Oral Class Action Settlement Reached Through Mediation Unenforceable Because Parties Did Not Agree on Attorneys’ Fees and Other Material Terms
June 17, 2019
When Memorializing a Mediated Settlement, Empower the Mediator to Resolve Any Disputes Over Language
June 20, 2019
Show all

From the Talmud: Leveraging Reciprocation Bias in Mediation

The ancient Jewish legal text known as the Talmud (Tractate Baba Metzia 32b) records the following rule: if Mr. A simultaneously encounters a friend who requires assistance unloading a burden from his animal, and an adversary who needs help loading a burden on to his animal, A is obligated to assist his adversary first before he helps his friend.

A school of medieval rabbis known as the Tosafists (Tractate Pesachim 113b) trace this rule to a verse in Proverbs (27:19): “As water reflects a face back to a face, so one’s heart is reflected back to him by another.” The message is that my behavior (whether positive or negative) towards another person will be reciprocated by that individual. Thus, in the fact pattern above, the Talmud aims to end the feud between Mr. A and his adversary (Mr. B) by compelling A to overcome his animosity and assist B; doing so will cause B to reciprocate, thereby creating a positive feedback loop that promotes reconciliation (additionally, under principles of cognitive dissonance, A’s brain will seek to reconcile the contradiction of helping an adversary for zero gain by concluding that perhaps the adversary is not such a bad person after all; by the same token, when B sees that A is helping him, that inconsistency may cause B to reassess his own negative feelings about A).

In our present day lexicon, the phenomenon alluded to in the Talmudic rule above is known as reciprocation bias. One of the earliest modern treatments of this concept is The Gift, a book by the French sociologist Marcel Mauss, which contends that human society is built on the principle of reciprocity – when A gives to B, B feels obligated to reciprocate and return the favor. The human bias towards reciprocation creates a cycle that the Farnam Street website refers to as a “web of indebtedness;” a person who does a favor for me is entitled to a return action, and my reciprocal action creates a new debt on the part of the recipient. And so on.

Indeed, reciprocation bias is a cornerstone of modern psychology. For example, as Dr. Allen Fay explains in the context of marital counseling, a couple in a miserable relationship that is filled with daily hostility can, in a relatively short period of time, dramatically change how they feel about each other by making simple changes in how they treat one another. (See Dr. Allen Fay, Making it as a Couple: Prescription for a Quality Relationship (FMC Books 1998), at 11).

While this may seem obvious, Dr. Fay observes that antagonistic feelings are precisely what prevent warring spouses (and other adversaries) from changing their behavior. That is, because hostility is reciprocated, both sides persist in treating each other poorly. The only way to break the cycle, Dr. Fay writes, is for both sides to call a truce and undertake small reciprocal gestures, which will pave the way for feeling change:

Suppose you and your partner have a miserable relationship that is filled with daily hostility and abuse. Let us say that you now agree to a one-week truce. No matter what happens, whatever disappointments and irritations there are, you will not say a single hostile thing to each other for that one week period. Do you think that in any way at all your relationship will be better? Or, more simply, do you think you will get along any better during that week? If in addition, you agree to pay each other one compliment per day, would that help? “Maybe,” you say, “But the basic feelings are still rotten.” Now if both of you avoid uttering a single hostile word to each other for a period of one month, and in addition you exchange one compliment per day, and what’s more, you hug each other for one minute twice a day, is it possible you will feel less angry, resentful and bitter toward each other? In other words, do you think it ever happens that behavior change precedes feeling change? I hope you do, because this principle is one of the cornerstones of modern psychological thinking, and one of the secrets of making it as a couple.

The phenomenon of behavior change engendering feeling change was dramatized in the movie The Perfect Storm. At the beginning of the movie, two of the fishermen — Murph and Sully — have a verbally abusive relationship. But their feud ends after Sully saves Murph from drowning.

Mediators can capitalize on reciprocation bias during mediation in several ways. First, they can encourage both sides to exchange small concessions. That is, to the extent one party retreats slightly from a position, the other side will feel obligated to reciprocate. In turn, a reciprocal concession encourages further compromise by the other party.

Notably, it is important that the concessions not be too large. A sizeable concession may be interpreted by the other side as weakness rather than a gesture of good will, and not be reciprocated. Moreover, principles of psychology teach that small concessions are far more effective at changing someone’s position since the change is imperceptible and thus less threatening.

Another mediation strategy suggested by reciprocation bias is positive body language and a warm and friendly tone. For example, as mediator Jeffrey Windsor observes, “smiles are contagious;” when we smile, people tend to smile back. Windsor also writes that it is important for a mediator to maintain a positive attitude and applaud even small wins. Doing so generates optimism among the parties that they are moving in the right direction towards a resolution.

Leave a Reply

We welcome your comments.

Your email address will not be published. Required fields are marked *