As a mediator, I am sometimes confronted with a party who starts to cry as she tells me her story or relates some aspect that is very emotional. My inclination is to hand her a box of Kleenex and attempt to assure her that it is alright to cry and, in fact, will probably do her “good.”

            Well, a recent study indicates that the folklore that a good cry is good is incorrect. A new study published in the August 2011 issue of the Journal of Research in Personality (entitled When and for whom does crying improve mood? A daily diary study of 1004 crying episodes) indicates that crying is not as cathartic as we all think it is. Rather, “. . .shedding tears only improved mood in one-third of cryers who kept tabs of their bawling behaviors. . . .” (“Crying shame: Tears don’t make you feel any better, study shows” by Cari Nierenberg) (http://bodyodd.msnbc.msn.com/_news/2011/07/28/7190543-etc.)

            Researchers asked 97 women aged 18 to 48 in the Netherlands to keep a daily diary of their moods and crying spells over a 60 to 90 day period. Men were not included in the study.

            Each participant noted her mood each day, whether she had an urge to cry and if she, in fact, did so. For each crying episode, the participant jotted down the reason for it, its length, its intensity, where it occurred, if others were present and how they felt afterwards.

            These diaries provided 1,004 crying episodes to analyze. The researchers found that on an average, each episode lasted eight minutes, occurred in the living room, either alone or with one other present and resulted from seeing others suffer or due to conflict or loss. (Id.)

            Most importantly, 61% “reported no change in mood compared to how they felt before” they cried. “Thirty percent experienced a better mood afterwards and nine percent felt worse.” (Id.)

            So, contrary to conventional wisdom, crying does not necessarily improve one’s mood. For those whose mood did improve, it was the intensity of the sobbing, rather than its length, that made the difference: the more intense sobbing led to a better mood.

            The teachable moment is that if someone is going to cry during a mediation, it should be intense. Otherwise, there is only a one in three chance that the sobbing will improve her mood and possibly lead to a good outcome at the mediation.

             . . .Just something to think about!

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The other week, I attended an information packed 3 hour training session on how to mediate disputes with high-conflict people (aka “difficult” people). It was given by Bill Eddy, LCSW, Esq., President and Co-founder of High Conflict Institute based in Scottsdale, Arizona (www.HighConflictInstitute.com.)  To say the least, it was interesting.

High-conflict people include those that: (1) may be rigid and uncompromising; (2) have difficulty accepting loss; (3) are unable to reflect on their own behavior; (4) allow their emotions to dominate their thinking; (5) are preoccupied with blaming others; (6) avoid responsibility for solving their problem; and (7) depend on others to solve their problems for them. In sum, they lack self-awareness, are unable to adapt and blame others. They include persons with various personality disorders such as narcissism, borderline, paranoia, antisocial and histrionic.

As explained by Mr. Eddy, all of this boils down to our brains, and more specifically, our right side vs. our left side. The left side of our brain is the “logical brain”. Generally we are conscious of what this side of our brain is up to. It controls language and verbal skills, our ability to organize things, our orientation to details, and our ability to analyze and to seek systematic solutions. In short, it is our “rational” side controlling our positive emotions such as calm and contentment.

On the other hand, the right side of our brain is our “emotional” side governing relationships. It usually operates at our “unconscious” level and is responsible for our creativity, art, intuition, non-verbal skills (or lack thereof), facial recognition and in sum, our “gut” feelings! It also controls our negative emotions such as fear and anger.

In extremely simple terms, a “high-conflict” person is operating from the right side of her brain which houses the “fight or flight” response and other modes of fast defensive thinking such as an all or nothing mindset, emotional reasoning, and jumping to conclusions.

Consequently, in order to get anywhere with a high-conflict person, one must get her to move away from her right brain and into her left brain. To do this, Mr. Eddy suggests a process composed of four skills: bonding, structure, reality testing and consequences.

By bonding, Mr. Eddy suggests that we use empathy, attention and respect (E.A.R.) with the high-conflict person. Acknowledge (although not necessarily agreeing) that she is upset and let her know that you care; connect with her feelings.

In terms of structure, rather than allow the high-conflict person to continuously and continually vent, ask her to turn her complaint into a proposal. A high-conflict person needs a lot of structure; so focus her on the future, rather than the past, and ask for proposals. Have her make lists, again to provide structure.

In addition, provide reality testing, acknowledging that one may never know the full and complete story but that decisions can be made without knowing everything there is to know.

Most importantly, (Mr. Eddy emphasizes) one must reinforce the notion that the dilemma is hers; how does she want to resolve it? Keep the burden on her, rather than allowing her to dump it on you and getting you to resolve her problem for her. Keep putting it back on the high- conflict person.

Finally, Mr. Eddy explains, educate the high-conflict person to the consequences: help her connect the dots between her behavior and its consequences; between cause and effect. Focus on the positive consequences.

In going through this process with high-conflict people, Mr. Eddy suggests that we use a calm, confident, firm voice and body language. He also suggests that as long as the high-conflict person is engaging her right brain, that we stay away from logic. Logic simply does not work in times of stress. Rather, communicate with the high-conflict person in the way that  you want her to relate to you. Studies have shown that people “mirror” behaviors. For example, if I lean forward to show deep interest, the other person will subconsciously mirror my  body language by leaning forward as well.

As you can see, quite a lot of information was packed into this training. The challenge will be not only to try to remember all of these tips but to implement them  the next time they are needed. I will definitely have to engage my left brain to accomplish this!

. . .Just something to think about!

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            When I decided to become a mediator, I never realized that I would need to know a little bit about neuroscience to settle disputes. Indeed, the basic training classes I took never mentioned the notion that neuroscience has a lot to do with resolving disputes. But the reading I have done in the past few years has shown this to be true. A paper by Richard Birke entitled Neuroscience and Settlement: An Examination of Scientific Innovations and Practical Applications published in 25 Ohio State Journal on Dispute Resolution at pp. 477-529 (2010) explains in simple terms what is going on in our brains during a mediation. It is fascinating! (neuroscience_and_settlement_ )

            For example, Professor Birke discusses the notion of whether to have a joint session at the start of a mediation. The trend among mediators is not to begin with a joint session but to start with and use separate sessions throughout the mediation.

            Professor Birke explains that the fear response (i.e. fight or flight) is deeply ingrained in our brain. In fact, the fear response “. . .travels two paths – one directly to the body (the “low road”) and one that was mediated by the amygdala (the “high road”).” The “low road” is faster: “. . .by the time the “mind” knew it was afraid, blood had already reached the legs” which were ready to start running. (Id. at  509).

            So, does it make sense to ask a party to retell a painful or traumatic event? Chances are that to do so will evoke the “fear” response in the storytellers. But, at the same time, it may provide the storytellers with “great satisfaction in telling their story, uninterrupted by objections or exhortations to only discuss what is legally relevant.” (Id. at  510). The storytelling allows “the emotional “elephant in the room”” to be recognized and acknowledged so that settlement does not feel empty and hollow. (Id.)

            Consequently, perhaps the story should be told in a joint session, but then a break taken to allow the “fear” response to dissipate (perhaps with the help of a little deep yogic breathing) before the negotiations begin (Id. at  512).

            The negotiation process itself is also grounded in neuroscience. For example, it has been proven that “we do not hear information with neutral ears.” (Id. at  512). According to the concept of “reactive devaluation”, we discount the value of things offered depending on who is doing the offering: the opposing party or the neutral mediator. (That is, we view the offer more favorably if proffered by the neutral.) Further, we will discount the value of something simply because it has been offered. Or, to put it another way, we value those things we cannot have more than those that we can have. (Id.)

            Professor Birke further explains that when we do receive information, we tend to process it “with a strong bias towards retaining and strengthening preexisting views.” (Id.) Thus, we value information that supports our beliefs very favorably and downplay contradictory information. (Id.) ( i.e., “confirmation bias.”) When we do receive this contradictory information, it activates the “animal” side of our brain while positive information activates the “civilized exterior person.” (Id. at 513). To harmonize this discordance, the brain will shut down distress through faulty reasoning. “ “The neural circuits charged with the regulation of emotional states” shut down distress quickly and easily by recruiting “beliefs that eliminated the distress. . . .” “ (Id. at 514). Consequently, the brain works so that we “feel” good like the addict who gets her “fix.” (Id.) 

            In simpler terms, our “gut” or emotional brain will often control our “brain” or cortex, to insure that we “feel” good about our decisions. As a result, our decisions are often emotionally based. Thus, for a solution to work, it must not only “feel good” but must be one that our cortex approves of, as well. To reach a durable settlement, both the “gut” and the cortex must agree to it. Or, at a minimum, the gut must be on board; otherwise, our “brain” will not be persuaded to agree! (Id. at 515-516). 

            Professor Birke’s article is quite extensive and detailed. But, by the above, I hope I have provided a glimpse into the notion that there is a lot more to negotiation that simply bargaining – our “guts” or emotional brain has a starring role, as well.

            . . .Just something to think about!

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             Imagine the following hypothetical: while John Smith and Jane Doe were dating, they had intimate relations. They have since broken up. John discovers that he may have contacted the deadly DONS (Deficiency of the Nervous System) virus from Jane. (This is a hypothetical incurable disease that eventually leads to death within 5 years.) Evidently, Jane just notified him that she tested positive while they were dating and suggested he get tested. John follows her suggestion and takes a home test: he tests positive. Being quite upset, he threatens to sue her. She responds by suggesting mediation to work-out a financial settlement as she is not disputing liability.

            Prior to the mediation, John is tested by a doctor and finds that he is actually negative for DONS. That is, the home test was a false positive.

            John attends the mediation with his attorney. Just prior to the mediation starting, John tells his attorney that he was re-tested by a doctor and the results were negative. However, he asks his attorney to refrain from revealing this new information because he is still very angry with Jane and wants to punish her for being so sexually reckless.

            What should the attorney do: obey his client’s wishes and not reveal? Or, be candid with Jane?

            These were some of the questions posed in a study by Art Hinshaw and Jess K. Alberts published in a paper entitled Doing the Right Thing: An Empirical Study of Attorney Negotiation Ethics (and soon to be published in the Pepperdine Dispute Resolution Journal). (Doing The Right Thing) (The  above hypothetical appears on pp. 25-26 of the paper.) Professor Hinshaw discussed the results at a session of the recently held ABA Dispute Resolution Section Spring Conference.

            For their study, Professors Hinshaw and Alberts used two sets of practicing attorneys: 528 from metropolitan Phoenix, Arizona and 206 from metropolitan St. Louis, Missouri. The 528 Arizona attorneys consisted of 354 men and 163 women (with 11 declining to identify their sex), whose average length in practice was 19 years. The 206 Missouri attorneys consisted of 169 men and 37 women whose average length in practice was 24.75 years. ( Id. at  pp. 24-25.)

            The results were eye-opening. Only 62% (452 respondents) said that they would not agree to John’s request to conceal this critical information. However, 19% (142 respondents) said that they would agree while the remaining 19% (140 respondents) said they were not sure how they would respond. (Id. at p. 29).

            The Professors then asked those attorneys who either refused outright to follow John’s request or were unsure how they would respond a follow-up question: Suppose the facts were slightly changed such that John permitted his attorney to disclose his true negative test result only if directly asked about it? That is, if directly asked: “does your client have DONS” etc.? Only then, could the attorney disclose John’s negative test results. (Id. at p. 29).

            In this scenario, of the total 592 respondents, who had either declined John’s initial request or were unsure, 64% (376 respondents) indicated they would refuse John’s request while 13% (79 respondents) stated they would agree to it and 23% (137 respondents) stated they were not sure what they would do. (Id. at p. 30).

            In sum, it seems that under one or the other of the scenarios, only 50% (366 respondents) of attorneys selected the proper or ethical course of conduct: they would refuse to assist John in a fraudulent scheme. Sadly, 20% (147 respondents) were not sure what they would do. (Recall that these are all attorneys with an approximate average of 20 years of experience!) (Id.at pp. 30-31).

            The study also looked at the degree to which attorneys learn by watching and following (mimicry) what their colleagues do. When asked how they thought their colleagues would respond, those who stated that they would agree to keep mum, believed that 41 to 60% of other attorneys would also agree to keep mum and withhold this important information. (Id. at p. 59).

            With respect to gender, the researchers found that more men (54%) than women (40%) would outright refuse John’s request to keep silent. Based on the results, the researchers believe that women “. . .may feel more equivocal or less certain of their positions when applying ethical principles in context. . . .” (Id. at p. 63).

            Finally, the researchers found “. . .no clear pattern of relationships exists between years since licensure and respondents’ propensity to . . .” to remain silent on a critical point. (Id. at p. 64).        

            There is a fine line between what is honest and what is not in negotiating and how candid must one be. Sadly, if we believe the results of this study, many attorneys appear not  to know where to draw this line!

            . . .Just something to think about!

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            A colleague, Elizabeth Bader, wrote a very interesting article discussing the link between psychology and mediation entitled The Psychology of Mediation: Issues of Self and Identity and the IDR Cycle, 10 Pepperdine Dispute Resolution Law Journal 183 (2010).  In it, Ms. Bader shows the reader that the identity of self about which we all learned in psychology class plays a much more important role in negotiation and mediation than we think.

            In simple terms, Ms. Bader delves into rudimentary child psychology, explaining how initially an infant sees himself and his mother as one and the same with ongoing “mirroring” by the mother. Thus, the infant is in a narcissistic phase as the infant has “a sense of omnipotence derived largely from the sense that he shares in his mother’s powers” (Id. at p. 186). Eventually, the infant begins to enter the “terrible twos” in which he “… begins to discover that “contrary to his earlier narcissistic sense of omnipotence, he is, in fact, a very small person in a very big world.” ” (Id. at p. 187). The child is in conflict: he wants to be independent but needs his mother’s help about which he is in denial.

            Finally, the child does develop an independent self and “develops the capacity to internalize an image or representation of mother in his mind.” (Id.) So, while his mother may not be physically present all the time, she is still in the toddler’s mind’s eye.

            Ms. Bader argues that a mediation has this same cycle! Initially, the parties enter mediation with “overconfident expectations” (Id. at p. 204). Ms. Bader explains that the overconfidence is actually a type of grandiosity and thus may be correlated to narcissism, or “inflated positive views of the self” just as with an infant:

“One chooses to experience an idealized sense of one’s negotiating possibilities (and implicitly one’s self) in part as a defense to the sense of vulnerability and anxiety attendant upon participation in negotiation and mediation.” (Id. at p. 205).

           Then comes the offer or first counter-offer. The initial stage of narcissistic inflation hits a bump in the road, resulting in deflation and disappointment. Ms. Bader argues that the mediator’s response becomes crucial here: by showing respect to the parties, the mediator addresses the psychological issue of sense of self of each party. By mirroring and validating each party, the mediator assists each party to become less defensive and thus assists each party to traverse the stage of deflation (or the child’s equivalent of the “terrible twos”).

            Ms. Bader continues:

“Painful as it may sometimes be, as the negotiation continues, the parties begin to acquire greater resilience and more information about the other side’s interests and positions. They also begin to learn just what in their own previously over confident assessment are unrealistic.” (Id. at p. 208).

            Slowly, each party begins to acknowledge not only the strengths but also the weaknesses of her position. Each obtains a more reality based view of the matter and slowly grows into settlement, thus entering the third stage – realistic resolution.

            Ms. Bader suggests that the mediator, herself, travels through these same three cycles during a mediation; initially an overconfidence in being able to settle the matter (i.e. narcissistic inflation); then hitting the impasse and with it a fear of failure or not “performing” (i.e. deflation) and then – if the mediator is able to “let go” of her self image as the “great” mediator and is able to get the parties also to “let go” of their egos and self identity, the mediator enters the third and final stage of realistic resolution. (Id. at p. 209.)

            In sum, Ms. Bader urges that a mediation goes through the stages of early childhood development: narcissistic inflation, deflation and then realistic resolution or IDR for short. (Id. at p. 184).

            Quite a lot to chew on. . . .!

            . . . Just something to think about!

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