Table Of ContentMediation Behaviour:
Why We Act Like We Do
Mediation Behaviour:
Why We Act Like We Do
Stephen Walker MA (Oxon), FCIArb
Solicitor and Accredited Mediator
Bloomsbury Publishing Plc
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Preface
Why this book now
Ten years ago Daniel Kahneman published Thinking, Fast and Slow. It became an
international best seller and transformed the way we looked at decision making.
Mediators were introduced to a new world where Kahneman showed us how
we don’t make decisions in the way that we think that we do. Rationality and
logic were not as important as emotions, short cuts and cognitive biases. We take
fast instinctive decisions more readily than slower reflective ones. He called these
System 1 and System 2. We end up self-sabotaging our best outcomes.
His book was a spectacular expression of the research that had been going on since
the 1970s into how we process information, answer questions and make decisions.
An infodemic of new information about our brain, emotions and behaviour hit
us. And it continues. Behavioural economics, neuroscience and psychology are
teaching us more than we have ever known about the one subject that we are all
interested in: Ourselves. How can we cope with this information overload? What
can it teach mediators, clients and their lawyers?
COVID, lockdowns, WFH (working from home) ODR and mediating online have
made this question even more important and urgent.
I am not a neuroscientist, an economist or a psychologist. I am a jobbing mediator
and former solicitor. I wanted to try and make sense of this new information and
advice – what I refer to as ‘the New Stuff’. I have previously written five books all
designed to help people get the best out of mediation. I asked: Are there things
that we can learn from the New Stuff which will help us get more out of mediation?
Whether we are mediating as clients, advisers or mediators.
I was encouraged to see Michael Mcilwrath, a well-known lawyer, negotiator
and mediator, ask the same question in the Kluwer Mediation Blog. He wrote:
‘I’ve been interested in any scientific or behavioural economics research, such as
Tversky and Kahneman, that might guide us to better outcomes…The problem
that I increasingly pose myself, however, is whether research in these areas can be
extrapolated to negotiations and mediation.’
That’s a really good question. Can the New Stuff help us get more out of mediation?
I suspected that that it could. But how? I tried to find out by asking three questions
about the New Stuff:
Is it interesting? Yes; most of it.
Is it relevant? Yes; some of it.
Is it useful? Only if we use it. How we can do this
is what this book is about.
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Preface
The key questions are:
Why do we behave like we do at mediations? We go to mediations to make peace
and prepare for war. How can two sets of clients and their lawyers look at the same
facts and law and come to fundamentally different conclusions? Why don’t we see
the same thing the same way?
Are we dominated by self-interest and can’t see that there might be another way
of looking at things? If we are, why do we make decisions that are not in our best
interests?
Is our decision-making, as Rory Sutherland says, not logical but psycho-logical.
Who is this book for?
Like my previous books it is for anyone concerned in mediation: mediators, advisers
and clients. It’s about mediation behaviour not conflict in general. Although some
of the topics have also been discussed in my earlier books I have tried to keep
duplication and repetition to a minimum. There is some, and where there is a more
detailed treatment of a topic in one of my other books, I cross refer to it.
The three books are:
•• Mediation Advocacy: Representing and Advising Clients in Mediation (2nd Edn).
•• FAQs for Mediators.
•• Mediation an A-Z Guide.
This is a practical book drawing on my experiences in over 750 mediations including
over 150 carried out online. The focus is on civil and commercial mediations in the
UK but applies more widely.
Nomenclature
Not all advisers or mediators are lawyers, but many are. In the UK we have a split
profession; barristers who mainly advocate in court and solicitors who mainly do
not. In the past clients had to go through a solicitor to instruct a barrister. Now you
don’t. Many barristers, but not all, now operate on a direct access basis.
When describing experiments, I have referred to researchers and volunteers.
A confederate is a researcher who pretends to be a volunteer as part of the
experiment.
How to use the book
There are 18 chapters. You don’t need to read the book from start to finish. Dip
into those sections that interest you and follow your interest through the cross
references.
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Preface
Mediation Message and Top Tip headings point you to the practical applications
of the New Stuff for mediation. The ways in which ODR and mediating online
have changed our mediation behaviour are highlighted throughout the text and
explored in detail in Chapter 18.
The first four chapters are framework chapters.
Chapter 1 Introduction
I explain the basic approach of the book with its emphasis on practical wisdom.
Research findings from neuroscientists and behavioural economists can dazzle us.
Their work is fascinating but has it been overhyped? Meet the Dead Salmon. Watch
out for the red flags and just as at mediations don’t take everything at face value.
Chapter 2 Brain
You can’t consider behaviour without knowing something about the brain.
Even our emotions have a neural context. Here is a quick overview of the brain
and some of the most misleading myths. The key brain functions for mediation
behaviour: memory, intelligence and prediction are explored. We need to know
what behaviours we can control and change and which ones we can’t.
Bluffers’ guides to the basic neuro concepts and vocabulary are at Appendices 1–3.
Chapter 3 Feeling
What are emotions? Where do they come from and what they do? Is it really the
case that emotions make our decisions for us? How do we identify and manage
them? Feeling emotions is one thing, expressing them is another. Does expressing
emotions help or hinder settlement? Can you stop them being expressed? Has
‘venting’ had its day? Are mediators able to express emotions?
Chapter 4 Thinking
Here are the mental traps that we can all fall into: Cognitive biases, Heuristics, Logical
fallacies? Are they as widespread and harmful as we are told? Has our evolutionary
development left us maladapted with mind traps unsuitable for coping with the
demands of modern life? If we are more self-aware, can we make better decisions?
Chapter 5 Intuition
What is it? Can we rely on gut instincts? Are they such a bad thing? When should we
rely on them? After all we don’t always have time for System 2 reflective thinking.
Chapter 6 Self
Emotions, heuristics, cognitive biases and intuitions all influence our behaviour.
How they do it depends on who we are at the time. This chapter looks at our sense
of self. How does it show itself at mediations? How significant are self-interest, self-
esteem and self-determination?
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Preface
Chapter 7 Barriers
This is the first of two chapters on Frequently Observed Behaviours at mediation
(FOBs).
Why do we go to mediation to make peace but prepare for war? Are we programmed
to self-sabotage?
We look at the common barriers to settlement – the negative FOBs: mood swings,
argument, stress, status anxiety and groupthink. Learn what they are and how to
identify them. See from the charts how emotions, energy and ways of thinking
change throughout the mediation day.
Chapter 8 Bridges
This deals with positive FOBs – the bridges to settlement: quantification, rapport,
smiling, listening, reality assessment, empathy, mimicry. They help us get over the
barriers. How and why do they work? Learn how to make the best use of them.
The next three chapters highlight the 3Ps of mediation. The things that
our brains enable us to do at mediations.
Chapter 9 Persuasion
How to frame your message most effectively. What to avoid saying if you want
someone to agree with you. Learn more about the use of language – spoken,
written and non-verbal – to influence thinking and feelings. What if anything can
NLP and NVC teach us?
Chapter 10 Prediction
Why do we find it so hard to predict? Learn how to avoid prediction pitfalls. What
to concentrate on. How to read the situation. How to work out your chances. How
probability can help you.
Chapter 11 Perception
We are often faced with competing realities. How can we reconcile them? Learn
how to avoid mistakes that can easily lead us astray.
The next five chapters look at mediation behaviour in relation to the
Big 5 Issues that occur in every mediation: money, power, truth, fairness
and trust. Each chapter highlights and examines the main emotions and
cognitive biases that come into play. Learn how they influence decisions
and how you can manage them to maximise their positive influence and
minimise the negative.
Chapter 12 Money
The one guaranteed universal at mediations. The first of the three mediation power
words. Even when the dispute is not about money, we cannot ignore the money.
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Preface
Why not? What does money mean? Learn: What it does. How our feelings about
money influence our decisions about everything.
Chapter 13 Power
Power is the ability to get what you want. How is this shown at mediations? Learn
how to recognise the different types of power and who exercises them – clients,
lawyers and mediators. How to spot when power is being used and abused. How
do you deal with power imbalances? Why might may not be always right. Learn
how to make the best use of mediator power.
Chapter 14 Truth
The second of the three mediation power words. What is mediation truth? How
can we tell if someone is lying to us? What are the different types of lies? Does truth
matter anyway when negotiating a settlement?
Chapter 15 Fairness
The third of the mediation trinity of power words. Used at every mediation. But
why is it so important? Does fairness just mean what I think that I am entitled to?
Can we measure it? Learn how we can balance up competing ideas of fairness in
order to reach a settlement.
Chapter 16 Trust
Trust is usually in short supply at mediations. What does trust mean in the context
of a mediation? Learn how it is lost and how it can be created. Can you mediate at
all let alone negotiate a settlement if there’s no trust at all?
Chapter 17 The Psychology of Offers
Offers are the oxygen of mediation. Without offers mediations die. Learn how best to
make and receive offers that can be accepted. Look at how to apply our knowledge
of emotions, instincts and mind traps to help us negotiate more effectively. Is there
a right way to sequence offers or does it all just depend on the day? How do you
most effectively set the price and value of settlement?
Chapter 18 Online Mediation
We behave differently online. Do we mediate differently? If yes, in what way? Is it
for the better or worse? Learn how to make the most of mediating online and what
traps to avoid.
And there’s more
You will find checklists, graphs, charts, tests and self-audits.
To keep things simple detailed references to sources are not given. Endnotes are at
the end of each chapter.
Stephen Walker
October 2021
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