“We’ve been raised to question what we know to discount and discredit the authority of our gut.”

Terry Tempest Williams, ‘When Women Were Birds’.

As mediators, we often come across disputants who have journeyed through hours of difficult dialogue only to develop cold feet minutes before signing the settlement agreement. This hesitation could be associated with anxiety, lack of self-confidence, pressure from external forces, or a dozen other factors. In reference to an article by John Tierney in The New York Times, disputants might just be encountering ‘decision fatigue’—stalling their official assent to the resolution for fear of making a hasty decision.

Imagine a plank evenly poised on the edge of a cliff—half of it on land, half of dangling in the air. A disputant in doubt resembles a person standing on the half protruding outwards, while the mediator is positioned on the other half, balancing out the tension and preventing the disputant from plunging thousand feet under. At this moment, it would be foolish for the mediator to move towards the disputant or try to pull him over with threats or tricks. Even the slightest hand gestures or feet movement could mean an imbalance of weight, which could lead to a tragic ending—I shall return to this analogy in my conclusion.

This article attempts to throw light on those silky-smooth mediations which seem like a proverbial walk-in-the-park, until an element of doubt creeps in. As mediators, we are called to step up on the ‘poised plank’ dangling on the cliff and respond to this crunch-time crisis.

While bargaining ends, and the reality of a consensually accepted deal is set to be inked on paper, mediation participants sometimes wind themselves into scrupulous self-doubt, and seek the mediator’s assistance in this period of uncertainty. It is totally normal for people making huge decisions in their personal and professional lives to experience previously unseen or unspoken reservations in the deal. It could be that they are overwhelmed by the offer, not expecting the other party to compromise or are simply cynical about the other person’s considerate behavior and doubt their intentions.

Here are a few case studies from personal experience:

1A woman was claiming damages in the form of expenditures incurred for repair work, from a man who sold them his house with some defects. When they finally reached a verbal agreement during mediation, the woman requested for a caucus before the mediator could write up the settlement. Responding to a comment that she seemed stressed, she said “I have three other pending litigation battles, including an on-going investigation of a relative’s murder”. She asked the mediator if she was doing the right thing in agreeing to the compromised offer on the table. “I am not sure if this compromise is the best deal, what do you think?” she said. So, the mediator invited her to be honest to herself about her chances in court, keeping in mind time, money and travel. After reflecting for a few minutes, she said, “I think I am making the right decision. I also need to look after my daughter and I want the house to be radiating positive energy. I got too much bad on my plate”.

2A retired businessman was involved in a payment dispute with a housing association and broke down during the joint session of the mediation. He confessed that the court summons regarding an unpaid invoice were affecting his mental health. Interestingly, the contentious invoice arrived at a time when his wife was battling her last few days with cancer and he associated the rude and demanding phone calls from the housing association with his wife’s death and therefore held a certain resentment against them. After watching the man emotionally breakdown and explain how he had already incurred expenditures for matters they were asking him to pay again, the official offered him a discounted invoice. While the lead mediator was penning the settlement agreement, the housing association official asked the co-mediator (in private) if she was doing the “right thing” for the other party. “I think we have been generous, but I am not sure if this is enough for his mental state of mind at the moment. I don’t want to rush this.”

3A young musician who earned his education funding performing at a popular beachside hangout got into argument with the owner who insisted that he played a different genre of music for a certain unruly clients despite he clearly mentioning his interests and objections. That night ended with the musician storming out of the pub, while the owner verbally abused him in front of staff and clients. At the mediation, it they agreed to a compromise where the owner would pay him his impending bonuses for festive nights and the musician made a time slot for song requests outside his comfort zones. Before they could write up the settlement, both parties requested for a private audience with the mediator. The musician seemed uncertain about his position and asked,  “Do you think I should take the deal? Should I compromise on my exclusive brand of playing the classic rock genre? How would my competitors and fans react to this?. The owner had a question pertaining to his other performing artists—Will this set a precedent for others to also demand a bonus? How will my staff feel about bringing back somebody I just fired in public?

The above case study abstracts give us an insight into the jittery equations that clog the minds of disputants who are willing to settle, but unsure about making it official. They all have different concerns—Is justice served to me; Is the offer fair to the other; And will this deal be accepted by society? As much as we say “I don’t care what the world thinks”, psychologists say a large proportion of our decisions are not independent from external influences. In his book Invisible Influence, Jonah Berger claims that 99.9% of our choices are significantly influenced by forces we are unaware of, and therefore, it is not surprising that disputants turn to mediators during that critical moment of finding closure.

Writing in The Guardian, Oliver Burkeman confesses that autonomy can be a relief in daily decision-making, but if the choices are his own, he would constantly anxious about choosing well, compared to a more relaxed mentality if the choice was shaped by “countless unseen pressures”, and may be disputants subconsciously want this burden lightened. In situations where participants are not accompanied by any legal or casual counsel, or sometimes, even in the presence of lawyers and companions, they still seek a stranger’s neutral shoulder.

Drawing an analogy to a person who is suffering incurable pain and has the option to engage in legal assisted euthanasia, where assistants may be sought for advice—what’s your role as a third party when people are making difficult decisions? Not everyone is strong and confident enough to make decisions for themselves – the lesser the capacity, the more timid is their approach towards choices they haven’t made before. This is why we prefer to go to court for a motor-accident claim – let someone else decide for us, even when the other person is willing to settle at the crash site. Letting someone else besides yourself make decisions is easier to stomach, as you then have the liberty to be upset and point the finger, in the face of dire consequences.

Since we invite disputants to get out of their familiar zones of courtroom authority and dive into unchartered waters of self-determined settlement, it is necessary that we assure them of a safe and secure space to confront their inhibitions. Inspired by Princeton University psychologist and Novel laureate Daniel Kahneman, who recommended a revitalising self-confidence technique of “Pre-mortem”, I take the liberty to pose a more constructive reality testing simulation. Kahneman proposes we imagine it is a year from now and the decision being made failed miserably, and asks us to jot down a few reasons why it failed. He proposes replacing the success story in our heads with a failed story—asking “What went wrong?” instead of “what could go wrong?” I suggest we go a step further and ask a more pragmatic question “what can I do to be right?”—But, before we pose this question, we need to first balance the plank on the cliff.

Returning to my analogy of the poised-plank dangling on the cliff, it is important the mediator remains composed in this moment of confusion. The mediator’s position must reflect calm and confidence—we are not giving up on the doubter, and neither are we going to force someone to believe in something they are not convinced. As a neutral, we would assist them in finding answers to questions they have not thought about or are afraid to ask themselves. Most doubters possess statements in their heads—no questions, no answers, just suppositions. When requested to provide counsel, an invitation we sometimes mistake as a provocation to negotiate, or worse – to coerce or threaten, our job is simply to ask them questions and give them time to find answers.

Jonathan Rodrigues

Posted by Jonathan Rodrigues

With a background in psychology, law and journalism, Jonathan currently works as a mediation lawyer in India. He is co-founder at The PACT.

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