THE POWERS OF
IN SHAPING MEDIATION
Author: Joe Epstein
Published: The Colorado Lawyer, January
2004, Vol. 33, No 1, p. 45
"Psychodynamics" refers to powerful psychological and sociological forces that
motivates individual's beliefs and behaviors often at the unconscious
levels. These factors can shape
negotiations, as well as make or break a case at the mediation table.
advocates (negotiators) use psychodynamics to effectively persuade their
audiences. Such an approach may involve
instilling fear in the opposing party or using social influence strategies to
win concessions during a negotiation.
Uncovering the opposing party's hidden perceptions and stereotypes and
addressing them upfront often yield an advantage.
article addresses mediation from the perspective of advocates in pre-litigated
and litigated cases, where parties are represented in mediation by counsel or
claims adjusters. It provides insight
into the use of psychodynamics and prepares negotiators to engage in persuasive
mediation strategies. It also discusses
common psychodynamic issues that arise in mediation and suggests ways advocates
may proactively address them.
following scenario illustrates the ability of counsel to use underlying
psychodynamics to achieve mediation objectives.
The Plaintiff is an injured young woman in a complex liability case in
which high damages are likely. Her trial
attorney walks into a meeting room and warmly engages the claims adjuster and
in-house counsel, whom he has not met, but is shaking their hands, looking them
in the eye, and calling them by their first names.
immediately gains credibility with his new acquaintances and looks for an
opportune moment to discredit points made by a key defense expert. He quickly and effectively presents his key
damages with dramatic graphics. Next, he
relies on the mediator's credibility to introduce the potential for punitive
damages. The opposing decision-makers
are unconsciously persuaded by his charisma, likeability, and strategic and
dramatic presentation, as well by his reliance on the mediator's educated
To be an
effective negotiator, an advocate should be fearless, knowledgeable,
passionate, and able to provide a reward or deliver a punishment. The advocate should be careful when selecting
a mediator, in as much as psychodynamics come into play with all individuals
involved in the mediation. The opposing
team will be more willing to say yes to a respected, trusted, liked, and
knowledgeable mediator than to a mediator who is unprepared, autocratic,
opinionated or unfriendly.
Persuasion: Preparation And Other Techniques
Persuasion is the ability to
induce beliefs and values in other people by influencing their thoughts and
actions through specific strategies. - Kevin Hogan.
involves getting others to do what them to do.
Advocates cannot persuade their opponents at the mediation table without
thorough preparation beforehand. To be
effective, advocates must prepare their clients, the opponent, and the
mediator. This should be done by keeping
them involved in the case and providing periodic reality checks.
advocates prepare a mediator by taking an active role in designing the
mediation, engaging pre-mediation caucuses, and creating persuasive
statements. The most skillful advocates
know their focus should be on "preparing" their opponent with carefully
selected experts whose opinions are provided in advance of the mediation. Such advocates engage in thoughtful focused
and effective depositions. They also
make early pre-mediation demands or, if appropriate, pre-mediation offers. Relatedly,
advocates must prepare their own clients by roll-playing the mediation and
establishing realistic expectations.
preparing those involved, but prior to the day of mediation, advocates should
determine the best and worst alternative to a negotiated settlement and
establish a realistic settlement range.
Advocates often fail to determine these dollar amounts beforehand. Before the Plaintiff's counsel comes to the
mediation table, he or she must know what is being "sold," when to start
selling and what price is reasonable.
The possibility of settlement is enhanced when persuasion begins before
and continues throughout the mediation process.
mediation is a dynamic process that requires the skillful use of persuasive
techniques on the part of the advocates.
Roger Dawson, a leading author on mediation, identifies key strategies
that can control or persuade people: The apparent ability to "reward," "punish,"
or both "reward and punish." An advocate in mediation "rewards" the other
party his or her actions by making a significant move closer to the other
party's settlement point. Similarly, a
negotiator may "punish" the other party for an unreasonable response by making
the next offer only a small move.
ability to persuade is enhanced if some of the opposing parties involved in the
mediation have developed rapport or if options to settlement are limited. In addition, a party's attorney has increased
persuasion abilities if he or she appears to have more expertise than the
opposing counsel and acts consistently. Acting consistently involves communicating in
ways that can be understood and relied on by an opponent. From that trust "grows a tremendous ability
should not presume what they say will be deemed credible by an opponent,
particularly if too much information is conveyed at one time. Credibility can be enhanced when an advocate
tells the truth, pulls the punch on weaknesses in the case, and uses precise
negotiation numbers that have a logical base. Third-party endorsement also lends credence
to a position.
mediation, advocates should consider conveying as much information as possible
through their client, the mediator, and experts, because data are considered
more objective when coming from someone other than counsel. Finally, because most people are visual
learners, graphic presentations, provided in advance of the mediation, can
condense and simplify information and persuade opposing decision-makers.
Fear and Power
The only thing we have to fear is
-Franklin D. Roosevelt
Let us never negotiate out of
fear, but let us never fear to negotiate.
-John F. Kennedy
trial attorney, I thought that instilling fear in my adversary was an important
tool in reaching a successful settlement.
After mediating more than 2000 cases, I now am sure of it. Fear is "without question the most intense
persuasion factor." Parties, counsel and claims adjusters fear
failure, embarrassment, ridicule, loss of face, and financial harm. These factors may motivate a negotiator to
settle or accept less than the fair value of a case rather than risk going to
counsel can create fear in the opposing party when a case involves severe
injuries, strong evidence of liability, a sympathetic Plaintiff, favorable law,
multiple Plaintiffs, potential class action, progressive jurisdiction, or
dramatic exhibits. The Defense team may
be prompted to re-evaluate its position and be more willing to concede when
these fear factors are present.
other hand, if a jurisdiction has limits on recovery, broad sovereign immunity,
or statutes protecting various industries from liability, the Defense has less
to fear. Thus, Defense counsel may
invoke fear in the other side by providing settlement offers that shift the
risk of loss involved in litigation.
of its motivating forces, the fear factor can be pushed too far and too
long. It is common to see that once a
party begins "to doubt that the threat is as great as it is being made out to
be by the other side, the power of fear as a persuader diminishes." For example, this is likely to occur when
Plaintiff's counsel allows the Defense team to live with a threat so long that
they either get used to it or begin to dissect it.
advocates, the most successful antidotes to fear are the hand-in-hand qualities
of high self-confidence and risk-tolerance.
Preparation, practice, and success breed enhanced self-confidence. The more people have against self-confidence,
the more likely they are to be risk-tolerant.
If advocates look inward to measure themselves, they are less likely to
allow other's judgments to deter them from their path. Thus, an important key to being a successful
negotiator is to put aside fear of failure, ridicule and embarrassment.
Power: The Flip Side Of Fear
Power is the capacity to act
effectively and the ability to influence.
context of mediation, the exercise of power is the flip side of fear. "Negotiating power is the ability to persuade
someone to do something." Power is exercised most effectively when,
prior to mediation, an advocate instills fear.
At the same time, the negotiator should demonstrate credible reasons why
his or her point of view likely would prevail at trial.
coming to the table, effective advocates show their strength, intelligence and
insight with crafted written discovery and depositions, as well as with
well-reasoned motions and briefs. In
short, power involves knowing more about the case than an adversary, retaining
the best witnesses on key issues, coming up with a dramatic and visual way to
present the case, and having the necessary financial resources to effectively
try the case.
are a favored tool of negotiators to target an opponent's fears. To be successful, a threat must blend
credibility and legitimacy. The person making the threat must have the
capacity to deliver on it. In addition,
it is preferable if he or she has a history of making good on threats.
for threats to be effective, the recipient must be receptive or at least
vulnerable to the threat. In mediation, threats are often best
delivered via the mediator, because such delivery makes threats appear more
credible and less confrontational. For
instance, a mediator may press a punitive damage claim for a Plaintiff that
would be dismissed out-of-hand if presented by the Plaintiff's counsel. On the other hand, a mediator may present a
line of impeachment that would be offensive if presented by a Defense attorney.
need to recognize that the possibility of a potential loss plays a powerful
role in decision-making. "The way to have anything is to realize that
it might be lost." A Plaintiff's low risk tolerance and
uncertainty may drive the party to accept the adage that a "bird in the hand is
worth two in the bush."
Defense side, the certainty of a measured loss in mediation may be more
palatable than a potential loss at trial, which can result from an
unpredictable jury. However, preceding
to trial avoids the risk of a Defense negotiator appearing to be at odds with
his or her peer group.
other hand, if persuaded that the future is more likely to result in a worse
outcome than what is being proposed at mediation, the Defense likely will find
the mediation proposal more attractive.
This point was recently driven home when one of three companion cases
went to trial with the first Plaintiff winning a multi-million dollar
verdict. With the enhanced risk of a
more certain loss, the Defendant was clearly more open to settling with the
remaining Plaintiffs for a higher figure than it had before the adverse trial
and Social Factors
"Where all think alike, no one
thinks very much."
of a mediation is set in three ways.
First, there is the interplay of the numbers and terms of settlement
proposals. Second, there is the factor
of inter-personal communication, which is both verbal and non-verbal. Intelligent advocates apply their own
knowledge and strategy to control these psychodynamics at the table. Third, there is the atmosphere set by the
mediator. A calm tone better reflects a
reason and reasonable analysis.
offers and counteroffers are important to the "psychological setting within
which the 'game' is to be played." Initial moves set the tone between
negotiators that know that the arrangements of the offers and counteroffers
reflects a willingness or unwillingness to work toward closure. One well-regarded academic, Robert Cialdini, states that the rule of reciprocation "requires
that one person will try to repay, in kind, what another person has provided."
the best strategy is for a negotiator to start with an "extreme request" that
is certain to be rejected so that the offerer can
make a concession. In a related manner, it has been stated that the
truly gifted negotiator...is one whose initial position is exaggerated just
enough to allow for a series of small reciprocal concessions and counter-offers
that will yield a desirable final offer from the opponent....
approach a negotiator to avoid an overly-generous opening demand. It also gives him or her time to assess new
information and announce expectations. As part of this negotiation process, it is
useful to allow an opponent to believe that he or she has dictated "the final
refers to a concept that the author refers to as "first impression, lasting
impression." This shortcut allows a
person the mindless luxury of not thinking or reasoning anew. It is human nature, so advocates must be
aware of this unfortunate shortcut.
Thus, new evidence and information is rejected without thought, because
it is easier than adjusting or changing a position.
should make the most of the pre-mediation opportunities to favorably impress
the opposing parties early on. In the
author's experience, this is best done at the plaintiff's deposition. This is where the plaintiff meets the defense
attorney for the first time. If the
adjuster or other decision-maker is not at the deposition, he or she will get
the defense counsel's initial impression of the plaintiff.
first-impression issue involves any public commitment made by negotiators with
a mediator in caucus. This has two
aspects. First, early in the mediation,
a negotiator may want to communicate to the mediator the top or bottom
dollar. However, from a mediator's
perspective, it is preferable not to know this too early. This allows the parties to remain "loose at
the plate" so they can exhibit the flexibility necessary to get a case closed
without the loss of face.
negotiator may want to announce a "take it or leave it" position early in the
mediation. However, if such
pronouncements are made too early, the negotiator may be asked to change a
previously announced position, which creates problems of self-image and public
appearance. The negotiator may lose confidence in his or
her own position, or "lose face" when forced to retreat from a previously
announced position. For these reasons,
the parties are better off not telling their bottom line too early, because
there is less of a psychological impediment to moving a silently marked line in
We determine what is correct by
finding out what other people think is correct...
We view a behavior as correct in a given situation to the degree that we
see others performing it - Robert Cialdini
tend to look to others on their team for validation of their view of a
case. This sociological phenomenon is
one reason plaintiff's counsel must seek to educate, inform, and persuade an
opponent in advance of the mediation. If
counsel is fortunate, he or she will draw both an opponent who is willing and
able to "listen and learn" at a mediation and a mediator who is trusted and
respected by both sides.
involved in mediation are most likely to follow the lead of someone they
identify as part of their team. Parties
are somewhat likely to follow the lead of a trusted and respected neutral, and
are unlikely to follow the lead of an opponent who is not liked or not
respected. Therefore, it is important to foster
likeability, respect, and credibility with an opponent before the mediation
the argument of opposing counsel, even if liked or respected, is devalued. Thus, it is also essential to use a mediator
who brings credibility to the mediation.
Educating the other side may help overcome judgmental overconfidence,
which occurs when one party has a unwarranted belief in his or her
position. Such overconfidence caused by
differing information known to the parties on a particular issue or to parties
consulting only with others with like dispositions, often is a barrier to
following illustrates how one resourceful plaintiff's trail attorney begins
educating the opposing side with the goal of persuasion. This plaintiff's attorney creates a CD that
is delivered to both the defense and the mediator thirty days prior to the
mediation. With a running time of fifteen
minutes, it has clips from key liability depositions, brief statements from
some damage witnesses, medical illustrations, and photographs of the scene and
accident victim. The CD is backed up
with a notebook's worth of hard copies.
format and timing of the delivery gives this plaintiff's counsel the
opportunity to address the opponent's partisan perceptions early on. The decision-makers who are not present at
the mediation (who stay at "home") have necessary information in a concise,
organized and dramatic format. This
material can be evaluated prior to the mediation. As a result, the "audience" at the mediation
comes prepared with more knowledge and greater flexibility. The mediator also has the information needed
to effectively draw out these perceptions in caucuses prior to the general
mediation session. When the parties are
assembled, the mediator can encourage discussion of key issues and perceptions
identified in the mediation statements and pre-mediation caucuses.
Audiences at the Table
and at Home
The key actor, director, and
producer of a negotiating team must be aware of both the audience in the
orchestra and the audience in the balcony. - Joe Epstein
"audience" for a negotiator includes people who are present at mediation, as
well as those who stay "home." For a
plaintiff in a personal injury case, the spouse at home may be a strong
influencing factor. For in-house
associate counsel, the audience at "home" may be an officer of the
corporations, the board of directors, general counsel, or others. For a claims adjuster, the "home" audience
may be a supervisor or a committee.
it is not always practical, mediators like counsel on each side to bring his or
her party's respective "home" audience to the mediation table. Generally, the plaintiff's attorney in a
personal injury case should bring the spouse.
Counsel for the defense should bring the highest ranking decision-maker
possible to the mediation. Counsel in
business disputes should bring people of equal decision making authority to the
mediation table so that a "business" deal can be struck.
must consider how they can influence the home audience in advance of the
mediation to make the negotiator's job easier at the mediation. This cross-educational process may include
key depositions, precise discovery, dramatic damage displays or a clear damage
analysis, filing of important motions, and independent expert evaluations. Advocates might even consider providing the
opponent with a non-confidential mediation statement that allows the opposing
side to evaluate the opposing case before the mediation.
the audience (the opposing team physically present at the mediation) is
important, as are the parties' interactions and reactions to each other, it is
essential to remember the critical importance of the "home" audience. Decision makers who are not at the mediation
will hold the negotiator accountable. Thus, the interplay of these audiences is a
critical piece of the mediation puzzle, because both the present audience and
home audience need to be satisfied.
What you see depends in part on
where you stand, who you are and what you've seen before. - Robert Mnookin et al.
are the lenses through which people see their own positions and selves, as well
as through which they see other people and others' positions. Although such perceptions may be incorrect,
in the perceiver's mind, they remain viable.
Negotiators often base negotiations and behavior on misperceptions.
lesson is to try to get the misperceptions on the table and to deal with
them. This is one reason why mediators
work hard at getting people to talk both in caucus and in general session. If advocates state their viewpoints, which
turn out to be misperceptions, the mediator and the opposing negotiator have
the opportunity to deal with them.
fall into the pattern of stereotyping the negotiation process. Stereotyping is an easy and convenient way to
deal with people in their positions. It also makes it easy to assign a host of
negative characteristics to the person on the other side. Finally, it gives the individual doing the
stereotyping a sense of control.
also may be labeled "selective perception" or "self-fulfilling prophecies." Negotiators tend to see what they want to see
about their adversaries and ignore or distrust information that does not fit
their pre-existing construct. One specialist in mediation refers to the
"barriers of partisan perceptions," noting that "people are disposed to 'see'
what they expect to see, and what is in their self-interest to see." For example, the defense team may "see" the
plaintiff through a distorted perspective and depersonalize the plaintiff. In business or personal injury settings,
plaintiffs often are demeaned as unworthy, greedy, or spoiled.
technique used by mediators to deal with misperceptions, selective perceptions,
partisan perceptions, and stereotyping is to bring the parties into greater
contact. For instance, it is important for the house
counsel, risk manager, human resources director, claims adjuster, and plaintiff
to meet the opponent. In such
encounters, which can be in general session or between certain participants,
"listening is more important than talking and listening, for what is being said
between the lines is more important that what is said out loud." In the author's experience, advocates can
learn more from their opponents than they can from themselves. Opponents provide the key to resolution if
they are listened to carefully during mediations.
attorney can take advantage of these sessions by asking questions to uncover
the opposing party's partisan perceptions and stereotypes. The advocate can respond to these misperceptions
by offering concrete evidence (not argument) in support of such a perspective
and by relying on the mediator to neutralize the opposing party's
misperceptions and reinforce the facts.
For example, in a securities fraud, the defense team might listen to
what the paintiff has to say about past investment
experiences, risk tolerance, investment goals, and information given by the
involved in negotiation have a tendency to de3value proposals made by an
adversary.  However, the same proposal is more likely to
have a positive reception if a mediator makes it. Therefore, the criticalness of educating the
mediator early on cannot be overemphasized.
This pattern may be reflected in relation to factual information, the
law or the terms of a settlement.
mediator might suggest an impasse breaking settlement number which, if
suggested by one party would be rejected by the other, but would be considered
when suggested by a mediator. Thus,
advocates should develop rapport and trust with their mediator. Such a relationship enables the mediator to
effectively and persuasively transmit information to an opponent.
People prefer to say yes to
individuals they know and like. - Robert Cialdini
is more willing to say yes to a plaintiff who has evoked empathy, sympathy,
respect, or likeability than to a plaintiff who has failed to induce these
feelings. Similarly, a party or defense
attorney is more apt to say yes to a plaintiff's attorney who has played
straight, is knowledgeable, and has earned respect than to a plaintiff's
attorney who has been rude, difficult to deal with, or offensive. In other words, both sides are more likely to
join in a satisfactory settlement when the party, its counsel, and the mediator
each exude "likeability." Therefore, an
effective mediation hinges on establishing likeability.
this a step further, effective advocates often have charisma. Charisma, a key tool in persuasion, "is the
quality that makes people like you." One author in the mediation filed suggests
that to enhance charisma, advocates should follow these five rules:
others as if they are the most important person you'll meet that day.
with others by using a firm handshake, and looking them in the eye.
possible, give sincere compliments to an opponent.
to the hidden message and to people's emotions, not just to what has been said.
can be more persuasive in mediation if they listen, are likeable, and allow
their charisma to gently unfold.
Charisma may be displayed by the force of personality, the
self-confidence of a gambler, the glint in the eye of a proven warrior, or the
smile of a charmer.
like salespeople, try to sell their case to the most difficult "sales lead,"
which is the opposing decision-maker. To
be persuasive, advocates must marshal tools of persuasion and influence, while
being sensitive to the psychological and sociological factors involved in
adversarial negotiations. Fear and power
are two of the most important ingredients in this mix of negotiations and
mediation. Smart mediators, like smart
negotiators, must go beyond legal and rational analysis and use sales,
marketing, and persuasion techniques to effectively close negotiations.