Ever been in the middle of a mediation and think to yourself,
“Yup, I saw this coming before it happened…”
?

Chances are that if you are a practicing mediator you have come to somewhat predict or, at least, “sense” when a client may act or react in certain ways. It’s really important to be able to anticipate client responses in actions during mediations, so that we can try to guide discussions to be productive.

I think that part of that intuition comes to experienced mediators naturally, especially when they share a common culture with their client. But our ability to predict others’ behavior is also ingrained in us as humans. Many professional psychologists argue that as we grow and socialize throughout our lives, we develop “senses” of what behaviours to expect from different individuals in different situations. Indeed, the mind sorts and categorizes previous experiences to allow us to apply knowledge from previous experience, and to create expectations of how others will respond in certain situations. For instance, something as simple as saying “please” and “thank you” comes with our expectation that when we say those words the other person will react to our words in a predicable way – say, to respond with “you’re welcome.”

But life isn’t just “please” and “thank you.” Mediations are often complicated bundles of emotion and behaviours that as professionals we must sift through if we are to successfully guide our clients to lasting settlements. While over time our experiences as mediators may allow us to develop the same sort of “intuition” about people’s behaviours in mediations that we had developed in other areas of our lives, there will always be natural limits to our ability to understand and predict the complicated behaviours we see as professionals. Luckily for us, the field of psychology can help shed some light on our clients’ behaviour. Even better still, there are some techniques we as mediators can employ to better predict our clients’ behaviours, and to therefore better serve our clients by guiding that behaviour towards healthy outcomes. Here is a straightforward formula in every case I mediate:

One of the chief concerns of the field of social psychology is the understanding of how humans interact when together: Within that field, the psychologist Julian Rotter once developed a simple “equation” to help understand and predict potential behaviours. Rotter stated that the behaviour of a person is determined primarily by three things:

1) the expectation that person has for the outcomes their behaviour will create;
2) the “reinforcements” or incentives that person has to act in particular ways; and
3) the individual psychology of that person (by this he meant that people are often subjective, illogical, and may therefore act in unpredictable ways).

I have found that my ability to predict and thus guide party behaviour has dramatically improved by looking for the three factors in Rotter’s equation. Whenever I start a new case, I ask myself, “what are the incentives of the parties here?” It’s really another way of asking, “what are the forces causing the party interests?” In other words, what motivations do the clients have to act in particular ways? You can often deduce many of the incentives by looking at the case filings and looking at the main issues claimed, the money requested, etc. You can also further clarify the motivations of parties when you speak with them and observe them. Ask yourself the question, “if I were in the party’s shoes, what would I want?” And, “how would I act to get what I want?”

I also try to understand what parties actually expect from the case and from the mediation. This can be a bit trickier than trying to understand incentives, because parties can be afraid to expose their true expectations for a case. For obvious reasons, parties almost never put their bottom lines in their case briefs, so speaking with them is essential to understanding their real hopes for settlement. Build rapport, earn the client’s trust, and look for subtle clues or hints as to what they really expect to get out of the mediation process. This might be as simple as finding their BATNA or WATNA…probe a little. Once you understand a party’s bottom-line and alternatives to negotiation, it’s a whole lot easier to predict how they will react to offers you might bring them in caucus.

And finally, as mediators we of course rarely “know” the psychological “state” of a person, but we certainly can guess if there are any biases that may affect their behaviour. Look for clues in the client’s background, the way they present themselves and their thoughts, and their communication styles. It is impossible to always be able to predict client behaviour; but it is possible to become good at inferring how clients may perceive or approach their cases.

Humans are complicated creatures, and naturally so too is our behaviour. As mediators we are tasked with helping clients work through the surface-level complications of their cases, and at times that means helping to guide client behaviour throughout the mediation. The process of guiding behaviours as mediators will never be foolproof, but applying some basic principles in analyzing our cases can certainly help give us insight on our path to settlement.

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.