There is much that the latest developments in neuroscience can teach legal professionals about negotiations. This is particularly true when it comes to how people process information and make decisions. Economists have long lamented the fact that people do not make important financial decisions based on cold, rational self-interest. This dilemma will sound familiar to many lawyers who have tried hard to defuse emotional investments when the time comes to assess a settlement. Mediators and lawyers alike can benefit particularly from what neuroscientists have revealed about priming and framing, two potent filtering mechanisms that can either inflame the emotional barriers to settlement or potentially defuse them.
In any civil settlement scenario, it is vital that clients be able to make important financial decisions in an atmosphere that is often emotionally charged and moving at a rapid pace. Lawyers who are guiding clients through this process face a unique set of challenges, as do the mediators who facilitate settlement talks and midwife resolutions to complex disputes.
Think, for instance, of a client who was fired after enduring many long months of racial slurs and disparaging treatment in his workplace. He brought a lawsuit against his former employer. Litigation dragged on, mostly through the actions of the employer. The matter has now entered mediation, and settlement talks are progressing.
This client feels his injury keenly at an emotional level, not in proportion to the income he was making or the size of the defendant company, but as an affront to his dignity as a person and a worker. He is hungry not only for an appropriate resolution, but for vindication, and to punish his former employer. Try as counsel might, he or she will have a hard time convincing this client to make a settlement decision based solely on the value of the claim and the likelihood of prevailing at trial.
We can see both priming and framing at work in this example, and in how they will affect negotiations.
The priming effect describes a situation in which exposure to a stimulus (for instance an image or a set of words) influences an individual’s response to a later stimulus (for instance, a settlement offer). The classic example of priming in cognitive testing is when a subject, shown a list of words including the word “shoe,” is later asked to name a word starting with “sh.” That subject will be more likely to say “shoe” in response to the request than a subject not shown the list of words containing “shoe” prior to the request. This is fairly intuitive so far, but priming can also influence our emotional states in powerful ways.
In the hypothetical case above involving racial discrimination in the workplace, the priming effect may cause a plaintiff who reviewed trial exhibits, including pictures of racist graffiti, prior to the settlement conference to be more likely to see an initial low offer from the defense as an aggressive or dismissive act. One litigator who handles employment litigation matters described such a situation. He told me that he was representing an African-American client in a settlement conference when the mediator halted the conference in order to talk to a contractor who was wearing a hat with the confederate flag on it. His client became visibly uncomfortable, and it took serious work on the part of counsel to bring his client back to the table and get a settlement agreement.
Likewise, lawyers and mediators can use priming in order to evoke an atmosphere of fairness and reconciliation, both by avoiding provocative stimuli when trying to reach a settlement and by introducing stimuli that will have a more positive impact on negotiations. Defense counsel, tasked with approaching plaintiffs and counsel with a settlement offer, may choose to postpone the encounter if they are aware that plaintiffs were recently “primed” against making an agreement by exposure to such stimuli as a car accident or similar conflict-evoking stressor.
The framing effect is a particular, and persistent, example of cognitive bias. Framing causes people to react differently to a particular choice depending on whether it is presented as a loss or a gain. People are generally more motivated to avoid losses than they are to realize gains, and so how a particular transaction is framed can have a powerful impact on its reception. For instance, if a tool rental company emphasizes a $5 penalty for late returns, compliance will be better than if it emphasizes a $5 discount for returning rented items prior to their due date.
For all parties in negotiations, framing can be a powerful factor in consideration of any particular resolution. Framing can also be seen in the light of our hypothetical employment discrimination case. In accepting a particular settlement offer, a defendant can potentially avoid a significant damage award, as well as the costs that a trial would entail, and can further avoid the negative press and commercial impact that the exposure from the trial might bring about. For the plaintiff, a settlement offer eliminates the investment in a trial and the real risk of walking away with nothing. Framing allows both parties to see a settlement will avoid their own personal worst-case scenario. It is a potent tool in negotiation.
Good mediators will have an intuitive awareness of how framing techniques can move both parties in a dispute toward a fair and desirable resolution, and will be instinctively sensitive to the priming effect of conducive and jarring stimuli. Experienced lawyers should also be aware of these effects to help clients make rational decisions in their own best interest. Johnny Mercer’s popular lyric advises us to accentuate the positive, which we can do through framing in order to provide a comfortable, conducive atmosphere for parties to come together. Framing reminds us that it is equally important to accommodate our need to eliminate the negative. A skilled mediator, as well as a skilled attorney, would be wise to do both.
Jane Cutler Greenspan is a JAMS panelist, based in Philadelphia. She joined JAMS after a distinguished judicial career that spanned more than 30 years, including serving as a justice of the Supreme Court of Pennsylvania and a judge in the Trial Division of the Philadelphia Court of Common Pleas. She can be reached at email@example.com.