Hurry Up! We Have a Plane to Catch! The Effects of Time Pressure on Negotiation and Mediation

Joseph R. Soraghan

By Joseph R. Soraghan

Not surprisingly, there is both anecdotal and empirical evidence that time constraints affect behavior generally.  It is also, therefore, not surprising that high time pressure (hereinafter “HTP”) probably affects both parties and mediators in mediation.

I recently ran across this question, and found particularly interesting (though not recent) articles by social science researchers which could assist both parties and mediators in their participation in mediation sessions.

In “Time Pressure in Negotiation and Mediation,” a 1993 article, Professors Peter Carnevale, Kathleen O’Connor and Christopher McCusker, then professors in the Department of Psychology, University of Illinois (“Carnevale, et al.”), reviewed the scientific research to that date on HTP in negotiation generally, and mediation in particular, to identify common themes, interesting questions, possible outcomes of differing HTPs and resulting behaviors.  It is only possible here to review possible conclusions of (not the methods of) the research and suggest actions to be taken accordingly by mediation participants to benefit their outcomes.  [This article was one of 18 chapters in a larger volume entitled “Time Pressure and Stress in Human Judgment and Decision Making” (Plenum Press 1993). The article, as did the other chapters, discussed the effect of HTP in negotiation generally; it then discussed the effects of such pressure on mediation in particular.]

The authors initially noted that the three strategies primarily used in mediation are:

  1. Concession making,
  2. Contending (i.e., trying to persuade the other party to yield, including by threats and commitments not to concede), and
  3. Problem solving (i.e., trying to locate options that satisfy both parties’ goals, which the authors also call “integrative” negotiation or “log rolling”).

The authors defined HTP simply as the desire to reach agreement quickly.

Effects of HTP on Concession Making. The research discussed found that HTP produces lowered demands (by all parties), faster concessions and faster agreement, and that HTP reduced the level of outcome that the parties sought to achieve. Such research also investigated the results of HTP imposed asymmetrically, that is, when one of the parties had significantly greater costs due to the HTP than the other(s).  In asymmetric situations, the party with the greater costs caused by HTP made more concessions and settled for lower outcomes than the parties with lesser costs.

Effect on Problem-Solving. Early research concluded that HTP negatively interrupts integrative bargaining processes and problem solving (e.g., exchanging truthful information). However, later follow-up to that research concluded that the effect of HTP on problem-solving would be to enhance competiveness and produce poor negotiation outcomes only when they were in a hostile, competitive context, but not when they were in a cooperative context, and that when the parties had cooperative goals, they would achieve high joint outcomes regardless of HTP.

This recommends to mediators that, both prior to and during mediation sessions,  the level of cooperativeness of the parties and their attorneys be determined, and, if possible, increased, in order to maximize information exchange, thereby increasing problem-solving and settlement possibility.

The studies also suggested that, regardless of HTP, “contending” and problem-solving are incompatible strategies.

Later Literature/Research. Most of research discussed by Carnavale, et al. was performed in negotiation settings not involving  mediation, because research on the effects of HTP in mediation was scant. There is later research indicating that HTP results in quicker (but not larger) concessions, less effective processing of information by the parties, and more impasse (with some research concluding differently, (E.g., Stuhlmacher and Champagne, “The Impact of Time Pressure and Information on Negotiation Process and Decisions,”  GROUP DECISION AND NEGOTIATION (Kluwer 2000), studying negotiation in general, with no particular focus on mediation.)

Effects of Deadlines. Related to this discussion, research described in 2004 seems to conclude that “final” deadlines made by parties (which may or may not create HTP), when announced early enough to allow significant negotiation, are probably equally beneficial to both parties (though the parties may mistakenly believe they create strategic liabilities), but they favor those with high HTP costs when they are set too early.  (Moore, “The Unexpected Benefits of Final Deadlines in Negotiation,” Journal of Experimental Social Psychology, (2004) 121-127).  Professor Moore’s conclusion seems to agree with those of Carnevale, et al., that in some cases, a well-advised and prepared mediator can, with care, improve the possibility for settlement to greater than that without any deadline.

Conclusions.

The above discussed research concludes that HTP generally has effects differing with the parties’ situations, but that its effect overall is to reduce the probability of settlement (with some caveats by Professor Moore), A main reason for this is more often that HTP can be a source of stress, causing efficient, integrative alternatives to be overlooked, but that this effect is also dependent on the parties’ competitive rather than cooperative orientation.  When the parties have a competitive goal, HTP enhances those competitive behaviors and further reduces the likelihood of agreement.

The Difference: Hard Work Early and Often

My experience has been that the likelihood of settlement increases significantly if the mediator begins working hard with counsel well before the mediation sessions, and continues the high intensity of his efforts throughout the process.  And even if the case is not destined to settle at the mediation session, substantive pre-session effort by the mediator improves the outcome for the parties to the dispute.  Such pre-mediation efforts may alert the parties and counsel that mediation is not, or is not yet, a good idea, allowing them to cancel or defer the sessions to a later date—for example, until more discovery is completed.

Posted by Attorney Joseph R. Soraghan. Soraghan practices in legal matters pertaining to business operations and growth. He guides businesses in financing, contracts, acquisitions, mergers, and sales. Soraghan frequently resolves commercial disputes as an arbitrator or mediator, or through litigation.


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