Emotional Attachment and its Impact on Mediation
By Sherman Knight.
All mediations come with some level of emotion. The level of emotion may be quite high and apparent to everyone. The emotion may be hidden; purposely by some and yet others may be unaware of their level of emotional attachment. Emotional attachment by a party or his/her attorney is why we mediate.
Emotion comes in lots of flavors. A divorce with young children is the king of the emotional train wrecks. A close second is the person that paid $500,000.00 for a remodel that is crooked, the roof and windows leak, the sewer backed up and the contractor still wants more money. Another is the “Employee of the Year,” that was terminated the week before Christmas so the employer does not have to pay the big bonus. There are many more examples of emotion with names like anger, devastation, disgust, resentment, revenge, furious, hopeless, hostile, humiliation, and outrage. These emotions can cause a legal condition known as “emotional blindness.” This blindness makes it difficult for a party to understand why settlement is in their best interest or that the opposing offer is actually quite good.
Fear is another emotion that complicates settlement. Fear that maybe you can do better. Fear that the other side knows something you don’t. Fear of the unknown. Clients fear litigation because they have never been in this position before and because their only understanding of the courtroom is what they see on the television. On television, a good actor always seems to make the opposing party look bad, really bad.
Attorneys fear litigation for lots of reasons. The attorney may not think the case is as good as their client thinks it is or an opposing expert witness that was impossible to crack in deposition.
The most difficult emotion is EGO. Similar to the emotions discussed previously, ego can also cause “emotional blindness.” Ego blinds the client to the legal issues that may not be in their favor. Ego blinds the attorneys to the weaknesses in the case or the fact that he/she is in over their head. No one wants to admit that they might lose, certainly not the attorneys that heard the same thing through three years of law school, “There is no second place.”
Few meaningful decisions are based upon emotion. The most common emotional decision is to not make a decision; to simply continue on the same course. For many, it becomes easier not to make a decision than to make one. Emotional attachment to the case brings indecision. It no longer matters how much you rationalize or discuss the issues, decision making becomes more and more difficult.
As you can see, emotions have a negative impact on mediation. The fact that most of these emotions come to a mediation makes difficult issues impossible to resolve unless the emotions are brought under control. The ability to listen is fundamental to emotional control.
Sometimes you have to listen to facts and issues that have no legal significance to the matter being mediated. However, if it is important to the party, then as a mediator, it is important to me. Getting the parties off the emotional roller coaster by listening is an early requirement to the process of a successful mediation.
I often hear a party say something similar to “I just want my day in Court,” or “I want the judge to teach him a lesson.” These people are vocalizing their emotional attachment to the case. People making these types of comments just don’t want to be heard, they need to be heard. They need someone to hear their story in the way they want it told. Taking the time as a mediator to listen to their story, is an important step to separating themselves from their emotional rollercoaster.
A friend of mine told me of a failed mediation his client went through. The mediator spent 2-1/2 hours with the other side in caucus. When he came in to see my friend’s client for her first caucus, he started with “You need to take this offer.” She assumed he had listened to the other side and accepted his story. She was sure of it because the mediator was not interested in hearing her story at all. The client was unable to get off the emotional roller coaster and the mediation failed.
Unfortunately, the offer was actually a very good offer. The mediator spent a lot of time working over the other party, but all his work was misinterpreted because he did not have the patience to listen to her version before he presented the offer.
As a mediator, I request pre-mediation briefing of both the law and the facts with as much photographic evidence as possible and a complete damage spreadsheet. Depending on the complexity of the matter, I typically spend several hours reviewing the information before mediation. It is important for me to arrive at the mediation prepared. Demonstrating to the parties that I understand the factual and legal issues is very important when emotions run high. At the same time, preparation increases my ability to listen to the parties the following day.
Now that I have an understanding of the case, I can listen to each party and occasionally interrupt them by asking questions to clarify issues. I ask direct and specific questions that encourage the parties and their attorney’s to discuss the factual issues that created the emotional turmoil that comes with the case. By asking direct and factually specific questions, it shows the parties that I understand their case. The only way to reduce the emotional component and get the parties off the roller coaster is to listen. Once the parties realize I understand, the emotion dissipates quickly.
Genuine listening is difficult. Preparation and patience are required on my part to be a genuine listener.
Don’t confuse “understanding” their case with “agreeing” with their case. Understanding and agreeing are not the same thing. You can understand and still disagree with someone’s position. During the mediation, I will challenge the legal and factual conclusions of one or both sides. Challenging a party’s position is difficult if not impossible unless the parties believe I understand their position and emotions are under control. Once reached, challenging a parties position becomes a discussion of their position.
This process of “understanding” literally gives the parties their “day in court.” Once they have been heard, the emotional attachment to their position is reduced. Now, challenging the parties position is met with responses like, “I never thought of it that way,” or “I am beginning to understand why” rather than “I will see him in hell!” or “not a chance.” Settlement is now within reach and a successful resolution at mediation is possible.
