Proven, Professional Assistance in Mediation Matters

Negotiation News: Volume 4, Issue 1

In this issue, I have a few words to say about decision-making: how we are governed primarily by instinct and emotion over reason, and how that relates to mediation.

What Type Are You in Mediation?

I was fortunate to attend the Southern California Mediation Association’s Annual Conference last Saturday. Doug Noll presented one of the more interesting topics of decision-making in mediation.

Without getting too far into neuroanatomy, according to economist and Nobel Laureate Daniel Kahneman, our brains are overwhelmingly comprised of “System 1,” which is fast, instinctive, stereotypical and emotional. “System 2” the far smaller portion, governs slow, deliberative, calculated and logical thought (Kahneman, Thinking, Fast and Slow, 2011, Farrar, Straus Giroux). System 1 is easy; System 2 takes work and care.

Most people filter new information through the prism of loss aversion, a behavior strongly associated with System 1. For example, when the statistics of a disease are presented as having a 90% survivability rate, we are far more likely to accept and be comfortable with them than if they are presented as having a 10% mortality rate. The 90% rate is more closely associated with the status quo, while the 10% rate requires a deviation from it. We also tend to throw good money after bad, a System 1 behavior that is based upon emotion, which makes us feel better about our initial outlay. (NOTE: This has been my personal contribution to the mega-hotels and casinos of Las Vegas.)

Summarizing a few of the key conclusions of an 800 page book in two paragraphs is woefully incomplete and barely scratches the surface of Kahneman’s theories. But even with this sliver of knowledge, how might this relate to mediation?

A few questions come to mind:

  • What are some situations you might recall where you were a pure System 1 actor, or conducted yourself much more deliberately and cautiously?
  • Do you find yourself more often acting as a risk averse participant or a risk taker?
  • Have you thrown “good money after bad” or made a significant concession simply to get the deal complete?
  • How do mediators in your experience appeal to your instinct toward risk aversion, and how often has it worked?

Hopefully, these questions will give rise to a few thoughts about your approach to mediation. I would also love to hear from you.

  • Reduced Fees For Smaller Cases

In an effort to continue to serve the parties who have cases with claimed damages under $50,000.00 with one plaintiff and one defendant, my fees will be reduced for the duration of the mediation, with no increase after three (3) hours. My half day and full day rates remain the same for cases for cases where the claimed damages in dispute are above $50,000.00 or with more than two parties. Please feel free to contact me to discuss at 818-616-8500 or .

  • Charity

A portion of mediation fees generated will be donated to a charity of your choosing. When booking your mediation, please direct me to the website of your charity.

Sean E. Judge is a mediator with offices in Woodland Hills, CA. In his 21 years as a litigator, he has represented corporate and institutional clients, and individual litigants and small businesses, both as Plaintiffs and Defendants. He can be reached via telephone at 818-616-8500, at or via email at .