Mediating Smart: Only Reinforce What Helps

All too often in our everyday lives we accidentally “reinforce” behaviour in others that may or may not be beneficial to our lives, or to theirs. When a child complains that they do not want to get dressed in the morning, parents often become stern or even yell in an effort to elicit the appropriate behavior from that child. In such a situation, a parent’s action may actually be inadvertently reinforcing the child’s desire to tantrum because they are giving the child attention (albeit, “negative” attention) only when the child acts up. Or take for instance the common household pet – say our good old beloved dog, “Max,” always seeking to please and begging for attention and love from his master. Max will do anything to get his owner to play with him, including barking, pawing at the owner, even going and fetching his favorite toy at his owner’s feet in hopes that the owner will get the message. When Max’s owner throws Max’s toy after this kind of behaviour – in hopes that Max will be satiated and leave the owner alone – all the owner has done is “reinforce” for Max that “whenever I go and get my toy and put it at my owner’s feet, I will get the attention I want.”

Psychologists have found that humans are not that far from Max when it comes to our propensity to learn (and quickly learn) how to get what we want, when we want, and how we want it. This applies to mediations, too. We all know that in mediations parties each have needs – parties have desires of what outcomes they expect or think should occur. Thus, very much like Max who wants attention from his owner, parties in mediation have every incentive to try different “techniques” (like laying a toy at the owner’s feet) to get what they want. Of course, the difference is that humans are much more sophisticated than Max – we learn more quickly, have the abilities to generalize and draw inferences, and are able to think through situations with many more variables and long-term consequences than Max the dog could ever fathom.

Good mediators constantly seek to provide the best possible situation for parties to reach resolution if that resolution is healthy for both sides. This task means that most mediators need to be able to not only gauge and identify behaviour patterns in parties, but also be able to interact with the various motivations and behaviour patterns of a mediation as it unfolds. One major behavior “pattern,” of course, is that parties almost ubiquitously have interest-seeking mentalities and are motivated to get what they want, when they want it, and how they want it. It behooves an effective mediator, then, to make sure that we are not only identifying those behaviours in a mediation that will help facilitate successful settlement, but also only reinforcing as best as we can those behaviours in a mediation that will help facilitate successful settlement.

For instance, a plaintiff walks in the door – a successful businessperson suing a public utility for damage to his property. There is no contest over liability and the mediation is purely about finding a good number for both parties to walk away. Nevertheless, of course, plaintiff has the interest of getting as much money as he can both for property damage and other perceived harms, and if he is shrewd is going to employ a variety of “techniques” to try to get what he wants. If he were Max the dog, and somehow wanted a lot of money, he might only be able to think of leaving a toy at the mediator’s feet, barking, jumping around the room, etc. The plaintiff is a human, and he wants the best settlement for himself as possible. So it is more likely that the plaintiff will be pleasant and warm and charming, but he might also have a sob story or two to tell the mediator – the same story he would tell the court. He might be incredibly effective at projecting an image of despair or anger – whichever works best for him, or maybe a mix of both, etc. There are many “techniques” a plaintiff might use to win over their lawyer, the mediator, a court of law, etc. Similarly, the utility attorney may employ his own gamut of techniques. The point here is not to judge either side as being “right” or “wrong” for using these techniques. Indeed, it is to be expected that both sides will act in ways most advantageous for themselves during conflict – it’s healthy, natural, and part of the “game” a mediator must guide parties through to bring both sides to consensus.

No, the point here is that it is the mediator’s role to be able to identify and reinforce thinking and behaviours that promote consensus, and discourage thinking and behaviours that do not. That might seem like a lot, but you probably do it already without knowing it. A mediator will be exponentially more effective in fulfilling his or her role once the mediator is consciously aware of how they reinforce behaviors in the parties. Indeed, the fact remains that every day in mediation we cannot help but encourage some forms of communications parties present, and discourage others. For instance, while building rapport with a client, a mediator might encourage the client to “open up” by telling stories, finding points of common ground, identifying with and validating client needs and concerns. The mediator is effectively reinforcing the notion in the client’s mind that “…if I open up to this mediator with my true needs and interests, I will be received warmly, not feel threatened or manipulated, and be able to work with the mediator during this process.” Whether or not the mediator is intentionally sending this message, that is what the client’s brain perceives – literally, the client “learns” to connect the idea of “opening up” with the result that this is a “receptive mediator.” This message, once established in the client’s mind, can serve as a cognitive “foundation” which many mediators then use to solicit more information from clients and thereby help guide creative solutions to parties’ problems. Another example is when a client might tend to tangentially “drift” off topic when describing facts of the case, and a mediator “redirects” their story back to points that need to be covered. The mediator may simply interject a question after some time – using a genuinely curious tone about another point that the mediator projects he or she is more interested in (and, of course, that is more relevant to the case). When the client drifts off topic to describe an unrelated event to the case-at-hand, it may become a mediator’s job to ask pointed questions to reinforce both the ideas that “I am genuinely listening to [and thus validating] what you have to say,” and “I need more information on ‘X’ and less on ‘Y.’” And indeed, there are many such instances in mediation where as mediators we are tasked with simultaneously reinforcing multiple behaviours and thought patterns in a client at one time.

Conversely, it is just as important for mediators to know when they might be inadvertently reinforcing behaviours that are not conducive to effective settlement. Just as with the parent who may inadvertently reinforce a child’s tantrum by only giving them “attention” (even if negative!) when that child kicks and screams, a mediator may inadvertently encourage a client to “act” aversely to proposed solutions from the other side if in response the mediator only works harder to get that client what they want. If when a client says “no way, their offer is horrible, I’ll never accept it” a mediator only then returns to the other side and pushes for more concession, they have just trained their client to “…be obstinate…because when I am obstinate, the mediator fights harder for me.” Sure, it is important to make sure that party interests drive the process of a mediation – but in balanced deference to both sides. If as mediators we accidentally reinforce unproductive behaviour in one side by the way we react, successful settlement may become that much harder to obtain. We are “mediators” for a reason – and we should always seek to stay near the “median” of the conflict highway we must travel with clients to get settlement. Instead of only working harder for a client who refuses to budge, make sure you balance your efforts by working for both sides – all the time – in every caucus. The message you want to send is “the harder you push me, the more I will seek a balance of both sides’ interests,” not “the harder you push me, the more I will bend to your side.” You want to encourage behaviour in clients that drives consensus, not division. This is not to say that it is a “good” dynamic, or a “desired” dynamic, for mediators to try to actively psychoanalyze clients or “manipulate” client thinking/behaviour – there is a difference between actively reinforcing behaviours in a mediation that help drive consensus-building, and trying to convince a client that a proposed solution is “good” or “sufficient” when the client honestly feels otherwise. Indeed, it can be a powerful tool for mediators to understand the reinforcement mechanisms they control within a mediation process, and to use those mechanisms to guide the process forward. However, mediators must only do this with clients’ needs and interests in mind, never what the “mediator” alone thinks is best. Such ethical boundaries are clear – and become more clear when clients walk away with a “settlement” feeling anything but “settled,” later come to regret the agreement or regret using that mediator, or even worse pursue a malpractice claim.

As mediators we are entrusted with the expertise and the ability to serve as effective guides for our clients throughout an often complex and chaotic process. Interests are usually flying everywhere, bouncing off walls, and always making potential solutions more complicated than they otherwise would be. Understanding how to reinforce productive behaviors in clients is a powerful tool for mediators to add to their toolkit – and one to be employed with a sense of duty to the profession of mediation and to one’s clients. Go forth, good mediators, and prosper – do well, and understand always the motivations in the room, and how you reinforce them.

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.