It's not just about the money

John K. Miles Jr.

Daily Report

2012-11-15 00:00:08.0

God made man to go by motives, and he will not go without them. —Henry Ward Beecher

When people talk, listen completely. Most people never listen. —Ernest Hemingway

Because I entered the world of mediation believing that money motivated those who participated in mediation, my mediation style was to keep parties focused on the bottom line. I was fond of saying that, if someone tells you that "it's not about the money," it's about the money. I was not alone in this misconception.

I dissuaded parties from expressing emotion or talking about issues I deemed irrelevant. In those early days, had I been listening, I would have heard that most mediation participants are not motivated entirely by money. People were telling me what motivated them, but I didn't want to hear it.

Eleven years of mediation experience showed me how wrong I was to believe that money was the sole motivator driving the mediation process. I came to recognize the three additional motivators—fear, anger and justice.

In 2010, I set out to document my accumulated mediation experiences. I turned to the marketing professionals at the University of Georgia Small Business Development Center. We developed five surveys designed to measure the motivations of mediation participants.

Respondents could indicate whether they highly disagreed, disagreed, neither disagreed nor agreed, agreed or highly agreed with a statement. Plaintiffs also were asked to indicate their age, education level and income level.

Surveys were given to plaintiffs, plaintiff attorneys, defense attorneys and insurance claims adjusters. Respondents were asked to complete the surveys prior to the mediation session.

The completed surveys were placed face down on the table in front of the respondents, thereby ensuring the confidentiality of the surveys. We expected this approach to result in more candid responses.

Plaintiffs were asked to complete a second survey following the mediation. This survey reflected whether the case settled and repeated—in a different sequence—the four statements concerning motivators. The purpose of the post-mediation survey was to determine whether plaintiff motivations changed during the mediation session.

My early empirical observations became validated statistical facts. A growing number of survey results confirmed the reality of motivators other than money. Surveys confirmed that plaintiffs are often motivated by such emotions as fear, anger and justice. In addition, the surveys served to expand my awareness of the four motivators. I became a more critical listener and observer.

The surveys invited participants to offer additional comments. I was surprised by how often plaintiffs would record comments and even more surprised by how few of their comments related to money. One plaintiff wrote the following on her post-mediation survey: "Thank you for your guidance. May God richly bless you and your family."

It's so easy for each of us to see the world as we want it to be. We process information through a filter of our prejudices and worldview. We tend to hear what we want to hear, rather than what is actually being said.

A friend of mine is a domestic relations attorney who represents women exclusively. When I shared that I no longer believed mediation was about money, he said I was wrong. He claimed that the women he represented were only concerned with the bottom line—how much money they would receive. I challenged him to conduct an experiment. The next time he settled a case in which his client was satisfied with the money, I asked him to tell her how wonderful it was that she was satisfied, because her ex-husband was also thrilled with the settlement, then watch her reaction. I haven't heard back from him.

While few mediation participants spoke of being motivated by money, it was apparent that money was a significant motivator. Almost all parties seek to make the best deal possible. As long as a monetary award is the outcome that our civil justice system allows, money will remain a significant motivator. However, as I learned from my surveys, the issue for most participants is not how much the case settles for but what the settlement represents: money, fear, anger or justice.

This article is excerpted from A New Day in Court, by John K. Miles Jr.

John K. Miles Jr. founded Miles Mediation & Arbitration Services in 2000. Upon completion of his undergraduate studies at Concordia College in Moorhead, Minn., John entered Emory University School of Law in 1985. He received his J.D. and married classmate Jamie Collins in 1988. Prior to establishing his mediation business, John was a partner in the Atlanta law firm of Fain, Major and Wiley. John and Jamie and their three children live in Madison, where Jamie, aka the South Main Muse, is a free-lance writer. John, a biblical scholar, pursues his avocation of teaching Bible studies.