Vermont Bar Journal, Vol. 40, No. 2 Vermont Bar Journal, Summer 2019 | Page 38

Mediation
38
The effect of the reciprocity rule may be
compounded by what has been described
as the compliance factor. Compliance rec-
ognizes that a party is more likely to attain
their objective if offered as a concession to
an earlier demand. 9 So a request to pay
an amount to settle followed by a reduc-
tion in an earlier demand, as a concession
to the position of the other party, can cre-
ate a sense of obligation to comply with the
reduced request as a fair quid pro quo. Par-
ties seeking a just resolution of a dispute
will respond in fairness if they believe the
opponent is being fair.
Framing. A lesson from surveys of partic-
ipants in psychological studies is that oppo-
site answers to essentially the same ques-
tion may result from how the question is
framed. Thus, the same responders who
would gladly pay $X for treatment of a con-
dition would not opt to make the same pay-
ment to prevent the condition. In the me-
diation context a party who is asked: 1. Are
you willing to settle for a sure $X, or will you
take a chance to recover 130% of $X at tri-
al? [Yes, case settled for $X] versus 2. Giv-
en you are anticipating recovery a verdict
of 130% of $X, are you willing to take $X to
settle now? [No, case not settled].
There are many examples of framing
used to focus a party’s analysis on what
they are risking by seeking to attain a re-
covery matching their anticipation of gain
from the claim. Conversely, the defensive
party may be asked to consider if they are
willing to spend $Z in future costs and as-
sume the risk of being wrong about verdict
value in order to avoid adding some sum
beyond their anticipated loss.
Parties should be wary of framing by neu-
trals because of the effect it may have on
decision-making. Even when motivated by
a legitimate desire to focus attention of the
consequences of alternative settlement de-
cisions, the effects of framing can be ma-
nipulative. As observed in the American
Psychologist about the effects of framing:
“They can also be exploited deliberately
to manipulate the relative attractiveness of
options.” 10
Confidence and Confirmation: Kahn-
eman discusses what he labels as an illu-
sion of validity supporting human decision-
making. One or all parties to a mediation
commonly espouse high confidence in their
view of likely case outcome. As Kahneman
observed:
Declarations of high confidence mainly
tells you that an individual has constructed
a coherent story in his mind, not necessarily
that the story is true. 11
Feeding the illusion of validity is what has
been called the strongest cognitive bias we
share, the confirmation bias. This bias is
manifest when people look for evidence
supporting their viewpoint and discount or
ignore evidence to the contrary. 12 The con-
firmation bias causes a party to latch onto
evidence consistent with their view and ig-
nore evidence to the contrary. Not uncom-
monly, a party will discount the points of-
fered by the opposition simply based on
their source. 13
The mediator or attorney facing a strong
illusion of validity has several tools to im-
part a more objective view. All parties must
be confronted with the reality that verdict
values are subjective and speculative, not
lending themselves to the level of certain-
ty a confident party may try to impose on
them. The confirmation bias may be less-
ened by asking parties to focus attention
on contrary facts previously discounted or
ignored. At least this exercise will force a
rational party to confront and provide a co-
gent explanation why alternative views are
insubstantial. To the extent the party fails
this task, it weakens the illusion of validi-
ty. To the extent the party succeeds, it pro-
vides the neutral better points with which
to confront illusions of validity by the other
party. Either way, the process moves for-
ward with a new sense of appreciation for
all of the parties with less rigidity.
Overconfidence affords resilience and re-
solve to continue, though at the cost of self-
deception and ultimate disappointment.
As Kahneman observes: “An unbiased ap-
preciation of uncertainty is a cornerstone of
rationality-but it is not what people and or-
ganizations want.” 14 A mediator must ap-
preciate the tension between a party’s dis-
appointment at reaching a settlement fall-
ing short of anticipated results as contrast-
ed with the regret of losing an opportunity
for a sure thing. A helpful tool is to ask a
party who may be over-confident to identify
the reasons for a bad result, assuming one
should occur following trial. To the extent
the party is unable to imagine such a result
the neutral can be helpful.
Overconfidence should not be confused
with an injured party’s view that justice re-
quires a certain level of recovery for the
loss. Especially in severe trauma and death
cases, it is not uncommon for the aggrieved
party to set a minimum level of recovery re-
quired to dignify the extent of loss. This
party is not overconfident but rather righ-
teous in seeking justice. Neutrals com-
monly respond by saying all the civil justice
system can deliver is an amount of money,
which no one would accept for the loss. A
good discussion to have is about the pro-
cess a jury will employ in reaching a deci-
sion, including following the judge’s in-
structions and ultimately making a subjec-
tive determination of the amount of money
to award for an unquantifiable loss. If the
party has set an unrealistic amount as rep-
resenting justice, then it can be pointed out
that they are asking a group of strangers to
make a difficult decision that the aggrieved
THE VERMONT BAR JOURNAL • SUMMER 2019
party is in a better position to make.
Each of these factors is in play in varying
degrees at any session. Parties making de-
cisions about claims resolution at media-
tion employ the same heuristics as they do
in making other decisions. Understanding
some of the common psychological factors
influencing decision-making can be helpful
to neutrals and counsel alike. It is especially
important for a mediator to understand the
roles of anticipation and framing in estab-
lishing reference points from which settle-
ment opportunities will be measured. It is
equally essential to recognize the effects of
anchoring and to be prepared to work with
parties who may demonstrate over-con-
fidence or a strong confirmation bias. All
parties to a mediation should consider us-
ing the influence of the reciprocity rule and
the value of making concessions aimed at
triggering compliance with a compromise,
as well as being wary of manipulation via
the contrast principal. In the final analy-
sis, the role of the mediator is to move par-
ties closer to an objectively rational view of
their prospects at trial in order to accurately
understand the relative merit of any settle-
ment opportunity.
____________________
Following over 40 years of civil litigation
practice, Leo Bisson now operates ADR,
LLC providing mediation and arbitration
services.
____________________
1
Beth McCormack, Making Your Writing Out of
Cite: Using the Bluebook to Improve Your Writ1
See, Saunders, Merriam, The Application of Mo-
tivational Interviewing In A Mediation Caucus.
Mediate.com (Sept. 2009).
2
A thorough discussion of the psychology of
decision-making in tort mediations is beyond
the ability of this author and would require more
space than this journal allows.
3
Lewis, Michael, The Undoing Project, (W. W.
Norton and Company 2017).
4
Tversky A. and Kahneman, D. Prospect Theo-
ry: An Analysis of Decision Under Risk. Econo-
metrica, Vol. 47, No. 2. (Mar., 1979), pp. 263-292.
5
Kahneman, D. Thinking Fast and Slow, Ch. 11
(Farrar, Straus and Giroux 2011).
6
Jim Spink is most effective in describing sce-
narios supported by varying views of the evi-
dence which lead to relatively larger and smaller
verdicts, thus affording the parties an opportu-
nity to measure how their case may end without
suggesting a particular figure.
7
Cialdini, Robert B. Influence, Harper Collins e-
books (Business Essentials edition 2009) at 11.
8
Influence at 17.
9
Influence at 36.
10
American Psychologist v. 34 Choices, Values
and Frames (1984).
11
Kahneman, D. Thinking Fast and Slow p. 212
(Farrar, Straus and Giroux, 2011).
12
Yagoda, B. The Cognitive Biases Tricking Your
Brain (Science, Sept. 2018).
13
The polarization in this country today is fueled
by the confirmation bias – depending on your
views there is a ready source of confirming in-
formation, be it from Rush Limbaugh or Rachel
Maddow.
14
Thinking Fast and Slow at 263.
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