Fear defeats more people than any other one thing in the world.
—Ralph Waldo Emerson
Of all the liars in the world, sometimes the worst are our own fears.
If you think you can or think you can’t. Either way you are right.
May your choices reflect your hopes, not your fears.
* * *
Fear is a prime emotion, along with anger; disgust and contempt; happiness; sadness, and surprise.
Anxiety is classified within fear and is usually defined as a state of distress in reaction or anticipation of novel, threatening, or difficult situations.
On a biological basis, anxiety usually triggers the “fleeing” emotion and response, rather than the “fighting” reaction, since the latter is generally tipped by anger. Anxiety is often difficult to hide as it may be visible in facial expressions, voice, hesitation, pacing of words, and bodily movements.
And anxiety and fear affect performance.
Public speaking is one of the biggest fears of most people. Over the years, lawyers have told me that they often have butterflies in their stomachs until the first few sentences are completed.
Once “in the zone,” most lawyers become calm and focused. Even famed trial lawyer Gerry Spence acknowledges the fear and anxiety inherent in practicing law, stating:
Even after all these years, when I go into a courtroom I still feel fear. People’s lives and my career are in my hands. … I am as afraid as I was when I was a young man trying my first case. I am only better at admitting it. And the question for me has always been, how do I deal with that fear? …
[O]ver the years I’ve found that my fear can be a powerful gift. First, I’ve never known a dead man who was afraid. Fear reminds me I’m quite alive. I’ve never known anyone who cared, who was facing something difficult, who wasn’t afraid—afraid of failure. If we aren’t afraid it means we don’t care. Fear leads us to the better parts of us.
Gerry Spence, Win Your Case: How to Present, Persuade, and Prevail—Every Place, Every Time, 51-52 (St. Martin’s Press 2007).
It is not productive or healthy to deny fear and anxiety.
Some studies have found that moderate levels of stress improve both cognitive and physical performances. Adrenalin is a by-product of stress induced by anxiety. Anxiety is a two-edged sword that can be wielded in a beneficial manner.
Preparation reduces anxiety. Mastering the information underlying all aspects of a case or transaction minimizes anxiety arising from concerns of being surprised. Preparation instills a quiet confidence within you that can easily be projected to opposing counsel, the mediator, and other participants in the process.
Mediation 101 training begins with the basics of creating a safe and non-threatening environment for the participants. This is especially applicable in processes involving interpersonal conflict, such as matrimonial, family business or inheritance disputes, employment, and other cases involving prior close business or personal relationships.
Many mediation centers, and individual mediators who conduct sessions in their own offices, have found ways to make the environment safe, comfortable, and convenient for the participants. One prominent California mediator conducts all her mediations overlooking the ocean at her own home filled with the smells of brownies, coffee, and popcorn as the day goes forward.
Many of us who do mostly commercial litigation are more prosaic since we hold the sessions with one of the lawyers hosting at their own offices. Modern law offices are well-equipped with multiple conference rooms, a pantry, and other amenities.
Although many mediators go beyond the essentials of having sufficient space and privacy to meet the demands of a particular case, my own experience in commercial cases is that as mediation has become more commonplace and integrated into the fabric of the legal and business communities, less attention has to be devoted to the physical location of the sessions.
Nowadays, very few counsel, insurance adjusters, or corporate representatives are fearful or display a high level of anxiety in mediation sessions. Most participants are prepped sufficiently by their own counsel to attempt to make them comfortable. The tensions, fear, and anxiety are usually noticeable in two instances:
(1) During joint sessions involving face-to-face communications, and
(2) When deciding on final terms or to reach impasse.
Experienced mediators can easily reduce or manage fear in joint sessions in a number of ways. Familiarity between participants reduces anxiety and improves the possibility for a positive communication flow.
My approach is humanization, rather than demonization, of and for the disputants and their representatives at every opportunity. My practice has evolved to start each mediation session with separate introductory meetings with each party.
The disputants meet me, and the mediation process is explained in a conversational manner, rather than the more formal narrative model of orientation/opening statements by the mediator.
This is an opportunity to engage in small talk and to humanize the interactions. Interaction in frequent caucus between the mediator and the participants enhances the prospect of cooperation as everyone becomes more comfortable with each other. Self-deprecating humor is usually helpful to ease tensions as the disputants approach choice points, especially the final decision to resolve or not!
The final decision to settle a case or to continue the conflict, which usually means letting a court or arbitrator decide, is a toggle-decision between certainty and uncertainty.
The future is always uncertain, and litigation outcomes are difficult to predict. So anxiety runs deep even if it is not out in the open or is masked by other emotions, such as anger, disappointment, frustration, or other manifestations of not being fully in control of your fate if you go forward to the next step of conflict.
My approach is to be transparent and acknowledge that they may be fearful of not making the “right” decision. I often reframe the choice from “right-wrong” to “wise-uncertain” or “safe-uncertain” with the idea of using analogies or scenarios from the party’s base identity, culture, or experiences.
For example, a man operating a business did not want to pay on an employment claim since there was “no return on investment”—ROI—and he and his business did nothing wrong. We discussed how many of his business expenditures had no ROI but served other essential purposes.
For instance, he insured his inventory and never suffered a loss or made a claim, yet these premiums were a typical and necessary part of the budget.
The businessman acknowledged that if he lost the court case, he would keep to his viewpoint that he did nothing wrong, so the court outcome was irrelevant to his personal viewpoints.
He feared setting bad precedent among other employees. I responded by asking if an adverse verdict would be better or worse in that regard. We also discussed how the settlement would fade away faster in the workplace than even a defense verdict in his favor, especially since so much information about the workplace would become public record.
In other cases, we may discuss the impact on a win or loss on the parties’ future. If it is asymmetrical, a loss is devastating, while a win has only a little positive impact— then making it easy to focus the fear in a positive way.
Risk tolerances are linked to the emotions, especially fear and anxiety. If a person has a high tolerance for risk, they will be less anxious and may have acceptance or little or no fear of adverse consequences.
One case involved a plaintiff asserting a claim against a ski resort. The defense urged me to explain to the plaintiff how much he was risking by declining their last offer and that he should be afraid of losing at trial. It was a smaller claim and the offer was in the five figures, and the plaintiff sought the high five figures.
This individual had served as a paratrooper in the 101st Airborne Division and routinely continued to jump for recreational purposes. Acceptance of risk was inherent in his identity; he did not scare easily.
So I declined the defense advice and decided to end the session, and to continue it by telephone later in the week since I thought that created the best chance for bridging the gap. With a few more small steps, the defense increased the offer to a point it was accepted by the plaintiff.
Fear, like most emotions, should be acknowledged, processed, embraced, discarded, or otherwise used to further goals based upon the circumstances. It’s a natural part of mediation life.
Next month, the examination of ADR emotions continues with more on positive emotions such as happiness, joy, love, gratitude.
The mediation emotion: Fear, characterized by anxiety.
When? It doesn’t arise as much as it used to in commercial matters anymore, but the Master Mediator identifies how it can become a factor at the bargaining table.
The techniques: There are many ways a neutral can alleviate anxiety via the setup and conduct of the mediation session. One is through small talk.
The author is a Pittsburgh attorney-neutral who has served as an arbitrator and mediator in the United States and Canada since 1979. He conducts negotiation behavior courses that focus on neuroscience and the study of decision making, and was recognized by Best Lawyers in America in both 2017 and 2014 as Pittsburgh Mediator of the Year. He is the author of numerous publications, including “Alternative Dispute Resolution: Law, Procedure and Commentary for the Pennsylvania Practitioner” (George T. Bisel Co. 2006). He is the principal of Happy! Effective Lawyer (www.happy.lawyer), an initiative focusing on lawyer contentment and peak performance. He is a member of Alternatives’ editorial board, and of the CPR Institute’s Panels of Distinguished Neutrals. His website is www.robertcreo.com.
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