The Role of “Pride” in Mediation: Why it is Always a Consideration
So many mediators these days take it for granted that many legal disputes – especially those involving business-to-business transactions, essentially come down to the “bottom line” of the deal. This means that the participants emotions take a back seat. Sure, often all the parties care about is the money involved – but there is always one “emotion,” maybe more precisely, one “mindset” that is in play: the participants’ pride.
“Pride” is a broad-ranging concept, and is different for different people. For instance, in a mediation where some mediators may think that only the “bottom line” counts, one or both sides’ insistence on particular dollar amounts may in fact be tied to their pride for being “good at what I do,” or, “getting the best deal to deliver for my boss or my investors.” In fact, “pride” itself often extends to include the very core of what many dispute participants see as their very identity—who they are. In other words, pride might be seen as our self-definition of how we feel about ourselves, our self-image, our sense of importance, our relevance, and our accomplishment.
There are many cases that neutrals mediate where pride is indeed more obviously a variable in play. For example, when in PI cases where plaintiffs feel “wronged” by the defendant, the plaintiff may declare a need for “fairness” and/or “retribution” or “getting something in return” for their willingness to even come to the bargaining table. When a plaintiff feels hurt (regardless of whether or not they are actually hurt) or when they perceive that they have been hurt, they not only feel the “pain” of having to compensate for the harm, but they also have their sense of “pride” impinged as well.
I have a point to make that is at once both obvious and true, but I think it is helpful to remember when we help our clients come to a resolution during mediation: We are animals. You might sarcastically be thinking to yourself “Really? You don’t say! We are really animals?” I believe we are. And that is important. Remember all of those elementary and middle school lessons on how a pack of wolves works together. Each pack has an “Alpha male” who is better at hunting than the rest of them. Albeit we’re not wolves—I know the metaphor only goes so far—but humans have pecking orders too. Every day people judge and are judged by the car they drive, the handbag they carry, the degrees they hold … symbols of status and “ability” are everywhere. In other words, pride is always in play in anything we do because we are social creatures and that is just how we are wired. This concept rings if anything more true than when we are in conflict – about whatever. When humans are in conflict, whether for medical malpractice, PI, contract disputes, family conflicts, whatever, we inherently are forced to go head-to-head with another human to try to get to the other side of the conflict. Whether or not we consciously perceive that our pride is in play, very, very few people are able to go into and come out of conflicts without having some sort of mental or emotional reflection about how they performed during the conflict and not have that reflection affect their self-image in some way (even if they are convinced they performed “well” and in actuality did not). Pride is always in play.
So what do we do as neutrals? How is this relevant to our practice and the ways by which we might approach our clients to help them be more successful? I have three rules when addressing pride in a mediation.
Rule #1: Figure out how parties’ interests might be tied to their pride. This includes lawyers’ pride in serving clients as well. A lawyer’s pride is especially important when figuring out what a plaintiff’s interests are. It is even more important when that plaintiff is personally involved in some way, and when the plaintiff feels wronged (either by the underlying harm or by how the defendant or defendant’s counsel has acted prior to the mediation session). The mediator must learn to quickly assess and figure out where a party’s sense of “self” may be intricately tied to their mediation goals and/or approach to the problem.
Rule #2: Probe to “feel out” whether the party’s pride is an impediment. This can be trickier. Throughout your career as a neutral, you have undoubtedly become very good at finding patterns of fact patterns or party personalities that tend to trigger impeding emotions (i.e., you are good at following Rule #1), but it can be much harder to then identify how those potential problem areas relate to the particular clients in each case. This is an art. Read your clients’ non-verbal cues as you build rapport and try to “feel out” whether or not the client’s sense of “identity” is tied to his or her stance in the case. For instance, when a plaintiff tells me, “I can’t believe that guy, he completely breached his ethical obligations under our contract and I’m sick of it. I had to do something and so here I am.” I’m not just thinking to myself, “…the client’s interest is in remuneration for the breach,” I’m also thinking to myself, “…the client’s interest seems potentially tied to their sense of worth as a professional – they are angry that they have been ‘treated poorly’.” When you think you may have identified a source of pride in a mediation, and you further think that the party’s sense of pride may be an issue potentially impeding a deal, it is then time for Rule #3.
Rule #3: Once you have identified a potential “pride-problem,” subtly reframe it, recognize it, let the client “be heard” if necessary, and work with it going forward. In my example above, the party’s pride may or may not be in play, which is why reframing their statement to include some subtle mention of their pride can be important. I might respond with a reframing statement including a reference to their need to be treated respectfully by others honoring their contracts, or their need for their company to be treated respectfully by contracting partners. By probing, identifying, and then verbally recognizing that a sense of identity may be in play, I am doing a few things for the client that will lead to a better settlement in the end. First, I am allowing the client to feel heard—and indeed my reframing of the “pride-problem” may lead to the client gushing on about how the otherwise business problem has affected their personal paradigm. Second, I am giving the party a chance to move beyond their own sense of identity impingement and begin to think more constructively about the issue: Of course, it is a basic tenant of mediation that parties under stress often erect their own mental barriers to consensus because they “feel” a certain way or the other. Like any other “emotion variable” in mediation, I am recognizing the pride the party has, validating the legitimacy for them to have that pride, and allowing them to thus move forward on an equal ground. Finally, I am able to use this entire process to allow the client to feel closer to me as an ally, while still maintaining my neutrality.
Simply put, pride is not always a barrier to mediation, but it certainly always plays a role. Like any other variable throughout the mediation process, an experienced neutral must gauge for themselves whether or not the level of depth or involvement of a party’s “pride” or “identity” requires those dynamics to be addressed for a successful resolution to be reached. Just as many times as I do find it necessary to understand, recognize, and validate participants’ pride, I find myself in situations where I do not have to address underlying issues of pride. But pride runs deep in the psyche of most humans, and because it can be such an influential motivator of our mindsets in every area of our lives, it behooves us as professional neutrals to understand how pride motivates people in legal conflicts.