For the past year, I’ve authored monthly articles for the Bar Bulletin as well as other periodicals regarding the foundations of alternative dispute resolution. Most legal professionals who find themselves involved in mediation will debate whether mediation is a vital process in conflict resolution. Both trust and faith in the mediation process are required to achieve a mediated resolution. However, the use of extreme positions in mediation can hinder rather than facilitate this goal. This month’s article explores why extreme positions are counterproductive in mediation and examines the psychological, practical, and ethical aspects that undermine the effectiveness of this approach. By understanding the drawbacks of extreme positions, mediators and parties involved can better navigate the mediation process towards more successful and sustainable outcomes.
Mediation is a powerful tool for resolving disputes and conflicts across various domains, including litigation, business relationships, family disputes, and international diplomacy. At its core, mediation seeks to foster cooperation, dialogue, and compromise among conflicting parties to arrive at mutually satisfactory settlements. However, some participants may adopt extreme positions in the belief that taking a maximalist stance will secure their interests. This article aims to elucidate why extreme positions can be counterproductive to the mediation process, and how such positions can hinder rather than help in reaching settlements.
The Camp David Accords is a good historical example of the impact felt by extreme positions in mediation. In 1978, President Jimmy Carter invited Egyptian President, Anwar Sadat, and the Prime Minister of Israel, Menachem Begin, to Camp David to reach a peace deal between the two countries. The extreme position at the center of this dispute was whether Egypt would recognize Israel’s right to exist. President Carter utilized shuttle diplomacy before the meeting to lay the groundwork for the talks and to bridge as many gaps as possible.
President Carter, over the course of about two weeks, encouraged the parties to address those issues they needed to resolve, like borders, security, and diplomatic relations, all based on the hope the two countries could co-exist. The issue of one country’s existence was an extreme position and President Carter navigated that issue by building the parties’ trust in him as well as each other. The result was a historic agreement which reshaped the Middle East and still stands as an example how to navigate extreme positions in mediation.
I. The Psychological Barrier
One significant reason why extreme positions are counterproductive in mediation is the psychological barrier they create. When parties adopt uncompromising positions, it often leads to a phenomenon known as “reactive devaluation.” This psychological bias occurs when individuals automatically devalue offers made by the opposing party simply because they come from the other side, making it challenging to find common ground.
Extreme positions tend to polarize discussions, reinforcing the “us versus them” mentality. This division can intensify emotions, making it difficult for parties to engage in constructive dialogue. In such an atmosphere, parties are more likely to focus on defending their extreme positions rather than seeking common interests and exploring potential solutions.
I recently mediated a case where one party took the extreme position that the other party was lying about virtually everything. That certainly polarized the process and, as a result, the mediation needed to pause so the parties could build their respective cases and, hopefully, find a way around that extreme position.
II. Practical Impediments
Extreme positions can also create practical impediments to the mediation process. Mediators aim to facilitate the exchange of information, ideas, and proposals between parties. However, when one or both parties take extreme positions, they may be reluctant to share information or engage in meaningful discussions.
The secrecy and mistrust that often accompany extreme positions can hinder the process of gathering relevant information, a crucial step in mediation. Without access to the necessary data, mediators may struggle to help parties make informed decisions and reach a mutually acceptable settlement. This information gap can prolong the mediation process and increase the likelihood of impasse.
In the case mentioned above, no amount of information on that day was sufficient because one party was so entrenched in their belief system that “facts” did not matter. It was unfortunate that this extreme position was not articulated during the pre-mediation conferences. Had that occurred, more groundwork could have been laid to make the mediation more productive.
III. Ethical Considerations
Ethical concerns also play a role in the counterproductivity of extreme positions in mediation. Mediators are expected to maintain neutrality and impartiality throughout the process. However, when parties adopt extreme positions, it becomes challenging for mediators to uphold these principles.
Extreme positions can push mediators into a difficult ethical dilemma. On one hand, they must respect each party’s right to express their views and interests. On the other hand, mediators must strive to create a balanced and fair process. When one party’s extreme position dominates the proceedings, it can undermine the mediator’s ability to ensure fairness, potentially compromising the legitimacy of the mediation process itself.
IV. The Erosion of Trust
Trust is a cornerstone of successful mediation. Parties must believe that the mediator is a neutral and trustworthy facilitator committed to helping them find a mutually agreeable solution. Extreme positions can erode this trust, creating an environment where parties doubt the mediator’s impartiality.
When a party perceives the mediator as favoring the other side or as unable to control extreme behavior, they may withdraw from the mediation process altogether. The erosion of trust can lead to the breakdown of negotiations and make it nearly impossible to reach a settlement. Therefore, mediators must address extreme positions early and effectively to preserve trust among all parties involved. As stated above, had the one side articulated how extreme their belief was in the other sides honesty, more effort could have been made to bridge that gap before the mediation.
V. The Role of Moderation in Mediation
In contrast to extreme positions, moderation plays a vital role in mediation. Parties who adopt moderate and flexible positions are more likely to engage in open dialogue, consider alternative solutions, and ultimately reach mutually satisfactory settlements. Mediators should encourage moderation by emphasizing the benefits of compromise, highlighting shared interests, and facilitating constructive communication.
Extreme positions are not productive in mediating settlements due to the psychological, practical, and ethical barriers they create. Parties who cling to uncompromising positions often undermine trust, hinder communication, and prolong the mediation process. To enhance the effectiveness of mediation, it is crucial for mediators and participants to recognize the drawbacks of extreme positions and embrace the value of moderation, compromise, and open dialogue as key principles of successful conflict resolution. By doing so, mediation can continue to serve as a powerful tool for resolving disputes and fostering cooperation in an increasingly polarized society.
Eric Gillett is a founding member and managing partner at Preg, O’Donnell & Gillett. Follow him on LinkedIn at https://www.linkedin.com/in/eric-gillett or at https://www.linkedin.com/in/gillett-mediation He is licensed in Washington, Oregon, and Alaska. He has tried dozens of cases to verdict and mediated hundreds more. A navigator of resolutions, he is a commercial mediator and can be contacted through his legal assistant, Jasmine Reddy, at 206.287.1775 or jreddy@pregodonnell.com. You can also reach him through his website at www.gillettmediation.com and his email at eric@gillettmediation.com Mediations in person are encouraged.
