Are Emotional Arguments Helpful or Harmful in Mediating Commercial Disputes?

Settlement = Assessment of Risks + Math

I made up this unsophisticated formula decades ago to explain what happens when a negotiated settlement occurs in a commercial dispute. What I’ve found, since then, is that the formula holds true in the vast majority of cases—even when emotions and tempers are on edge.

When settlement does not occur, it’s usually because the disputing parties have irreconcilable views on risk assessments.

Rational Negotiations in Joint Sessions

Negotiations that I see in joint session mediations tend to be rational and without significant emotion. And such negotiations prove to be effective.

So, I’m occasionally surprised with an emotional outburst by one of the parties, especially when that reaction is out of character with the same party’s prior demeanor in the same mediation.

I’ve always been curious about such outbursts, in two respects:

Why does a party decide to make an emotional outburst, and
Is it an effective persuasion tool?

My observations on these two points are:

Such outbursts seems to be unplanned and spur-of-the-moment; and
Such outbursts do NOT seem to be particularly persuasive.

Research on Emotions and Persuasion

It’s against such prior experiences that I recently read, with fascination, this research paper: Persuasion, Emotion, and Language: The Intent to Persuade Transforms Language via Emotionality. [Fn. 1]

This research paper provides the following introductory information:

Persuasion is the deliberate attempt to change the thoughts, feelings, or behavior of others.
When people intend to persuade others, they naturally increase the emotionality of their communications.
Aristotle used the term pathos for the idea that persuasion benefits from, if not demands, an audience be placed in the proper emotional state.
Across large-scale experiments, we found that participants with the intent to persuade, (i) used more emotional language, and (ii) continued to do so, even when emotionality might backfire.

Experiment Results

Here’s what the researches found from five experiments.

–First Experiment: Intent to Persuade

The first experiment tests whether an intent to persuade causes individuals to communicate with greater emotionality.

They found: “An intent to persuade led individuals to exhibit a subtle shift in their language toward greater emotionality.”

–Second Experiment: Deliberate v. Automatic

The second experiment tests whether the increase in emotional language is deliberate or automatic: Do people consciously and deliberatively shift their language to greater emotionality, or does the shift reflect a learned association between persuasion and emotionality that is more automatic?

They found: “individuals use emotional appeals spontaneously and with relatively little effort.”

–Third Experiment: Intent to Dissuade

The third experiment tests whether people use greater emotionality when they attempt to influence others to avoid a particular choice.

They found: individuals increased “the emotionality of their appeals when they attempted to dissuade others.”

–Fourth Experiment: Emotional Appeals and Audience

The fourth experiment examines whether people use emotionality, even when it may be harmful to persuasion: when audiences prefer cognitive information, emotional appeals can backfire.

They found: “individuals continued to infuse their language with emotionality,” even when dealing with people known to be “more likely to be persuaded by cognitive information.”

–Fifth Experiment: Evidence for an Association

The fifth experiment tests whether increases in emotionality for persuasion are because of a learned association.

They found: “there is a specific association” between “persuasion and emotion in memory.”

Concluding Thoughts from the Paper

Here are some concluding thoughts from the authors of the research paper:

Researchers “have long argued that emotion is a pivotal tool to influence other people”;
We demonstrate that “individuals spontaneously turn to emotion to persuade” because it is “engrained within the minds of individuals,” has developed over time, and “can be viewed as learned in nature”; and
“an ironic effect of the intent to persuade” is this: When individuals attempt to persuade an emotional audience emotionally, they are persuasive, but such attempts can be ineffective and even backfire when an audience is more cognitive.

Conclusion

My experience with mediating commercial disputes in joint session is this: rational arguments and demeanor are the common approach. Every now and then, however, one party will offer a spontaneous outburst of emotion on the issues at hand.

The research efforts and results discussed above suggest:

Emotive responses should be anticipated as a common human reaction, but
Emotive responses are probably not very persuasive, and might even be harmful to the one who acts emotionally, in a commercial mediation context.

——————————

Footnote 1: This research article is by Matthew D. Rocklage, Derek D. Rucker, and Loran F. Nordgren and is published at Psychological Science 2018, Vo. 29(5) 749-60.

** If you find this article of value, please feel free to share. If you’d like to discuss, let me know.