Do you want to know why good litigators often feel stymied in mediation? It has to do with the fundamental question of a trial vs. the fundamental question of mediation.  

If you use trial consultants for trial, why not use a trial consultant for mediation?  You might just increase your chances of winning. You might also increase the size of your award.

  • Fundamental question in a trial – “Ladies and gentlemen of the jury, can I have some of the defendant’s money?”
  • Fundamental question in mediation – “Defendant (or insurance company), can I have some of your money?”

Obviously, those are two very different questions requiring two very different strategies to get the answer you want. As you begin to ponder and appreciate the need to approach trial and mediation differently, let’s try going off the rails on a crazy train.

Research shows that people feel losses more deeply than gains of the same value, i.e., a loss of 100 dollars hurts more than a gain of 100 makes us happy.  During mediation, these factors are at work. The defense team, including the defendant, hurts more than the plaintiff is happy for every 100 dollars added to the settlement offer.

Mediation fails at the point at which the defense team says “It would hurt too much to add another dollar to the settlement offer” and the plaintiff team says, “That offer doesn’t make me happy.”

When you think about the psychological underpinnings of mediation, it is surprising that mediation works at all. But mediation works all the time; about 90% of the cases that are filed end in mediation.

So, what does a successful mediation look like from a psychological perspective?  There is a common emotional pathway that all successful mediations take.  The scientific research offers some guidance for knowing which emotions are important and when those emotions should be emphasized during mediation.

The manner in which you can get your mediation on the pathway to resolution depends on a lot of psychological and non-psychological factors. If you would like help with the psychological factors, the professionals at Westlake Trial Consulting would be happy to go down that path with you.