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Keys to Successful Mediation: Understanding Brain Wiring and the Complex Listening Dynamic

by Ellen Kandell, Gloria Vanderhorst
May 2012

Mediators know all too well that their clients can take positional stances that are hostile and effectively block the creative thinking necessary to reach an equitable settlement.  Positional stances taken by clients and their counsel are a natural result of the brain’s dual wiring for competition and cooperation. These processes are in-born; however, the competitive tendency is slightly stronger than the cooperative one and the parts of the brain used for each are protected in very different ways.  The competitive instinct is well protected between the temporal lobe and cerebral cortex hidden in the fold.  The cooperative tendency depends on the action of the prefrontal cortex.  Historically, our survival has depended on our ability to compete by besting our perceived enemy.  Numerous studies indicate that we are not content to just get ahead of the other; we want to demolish the opposition.  These tendencies are at play whenever we must negotiate with another.  The challenge is to shift your clients from these positional/ competitive mindsets to more cooperative/collaborative thinking where creative and mutually beneficial solutions can be generated.  Developing keener listening skills will enable you to help your clients make this shift.

Listening is often confused with hearing.  Hearing is a natural experience that happens spontaneously unless there are physiological deficits.  While hearing can be measured by audiologists, listening cannot because of numerous subjective factors. Listening requires work:  focused energy, choice, active screening, plus both aural and visual concentration.  When we choose to listen, we act to screen out external stimulation that could be equally salient and internal stimulation as well.  Our temperature and blood pressure increase slightly as we use our energy to concentrate.  The majority of the information that we use as we listen is actually visual detail and not aural detail.  In fact 93% of our communication is non-verbal. (1)  Visual cues enable us to interpret what we hear and to make sense of the communication from the other person.  Over our lifespan, our listening efficiency decreases significantly as we become more occupied with our own thoughts and internal dialogue.  Being a good listener is hard work that requires specific training.

One factor that is responsible for undermining our listening ability is our biases and historical frames of reference.  Our histories shape what we hear.  In intimate relationships, we tend to handle conflicts in the same way that we did as toddlers with blame, denial, avoidance, sulking, and temper tantrums.  The thing that makes a toddler so irresistible is the Grand Human Contradiction (2):  our competing drives for autonomy and connection. Autonomy is closely tied to our tendency to compete and connection is a function of our desire to cooperate and align with others.  The toddler wants to be independent and assert his own will and at the same time he wants to be intimately connected and dependent on those around him.  As adults, our intimate relationships often mimic this contradiction.  When we have conflicts, we get stuck in the toddler mode where our amygdala sounds the alarm of danger and alerts us to prepare to defend and protect ourselves.  We get stuck focusing on the attack we perceive and we react only to the perceived danger.  Take the example of the couple mediating a divorce settlement where the wife has initiated the divorce.  The husband has a history of depression that can be traced back to a severely neglectful childhood.  When his wife starts a sentence with “I want...” he is automatically thrown back into the distant past where he has experienced himself as insignificant and unimportant.  He assumes that her “wants” will be unreasonable and calculated to injure him in some way.  So when she completes the sentence with “I want to be fair and even generous because I know you do not want this divorce”, he fails to hear the most important part of the sentence and responds in an angry rage.

The ability to listen and rationally examine what is actually said requires the action of the adult brain - the prefrontal cortex, which is not fully developed until the mid-to-late twenties. In the adult brain, you can see both perspectives at once. You can feel your own fear and pain as well as your partner’s empathy and care.  You can hold these two realities in mind at the same time and know that the person who is causing you so much grief can also be the person who can offer healing.  In this advanced part of your brain, you have a chance of working out what is best for both of you and achieving what you both want - a sense of mutual caring.  To move the husband from his toddler brain to his prefrontal cortex requires careful focused listening. 

A second and related factor that undermines our listening is our own biases.  Before we can listen to others, we must first listen to ourselves and be aware of our own biases and the automatic thoughts that interfere with our ability to hear what the client is saying.  To surface your own biases, make a list of ten small or big traumas in your own life.  Now ask yourself how each of these traumas has influenced the way that you think about relationships.  You may have to list several possible implications before you can recognize the salient impact for you.  Traumas influence how we experience relationships and attachments.  Our attachment beliefs are a part of our automatic thinking causing us to respond to situations in certain ways before we even have conscious awareness of our response or attitude.  Once these automatic thoughts have been identified, write out how they could bias your thinking about the couples and cases in your practice.  Share your bias with a colleague who can help you remain accountable to identify the impact of these biases as you work with couples.

Next, use your new self-awareness to help your clients discover their biases.  One of the keys to moving a client from competitive thinking to cooperative thinking is to slow their thinking so that they have time to examine their own biases.  Be willing to ask your client to slow down and go back a few steps.  Typically, the client is willing to have each aspect of their thinking repeated.  In the example above, the angry husband who saw his spouse as hateful and vindictive would be taken back to each of these thoughts, slowly and with repetition.  As you do this review with the client, the pace of your own voice should slow by 20% to 30% and your volume should be below your normal speaking volume.  The slow pace and low volume serves to encourage the client to slow their own pace.  The brain’s natural tendency to “mirror” experiences functions to reduce the adrenalin that accompanied the rage and encourage the production of oxytocin which calms emotions enabling the client to be more engaged in the conversation.  The repetition of the client’s thoughts and feelings 2, 3 or 4 times enables him to reflect and to modulate his response.  As you repeat, “you are angry and hurt by her request for a divorce and you expect to be cheated” in a slow calm voice, the client’s prefrontal cortex has an opportunity to actually consider this concept and compare it to other perceptions that he has of his wife.  Repeating this several times exactly or with some modification in phrasing may feel awkward at first; however, when you understand what the brain is doing with this repetition, you will quickly embrace the low, slow repetition as a means of turning on the prefrontal cortex enabling the client to adjust his thinking to a more rational perspective.  Once the angry client has modulated his thinking and shared more rational thoughts, he is ready to hear what his wife actually said.  If you were to skip this step and just ask the wife to repeat her message, the husband would likely hold onto his bias and not trust what she is saying.  Consequently, he would be focused on winning and competing rather than on cooperating to create a mutually satisfying settlement.

Our competitive brain activity can be quite toxic.  The competitive part of our brain uses more primitive defense mechanisms to keep us focused on winning.  Those defenses include denial, interrogating, judging, accusing, counterattack, justification, withdrawal, betrayal and sabotage.  Anyone who has helped a couple negotiate an issue will recognize these as very familiar processes that can easily undermine any negotiation.  The cooperative part of our brain uses very different strategies:  humor, brainstorming, reflection, questioning, investigation, experimentation and compromise.  Obviously, the outcomes of any couple’s negotiations will be better served by the latter.  Helping each party access the cooperative part of their brains is both a science and an art.

The science of accessing the cooperative, prefrontal cortex demands knowledge of brain anatomy and chemistry.  We have already described the location of this part of the brain in the prefrontal cortex and noted that it is more vulnerable to injury.  The prefrontal cortex is also easily distracted by internal and external stimuli.  Our executive functioning is located here.  Our clients may be prone to appear present in the room while mentally reviewing their grocery list or inventorying the home furnishings and jewelry.  Such mental competition requires a process that uses “visual listening”.  Remember that we noted earlier that 93% of listening is visual.  Facial expression, eye position and clarity, muscle tension, breathing pace, body posture and movement are all visual cues that indicate the degree to which the client is productively engaged in listening.  Changes in these cues are reasons to slow the process, review what has been said, take a break or seek the clients understanding of what is currently happening in the room. 

In addition, the chemistry of the brain can be influenced by the physical arrangement of the room, the physical atmosphere, the available food and drink and even the number and types of breaks in the negotiation.  King Arthur and the Knights of the Round Table were really onto something with the room arrangement.  We tend to feel more engaged and equal when seated at a round table. Pastel colors in the pink and green family are also calming as well as vistas with a lot of nature in them.  Breaks that take the client outside rather than into the hall do a better job of resetting them.  If you are offering food and beverage, be sure that water is the main attraction.  Water fuels the brain making concentration and problem solving easier.  Other beverages encourage digestion taking energy away from the brain to the stomach.  When offering food, concentrate on nuts, chocolate and guacamole (for the avocado) and stay away from pastries, bagels, breads and cookies. 

Our brains are highly plastic and are constantly being rewired.  That means that even the most resistant client can benefit from expert listening skills and changes in thinking can result.  When you are tempted to write someone off as too rigid, immature, or difficult, remember that all brains are malleable.  Your listening skills could be the key to a successful negotiation.  The tools for moving from competition to cooperation are easily accessible to all who will understand how the brain works and use that understanding in the negotiation room.  Look for specific trainings in your area to build your listening skills. 

Footnotes

  1. Louder Than Words: Non-verbal Communication.  Mele Koneya and Alton Barbour, Merrill, 1976, Columbus, Ohio.
  2.  Stosny, Steven, “ Anger in the Age of Entitlement: Do You Love in the Wrong Part of the Brain?”, Psychology Today, April 22, 2011.

Biography


Ellen Kandell

Ellen F. Kandell is a certified professional mediator and attorney with over 30 years of public and private sector experience. She provides mediation, group facilitation and training to diverse, national clients. Ms. Kandell trained as a mediator at Harvard Law School in 1992 and has mediated over 800 cases. In June 2016, she participated as an assessor in the second annual Consensual Dispute Resolution Competition (CDRC), an international mediation competition in Vienna Austria.


Gloria Vanderhorst, Ph.D., is a Licensed Psychologist with over 35 years of experience.  She is a trained mediator and Collaborative Divorce professional active in a number of professional organizations.   She is the former Director of Child and Adolescent Services for the Chesapeake ADHD Center of Maryland and is currently in private practice in the Washington, DC area. As a Diplomate in the American College of Forensic Psychologists, she has testified in numerous cases regarding the best interest of the child.  She is currently the co-editor of an on-line magazine, The World of Collaborative Practice.

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