My office is in downtown Los Angeles. I usually start my mediations at 10:00 a.m. For a reason: so that the parties do not have to fight rush hour traffic to be on time (even though rush hour seems to be never ending). I have found that if people walk into a mediation angry and frustrated about sitting in traffic or about some discourteous driver, it does not make for a good mediation session.
Evidently, my informal findings are correct. In a recent article posted on Harvard’s Program on Negotiation, the authors discuss studies validating that incidental emotions will affect negotiations. In an article entitled, “Emotional Triggers: How Emotions Affect Your Negotiating Ability” dated April 26, 2018, the Pon staff writers discuss a research study by Norbert Schwartz of the University of Michigan and Gerald Clore of the University of Virginia in which they telephoned half of the participants on a sunny day and half of them on a rainy day. The topic was the participants’ satisfaction with life. Not surprisingly, those who were called on a rainy day expressed less satisfaction with life than those who were called on a sunny day. But, the researchers found that simply by having the participant acknowledge the state of the weather by first asking, “How’s the weather”, the responses were equally positive. That is, this simple question diffused the effect of the bad weather on the mood of the participants. (Id.)
The article recites a fact that no one in Los Angeles (known for having the worst traffic congestion in the United States with the average commuter spending about 102 hours/yr. commuting) would dispute: “A nationwide study led by Nobel Laureate Daniel Kahneman of Princeton University showed that Americans become most distressed when commuting or when talking to their bosses.” (Id.)
For some reason, Thursdays seem to be horrible traffic days in Los Angeles. So, whenever I have a mediation on a Thursday, I usually start by discussing the traffic. The method to my madness is to diffuse the emotions created by the horrible traffic by acknowledging it, allowing the party to vent and get it “out of her system”. Hopefully, once this emotional trigger is diffused, the parties can focus on what brought them to the mediation: settling the dispute.
So—be cognizant that the emotions being displayed by the parties may well have nothing to do with the dispute at hand. Rather, they could stem from something entirely foreign to the issues. Rather than accept it in silence, ask an open-ended question about it, allowing the other party to explain the cause of the emotion and work through it. Gently confronting the situation will, hopefully, minimize the effect of the emotion on the negotiations and the decisions to be made.
…. Just something to think about.
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