Framing to Maximize the Gratitude Meter
LIFE LESSONS FROM MY MOTHER
BRING GRATITUDE INTO EVERY DAY
This year's newsletter is a series of "Life Lessons", in tribute to my late mother. They are lessons that have served me well as I apply them to mediation.
There's an old joke about a funeral of a man who was not well-liked and who the Rabbi delivering the eulogy did not know at all before his death. The Rabbi invited the attendees at the service to search their own memories and offer up something kind about the dearly departed. After a long silence, a gentleman stood up at the rear of the funeral chapel and shouted: "His brother was worse".
Mediators use a tool called "framing" to seize upon the natural tendency of loss aversion and the concomitant value placed on the certainty of a gain once offers and counter-offers are being exchanged in mediation. Once there is a reasonable demand and reasonable offer "on the table", the parties usually have a hard time rejecting the certainty of a settlement over the risk of "losing" that offer, or, for the Defendant, losing a much greater sum in a verdict at trial. The aversion from loss is, in terms of economic and decision-theory, more salient than the affinity towards an uncertain gain. For example, if you have a 10% chance to win $1000.00, or are given $1000.00, but told you have a 90% chance of losing it, you are likely to opt for the winning view, even though the odds are exactly the same.
My mother knew this concept instinctively. No matter what age or what condition she was in throughout her life, she knew that somebody was worse off and that she was very blessed. She expressed her gratitude for her great, good fortune every day. She knew that the potentials, the risks, the perils of life were much worse than anything she was going through, even as she aged and fought against a virulent disease process during her final years. She never saw the glass as half-empty, always as full. When asked what her favorite phase of life had been, she would always, always respond: "Today. This is the best time yet."
Interestingly, at the CELA conference, one of the "Winning Champions of Trial" revealed that the best case she ever tried was lost. Although she went on to win some exceptional cases, life holds no guarantees. If we can each assist our clients with some framing so that they can accept that the risk of losses may indeed outweigh the satisfaction gained by being able to control a certain outcome with an acceptable conclusion, we will all find more to be grateful for.
Happy Thanksgiving, from my family to yours.