’ heuristic 5.17–5.18 mediation message 5.19 ‘availability’ heuristic 5.21 ‘effort’ heuristic (IKEA heuristic) 5.26 mediation message 5.27 ‘familiarity’ heuristic 5.28 mediation message 5.29 ‘first’ and ‘last’ heuristic 5.32 mediation message 5.33 ‘representativeness’ heuristic 5.37 ‘simulation’ heuristic 5.38 stereotypes 5.08–5.10 using heuristics 5.07 mediation message 4.18, 4.23 pressure 4.20 ‘representativeness’ 5.37 ‘simulation’ 5.38 stereotypes 5.08–5.10 uncertainty 4.21 using 5.07 Higher cognitive emotions generally 3.07 Humiliation mediation power, and 13.67 mediation message 13.68 I Images mood affected by 7.16 Impact bias intuition 5.34 Impatience truth, and 14.46 Indignation truth, and 14.48 Influence see also Persuasion online mediation, and 18.26 Information bias intuition 5.22 mediation message 5.23 In-group behaviour intuition 5.11–5.12 mediation message 5.13 Intelligence see Brain

352

Index Intuitions approach 5.07 ‘in groups’/’out groups’ 5.11–5.12 stereotypes 5.08–5.10 choice 5.36 mediation message 5.36 concluding points 5.41 curse of knowledge (information bias) 5.22 mediation message 5.23 default effect 5.24 mediation message 5.25 fear of regret 5.30 mediation message 5.31 functions 5.04 generally 5.01 good or bad thing 5.05–5.06 gut feelings advantages 5.05 where they come from 5.02–5.03 heuristics ‘affect’ 5.17–5.18 concluding points 5.20 mediation message 5.19 ‘availability’ 5.21 ‘effort’ (IKEA heuristic) 5.26 mediation message 5.27 ‘familiarity’ 5.28 mediation message 5.29 ‘first’ and ‘last’ 5.32 mediation message 5.33 ‘representativeness’ 5.37 ‘simulation’ 5.38 impact bias 5.34 mediation message 5.16 naive diversification 5.35 scarcity 5.40 stereotyping 5.08–5.10, 5.39 trusting 5.14 rules of thumb 5.15 J Jealousy money-related emotion 12.48 Joint Opening Sessions mediation power, and 13.42 finding where power is 13.47 time 13.43 mediation message 13.44–13.45 power displayed through use of 13.46 online mediation, and 18.27

Joy see Happiness Justice truth, and 14.05 mediation message 14.06 K Knowledge curse of, intuition and 5.22 mediation message 5.23 L Laboratory experiments carrying out, on university students and ‘WEIRD’ 1.18 Lake Wobegon effect generally 6.17 Language body see Body language matching handling anger 8.33 mediation message 8.32 what to do 8.31 persuasion, and choosing your words 9.35 power words App 7 getting message across 9.20 start priming 9.21 mediation message 9.22 reasons for using language at mediation 9.24 spoken word 9.23 swearing, trust and 16.10 Liking influence 9.08 flattery 9.09 Listening active 8.16, 8.17 checklist App 6 drawbacks demotivation 8.21 hard work 8.23–8.24 over-repetition 8.20 stalling 8.22 importance of engaging in 8.18 mediation message 8.19 generally 8.16 guided 8.25 Logical fallacies generally 4.01, 4.04 mediation message 4.05 Lying checklist 14.31

353

Index Lying – contd generally 14.13 how to tell when someone is lying 14.17–14.18 indicators attack 14.28 avoiding question 14.24 demeanour 14.19–14.20 mediation message 14.21 distortion 14.26 out of context 14.22 partial answer 14.23 refusal 14.27 stalling 14.25 mediation message 14.29 mediators expecting to be lied to 14.30 most people lie 14.16 reasons 14.14 mediation message 14.15 types of lies 14.13 M Machs personality type 6.11 Management expectations fear words App 8 FUD (fear, uncertainty and distress) or FUN (fixing uncertainty now) 9.36 making offers 17.15 managing expectations 17.16 mediation message 9.38 making offers 17.12 expectations 17.15 managing 17.16 process 17.13 time 17.14 Marshmallow test self-gratification 6.18 mediation message 6.19–6.20 Matching language handling anger 8.33 mediation message 8.32 what to do 8.31 movements 8.30 Mediation definition 1.10 emotions see Emotions mind traps see Mediation mind traps

Mediation – contd online see Online mediation power see Power trust see Trust Mediation-induced stress (MIS) generally 7.39 mediation message 7.40 Mediation mind traps cognitive biases see Cognitive biases fairness 15.24 heuristics see Heuristics logical fallacies 4.01, 4.04 mediation message 4.05 money anchoring 12.26 endowment effect 12.29 mediation message 12.32 scenario one 12.30 scenario two 12.31 hyperbolic discounting 12.33 time and money 12.34 irrational escalation (sunk cost fallacy) 12.35 matter of principle 12.38 mediation message 12.37 weekend in Paris 12.36 loss aversion 12.39 priming 12.27 first offer 12.28 pseudo-certainty effect 12.40 zero-risk bias 12.41–12.42 power authority bias 13.53 earned dogmatism 13.54 trust ad hoc fallacy 16.14 empathy gap 16.15 fundamental attribution error 16.16–16.17 mediation message 16.18–16.19 reactive devaluation 16.20 truth choice supportive bias 14.32 cognitive dissonance 14.33 confirmation bias 14.34 consistency bias 14.35 beliefs and values 14.36–14.37 framing effect 14.38 naive realism and false consensus bias 14.39 mediation message 14.40 pluralistic ignorance 14.40

354

Index Mediation – contd truth – contd selective perception 14.42 story bias 14.43 mediation message 14.44– 14.45 Meetings online mediation, and 18.30 Memory see Brain Mental accounting model development 4.09 Mimicry body language 8.27 mediation message 8.28 your own 8.29 generally 8.26 matching language handling anger 8.33 mediation message 8.32 what to do 8.31 matching movements 8.30 your own body language 8.29 Mind traps see Mediation mind traps Money buying happiness 12.17 comparisons count 12.21 mediation message 12.22 losing hurts more than winning heals 12.20 loss of face a painful loss 12.19 mediation message 12.18 concept 12.03 concluding points 12.49 emotions, and greed 12.47 guilt 12.43–12.45 jealousy and envy 12.48 triumph 12.46 importance 12.01 mediation message 12.02 reason 12.04 knowing your client 12.24 mediation mind traps anchoring 12.26 endowment effect 12.29 mediation message 12.32 scenario one 12.30 scenario two 12.31 hyperbolic discounting 12.33 time and money 12.34 irrational escalation (sunk cost fallacy) 12.35

Money – contd mediation mind traps – contd matter of principle 12.38 mediation message 12.37 weekend in Paris 12.36 loss aversion 12.39 priming 12.27 first offer 12.28 pseudo-certainty effect 12.40 zero-risk bias 12.41–12.42 mediators 12.25 offers 17.10–17.11 power, and see Power price fair 15.09, 15.12 mediation message 15.10–15.11, 15.13 process 12.10 reluctance to talk about 12.05 determination and influences on attitude towards money 12.09 knowing what you want to buy 12.08 scoping discussion 12.06 talking price or value 12.07 timing 12.23 value, process 12.11 contextual 12.12 relative 12.15 mediation message 12.16 temporal 12.13 mediation message 12.14 Mood definition 1.07 swings 7.02 cognitive biases 7.09 mapping chart 7.10 emotions 7.04 energy levels graph 7.05 graph 7.06 influencing factors colours 7.13 food 7.17–7.18 mediation message 7.19 images 7.16 smells 7.15 sounds 7.14 temperature 7.12 weather 7.11 mediation stages 7.07 graph 7.08 mediator DJ 7.03

355

Index Movements matching 8.30 N Naive diversification intuition 5.35 offers 17.45 mediation message 17.46 Narcissists personality type 6.12 Negotiation definition 1.11 Neuro-linguistic programming (NLP) persuasion, and 9.25–9.26 mediation message 9.27–9.28 Neuroscience definition 1.07 New Stuff challenging conclusions 1.08 concluding points 1.25 decisions 1.24 helping get more out of mediation 1.01, 1.06 working definitions used in book 1.07 making use of 1.03 Non-violent communication (NVC) assumptions and mediation 9.31 Carl Rogers’ 19 propositions 9.29, App 9 concept 9.30 generally 9.29 mediation message 9.32 Numbers assumptions 8.48 concluding points 8.49 dangers of statistics 8.48 generally 8.43 getting to 8.45 presentation 8.48 reasons for 8.44 understanding 8.47 using 8.46 O OCEAN personality 6.06 ODR see Online mediation Offers checklist beware of sunk cost fallacy 17.25 context 17.26

Offers – contd checklist – contd contrast and compare 17.27 frame of gains 17.26 giving rationale, context and calculations for offer 17.33 mind reading 17.30 post-mediation offers 17.35–17.36 pre-mediation offers 17.34 price and value 17.31 story telling 17.32 timing 17.29 concluding comments 17.47 making offers management 17.12 expectations 17.15 managing 17.16 process 17.13 time 17.14 meaning 17.23 messages 17.09 mindset 17.08 momentum 17.20 clients 17.21 money 17.10–17.11 monitor 17.22 movement 17.17–17.19 mediation power, and 13.52 mediators coaching, potential problems 17.37 mind reading 17.24 checklist 17.30 naive diversification 17.45 mediation message 17.46 offers are oxygen 17.01 reactions to 17.44 sequence explaining offers 17.41 first offer 17.38–17.39 flipping 17.43 non-monetary elements 17.42 number of rounds 17.40 using knowledge to navigate through zones to signature 17.07 zones 17.02 comfort zone 17.03 credibility zone 17.04 deal zone 17.05 red zone 17.06 Online mediation A–Z of artificial 18.07

356

Index Online mediation – contd A–Z of – contd back channels 18.08 back drops 18.09 body language 18.10 breaks 18.11 bundles 18.12 camaraderie 18.15 cameras/lights 18.13 clothes 18.14 confidentiality 18.16 control 18.17 distraction 18.18 emotions 18.19 energy 18.20 engagement 18.21 food 18.22 gradualism and gentleness 18.23 height 18.24 humour 18.25 influence 18.26 Joint Opening Sessions 18.27 kicked out 18.28 leaving 18.29 meetings 18.30 mute 18.31 new norm 18.32 outcomes 18.33 process 18.34 questions 18.35 rapport 18.36 reality testing 18.37 recap 18.38 safe environment 18.39 seating 18.40 small talk 18.41 time 18.42 us 18.43 visuals 18.44 voice 18.45 waiting rooms 18.46 X factor 18.47 yourself 18.48 Zoom 18.49 advantages 18.02 concluding points 18.50 generally 18.01–18.02 red flags 18.03 internet connection 18.04 printing and signing 18.05 streamlining 18.06

Optimism chances of winning 10.20 mediation message 10.21 Out-group behaviour intuition 5.11–5.12 mediation message 5.13 P Perception approaches behavioural 11.07–11.08 answers to questions 11.12 philosophical 11.06 psychological 11.05 concluding points 11.12 meanings 11.04 mediation message 11.03, 11.11 mediations, and 11.09 uniqueness 11.10 what you see 11.01 misreading situation 11.02 Personality definition 1.07 generally 6.06 mediation message 6.08 OCEAN 6.06 temperament 6.07 types 6.08 machs 6.11 narcissists 6.12 psychopaths 6.09–6.10 Persuasion arousal 9.33 mediation message 9.34 choosing your words 9.35 power words App 7 concluding points 9.39 expectation management fear words App 8 FUD (fear, uncertainty and distress) or FUN (fixing uncertainty now) 9.36 mediation message 9.38 getting message across 9.20 start priming 9.21 mediation message 9.22 influence 9.02 authority 9.04 experts 9.05 commitment and consistency 9.07 liking 9.08 flattery 9.09

357

Index Persuasion – contd influence – contd reciprocation 9.03 scarcity 9.10 social proof 9.06 unity 9.11 language reasons for using at mediation 9.24 spoken word 9.23 neuro-linguistic programming (NLP) 9.25–9.26 mediation message 9.27–9.28, 9.32 non-violent communication (NVC) 9.29 assumptions and mediation 9.31 Carl Rogers’ 19 propositions 9.29, App 9 concept 9.30 mediation message 9.32 persuaders 9.01 what to do 9.12 asking for commitment 9.15 being attentive 9.14 being there first 9.13 confidence 9.19 reassurance 9.16 similarity 9.17 social media 9.18 Phronesis meaning 1.02 Physical exercise brain, and 2.50 mediation message 2.51 Posture mediation power, and 13.41 Power concluding points 13.71 generally 13.01 mediation emotions anger 13.60–13.62 mediators dealing with 13.63– 13.64 behaviour, and 13.37 mediation message 13.38 disgust 13.65 mediation message 13.66 fear 13.55 dread and, comparison 13.56 mediation message 13.57 surprise and, comparison 13.58 mediation message 13.59 humiliation 13.67

Power – contd mediation emotions – contd mediation message 13.68 pride 13.69 mediation message 13.70 mediation mind traps authority bias 13.53 earned dogmatism 13.54 mediation power advisors 13.10 behaviour 13.35 contempt and disdain 13.40 emotions 13.37 mediation message 13.38 flattery (praise) 13.36 posture, clothes and breathing 13.41 pride 13.39 exercise 13.13, 13.25 experts 13.30 mediation message 13.31 intimidation-venues 13.33 ‘knowledge is power’ 13.29 mediator’s secret weapon 13.14 money 13.28 pecking order 13.26 mediation message 13.27 power plays 13.32 teams of lawyers 13.34 within teams 13.15 experts 13.12 exercise of power 13.30 mediation message 13.31 mediators 13.11 Joint Opening Sessions 13.42 finding where power is 13.47 time 13.43 mediation message 13.44–13.45 power displayed through use of 13.46 parties 13.08–13.09 shifts and swings client assertion 13.49 mediation message 13.50–13.51 offers 13.52 power dynamic not static 13.48 types 13.16 absent power 13.21 mediation message 13.22 approval power 13.23 financial power 13.19 host power 13.18 people power 13.20

358

Index Power – contd mediation power – contd process power 13.17 veto power 13.24 types coercive power 13.05 expert power 13.07 legitimate power 13.03 real life power 13.02 referent power 13.06 reward power 13.04 Praise mediation power, and 13.36 Prediction chances of winning 10.13–10.17, 10.19 answers to questions 10.26 odds 10.18 optimism 10.20 mediation message 10.21 change and rise of litigation analytics 10.24 concluding points 10.25 generally 2.40, 10.01–10.02 getting wiser as we get older 10.22 mediation message 10.23 hedonic forecasting 10.06 pattern making 10.03 mediation message 10.04 problem with 10.07 false consensus bias 10.09–10.10 great expectations 10.11 mediation message 10.12 treating decisions as a bet 10.05 Price see Money; Offers Pride mediation power, and 13.39, 13.69 mediation message 13.70 Priming money and mediation mind traps 12.27 first offer 12.28 persuasion, and 9.21 mediation message 9.22 Psychology definition 1.07 offers see Offers Psychopaths personality type 6.09–6.10 Puffing truth, and 14.11 mediation message 14.12

R Rapport concept 8.35 establishing 8.36 generally 8.34 online mediation, and 18.36 Reality testing generally 8.37–8.38 mediation message 8.42 online mediation, and 18.37 questions asking 8.39 open 8.40–8.41 Reasons for reading book see About this book Reassurance generally 9.16 Reciprocation generally 9.03 Red flags consensus on the brain/unconscious rehabilitation/emotions affecting behaviour 1.23 experiments carried out on university students and ‘WEIRD’ 1.18 functional magnetic resonance imaging (fMRI) scans being misled by 1.21 performing on dead salmon 1.22 generally 1.15 intuitions 5.14 not everyone agrees about everything 1.16 online mediation 18.03 internet connection 18.04 printing and signing 18.05 replication of test results 1.19–1.20 what they are saying (jargon) 1.17 Regret fear of 5.30 mediation message 5.31 theory, development 4.10 Rules of thumb advantages of gut feeling 5.05 heuristics 4.01, 4.03, 4.22 knowing which work 5.06 trusting your intuition 5.15 S Scarcity influence 9.10 intuition 5.40

359

Index Self concept 6.01 self-control 6.26 self-determination 6.21 bullying 6.22 mediation message 6.23 self-esteem 6.13–6.14 self-gratification (marshmallow test) 6.18 mediation message 6.19–6.20 self-interest 6.15 mediation message 6.16 self-serving bias (Lake Wobegon effect) 6.17 self itself 6.02 bundle theory 6.04 core theory 6.03 personality see Personality self-justification 6.27 happiness or joy 6.30 mediation message 6.31– 6.32 substituting assumptions 6.28 mediation message 6.29 self-pity 6.24 mediation message 6.25 concluding points 6.33 generally 6.01 truth and self-image 14.03 mediation message 14.04 Short cuts advantages of gut feeling 5.05 heuristics 4.01, 4.03, 4.22 ‘availability’ 5.21 knowing which work 5.06 stereotypes 5.08–5.10 Similarity checking for 9.17 Sleep brain, and 2.48 mediation message 2.49 Smells mood affected by 7.15 Smiling generally 8.03 mediation message 8.04–8.05 Social media using 9.18 Social proof influence 9.06 Sounds mood affected by 7.14

Status anxiety generally 7.41 mediation actors, roles 7.42 mediation mindset 7.47–7.48 mediators or moderators or monitors 7.45 mediation message 7.46 problems with lawyers and experts 7.43–7.44 Stereotyping intuition 5.08–5.10, 5.39 Stress accumulation 7.34–7.35 acute 7.30–7.31 mediation message 7.32 catching 7.33 causes 7.27 mediation message 7.28 chronic 7.29 future induced 7.38 generally 7.24–7.26 MIS (mediation-induced stress) 7.39 mediation message 7.40 pre-existing 7.36 triggered 7.37 Surprise fear and, comparison 13.58 mediation message 13.59 Swearing trust, and 16.10 T Temperament basic categories of 6.07 generally 6.07 Temperature mood affected by 7.12 Theory of mind groupthink, and 7.51–7.52 Thinking see Cognitive biases Time Joint Opening Sessions 13.43 mediation message 13.44–13.45 power displayed through use of 13.46 management 17.14 mediators, and trust 16.08–16.09 money, and 12.34 online mediation, and 18.42 Trait definition 1.07

360

Index Triumph money-related emotion 12.46 Trust building between parties 16.11–16.12 chemically induced 16.06 concluding points 16.27 coping with, at mediations being conditional 16.22 being contrarian 16.21 trying compromise 16.24 using camouflage 16.23 mediation, and 16.03–16.04 mediation emotions contempt 16.25 disgust 16.26 mediation message 16.07 mediation mind traps ad hoc fallacy 16.14 empathy gap 16.15 fundamental attribution error 16.16–16.17 mediation message 16.18–16.19 reactive devaluation 16.20 mediators losing trust 16.13 time 16.08–16.09 problem with 16.01–16.02 swearing 16.10 Truth Default Theory (TDT) 16.05 Truth bluffing 14.10 concluding points 14.49 constructed 14.07 justice 14.05 mediation message 14.06 lying see Lying mediation emotions impatience 14.46 mediator message 14.47 indignation 14.48 mediation mind traps choice supportive bias 14.32 cognitive dissonance 14.33 confirmation bias 14.34 consistency bias 14.35

Truth – contd mediation mind traps – contd beliefs and values 14.36–14.37 framing effect 14.38 naive realism and false consensus bias 14.39 mediation message 14.40 pluralistic ignorance 14.40 selective perception 14.42 story bias 14.43 mediation message 14.44–14.45 puffing 14.11 mediation message 14.12 revealed 14.08 mediation message 14.09 self-image 14.03 mediation message 14.04 ‘truth’ and ‘the truth’, distinction 14.01 importance at mediations 14.02 Truth Default Theory (TDT) lying, and 14.16, 14.18 trust, and 16.05 U Unconscious rehabilitation, consensus on 1.23 Unity influence 9.11 University students experiments carried out on 1.18 V Value see Money; Offers Vengefulness fairness, and 15.21 W Weather mood affected by 7.11 ‘WEIRD’ (White, Educated, Industrialised, Rich and Democratic) countries research carried out on people from 1.18

361