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Mediation as a Lesson in Neuroscience

by Phyllis Pollack
May 2011

From the Blog of Phyllis G. Pollack.

Phyllis  Pollack

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!


Phyllis Pollack with PGP Mediation uses a facilitative, interest-based approach. Her preferred mediation style is facilitative in the belief that the best and most durable resolutions are those achieved by the parties themselves. The parties generally know the business issues and priorities, personalities and obstacles to a successful resolution as well as their own needs better than any mediator or arbitrator. She does not impose her views or make decisions for the parties. Rather, Phyllis assists the parties in creating options that meet the needs and desires of both sides.  When appropriate, visual aids are used in preparing discussions and illustrating possible solutions. On the other hand, she is not averse to being proactive and offering a generous dose of reality, particularly when the process may have stalled due to unrealistic expectations of attorney or client, a failure to focus on needs rather than demands, or when one or more parties need to be reminded of the potential consequences of their failure to reach an agreement.

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