What does psychology have to do with mediation?

A lot actually …..

 

Many of you know that I studied psychology before I studied law. I’m not a psychologist, nor have I practiced as a psychologist, but I have always been intensely interested in the intersection of law and psychology. It is a significant driver in why I have focussed my mediation practice on claims involving highly emotional and personal issues.

As Paul Randolph said in his seminal book, “The psychology of conflict”, one of a mediator’s principal aims is to secure an attitude shift on the part of those in dispute, which can only be done by understanding the human characteristics and qualities that underpin many conflict situations. A good mediator, whether intuitively or deliberately, will identify and recognize the psychological factors at play and work with them to bring about a change in attitude and shift in perceptions as to the outcome of the dispute.

This post is the first in a series outlining some of the psychological factors at play and the role they play in the various aspects of the mediation process.

If you remember only one thing from this article – remember this – it is highly unlikely that a shift in the attitude of parties in dispute will be achieved solely through rational argument and logical persuasion. This is because each argument will have both a rational and emotional element – for example

“I’ll accept X$”          rational: because we suffered that defined economic loss

                                   emotional: I feel angry and betrayed that you caused me loss

“No, I’ll offer 50%”   rational: the claim is inflated

                                   emotional: I’m being manipulated

It’s the emotional element that turns a difference of opinion into an intense dispute, particularly if the emotional element triggers an “amygdala hijack” – the adrenaline and cortisol released by the amygdala shuts off the cortex, the part of the brain that processes logic and reason, making it hard to think clearly and rationally about a situation.

Obviously there is a role to play in outlining legal arguments and the application of facts – however remember that in the vast majority of cases the parties are legally represented who have already considered the strengths and weaknesses of their client’s case. Simply repeatedly stating that the other side is wrong and telling them to accept it is not the most effective way to reach the common ground of a dispute – in fact doing so, particularly in front of someone else (such as a client, colleague or significant other), may be perceived as a threat and amygdala kicks into overdrive.

Honestly – how often have you prepared a detailed position paper or opening statement which is akin to submissions and the other side says “you know what, you’re right, I’ve never looked at it like that”?

As they say, there are many ways to skin a cat, the strengths of your client’s position can be articulated in a way that prevents the amygdala hijack and creates the optimum environment for resolution. If your strength is in your adversarial approach, or your client wants you to adopt that approach, then appoint a mediator that is likely to identify the identify the emotions at play and work with them.

The next post will look at the role that each participants’ self esteem could have in the mediation and how it could impact negotiations.

 

If you would like to learn more about R3 Resolutions’ offering and approach, subscribe at www.r3resolutions.com.au; follow us on Linkedin and email our Principal, Julie Somerville on jsomerville@r3resolutions.com.au.

 

What do mediators and hostage negotiators have in common?

They are both using skills that seek to reduce the impact of negative emotions that have derailed someone’s ability to think rationally.

 

Both parties to a dispute usually have fairly strong views on the strength of their claim, both in terms of liability and quantum, and it may seem that the prospects of them settling is remote. This is even more so in claims involving intensely personal and emotional issues. While a good legal representative will assist by providing an analysis of the issues, even then there is the potential for issues to impact on the legal representatives approach to the negotiations too –  Just think of how you felt when your opponent failed to comply with the Court timetable which in turn put you under pressure, served evidence on the eve of the mediation which meant you needed to pull an all-nighter to draft an update advice to your client or was not as cooperative as you would have hoped when organising expert examinations – makes you less likely to work collaboratively with the other side doesn’t it!

To attempt to reduce the impact of these dynamics you will see a good mediator using the same skills that a hostage negotiator uses to ensure that the right environment is created for a resolution of the situation. That is:

Active listening – By using open-ended questions, emotional labelling, mirroring/reflecting, silence, and paraphrasing a hostage negotiator and a mediator will learn a lot about what each parties interests are and what is underlying their demands.  By identifying these interests and needs its only then that there can be active exploration of how those interests and needs can be met.  A red flag is if a party repeats the same statement on multiple occasions – usually a good indicator that they do not feel that they have been heard. It is very difficult to move negotiations forward if one party does not feel heard.

Time – slowing things down.  Some parties need to slow it down to process each stage of the negotiation. Time can go along way to deescalating emotions and removing toxicity in interactions. Time is also needed sometimes to enable the mediator to build empathy and rapport with the parties so constructive negotiations can be facilitated.   

Empathy and Rapport. It is critical that both a hostage negotiator and a mediator is able to build rapport and exhibit empathy. In a mediation that needs to be done with both parties and their lawyers. Look for a mediator that is able to easily build rapport with parties and lawyers from a wide range of backgrounds. Without that rapport it is unlikely that the right environment will exist for empathy to be exhibited. And without empathy – the mediator will not be able to recognise and understand each parties perspective and start helping the parties to find the common ground.

Handing over control – Litigation is stressful for an individual participant, and for an institution it is full of uncertainties. Most people, when in a stressful and uncertain situation, feel out of control and that, in turn, can push them towards the flight/fight response.  What they need is to feel some control. This is where mediation comes into its own. It allows the parties to have some control over the outcome of the dispute, and not have it forced on them by a Court or other decision maker. Throughout the course of a mediation a  good mediator may also provide a person some control over certain parts of the mediation, for example allowing a party to have a break for a period, or requesting an apology or certain information that is important to that party.  If a party feels they are engaged in, and have had some control over, the mediation then they are much more likely to be in the right frame of mind to negotiation a resolution.

I have found these skills markedly increase the prospects of successful negotiations, whether in the context of a mediation or otherwise. I implement each of these skills when I am speaking with parties as a mediator, and I particularly encourage mediation participants to really listen to each other during the course of a mediation.

 

If you would like to learn more about R3 Resolutions’ offering and approach, subscribe at www.r3resolutions.com.au; follow us on Linkedin and email our Principal, Julie Somerville on jsomerville@r3resolutions.com.au.