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.

 

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