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November 2016

Social (Media) Proof: Marketing Mediation in Modern America

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Marketing might not carry the altruistic, save-the-world character of mediation, but marketing may be necessary to save the field of mediation.

Crisis in Conflict Resolution

When mediation was first introduced as an alternative to litigation, its proponents seemed to believe that widespread use of mediation would occur if the public knew about it (one survey in the early 1990s supported this assumption[1]). This view makes sense in light of the flaws of litigation and the ability of mediation to remedy these flaws. Litigation involves risk, expense, and incentives for each side to exaggerate and minimize in a way that hinders the truth-telling potential of courtroom procedure. Because attorneys understand this, they tend to negotiate with opposing counsel and sell settlements to clients who were not directly involved in reaching this resolution. With the psychological benefit of getting to yes shifted to attorneys, it’s no wonder that clients resent lawyers and are often dissatisfied with legal negotiations.[2]

However, despite the rational benefits of mediation and increased public awareness of the process, the demand for mediation has not materialized in the way its early adapters had predicted.[3] There are a number of cultural, psychological, and decision-science elements working against the widespread use of mediation.

First, American culture presents obstacles to mediation. Our collective psyche focuses on individualism over collectivism and the benefits of competition. As a projection of our approach to conflict, our justice system focuses on discerning an objective truth rather than accepting multiple, varied truths in a search for the greater good. And, finally, our culture tends to discredit negotiation, frowning on car salesmen in a way that cultures employing a bartering economy would not.

Next, important psychological elements work against the use of mediation. Though mediation presents a rational choice for disputants, people in crisis are not thinking rationally. Also, people can be conflict-avoidant, preferring outcomes handed down from authorities or accepting their lot through cognitive dissonance. Lastly, people discount ideas coming from adversaries, including offers, counteroffers, and even the suggestion of attending mediation (NOTE: research by Dr. Tanya Menon–one of our speakers for the 2017 OMA Conference–indicates that, while people discount ideas from adversaries, they value ideas from competitors).

Finally, the dynamics of how people with conflicting positions reach decisions also deters the frequent practice of mediation. Often, one disputant is satisfied with the status quo and will not approach the negotiation table voluntarily. Also, openness in a cooperative process exposes the participant to being taken advantage of by competitive adversaries (consider the competition-cooperation dynamics of the Prisoner’s Dilemma). Furthermore, if parties could mutually identify the problem and agree to approach mediation, they likely would be able to communicate effectively enough to negotiate without the assistance of a mediator.

The force of the above obstacles prevents the public from turning to mediation, even when they know that it’s an option. It is not enough to teach the public that mediation exists and offer it alongside litigation. So, how do we overcome these obstacles? I suggest that we look to marketing with effective use of information technology.

Marketing Mediation in Modern America

These days, people get most of their information online. People trust online reviews, satisfy their curiosity through search engines, and believe rumors they read on Facebook. Culture is an integrated pattern of knowledge, beliefs, and customs; and our culture is recorded, modified, and transmitted through the Internet. As a result, behaviors, culture, and decisions are best influenced through online presence. By “online presence” I am referring to your ability to be the subject of online testimonials and be at the top of online searches.

For example, lets say you’re an attorney looking for mediation clients. In addition to the people who are approaching you through personal references and traditional marketing, you want to be seen by potential clients Google-searching “low-cost litigation” or “how to avoid court” along with your practice area and geographical location. If you write an online article about how litigation is cheaper when people avoid court by using mediation and then link that article to your OMA profile or Google business listing, you are more likely to be seen by these potential clients.

While it is not enough that disputants know that mediation is an option, it is possible to use the Internet to convince them through targeting their decision-making process, social proof, and eventually changing our culture. First, though people are generally aware of mediation in a cool-headed state of mind, it is not where their mind goes when they are in crisis. Consider what disputants would Google search when panicking about the subject matter you mediate, then write a blog about that and link your contact information or Google business profile. And even when you have one disputant sold on the idea, you will need to convince the other of your credentials. So, next, use social proof by encouraging satisfied customers to rate and review you online. This means Facebook likes, Google business listing ratings, or reviews on websites that list members of your subject matter profession (e.g., ww.Avvo.com for attorneys). Eventually, people will not only have knowledge of mediation but also experience with it. Innovation research indicates that new ideas “tip” into widespread application when 15% of the population regularly applies them.[4]

The thought leaders who publicized the existence of mediation took the first important step toward a more collaborative society. However, it is now up to the practitioners to reach out to disputants to make mediation a process people turn to when facing crisis.

 

[1] Adr Awareness, 10 Alternatives to High Cost Litig. 148 (1992) (“A recent survey by the National Institute for Dispute Resolution of public attitudes toward ADR reveals that once people understand what dispute resolution processes are, they overwhelmingly choose ADR to settle a dispute, rather than going to trial.”)

[2] Craig A. Mcewen et. al., Bring in the Lawyers: Challenging the Dominant Approaches to Ensuring Fairness in Divorce Mediation, 79 Minn. L. Rev. 1317 (1995) (“In the episodic, lawyer-run negotiation, clients who play a passive and consultative role may believe that their lawyers are doing little and resent the diminished participation in and control over their case. The direct engagement of parties and concentrated attention to negotiation that mediation provides can thus improve lawyer-client relationships as well as efficiency and communication.”)

[3] Robert Benjamin, Guerilla Mediation: The Use of Warfare Strategies in the Management of Conflict (1999) (available at http://www.mediate.com/articles/guerilla.cfm#)

[4] Geoffrey A. Moore, Crossing the Chasm (2014)

Zena Zumeta and Power in Mediation

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On November 11th, the Ohio Mediation Association held its first Fall half-day mediation training.  The event was a success, with many OMA members from the Toledo, Cleveland, and Akron areas, along with a few of our comrades from MANO (the Mediation Association of Northeast Ohio) in attendance.  Also present were a handful of diehard mediators from Columbus and Desiree Lyonette, who won the distance award by driving up from Wheeling, West Virginia.

Our speaker at this event was the nationally-renowned Zena Zumeta.  Zena delivered this training as an interactive skill-building session.  Participants described tough mediations and then acted them out, with Zena and other participants taking turns acting as the mediator.  This format allowed Zena to step back and describe the various approaches and mediation strategies.

My favorite tool that Zena described involved analyzing the source of each disputant’s power and then addressing them in a way that would generate movement.  This idea got me thinking.  An effective mediator is able to bring disputants to move from their initial positions.  When the dispute is not resolved by better informing the disputants of each other’s perspectives, getting people to change their mind involves an exercise of power.  Every dispute is a situation in which each disputant has various powers or potential powers over the other, and at least one party is dissatisfied with the existing power dynamics.  If only one party has all the power, then there is no dispute.  For example, if I’m jealous of my neighbor’s new Lexus, but I can’t afford one myself, then there is no dispute.  But if my neighbor runs over my foot with said Lexus, then my power is the ability to take my neighbor to court while her power is the ability to hire an attorney, pay my resulting medical bills, apologize, or let me drive the Lexus on my next date night.

So, in order to resolve the dispute, the parties mutually agree to relinquish or trade specific powers.  Asking the parties about their feelings about the situation or broad ideas for resolution will not necessarily touch on the power dynamics that are at the heart of the matter.  Mediators must identify the sources of power and get the parties thinking about how they can be leveraged.  I like what Zena did in the role play to make this happen–she got me talking about something of which I had power/control, asked me a “what if” question to explore how I would use this power based on the potential actions of the other side, and then kept asking me for more options of my own potential actions.  Once I had described a variety of ways that I could exercise power over the other disputant, she asked me which one I preferred, which options I could live with as a backup, and then got me thinking about how to offer one option while indicating a willingness to use an option that the other side would prefer less.

While mediators who emphasize the need for impartiality may be uncomfortable with addressing power dynamics between parties, it is my personal opinion that ignoring power dynamics only enables them.  The problems with power imbalance in mediation is that one disputant gets a better deal based on considerations that are not the appropriate basis of a decision between conflicting perspectives (e.g., who can make the other side feel uncomfortable, intimidated, or guilty).  If a mediator ignores these in the interests of impartiality, then the mediator is merely going back and forth, asking the parties to respond to each other, and possibly allowing one party to manipulate the other.  The better approach is to help the parties explore their relative strengths and weaknesses, ask them for a variety of options for leveraging these issues, and then facilitate a negotiation in which both sides feel acknowledged and respected.

Overall, it was a nice training.  The various mediators who were present had an opportunity to apply their preferred approach and compare it to the approaches espoused by other mediators.  It was also good to get OMA out of central Ohio and reach out to our members and other mediators up north.  If anyone is interested in an OMA-sponsored mediation training elsewhere in the state, mention it in the comments under this post or email omapresident@gmail.com.