Did you know the more times you see something written down the more you believe it is true? Known as the illusory truth effect, studies show that if we read the same information again and again we come to believe it is the truth. It’s why advertising works so well and fake news quickly becomes gospel. And why it might be time to re-think the position paper.
In a mediation we ask opposing sides in a dispute to come together to look at settlement. But before they arrive each side writes a position paper, or a mediation statement, putting forward all their best points and rubbishing the other side’s. Some clients help with the drafting; all clients read their own paper. The result? Thanks to the illusory truth effect each side believes that absolutely, categorically, no doubt about it, their position is the right one! The more they read the information, the more they believe the ‘truth’ of their position and the further they move away from compromise.
Consistency and persuasion
There’s something else at work here, too. In his research on the psychology of persuasion, Robert Cialdini discovered that people are naturally consistent in their actions and behaviour. We have an instinctive desire to be consistent because it’s positively associated with logic, rationality and strength. It’s a decision-making shortcut as well – we find it easier to act in the way we always have as it saves time and prevents us having to make a choice. So once a position paper has been written the parties – and their legal representatives – feel compelled to be consistent with it.
Consistency is also linked to self-esteem. People want to maintain their self-esteem and one way of doing so is to show consistency in who they are and what they say. Unfortunately, disputes can quickly damage self-esteem. In breach of contract or negligence cases, for example, claimants may experience perceived injustice, disrespect or unfairness – ‘How dare they treat me like that’. For defendants, the humiliation and disapproval comes from the accusation of breach, or worse still, dishonesty – ‘How dare they accuse me of behaving like that’. If self-esteem is already dented, parties are compelled to cling on to their positions even harder.
Time for a new position?
Where does this leave the position papers? Well I’m not suggesting they should be dispensed with completely. A position paper can be useful to brief the mediator and/or to speak directly to the party on the other side. But context is critical. Is the position paper a factual briefing note for the mediator or is it a tactical device used to impart a message to the other side? What’s important here is that your client understands the difference. Is it a genuine assessment of the case or a best-case scenario? Should the position paper be accompanied by a separate briefing note for the client to help manage their expectations?
Preparing your client for mediation doesn’t have to involve a position paper, however. There are other useful and cost-effective ways of going about it. For example, if your client or mediator wants a formal briefing you might want to consider a confidential brief to them only, rather than for exchange with the other party. That way the brief can be balanced, reflecting both strengths and weaknesses – a genuine reflection of risk, rather than a best-case scenario.
Where the documentation is voluminous or the pleadings complicated you could prepare a joint summary, or chronology, and share the cost between the parties. Or if there is an important point you think the client on the other side has not understood, a document explaining this to them might be really useful – you can pretty much guarantee they will read it before the mediation and obviously the sooner they receive it the more time they will have to act on the information.
So it’s not the end for the position paper. But rather than automatically assuming one is required we should question whether one is actually needed, who it’s for and whether a different kind of document could be used for alternative, or additional, preparation.
Whatever the paperwork, the focus should always be on preparing the client for compromise. Because where compromise begins, settlement is more likely to follow.
Did I mention that the more times you see something written down the more you believe it is true?
