Mediation Advocacy: Priming Mediator and the Opposition with a Collaborative Brand
Can you marry a blog? If so, we're ready to propose to Deliberations, which is packed with more good advocacy tips than we can incorporate into our negotiation blog advice.
Today, Deliberation's Anne Reed brings us the following useful information in The Brand Name Brain.
When we're exposed to a famous logo for even a microsecond, [researchers have] concluded [that] we act out the qualities we've learned to associate with that picture. . .
[R]esearchers [asked] subjects [to] watch[] a screen explaining what they were supposed to do -- but also on the screen, too fast for them to notice, corporate logos flashed momentarily. When subjects turned to the assigned task, which logo they'd seen made a difference:
Subjects who saw the Apple logo, symbol of creativity, thought of more possible unusual uses for a brick than did subjects who saw the IBM logo, symbol of corporate sameness.
Subjects who saw the Disney logo, which we associate with earnestly pure things like Mickey Mouse and Snow White, confessed to more bad behavior (like calling in sick) than did subjects who saw the E! network logo, which we associate with celebrity gossip, honest or not.What it means in real trials
Can lawyers use this? I say yes, but maybe not in the way you think.
There are trial lawyers out there who can use priming to underscore ideas and themes in trial, while still keeping track of where their cross-examination outlines are and whether the client understands what's going on and who's doing the jury instruction argument and whether they brought enough matching socks. . . .
For the rest, here's a message from priming research we can all use. Jurors make decisions without knowing why.
And here's what in means to mediation advocates
Attorneys' initial contacts with the mediator are more important than many realize. As are mediation briefs. But not to persuade the mediator of the rectitude of your position. To "prime" the mediator to be more part of your negotiation team than your adversary's. Of course we're neutral. But, like research subjects and jurors, we make decisions (and form alliances) without knowing why.
What are your mediator's interests? To settle the case, of course. But to do so in a way that makes all parties and all attorneys satisfied with the result and with the mediator's services. So what subliminal messages do you want to send to the mediator before negotiations begin?
- I'm reasonable, as is my negotiation strategy
- I understand that there are weaknesses in my case, which I'll admit to you, Ms. Mediator, for the purpose of attempting to resolve this lawsuit
- I'm collaborative
- I'm bringing my client, who is prepared to re-engage in the conflict, understanding that defensiveness and self-righteousness are not attitudes calculated to achieve peace in the Middle East nor to settle commercial litigation.
- I'm having trouble with my client (for a pre-mediation telephone conference only) and would like you to help me coach him/her/it on any of the following:
- the merits of the case
- the dangers of proceeding to trial
- the unredeemably evil nature of the opposition
- the art of haggling
- the genuine interests -- needs, desires, fears, etc. -- underlying the client's negotiation position
-
- I understand a little bit about my adversary's
- style
- motivations
- position and would like to help you work with him/her/it effectively.
-
- I'll be prepared to make the negotiation moves necessary to settle the matter without fruitless bargaining in the nano- or strato-spheres.
- I recognize that a handshake, a conciliatory manner and the expression of genuine empathy by my client for the party on the other side can dramatically effect negotiations and have alerted my client to the benefits of setting aside rancor, suspicion and judgment for at least a few hours on the day of the mediation.
- if anyone is going to take the larger share of any distributive bargaining delta, it ought to be me.
