Mediation is curious, when you consider it from a psychological perspective
We encourage the parties in dispute to be reasonable, to compromise and give up causes dear to their hearts. We ask them to put aside anger, to forgive and forget. And we do this just when they’re most fired up about their case. When they’ve already invested significant amounts of time, money and energy in taking their opponent (who at some level they have probably come to despise) to court, where they hope justice will, at last, be served.
Instead of administering ‘justice’, as mediators we invite the parties to enter into a grubby compromise. A miserable, aggregated solution that pleases nobody and is, by definition, not ‘just.’ We do this in order to mitigate risks and avoid costs. Risks and costs the parties can barely comprehend when their strongest instincts, based on the fight part of the fight or flight autonomic process, are to put their fists up and battle it out.
At a time like this, it takes a great deal of reason, patience and understanding to suppress instinctive emotional responses in favour of a sound, durable settlement. The kind of settlement that is, objectively speaking, the only good outcome to any dispute, however serious it may be, given the vagaries of justice and the cost of trying to secure it.
The least that’s needed are processes and mechanisms that allow a skilled mediator to tease out the benefits of settlement in a cool, neutral environment. An environment where they can balance out what may be perceived as the joy of combat, of crushing one’s enemies and enjoying the lamentations of their folk.
Clearly this is best achieved without an audience of hangers-on, who contribute nothing whatsoever to the process but are merely along to enjoy the spectacle and the sandwiches.
What price an entourage?
At Moot, time and again we’ve seen that, where the main decision maker comes to a mediation or negotiation with an entourage, the chances of reaching a settlement are horribly reduced.
This is because when bellicose things are said the entourage acts as a cheerleader, encouraging their leader to strike a pose that is hard to back away from. Worse, when members of the entourage are given an opportunity to contribute, they compete with each other in support of their cause, each trying to say something more extreme to demonstrate how loyal and committed they are.
Conversely, this makes it so much harder for their leader to offer or agree to concessions – nobody likes to lose face in front of their cheerleaders. Yet, individually, the entourage lack the power or confidence to make their own concessions even when they could easily do so in the interests of settlement. Nobody wants to be the first to break.
What makes mediation so powerful
One of the things that makes mediation such a powerful process is that it’s built on confidentiality. But this advantage is seriously undermined if the leader cannot trust their entourage to support the difficult decisions they may need to make. Office politics mean that leaders are always looking over their shoulders at their subordinates – et tu, Brutus? – and this is a serious impediment to compromise.
In our experience, the optimal number of participants at a mediation is three: the decision maker, their dispute advisor and someone who can help with the numbers.
Sometimes you also have to call on other specialists – for example for advice on tax – but you can do this as and when needed.
When you have the optimum number of cooks in the kitchen, you have a much better chance of tasting a palatable broth.
Any more, and you’ll be pouring it down the drain.
