Thanks to Professor Jen Reynolds of the University of Oregon and her post at the ADR Prof blog, I was alerted to an interesting study on the use of fear and guilt in mediation. The study appears in the latest issue of the American Bar Association’s Dispute Resolution Magazine at pages 26-29.
The authors rightly note that many mediators would recoil at using fear or guilt to motivate a party to accept a settlement. The interesting question they ask is whether or not it works.
The example they give is a mediation of an employment discrimination claim. A fear-based approach is to emphasize the impact of the negative facts on the future job prospects of the claimant in a weak economy. A guilt-based approach is to emphasize the single woman’s financial obligations to her son and how she would feel if she went to trial and lost.
After reviewing the social science literature, the authors conclude on fear-based approaches that “appeals that generate the most fear can be the most effective, so long as they convey both serious problems and strong, feasible solutions.” On guilt-based approaches they conclude guilt persuasion can work, but unlike fear-based approaches, they can go too far: “as they become more intense or explicit, they become dependably less persuasive”. A most interesting conclusion from a dispute resolution perspective is that the effects of fear and guilt can be fleeting.
What are some of the “best practices” that might arise out of the research? The authors highlight some practices an evaluative mediator might want to consider:
- • well-executed fear appeals by mediators may enhance participant self-determination, at least in some cases.
- • directness, if not bluntness, in describing the severity of the risks and consequences of non-settlement options may be necessary to trigger real openness to change.
- • since effective use of fear depends on realistic recommended solutions, a negative evaluation may not be persuasive unless conducted relatively late in a mediation and only after a fair bit of caucusing.
Guilt-based approaches are much trickier: “finding a level of intensity that arouses motivating guilt but avoids psychological reactance seems difficult under any circumstances. If overdone guilt messages typically trigger resentment and anger”.
The authors note that one of the drawbacks of fear and guilt in resolving disputes is the impact on lasting settlements. If fear and guilt are fleeting, will disputants continue to abide by the terms of an ongoing settlement?
The authors then ask the most important question:
“Are such “negative” emotional appeals an appropriate exercise in mediator persuasion?”:
If one thinks closely about the so-called “negative” emotions of fear and guilt, they are not really negative at all. Fear, of course, is highly adaptive when it helps humans escape danger or minimize risk. The ability to empathize with those we hurt is at the root of conscience and is what enables us to act morally toward one another. 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 disputants come to terms more fully with the negative effects of their behaviors on others, thereby developing greater objectivity about their situation. So long as fear and guilt appeals are not exaggerated by the mediator, both kinds of interventions can produce more fully considered decisions — the kinds of outcomes every neutral should want to endorse.
I agree with Professor Reynolds that whether non-exaggerated fear/guilt appeals actually enhance self-determination and objectivity is a conversation worth having.