Information … has no meaning until its significance is evaluated by a person.1
Feeling—emotionality—is the sixth sense, the sixth critical human filter through which we make sense of the universe.2
Mediation and more formal legal processes have much in common: their subject matter is disputes; their participants are disputants; and an independent third party plays a key part in their resolution. Yet there are significant differences. In adjudicative processes that third party is the decision-maker; her perception of the facts and evaluation of what is just are definitive. The parties’ perceptions of facts and justice are secondary, and can quite reasonably be biased and self-serving. In mediation the parties are the decision-makers. Their perceptions of the facts and evaluations of justice carry the day.
We argue that it is the necessity of this context (rather than personal inclination) that drives mediators to focus on the emotional realm. As this chapter sets out, there are clear links between emotion and perception. If parties are emotionally aroused by anger, fear or a sense of injustice it will influence their perceptions and thus their judgements about what is true or false, right or wrong.3 Formal adjudication sidesteps this phenomenon by delegating decision-making power to the third party, although some question the capacity of judges to immunise themselves against ‘catching’ the emotions of others.4 Mediation imposes a different discipline: the job is not done until first and second party decision-makers agree. If emotions affect their perceptions, mediators have little choice but to work with those emotions until the parties’ perceptions of facts and justice overlap sufficiently for them to reach consensus.5
Some years ago one of the authors of this chapter conducted a workplace mediation between two senior colleagues, a man and a woman with long-standing enmity. The woman set out a litany of slights, offences and outrageous behaviour by the man, who had ‘risen through the ranks’ of the organisation. In her eyes he was aggressive, loud and thoughtless. He responded by cataloguing her many failings (in his eyes) as a senior manager. She retorted that another senior colleague supported her view. The man seemed temporarily silenced; then shook his head and stood up, leaving the room. He was clearly close to tears.
The woman was astonished. She said ‘That’s not Bob.6 I’ve known him eighteen years and I’ve never seen him like that’. Although the man was considerably embarrassed by the episode it transformed the atmosphere of the mediation. There followed a period of mutual problem-solving for which both parties took responsibility. Ultimately they wrote an agreement about how they would work together in future. This episode illustrates both the significance of emotions and their ‘recursive’ quality: while the environment may trigger the emotion, ‘emotions can and often do change the environment’.7
Mediation provides a useful lens through which to consider the place of emotion in disputes. Its multidisciplinary roots embrace law, psychology, economics, international relations and, more recently, neuroscience.8 Mediators themselves have shown ambivalence about emotions, with practice lurching between intrusive fascination9 and denial. Indeed, one prominent pioneer even questioned the usefulness of emotional information.10 Commercial mediators have tended to stress pragmatic solutions and efficiency. As the chapter by Clare Huntington shows,11 other domains, such as family law, favour mediation precisely because of its capacity to deal with emotional concerns.
This chapter starts with an overview of the approach to emotion within the mediation ‘canon’12 before considering two domains that hold promise: empathy and emotion regulation. Our perspective is shaped by findings from neuroscience and psychology suggesting that the distinction between emotion and rationality is a false dichotomy.13 In this view emotions play a key role in perception (how we receive data from the outside world) and judgement (how we evaluate those data). Both are central to the legal system, playing critical roles in establishing truth and justice. The chapter has three sections:
—The developing understanding of emotion in mediation.
—The nature of empathy and its significance in mediation practice.
—The way in which emotional self-regulation is harnessed and supported by mediators.14
We conclude that mediation offers the justice system a setting in which emotions are integrated into decision-making. For mediators, emotions are not just an unfortunate by-product of disputes but a key factor in their resolution, providing both information and motivation. We describe in some detail the operation of empathy and emotion regulation in mediation; this should prove useful both for mediators and others such as lawyers, judges and arbitrators who become enmeshed in other people’s conflict.
Law has long been wary of emotion. ‘Blind justice’ portrays the ideal judge as unaffected by human influence. Maroney recognises ‘the traditional view of emotion—a view strongly reflected in legal theory—as a savage force that unseats rationality, distorts judgment, manifests in impulsive aggression, and imperils social bonds’.15 This view chimes with older notions of the passions’ rightful place as slave to reason,16 and serves to position law as the heir of Enlightenment ideas opposing rationality to emotion and superstition. As MacIntyre claims, ‘the lawyers, not the philosophers, are the clergy of liberalism’.17
Mediation and its close relation, negotiation, have been influenced by this history. Many mediators are lawyers; after all, lawyers and the courts are gatekeepers to and consumers of their work. This position ‘in the shadow of the law’18 may explain why mediators have adopted significant elements of the law’s approach: ideas like ‘neutrality’, ‘without prejudice’ and the goal of a legally binding outcome.19 It may also account for their ambivalence about emotion: as Mayer says, ‘folk wisdom suggests that a negotiator (1) should avoid getting emotional and (2) is a passive recipient of the whims of emotion’.20 Meanwhile, Riskin states that: ‘Negotiators—especially those trained in law—commonly address this problem by trying to exclude emotions from negotiation and to focus solely on so-called objective, rational factors, such as money’.21 Moore suggests mediators ‘neutralize’ anger;22 Strasser and Randolph assert that ‘to remain in conflict with another defies rational scrutiny’;23 Roberts claims mediators transform interactions by ‘embodying the principles of objectivity and reasonableness’.24 In a similar vein, Haynes sought to limit the reach of mediation on this ground: ‘Conflict over issues is resolvable in mediation: conflict over behaviour is resolvable in therapy’.25
Reviewing mediation’s approach to emotion, we acknowledge different models of practice. Some, such as Bush and Folger’s ‘Transformative Mediation’26 and Winslade and Monk’s ‘Narrative Mediation’27 are explained in a single volume. The ‘mainstream model’28 is more diffuse, drawing inspiration from several sources, as we shall see below.
Also known as the facilitative or problem-solving approach, this model is pervasive in the Western world. Most mediation training uses it, although practitioners have adapted it to a range of contexts.29 One canonical document is The Mediator’s Handbook, first published in 1982.30 Evoking Quaker principles of consensual decision-making, its seven-step structure31 is surely one of the field’s most influential ideas. The Handbook abounds with references to individual emotions,32 reflecting our observation above that, when clients are decision-makers, mediators must take them as they are: ‘The mediator provides a structure for parties to increase honest communication, air emotions, and solve problems. In effect mediation gives angry people a chance to bring out the best in themselves’.33 Unsurprisingly, among the characteristics and skills of a good mediator the Handbook lists ‘comfortable with high emotion, arguments, interruptions, tears’.34 Its ‘conflict core’ includes emotions such as annoyance and disagreement.35 Regarding goals, the Handbook reflects a common mediator aspiration to go beyond mere settlement. Its hope is for conflict to be ‘transformed’,36 and among the characteristics of conflict transformation is ‘easing their emotional state’.37 Three pages are devoted to emotionally difficult situations, including ‘extreme anger’, ‘anguish, crying’ and ‘the silent one’.38
It seems, then, that this founding document of mainstream mediation is at ease with emotion, treading a ‘via media’ between intrusion and suppression: ‘Accept but don’t press for emotions’.39 High or negative emotion is viewed as a manifestation of conflict; resolve the conflict and the emotion will reduce. Mediators should condition themselves neither to overreact to, nor to ignore, emotional displays.
Another keystone of mainstream mediation is a negotiation text: Fisher, Ury and Patton’s Getting to Yes.40 Its core idea, ‘principled negotiation’, has been widely adopted by mediators. However, its first principle may have created an impression of discomfort with emotions. The injunction to ‘separate the people from the problem’41 bears a surface resemblance to legal negotiators’ conventional wisdom, described above, to exclude emotion and focus on facts.42 Its intention, however, is the opposite: ‘separate the relationship from the substance; deal directly with the people problem’.43 Emotion is a key concern: ‘In a negotiation, particularly a bitter personal dispute, feelings may be more important than talk’.44 Subsequent guidance resembles emotion regulation:45 ‘First recognise and understand emotions, theirs and yours’; ‘Make emotions explicit and acknowledge them as legitimate’.46
Despite the success of Getting to Yes, its authors have been accused of naivete and idealism.47 Possibly as a result they have developed and expanded their ideas. Ury’s Getting Past No includes advice resonant with emotion regulation: ‘You obviously can’t eliminate your feelings, nor do you need to do so. You need only to disconnect the automatic link between emotion and action’.48 Strategies for disarming one’s negotiation counterparts49 include acknowledging their emotions and helping them save face. In 2005 Fisher and Shapiro’s Beyond Reason dealt explicitly with emotions.50 This book offers practical tools enabling negotiators to work with their own and their counterparts’ emotions via five ‘core concerns’: appreciation, affiliation, autonomy, status and roles. Praised as a ‘structured, portable methodology’51 it teaches negotiators to attend to these five concerns so as to understand and influence emotion.
Another ‘mainstream’ text, Mayer’s The Dynamics of Conflict Resolution, both acknowledges and integrates emotion.52 His ‘three dimensional’ model of conflict sees resolution proceeding along cognitive, emotional and behavioural dimensions.53 If people feel less strongly about the dispute, emotional resolution is achieved. Emotions are volatile and mercurial, however, and it can feel like ‘one step forward, one step back’. Examples of ‘emotional resolution’ include:
—Feeling they are accepted as individuals and their personalities and values are not under attack.
—Feeling they can maintain dignity or ‘face’.
—Having their core needs respected and addressed.
—Having enough time to gain perspective and experience healing.
—Having others accept their feelings as valid and values as legitimate.
—Feeling genuinely and non-judgementally heard.54
In 1994 two critics of mainstream mediation practice, Bush and Folger, launched what they claimed was a radical alternative in The Promise of Mediation.57 Substantially rewritten in 200558 this book is a stinging rebuke to the traditional approach, which they accused of ‘squandering’ mediation’s potential in order to ‘shore up institutional processes that operate to control, contain and settle conflict’.59 Instead, they propose a different model, that of ‘transformative mediation’. This rejects the notion of achieving resolution by solving problems and settling disputes. The promise of mediation is fulfilled instead by focusing on the parties’ relationship, with mediators supporting ‘empowerment’ and ‘recognition’. Thus, ‘parties can recapture their sense of competence and connection, reverse the negative conflict cycle, re-establish a constructive (or at least neutral) interaction, and move forward on a positive footing’.60
The overarching theory of transformative mediation61 holds that conflict renders people weak and self-absorbed. The by-products of weakness include ‘confusion, doubt, uncertainty, and indecisiveness’,62 while self-absorption makes them ‘suspicious, hostile, closed’.63 The authors rarely explicitly mention emotions although they acknowledge that fear, blame and anger contribute to conflict escalation.64 Transformative mediation aims to deal with this weakness and self-absorption by restoring human agency and social connectedness.65 This is manifest in the twin notions of ‘empowerment shift … from weakness to greater strength’ and ‘recognition shift … from self-absorption to greater understanding of the other’.66 To these phenomena Bush and Folger attribute many of mediation’s benefits such as restored relationships and improved ‘sense of competence and connection’.67 ‘Weak and self-absorbed’ parties are thus transformed to become ‘strong and responsive’.68 Words like ‘positive’ and ‘constructive’ pepper the text.69 Any emotional dimension to these benefits is not spelled out. ‘Empathy’ is defined as ‘the capacity to understand the situations and perspectives of others’,70 entirely omitting affective components.71 One might conclude that transformative mediation shares Enlightenment prejudices favouring rationality over emotion.
However, the authors later went on to legitimise the expression of emotion and voice criticism of those who don’t follow suit: ‘To ignore, sidestep, or stifle expressions of emotion is … to squander the opportunities for empowerment and recognition that these expressions present’.72 This sentence illustrates the ‘single track’ nature of transformative mediation. Emotions are useful insofar as they support the model’s intellectual architecture.
Transformative mediation is used by the US Postal Service, claiming some credit for improving that organisation’s famously combative employment culture.73 However, it has been criticised for its authors’ early claim that the model could not be combined with others,74 and also because of its rejection of settlement,75 the shortcomings in its underlying theory of moral development76 and for being ‘grandiose, intransigent, and exclusivist’.77
Another approach is seen in Narrative Mediation, by Winslade and Monk. Stories are central: ‘the narrative metaphor draws attention to the ways in which we use stories to make sense of our lives and relationships’.78 Although not the first to apply a narrative lens to mediation,79 the book elevates it into a coherent model. Steeped in social constructionist philosophy, its authors view stories as creating rather than reporting reality.80 Stories of disputes both describe and contribute to conflict, typically preventing consideration of alternative explanations. The mediator’s job is to create space for alternative storylines. While, as with transformative mediation, the main thrust of the activity seems cognitive,81 emotions are recognised insofar as they inform people’s narratives. One of the book’s case studies mentions ‘hurt’; ‘injustice, betrayal’; and ‘guilt and self-blame’.82 The mediator’s goal is to ‘deconstruct’83 such stories and work with parties to construct an ‘alternative’ or ‘preferred’ narrative.84
The emphasis on building a trusting relationship draws heavily on the model’s therapeutic roots85 reflecting Rogerian ideas of ‘unconditional positive regard’.86 The authors cite Gergen’s claim that we are ‘born into relatedness’,87 an approach aligning with social baseline theory, which holds that social connection, not isolation, is the human norm.88 They reject, however, suggestions that emotions are inherent or ‘essential’, viewing them along with other aspects of experience as constructed in discourse: ‘It does not make sense to say that people have thoughts or feelings on the inside that precede their expression. It makes more sense to speak about how discourses and linguistic formulations make up our subjective experience’.89 There is therefore much to play for in mediation, where individuals can construct and reconstruct their emotional world.
Notwithstanding scant reference to emotions, narrative mediation offers much to the emotional domain. Its recognition that culture influences how we construct reality raises the possibility of dialogue about the emotional expressions legitimised within particular cultures. Its relational practices create conditions for building empathy between mediator and parties.90 And instead of locating conflict within individuals it lifts the mediator’s gaze to the wider system: ‘The person is not the problem; the problem is the problem’.91
Mediation has not been immune from wider and more recent developments in psychology and neuroscience. While in 2000 it could be said that ‘lack of detailed attention to emotions and relationships is the biggest gap in our understanding of conflict’,92 the influence of neuroscience, cognitive psychology and perhaps the maturing of the field have yielded contributions from a range of writers. Below, we provide an overview of some of the more interesting and relevant connections.
In 2001 Jones and Bodtker argued for the centrality of emotion in conflict, challenging the ‘false duality of rationality vs emotionality’.93 They urged mediators not to see emotion as a ‘side effect’ but rather as a ‘framer … a social construction through which the disputant defines the conflict reality’.94 Their prescription for emotionally-confident mediators includes advice on dealing with ‘emotional flooding … being swamped by emotion to the extent that one cannot function or think effectively’95 and ‘emotional contagion’, the tendency to ‘catch’ others’ emotions.96 They suggest that cognitive reappraisal97 holds promise when emotions are triggered by conflict, but caution that this requires skill on the part of the mediator. Their emotion-eliciting and reappraising questions are similar to the ‘externalising conversation’ techniques of narrative mediation:98 the approach could be characterised as ‘externalising emotions’.99 In effect the mediator invites someone experiencing an emotion to step a little distance away from it; observe, describe and reflect on it; then decide how to respond.100
In 2006 Jones presented a model explaining how individuals experience emotions. A triggering event is followed by appraisal (interpretation of the triggering event) leading to an emotion (appropriate to that interpretation). The emotion produces somatic reactions (physiological changes preparing us for the action we need to take) which in turn lead to action tendencies (the disposition to behave in keeping with all of the foregoing).101 Sometimes known as the ‘path to action’102 this model reflects research by ‘appraisal theorists’ such as Lazarus.103 Damasio states: ‘Emotion and feeling, along with the covert physiological machinery underlying them, assist us with the daunting task of predicting an uncertain future and planning our actions accordingly’.104 Emotion and thinking are intimately linked, and each requires the other for accurate perception. Damasio also links mind and body; emotions work by comparing new perceptual data to a ‘background feeling’, the ‘image of the body landscape when it is not shaken by emotion’.105
The implications for law and mediation are clear: if accurate perception is important we must attend to the emotional domain. Jones challenges mediators to become emotionally literate because working with conflict inevitably means working with emotions. First, mediators should learn to decode emotions;106 second, they should use elicitive questioning to help parties identify their emotional experience; and finally they should help parties reappraise their emotions.107 Barker also calls for emotional literacy, suggesting that mediators should ‘stay with the heat’ because emotions ‘often hold the key to unlocking conflict at a profound level’.108
Schreier’s 2002 survey of 36 mediation training organisations109 confirmed her hypothesis that insufficient attention was given to teaching mediators to deal skilfully with emotions.110 Attitudes appeared to be changing with trainers calling for mediators to develop skills in both handling emotions and in emotional self-regulation. One spoke of the ‘old way (repressing emotion in the room) and the new way (allowing it in)’.111
Bowling and Hoffman’s influential 2003 collection Bringing Peace into the Room proposed a systemic conception of the mediator’s role.112 Questioning the conventional view of mediators as neutral, they suggest they are ‘being influenced by the process as much as influencing it’.113 Thus, ‘the feelings the mediator experiences may be vital material that the mediator can use—albeit judiciously—in helping the parties reach a resolution’.114 The authors champion reflective practice because mediation requires head and heart. Similarly, Johnson and others challenge mediators to develop emotional intelligence, focused on four areas: ‘Self-Awareness’, ‘Self-Management’, ‘Social Awareness’ and ‘Social Skills’.115 And Gehris warns against ignoring emotion, suggesting mediators learn to recognise emotions via facial expressions,116 speech, body language and discussion.117 Techniques include acknowledgement, active listening, expressing empathy and drawing on the mediator’s own emotional response.118
Negotiation research has also highlighted the importance of emotions. Potworowski and Kopelman distinguished between ‘Emotional Intelligence’ (a trait) and their proposed model of ‘Negotiation Expertise in Emotion Management’ (NEEM) (which can be learned).119 The capacity for NEEM requires ‘sensitivity, ability, and inclination’120 so that the negotiator learns to distinguish the other party’s helpful, unhelpful and irrelevant emotions. Gaspar and Schweitzer noticed the importance of emotion in deception and developed a model taking account of ‘incidental’ and ‘integral’ emotions en route to the ‘anticipated emotion’ that the deception is designed to achieve.121 Decision-making by negotiators is affected by both incidental emotions (such as feeling annoyed because of a difficult journey or grateful because a stranger held open a lift door) and integral emotions (such as being stressed by a deadline or irked by the counterpart’s demeanour). Intriguingly they cite Ruedy et al’s research on the ‘cheater’s high’, a recently detected phenomenon where ‘undetected dishonesty can induce feelings of elation’.122
Picard and Siltanen noticed the significance of both positive and negative emotions to learning in their ‘insight model’ of mediation.123 They are critical of Fisher and Shapiro’s124 proposal that negative emotions be blocked or suppressed during negotiation: ‘to block negative emotions is to inhibit significant moments in the learning that are hoped for in any model of mediation’.125
In 2006 Maiese urged mediators to rethink ‘the reason–emotion dichotomy’.126 She contended that emotions are central to the emergence and escalation of conflict and that cognitive reappraisal holds significant promise for resolution. She proposed that mediators supplement standard techniques of ‘active or empathic listening, appreciative inquiry, and dialogue’ with ‘ritual, art and joking’,127 though she conceded that such emotional appraisal techniques might be too ‘touchy-feely’ for some.128
This work prefigured a project conceived by LeBaron exploring the potential of dance for conflict resolution, resulting in an international conference in 2011 and, in 2013, an edited collection re-emphasising the mind–-body connection in conflict work.129 One of the present authors attended the conference and the bodywork alerted him to the tradition in which he had been trained, caricatured as ‘mediating from the neck up’, meaning to ignore the physical, and thereby emotional realm.130 He proposed a grid capturing two dimensions of conflict: intensity and volume (Figure 1).131 ‘Intensity’ describes the force of an emotion for the person experiencing it; ‘volume’ to the force with which it is transmitted. The latter dimension is related to ‘strategic display’: instrumental reasons for displaying a particular emotion at a particular volume.132
Recently, we updated the grid with a third dimension: valence, the positivity or negativity with which an emotion is experienced (Figure 2). Research suggests that a central driver of behaviour is the attempt to reduce negative emotion and increase positive.133
The grid conceptualises mediators’ work by drawing attention to the split between the emotionally private and public realms. Mediators know the intensity and valence of their own emotions; they can choose (to an extent) how much they display and how much is kept private. Disputants also choose (effortfully or automatically) how much emotion to display (the ‘volume’). So mediators must make judgements about what and how much disputants are making public. There is a sense of co-authoring, reflecting the view that emotions are socially constructed134 and that mediators may usefully have a hand in that construction.
The upshot of these developments is to put emotions firmly at the theoretical core of mediation. As a 2011 student text asserts: ‘Both mediators and lawyers can contribute greatly to the process of settlement by dealing with emotional forces’.135 We now consider the mechanisms by which mediators may do so, examining the role of empathy before considering how mediators and mediation may contribute to the regulation of emotion.
Empathy is a key ingredient in mediation, both in its use by the mediator and the manner in which the process offers disputants opportunities to give and receive it. We outline empathy as a concept, including background, definition and components, suggesting that empathy is a synergy of emotion and reason. We then explain how the mediator works with emotion and emotion regulation to facilitate empathic understandings and agreement.
In the words of Simon Baron-Cohen: ‘Empathy is the ability to identify what someone is thinking or feeling and to respond to their thoughts and feelings with an appropriate emotion’.136 When we empathise, we imagine what it feels like to be in that person’s mental state. Importantly, we are motivated to respond to another’s distress with empathic concern.137
Empathy has been described as a process, attitude, behaviour, event, trait, skill and capacity.138 Coined as Einfuhlung by nineteenth-century German philosophers of aesthetics, it originally described the attempt to understand art from a dual perspective by mirroring and projecting self in the work.139 It is generally measured as dispositional (trait) yet can also be described as situational (context-dependent). In other words, empathy can be measured as a feature of personality which is more or less stable across time,140 or it can be conceptualised as an individual response to a specific other or situation, which may vary depending, for example on the degree of shared values and preferences.141 Empathy is usually measured through physiological tests, brain scans and self-reporting questionnaires. Scores vary across the population: those with traits associated with personality disorder and some with autistic spectrum difficulties (ASD) show lower levels and such people have been described as having low or ‘zero degrees of empathy’ or even an ‘empathy disorder’.142 Additionally, empathy fluctuates within individuals in the short term and across the lifespan. It is influenced by early experience, gender, education, occupation and wealth. People empathise more with those familiar and similar and where there is shared experience.143 They are less empathic when tired, stressed, unwell, suppressing emotion or highly aroused as in conflict situations.144 These latter two circumstances are highly relevant in mediation.
Empathy is a requirement for co-operation and is as important to survival as the practical skills involved in the acquisition of food and shelter.145 We seem hard-wired to give and receive empathy, and social connections can be considered a basic human need.146 In the same way, loneliness may be as detrimental to physical health as smoking.147
Dependence on others for our sense of identity and self-worth may explain why shared understandings are so valued and, conversely, why it is felt so distressing when these are fractured by conflict.148 Relis found that disputants engaged in mediation for medical negligence valued communication, having a voice and the opportunity to express themselves and receive acknowledgment of harm. These non-legal, human concerns contrasted with lawyers’ preoccupation with financial settlement.149
The need for connection is mirrored by the urge to achieve it: as Beausoleil and LeBaron put it, ‘we are neurologically wired for mutual understanding and feeling’.150 Bowlby’s Attachment Theory posits that an attentive, empathic caregiver creates a physically and emotionally secure environment, helping to regulate a child’s emotions and, crucially, reduce stress. The child can then develop into an emotionally secure adult, able to regulate her emotions, and become an emotionally attuned parent in turn.151