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Bar Journal - Summer 2005

Good Mediators Don’t Ignore Emotion

By:


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.
1  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.
3  Emotions frequently arise when important goals are at stake and when peak cognitive performance is critical.3  Emotions fix a conflict, giving it shape and consistency.4  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.
5  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.
6     


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.
7  Often there is poor communication between a patient and a physician or a patient and his family.  A mediator can orchestrate that communication.8 


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.
9  Attempting to suppress emotion affects cognitive skills, particularly memory.  Doing so for a long time can worsen physical and mental health.10  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 expressions everyone uses regardless of culture or background.
11  However, according to Eckman, emotion is not always accompanied by facial expression.12  As we know, people often attempt to hide the outward expression of emotion and facial expression thus may not be an accurate reflection of the person’s true emotion.  One party in a mediation may be very angry, but smile at the other party, and at you.  That smile can last through the opening session and well into the mediation.  Or a party’s lips tremble.  The person may be sad, or angry, or both.  Mediators must interpret facial expressions appropriately. 


Speech also indicates emotion.
  Voices signal anger, happiness, resignation and other emotions.  Volume increases and decreases.  Speakers change tone, intensity and clarity.  Some changes in human speech pattern are more obvious.  For instance, anger is most obvious through the frequency and intensity of voice and speech.
13  Sadness generally leads to a decrease in frequency and intensity in voice.14  These two emotions are the most consistent in varying languages and studies and the most easily recognized.15  Fear and joy follow anger and sadness in terms of recognition.  On the other hand, disgust varies greatly.  Of course, speech and emotion vary from person to person and from culture to culture. 


Body language also communicates emotion.  Emotions trigger unconscious patterns of thought which influence how a person behaves.  For example, a person experiencing strong emotion may perspire, blush or have an increased heart rate.  Individuals may talk too much or too little to overcompensate.  Someone may sit alone in a chair away from the table.  These behaviors provide good clues to emotions. 


Use body language to identify emotional triggers.  Determining what causes certain feelings can help the mediator to detect what lies behind the feelings.
16  Triggers are both universal and individually specific.  A universal trigger is the fear one has after a near miss car accident.  An individual trigger is a fear of heights.17     


The best way to understand a trigger is usually to ask about it.  However, be careful Consider when and how to ask.  A party may not be comfortable discussing underlying issues too early or in front of everyone involved.  For instance, in a mediation between three long-time roommates, Nancy, Lisa and Joan, it becomes clear they need to adjust the sleeping arrangements.  A workable solution appears to be for Nancy to take the smaller bedroom and Lisa and Joan to share the larger room.  Yet you sense strong resistance from Nancy.  When you focus on Nancy’s resistance, you learn she has always shared a room and she is afraid of the dark.  As a grown woman she is embarrassed to tell Lisa and Joan about her fear.  Understanding Nancy’s fear allows you to focus the discussions without embarrassing her.  You may even be able to convince Nancy to discuss her fear with Lisa and Joan. 


Avoid stereotypes and personal assumptions.  For instance, some people assume females will talk about sadness and fear more easily than males, while males will express anger more easily than females.
18  Depending on the person, the situation and culture, those assumptions may not be true.  It is also important not to make assumptions about emotion.  Expressed emotion may mask other feelings.  The anger a mediator senses may be a defense against other emotions - fear, hurt, agony, or guilt.  Many emotions are substitutes.19  Dig for the hidden emotion.  It is often that hidden feeling that must be reached to help the parties move forward.


Discussing past emotional experiences can trigger emotion.  Simply talking about an emotional episode causes a person to experience the emotion again
.
20  It is important to be aware of a potential emotional episode and to be prepared to deal with it.  As parties tell their stories, find the feelings behind attributions, judgments and accusations, which, if left alone, may entrench defensiveness and misunderstanding in other parties.  Usually when there is blame, underneath it are other feelings.21  Explore the blaming statements to find the other feelings.  Otherwise, the party being blamed may shut down and stop negotiating.


Understanding grief reaction is particularly important.  Many participants in mediation are grieving over something: loss of a person; loss of a relationship; loss of property; or loss of control.  There are documented stages of reaction to grief.  Generally, the stages include denial, bargaining, depression, guilt, and acceptance.
22    


In denial, an individual’s ability to negotiate may be impeded.  He may not be able to participate actively in negotiation over the division of assets in a divorce.  He may not be able to discuss the end care medical plan for his father, or who should take Grandma’s china set now that Grandma is dead.  Sometimes denial is seen in business relationships.  One owner of a piece of property may not be able to assess how it should be partitioned because he has not yet accepted that a lengthy business relationship and friendship are over. 


In the bargaining stage of grief, an individual will try to postpone inevitable loss or prevent dealing with it by reaching agreement.
23  A wife in a divorce mediation may request that the house not be sold until the youngest child has completed high school.  While this may benefit the child, it may also be a bargaining position for the spouse, allowing her to postpone the inevitable loss of the house.


Depression, as part of grieving, often leaves parties with an inability to negotiate or move from any position.  A party may be unable to organize or to move forward.  Depression may also make some parties reactive, rather than active. 


At some point, most grieving parties feel guilty and may not have a strong sense of their own rights Because of the guilt, they may give things up to which they are entitled.  An accurate assessment of rights is important in mediation, even if the person cannot move past the guilt.
24      


People also express grief as anger.  The anger may be based on feelings of abandonment, powerlessness, or victimization.
25  The anger may be aimed at the party who “caused the grief,” or be directed internally, at the grieving person himself or herself.   Be prepared to deal with both possibilities.   


Not only are there stages to grief reaction, but the reactions may be immediate or take place long after trauma
.
26  Understanding the potential reactions to grief and the timing of those reactions is important.  Until a mediator acknowledges these emotions, it is unlikely a divorcing couple or grieving family members will be able to discuss potential solutions appropriately with one another.  In fact, upon recognizing those emotions, you may decide that mediation is inappropriate at the time, given the emotional state of one or more of the parties.  Whatever the basis of the emotion, recognizing it in mediation is necessary to help the parties confront and understand those emotions.  Assisting people to process emotion and let go, at least a little, is key to moving forward in mediation. 

 

How Emotion Affects Perception


An identical situation or experience can trigger different emotions in different individuals.  How a party perceives the dispute and the relationship that brings him to mediation determines how he will negotiate and what he will accept. 


Perhaps the most prominent causes of conflict are biased perceptions and assumptions.  They are also major causes of inappropriate bargaining strategies and outcomes.
27  Emotions affect how someone recounts an experience, and alter the way the individual relives it and stores it in his memory.28  Emotions affect perception of someone else’s actions or comments.   You can assist parties in reviewing those perceptions and assumptions and, perhaps, in changing them, but first, you must understand how emotion affects perception. 


Parties involved in the same situation may have significantly different perceptions of that situation.  Consider an example.  The father of four brothers died.  His will designated the eldest son as executor.  The estate was to be divided equally among the grown sons.  The executor and his two siblings who lived near the father sorted the household items and arranged for their sale.  While doing so, the three chose items they valued from the house and purchased them from the estate without telling the fourth brother or allowing him the same opportunity.  The fourth brother refused to agree to the accounting and brought an action against his siblings.  Although he received the same amount of money, he was denied the opportunity to choose items he valued from the house.  He assumed his brothers cheated him because they don’t think he had been as supportive of their father as he lived in another state.  The three local brothers assumed they were easing the fourth brother’s burden since he could not participate easily.  Regardless of their motives, the brothers had different perceptions.  You cannot assist the brothers unless you understand their different perceptions of the situation.   


Emotions change how an individual views the world and the actions of others.  Emotion prevents people from retrieving and using information they would otherwise have at their fingertips.
29  People evaluate experiences in a way that is consistent with the emotion they feel in order to justify and maintain their emotional state.30  Someone gripped by emotion interprets events to fit how he feels, often ignoring any fact or interpretation that does not fit his feelings.31  Individuals read emotional signs from others to determine how to interpret words and actions.  Expressions from others trigger the listener’s own emotional responses and color his interpretation of another’s words, motives, attitudes and intentions.32  Each person’s frame of reference provides the basis for his expectations about how people will behave, and the individual will act toward others in ways based on those expectations. 


To help the parties to process information appropriately, it is important to clarify the motives, attitudes and intentions behind statements to be sure all parties reach an agreement based on the same information.  Expectations also play a major role in negotiation.  If perceptions are inappropriate, expectations may be inappropriate as well.

 

How Emotion Affects Negotiation


Not only does emotion affect perception, it also affects how a party understands another’s position, statements or needs.  In negotiation, emotion affects an individual’s ability, willingness and success. 


Based on his frame of reference, an individual expects others to behave in certain ways and to act toward him in certain ways.  Often, individuals are wrong about their “understanding” of others.   Their mistake may be in their frame of reference, based on emotion. That emotion may overwhelm good judgment. 


Instead of concentrating on what is, parties concentrate on what seems to be.  Participants focus on what they desire rather than on what they can reasonably expect; on what someone has demanded rather than on what they can negotiate.
33  In those situations, emotion can undermine rational negotiation.34  People make choices which seem best at the time, but which they regret later on.


Many people have trouble acknowledging emotions, particularly strong ones.  People may try to deal with emotions by ignoring them or by framing the issues in order to exclude the emotion
.
35  The perceived costs in sharing emotion make raising them too big a gamble.  People may be afraid of hurt or disappointment, or of not being taken seriously, or being ridiculed.


Negotiation is inherently a social interaction.  Behavior is directed toward another party or meant to influence behavior.
36  Be aware of the emotion behind the behavior.  For instance, if there is more anger than compassion by one party, then there are likely to be fewer joint gains in negotiation.37  Some people use emotion for control.  A party may act out because he prefers known conflict to unknown resolution.38  Or a party may emotionally overreact or under-react.  Some people take positions and use tactics to defend against a hostile threat, even where no hostile threat exists.  They may not know any other way to negotiate.  They see no personal benefit in negotiating and they believe they can win.  While often legitimate, those reactions may be attempts to gain control of the mediation.39  Your task is to gather information about the emotion parties feel.  You must also be aware of how emotion affects negotiation.

  

Dealing With Emotion In Mediation


Even with an understanding of how emotion affects perception and negotiation, dealing with emotion in mediation is challenging.  A good mediator must be observant and prepared to deal with whatever the parties present.  In addition, you must be prepared to explore emotion in order to assist the parties in moving forward toward an appropriate response.  Each mediation will be different and the same approach won’t work every time.  However, there are some steps you can take to address emotion.      


First, listen. Hear words, tone of voice, cadence of speech, repetition. Be attentive to eye contact, facial expressions, body language and gestures from all parties.  Maintaining eye contact with the speaker is key to understanding emotion. It demonstrates you have heard the message.  Although you can still observe others in the room with glances to gauge reactions, expressions and body language, close attention to the speaker is essential.


Listen for subtext - there is almost always something.  Every statement has emotion.  Understand the importance of a party telling his story in his own words.  That process alone may provide the opening to the negotiation process.  Simply telling the story can provide an emotional release.  On the other hand, telling the story is also stressful.  Be ready to deal with the emotion that accompanies telling the story.  If the storyteller is sad, preparation may be as simple as setting out a box of tissues.  If the storyteller becomes angry, he may direct that anger towards others.  Parties may also get angry as they hear the story told from only one perspective, a perspective with which they disagree.  You must be prepared for the display of emotion and ready to find ways for all parties to deal with it.


Once you recognize strong emotion, you must acknowledge it.  A party will not let go of emotion and be ready to move on until he knows you have recognized that emotion.  When a participant shares emotion, affirm the effort and the emotion.  You might say, “I appreciate your willingness to share how you are feeling,” or, “I understand that John’s behavior made you angry.” 


Active listening is one way to acknowledge emotion.  An active listener decodes the message, identifies the emotion, and finds a way to restate the content to the speaker in order to clarify the message and the emotion.  For instance you might say, “You were really frustrated when the manager told you he could not give you a refund.”  The party can then verify that you “got it.”  “Yes, I was frustrated!  The store policy he gave me specifically stated he could make a refund.”  They key is accepting the speaker’s emotions without agreeing with the speaker. 


Try not to judge, attribute or blame.  Your task is not to evaluate the feelings, but rather to listen, understand and acknowledge them.  Whenever possible, take opportunities to allow participants to acknowledge the emotions of other parties.  While your acknowledgment helps, recognition from other parties goes even further.


You should acknowledge every person’s feelings as being equally important.  There is a balance between acknowledgment and appearing to agree with the speaker, between seeming overly sympathetic and losing neutrality.  You must be sensitive to the other parties, who probably have a different, but equally strong, perspectives on the same events.  For instance, in the prior example of a mediation in which the customer explained her frustration over the store manager’s refusal to provide a refund, when the store manager speaks, you might ask, “So you understood that Sheila expected a refund, but you don’t think she understood the policy you provided?  You explained to her that only where she had paid by credit card would you offer a refund.”  Use open-ended questions to acknowledge emotion.  Gather more concrete information without cross-examination.  You might ask, “Can you tell me why you feel that way?” or “How did you deal with those feelings?”  The best open-ended question is usually “Why?”  Check for understanding and acknowledge it. 


Expressing empathy is also an important part of dealing with emotion, both in joint and individual sessions. However, you must be careful. Appearing neutral is vital. You must be empathetic, and express appropriate sympathy, but not give the appearance of taking sides, both in caucuses and in the joint session.  Consider the difference between “I understand how you feel” and “I would have felt the same way.”  The distinction is critical to successful mediation.


Be aware of your own emotions.  As mediators, we will inevitably have emotional reactions.  However, despite these reactions we must remain appropriate.  Understand how your reactions affect your ability to respond to the parties’ points.  That includes appropriately responding to the parties regardless of your own emotional reaction. 


Consider a mediation between the parents of a baby born with significant birth defects and doctors, nurses and hospital administrators.  Emotions are high.  You are touched by the mother’s description of the birth and her reaction when she learned her daughter will never walk or talk or be a normal, healthy adult.  Perhaps you blink away tears or blow your nose and look away briefly to gather yourself.  An emotional reaction to that story is natural.  Acknowledge your reaction.  You might say, “Thank you for being so candid about your feelings.  I can see how hard it was to talk about that time.”  Then allow the other participants the same opportunity.  Look for a way to empathize with the other parties as they tell their stories.  It obviously won’t take the same form.  You might respond to the hospital administrator with, “Thank you for sharing your perspective.  I can see you have thought a lot about this situation and have come here to try to resolve these issues.”  While you may not react in the same way to anyone else’s presentation, your demeanor can still be open and encouraging.  Do not get stuck with the participants; rather, empathize and move forward.  While empathy is important, so is the ability to remain appropriate and neutral.  You cannot lose sight of the issues.


One excellent way to deal with emotion is to reframe it.  Reframing includes hearing the statement, issue or position, clarifying it and shifting it into a context that is more positive.  Reframing takes an unproductive statement and presents it in a new way so the parties can work with it.  Reframing includes an acknowledgment of the statement and a rephrasing of the idea with a positive spin.  For instance, one businessman says,  “You are insane!  That is the same thing you have been offering for a year!  It might have worked if we had agreed a year ago.  But after all this time, you have to pay me for the additional effort I’ve expended since you walked away from the business!”  One possible way to reframe it is: “You would like to consider different solutions that offer a wider range of possibilities.  You hope to find one that takes into account the impact on the business over the past year.”


Reframing requires using more than just positive language.  When reframing, identify the reason for the disagreement and what is important in the solution.  Try not to cross-examine the parties.  Be sure it is safe for the party to clarify, if he doesn’t agree.  Check for understanding, and then acknowledge that understanding.  Reframing may also change people’s perspectives.  For example, you might ask, “Imagine it is six months from now, what would your solution look like?” 


Paraphrasing also shows understanding.  Confirm the salient points and summarize them.  Reframing and paraphrasing are particularly important as they allow you to control the construction of an account and to create one that both parties will accept.
40  These techniques demonstrate understanding, moving the parties forward toward resolution, and allowing them to retreat from earlier positions without losing face.  Paraphrasing and reframing can allow the parties to look for agreement, convert a complaint or demand into a request, or rephrase it to eliminate emotional language that includes blame or liability.41  Doing so allows the parties to consider things differently. 


Another way to work with emotion is to solicit an apology.  Apologies can make the difference between settlement and impasse.  Often, an apology reduces tension and eases relationships.  Apologies are undeniably necessary in situations where the goal is to repair an ongoing relationship.  However, timing of an apology is important.  An apology at the wrong time or by the wrong person may be demeaning and inappropriate.  Obviously, appropriate timing differs in every situation.  For instance, in a mediation over appropriate payment to a woman injured in an automobile accident, an insurance adjustor’s apology early in the mediation may be appropriate.  However, in a dispute between business partners, discussion about how the parties feel and why they feel that way is probably necessary before an apology will be believed or accepted.  In an acrimonious divorce, the apology may need to be narrow and specific.  “I’m sorry, I wasn’t clear” or “I didn’t do that to hurt you” may help, but be sure the apology isn’t perceived inappropriately or as taking inappropriate blame for a bigger conflict.


Good mediators discuss emotions rather than ignore them.  However, any discussion must be appropriate and respectful.  Participants need to process their experiences and feelings at their own pace.  They should be allowed to talk about their experiences in order to let go and move on.  Nevertheless, you need to keep the discussion productive.  Participants can hear another’s point of view and thereby find a new awareness of that point of view. 


Provide time to deal with emotion early in the mediation.  Even where the topic is a traditionally “non-emotional” one, such as a business negotiation, taking time is important.  Don’t jump to finding solutions too quickly.  Providing enough time and not shortcutting the emotional sharing or attention to the parties’ descriptions and feelings is essential.  Without that early opportunity, hidden emotion may derail the negotiations later.  The parties must feel heard, acknowledged and validated.  Lay adequate groundwork in a joint session to be sure that the parties have had an opportunity to discuss those emotions.  The parties may learn things that are important to the settlement that they wouldn’t otherwise discuss. 


Parties often express the same sentiment in a different way.  One party yells while the other party blocks out the raised voice.  One shows emotion while the other sits stone-faced.  Both parties may be angry.  These patterns may require changing the process so that participants can express emotion in ways that others do not feel they need to block out.  Consider a family negotiating over the division of assets in an estate.  When one sibling talks, the others constantly interrupt.  The speaker simply raises her voice and keeps on talking.  Perhaps that is the family pattern.  The family members accept it.  But if the other parties are not listening, the mediation is affected.  Try changing the pattern for the mediation.  You might say: “Everyone will have an opportunity to share his or her perspective this morning. It would be helpful to be able hear your sister’s perspective now.”  Or, be more direct:  “Everyone will have an opportunity to share his or her perspective this morning; I would like to be able to hear your sister’s thoughts.  It might be helpful for you to hear them as well.”  Invite the participants to take notes, so they can recall their thoughts later on.  


Be aware people find it hard to express emotion and then simply to stop and listen to others.  Unexpressed feelings, too, will block the ability to listen and often will lower self-esteem and perhaps cause a person not to take good care of himself in a mediation.
42     


Emotions may be expressed quickly.  By the time a party gets to mediation, her emotion is probably established, although she may not be able to recall what triggered it.  You need to investigate in what stage of the conflict the mediation is taking place.  The more lengthy the conflict, the more hardened the emotions are likely to be.  Connections may seem less important; good memories may have faded or may have been replaced with bad feelings; new relationships may have replaced old ones.  All of these are important factors when dealing with emotion.  You can help parties to rewind – to remember what set off the emotion.  That recollection should help the parties to understand better how to deal with the emotion.
43   


You must act quickly when emotions are escalating.  Acknowledge and reframe the emotion before it spirals and takes the parties away from working toward a resolution.  You may change the agenda and come back later to the issue that sparked the emotion.  It’s your job to channel the emotional energy into working toward a mutually acceptable solution. 


You must also be aware of a party’s refusal to speak.  Refusal to participate may be an indication of a strong “negative” emotion such as fear, stress, or anger.  Acknowledging those emotions is especially important because they block creativity and inhibit people from moving forward.  However, you must be careful not to escalate the feelings or increase a party’s feeling of vulnerability because of these feelings.  If someone does not speak, allowing him time to decide to speak is appropriate.  Be sure the person feels invited and encouraged to speak.  If that is unsuccessful, consider the need for discussion with the party alone.


Most mediators believe venting emotion helps parties to “let go.”  However, the way people vent is important, particularly with emotions such as anger.  Venting can be an exercise in rehearsing the cognitive appraisal that arouses anger in the first place.
44  In other words, venting the anger may facilitate even stronger anger.  At some point, venting needs to be managed.  Venting should not become blaming.  Too much venting focused at another party can lead to an emotional spiral and unproductive mediation.45  If venting is done in conjunction with processing the emotion, it is more successful.46  You can provide an opportunity to redirect those emotions in a productive manner.   


While the mediation process belongs to the parties, you should appropriately exercise some control when there is a downward spiral.  Allowing parties to express the emotion is important, but it is also critical to ensure that the venting remains constructive so the other parties will continue to listen and understand.  If the venting becomes overly accusatory or melodramatic, the other parties won’t listen.  Balance allowing one party to be heard against a particularly inappropriate accusation or attack on another.  Although communication participant-to-participant is important, there are times when you should interrupt the flow to deal with emotion.  Consider this outburst from a participant,  “I won’t talk to you.  You don’t have any ideas of your own.  You’re only spouting what you heard from that a——— you married.  He has no say in how we divide mom’s property.  I’ll never understand why you married him.  He only wanted your money and now he wants mom’s…”  When communication becomes a tirade, you should interrupt the flow of vitriol.  One way is to step in and interrupt the speaker by saying, “I understand your concern that it is you and Mary who have to reach an agreement.  Now that Mary has given some suggestions, perhaps you could share some of your ideas.”


Airing differences is detrimental if done in the wrong setting.  Consider who is the room.  In a family mediation with children present, it is particularly important that emotion be expressed appropriately in order not to harm the ongoing relationships or to deter already difficult communications.  Consider a session, or a portion of a session, without the children present to enable the adults to discuss issues without concern for what the children will hear or how they will process the information.  Of course, the same is true in situations where there is a possibility or a history of spousal abuse or other violent relationships.  In those cases, it is particularly important that a mediator be competent to deal with the emotion and how it might spiral.  Decide when continuing mediation is inappropriate and even harmful.  In addition, you must be prepared and willing to consider outside resources to help both the parties and yourself.  Invariably, you will find a situation in which you will be uncomfortable and concerned for the parties.  That alone is a good reason to terminate the mediation session and get some assistance, perhaps from a counselor or another mediator.  You may want to proceed with a co-mediator who has some experience with the issues that cause concern.


Another way to achieve balance is to take timeouts and breaks to allow people to calm down and to allow emotion to dissipate.  Although keeping the parties together is often the most constructive way to mediate, private caucuses may allow people to process strong emotion.  Remember too that tone and communication are based on culture, family and interpersonal dynamics.  What is unacceptable to one group of people may be normal for another.


Be aware of illicit communication among parties.  Married couples develop idiosyncratic modes of communication.  Long-term business partners may be able to communicate with a look - one that means nothing to you.  Expressions, gestures and tone may communicate something that the mediator doesn’t understand.  You must be alert to non-verbal cues to prevent them from interfering with the mediation.


You will often find resistance at unexpected times and places in the process.  New emotions may surface, or the parties may finally face emotions they have ignored.  Often, people in conflict develop emotional attachments to positions.  They get stuck and can’t see the possibility of getting what they want by letting go of those emotions.  Help to identify those emotions and work with participants to let them go. 


In some mediations, when the parties deal with emotional issues is key.  You may ask questions to broaden the discussion.  After hearing the stories, you might ask questions to elicit discussion and explanation.
47


You can reframe the narrative to find areas of agreement, shared values and shared experiences that provide a base upon which to build toward an agreement with which the parties can live. 


In other mediations, you might choose to select a few issues, especially where the mediation will entail multiple sessions.  Help the parties to eliminate issues one-by-one.  Many parties want to spend a lot of time talking about what has happened.  While this is important and time discussing perspectives can be well spent, at the appropriate time you can help the parties to see that what happened before may not be of particular help in moving toward a resolution.  For instance, “We’ve spent two hours talking about your business and the disagreements that brought you here.  You can continue sharing your perspectives on that.  Or it may be helpful to turn to how you can maintain the business.  How would you like to spend the rest of our time?”   


Throughout the mediation, be sure everybody is comfortable at least with the process.  You may need to set limits or state concerns and model behavior.  While the mediation process belongs to the parties, where a party is uncomfortable with certain behavior, he may also be uncomfortable saying so.  It is important to recognize that and to create a more comfortable atmosphere.  For instance, when people are expressing strong emotions, yelling may be appropriate, but invading people’s physical space probably is not.  You might need to ask the parties to stay in one area, or to use a table which provides a buffer.  Perhaps it would be more comfortable if everyone remained seated.  You can explain the concern  “I’m pleased you’re comfortable expressing your feelings and I hear they are strong ones, but it is also important for all of us to feel comfortable in this space.”  You should also provide safe space. 


For instance, in one mediation over division of the assets of the estate, one of the decedent’s siblings was leaning on a table, yelling at his stepfather about an incident that took place years earlier.  Another sibling’s wife said to the mediator, “shouldn’t you make him stop yelling?”  The mediator responded, “I don’t think either of them can move forward until they deal with this issue.  It seems safer to let them deal with it here than somewhere else.  What do you think?”  She agreed. Five minutes later the interaction ended.  Everyone immediately took a break.  When they all returned, the participants were ready to move on.  Within an hour, the man and his stepfather were able to talk about the division of property. 


You can also model appropriate behavior.  Remain seated, use well-modulated tones, and do not raise your voice.  Remember though, to be aware of what is comfortable for the parties.

 

CONCLUSION


As a mediator, don’t be afraid of emotion.  By understanding how to incorporate emotion into mediation, mediators help minimize damage to long-term relationships and find solutions the parties can live with.  Confronting emotion in mediation leads to better solutions.  Good mediators recognize that.  We help the parties to process emotion along with other aspects of the dispute. 


Mediators do good work.  That work is even better if it includes helping the parties deal with emotion. 

 

ENDNOTES


1.   Diane E. Hoffman, Mediating Life and Death Decisions, 36 Ariz.L.Rev. 851 (1994). 

2.   Scott H. Hughes, Underlying Conflict in a Post-Modern World, 87 Marg. L. Rev. 684 (2004). 

3.   Paul Eckman, Emotions Revealed, 1 (2003). 

4.   Kenneth Clarke, Journeys into the Heart of Conflict, 4 Pepp. Disp. Resol. L.J. 224 (2004). 

5.   Eckman, supra at 1. 

6.   Robert Gutter, Unnecessary Adversaries At the End of Life: Mediating End of Life Treatment Disputes to Prevent Erosion of Physician-Patient Relationships, 79 B.U. Law Rev. 1109 (1999).

7.   Glenn Cohen, Negotiating in the Shadow of Death, Disp. Resol. Mag., 2 (2004). 

8.   Gutter, supra at 1114.

9.   Clark Freshman, et al., The Lawyer-Negotiator as Mood Scientist: What we Know and Don’t Know About How Mood Relates to Successful Negotiation, 2002 J. Disp. Resol. 31 (2002). 

10.       Id. 

11.       Eckman, supra at 1. 

12.       Linda A. Camras, et al., Facial Expression in Handbook of Emotions, 199 (Michael Lewis, et al. 1993). 

13.       Jeffery Pittam, et al., Vocal Expression and Communication of Emotion in Handbook of Emotions, 188.

14.       Id. 

15.       Id. 

16.       Eckman, supra at 18. 

17.       Id.

18.       Leslie R. Brody, et al., Gender and Emotion in Handbook of Emotions, 447.

19.       Eckman, supra at 87. 

20.       Eckman, supra at 34. 

21.       Douglas Stone, et al., Difficult Conversations, 97 (2000). 

22.       Nancy Lewis Buck, Grief Reactions and Effective Negotiations, 7 Negotiation Journal 71 (1991).

23.       Id. 

24.       Id. at 81.

25.       Id. at 78.

26.       Id. 

27.       Joseph P. Forgas, On Feeling Good and Getting Your Way: Mood Effects on Negotiator Cognition and Bargaining Strategies,  74 J. Pers and Soc. Psych. 565 (1998).

28.       Lisa Parkinson, Mediating with High Conflict Couples, 38 Fam. & Concil. Cts. Rev. 73 (2000). 

29.       Eckman, supra at 39.  

30.       Id. 

31.       Id. at 63. 

32.       Id. at 54. 

33.       L. Therese White, et al., Managing Client Emotion, 56 Disp. Resol. J., 16 (2001). 

34.       David S. Ross, Dealing with Feelings: A Special Challenge in Employment Mediation in Dispute Resolution Alert: An Update on World Developments in Arbitration and Mediation, 709 PLI/Lit. 797 (Michael D. Young, ed. 2004). 

35.       Stone, supra at 86-87. 

36.       Keith G. Allred, et al., The Influence of Anger and Compassion on Negotiation Performance, 70 Organizational Behavior and Human Decision Processes, 175 (1997). 

37.       Id. 

38.       White, supra at 15. 

39.       White, supra at 16. 

40.       Susan S. Silbey, et al.  Mediating Settlement Strategies, Law & Policy, Vol. 8, No. 1, 15 (1986).

41.       Id.

42.       Stone, supra at 89.

43.       Eckman, supra at 21.

44.       Allred, supra at 185. 

45.       Freshman, supra at 31. 

46.       Id.  

47.       Id. at 16.

 

Author

Melinda S. Gehris is chair of the NHBA Alternative Dispute Resolution Section, and Vice-Chair of the Dispute Resolution Committee. She was selected as one of 11 mediators in the NH Probate Court mediation program and is a volunteer in the Superior Court Rule 170 ADR program. She also mediates privately and teaches dispute resolution training. She is a shareholder of the Devine Millimet P.A. law firm in Manchester and represents insurers and businesses in court and dispute resolution matters.

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