I saw a blog on the Program on Negotiation (PON) at Harvard Law School’s web page written by its staff (January 12, 2017) entitled “How Mood Affects Negotiators”. It caught my attention because I had just witnessed this effect in two of my mediations.

Recently, I held two mediations on the same day- one in the morning and one in the afternoon with the same plaintiff’s and defense counsel. The only new party in each mediation was the actual plaintiff. All of the other participants were “repeat players”.

The first mediation took a little longer than expected, and the parties settled for much less than what Plaintiff and counsel had initially hoped, and for much more than the defendant had wanted to pay. In short, both the parties and their respective counsel were not happy with the settlement but were glad that the matter was resolved. Further, much emotional energy was expended in resolving the matter by all of the “repeat players”.

So, we moved on to the second mediation. As mentioned, the only new party was the actual plaintiff. After speaking with plaintiff and counsel for a little bit to gain an understanding of the dispute, I asked what was the demand. Counsel made a demand that I believed the defense would consider unrealistic. I told counsel so. The response I received was to the effect that counsel was angry about resolving the first matter for such a “low” amount and should have never agreed to do so. So, counsel was going to aim “high” and be unrelenting. I could also sense that the negotiating of the first mediation appeared to take a lot out of counsel, i.e. used up a lot of energy or glucose.

When I walked into the defense conference room, I explained what was the demand and the rationale: that plaintiff’s counsel believed that the earlier matter had settled for much too low an amount. The response I received was essentially that this second matter was a wholly new and different matter having nothing to do with the first and so they should not be linked in any way.

This is easier said than done. As explained in the PON blog post, our emotions carryover from one event to the next. Further specific emotions such as happiness, sadness or anger do influence our decision making. Thus, a sad mood will decrease our trust in others and have a negative effect on the outcome of negotiations. (Id.) Despite our best intentions, our emotions do indeed affect our thoughts and behavior and thus the way we negotiate and the demands we make to resolve a matter. (Id.) This is so, even if those emotions arose from something totally unrelated to what we are doing now.  A prime example is getting delayed in traffic or sitting in a traffic jam. The frustration and anger one feels as a result of that unpleasant event will spill over and affect a subsequent negotiation. (Id.)

Needless to say, the second matter did not resolve. Between the emotional carryover and the extreme expenditure of energy in resolving the first matter, the stars simply were not aligned to allow resolution. The “repeat players” were simply too emotionally and physically exhausted to carry on.

The antidote suggested by the PON blog is to recognize the linkage. Be aware that the traffic jam is affecting your mood and try to disconnect the linkage.  Once the linkage is recognized, a mood improver may be needed. This may require taking a walk, grabbing something to eat to increase your blood sugar (and thus lift your mood) or otherwise engaging your brain for a few moments in some mindless activity like solitaire, a crossword puzzle, Sudoku, et cetera.  But the important thing is to recognize that our emotions do spillover despite our best efforts otherwise. As much as we would like to believe we are rational beings, we are, in truth, emotional souls.

… Just something to think about.


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