Positive Negotiations, Part 9: The Appreciation Questions
In this video, I discuss the “Appreciation Questions” - the third area of inquiry mediators use to advance positive negotiations. These are the more challenging “so what” questions that ask each party to consider all the circumstances of their situation - not just those that suit them the most. They encourage each side to consider and assess the strengths in the other side’s best evidence, and also any weaknesses that may exist in their own evidence. Tackling these questions helps each side develop a full and fair appreciation of the risks they each face with a trial. They can then work at managing those risks through negotiations.
Video Transcript
Hello, and welcome. In my last two videos, I described using Affirmation and Acknowledgment questions to build confidence in the mediation process, to identify basic areas of agreement, and to soften barriers between the parties. In this video, I move on to the Appreciation Questions that we can use to encourage each side to make a full and candid appreciation of their respective risks. I will also mention some ways we can help individuals understand and assess these risks - which will then be topics for my next three videos.
Now, we spend time building up to the Appreciation Questions because they are the hardest questions for each side to answer. They ask them to consider all the circumstances of their situation - not just those that suit them the most. Specifically, they nudge them to consider the strengths in the other side’s best evidence as well as any weaknesses in their own. Only then will each side gain a full and fair appreciation of the risks they each face with a trial.
It is worth noting here that we do this as a matter of basic honesty and fairness for all concerned. No one wants one side or the other heading off to a trial without having a clear picture of the risks involved. The positive side of this, however, is that gaining a full appreciation of those risks gives each side reason to engage in negotiations in an effort to manage those risks.
So Appreciation Questions are “risk” questions. The challenge here is that “risk” is a difficult concept to grasp, and for that reason alone it can be easy to downplay, shrug off, or ignore. In addition, we all tend to be overly optimistic when it comes to assessing our own risks. As Thaler and Sunstein wrote in their bestselling book, Nudge:
Unrealistic optimism is a pervasive feature of human life; it characterizes most people in most social categories. When they overestimate their personal immunity to harm, people may fail to take sensible preventative steps.
It is therefore part of the mediator’s role to guide parties away from any such "unrealistic optimism” and toward something we might call “balanced realism” - and yet to do this in a way that does not undermine each side’s own decision-making autonomy. After all, people are much more willing to negotiate when they have reached their own conclusion that they do in fact face certain risks rather than when someone else simply tells them they face such risks.
So how can we achieve this?
Well, as I have explained in earlier videos, I like to ask open-ended “so what” questions - and with the Appreciation Questions I am typically asking “so what” about the other side’s best and most compelling evidence.
For example, if part of a plaintiff’s best liability evidence is security camera footage showing the plaintiff falling on the defendant’s premises, I may ask the defense side: “So what risk, in your opinion, does that security camera footage create for you on the issue of liability?”
If part of a defendant’s best liability evidence are lengthy skidmarks and an associated expert report opining a plaintiff was speeding before a car collision, I may ask the plaintiff’s side: “So what risk, in your opinion, do those skid marks and the defendant’s expert report create for you on the issue of liability?”
We can, of course, ask similar “so what” questions about evidence aimed at any element of a claim or defense, be it causation, damages, and so on.
Sometimes parties are quick to give these types of questions serious consideration - and they may even have asked them to themselves before coming to a mediation. Other times, however, one or more parties may try to sidestep them - much like a politician sidestepping a reporter’s difficult questions. This may be because they are currently tied to a particular “position”, or they may be caught up in what appears to be “unrealistic optimism”, or they may simply not have much experience engaging in this kind of risk assessment.
If a party does give a noncommittal or dismissive response, the mediator can ask why they believe the evidence in question is inconsequential. Again, this is a simple, open-ended question, but it demands a thoughtful response - and thoughtfulness is what we are looking for in all positive negotiations. A mediator can also, if permitted, use information and arguments gleaned from the earlier Affirmation and Acknowledgment Questions to gently nudge a party to consider different ways a judge or jury may interpret that particular evidence.
If a party is just struggling with the whole idea of risk, however, we can help them by offering more detailed explanations of what risk is and how we can assess it.
We can do this with a couple of visual guides - the Risk Assessment Matrix and the Bell Curve of Risks - which depict different levels of risk based on ranges of “probabilities” and “consequences”. We can also use specific questions designed to assess risk by probing the different “probabilities” and "consequences" we can associate with specific evidence.
I will discuss each of these in my next three videos, starting with the Risk Assessment Matrix.
I look forward to seeing you then. Until then, goodbye.
