THE POWERS OF PSYCHODYNAMICS

IN SHAPING MEDIATION OUTCOMES

 

Author:  Joe Epstein

Published:  The Colorado Lawyer, January 2004, Vol. 33, No 1, p. 45

 

The term "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.

 

Skillful 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.

 

This 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.

 

Psychodynamics In Actions

 

The 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.

 

He 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 opinion. 

 

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.[1]

 

Persuasion 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.

 

Experienced 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.

 

After 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.

 

As noted, 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:[2]  The apparent ability to "reward," "punish," or both "reward and punish."[3]  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.

 

The 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.[4]  Acting consistently involves communicating in ways that can be understood and relied on by an opponent.  From that trust "grows a tremendous ability to persuade."[5]

 

Advocates should not presume what they say will be deemed credible by an opponent, particularly if too much information is conveyed at one time.[6]  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.[7]  Third-party endorsement also lends credence to a position.[8]

 

During 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.[9]

 

 

 

Fear and Power

 

The only thing we have to fear is fear itself.

-Franklin D. Roosevelt[10]

 

Let us never negotiate out of fear, but let us never fear to negotiate.

-John F. Kennedy[11]

 

As a 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."[12]  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 trial.

 

Plaintiff's 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.

 

On the 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.

 

In spite 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."[13]  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.

 

For 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.[14]

 

Power:  The Flip Side Of Fear

 

Power is the capacity to act effectively and the ability to influence.

-Dudley Weeks[15]

 

In the context of mediation, the exercise of power is the flip side of fear.  "Negotiating power is the ability to persuade someone to do something."[16]  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.

 

Before 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. 

 

Threats

 

Threats are a favored tool of negotiators to target an opponent's fears.  To be successful, a threat must blend credibility and legitimacy.[17]  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.[18]

 

Similarly, for threats to be effective, the recipient must be receptive or at least vulnerable to the threat.[19]  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.

 

The Scarcity Principle

 

Negotiators need to recognize that the possibility of a potential loss plays a powerful role in decision-making.[20]  "The way to have anything is to realize that it might be lost."[21]  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."

 

On the 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.

 

On the 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 verdict.

 

Influence Strategies and Social Factors

 

"Where all think alike, no one thinks very much."

-Walter Lippman[22]

 

The tone 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.

 

Early offers and counteroffers are important to the "psychological setting within which the 'game' is to be played."[23]  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."[24] 

 

Perhaps 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.[25]  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....[26]

 

Such an approach a negotiator to avoid an overly-generous opening demand.  It also gives him or her time to assess new information and announce expectations.[27]  As part of this negotiation process, it is useful to allow an opponent to believe that he or she has dictated "the final result."[28]

 

First Impression, Lasting Impression

 

"Automatic consistency"[29] 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.[30]  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.

 

Plaintiffs 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.

 

Another 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.

 

Second, a 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.[31]  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 the sand.

 

Validation from Others

 

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[32]

 

People 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.

 

Parties 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.[33]  Therefore, it is important to foster likeability, respect, and credibility with an opponent before the mediation begins.

 

Generally, 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 dispute resolution. 

 

The 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.

 

The 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[34]

 

The "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.

 

Although 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.

 

Parties 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. 

 

Although 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.[35]   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.

 

Stereotyping and Other Misperceptions

 

What you see depends in part on where you stand, who you are and what you've seen before. - Robert Mnookin et al.[36]

 

Perceptions are the lenses through which people see their own positions and selves, as well as through which they see other people and others' positions.[37]  Although such perceptions may be incorrect, in the perceiver's mind, they remain viable.  Negotiators often base negotiations and behavior on misperceptions. 

 

The 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.

 

Parties fall into the pattern of stereotyping the negotiation process.[38]  Stereotyping is an easy and convenient way to deal with people in their positions.[39]  It also makes it easy to assign a host of negative characteristics to the person on the other side.[40]  Finally, it gives the individual doing the stereotyping a sense of control.[41]

 

Stereotyping also may be labeled "selective perception" or "self-fulfilling prophecies."[42]  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.[43]  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."[44]  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.

 

One technique used by mediators to deal with misperceptions, selective perceptions, partisan perceptions, and stereotyping is to bring the parties into greater contact.[45]  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."[46]  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.

 

An 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 broker.

 

Reactive Devaluation

 

Parties involved in negotiation have a tendency to de3value proposals made by an adversary. [47]  However, the same proposal is more likely to have a positive reception if a mediator makes it.[48]  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.

 

A 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.

 

Likeability and Charisma

 

People prefer to say yes to individuals they know and like. - Robert Cialdini[49]

 

An opponent 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.[50]

 

Taking this a step further, effective advocates often have charisma.  Charisma, a key tool in persuasion, "is the quality that makes people like you."[51]  One author in the mediation filed suggests that to enhance charisma, advocates should follow these five rules:

 

1.      Treat others as if they are the most important person you'll meet that day.[52]

2.      Connect with others by using a firm handshake, and looking them in the eye.[53]

3.      If possible, give sincere compliments to an opponent.[54]

4.      Dress for success.[55]

5.      Respond to the hidden message and to people's emotions, not just to what has been said.[56]

 

Advocates 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.

 

Conclusion

 

Advocates, 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.

 

NOTES