2005 Summer, 28. Good Mediators Don't Ignore Emotion.

• Author: Bar Journal Author - Attorney Melinda S. Gehris

New Hampshire Bar Journal

2005.

2005 Summer, 28.

Good Mediators Don't Ignore Emotion

New Hampshire Bar Journal Volume 46, No. 2, Pg. 28 Summer 2005 Good Mediators Don't Ignore Emotion Bar Journal Author - Attorney Melinda S. Gehris

INTRODUCTION

Mediating is challenging, sometimes draining, and incredibly rewarding work. Mediators act as the catalyst, educator, translator, expander of resources, bearer of bad news, agent of reality, and scapegoat.(fn1) Mediators face the challenge of delving beyond the parties' words and actions to discover what lies underneath the dispute. One often hidden element in mediation is emotion.

Disputes always include emotion. However, many parties and mediators choose to ignore emotion, or at best to consider it a corollary to other issues in a dispute. Ignoring emotion is a mistake. Skirting emotional issues does not allow the parties to reach the real issues at hand. Instead, mediation should use emotion as an important part of reaching resolution.

This article considers emotion in mediation. First, I analyze why a mediator should deal with emotion. Next, I discuss how to recognize emotion and how emotion affects perception and negotiation - important considerations for any for mediator. Then I turn to how a mediator can work with emotion in mediation. My purpose is to provoke thought and to provide ideas for consideration and examples to follow and adopt.

Why Deal With Emotion?

People mediate because they disagree with one another. People also mediate to resolve conflict. As mediators we assist them toward that resolution. Whether mediators use interest-based mediation or the transformative method, or any other type of mediation, in every form of mediation there is emotion.

People are never without emotion, whether it is recognizable or not. There is no thought, no memory, and no decision without emotion.(fn3) Emotions frequently arise when important goals are at stake and when peak cognitive performance is critical.(fn3) Emotions fix a conflict, giving it shape and consistency.(fn4) Emotions influence what concessions a person will make, when the person will make them, whether the party will continue to negotiate or reach an agreement, how the party will push another participant, and how a person will react to another's pushing. People often hold back feelings and, therefore, cannot make good decisions. People in conflict have a full range of emotions: anger; fear; disgust; shame; mistrust; sadness; betrayal, and many others. These emotions range in intensity depending on the type of conflict, the length of the conflict, and the people involved. Good mediators go beyond what parties say and do to assist the parties to consider those emotions.

Generally, Western culture is ambivalent about emotion.(fn5) Maintaining that ambivalence limits the success of mediation. Some participants and mediators prefer to deal with "the issues" rather than to worry about emotion. Lawyers in particular often focus on substantive matters, legal arguments, costs, benefits and effective concessions. Some lawyers consider ignoring and suppressing emotion better or easier. They define "irrational" behavior as "irrelevant" behavior. Or, perhaps, they find the behavior important, but ignore it during negotiation and assume they can deal with it later. In many cases, clients are angry and emotional and lawyers are unprepared to deal with that. They redirect emotions already in play.

In fairness to lawyers, most law schools teach them to filter out emotion and to look at facts, give opinions, and handle the disputes. Mediation is a process that puts emotion back in. Lawyers sometimes forget that those in the room have emotional needs that should be met in the process and in the outcome.

Failure to deal with emotion may mean the parties can't settle, or won't settle. More often the failure to address emotion stalls the process. As a mediator, you must be ready and able to deal with emotion, whether obvious or simmering under the surface. Only by tackling the emotion involved can you fully assist the parties.

Most conflict is about relationships. Emotion affects all relationships, not only family and close personal relationships, but also business, social, and community relationships - all relationships. Mediation works to minimize the damage to those relationships. Over time, parties may become more polarized, less likely to identify common goals, less able to communicate or cooperate and, therefore, find it more difficult to resolve their conflict. You can help identify goals the parties have in common, find a constructive framework, engage the parties in cooperation, and focus on the substance of the dispute. Even without settlement, mediation can interrupt the escalation of adversarial conflict.(fn6)

In some conflicts, ignoring emotion works. Where there is a short-term relationship or a societal one, emotion may not be as important a factor. The insurance adjuster may have little emotional attachment to what happens to a particular plaintiff. The human resource manager may not know, or particularly care, about one employee in a large multi-national corporation. The attorney for the corporation may have little concern about an individual shareholder. In those cases, the parties may not consider it as important to deal with emotion. However, there are significantly more situations in which emotions saturate the conflict. Some are obvious: family, divorce, probate, and end of life. In divorce and family disputes, there are long-term, ongoing relationships. People may be dealing with immediate emotional needs. They may also be contemplating life-changing issues like child custody, living arrangements for a mentally incapacitated individual, etc. Considering participants' emotional state is important.

In disputes regarding estates, participants usually have close connections, either familial or relationship-based. Most participants are grieving and often embarrassed because they are arguing over the possessions of the deceased. Economics may make obvious solutions impossible or improbable. Preserving assets may be of great importance to one party, where a relationship is more important to another. In many cases family dynamics have a stronger influence on the outcome of mediation than any other factor.

Many end-of-life mediations revolve around misunderstandings. For example, a patient refuses a ventilator because she is afraid of not breathing on her own. To the family, her refusal indicates depression or a wish to die, not fear.(fn7) Often there is poor communication between a patient and a physician or a patient and his family. A mediator can orchestrate that communication.(fn8)

Workplace disputes also involve strong emotions. Emotion controls decision making in most discrimination and harassment cases. Often, the issues center on human interactions and a sense of fairness. Mediation allows the employee to assert claims and discuss emotional issues in an environment that is also safe enough for an employer to explain decisions on a basis broader than just the law. For those disputes, mediation is more likely to facilitate a workable resolution and maintain a relationship.

Mediation also allows for creative solutions, which may not necessarily be about money. The Postal Service's REDRESS program is a good example. Begun to solve employment issues in the postal service, REDRESS provides transformative mediation focusing on relationships.

These are a few of the many disputes in which mediators and parties anticipate emotion. There are many other situations in which they do not. Consider a bankruptcy mediation. There may be a large number of unsecured claims. Any one of the creditors may be upset. Although the creditors will probably never interact again, the finite relationship doesn't necessarily eliminate emotion.

Whether confronted or not, emotions exist in all situations and failing to discuss emotion can have a rebound effect.(fn9) Attempting to suppress emotion affects cognitive skills, particularly memory. Doing so for a long time can worsen physical and mental health.(fn10) For the benefit of the parties and for greater success, you should deal with emotions in mediation rather than let them fester, particularly when long-term relationships are at stake.

RECOGNIZING EMOTION

To deal with emotion, you must first recognize it. Recognition is especially important where emotion is unexpected. For instance, in a divorce or family mediation, people expect to deal with strong emotion. On the other hand, in a mediation between two business owners over a shipping agreement, parties and attorneys are more likely to be unprepared for and surprised by strong emotion. Nevertheless, it may be there. You need to recognize it.

One obvious way to recognize emotion is through expressions and actions. Facial expressions, physical gestures, kinesics (body movement), proxemics (spatial relationships, orientation and space), touch, paralanguage (vocal variations in pitch, speech rate and loudness) and body language provide important clues for recognizing emotion. Most of the time facial expressions are a good indication of a person's emotions. Facial features usually make anger, sadness, happiness, joy and other emotions transparent. Frowns, smiles, and glares are easy to recognize.

Watching people before and during mediation is key. In his book, Emotions Revealed, Paul Eckman explains and identifies certain universal facial...