[co-author: Glenn Hutchinson]
No two mediations are the same. Not only are the facts of each case different, but the litigants have different motivations, concerns and ways of presenting their thoughts and ideas. The goals and styles of presentation of each litigant and their counsel have a significant impact on the course and ultimate success of a mediation.
While every person is unique, you will encounter certain personality types every day, including at mediation. With that mind, let’s explore six common “challenging” personality attributes and communication styles that are sometimes seen at mediation—and how to address them, should they arise.
The Gambler
This person is seen as a bold risk-taker by those around him or her. He/she likely does not experience fear in the same way that others do. As a result, this litigant may not fear the possibility of going to trial, being cross-examined, or the many negative consequences which can occur at trial the way a “normal” person would. The Gambler may have exhibited lying, cheating or callous behavior during the underlying transaction that led to the litigation and may express the same conduct in the litigation process itself.
How to effectively deal with the Gambler? Some research suggests that the threat of a large financial loss is more compelling than the threat of imprisonment or physical punishment to a Gamber. The best strategy may be trying early, and often, to convince the Gambler that he or she will likely suffer an enormous financial loss if the case proceeds.
The Chronic Procrastinator
Chronic Procrastinators struggle in mediation, because they are either not well prepared or not able to consummate a significant transaction. This may stem from indecisiveness or loss aversion; loss aversion is related to indecisiveness and is a cognitive issue that causes people to perceive losses as more significant than gains of the same amount. In other words, these are people who tend to feel the pain of loss more than the pleasure of gain.
The mediator in this situation is often best served to focus the Chronic Procrastinator on the reality that early resolution is the best long-term strategy, and if the moment passes where a reasonable deal can no longer be reached, it might not be available again. People who experience profound loss aversion often make poor long-term decisions. In these situations, it is best to focus on the big picture with the Chronic Procrastinator and how failure to cut losses now will be more painful down the road.
The Martyr
The Martyr believes that he or she has a purpose in pursuing or defending a dispute based on “principle.” Martyrs want to believe that they are “doing the right thing,” but they are generally fooling themselves because civil cases, which are decided by a judge, jury or arbitrator and almost always culminate in the form of a monetary order/award. After all, how many cases have you handled where a party only wanted to “clear my name” or were satisfied with simply obtaining an apology from another party without any financial ruling?
What is the best way to approach the Martyr? Often it is to make him/her understand that principles are important in life, but the case will only be resolved by payment by one party to the other. There needs to be some acceptance that the case is not just about being right or wrong, but that it involves a monetary resolution. (Of course, it is important not to be dismissive of the stated reasons for the litigation that go beyond financial restitution.)
The Emotional Responder
Emotional Responders sometimes resemble Martyrs, but they also want to punish the other side for something they did/didn’t do. This can evolve into “scorched earth” litigation where a party can become blinded by anger and refuse to consider reasonable settlement offers or demands. The best way to deal with Emotional Responders is to help them understand that regardless of the duration and vigor of the litigation, they can never right the wrongs of the past—and they will only hurt themselves in the process.
The Attrition Warrior
The Attrition Warrior tries to wear down the other party through outspending, strategic delay or both. The hope is that the other party will eventually be forced into an unfavorable position and settle the case. Not surprisingly, the party invoking this strategy almost always has superior resources.
This is one of the most difficult situations to handle because the party utilizing the strategy will keep his/her cards close to the vest and never admit what they are doing. The best way to deal with the Attrition Warrior may be advocating the other party’s position so that the Attrition Warrior may see the potential for his/her plan backfiring at trial.
The Dreamer
The Dreamer may be unsophisticated and be convinced that he/she is holding a winning lottery ticket—or the Dreamer may be a party who is unable to see that he/she is in serious trouble. A good way to deal with either scenario is to educate the party on the reality of the situation. A subset of this category is the party which believes that litigation is essentially an “investment.” We all know that such is not the case. There are too many factors and too many things that could go wrong when a stranger(s) (i.e., a judge or jury) decides the outcome of a dispute.
Regardless of the situation, when trying to change the attitude of another person, it is important to proceed slowly. This is difficult in the mediation context because time is limited. For example, if Dreamers are immediately confronted about their position and told that they are wrong or need to change, it may arouse reactance and cause them to become more firmly entrenched.
Researchers have found that convincing people to do a task in support of the opposite position that they hold can help dislodge them from their position. This creates dissonance (psychological discomfort due to a conflict between their attitude and behavior) which they may resolve by changing their attitude about the issue. This, in turn, helps to bring the parties closer to the middle ground.
The Bottom Line
Personality types and characteristics abound, but the bottom line for mediators (and attorneys) is to get a feel for the types of litigants in the room. Some people may be aggressive in certain aspects of their lives but procrastinators in others. Spending a little time understanding the perspectives of all the parties can help them move to a place where resolution can be found.
*Originally published in the Daily Report and reprinted with permission.
