Monday, November 23, 2015

Getting Beyond Emotion in Mediations

Wendy Fassberg
Legal research and scientific research -- especially in the psychological realm -- overlap from time to time. A recent article in the ABA Journal was titled "Mediators find more tools through neuroscience" discusses how decision making in mediation may not be as logical and rational as we once thought.  

Division 1 Member and Mediator Wendy Fassberg has seen this first hand in her practice in Los Angeles County, California.  Wendy's practice focuses on mediation involving homeowner association disputes, with a particular emphasis on construction-defect issues. The article below outlines how mediators need to focus on the emotional aspects involved in getting to settlements in that context in particular, but it applies across the spectrum in the construction industry.  We thank Wendy for graciously providing this article to Division 1.

Getting Beyond Emotions Typically Present 
When Mediating with Common Interest Developments

by Wendy J. Fassberg, Esq.

Too often, disputes arise between the end users in common interest developments and the design and construction team that developed, designed, and built the subject property, whether the project is a condominium community, a gated community, or a mixed use development.   What the design and construction professionals must understand when trying to resolve these types of disputes is that, notwithstanding the fact that they may be dealing with a board of directors or officers of the HOA, the individuals with whom they have their dispute are homeowners dealing with their homes.  Most disputes that involve homeowners are emotionally charged.  The parties come to the table angry, resentful, hurt, fearful, or feeling vengeful.  Paradoxically, these emotions can be present even in a purely business, market relationship.  So, they are understandably a factor in many homeowner disputes where the issues are typically very personal. 

One of the greatest impediments to the successful resolution of conflict is emotion.  Under a behaviorist approach, it is posited that because the parties are in conflict, they are so embroiled in that conflict that they experience a high level of stress, which causes them to put blinders on and to hyper-focus only on the conflict.  They have no peripheral vision which would allow them to see how this conflict integrates into the rest of their lives.  They have the selectivity of considering only their own position, often consulting family, friends, and fellow HOA members for opinions that are, of course, guaranteed to boost their sense of confidence.  This leads to an inflated sense of power.  And sometimes the attorneys get just as invested in the conflict as their clients. 

But, if there is so much emotion involved, can mediation actually be effective in connection with these disputes?  There are several ways that emotion laden parties can improve the chances of resolving their dispute at mediation.  The first is to recognize when emotion rather than reason is directing their actions.  Once having acknowledged this important fact, there needs to be an understanding that when trying to resolve a dispute, the existence of emotion as a driving factor generally works against one’s own interests.  Therefore, ideally emotions should be checked at the door before entering the mediation.  This can be accomplished by stepping back from the controversy, and thinking through the ramifications of moving forward with litigation or other similarly costly alternatives.  Sometimes parties can do this on their own before mediation, and sometimes they need help.  The mediator is hired to be the one who is not in a state of conflict, and who is charged with remaining clear and mindful of the big picture.  It is the mediator’s job to help shift and change the parties’ thought process.  This includes working to bring the parties to the understanding that there are emotions present and how those emotions affect their decision making.  The mediator must then coax the participants back to a place where they can rationally evaluate their options and their alternatives.  For example, because mediation is conducted in a somewhat informal setting relative to arbitration and litigation, but one which is nonetheless overseen by a mediator, the parties can feel free to express their emotions during mediation.  This can sometimes provide a path toward rational decision making.  It is the ability of a party to “let it all out” that clears the way for them to compromise and reach a settlement.  Sometimes people just want to be heard.  Some are satisfied to tell their story and vent to the mediator, and some demand that the other parties hear what they have to say.  Design and construction professionals and their counsel must be mindful of this and accept, even invite this release in mediation.  Once having been heard, these parties are often ready to ramp down and look at practical solutions. 

Timing can also play an important role in getting past emotional barriers in mediation.  If it is convened prematurely, and one or both parties’ emotions are still raw and exposed, the mediation can fail to yield a settlement.  On the other hand, given just a little time and space, and an intuitive mediator who understands the dynamic of the situation and who recognizes very quickly the frame of mind of each party, most of these disputes can be resolved.  Another common problem with parties who enter mediation emotionally charged is that they are constantly “looking sideways.”  Looking sideways is where a party is more interested in how the other side is benefiting than in whether their own interests are being met.  This can serve as a severe obstacle to settlement.  It is important when this happens for the mediator to get the party to step back and focus on their own portion of the settlement, and how they will benefit from resolution.

At the end of the day the dispute belongs to the parties.  Assuming that the parties have any interest in resolving their dispute, it is incumbent upon those parties to do everything they can, including controlling their emotions, to try to achieve a resolution that best satisfies their interests taking into account all of the relevant circumstances.  But it is up to the mediator to read the situation and to utilize the most appropriate tools with which to help the parties to get past their emotional barriers and to make rational, informed decisions.  Consequently, working with a mediator who comes equipped with the essential tools and who knows how to use them is key.

Wendy Fassberg, Esq. is the president of Fassberg Mediation Services, Inc.  She is a private commercial mediator with a comprehensive background in real estate, construction and common interest development matters.  She can be reached at

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