And Helping Clients “Get Out of Their Own Way”

Have you ever become so angry that you began thinking that someone or something was “completely bad” or “completely wrong” when in fact that wasn’t the case? Have you ever heard someone say something that rubbed you the wrong way and made a snap judgment about them that you had to re-evaluate later? One way people commonly deal with conflict is through a psychological process called “splitting” … and trust me, if you’ve been party to any dispute you’ve probably witnessed it, and likely have unknowingly practiced “splitting” yourself.

Whenever a person develops a mental bias that something is “right or wrong,” “black or white” when the truth is somewhere in the middle, they are practicing a version of splitting. People do this for a variety of reasons, including to substantiate their feelings when they are angry, or to keep themselves from having to reflect on aspects of themselves or their viewpoints that they find uncomfortable. And this happens all the time in mediation.

When parties come to mediation, they are often invested in some way – especially when the legal dispute relates to some point of their personal lives. Such emotional investments can lead parties to “demonize” the other side and to convince themselves that their arguments are “entirely” correct; that the other party’s points are “entirely wrong.” And in less personal disputes – say in complex litigation mediations – parties often “learn” through experience to similarly “split” their thought processes both because it can help them be more ardent advocates, and because it lets them “protect themselves” from having to address inconsistencies between their personal feelings and their professional obligations. For instance, an in-house litigator for a corporation may have to “split” their viewpoint in order to be an enthusiastic advocate for their company even if the litigator does not always personally agree with the arguments he or she must make. It is often easier for parties to “bury” their reservations about arguments they make, because it is more important for them to “win” their arguments than to have to deal with continuous discord between their feelings and their job. More often than not, both personal and professional splitting occurs on an unconscious level.

So as mediators, how can we identify and address splitting to work towards a healthy settlement? The best way I’ve found can literally be broken down into S-P-L-I-T: First, Sift the information from both sides, and try to identify areas where parties may be overly “biased” in their arguments. You are looking for positions that likely don’t make objective sense, and thus where likely there is either an unknown motivation or bias beyond the stated interest.

Second, from the positions that may potentially be driven by splitting, then Pickwhich positions you think might drive stalemate later. If biased positions are readily accepted by opposing parties, or are overshadowed by other interests, let them go. But if positions may be both driven by splitting and prove cruxes to agreement later, make a note to pay attention to the rhetoric parties use when discussing the issue.

Thus, you need to Listen as the parties go through the mediation and use your professional judgment as to whether or not there might be opportunity to do a reality check with one or more parties over where the common ground lies and where they have entrenched into a split position.

If you feel confident that you have identified a split position that needs to be finessed, next Infer to the party that there may be “alternative solutions” (or some variant) to the split position. Do this by emphasizing that while you understand the party’s need to maintain their position, that it is important to “balance how much they need ‘X’ versus coming to resolution on ‘A, B, C, etc.’.” The goal here is to help parties objectively evaluate and value the potential settlement vis-à-vis any biased positions they hold –and hopefully, to guide them to make their own decision about ending their splitting if they are able.

But, when you address a split position, it is almost never appropriate to call parties out on their own mental biases. One of the easiest ways to ruin rapport with a client is to openly mention a mental bias you think they might have. There are many reasons not to do this: It can easily be insulting; if you anger a client prone to splitting they may split their mentality of you (and now you are the “bad guy”); finally, you may be wrong about their bias entirely. You can never be sure. Instead, if the client is willing to consider alternative solutions to their split position, it is time to Tinker with different, creative ideas for a solution. Help the client focus on reaching settlement by strategically offering concessions with the other party. If the client becomes emotional about their split position, gently guide them back to focusing on settlement. If the client retrenches and refuses to budge, let them vent if it will help or take a minute to re-evaluate their position objectively. If you get to the “T” in the process of addressing splitting, nine times out of ten you can help your clients “get out of their own way” and work towards a lasting agreement.

by Zachary Ulrich

Zachary P. Ulrich is currently a researcher for Pepperdine School of Law’s Straus Institute for Dispute Resolution. He holds a JD, Masters in Dispute Resolution, and Masters in Psychology (Clinical). Zach is an alumnus of General Electric’s highly-esteemed Financial Management Program, where he held several financial analysis positions of increasing responsibility and completed a graduate-level education in business management and operations. He has published over twenty-five articles and commentaries on organizational conflict resolution and mediation psychology.