Impasse Breaking Skills For Mediators And Advocates:
Impasse Breaking Skills forMediators and Advocates:Traps, Tips, and Tools!October 24, 2019Sam Imperati, J.D.www.ICMresolutions.com 503.244.1174SamImperati@ICMresolutions.com 1992 – 2019 ICM, Excepting Cartoons and Where Attributed
Sam Before HeStarted Training!Introduction Sam Imperati, JD Former: PrivatePractice, Nike TrialAttorney, and Pro TemJudge Taught: WillametteMBA and L&C Law Currently: a Mediator,Facilitator, and Trainer 2006 – 2020: BestLawyers in America –ADRI’ve been involved in thousands ofdisputes some of which I started!1
Table Introductions & Ice BreakerYour nameMediator or AdvocateYour New Name For Use DuringThis Training!FIRST: Name of the first pet you can rememberLAST: Name of the first word (not numbered)street you can rememberI’m “Butch Oxford”PLAY LISTChariots of Fire2
Agenda1)2)3)4)Setting The StageManaging “Truth” Decay and Cognitive Biases“50 Ways” to Break an ImpasseThe Rest of the Survey Says The Practical Details: Audience: Broad SpectrumPresentation vs. HandoutWe’ll be Going Fast and Slow over materialEducational - No Legal AdviceBreaks and LunchRotating Small Groups – Shared Experts ModelProvoke Thought/Conversation, Not JudgmentI’m an acquired taste that 3
1) SETTINGTHESTAGE
Conflict, Which is Defined asWhen someone insists that they are right, and you are wrong!5
Typical Mediation Looks Like This6
or ThisWe can sit here all day until the personwith the hidden agenda speaks up.7
At Home, It Looks Like This!Don’t take that tone of thought with me!8
Typical Mediation Impasse“I’m NOT settling. That’s my BOTTOM Line.It’s a matter of PRINCIPLE!”9
Why? Reactionary Automatic CognitiveProcesses“Youroffer’s a crumpled little ballon my desk.”Are Habit-Bound and Inhibit Clear Thought10
Our Role: Car Mechanic,Travel Agent, or Tour Guide? Consider the parties as travelers headed to a rendezvousat "agreement" and they get stuck on the way. Is the mediator someone who comes in and helps only toget them unstuck so they can find their own way to theirpredestined agreement? Or, is it okay to give them each some input (ideas,information, etc.) that might help them find a different andhopefully better rendezvous (i.e. there's good food nearbywhere you were going to meet)? Or, how about the mediator who believes he or she knowswhere they should meet and tries to get them there?Ninth Circuit Mediator, Chris Goelz, JD11
If you had to pick, is it the mediator's job to:a) Facilitate the discussion,b) Provide suggestions, orb) Get them to where they should go?12
The Survey Says Not a Predictive PollNot About Right AnswersSimply a Discussion AidWhislte Baby
Overview Survey as discussion aide – not a predictive poll Sent to all Training attendees 35 mediators and 33 advocates participatedo Not everyone answered every question.o Results are rounded – do not always equal 100%o Did not analyze “Other” answer choices Today’s Focus: “Dissonance: Identify it, Own It, and Change it.” Behaviors: Good and Bad14
Survey 85% Law6% Business6% Other (Mediation)ADVOCATES93% Law7% Business Mediators had more mediation experience than advocates 60% of mediators had over 200 cases 25% of advocates had that many Most were paid mediators (81%) 17% reported their practice was 100% volunteer Mediators and advocates differed over frequency of caseswhere all parties were represented by an attorney 78% of advocates said most of the time all partieswere represented 34% for mediators15
Mediators can Manipulate byUsing Rhetorical TacticsWhy Does Anyone Mediate ifMediation Risks PsychologicalDissatisfaction, Extra Costs andManipulation? Three Theories RevealParadoxes Resolved by MediatorStandards of Ethical Practice, 29 OhioSt. Journal of Dispute Resolution(2014).Just Say-in!16
Mediators or Master Manipulators?Are the “Old Saws” true if we manipulate?1) Mediators own the process2) Attorneys and their clients own the outcome3) Mediators don’t have outcome preferencesProvocative “New Saws” or “Sins?”1) Mediators, attorneys and clients should own the process2) Attorneys and their clients may not actually own theoutcome3) Mediators do have preferences over outcomesDeformation Professionalle “the tendency to look at things according to theconventions of one’s own professions, forgetting any broader point of view.”Availability Cascade “Self-reinforcing process in which a collective belief gainsmore and more plausibility” through its regular/consistent repetition in publicdiscourse.17
Q9: What do you believe the typical clientexpects of their mediators?Both process expertise and subjectmatter expertiseSubject matter expertise and processfamiliarityMediatorSubject matter expertiseAdvocateProcess expertise and subject matterfamiliarityMediators andAdvocates aregenerally aligned,but there seem tobe two camps onthe amount ofsubject matterexpertise required.Process expertise0.00% 10.00% 20.00% 30.00% 40.00% 50.00% 60.00%18
Q18: What do you believe the typicalmediator thinks they need?Both process expertise and subjectmatter expertiseSubject matter expertise and processfamiliarityMediatorsAdvocatesSubject matter expertiseProcess expertise and subject matterfamiliaritySo, how muchsubject matterexpertise does a Process expertisemediator need?Can you uative” When people take the mediator’s point of view, they believe in morewithout it?process expertise than when they take the client’s point of view (slide18).19
Q10: What is the guiding focusin your typical mediation?MediatorsAnswer options:Only legal rights and responsibilitiesPrimarily legal rights/responsibilities and to a lesser extentunderlying interestsEqually legal rights/responsibilities and underlying interestsPrimarily underlying interests and to a lesser extent legalrights/responsibilitiesOnly underlying interestsAdvocatesAdvocates aremore likely toprefer law tointerests thanmediators.20
Q12: Which do you think is more important:subjective standards or objective standards?MediatorsAdvocatesAnswer Options:Subjective standards are much more important than objective standardsSubjective standards are more important than objective standardsSubjective standards and objective standards are equally importantObjective standards are more important than subjective standardsObjective standards are much more important than subjective standardsAdvocates are more likely to prefer the objective to the subjective.What about the parties?21
Courts vs. FamilyMediatorsAdvocatesNot surprisingly, subjectivestandards are more importantin family court.22
Mediator Motivations1) Deal Maker Reputation (Settlement rate, Returnbusiness)2) Power Balancer (Process)3) Settlement is Good – Litigation is Bad4) Advocate for the “Fair Result” (“helping thepowerless”) (Substance)5) Competitive (want to succeed whatever thegame);6) Utilitarian (want an outcome that maximizeshappiness)7) Biases, conscious or not, leak out8) Need to feel earned fee9) Satisfy parties23
Self-Determination Theory (SDT)SDT: everyone has a need to feel: Competent: to have an effect and attain valuedoutcomes Related: to feel connected to others. Autonomous: to self-organize and be concordantwith one’s integrated self. Self-determining parties choose their: dispute resolution processes andsubstantive agreements.PARADOX: The more the mediator maximizes theparties’ self-determination, the less the mediatorsatisfies her own.24
Mediators Use Rhetorical TacticsAristotle divides rhetorical arguments into three, notmutually exclusive, categories:Logos: Logic stimulates need to feel competentEthos: Ethics, virtue, and goodness stimulate aparty’s need to feel related by communalnormsPathos: Sympathy and emotion can satisfy aperson’s need to feel autonomous25
Rhetoric presents existing information in a way that canmanipulate a person’s thinking. These “rhetoric-made”realities go to the heart of the mediator’s craft, or dothey?Forensic: “Attempts to change what we see as thetruth about the past” (E.g. “Is it possibletheir intent was [positive] ”)Epideictic: “Attempts to reshape views of thepresent” (E.g. “You have a choice - fixblame or fix the problem.”)Deliberative: “Attempts to make the future” (E.g.“Wouldn’t it be better to build arelationship vs. build a case?”)26
Mediator Ethical Challenges Rhetorical tactics impart power to mediators. Every mediator action exercises some form of powerwhile mediating; so, let’s own it for crying in the night! If we don’t, how is it safe for parties to engage inmediation? Safer if we use ethical standards.27
Mediator Approaches in eferenceLegal Rights &ResponsibilitiesListenExploreArgueFairness &“Resolution”Prefer“Resolution”Power ication StyleGoalIf Freud, Jung, Rogers and Beck WereMediators, Who Would the Parties Pick andWhat Are the Mediator's Obligation, 43Idaho Law Review 643 (2007).28
Mediator Approaches, ons &SubjectiveStandardsCombinationEvidence &ObjectiveStandardsLength elf-DeterminationBothProtection ofRightsDisclosureExpectationFull DisclosureFull DisclosurePreference“Secret”Information OKApproach29
Mediator Approaches, ve”“Evaluative”LengthAssumptionOne or MoreSessionsOne or MoreSessionsOne SessionProcess ExpertiseProcessExpertise &Subject MatterFamiliarityProcessFamiliarity &Subject MatterExpertiseNon-EconomicEconomic NegotiationStyleReality 1: Many Mediators use a Hybrid Approach.Reality 2: There is dissonance surrounding what these termsmean on the ground.30
Q8: Mediator Approach: What do Mediatorsdo, and what do Advocates Want?MediatorsAdvocates are more likely toprefer evaluative overfacilitative, but 9% don’t knowthe difference.Advocates31
Courts vs. FamilyMediatorsAdvocatesFamily law is morefacilitative than courtmediation.Family law advocates are morelikely to prefer a facilitative –transformative approach thanthe family law mediators.32
Be Aware of the Intersection ofEthics and ApproachesHighOffer Opinion on OutcomeRaise Issues or DefenseMEDIATOR’SETHICALCONCERNSPlay Devil’s AdvocateRaise OptionsLowFacilitate CommunicationTransformativeMediator Practice Models: The Intersectionof Ethics and Stylistic Practices inMediation, 33 Willamette Law Review 703(1997)FacilitativeEvaluative33
Table ExerciseWhat say, you, about any of the above topics?Two brilliant insights per table, please!34
2) MANAGING“TRUTH” DECAY”AND COGNITIVEBIASES:NAVIGATE THEINTERSECTION OF LOGICAND EMOTION
“Do you swear to tell the truth, the whole truth, andnothing but the truth, even though nobody has anyidea what that is anymore?”36
DESCRIBETHIS,PLEASE
Truth Decay Roadmap How do people form their opinionsand beliefs, and ultimately whatthey decide is “true”? Explore Rand’s Truth Decay Modelto illuminate how the overrelianceon opinion and a decay of trust ininstitutions impacts mediators,specifically those working in aninstitutional environment. Do mediators have an obligation tohelp parties find the “Truth” orshould we simply help themdiscover their “truths?”3838
Kavanagh, J & Rich, M. D. (2018). TruthDecay: An Initial Exploration of theDiminishing Role of Facts and Analysis inAmerican Public Life. Santa Monica, CA:RAND Corporation.39
Truth Erosion Leads to Trust Erosion18% ofAmericans Trustthe Governmentin rust-ingovernment-19582017/?utm source newsletter&utmmedium email&utm campaign newsletter axiosam&stream topNo confidencein wisdom ofpeople4040
The Limits of Political TribalismChange in support for policy positions among votersbefore and after group discussionsMost Americans would move toward the center on policies including health care,immigration and the minimum wage if Republican and Democratic voters spent moretime together face-to-face — or at least that's the takeaway from "America in OneRoom," a social experiment conducted over a single weekend last month in t-anddistrust-inamerica/?utm source newsletter&utm medium email&utm campaign newsletter axiosam&stream e603ffc24.html?utm source newsletter&utm medium email&utmcampaign newsletter axiosam&stream top41
Understand the Intersection ofLogic & Emotion“Our life is what our thoughts make it ” Marcus e)42
“The days of the bartender-psychologist areover, but I can help you settle any disputes!”43
Understanding How People ThinkSystem 1System 2 Generally automatic, affective(emotional). “Mental Shortcuts”- heuristics Efficient - few resourcesneeded Examples: localize the source of aspecific sound complete the phrase "warand ." display disgust whenseeing a gruesome image read a text on a billboard drive a car on an emptyroad Slow, effortful, conscious,rule-based Used to monitor System 1 Takes lots of resources Examples: dig into your memory torecognize a sound determine theappropriateness of abehavior in a social setting count the number of A's ina certain text park into a tight parkingspaceWe rely on System 1 more than we like to admitThinking, Fast and Slow (2013)by Daniel Kahneman44
What are Cognitive and Implicit Biases?1) Cognitive Biases Shortcuts in our thinking makeour judgments irrational. Our mind misfires inpredictable ways and can cause errors injudgement. System 1 All judgment and decision errors – not learned but preprogrammed Can only hope to adjust afterward, can’t avoid!2) Implicit Biases The attitudes that affect ourunderstanding and decisions in an unconsciousmanner. Typically referring to social prejudices. Activated without our awareness – System 1 Can be both favorable and unfavorable assessments Built on learned social 5
Why do We Have Cognitive ms-of-intelligence2ab78d90740f46
We’re So Darn Human! Confirmation Bias: Only using or seeking out informationthat confirms their beliefs; devaluing information thatdoesn’t fit with existing beliefs. Naïve Realism: The human tendency to believe we seethe world objectively and without bias. We assume thatothers who do not share the same views must beignorant, irrational, or biased. Cognitive Dissonance: The uncomfortable feelingpeople get when holding two “competing” ideas in mind atonce. This compels us to get rid of the troubling thoughtsby rationalizing our behavior or dehumanizing others.47
Our Own Biases:Assume you are subject to psychological traps andyour intuition is not always reliable!Don’t assume they are irrational when they may bejust uninformed or haven’t yet told you what’s reallygoing on.Extra Credit:Prejudice: ww.understandingprejudice.org/iat/index2.htmCore Philosophy: http://www.selectsmart.com/PHILOSOPHYMorality: Default.aspx48
Cognitive Biases and Tips for HandlingTrapsMediator TipsAnchoring: Getting stuck on the firstoffer/number they see and being unableto break free of that starting point. Allother moves are in relation to thatoffer/number. Reality Testing Tie to legitimate outside standards. Anchoring happens if they feel underpressure to make a decision. Give them time and be ready to givethem more if they feel under pressureto make a quick decision.Availability Bias: Tendency to rely oninformation that is more readilyavailable to them. Example: It’s easy tothink of the last fatal plane crash, butharder to think of a specific car crash,making people think planes are moredangerous than cars. Ask, “What information will they berelying upon and will thedecisionmaker find it reasonable?” Have them research, focus on facts,and avoid relying on gut instinct.Confirmation Bias: Only using orseeking out information that confirmstheir beliefs; devaluing information thatdoesn’t fit with existing beliefs. Ask them to consider multipleperspectives. Have them seek out people thatchallenge their opinions or ask you tobe the "devil's advocate."49
Cognitive Biases and Tips for HandlingTrapsMediator TipsConstrual Biases: Parties think othershold more extreme views than they do.For example, believing the employer ina union negotiation want to offer zerovacation days. Reality testing: Test their assumptionsand have them put on their “thirdparty” hat to see what an objectiveobserver might think about thesituation. Investigate these assumptions withthe other side.Endowment Effect: People value Use open-ended questions to uncoverthings they already own more thanunderlying interests.others value them because they see the Normalize and help them decideconcession as a loss of what is theirs.what’s best with a cost/benefitanalysis.Fairness: Parties reject deals if theyperceive their norms of fairness will beviolated by accepting. Related, TheJust World Hypothesis: Most clientsprefer a just world and thereforepresume it exists – and that thingshappen for fair reasons. Reality testing: Is the judgment likelyto be fair? Is it unfair or just normalconcessions in the process ofnegotiation? VECS and use open-ended questionsto uncover their real interests.50
Cognitive Biases and Tips for HandlingTrapsMediator TipsFraming Effects: Decisions are heavily Be mindful in how you presentinfluenced by the way they are presented.options. Are you presenting it asFor example, you can buy beef that is 75%them avoiding a loss or gaininglean or buy beef that is 25% fat. Whichsomething?would you prefer? Additionally, people tend Consciously decide whether toto avoid risk with a gain frame but seekframe as a loss or a gain.risks with a loss frame.Fundamental Attribution Error: Tendency Suggest they be generous into assume other’s actions are because ofinterpreting the other side’stheir characteristics (e.g. rude or selfish)actions.rather than their situation (stressed or What are the reasons you mightchallenged by something external).act as they are/have?Overconfidence Bias: When clients place “What sources of information dotoo much faith in their own knowledge andyou tend to rely on for bigopinions. Often combined with Anchoring,decisions?”meaning clients act on hunches because “Are these fact-based?”they have an unrealistic view of their “Has our information beenabilities or the situation.gathered systematically?” “Who else will have information?”51
Cognitive Biases and Tips for HandlingTrapsMediator TipsReactive Devaluation: Dismissing a Walk them through a cost/benefitproposal from others on the assumptionanalysis to overcome their initial gutthat it is either motivated by selfrejection.interest, or less valuable, or simplybecause they make them. “I don’t likethat idea because they proposed it.”Recency Bias: tendency to overvalue Ask, “What information will they bethe latest information available. Peoplerelying upon and will thethink the most recent information holdsdecisionmaker find it reasonable?”the most influence. Primacy: the Give them facts so they will be lessreverse.likely to rely on gut instinct. Repeat the facts, especially the onesthat hurt.Sunk Costs: People tend to “throw Help them with System 2 thinking bygood money after bad,” favoring options doing a cost/benefit (BATNA) analysis.where we have already incurred Help them realize that all options havesubstantial costs, even though thesethe same future cost, because costscosts are gone.incurred are already lost.52
Ladder of InferencePeter Senge53
The Ladder Explained Reality and facts are at the bottom. From there, parties: Experience reality/facts selectively based on theirbeliefs and experience; Interpret what they mean; Apply assumptions, often without challenging them; Draw conclusions based on their interpreted facts andassumptions; Develop beliefs based on those conclusions; and Take actions that seem "right" because they are beliefbased. Creates a vicious cycle. Soon they are literally jumping toconclusions by missing facts and skipping steps in thereasoning process.54
Ladder of Inference AuditHelp parties audit the way they make inferences using thefollowing questions. Have them imagine what their wisest friendwould think, how the other person involved might answer thesequestions, or how they might feel one year from now. What are the basic facts? Are these all of the facts (subtext: not just the ones you’vechosen because they fit your belief)? What are all the possible interpretations of those facts? What assumptions are we making? Is there a provable basis for our assumptions? What other facts are out there and how could they impactour analysis? What actions should we take based on this new analysis? Why is this the "right" thing to do?55
The Rational – Emotional Divide As mediators, we know a lot about how to analyze thefacts and law, the odds of winning, and the likely outcome. Our dominant culture values the “rational” approach. But the parties are human (like us!) – often complex,social, and emotional beings that can make decisions thataren’t always rational. Emotions are, for better or worse, the dominant driverof most people when they are making meaningfuldecisions. It’s much easier to be rational when we are not insidethe conflict our self!56
Bargaining in the Shadow of the Law?Researchers examined access to legal information tounderstand how the shadow of the law influences parties’expectations and strategies.Positive Law: Statutes, case law, and formal legal sourcesFolk Law: Law as depicted in informal sources such asonline materials and popular media Parties use many sources of folk law; positive law mayprovide less influence than folk law There are multiple “shadows of the law” depending onwhere parties are getting their information Different understandings may exist for parties fromdistinct socio-economic or cultural backgroundsCrowe, J. et al. (2018). Bargaining in theShadow of the Folk Law: expanding theConcept of the Shadow of the Law in FamilyDispute Resolution. Sydney Law Review 40:319-33857
Towards a Better Understanding ofLawyers’ Judgmental BiasesLawyers are prone to overconfidence bias and selfserving judgements of fairnesswhen acting as advocates. Need for Cognitive Closure: A motivational desire for clearanswers over ambiguity People with a high need for closure showed more intense selfserving bias when asked about judicial predictions and fair valueassessments. This bias could be mitigated through de-biasing interventions forjudicial predictions.Stark, J. H. & Milyavsky, M., (2019). Towards aBetter Understanding of Lawyers’ JudgmentalBiases in Client Representation: The Role of Needfor Cognitive Closure. Washington UniversityJournal of Law & Public Policy58
Words Matter“Facts” something that has actual existence:objective reality“Truths” the body of real things, events, andfacts, the state of being the case“Beliefs“ a state of mind in which confidenceis placed in some person or thing,considered to be true or held as an“Opinion.”“Trust" assured reliance on the character,ability, strength, or truth of someoneor something. Often lacking when“Values” are not aligned.59
Which of the following shouldmediators focus on most?A. FactsB. TruthsC. Beliefs/Opinions60
Perceptions of Truth in a Mediation Is there one “Truth” when it comes to the content ofour mediations or does everyone have their own“truth?” “They Saw a Game” – Hastorf and Cantril (1952) Students watching a football game (the sametape!) constructed different realities on objectivemeasurements depending on their affiliation withone team or the other. Reality is constructed and how should mediators dealwith Truth Decay if the parties each have their dhiphilosophy/philosophy truth meaning.htm not-territory/61
Operationalizing Mediation Standards Does Self-Determination outweigh your concerns? Can you maintain your Impartiality if you feel a party’srelationship with the “truth” seems unfair to you? Howwould you do that? While you’re not anyone’s lawyer, does knowing or notknowing the “Truth” effect your obligations surroundingCompetence? Is their participation in good faith if they’re “too flexiblewith the truth?” Did you discuss your “truth” concernswith them? Good Faith Participation?62
Don’t Forget “Truth is like the sun;you can shut it out for a time,but it ain’t going away.”63
Table ExerciseSo, what say, you, about truth in mediation?orWhat are the cognitive biases you see inmediation and how do you handle them?Homework: What are your cognitive biases andhow do you manage them?64
“Objective reality is notthe whole scope of thehuman condition”Tim’s Older Brother, Sam65
How do Parties Arrive at the Truth? Five key criteria parties use to evaluate the “truth”: General acceptance by others, Amount of supporting evidence, Compatibility with their beliefs, General coherence of the statement, and Credibility of the source of the information Parties are looking for “fluent processing” and “cognitivesimplicity.”Schwarz, N., Newman, E., & Leach, W.(2016). Making the truth stick & the mythsfade: Lessons from cognitive psychology.Behavioral Science & Policy, 2(1), pp. 85-95.Varol, O. (2018) Facts don’t change people’sminds. Here’s what does. Retrieved s-or-someone-elses/66
Tools a Mediator Should Use, if aMediator Should Use Tools?What if it’s easier for the parties to dispute the facts than it isto alter their deepest beliefs? The mind doesn’t follow thefacts.Backfire Effect When people’s core beliefs are challenged,and they end up feeling even stronger about them.People’s previously held beliefs may have made sensegiven the information they had and remind them it’s ok toupdate based on new information.Give them a “Way Out With Dignity. (W.O.W.D.)Varol, O. (2018) Facts don’t changepeople’s minds. Here’s what does.Retrieved s-or-someone-elses/67
More Tools Help parties understand how they determine “facts”: Normalize cognitive biases and changes in points ofview (e.g., Anchoring, Fundamental Attribution Error,Confirmation Bias, Reactive Devaluation, etc.) Help them be more open to the “facts” of others Help parties understand what the facts are: Create an agreed-upon basis for “strong andreliable” information Engage in joint fact-finding Help parties with their non-fact-based processes tomake decisions and form beliefs: Help them “explore vs. debate”68
Tools, continued Help people determine what is important to them External reference points of fairness such as:Justice, Equity, Fairness, Law, Cultural Norms, etc. Others? Help each understand what is important to the other Focus on where they do agree Get to a “truth” they can live with Normalize the idea that each may have their “truth” It’s ok that they each see things differently if theissue is their “truths,” but if it’s not If a party has their “truth,” perhaps it’s OK for theother person to have theirs69
How Power Affects ImpressionsDoes a person’s power affect the way we judge theirother traits? People infer more negative traits for powerless othersthan for powerful or power-irrelevant others. Positive traits: competent, honest, funny, etc. Negative traits: insecure, lazy, rude, etc. People are benevolent when inferring traits of powerfulpeople. But for powerless people they choose negativeand positive traits. We are biased to think positively of powerful people.Orghian, D. et al. (2019). How your PowerAffects My Impression of You. Personalityand Social Psychology Bulletin 45(4): 49550970
Tools, continued Give them time – We use shortcuts especially when timepressured. Full-blown emotions are short-lived, 10minutes can reduce the effects. Break problems into digestible chunks Ask them: “Have you seen (relevant bias) in others?” “I fall in that trap from time to time. Do you ever fallinto it?” “Knowing we all have biases, what do you think now?”Fruehwald, Edwin S., Understanding andOvercoming Cognitive Biases for Lawyers and LawStudents: Becoming a Better Lawyer ThroughCognitive Science: Chapter One - An Introduction toCognitive Biases (2018). Understanding andOvercoming Cognitive Biases for Lawyers and LawStudents: Becoming a Better Lawyer ThroughCognitive Science (2018); ISBN-13: 9781985130135. See,SSRN: https://ssrn.com/abstract 312066271
Normalize Their ReactionsExplain: “We’re all so darn human and our first reactions arenot always reliable. I’m confident you will make a goodchoice when the time comes.”Say, “I sometimes catch myself reacting to suggestions fromthe other side. It helps when I don’t respond immediatelyand give myself time to objectively consider the situation.”Because parties often think otherwise, explain Correlation isa connection between two varia
Subjective standards and objective standards are equally important Objective standards are more important than subjective standards Objective standards are much more important than subjective standards Mediators Advocates 21 Advocates are more likely to prefer the objective to the subjective. What about the parties?
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