F. Principle 6: Emotions Will Play a Key Role in Whether a Party Accepts the Proposed Settlement Agreement

• Library: Crafting Effective Settlement Agreements: A Guidebook for Attorneys and Mediators (ABA) (2018 Ed.)

F. Principle 6: Emotions Will Play a Key Role in Whether a Party Accepts the Proposed Settlement Agreement

There is an actual cost to holding onto things we should let go of. It can come in the form of anger, frustration, resentment or something even worse. The question is, can you really afford to keep paying the bill?

— Carl Richards²¹²

Every experienced mediator and attorney has war stories about litigants who could not agree to a shared visitation schedule of equal time with their dog, who repeatedly acknowledge the fairness of the settlement agreement they refuse to sign, and who re-plow over and over again the same ground of perceived slights and disrespect from the other party. Mediations and negotiations create a pressure-cooker environment in which people can stew in negative emotions and remain emotionally stuck. Regret and buyer's remorse may begin to set in when the other side accepts a party's offer. When the time comes to end the litigation by putting a pen to the settlement agreement, parties may simply not be ready to sign due to emotional turmoil. They may be seized by unfocused anger or sadness. Anger leads parties to lose sight of their goals and shifts their focus on retribution against each other.²¹³ Sadness or depression can cause decision paralysis.

Most likely, the emotionally "stuck" party is experiencing multiple negative and overlapping emotions. "Feelings are more complex and nuanced than we usually imagine. What's more, feelings are very good at disguising themselves. Feelings we are uncomfortable with disguise themselves as emotions we are better able to handle; bundles of contradictory feelings masquerade as a single emotion; and most important, feelings transform themselves into judgments, accusations, and attributions."²¹⁴ When negative emotions predominate, people can lose sight of their goals—even rejecting an offer that clearly offers a better result than a no-deal alternative.²¹⁵ Although experienced mediators and attorneys are familiar with the ensuing gridlock, they have also experienced frequent instances where the party gets unstuck, lets go of the litigation, and moves forward toward settlement. Although emotional catharsis and healing lie beyond the scope of this book, the following ideas may provide assistance when encountering parties who are stuck emotionally.

1. Feelings and Emotions Determine How We Decide

There is a pervasive belief that people can be counted on to make rational decisions in their own best interests. "There's only one problem with this assumption of human rationality: it's wrong."²¹⁶ As one expert has noted, "people are in a state of 'perpetual emotion,'" which determines how they frame their negotiation goals.²¹⁷ Although robots and the Dalai Lama might make decisions unencumbered by negativity, the rest of us experience stress and unpleasant feelings when faced with difficult choices.

Rather than suppressing or pretending to ignore the strong emotions often inherent in the mediation and negotiation processes, the better approach is to accept that feelings about a deal largely determine whether a settlement agreement is signed or whether the parties return to the courtroom. Even though we are emotional beings, we are not at the mercy of random feelings tossing us back and forth without any rhyme or reason.

[E]motions are communications to both oneself and other people conveying information about how one feels about things, about one's social intentions, and about one's orientation toward other people. Because emotions only arise in response to events that are appraised as relevant to some concern, they provide important information to observing individuals. In the context of a negotiation, emotions may signal what value one attaches to the different issues and provide critical feedback about one's mood and willingness to agree.²¹⁸

Emotions can be greatly affected, and sometimes entirely transformed, by positive interpersonal interactions.²¹⁹ For a good exploration of the role that emotions and feelings play in the decision-making process, see Daniel L. Shapiro, Negotiating Emotions, Conflict Resol. Quarterly 20.1 (2002): 67-82 and Jonah Lehrer, How We Decide (Houghton Mifflin Harcourt 2010).

2. When Progress Seems to Have Stalled, Check In with Your Own Feelings

Before embarking on a quest to help another person at the mediation session or negotiation overcome unhelpful emotions, check in with yourself. Are you naturally a quick and decisive person? If so, you may be used to enjoying a sense of control and closure by making prompt choices. You may not be used to another natural decision-making style for people who gain their sense of control by keeping their options open, searching for all available information, and foreclosing their other choices with a decision only when necessary.²²⁰ Be open to the possibility that the person you are trying to help "unstick" simply has a less rapid and more deliberate decision-making style that has caused you to feel frustrated, angry, or impatient.

Repeat participants in mediations can forget how bewildering the process is, how arcane the language of legal agreements can seem, and how many little decisions must be made before a final conclusion whether to accept or reject...