James Stark and Douglas Frenkel have published Using Fear and Guilt to Persuade: What Might Empirical Research Tell Mediators? in the Winter 2013 Dispute Resolution Magazine, pages 26-29. The article’s opening scenario describes the predicament of a mediator who is working with a plaintiff who is getting “less reasonable as the mediation progresses” and appears not to understand the risks and opportunities of her situation. The mediator considers what to do next:
One option is to try to evoke fear, saying, for example: “I think you have a substantial chance of losing at trial. Win or lose, the incident in which you ‘dissed’ your employers in front of your co-workers will almost certainly be rehashed in detail. … With so many people looking for work in this economy, your conduct — even if it was justified — may look bad to a jury…”
Another approach is trying to tap into her possible guilt, for example: “I know you’re a single mom who has been struggling lately to raise your teenage son, first on your unemployment benefits and now with part-time work. How will you feel about how you fulfilled your obligations to him if — after a long wait for the trial — you lose your case, knowing that you had the chance to receive some decent money in mediation but turned it down?”
This opening is designed to make even the most evaluative mediator uncomfortable. Fear and guilt as mediator tools? The authors readily admit that their investigation presents normative concerns. They devote themselves first to a descriptive/empirical analysis of fear and guilt appeals and then consider the normative implications.
Although the details are worth reading, the empirical upshot is that strong fear appeals are quite persuasive so long as they also recommend feasible, effective courses of action. Conversely, strong guilt appeals are not as persuasive, in part because they cause “psychological reactance” such as resentment or anger that counteract the intended effect of the guilt messages. Yet strongly worded anticipated guilt appeals (“think about how bad you’d feel if …”) do not appear to cause this same psychological reactance, and so may be useful persuasive tools.
There’s so much more, and I encourage you to read the article. I especially enjoyed the brief normative discussion at the end. Whether non-exaggerated fear/guilt appeals actually enhance self-determination and objectivity (by curbing overconfidence, for example) is the fascinating proposition the authors leave us with. I would love to continue that conversation.
Is Stark and Frenkel’s article a hidden chapter in 1984? It’s quite offensive to see that professionals in a growing field (that already has its fair share of critics) would publish an article stating some of the benefits to using fear and guilt. Fear and guilt have a place in parenting, but certainly not when someone is in a position of authority.
I find the following quote from the authors quite disheartening:
“In the context of mediation, a healthy dose of fear induced by the mediator may help disputants reconsider overly confident decisions that may not be in their long-term interest. A dollop of induced guilt may help”
How do the authors recommend reacting when their clients realize the tactics being used against them? The upshot of fear and guilt certainly do not seem to outweigh the possibility of making a client upset.
I think the issue that a mediator must think about when using certain appeal tactics is whether or not what they are saying is truthful, or if they are just trying to bully their ideology on the client. I think it is fair and even part of the process of mediation to lay out all the potential outcomes and how each decision might affect the client and their case. Showing the client the potential pitfalls to litigation as well as the brightsides to litigation gives the client a full range of expectations. Conversely, giving the client the full range of pros and cons in ADR processes also helps them to see that ADR can be a way that they can feel heard and understood. I think that laying out all the possible outcomes makes the client feel like they are in control and by doing that they trust those giving them advice, which could in turn make the client take the mediator’s advice without having to resort to using fear/guilt tactics.
I think this article brings up an a very interesting idea in the use of fear and or guilt by a mediator to influence a plaintiff. Ideally, the mediator plays the role of a neutral and advocates a solution that satisfes both parties, a “win-win” that could be accomplished without resorting to the use of such tactics. However, I can also understand the author’s arguments that there can be some situations where the use of fear and or guilt can actually be beneficial and play a pivotal role in accomplishing a “win-win” solution. When used properly in the right situation and the right scenario, the fear/guilt may allow a plaintiff to step back and view the situation more objectively and become more amenable to a compromise. If that is the case, then it may be arguable to say that the mediator would be doing the parties a disservice by not using fear/guilt to compel both parties in striving towards a solution that would allow both sides to benefit. Regardless of whether or not a mediator chooses to use fear/guilt, I think this article reminds us that no matter how much parties are told to look at the underlying interests; this can be very difficult to do in reality.
Playing the “emotional guilt card” is poor, IMO. It is a tactic that should have been laid to rest centuries ago. It has no place in contemporary mediation.
Fortunately, with the advent of the information age, employers can’t do what they used to do and neither can mediators. Revealing information about psychological tactics is now available everywhere. More and more people are becoming internet savvy and read how this all works. Some of us will even go out of our ways to make sure people know what these tactics are just because they are really not clever at all. More threatening than anything else and leaves more psychological damage than it eleviates.
Jen, thanks so much for posting this. Jim and Doug, thanks for writing your piece.
Like Michael, I think that the identity of the mediator, and his/her relationship with the parties, will matter in the use of guilt and fear. Further, I think that a mediator who cares about maintaining the trust reposed in her will be very careful in her use of guilt and fear. Certainly, she will (and should) provide the sort of “bad news” that Cynthia has described–but in order to educate and help the parties make rational decisions, not in an attempt to overwhelm their cognitive abilities with negative emotions.
I guess I’m generally uncomfortable with the whole idea of making intentional use of guilt and fear in mediation. That may mean fewer settlements–but so what? Shouldn’t a party who is risk-seeking, or even risk-neutral, be allowed to undertake that risk? Yes, that party must understand that she may lose what could have been a decent settlement–and that may indeed be something to fear–but there is also fear associated with accepting a settlement that is patently unfair and then being unable to look in the mirror (or in your children’s eyes) and be proud of the person you see.
These sorts of needs (and fears) also are relevant to a party’s self-efficacy. I think they’re also relevant to mediation’s “fundamental” principle of self-determination–and to the provision of procedural justice in mediation.
Long ago, I proposed an automatic cooling-off period that would be required to expire before a mediated settlement agreements would become binding upon the parties. Perhaps it would make sense to return to that idea. Mediators could then use guilt and fear, but these mediators would also bear the risk that “their” settlements might unravel (which is not really such a significant risk after all, when compared to the risk borne by the parties in entering into settlements). In the face of such a risk, I suspect that mediators would (consciously or unconsciously) tend to moderate their use of guilt and fear. And obviously, I think that would be a good thing.
Thanks for a provocative post.
Nancy
Thanks Jen for starting this interesting discussion. When I read Stark and Frenkel’s piece I immediately thought about the use of fear in the context of plea bargaining criminal cases. Without the benefit of knowing the empirical research, most criminal practitioners instinctively understand the persuasive power of fear. And, fear is built into the structure of our criminal justice system. The maximum penalties for offenses have grown over the last many decades and as the possible penalties have increased, “taking the deal” can look like a better and better option—due to the fear of getting the maximum or a lot more time than the offered plea deal. Some have argued that no one ever really expects the defendant to get the maximum (Stefanos Bibas compares this to paying the sticker price when buying a car). But, these maximum penalties build fear into the criminal justice process.
When I was practicing, I did notice, as Michael observed, that who was giving the information could make all of the difference. If a defendant was not accepting a plea deal, judges would say something like, “Mr. Smith, do you understand you could get a maximum of 20 years in prison and the prosecutor is offering you 8 years in prison and that if you don’t accept that offer, you could get the maximum of 20 years?” Often this simple statement delivered by a judge, and not me, was all that was needed to change a defendant’s mind. There are issues and questions about judges making statements like this. But, in my experience, it happened frequently and often held more credibility than when I said the same thing to my clients.
Understanding that fear can be so persuasive leads to serious questions. Is it manipulative to use it? Should things be understated to not spark a fear reaction? And, what if the fear is legitimate and you want your client, to understand and take it seriously? Would it then be a problem to be more subtle in explaining the possible consequences? In the context of plea bargaining, the reality is that defendants who don’t take the plea deal will get a sentence that is on average three to five times worse than the plea deal (and maybe more). In the context of our current system, a lawyer who fails to explain that in a way so the defendant can understand is failing in their duty to their clients. The fact that fear is imbedded into the structure of the criminal justice system indicates a problem with the system as a whole and this research makes it all the more troublesome.
As a law student with very little real world experience when it comes to mediation, I have a positive view of mediation. It is my understanding that mediation can be very beneficial, as it aims to save parties time and money while also helping each side come to an agreement. It is also my understanding that one of the main goals of mediation is to help both sides come to an agreement that each is happy with. With that said, I am concerned about how the article tends to use more deceptive techniques to get each side to come to an agreement. Can this type of mediation really be considered successful if a party’s willingness to agree is based on nothing more than tactic? That is, if the party later find out that they actually did have a fair shot of success in court and they made their decision based on the mediator’s encouragement I do not think the party would view the mediation as successful. If nothing else, I feel that mediators who employ this method should encourage parties to have a lawyer review the mediation’s outcome.
Thanks, Jen, for posting this.
The set of questions I keep coming back to as I think about this piece is about whether we know much about the effects of these different messages when they come from different mediators. Or, put more articulately, if a bit bluntly, “Doesn’t the effect of statement X by a mediator depend heavily on how the parties perceive the mediator to begin with?”
I can imagine some parties I’ve had in recent years responding very differently to statements coming from Mediator A than they would from Mediator B, even if the mediator intervention was essentially the same from both. And if that’s true for “regular” mediation moves, I guess I’m imagining that this variability is probably even more pronounced when it taps into parties’ emotional or psychological reactions to mediators’ statements.
I’m not sure what leads me to conclude that they’re good/bad necessarily. Just that I’d be even-more-than-usual cautious about declaring something good/bad out of an intuited recognition that different mediators might create different effects on parties’ decision-making.