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The Biology of Decision-Making

It is a common understanding among trial lawyers that decisions are made emotionally and not rationally. We are always looking for the emotional hook on which to hang the case and sway a jury to see the case through that emotional prism. Now science is teaching us that decision-making is actually physical. In a recent article in the New York Times, John Coates, a research fellow at Cambridge, who studies the body’s physical response to risk, has identified the body’s stress response as having a powerful influence on risk taking and decision-making. This has to do with the level of cortisol in our bodies–the higher the level of cortisol the lower the appetite for risk.

According to Coates, cortisol levels are raised as uncertainty increases, and this physical stress response lessons our appetite for risk.
This is powerful information in the hands of a skilled mediator. Increase the level of risk in a given case and the physical reaction (cortisol level) will make a party more risk adverse and more likely to settle in order to avoid risk and lower the body’s stress response. We have understood this on a rational level. Mediators constantly describe the unpredictability of juries, the risk of losing, not recovering the extent of damages sought by a party, having to pay the other sides attorneys fees, as a means of identifying risk in a case. We often engage in a discussion of risk tolerance–which party can better tolerate the risk of loss–as another means of rationally persuading a party to settle a case. Turns out, we have been on to something that we did not know or understand. The more we raise the level of risk for a party, the more likely their body’s physical response to risk will cause them to be more risk adverse and to settle the case.

— Bruce Friedman

Category: Bruce's CornerBy bfriedmanJune 18, 2014
Tags: Benefits of Mediationmediationmediator

Author: bfriedman

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Blog Categories
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Recent Posts
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    March 24, 2016
  • As Featured on Law360: Shepherding Insurers Through The Mediation Process
    October 9, 2015
  • Featured on Law.com: Impasse-Busting Techniques – Part 2
    September 10, 2015
  • As Featured on Law.com: Effective Impasse Busting Techniques
    May 8, 2015
Testimonials
  • [Bruce] knows when to talk, when to listen, and how to work the room.”

    James Thompson
    JPT Legal
  • Bruce took time to point out parts of each side’s case that could be made stronger and parts that could be deemphasized or omitted. Bottom line: the client came out of the exercise with a more focused case and better able to advance its positions. Bruce was superb.

    Ellis Mirsky
    The Network of Trial Lawyers
  • Bruce was prepared and understood the issues and the practical aspects of the cases. I really appreciated Bruce’s efforts in continuing to work with me and opposing counsel and his perseverance in settling the case.

    Frederick S. Reisz
    Meyers McConnell
  • I have known Bruce for years and highly recommend him. As a native New Yorker, he will be hearing significant matters in NYC as well as in L.A.

    Jeffrey Kravtiz
    Fox Rothschild
  • Bruce’s willingness to continue to follow up with both sides to settle the matter and his efforts in speaking directly with the clients to explain the issues and possible outcomes should the case proceed to trial were invaluable.

    P. Garrell
    Liner Law Firm
  • From the outset of the mediation, it was clear that Bruce understood the case and structure of a class action settlement. He was effective in his discussion of the issues in the case and made many helpful and constructive suggestions with respect to the negotiating process and the settlement terms.

    Tim Blood
    Blood, Hurst & O'Reardon LLP
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