Recently, I excerpted the expressed concerns of in-house counsel about ineffective mediators. Among the complaints was some mediators' refusal to see or acknowledge the other side's "irrationality" As Where's the Magic from the U.K. online Mediator Magazine noted:
It can be frustrating where they [the mediator] can see the irrationality of the other party, how their claims and positions are unsubstantiated, and choose to ignore it,' says Frank Aghovia, legal adviser at Exel Plc. He continues, 'It's like saying, "I know he's talking out of his backside, but can you give him what he wants anyway." He concludes that 'steadfast neutrality is irritating and wastes time.'
Reality-Testing
Helping litigants and their attorneys reassess their case is one of the mediator's greatest challenges. The mediator intervenes only after the parties' dispute has reached stalemate. Each party to a stalemate has negative attitudes about his adversary that are maintained and prolonged by three psychological mechanisms: selective perception, self-fulfilling prophecy, and autistic hostility.
Selective perception: people tend to select those perceptions that tend to confirm their existing attitudes, and ignore or discount information that would disconfirm their existing attitudes.
Self-fulfilling prophecies: people with negative attitudes about their adversary engage in conduct that provokes the adversary's "expected" response, which confirms the party's original expectation, and a vicious cycle ensues.
Autistic hostility: Parties in litigation have stopped talking with one another about their dispute, communicating only through their attorneys. The social scientists would say that such people are "stuck in autistic hostility, that is, their hostility is perpetuated by their refusal to communicate."
(for a full discussion of these and other conflict dynamics see CR Info's Book Summary of Social Conflict: Escalation, Stalemate and Settlement by Dean G. Pruitt and Jeffrey Z. Rubin).
When the parties are in this frame of mind -- particularly after years of highly contentious litigation -- they genuinely believe that the other side is either completely irrational or downright evil.
So how does the mediator reality test in this climate of anger and distrust while continuing to maintain his ability to work effectively with both parties.
Peter Robinson, co-director of the prestigious Straus Institute of Conflict Resolution in Malibu, California, tackles this problem by way of a hypothetical. He assumes that one side believes his adversary came here from another planet via UFO. What should a mediator -- who needs to retain the trust and confidence of both sides -- do?
Robinson answers his own rhetorical question in this fashion:
When talking to the UFO-guy, I am totally with him. Listening, asking questions, trying to understand whether his delusion actually has some hidden meaning that might suggest a way to resolve the dispute without asking the other party to "buy in" to the UFO story.
After giving Mr. UFO an opportunity to have his say and to experience -- perhaps for the first time ever -- another human being's willingness to temporarily suspend his disbelief -- I begin to gently "reality test." To do so, I do not have to doubt Mr. UFO's story. I can suggest, however, that not everyone is as understanding as I am.
"Have you told this story to many people?" I might ask. "And what has their response been?" Do you have any reason to believe that a judge or jury might be more likely to believe this narrative of events more than, say, your mother, sister, cousin, wife, best friend, etc. were?
Robinson's suggested action between the rock of understanding and the hard place of consensual reality is shrewd and effective. It neatly avoids the problem recently raised by my friend and colleague Jeff Kichaven who has likened piling rationales atop one another for the purpose of changing another's mind to raising your voice for the purpose of communicating with a deaf man.
Harvard Business School professors Deepak Malhotra and Max H. Bazerman address the irrationality problem in another fashion in their tremendously useful book Negotiation Genius.
"Whenever our students or clients tell us about their 'irrational' or 'crazy' counterparts," they write, "we work with them to carefully consider whether the other side is truly irrational. Almost always, the answer is no."
Malhotra and Bazerman list the mistakes that lead us to call our negotiating partners "nuts," "delusional" or "evil" as follows:
Mistake No. 1: They are Not Delusional, They are Uninformed.
If you can educate or inform your bargaining partner, say Malhotra and Bazerman
about their true interests, the consequences of their actions, the strength of your BATNA, and so on - there is a strong likelihood they will make better decisions . . . [I]f someone says "no" to an offer that you know is in her best interest, do not assume she is irrational. Instead, work to ensure that she understands why the offer is in her best interest. She may simply have misunderstood or ignored a crucial piece of information.
Mistake No. 2: They are Not Irrational; They Have Hidden Constraints
In negotiation, a wide variety of possible constraints exist. The other side may be constrained by advice from her lawyers, by the fear of setting a dangerous precedent, by promises she has made to other parties [this is a particularly common constraint in IP infringement actions] by time pressure and so on. [D]iscover these constraints . . . and . . help other parties overcome them . . . rather than dismissing others as irrational.
Mistake No. 3: They are Not Irrational; They Have Hidden Interests
[P]eople will sometimes reject your offer because they think it is unfair, because they don't like you [or are tired of feeling as if you don't like them] or for other reasons that have nothing to do with the obvious merits of your proposal. These people are not irrational; they are simply fulfilling needs and interests that you may not fully appreciate. . . [I]nvestigate: "What might be motivating her to act this way? What are all of her interests?"
But What if They Really Are Irrational
If your counterpart truly is irrational -- in other words, he is determined to work against what is in his best interest -- then your options will be fewer. You can try to push through an agreement despite his irrationality, you can try to "go around him" by negotiating with someone else with authority who seems more willing to listen to reasons . . . or you may decide to pursue your BATNA because his irrationality has eliminated all hope of creating value.
I have a friend who is, literally, a rocket scientist. He says that there are no problems which cannot be solved -- only problems that we don't yet understand. This is as true in negotiation as it is in rocket science. In both cases, the wisest course is to assume you know nothing and begin asking the type of questions that would help learn something.
UPDATE: Here's the California Supreme Court Opinion thanks to the American Constitutional Society Blog with Yale Law School Professor William N. Eskridge, Jr.'s short commentary. 
I've blogged several times about bullying, both 
Thanks again to IP attorney 
Negotiating litigators may want to note that all of the conditions giving rise to "competitive arousal" are the day-to-day conditions in which litigation is conducted, i.e., intense rivalry, especially in the form of one-on-one competitions; time pressure . . . ; and being in the spotlight—that is, working in the presence of an audience. 
