Several months ago I wrote a column on the role of parties’ “pride” in mediation, and in that column I laid out the three rules I follow when I suspect I’ve encountered a level of pride or ego in a party that may impede agreement – but in that column I did not have room to address another fundamental consequence of “pride” or, more broadly, self-esteem in mediations … assumptions.
Think about it, have you ever encountered someone who was so sure they were correct about something, that they refused to believe any logic to the contrary? Of course you have, we all have, and in fact I’d gamble that all of us have, now and again, found ourselves in situations where for one reason or another we assumed we were correct about something, when in fact we were not. It’s human! And it happens all the time.
When parties “assume” that they are right about something – when they “assume” that there is absolutely no reason for them to re-evaluate their judgments, positions, or options, left unmanaged those assumptions can sometimes sound the death knell of a mediation process. When a party has begun to blindly assume the validity of an unexamined position, then logical dialogue to reason towards a solution may become ineffective. If you are an experienced mediator then it’s likely you’ve encountered clients that might fit this bill – someone who, for whatever reason, threw logic to the wind and was never willing to negotiate. This isn’t to say that when parties begin assuming “truths” about their situations that tenable solutions cannot be reached: In fact, depending upon whether or not the assumptions a party makes relate to fundamental elements of the negotiation, and/or how emotionally “attached” a party is to their assumptions, resolutions are possible.
So then, how can we as mediators learn to manage the unexamined assumptions we find in parties? First, as with any other priority as mediators we must ask ourselves, “is the assumption being made fundamental to the negotiation?,” e.g., “is it worth spending the time, energy, and “rapport points” necessary to address this issue?” For instance, if you are mediating a contract case and one party seems bitterly opposed to re-evaluating their below-market offer of payment to the other party, you might need to deal with that party’s “assumptions” about a “fair” price before being able to begin negotiations.
Second, if you believe you need to address a party’s assumption, then it is important to realize that psychologically there are several different reasons why parties form assumptions. The most important question to ask yourself when you think a party may be “assuming” a position is simply ‘why?’.” And the answer to that question completely determines how you approach the party in encouraging a reevaluation of their stance.
Long story short, psychologists argue that there are several reasons why people may “assume” things, and I’ll address the two most pertinent reasons to mediation here: Sometimes people make assumptions because they are simply mistaken, but often people also make assumptions to subconsciously “protect” themselves. How can you tell the difference in a mediation? As mediators we always come back to this simple process: You need to ask questions. If you suspect that a party may simply be mistaken in their assumptions (say, over the “fair” price of a contract) then ask them about typical market rates as a reality check, go through the calculation with them, and ask questions about potential “creative” solutions besides pure cash payment if the two sides cannot agree on a ball-park number, etc. (e.g. apply basic mediation techniques). It may be that the party simply was too hasty in their initial estimates, or that they had not taken time to consider some alternative possibilities to resolution. If there is no psychological impediment to the party re-evaluating their position, then simply applying basic mediation techniques may be enough to help the party move past their previous assumptions. If, however, the party seems to be resistant to evaluating their stance, then it is important to ask yourself: From what I know about the party, might they be “protecting” themselves here?
In fact, many psychologists believe that one of the biggest reasons people tend to form assumptions and obstinately refuse to evaluate them is as a protection mechanism. It may seem odd that parties may need to “protect” themselves throughout a mediation – especially for seemingly “low emotion” cases and purely business transactions – but it happens more than you would think. Of course, by “protecting” themselves I don’t mean that parties are going to physically roll themselves into a ball in the corner of the room, but “emotionally” – that is what happens sometimes. Especially when a party’s natural self-esteem is low, or, more commonly, when a party’s sense of identity is tied to their professional success, a party may sub-consciously view mediation as literally a test of their own self-worth. It is important to remember two things about parties who see mediation/negotiation as a test of their pride and identity: First, their sense of “fear” about “re-evaluating” their position is usually unconscious or semi-conscious at most: Sometimes, parties see re-evaluating their own positions as an admission of weakness. In other words, on some mental level they “feel” as though they “shouldn’t” have to re-evaluate. This mentality can be exacerbated when the party has had many previous professional experiences where they have “won” by being obstinate – by actually evaluating their assumptions less and thus “winning” negotiations by simply not offering concessions. Say for instance, a lawyer who “prides themselves” in playing “hardball,” or a client who is “used to getting their way” in business or life generally:
As a mediator, our job is to recognize these mentalities and work with them.
Second, this motivator of “fear” can be strong. If you’re not careful, you can lose all rapport if you mishandle the interaction between a party’s sense of identity and the mediation process. So once you think you have a grasp on what’s driving a party’s obstinance, then what?
Reiterate that you are on their side. You need to communicate, on some level, that you “accept” the parties for their position, so that they can relax and open up enough to negotiate. If you have asked the party several questions about the reasoning behind their position and they have deflected/become defensive, become frustrated, or even begin to “shut down,” then it is important to quickly realize that there is probably an emotional motivator behind their entrenchment and to quickly and smoothly change your mental focus from the superficial “facts” of the mediation to their underlying emotional “needs.” Sometimes this simply means letting the parties “have their emotional space” by not asking any more questions (you’ll be able to tell, they’ll usually ask you to stop probing). Sometimes this means helping them briefly experience a pent-up emotion so that they can move past it and focus on settlement; sometimes it means recognizing that the party identifies as a professional by being obstinate, and working with them on that level. In any of those scenarios, the message you can convey is always the same: “I accept where you are coming from. We’re on the same team.” This does not mean that you agree with their assumed positions; instead, it means that you have helped them “feel” that you are not attacking their self-esteem or identity. How subtly or directly you communicate that message is up to you, and wholly dependent upon your assessment of the party’s comfort with direct, “emotional” communication. More often than not, in professional mediations, it is important to communicate that you “accept” and are “not attacking” party’s senses of pride/esteem/identity in indirect manners. Maybe through a joke to bring some levity, or through a story about your own past that indirectly communicates “I can see where you’re coming from – we’re on the same page here.”
In summary, if you find a party who has made an “assumption” and seems unwilling to budge, ask yourself: Is their position preclusive of settlement? If so, then next ask yourself: Why are they making this assumption? Ask them questions until you get a sense of whether they simply made a mistake or whether they feel the need (consciously or not) to not evaluate their own position. If you suspect the party’s “pride” or esteem may somehow be on the line, then feel out how to communicate that you both:
1. “Accept” them; and,
2. Are not “attacking” them.
Don’t be fooled: Sometimes there’s literally nothing you can do and a party will not budge. But, more often than not, you’ll find you can help parties feel appreciated and understood just enough to spur negotiations and help them move-on with their careers and with their lives.