Mediation advocacy is derived from negotiation theory, and negotiation theory teaches us an art of persuasion fundamentally different from that practiced in litigation. Unlike litigation’s rational, impassioned, and direct argument style of persuasion, persuasion in negotiation and mediation is more likely achieved through gentle, indirect, skillful questioning grounded in psychology and other social sciences. This difference is illustrated by Aesop’s Fable of the Sun and the Wind.
In this fable, the God of the Wind and the God of the Sun are arguing about which of them is the more powerful. To resolve their dispute, they enter into a competition to see who can make the earthly mortal remove his cloak. The Wind goes first. He blows and blows with all of his considerable power. Yet, the harder the Wind blows, the tighter the man clutches his cloak. Despite hurricane-force winds, the Wind cannot blow the cloak out of the man’s ever-tightening grasp. Next, it is the God of the Sun’s turn. The Sun gently shines down upon the man. The day grows beautiful, sunny… and warm. As the sun shines, the man decides, seemingly all on his own, to remove his cloak, and the Sun wins the bet. In this story, the more strategic and indirect triumphs over the direct and more logical exercise of power and perfectly illustrates my theory of the difference between effective persuasion in litigation and persuasion in negotiation and, by extension, mediation.[1]
The terminology used in mediation training to describe this phenomenon is woefully inadequate. Often, trainers talk about facilitative as opposed to evaluative styles of mediation. The evaluative style is sometimes oversimplified and referred to as directive. The directive mediator will generally candidly share their objective assessment of a case with the parties and lawyers. This is an efficient process, similar to early neutral evaluation. An example of a directive mediator would be the way the mediator discusses the liability risk with a party in an automobile accident lawsuit. The directive mediator seeks to impress upon the plaintiff that, on the issue of whether the light was red or green, he may lose the credibility battle to the disinterested bystander, notwithstanding the plaintiff’s unshakeable belief that his light was green. The directive mediator might say: “The defense’s witness wasn’t in the accident and was in a much better position to see the light. And the bystander isn’t a party. He will be much more believable. You are the plaintiff seeking money here. The jury will never buy your story.” This is direct, somewhat confrontational, and, although possibly factual, not effective and unlikely to persuade the party as intended. Confirmation bias causes us to believe those things that are consistent with what we already believe and to reject those that conflict with what we believe. This type of direct approach is more likely to put a party on the defensive rather than it is to influence them. [2] Therefore, instead of accepting what the mediator is telling him, which goes against what he knows he saw, the plaintiff may find the mediator is not neutral, not listening to him, and is instead siding with the other side. A party put on the defensive is more likely to argue with the mediator and counter with their own arguments supporting their beliefs as to why the jury will find them to be credible.
An indirect approach might be to ask, “Are there any risks from the fact that the defendant’s witness is a disinterested bystander?” Many mediators believe this is a facilitative approach. It is not, although it feels facilitative to many. It is still evaluative because, as in the first example, the mediator wants the party to appreciate the risk of losing the credibility battle to the disinterested witness, regardless of what the truth is. The mediator has evaluated this situation and wants the party to recognize this very real risk. It is not a disinterested facilitative approach.
Although both this example and the preceding one are of evaluative approaches, the approaches differ significantly. In both, the mediator’s objective is to raise the prospect of a real risk of losing the credibility battle on the issue of the color of the light. The mediator wants the party to recognize that, regardless of whether the light was factually red or green, a jury may find a disinterested bystander more credible than a party to the dispute who has a motivation to say something self-serving. However, in the indirect and more powerful approach, the party is less likely to respond defensively and more likely to recognize the risks posed by the perceived neutrality of the bystander. This is about causing the idea to be the party’s own idea—as when the man decides on his own to take off his coat—or at least he thinks he decided on his own
This example illustrates the challenge and the power of being the sun rather than the wind in mediation. It is so natural for lawyers to be the “wind.” One possible explanation for this is that our training and professional experience have trained us this way. Throughout law school, lawyers are taught to construct logical arguments, marshal facts, and advocate forcefully. Success in litigation depends on your ability to present a rational argument with a confident belief in that argument. We are rewarded for this by clients who appreciate when their lawyers fight forcefully on their behalf. Judges and other neutral adjudicators rely on our arguments and are, in fact, persuaded by our meticulously and logically constructed reasoning, especially when presented with passion and confidence. When your audience is on the other side, however, your passion may be met with equal and opposite passion, and your carefully constructed arguments may be met by counterarguments, not acceptance and capitulation. This is why litigation advocacy—the wind—is best left in the courtroom.
As discussed above, cognitive biases shape the way you persuade in mediation. How often has your argument, however skillful, changed your adversary’s belief in their own case? How often has your adversary acknowledged your argument and embraced your theory of the case, completely abandoning their own? Instead, how often do you find yourself engaged in a circular argument in which you just endlessly counter one another’s arguments? This is equivalent to causing your adversary to pull their cloak tighter and tighter. The more indirect approach, the sun, is less obvious and more appropriate for mediation. It is much less natural, much more difficult, and much more powerful to cause your adversary to come to the conclusions you want them to come to on their own.
My theory of the wind and the sun helps to understand the ongoing challenge of opening statements in mediation. First, the purpose of an opening statement is to speak directly to the other side. You likely have already spoken to the mediator in a pre-mediation conversation and will continue to speak to the mediator privately throughout the mediation. Some mediation advocates view the opening as an opportunity to demonstrate to opposing counsel and party their own zealous advocacy and persuasive arguments. Ask any mediator who has to follow this type of opening in private caucus with the recipient of your arguments. Positions are often hardened, and emotions are intensified. This is true whether the more litigation-focused opening is directed toward the mediator or the other side.
While the explanations for why the joint session so often implodes are many, one reason is illustrated by the wind and the sun paradigm. The entirely rational presentation of facts and law—a litigation-style opening statement—is a direct assault on what the other side sincerely believes. This is the equivalent of a hard-core liberal having to listen to Sean Hannity or a hard-core conservative having to listen to Rachel Maddow. This is the cognitive bias referred to as confirmation bias and discussed above. An opening statement that takes direct aim at what one’s adversary sincerely believes—client and often lawyer—is incapable of persuading. Instead of changing minds, an adversarial opening will make the true audience, opposing counsel, and their party angry, distrustful, and defensive.
The more persuasive approach is the more challenging, more strategic, more nuanced indirect approach, including expressions of sincere empathy and validation of emotions while not validating legal arguments or factual predicates. The goal of this approach is not to persuade, but to build rapport and trust, and in the interest of furthering opportunities for collaboration. This approach is the best possible approach, but even this approach is fraught. Another powerful psychological principle is reactive devaluation: we have difficulty separating the message from the messenger. In a relationship devoid of trust, negotiating partners sitting on the other side of the table may not accept the sincerity of your message, regardless of how skillfully you deliver it.
Another powerful cognitive bias in mediation is anchoring. Anchoring is the tendency for random facts or numbers to influence our thinking and our evaluation of options. Anchoring is a strong and pervasive cognitive bias. One experiment is to prime a set of subjects by asking them to think of the last four numbers of their telephone number. They are then asked a question to which they likely do not know the answer, such as how many countries are on the continent of Africa. Over and over, testers find that those with high telephone numbers, 9999 for example, guess a higher number of countries than do those whose telephone numbers are lower, 0001 for example. Real estate agents may argue that listing prices are irrelevant, but studies have found that listing prices do, in fact, influence selling prices.[3] Anchoring is the reason why, when a claimant opens aggressively, a respondent will often adjust their offer upward above where they had planned to open rather than re-anchor with a justifiable low counter.
Anchoring is not without risks because it is so powerful. Parties influenced by anchoring may give away too much too soon, like when the defense moves their planned opening up considerably in response to an anchor. The reasoning I have often heard for why the defense might do this is that they don’t want to derail the negotiation or insult the other side. But this approach, rather than a re-anchor substantiated by objective criteria, may give their counterparty, the plaintiff, unreasonable expectations as to the possible deal. With this mistake, a deal that should close may reach an impasse due to all the mixed signals. In addition to helping parties appreciate risk, mediators also coach in negotiation. Mediators can help parties appreciate the impact of anchoring and how to effectively use this very powerful and indirect distributive bargaining tool. Anchoring is indirect and has a strong psychological impact. We are repeatedly influenced by random or unimportant numbers without realizing it. Skillful anchoring can improve a party’s deal.
Used properly, anchoring is likely to influence a party’s bargaining behavior in a way that may improve your result. The direct approach, the wind, is to argue about how strong your case is and how weak theirs is. How high, or low, the verdict will be. This direct approach will cause the other side to respond defensively—to argue and to counter—metaphorically, it will cause the other side to pull their coat even tighter around them. With anchoring, parties are often influenced without even realizing it.
Generally, litigators need to consider the existing perspectives and beliefs of the people they seek to influence and recognize that the force or rationality of their arguments may have less power in a negotiation than in court. Effective mediation advocacy depends less on the force and rationality of your argument than on your ability to influence how the other side sees the problem. The true power to persuade in negotiation comes from using the more strategic, more indirect, less intuitive approach. Negotiators who recognize this distinction are far more likely to achieve success. In negotiation, the power of the sun is greater than that of the wind.
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[1] Mediation is a facilitated negotiation. Negotiation theory is mediation theory.
[2] Kahneman, Daniel, Thinking Fast and Slow (Farrar, Strauss and Giroux, 2022) at 79-88, 324
[3] Yunchien Chang, Kong-Pin Chen & Chang-Chin Lin, “Anchoring Effect in Real Litigation: An Empirical Study,” Coase-Sandor Institute for Law and Economics Working Paper No. 744 (2016); Grace W. Bucchianeri & Julia A. Minson, “A Homeowner’s Dilemma: Anchoring in Residential Real Estate Transactions,” Journal of Economic Behavior & Organization, vol. 89 (2013), pp. 76-92.
