mediationPSyCholoGy: howtoaChieveBetterreSultS
Mediation & arbitration Section Co-Chairs: LaraTibbals – TibbalsMediation, LLC & ChristineDerr – Harris, Hunt & Derr, P. A.
effectivetriallawyersand mediatorscarefullyconsider thepsychological“ boomerang effect” oftheirwordsand actionsduringmediation.
Harold Oehler conducted an interview with Dr. Christine Ruva, Chair of Psychology at USF-Sarasota, about the psychology of mediation advocacy. Dr. Ruva is a scholar on the effect of psychology in the legal system and a sought-after expert witness.
Oehler: Florida Statute 44.1011( 2) requires that mediation be conducted as a“ nonadversarial” process. When a trial lawyer gives an opening st atement which is perceived as hostile, what is the typical psychological response from the opposing side? dr. Ruva: Never gauge whether an opening is hostile from your point of view, as the other side’ s perception is their reality.
An opening statement perceived as hostile floods the other side’ s central nervous system with Cortisol, creating a fight or flight response. This diverts blood flow away from the prefrontal cortex— responsible for rational thinking— toward the amygdala, the brain’ s emotional center. If the opening creates anger, the other side will punish the lawyer’ s client with a hostile opening of their own or with undesirable offers. If the opening creates anxiety, this triggers the
flight response which creates the desire to leave the mediation.
Oehler: How do elite trial lawyers use psychology during opening statements to persuade the decision maker across the table? dr. Ruva: Effective trial lawyers use emotional precision by speaking calmly and conversationally in a non-threatening tone to avoid triggering negative emotions. This encourages rational thought and compromise. Empathy is essential to make the other side feel understood. When a human being feels sincerely understood, this releases dopamine which triggers positive emotions that foster trust and social connection. While a hostile opening is usually tuned out or quickly forgotten, an empathetic opening is listened to attentively and remembered.
When a lawyer is friendly and uses humor, this releases endorphins which improves a person’ s mood and reduces stress. Oxytocin, the“ bonding hormone,” is also released which makes the other side comfortable and more receptive to the lawyer’ s message. The most effective trial lawyers acknowledge the strengths and weaknesses of both sides, thereby gaining trust as they are perceived as honest and credible by the other side.
Oehler: Dr. Ruva, what is the psychological effect of making an offer that the other side perceives as unreasonable? dr. Ruva: If the other side perceives an offer as unreasonable or disrespectful, the offer will involuntarily trigger negative emotions such as anger and disgust which usually compels the other side to retaliate by making offers just as unreasonable or disrespectful. Alternatively, they may exhibit the“ flight response” which triggers the urge to leave the mediation.
Oehler: Describe“ reciprocity” and how this concept affects the negotiation during mediation? dr. Ruva: Reciprocity is a wellestablished psychological principle describing people’ s automatic tendency to subconsciously mirror how they are being treated. In mediation, this principle operates subtly but powerfully: when one party makes a fair or better-thanexpected offer, it generates positive emotions, builds trust, and reduces the perception of adversarial intent.
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