Leonard Riskin and I have written an article that will appear in the summer issue of the George Mason Law Review. Because we are concerned that many mediation sessions are characterized by a narrow, law-and-litigation-oriented problem definition, the article proposes several mechanisms to encourage parties to choose the problem definition for their mediation. Do they want the mediation to focus exclusively on the legal and litigation issues? Or do they want the mediation to allow for a broader problem definition? What other issues do they want to address?
We think that offering this choice to the parties is particularly important for mediation sessions that involve a one shot player facing repeat players (including the one shot player’s own lawyer). Some examples include personal injury cases (if we assume that the plaintiff is really negotiating with the insurance company rather than the insured), employment matters, consumer disputes, and claims by and against governmental agencies. The repeat players are likely to assume and prefer that the mediation will have a law-and-litigation focus. Meanwhile, a significant percentage of one shot players have strong emotions that they bring to the mediation. They may want the emotional impact of their disputes to be a legitimate part of their mediation session. And, of course, one of the great promises of mediation is its potential to incorporate and deal productively with emotions.
But how? Can strong emotions really be part of the problem definition of—or one of the problems to be resolved in—these sorts of mediations?
Len and I decided to adopt the concept of “core concerns” introduced in Beyond Reason by Roger Fisher and Daniel Shapiro. Fisher and Shapiro observe—pretty convincingly, I think—that it can be quite complicated to deal directly with emotions in negotiation. Negotiators need to make decisions about their own behavior, behave in the manner they have planned, notice the impact of their behavior on themselves and the other negotiator, understand what emotions they and the other negotiator are feeling, make another decision about how to behave, etc. It’s a lot to do, no doubt about it. Meanwhile, there’s lots of research showing that we lawyers are not too keen on dealing with emotions and personal impacts. So, Fisher and Shapiro propose that negotiators focus on five core concerns that are the source of many of the emotions expressed in negotiations. These core concerns are: appreciation (the desire for our thoughts, feelings and actions to be valued); affiliation (the desire for connection or positive relationships); autonomy (the desire for respect of our freedom to make important decisions); status (the desire for recognition of our standing); and role (the desire for a role and activities that are fulfilling). If negotiators attend to these core concerns, they can trigger positive emotions and respond to negative ones.
One of the great advantages of Fisher’s and Shapiro’s approach, of course, is that it requires a negotiator to attend to only five core concerns, rather than trying to notice, interpret and respond to countless emotions. Len and I think that’s an advantage for mediators, too, even though a mediator’s distance from the dispute and its dynamics may make it easier for her to deal directly with emotions. Conceptually, it’s also just easier to understand how core concerns could be used to help craft a resolution, while emotions can only signal the need for some kind of resolution. It may be that understanding this relationship between emotions and core concerns is just as useful as understanding the relationship between positions and interests.