I attended the NSW Bar Association Mediation/Arbitration Masterclass last Saturday. There was a presentation by psychologists or ‘mini workshop’ on “Applying Neurobiology to Negotiation and Mediation” which I found particularly interesting. What does neurobiology have to do with negotiation and mediation, you may ask? Can’t mediators just use the mediation skills learned in mediation training and thats all that is required? How can mediators optimize negotiation and mediation processes and practices to take into account neurobiological processes and mechanisms?
A number of the psychologists presented and informed the audience that when confronted with conflict, people move towards assessing a threat or a reward. In conflict, people are more sensitive to threats than rewards, and they are often fearful. Fear is fast acting, it is a stronger emotion, can last longer, affects or limits a persons cognitive or creative thinking capacity. When clients are stressed and in ‘survival mode‘ their cognitive memory is ‘offline‘ and they can’t make rational decisions, their actions are based upon their unconscious emotional and body memories (re-triggering old believes, values and assumptions) – they are back to their difficult past. On the other hand, reward is slower acting with a milder response, shorter and the cognitive, creative capacities are heightened, which is the ‘space’ we want the clients to be in, at mediation.
I believe, a mediator has the opportunity and responsibility to utilise neurobiological methods to optimise the chances of a successful mediation, as suggested at the conference by:
- Being aware of their own internal emotional responses and biases (the situation and clients before them), and thus limit their own responses and biases.
- Preparation of the clients at pre-mediation is very important. It was stated: 80% of a successful outcomes at mediation is predicated on pre-mediation and preparation of the clients prior to the mediation.
- As the clients speak at mediation, most probably in an emotionally charged manner, the mediator has the opportunity to label the emotions of the client (anger, sadness, disappointment, regret etc), to assist the parties move towards self regulation of their own emotions.
- In mediation, we want parties to be in a ‘towards mode‘ or a safe mode, where the mediator can try to assist clients feel what the other party feels, where an ‘in-group‘ feeling of commonalities is created, with a higher chance successful outcomes.
- Set up empathetic connections based upon equality and mutual benefit (authenticity, collaboration and empathetic towards self and other parties needs)
- Food and water: keep parties (and legal reps) hydrated and blood sugar levels up for optimal brain function
- Try to position seating so there are no physical barriers (i.e. tables) and chairs in a circle, if possible.
- A mediator can use lists, tables, summarising information and mind maps to structure and externalise the parties conflict
- A mediator can also use diagrams, decision tables, flow charts, colour coding to organise themselves and their communication in respect to what has happened and what is happening in the mediation and conflict.
- Try to focus the clients on controlling what they can control and let go of what they can’t.
Mediation is not only a facilitated negotiation, but also as a social, emotional and cognitive process and these factors need to be considered and implemented by the mediator to ensure the best possible outcomes.
If you require a family law, medical negligence or personal injury, barrister or mediator, who has particular interest in emotional intelligence and neurobiology, contact Louise on (02) 9336 5399 or firstname.lastname@example.org
Louise writes a blog on family law (including IVF and Surrogacy), Medical Negligence & Personal injury, which you can subscribe and have it sent directly to your inbox, so you never miss a post at http://www.sydneybarrister.net.au