Why a Comfortable and Neutral Environment is Necessary for a Successful Mediation
When I began my career as a neutral, I would conduct mediations at attorney offices. As my career progressed, I decided to invest in office space so I could host mediations at a neutral location. I believed this would be more convenient for the parties and would give me a competitive advantage over my competition. What I didn’t expect was the dramatic increase I saw in the number of cases that settled at mediation. Clearly, there was a positive correlation between conducting mediations at a neutral location and successful outcomes.
In the book “Thinking, Fast and Slow,” psychologists Daniel Kahneman and Amos Tversky, provide insights into understanding decision-making and consumer behavior. One of the most enlightening experiments conducted by Kahneman and Tversky, the ‘Invisible Gorilla’ experiment, shows the difference between tasks that require mental focus and those we can do in the background.
In the experiment, people were asked to watch a video of two teams playing basketball– one with white shirts versus one with black shirts. The viewers of the film were to count the number of passes made by members of the white team and ignoring the players wearing black.
The task was difficult and absorbing, forcing participants to focus on the assignment. Halfway through the video, a gorilla appears, crossing the court, thumps its chest, and then continues to move across and off the screen.
The gorilla was in view for nine seconds. Fifty percent (half) of the people viewing the video did not notice anything unusual when asked later (that is, they did not notice the gorilla). Not only did people not notice the gorilla, but they also refused to believe that they had not seen the gorilla.
I believe the ‘Invisible Gorilla’ test explains why environment plays such a key role in a successful resolution. Attorneys, especially successful ones, have many things competing for their time and attention. If mediation is to be successful, all participants must be free from distractions. They must be able to focus exclusively on the matter at hand to find creative ways to resolve the dispute. When a mediation session is conducted at the law office of one of the attorneys, he or she might focus on legal work or other matters. In other words, that attorney starts ‘counting passes,’ thereby diminishing their ability for creative problem-solving. Conducting the mediation at a neutral location increases the likelihood that the attorneys and the parties won’t be tempted to focus on other cases or clients.
Creative problem solving is greatly enhanced when the parties are comfortable. At Miles Mediation & Arbitration, we have designed and equipped our facilities to ensure that everyone is comfortable and, therefore, can more easily focus on their dispute. The client experience at Miles is bolstered by the attention provided by our professional staff and the amenities we offer, including food, drinks, and other refreshments.
No facility, no matter how comfortable, will result in a successful resolution without the assistance of a great neutral. However, there is little doubt that mediating with the right neutral at the correct facility increases the chances of a settlement.
ABOUT THE AUTHOR
John Miles, Esq. is the CEO of Miles Mediation & Arbitration. In addition to his executive duties, he mediates high value and complex matters on request at a per diem rate. He is in charge of neutral training and development at Miles.