What Does Influence Mean?
The term “influence” has many definitions, but the one that seems appropriate for purposes of this article is “the act or process of producing effects on the actions, behavior, [or] opinions of others.” In the context of mediation, mediators actively seek to change the actions, behavior, and/or opinions of the disputing parties in order to help them agree to settle a relationship conflict or a material dispute.
In order to understand the concept of mediator influence, it is helpful to understand its nature. In my view, its nature is purely personal in that it operates on a person-to-person basis. We see this as a one-on-one phenomenon because the actors in mediation and negotiations are individuals meeting in private caucuses with the mediator, not the legal entities that the individuals represent.
Sources of Mediator Influence
The sources of mediator influence seem to fall into two broad categories: personal and technical.
Personal influences have their source in the mediator’s personality—his or her individual characteristics. There are at least three characteristics of personality that are relevant sources of influence. The first is how the mediator relates to others. Is he or she outgoing or introverted? Quiet or loud? Confident or timid? Funny or serious? The second characteristic is communication ability. How well does the mediator communicate with others—verbally and nonverbally? The last characteristic is character. This characteristic goes to the mediator’s moral timber. Is the mediator trustworthy? Honest?
Technical influence, at its most basic, has its source in what the mediator knows. This means both substantive knowledge, knowledge of psychology and mediation process skills. These two elements are at the center of the on-going debate over who makes the better mediator, the substantive expert or the process expert? Anecdotally, it is fair to say that many users of mediation services believe the ideal mediator is a combination of both. Undoubtedly, substantive knowledge of the field out of which a dispute arose brings with it a certain amount of credibility that could potentially influence the parties. However, if the same mediator lacks mediation process skills, he or she may not know how to make use of that knowledge to facilitate a negotiated settlement.
Mediation process skills include knowing how to manage the process, perform a critical analysis, manage difficult parties, deal with expressions of emotions, and problem solve, generate options, and deal with impasse. The more adept the mediator at executing these skills, the more influence the mediator could have on the prospect of settlement.
Mediators who have “closed” many cases may be in demand. Some of these mediators have very strong personalities. Will their reputation be sufficient to bring about a settlement? There is no data on this. In my view, it is more likely that the mediator’s personality traits will be more determinative of the mediator’s influence on settlement.
Finally, knowledge of human behavior is essential because the mediator needs to be able to read the individuals representing the parties to see how their personalities will affect the mediation process. The mediator also needs to be able to modulate his or her own behavior to work effectively with certain personality types.
Impediments to Mediator Influence
Ralph Waldo Emerson once asked: “Who shall set a limit to the influence of a human being?” In the context of mediation it is fair to ask: “Who shall set a limit to the influence of the mediator?” The most obvious answers are the parties and their counsel. They can simply refuse to cooperate with the mediator and each other. Additionally, there are those “away from the table” who may exert significant influence on those at the table, and their influence may work against that of the mediator’s. Spouses, parents, bosses, government bodies, etc. fall into this category. A third answer to the question of who can limit the influence of a mediator is . . . mediators themselves! Impediments mediators bring to bear are internal. They also may be personal or impersonal.
External personal impediments to mediator influence can be broken down into four categories: neurological, psychological, emotional, and values/beliefs. External impersonal impediments fall into two related categories: technical and substantive. All these combine to create the single biggest impediment to mediator influence: parties enmeshed in disputes and conflicts make choices independent of the mediator.
Important to note here, however, is that these should not be seen as bars to mediator influence. On the contrary, they should be viewed as opportunities that test the mediator’s skill and intentionality in exercising his or her influence effectively.
Let’s now take a look at each of these impediments
Neurological
Neurology involves the structure and chemistry of the nervous system, which is centered in the brain. It is without doubt a complex area and much about how the brain works is still unknown. What is known is that there are two parts of the brain that can impact how people respond to disputes and conflicts. They are the amygdala and the prefrontal cortex.
Amygdala are two small almond-shaped structures that research has shown perform a primary role in processing emotional reactions. It serves as an alarm, letting us respond to threats quickly without conscious thought. It’s what makes us jump when something surprises us. Interestingly, the amygdala cannot distinguish been a physical threat, (e.g., someone approaching to hurt us) and a social threat (e.g., the threat of insult or failure).
The prefrontal cortex is responsible for planning complex cognitive behaviors, personality expression, and decision making. It is also influences the amygdala by moderating correct social behavior. Thus, where the amygdala causes us to jump in surprise, the prefrontal cortex is what assesses whether that which scared us is a real threat or a benign stimulus. In either instance, it helps us to make a rational decision and then behave accordingly.
When the stimulus is strong enough, the prefrontal cortex can be overpowered, making us unable to control our feelings. At these times the brain is in structural conflict so making clear, rational decisions is difficult, if not impossible.
The point is this: in a mediation where the circumstances create a conflict between the amygdala and prefrontal cortex of a party, that party will probably be unable to think clearly, which can impede the mediator’s influence on that party, despite his or her best efforts. This means that a settlement is not likely to be achieved until this neurological conflict is resolved.
Psychological
Psychological impediments to mediator influence are probably too numerous to count. There are about a half dozen or so that commonly manifest themselves in mediation.
First, people have a limited capacity for rational decision making when they are distracted. Studies in this area have shown that the more distracted a person’s thinking, the more emotional the decision-making. If, for example, during the course of a mediation, a party is thinking about how others will judge a settlement if one is reached, the more likely that his or her decision will be based on emotion rather than reason.
Second, people are susceptible to cognitive biases. These are simply “habits of the mind;” biases in the way we think. Biases can be positive or negative. In either case, the bias makes us see things with a predictable slant, and react faster than we would if the bias were not present. This can be an advantage in certain situations. On the negative side, however, biases are distortions that one may use to create a “private reality”—whether consciously or subconsciously.
Third, people are susceptible to motivational biases. Motivational biases are driven by self-interest. They are “habits of the will” that prompt people to reach a certain conclusion or interpret information in a certain way because doing so promotes their interests. These biases also protect people from emotionally conflicting, unfamiliar, or unpleasant information.
Together, cognitive and motivational biases lead people to interpret new information in a way that fits into their existing ideas and justifies their preferred course of action. The problem is that these biases create close-mindedness. They can prevent a person from listening to reason, objectively evaluating evidence, seeing other perspectives, engaging in constructive problem solving or seeking collaborative solutions.
Fourth, people make choices based on what they think will happen to them as a result. It is a cause and effect dynamic. “If the settlement proposal meets my interests, then I will be satisfied and happy, therefore I will agree to the settlement.”
Fifth, whether people make a particular choice is based on two expectations: “Is it worth it? (If not, why waste the effort)”; and “can I do it? (If not, why try?).”
Sixth, many thoughts people have are incomplete or inaccurate. Interpretations of events trump the facts of any situation. Not all interpretations are anchored in reality.
Finally, the phenomenon of psychological anchoring can prevent the parties from moving beyond their early expectations. “Anchoring” is the term used to describe the tendency to rely too heavily on one piece of information when making decisions. If, for example, an attorney preparing her client for mediation says to the client, “The settlement value of this case is somewhere between $150,000 and $400,000,” the client may well “anchor” on $400,000 and find any offer from the other party below that amount as unacceptable. Such “anchoring” can limit a mediator’s influence to effect settlement.
Emotional
If you polled a thousand commercial mediators, you would likely be hard-pressed to find any who would say they have had mediations that were void of emotional content. If people were not tense and emotional, they could probably negotiate resolutions and reconciliations without a mediator. When parties come to mediation they are already at impasse and impasse is almost always due to the emotions and feelings of the parties. It’s emotions that get in the way of productive conversations.
Yet, in many commercial mediations, no one wants to confront emotions and feelings in the room even though those same emotions are driving behaviors and decisions that are costing the parties thousands, hundreds of thousands, and sometimes millions of dollars, not to mention negatively impacting the companies’ people.
In the earlier section dealing with psychology, we noted that people have a limited rational decision-making capacity. This is at odds with the socio-economic notion of the rational choice theory. In this theory “rational” does not mean sane. Rather it means that individuals balance costs against benefits to arrive at the action that maximizes personal advantage. In doing so, the theory discounts the importance of emotion in the decision-making process. In the real world, however, emotions permeate the decision-making process as anyone who has purchased a car can attest. “I really like that blue sports car model, but I look much better in red. Do you have it in red?” The practical implication for mediators is that while the presenting facts and positions may appear to be rational, the underlying emotional content may likely come into play in ways that can impede mediator influence.
According to one source, the most common emotions present in disputes and conflicts are injustice, fear, anger, and betrayal. When anger and fear drive negotiations between hostile parties, the outcomes are generally terrible. This is because fear and anger distort “rational” decision-making. Remember our discussion about the amygdala and the pre-frontal cortex and how they can put the brain into conflict? Some people simply do not have the ability to manage strong emotions during discussions about difficult issues. Most people, however, have the ability, but may never have developed the skill to manage strong emotions. In either case, the impact in mediation is a situation that impedes mediator influence unless the mediator is exceptionally skilled at effectively managing the parties’ emotional content.
Connecting with people’s feelings and helping them understand how their feelings affect their decision-making process is a necessary step to arriving at lasting (quality) resolutions and reconciliations. This is not a speedy process.
Values/Beliefs
One of the first things I learned as a new mediator many years ago was this: People do not negotiate away core beliefs and values. These are virtually always intractably non-negotiable. It wasn’t too long, however, that I also learned that values and beliefs are a two-sided coin; the two sides being adherence to and disengagement from. On the one hand, disputants will hold tight to their values and beliefs while on the other hand, they will act or behave in direct contradiction to them. Let’s look at the adherence to side first.
When it comes to beliefs and values, the heart of the matter is a matter of the heart. In one’s heart of hearts the belief or value is true and sacred. But, this adherence is not just emotional. The brain actually plays a role when it comes to adhering to beliefs and values. Neuroscience studies seem to indicate that the brain aggressively reinforces pre-existing beliefs and values and rejects information contrary to those beliefs. The more inconsistent the facts are with a particular belief or value, the more the prefrontal cortex—the reasoning part of the brain—shuts down. The implication of this on mediator influence to effect settlement is palpable: Beliefs and values are calcified and people learn very little from data presented in opposition to them. Now, let’s turn our attention to the disengagement from side of the coin.
Disputes and conflicts can cause a kind of myopia. As a dispute or conflict gains momentum, those involved begin to focus almost exclusively on “the problem” and do so in a vacuum. It seems that when facing the hard demands/choices of the moment, people often react to their emotions by shortening their vision and focus on details, instead of acting in accordance with their values, beliefs, and principles. In other words, they don’t put disputes and conflicts in the context of their lives (or their company’s) bigger picture, effectively checking their values and beliefs at the door. Let’s say, for example, the defendant has as part of its corporate values the statement “Committed to integrity.” Plaintiff alleges that one of its claims is based on the defendant’s use of substandard materials in the production of one of the defendant’s product lines over a three-month period. The allegation is true, but the defendant’s principal takes exception to any harm done the plaintiff stating that, “Everyone in this industry knows that all manufactures of similar products must occasionally use substandard materials. It’s no big deal.”
I call this condition amusing moral disengagement. Amusing—from a meaning “not” or “without” and muse meaning “to think”— essentially means to do something without thinking. When combined with moral disengagement the phrase conveys that no thought is being given to linking actions or positions with beliefs and values. Amusing moral disengagement is characterized by one or more of the following: moral justification (focusing on other moral outcomes), minimizing (actions and their impact), displacing responsibility (“I don’t make the rules.” “Who doesn’t do X?” “I had no control over Y.”), and dehumanization (“A monkey could have made a better decision” or transforming people into cold, hard data.)
External Impersonal Impediments
Now let’s turn our attention from the external personal impediments to some of the external impersonal impediments to mediator influence to effect settlement. Again, there are two categories here: the technical and the substantive.
Technical impediments are things like mediation procedures, court rules, and codes of ethics. Substantive impediments are things related to the issues in dispute such as evidentiary facts, applicable law, valuation, medium of exchange, and “good cause.”
Technical
Court rules governing mediation may prohibit mediators from giving their opinion; limiting the mediator’s role to that of facilitator—as opposed to being directive or evaluative, thus impeding mediator influence. Caucusing, a common mediation practice can be used by parties to manipulate facts and the mediator’s thinking processes, thus affecting the mediator’s influence to effect settlement. Each party in mediation rarely, if ever, knows whether another party has disclosed in caucus confidential information to the mediator; and if confidential information has been disclosed by a party, the other party never knows the specific content of that confidential information and whether and/or to what extent that confidential information has colored or otherwise affected communications coming to the non-disclosing party from the mediator.
Standard I of the Model Standards of Conduct for Mediators establishes party self-determination as a cardinal principle in mediation recognizing that each party can make free and informed choices as to process and outcome. This standard sets up a natural tension between the parties’ right to self-determination and the mediator’s efforts to effect settlement.
Substantive
Most commercial mediations center on money, a matter of getting everyone to the right dollar amount, but sometimes the medium of exchange is not money and not even a commodity. Sometimes it’s a matter of rights and responsibilities. Sometimes, the medium of exchange is not even the same for both parties. The absence of a recognized and acceptable medium of exchange will hinder arriving at terms of resolution and reconciliation and, correspondingly, the mediator’s influence to effect settlement.
Finally, parties may also have (in their respective views) good cause to resist the mediator’s influence to effect a settlement and are thus motivated to thwart the mediator’s sincerest and most diligent efforts. Examples of good cause would include things such as legal precedent or negotiating a settlement when it would be unpopular with certain constituencies.
Internal Impediments
Not surprisingly, impediments to mediator influence that are internal to the mediator are essentially the same as those the parties and their counsel bring to bear.
Neurologically, mediator’s brains are no different than those of the parties and their attorneys. Throughout any mediation, mediators may find their amygdala and prefrontal cortex in conflict—causing them to juggle their emotions and reason. This affects their ability to influence settlement.
Psychologically, a mediator’s influence to effect settlement will be affected by things like the mediator’s limited rational decision-making capacity, cognitive and motivational biases, interpretations of events, and psychological anchors.
Emotionally, the ability to manage one’s feelings and responses thereto will affect mediator influence, as will the mediator’s own values and beliefs.
Technically the quality and extent of mediator influence is directly proportional to the mediator’s skill in using the tools in the mediator’s toolbox, e.g. gathering information, applying impasse techniques, etc. Substantively the mediator’s command and understanding of the issues involved in the case will affect how well he or she can influence a settlement.
Conclusion
While mediators do not possess the broad authority arbitrators enjoy by virtue of the arbitrator’s quasi-judicial role, they nonetheless possess the power of influence in ways arbitrators do not. That influence is more than the sum of its parts—character, reputation, verbal expression, non-verbal communication, physical proximity, substantive knowledge, and process skills. It is also the skillful and intentional use of each part.
How a mediator views and exercises his or her influence will in large measure determine whether the mediator, at every point in the mediation process, is making deposits to or withdrawals from their “account to influence settlement.”
