Recognizing Emotions & Motivations in Mediation

It is vitally important to recognize the role emotions and extrinsic motivators play in mediation.  Usually, the parties cannot filter through everything to discern the difference between law and what is truly motivating them (usually, emotions).  Worse yet, counsel have a difficult time in doing so as well, failing to realize that by getting charged up and “arguing” their case in mediation, they are actually working against their clients’ best interests towards a mutually satisfactory negotiated settlement. 

As noted by litigation psychologist Monica Delgado, PhD, in a piece co-authored by attorney Jonathan Harris, mediation is the pivotal juncture “where parties have an opportunity to transition from adversarial posturing to problem-solving.”  Success, in a mediation, is about achieving an outcome that puts the parties in better positions than they would be by continuing litigation. 

Reaching that success, though, is dependent upon understanding the underlying motivations rather than focusing on outcome.  As I always tell parties (and their counsel) when I mediate a case, there are no winners or losers in mediation so it is important not to think of the process in those terms.  Arguing facts is far less important than working to come up with a creative resolution. There is “an invaluable opportunity [in mediation] to delve into the human and business dimensions of conflict resolution—an aspect often overshadowed by litigation's adversarial nature.”

Looking at those emotions and other motivations, it is possible to identify areas of common ground. Upon that foundation, there can be collaborative discussion that leads towards potential solutions.  All of that, though, is quite different than simply arguing positions and negotiating off of them

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