Mediating a lawsuit settlement can be like a hostage negotiation. They can both be emotionally very draining. Time is needed to overcome emotional obstacles. If too much time is taken, the parties will feel drained. If too many decisions on minor issues are required, there may not be enough energy to make decisions on major ones.
Parties need to reach the right balance of the energy being put into the mediation and the time it may take to reach an agreement. Artificially putting an end to mediations or drawing them out for too long can both have negative consequences.
An article by James Clear about willpower discusses “decision fatigue,” an issue that can hamper mediations. He states willpower is not all or nothing and there are things we can do to control it.
Clear cites a study published by the National Academy of Sciences of 1,112 parole decisions made by judges over a ten month period as an example. According to the study, the largest impact on the decisions was not the type of crime committed by an inmate. It was the time of day in which the parole decision was made. In the early morning and after lunch, about 65% of the time a judge would give a favorable ruling. As the morning wore on and as the afternoon became later, favorable rulings dropped down to zero.
Clear cites this is an example of decision fatigue. Willpower, being like a muscle, can become fatigued if used over and over. Every decision is like another lift of a dumb bell. Muscle power and willpower fade with every repetition. When willpower is fading and your brain is tired of making decisions, the easiest way out is to say no. Clear discusses ways to overcome decision fatigue, the most relevant to mediation are below:
Make daily decisions the night before.
Run of the mill, daily decisions that can drain us are those we make over and over, wasting precious willpower. Try to make decisions like what to wear for work or when to run errands at the end of the day. With fewer decisions to be made in the morning, there should be more energy for more important decisions later on.
Make the most important decisions first.
Make the most important decisions early, when you have the most mental energy and the least fatigue.
Prior to making an important decisions later in the day, eat something.
The study indicates the judges’ ability to make decisions was recharged after having lunch. “(F)eeding your brain is a wonderful way to boost willpower,” Clear writes, “When you want to get better decisions from your mind, put better food into your body.” If you are making the major decisions later in the day due to the need to address the emotional issues first, then make sure that you either snack periodically throughout the afternoon or wait for your final decision until after your coffee and cookie break.
Simplify your life as much as possible prior to a mediation session. If something is unimportant, don’t bother with it because a decision about it wastes limited energy and willpower. “Willpower is one area where you can most certainly improve your output by reducing the number of inputs in your life,” writes Clear. You can also simplify the mediation by reaching agreements on as many issues as possible before the session starts. Try to transmit the release and negotiate the terms of the release that can be negotiated before the mediation.
Prior to a mediation session, prepare for a long day requiring lots of energy and decision making. Avoiding decision fatigue may be the key to reaching an agreement.