“Thinking like a Scientist” in Mediation to Identify Predictable Patterns

Because I am a huge nerd, I was reading a book on quantum physics the other day and was reminded of one principle that scientists often use and that I find generally applicable to every mediation I conduct. Scientists are not perfect—they are human. They do not, and never expect to, know everything about the universe. Often, despite centuries of study and conjecture, theories left to explain natural phenomena are no more than our “best guesses,” our best attempt to piece together the vastness and astronomical complexity of the world around us. Scientific theories are useful because they give us a means of predicting behaviour, but theories become ineffective as soon as their assumptions are found to break down in some way. In fact, in most scientific communities it is a generally recognized that we need not know all of the reasons why a theory works in order to take it as being “true.” This might sound strange, but in fact most theories of physics cannot possibly be tested in all possible circumstances imaginable (imagine the budget required, not to mention the scale, of testing a theory on Jupiter, or even at the bottom of the ocean, for instance) but instead can only be tested in particular situations here on Earth. In other words, scientists largely agree on the notion that for all intents and purposes a theory is “true” so long as it is consistent and predictable for the testable, observable situations which it seeks to describe. We only need to rely on theories in particular situations anyway, so why require that they be true for every situation if we are not applying them universally? At first glance, this might all seem like a bunch of abstract scientific philosophical jargon, but I assure you that these scientists have thought very carefully about how they test and use their theories, and that their method of study is directly translatable to mediation.

No mediator can ever hope to know exactly how parties will think, feel, or respond to a mediation; however, mediators should and can try to predict client behaviour to a high degree of accuracy. In a way, mediators are “scientific observers” in the mediation process. So that we may more readily assist our clients in achieving their goals and creating lasting settlements, we seek always to try to distill maxims of “truth” about the interests and motivations of parties. Much as with scientists, our job is not to come up with explanations for everything that clients do—how they think, what they say, etc. –but it is our job to at least be able to generalize as best we can about what to expect from clients when certain words are spoken, when particular proposals are offered, etc. Without this insight, our effectiveness as mediators would be limited to taking at face value only what we hear from the mouths of parties—bereft of the nuanced communication and interests so crucial to mediating—and lead to both fewer and less-tenable settlements.

As one accumulates experience going through numerous mediations, it becomes easier to identify “patterns” of behaviour and thought in different clients, and then use those patterns in being able to predict likely outcomes if certain courses of action are taken. Mediators-in-training can sit in a classroom and hear lectures of “forgiveness,” or “saving face” all they want, but at the end of the day it is going to come down to a “gut call” in the mind of the experienced mediator that might make the difference between turning a potential stalemate into a lasting resolution. The mind of a seasoned mediator has developed mental heuristics – or shortcuts – to be able to quickly recognize the way clients speak, divulge or withhold information, guide the back-and-forth of negotiation, etc. and boil those observations down to simple conclusions about client interests and how they might respond throughout the mediation. “This client is very good at feigning anger and is using that as a negotiation tactic,” or, “this client is generally ashamed to have this legal conflict and thus places a high value on quick resolution,” are some examples of simple conclusions or “truths” mediators must “theorize” from observations. Indeed, this is not that far removed from the laboratory scientist smashing atoms together a bunch of times to see what comes out of the mix. So what then can we do, as professionals, to maximize our ability to readily identify and try to understand client behaviour?

As I mentally kept comparing my mediation experiences to that of an exploratory scientist, I realized that there are much deeper correlations between the two fields than I once assumed, including how the best mediators tend to approach “studying” particular mediations, and in how they use that information to provide the client with the greatest benefit. I will cover two of the more simple similarities here.

First and foremost, I apply what I like to call the “Mediation Method.” The “scientific method” is a process that over the past several hundred years has allowed scientists to systematically test and discard/accept hypotheses by observing nature and switching out different variables to assess the validity of their theories. The only way scientists are able to identify patterns in their observations and to thus discern theories about their observations is through careful recording and comparison after the actual experiments occur. While of course I am not suggesting that we ought use our clients as lab rats in a maze (!!) or further that it would be a good idea to try to “experiment” with clients at all (!!!!) it is possible, and indeed wise, for mediators to make regular, systematic reflections on client negotiation styles, patterns of concession-making, etc. Simple notes such as “started at $150,000 – said he wouldn’t budge. Came up to $200,000 after X amount was given in return. Ended at $350,000.” Or, “…acted as if disgruntled the entire time, but smiled as he signed the agreement.” Simply take notes on what you find striking about communicative patterns you perceive. Taking notes can be enormously helpful when looking back through past mediations to discern patterns of bargaining and behaviour in clients. I would particularly recommend this Mediation Method for new or semi-regular mediators, in the first case to help them both more quickly distill lessons from their experiences, and in the latter case to help them brush up on common patterns in mediation before returning to practice after a hiatus. The only better training than actually conducting mediations, is doing so and then systematically reflecting on observations afterward.

Second, just as a scientist’s theories are not “accepted” until they have been discussed, tested, and vetted by the scientific community of his or her peers, neither should be the “truths” that we as mediators distill from our professional observations. It would be imprudent for a scientist to assume as “true” their theory without first consulting other scientists – who bring to the table variegated and deep knowledge and experience of their own. The same goes for mediators: It can be dangerous to assume the “truth” that certain cues from clients indicate their particular interests, tactics, etc. On one hand, no two clients are the same, and on the other hand the vastly different situations clients find themselves have an effect on clients’ psyches in intricate ways. As mediators it is our job to try to figure out what clients need – and how to interact with them – as best as possible. We’re not perfect, and luckily we don’t need to develop complex equations to describe clients’ behaviour, but sometimes we can have a high degree of certainty about what steps we must take in situations we have seen before. Why limit your learning to only the observations you perceive? Leverage the experience and opinions of knowledgeable professionals around you.

It’s fortunate for mediators – and students in the psychology of negotiation generally – that we must never fully understand what causes people to say what they say and do what they do. Indeed, such a task would be impossible with the limits of current technology: There are more synaptic connections in the human brain than there are atoms on the planet Earth, and when people and inanimate objects interact with one another, the equation becomes exponentially more complex than studying just one person alone. It is possible to think of a legal problem between two parties as literally just one combination of potential outcomes between all of those variables. It is humbling to know that as mediators we will never be able to truly understand all of the intricacies of what we can “observe” in a mediation. But it’s also a freeing thought: We shouldn’t try to understand everything about our clients, and trying to do so would be inefficient – we just need to do our best. And that requires thoughtful observation and reflection.

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.