The development of negotiation theory and growth of mediation has greatly improved, indeed transformed, how disputes are resolved in America and, increasingly, around the world. Yet I have been struck in my work as a mediator and teacher that something is missing from our approaches to settlement. In emphasizing so strongly the creative potential of these techniques we have obscured an equally important reality—that in even the best settlement negotiations many, perhaps most, parties must deal with significant feelings of loss.

The perception of disputants that they are losing as they bargain is important for several reasons: Emotions stimulated by loss have a special intensity and often appear without warning, at times when the bargaining process is most vulnerable. The behaviors provoked by these feelings resemble tactics used by adversarial bargainers, magnifying their disruptive impact. Finally, for some disputants, like the 9-11 widow above, their case takes on a significance that makes them reluctant to resolve it on any terms. I have come to believe that disputants’ struggles with perceptions of loss, and the feelings and behaviors they stimulate, are a primary reason that settlement negotiations fail.

In this article I will explore the following issues: What causes parties to feel they are losing as they negotiate to resolve a dispute? What emotions does this experience provoke, and how do they affect parties’ bargaining behavior? And what strategies can mediators use to deal with these feelings and behaviors, to assist parties to settle?

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