Elizabeth BaderIn my articles on Issues of Self and Identity and the IDR Cycle1 and The Psychology and Neurobiology of Mediation,2 I have identified and described the IDR cycle, a core psychological dynamic in mediation.  This is a basic introduction to the cycle.

Introduction to the IDR Cycle

Most people tend to take conflict personally, and the outcome of a mediation as a reflection of who they are.  Generally, this plays out in mediation in the following way.

  • At the outset, people try to marshall their resources, inner and outer.  They bolster themselves with confidence, and even overconfidence and pride (what can be called self-inflation) in order to meet the challenge.
  • Next they experience deflation — disappointment often accompanied by outrage when they hear the other side’s position and point of view.
  • Finally, if the dispute settles, realistic resolution.

This cycle of inflation, deflation and realistic resolution is what I have called the IDR cycle.

The Inflation/Overconfidence Stage: The Key to the IDR Cycle

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The first stage of the IDR cycle is what I call “inflation” and what social psychologists call “overconfidence.” Numerous research studies have shown that at the outset of negotiations, parties are generally overconfident, and this is so even if one accounts for the phenomenon of posturing.

During the overconfidence stage, parties

  • Make a discernible effort to project a sense of confidence, not just in their cases, but in themselves (“I am a winner!”; “I am tough,” etc.),
  • Overestimate the strength of their position,
  • Seem to be unwilling or unable to face adverse facts or law, or
  • Deny their own vulnerability, including their vulnerability in the litigation.

The overconfidence phase is not the time to confront parties with the weaknesses in their case if you can help it. They won’t be able to hear you, and you will lose their trust.

The physical challenges posed by conflict, including adrenal surges, contribute to and cause the initial inflation/overconfidence phenomenon. I have discussed this at length in my new article, “The Psychology and Neurobiology of Mediation,” 17(2) Cardozo J. of Conflict Resolution 363 (Winter 2016).

Special Problem: People Who Lack Confidence

Some people enter the mediation depressed or at least not feeling confident.  They may have trouble speaking confidently for themselves.

This may be a result of previous trauma, or may simply be the way certain people are. Gender may also be a factor. This problem is discussed in more detail in my new article on the Psychology and Neurobiology of Mediation.

In these cases, we must encourage them to find adequate support from others during the process of mediation, including their attorneys.

Deflation/Disappointment

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In a typical case, however, the deflationary stage begins with the receipt of the first offer or counteroffer. Each party begins to realize that the other side exists as an independent agent, one who may not agree with their own preferred negotiated outcome.

You know you are in the presence of deflation when, particularly after an offer or counteroffer, parties

  • Let you know in stringent terms that they take the outrageous offer of the other side personally,
  • Noticeably start to feel less certain they will achieve their desired result,
  • Devalue and blame others, such as the other side, the lawyers, or even the mediator, because things are not going as they “should.”

The deflationary period is a tender time, when the trust the parties have vested in the mediator is tested. This is the time when, among other things, mediators should exhibit sincere respect for the client. Respect is a natural palliative for the sense of insult and deflation.

At the same time, it is necessary to remind parties of the need to keep the decision making process as objective as possible, without overreacting to the difficult feelings caused by the conflict.

Impasse

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The time of deflation often leads to impasse. Both parties hang onto their sense of insult and injured pride, and refuse to budge.

At this point, it is important to try to neutralize the sense of insult to the extent possible. If they are open to it, the mediator can help the parties (and counsel) evaluate options which are objectively useful for the parties even if they are not the ideal solutions they had initially envisioned.

The Importance of the Mediator’s Issues of Self and Identity

Impasse often compels mediators to come to terms with their own “face” or ego issues for two reasons.

Firstly, if during this time we do not or cannot keep our commitment to do what is right for the parties — not what is right for our own self-image or our settlement rates — we will lose both our integrity, and generally, the parties to the mediation, who are keenly aware of our every move.

Secondly, especially during impasse or deflation, the key objective for the client is both to learn to let go and re-evaluate, but not from a place of injured pride. If we want to help this process along, it must be done by our own actions, and our own attitudes, not just words.

Realistic Resolution

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Realistic resolution comes when the parties manage to relinquish their own ideal result or their desire to have the other side submit to their will.

This is not necessarily dependent upon a conscious decision to understand or to recognize each other. We don’t have to make this happen by manipulation or fiat. The conflict itself, coupled with the process of mediation, implicitly or explicitly drives people in this direction.

Toward A New Model of Mediation

The model of mediation I have articulated here is not dependent on or linked to specific protocols, nor does it require that parties achieve specific levels of emotional maturity.  The mediator’s job is to become sensitive to “face” issues and to accommodate each person’s particular requirements.

By looking deeply into the psychological dimensions of mediation, we are thus able to achieve greater flexibility in our handling of conflict, and, hopefully, be of greater service to parties in conflict.


FOOTNOTES

  1. See Bader, The Psychology of Mediation: Issues of Self and Identity and the IDR Cycle, 10(2) Pepperdine Dispute Resolution Law Journal 183 (2010).
  2. Bader, The Psychology and Neurobiology of Mediation, 17(2) Cardozo Journal of Conflict Resolution 363 (Winter 2106).