It is a common understanding among trial lawyers that decisions are made emotionally and not rationally. Attorneys 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 that decision-making is actually physical. In a 2014 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. Mediators have understood this on a rational level. We constantly talk to counsel and their clients about the unpredictability of juries, the risk of losing, not recovering the extent of damages sought by a party, having to pay the other side’s attorneys’ fees, as a means of identifying risk in a case. There is usually a discussion about 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 the risk raises for a party, the more likely their body’s physical response will cause them to be more risk adverse and settle the case.