Thursday, January 17, 2008

Mediation, Emotion and Regret

When I discuss mediation with other mediators, I find the most enlightening discussions do not concern negotiating strategy or what tactical tips may be pulled out of the mediator's quiver at an opportune moment, but rather the importance of understanding the parties emotion as a necessary precursor to engaging the parties in the analytic journey towards settlement.

At the start of a mediation, I usually tell the parties that I expect them to be civil, not to interrupt each other, and engage in active listening, but I also tell them that I do not insist that they refrain from expressing emotion. If a party wants the other party to understand the depth of the upset and disappointment that party is experiencing, that emotion is better expressed than repressed.

Usually counsel, rather than the parties themselves, initially take me up on the offer. Inviting a lawyer to vent can be likened to throwing red meat to a wolf. But that's fine, as the parties often seem to derive emotional release vicariously. Yet sometimes in a caucus, when I will be reality testing a party, speaking directly to the party and bypassing counsel, I will be pushed back by a party in strong terms. Parties sometime seem surprised when I ask why they don't forcefully express their views and feelings directly to the other party in open session. They often reply that they wonder whether that would be proper.

I have come to believe that when people are trying to resolve a conflict, the greatest barrier to analysis and judgment, which are necessary for settlement, is the emotional condition of the parties. For some parties, venting will suffice to clear up enough mental space for the party to collaborate in the settlement process. I believe for many parties, however, they have to go further; they must come to understand the regret they feel with respect to the matter in conflict, and dispense with it as a condition to partaking in real settlement activity.

Working through regret is essentially a process of forgiving oneself before one can empathize and collaborate with the other party in the conflict. It is an important way to permit the regretting party to become free to engage in meaningful analysis (almost as if the party must grieve at the death of the transaction that was to be).

There is an experiment by Tversky and Kahneman that illustrates how powerful a force regret is at inhibiting clear judgment:

Paul owns shares in company A. During the past year he considered
switching to stock in company B, but he decided against it. He now
finds out that he would have been better off by $1,200 if he had
switched to the stock of company B. George owned shares in company
B. During the past year he switched to stock in company A. He now
finds out that he would have been better off by $1,200 if he had kept
his stock in Company B. Who feels more regret?

By far, experiment subjects state that they would feel more regret if they were George than Paul (even though, analytically, they are in the same economic position).

Taking the experiment one step farther and putting it into a mediation context, where Paul and George each are seeking to mediate a conflict after following the advice of their stock broker, who was incorrectly bullish on company A and bearish on company B, who would you expect to have the more difficult time reaching settlement? What would you, as a mediator, have to do additionally with George that would you would not likely have to address with Paul?

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