The "Harding Effect" in mediation

In Malcolm Gladwell's book "Blink," he explores the manner in which people's almost instantaneous "visceral" perceptual reactions influence their decision-making process, for both good and bad. He also discusses how the use of language and images can powerfully affect those perceptions and alter behavior. I believe that Gladwell's observations have profound implications for the mediation process and in particular with respect to the subjective nature of the influence that mediators exert upon the parties and the influence that parties exert upon the mediator.

Gladwell posits that human beings analyze situations and issues and form conclusions in two main ways: immediately, at an unconscious and visceral level (in the "blink of an eye"), and also more slowly, using a methodical and analytical method. Gladwell's premise is that often the immediate, visceral, response, the "blink" of the title of the book, is, in a counter-intuitive way, more effective and more reliable than the slower, more analytical approach, although Gladwell notes that both approaches have their disadvantages and sometimes lead to the wrong conclusion or wrong result. Gladwell labels the "blink" approach as "thin slice," meaning that the analysis only requires a thin slice to be cut off the issue and quickly examined, without the need to examine the entire body of the issue in a more analytical way.

Gladwell provides many interesting examples in support of his theory. As the book opens, Gladwell describes how the "blink" can create the "right" reaction - to prove his point he discusses the purchase by the Getty Museum of a $10 million Greek statue. Before the purchase, the Getty subjected the work to a meticulous and lengthy analysis by multiple experts in order to verify its authenticity. By happenstance, a Getty director showed the statue to a famous art expert, who immediately upon seeing the work told the director that he suspected a fake. More experts then saw the work and immediately upon seeing it, they also expressed the view that it was a fake. While all of these experts expressed had their individual reasons, their uniform "blink" response was consistent - the piece simply didn't look right. Eventually the Getty concluded that the piece was likely a fake and was compelled to acknowledge that the authenticity of the piece was questionable. In this case the "blink" was more reliable than the slow and methodical analysis.

But Gladwell also discusses how the thin slice approach can create the "wrong" reaction. He uses Warren G. Harding, the former U.S. president, as an example. Harding was a small town, small time politician who was "discovered" by a member of the Republican "machine" and promoted through various public offices because he was incredibly handsome, athletic, had a forceful personality and mostly because he "looked Presidential." Harding was nominated and elected president on this basis, but in fact it turned out that his main interests were drinking, gambling, and womanizing and he was considered an exceptionally poor president. Gladwell calls the tendency to form an immediate, but mistaken, positive image of someone based on physical appearance or other attractive qualities the "Harding Error."

Finally, Gladwell notes how the use of words and images can change perception and behavior. He uses as examples several psychological tests in which words are "hidden" inside sentences. In one study, two kinds of words were hidden inside sentences. Some of the words were polite and some were aggressive. One group of people read the sentences that contained the polite words; another group read the sentences with the aggressive words. People from both groups were then told to report to a room down the hall and speak to a person in charge. When they arrived, they found the person in charge in a conversation with a third party. The conversation was a set up - designed to determine how quickly the person taking the test would interrupt the conversation and specifically whether those who read sentences with polite words would wait longer to interrupt than those who read sentences with aggressive words. There was an astonishing correlation - those reading the "polite" words waited a very long time to interrupt - some never interrupted at all. Those who read the aggressive words interrupted rapidly.

What does this have to do with the mediation process? More than you might think. At a very basic level, two things happen at mediation: first, the mediator exerts influence over the parties; and second, the parties exert influence over the mediator. The question is how this influence occurs and how those involved are affected by it. In the context of Gladwell's theories, the question is how the "blink" or the methodical, analytical, model affects these interactions.

It is surely the case that the mediator's choice of words must influence the perceptions and behavior of the parties. A mediator who speaks of a party's position in negative terms, or in a manner which is critical, condescending, dismissive or demeaning, should, according to Gladwell, have an impact upon that party's thinking. Similarly, a mediator who speaks in glowing terms, uses flattery, confirms the position of the party or compliments the party or the lawyers must have an equally significant impact upon that party's thinking.

At the same time, the parties are exerting, or attempting to exert, influence on the mediator. They do so by the words and images they use in briefs and during discussions with the mediator. Parties, like mediators, can use positive words and images or negative words and images. Like mediators, parties can flatter or criticize. They can be friendly or hostile, agreeable or argumentative. The mediator is likely conducting his or her "thin slice" analysis of the parties and their case - in this regard, the mediator is likely influenced at a "blink" level by all manner of issues, including the physical appearance of the parties, their lawyers, their clothing, their manner of speech, and their body language. The mediator, to be successful, must also have the ability to "read" the situation almost instantaneously. (Interestingly, Gladwell discusses this as well, and gives the examples of military officers who can instantly "read" a battleground or basketball players who can instantly "read" the basketball court.)

I don't presume to have the psychological skill or training to analyze these interesting issues in sufficient depth or with sufficient science to form reliable conclusions - like most mediators, I am more an amateur psychologist. However, what I find fascinating about the ideas in Gladwell's book, as they apply to mediation, is the interaction between the objective and the subjective. To some degree, cases are objective - they have certain facts and legal issues that are objectively verifiable. However, despite the objective nature of the facts and law, the subjective perceptions of the parties and the subjective perceptions of the mediator, for good or bad, have the ability to substantially alter the outcome of the case and likely do so. For example, what happens when the mediator perceives a party or his or her lawyer as a "jerk," or incompetent, or annoying? For that matter, what happens when a party views the mediator in the same way? Or when a mediator is "incorrectly" impressed with a party or the party's counsel (Harding Error)?

I think that there are several lessons to be learned from Gladwell's book. One is that better results in the mediation process might occur when lawyers, parties and mediators choose their words and images carefully and with the idea in mind that those listening to the words and seeing the images are more powerfully and instantly affected by them than we might otherwise think. Another is that mediators, especially, need to be mindfully aware of making the "Harding Error," and other errors based on thin slice reactions to parties and their lawyers. The last is that perhaps mediation is a process that benefits more from the careful analytical model, the careful parsing of facts and arguments and the analysis of risk - a process that takes time but ultimately is productive and effective.