Psychology and Mediation

Mediation is best done by someone with knowledge of psychology. The difference between negotiation and mediation can be described as a difference in psychological outlook. In negotiation, most often one is out to get the best deal one can get and many people are willing to be as zealous advocates for themselves as possible in the process to get there. that’s why attorneys can make excellent negotiators. In the game of chess that is negotiation, one wants the best thinker on your side, to think several moves ahead, and lock down a position the other party can’t  squirm out of. Pin them down, force them into a corner etc. are terms I’ve often heard regarding negotiation. Attorneys are trained to be such advocates. The emotions of the other party are deemed irrelevant.

But mediation is more an emotional process of reaching agreements. A skilled mediator understands that the emotions of each party, not their positions as such, are the moist important things to regard. If one party leaves the mediation process unsatisfied and even unhappy emotionally regardless of the agreement, then there is a good chance this party will attempt to redress the perceived wrong in court at a later date. the mediator needs to learn to open an avenue for a change in emotions of each party so long lasting agreements can be achieved.

In this sense, it is better for attorneys to think of the “opposing” party in negotiation as a jury rather than an adversary. A good attorney seeks to persuade a jury that their client’s position is “right,” and what he/she and the attorney’s client is reasonable and appropriate. Good attorneys in court will use arguments the jury will understand, will try to sway their emotions and use words to put the jury in the shoes of their client. If attorneys could learn to do that with the other party, there would be a lot more negotiated agreements.

The world of true mediation is as foreign to many attorneys as the realm of psychologists, emotions, is. True mediation treats both parties’ interests as important. That is a hard shift for many attorneys to make. that is the shift attorneys must make if they hope to be good in mediation, be good mediators themselves, and are considering becoming a judge.

To ignore logic in court or in mediation is folly.Psychologists, if they do not have the ability to be logical, are poor mediators in many situations. But equally, to ignore the emotional needs of each party in true mediation is at best problematic and in fact may even be impossible. If one ignores emotions one can argue, then mediation becomes, and even degenerates into, negotiation. That’s why many attorneys are poor mediators. Knowledge of the law does not include knowledge of emotions. A good mediator has equal knowledge of, and skill with, both psychology and logic. Most people use logic to support their emotional positions rather than to use logic to reach a position and get comfortable with that. Without emotional understanding on the mediator’s part, a large portion of mediated agreements is ignored. Sadly, this portion is even more important to good mediated agreements than logic.