Missing the moment often is a precursor to impasse. As mediators, we are frequently faced with micro-moments of emotion. To the degree we can recognize the moment and respond appropriately, we build trust, de-escalate conflict, restore cognitive functioning, and provide compassion to the parties and their counsel. All of these events lead to settlement.
This introduction to mediation is offered by Douglas E. Noll, a full time peacemaker and mediator and ICLEF mediation training participant. He specializes in difficult, complex, and intractable conflicts. Today we have the opportunity to garner a few tips from Doug on understanding ambivalence so that settlement can be attained.
A key assumption we must make as mediators is that people do not usually come to mediation ready to negotiate a settlement. Generally, the lawyers agree upon and organize the mediation and tell the parties to show up. Some lawyers have pre-mediation conferences with their clients, but most do not. The parties have been living with the lawsuit for months, if not years. It has become a part of their life. They have usually built up expectations about how winning will change their lives for the better. Now they’re coming to end it all through mediation. They don’t know how they feel about settling their case.
On the one hand, people generally dislike lawsuits and lawyers, which drives them towards settlement. On the other hand, people have strong feelings about justice, fairness, and the need for vengeance and vindication, which pushes them away from settlement. These feelings are reinforced by a number of cognitive biases that distort decision-making away from settlement. As a result, people are often ambivalent about settlement. This is a natural and expected phenomenon that baffles newer mediators.
Do not challenge the ambivalence, but rather acknowledge that people feel two ways about it: They want to change and they want things to stay the same. Staying the same often represents comfort, familiarity, and certain pleasures (especially the anticipatory pleasure of vengeance). The emotional reasons to settle need to be stronger than the reasons for staying the same in order to “tip the balance” for settlement.
Why Is Ambivalence Common?
Ambivalence happens because the party feels two ways about change. When trying to be convinced of all the reasons to make a change, a party feels the need to present the other side of the story. Lawyers are the same way. They will always argue why they will win and will rarely argue in favor of settlement until late in the process. Psychologically, the arguments for winning are just as important as the reasons for settlement being reflected by the mediator, even if the arguments make no sense. The stronger the mediator argues his or her point for settlement, stronger resistance he will get from the person that doesn’t want to change. The correct practice is to acknowledge the ambivalence and “come along side” the party or counsel. Parties and counsel must be given the freedom to talk about the side that doesn’t want to change.
For example: Tony says he has a prescriptive easement over Tom’s property. He says his dad used to drive cattle along the road for 40 years. He considers his use of the road as part of his lifestyle. On the other hand, he is worried about the continued cost of the lawsuit and the stress is causing on his family and business. If you encourage Tony to settle because he needs to end the stress of the lawsuit, he is likely to tell you all the reasons why he should continue to litigate. Ultimately, he will tell you that he would rather pay his lawyers everything he has rather than concede anything to Tom in settlement.
In contrast, if you explore the status quo and acknowledge how much he enjoys using Tom’s road, he receives the message that you are listening and are not rushing to change him. You learn more about the thoughts and feelings that underlie his strong feelings. You have signaled that you are concerned with exploring his view of the world. After talking about staying the course of the lawsuit, he will feel the itch to talking about the other half of the story, the reasons he wants to settle.
Ambivalence is not always a circle cut exactly in half. For someone in pre-contemplation (who is not considering settlement), the part that doesn’t want to change might be much larger than the part that does want to change. However, both parts are still represented. At times, such as when a person is moving through the stages of change, the side that wants to change may get bigger and bigger. It may also shrink down again. This can happen from session to session or even minute to minute. The most important point about ambivalence is that having it is normal and fluctuation is normal.
Thank you to Doug Noll for his insights into recognizing ambivalence and assisting clients at moving through the settlement stages. For further information on Mr. Noll’s training you may want to investigate his website: www.legalpronegotiator.com. There are two quality seminars available live from ICLEF in the coming months that offer you the opportunity to earn Civil Mediation Education hours. Click a title below for full details:
CME for Family Mediators – 6 CLE / 6 CME - November 13
Epic Change: The Evolution of the Legal Profession – 3 CLE / 3 CME / .5 E - December 3
About our Law Tips faculty participant:
Douglas E. Noll, Esq. is a full time peacemaker and mediator. He is an adjunct professor of law and has a Masters Degree in Peacemaking and Conflict Studies. Mr. Noll was a business and commercial trial lawyer for 22 years before turning to peacemaking. He is a Fellow of the International Academy of Mediators, a Distinguished Fellow of the American College of Civil Trial Mediators and on the American Arbitration Association panel of mediators and arbitrators. With his colleague Laurel Kaufer, Mr. Noll, co-founded the award-winning pro bono project, Prison of Peace, training life inmates in maximum security prisons to live lives of service as peacemakers and mediators.
About our Law Tips blogger:
Nancy Hurley has long-standing connections with Indiana lawyers. She was formerly a member of the ISBA and IBF staffs for over 30 years. Nancy’s latest lifestyle venture is with ICLEF. We are utilizing her exceptional writing and interviewing skills while exploring how her Indiana-lawyer background fits with ICLEF’s needs. When she isn’t ferreting out new topics for Law Tips, her work can be found in our Speaker Spotlight blogs, postings on the ICLEF Facebook and Twitter pages, and other places her legal experience lends itself.
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