Emotion and mediation

As we start 2015 (with bush fires and floods in Australia) I would like to post about a topic that I think is of real importance to mediation. We all know that ADR and in particular mediation, is commonplace in our justice system, mainly due to the positive affect mediation has on lowering matters reaching court. What I believe gets less attention is how mediation is practised. Too readily the rhetoric of mediation is accepted by courts and policy makers without a critical examination of how parties are treated in mediation. The experience of mediation for parties is just as crucial as the lowering of the matters listed for hearing in courts. One issue of importance is whether parties have the opportunity to express emotion in mediation. How do mediator’s respond to emotion? Do they see emotion as having a place in mediation? What interventions do they practice to engage with emotion?

As part of a research project we asked 16 mediators about emotion and found many open to engaging with emotion in mediation, but having a rather unsophisticated approach to the theory and practice of emotion in this context. Well meaning but largely uninformed they did have a number of strategies that they used including using the ground rules, private sessions and summarising and rephrasing. If you are interested check out this article for more details of our research:

Douglas K and Coburn C, ‘Attitude and Response to Emotion in Dispute Resolution: The Experience of Mediators’ (2014) 16 Flinders Law Journal 111

I’d be interested to hear other peoples’ views of the place of emotion in mediation.

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2 thoughts on “Emotion and mediation

  1. Hi Kathy

    Thanks for starting the year with such an important and challenging topic. I absolutely agree with you that emotion must be managed well in dispute resolution processes if the parties are truly to achieve a self-determined outcome through being empowered to access their own expertise, knowledge and wisdom for the resolution of their dispute. As you and Becky have previously noted (Kathy Douglas and Becky Batagol, ‘ADR and Non-Adversarial Justice as Sites for Understanding Emotion in Dispute Resolution’ (2010) 20 Journal of Judicial Administration 106), whilst it is important to address emotion in negotiation and mediation practice, lawyers in particular who participate in negotiation and mediation frequently ignore, or don’t know how to deal with, the emotional content of conflict. For me, this means that we need to think about dispute resolution training and how much time is devoted to emotional awareness and strategies for managing emotion in dispute resolution contexts. It also means that legal educators need to think about the absence of the teaching of emotional intelligence skills in our curriculum at law school.

    I’m also looking forward to hearing other peoples’ views about the place of emotion in dispute resolution.

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  2. The place of emotion in mediation is a good topic to consider from a socio-legal perspective. Issues arise as to the role of emotion for parties to mediation, the role of mediators in dealing with parties’ emotions and the role of the mediators’ emotions as experienced during the process.

    There are no doubt varying theories about the role of emotion in conflict and, more broadly, well-being (see the ADRJ special edition on ADR and well-being 2012 Vol 23). Put very simply, from socio-behavioural and therapeutic perspectives, the expression of emotion is a natural component of human experience. Providing a safe place for emotion to be expressed in a safe manner has a therapeutic benefit because it assists a person to move forward from their distress, including any brought on by conflict. This is an important principle for mediation, recognised in some approaches, but not all.

    From a legal perspective, emotion has no apparent relevance. The traditional rational-analytical approach to legal problem-solving eschews emotional content, which is seen as subjective and unreliable. Lawyers may tend to discourage their clients’ expression of emotion because it’s not relevant to their problem-solving role. For a therapist, a client’s emotional response is an important part of that client’s experience and hence an important indicator of what help is needed. Mediation is neither about giving legal advice nor advocacy nor providing therapy, but it is about giving parties an opportunity to ‘be heard’ both by the mediator and by each other. At the same ‘being heard’ is significant in law and in therapy although for different reasons. These different reasons have influenced the development of mediation principles and practice.

    The opportunity to be heard is a central legal component of procedural fairness, or natural justice. It points to disputing parties having the opportunity to communicate their experience to each other and to an independent third party, who may be a decision-maker. In order to be persuasive in a legal sense that experience is typically conveyed devoid of emotional content. The actual experience of parties according to their own perspectives is reframed according to legal principles as applied to facts.

    ‘Being heard’ has a different, well recognised therapeutic significance (see I Goodhardt, T Fisher and L Moloney, “Transformative Mediation: Assumptions and Practice” (2005) 12 (2) Journal of Family Studies 317 for a valuable application of Rogerian therapy to mediation practice). It enables a client to receive acknowledgement and acceptance from the therapist. It also enables a person to hear his/herself. Hearing oneself in a safe, accepting environment can facilitate self-understanding and actuality. In other words it can facilitate self-determination, which is a core principle for mediation (and historically for varying therapies and social work practice).

    A challenge for mediation seems to me to be combining principles of procedural fairness and self-determination in the opportunity for each party to be heard. Combining legal and socio-therapeutic perspectives encourages mediators to provide opportunities for parties to express the emotional content of their stories, in order to assist them in moving forward towards the possibility of resolving their conflict.

    Mediators who have a background in the social science and/or counseling are more likely to understand the benefits of allowing parties to express their feelings and to be comfortable in hearing emotions expressed. Mediators with other professional backgrounds, including lawyers, may be less comfortable and may therefore tend to limit that expression. There are skills that mediators can learn that assist parties and at the same help the mediator become more comfortable with the expression of emotion, such as the use of silence. Aspects of the process are also designed to provide a safe environment for emotional expression and to limit that expression to avoid harm or disruption of the process. In order to assist parties however mediators need to understand the relevance and value of expressing emotions. Furthermore, I am of the view that mediators need to be aware of and accepting (to some degree) of their own varied emotions in order to communicate a genuine acceptance of parties’ emotions. Emotional intelligence, which Rachael has referred to, is a learnt skill that is helpful in this context.

    The research reported by Kathy and Clare Coburn (that Kathy has referenced above) suggests that there is a need for further development of principles and practice around emotion in mediation. Drawing on the existing socio-legal principles sketched above is valuable. A challenge is to place those principles in the particular context of mediation where the opportunity to be heard is limited to at most a few sessions for limited times, is framed by a dispute and will have an organisational, institutional and/or statutory context.

    The reluctance of non-counselling professionals to hear and respond to emotion is not surprising given their training and our cultural heritage. Reliance on reason to the exclusion of emotion is typical of a post Enlightenment era and very much a part of our Western cultural heritage. Professionals are generally expected to be objective in applying their expert knowledge. Avoiding subjectivity for professionals can mean not only avoiding their own interests for the benefit of their clients but also avoiding any emotional involvement.

    The professional’s role in helping will always mean an ‘other focus’ in their interaction with a client. The professional’s own expression of emotion will always be circumscribed by this primary focus. But this doesn’t have to require being aloof and devoid of emotional expression. It can mean being emotionally present and communicating respect, empathy and a non judgmental attitude. Being present for another’s emotional expression can be difficult unless one can adopt a measure of emotional detachment, which again doesn’t mean no emotional expression, but rather means a stance that is open and accepting but protects the hearer from feeling overwhelmed.

    The mediator’s ‘other focus’ is a topic that is central to my PhD study and is one I am currently writing about. It is a core component of the relationship between mediator and parties and it is this relationship that I would argue could/should be recognized as the central organising principle of mediation practice. For early argument on development of this conceptual framework see Susan Douglas, ‘Mediator Neutrality: A Study of Mediator Perceptions’ (2008) 8(1) QUTLJJ 139, 155.

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