Creating Chemistry in Mediation

by Jeff Windsor
March 2017 Jeff Windsor

A. Trust and Empathy in Mediation

Establishing a connection at the outset of a mediation or meeting with the parties that are in a dispute is essential for a mediator.  In especially sensitive mediations such as an elder mediation, a facilitated family meeting, or in a marital dissolution, emotions are already running high.  As the mediator, you may have taken the opportunity to talk with the attorneys and some of the other participants before the mediation session.  However, when finally bringing everyone together, they are all looking to you to not only guide them through the process of resolving their dispute, but will often confide in you very personal, private matters.  Without such disclosures, there may not be a resolution.  One of the first challenges for a mediator can arise in those first few moments when engaging a party, and that is to establish that connection, to begin to establish trust.  They want to be assured that you, as the mediator will keep confidences, will understand their side of the dispute, and will be fair, knowing that they as the parties or their representatives are presenting you with a complicated, challenging conflict, and that you have the wisdom, the skills, and the fortitude to help them resolve it. 

Much has been written recently about the importance of empathy.  Numerous articles can be found in Fortune, Forbes, Success, and other business periodicals and on their sites encouraging employers to show more empathy to their workforce, and how it can increase employee satisfaction and productivity.  It has become so important in the corporate world that the Harvard Business Review now ranks the Most Empathetic Companies.  Rightly, medical schools are incorporating lessons on compassion in their curriculum.  And, former President Barack Obama once voiced it as an essential trait in evaluating judicial excellence, immediately before nominating Justice Sonia Sotomayor for the United States Supreme Court.  Empathy is vital in not only understanding and being sensitive to another’s feelings, thoughts and experiences.  Empathy helps establish personal trust.  Amy Cuddy, a social psychologist at Harvard Business University, has conducted studies establishing that “[w]hen we meet someone new, we quickly answer two questions: ‘Can I trust this person?’ and ‘Can I respect this person?’”  Through these questions, we are quickly evaluating a person’s warmth and competence.[1]  Once a mediator has established these with the parties, he or she has taken a significant step in resolving the dispute.  As Ms. Cuddy puts it, “trust is the conduit of influence.”  The parties are already averse to one another; if they do not trust the mediator, there is little hope for resolution.

With so much discussion about the importance of empathy several questions arise, among them – what does it mean to be empathic?  How can we be more so?  Can we help others be more empathetic or show more empathy?  And, from a mediator’s standpoint, how does greater empathy help in resolving disputes, and if it does, how can we create more of it, especially in the crucible that is the mediation session?  In this article, I briefly discuss what has come to be seen as the neurochemical basis for empathy, how showing more of it can help mediators, attorneys, and other professionals resolve disputes, and some techniques and tips that can be used to help generate more of it while trying to resolve a dispute.[2]  Without question, as a mediation progresses, there will be moments when the mediator needs to pull a tool out of the box – weighing the financial implications, labeling a tactic, imposing a deadline, as examples.  Nonetheless, establishing and maintaining trust is the foundation of an open discussion and successful mediation.  Like so many relationships, it often comes down to chemistry.

B. The Neurochemistry of Trust

1. Oxytocin, Dopamine and Testosterone

Paul Zak, in his book, “The Moral Molecule,” establishes that there is a direct correlation between a person’s level of the neurochemical oxytocin and her willingness to respond to a sign of trust.[3]  When a person displays trust towards another, the person receiving that overture will experience a surge in their level of oxytocin.  Similarly, the more significant the gesture displayed, the higher the oxytocin level of the recipient.  Zak first showed these increases in oxytocin in what he called “Trust Games.”  If a stranger, knowing that giving you $3 out of $10 she has been given, may receive money back that ultimately nets her more than the original $10, when she does give you that $3, the oxytocin levels of both you and she will increase.  You both recognize you have more to gain by showing one another trust (the recipient also stands to gain an increased amount), and when you do, there is an almost synchronous surge in your respective levels of oxytocin.  You have shown signs of understanding one another’s circumstance, acted to improve those respective circumstances, and when doing so your respective levels of oxytocin increase.  Oxytocin increases when trusting another and feeling their trust in you.   

Oxytocin itself is a peptide hormone and neuropeptide generated in the brain’s hypothalamus and released by the posterior pituitary.  Some of the first studies regarding oxytocin related to its release in women after child birth, and in bonding among small mammals.  Fortunately, there has been more research in recent years, one study showing that oxytocin levels increase in both humans and dogs after petting sessions of five to 24 minutes, suggesting that the neurochemical plays a role in bonding between humans and dogs.     

Oxytocin is also closely associated with neural resonance and empathetic responses.  The most common example is yawning – you always seem to yawn or want to yawn when seeing another do so.  This happens not only in humans, but also in horses, dogs, and other mammals.  When seeing another yawn, or in other activities, “mirror neurons” in our own brain are activated.  We ourselves are then compelled to yawn.  These neurons are regulated by oxytocin.  Yawning as a result of seeing another doing so is an act of empathy, and increases the amount of oxytocin in your system.  Similarly, when mirror neurons are activated, for example, by “feeling” another’s pain observed in a photograph or movie, oxytocin is released.    

The release of oxytocin has additional neurochemical effects.  An increase in oxytocin triggers the release of two other neurotransmitters in the brain:  dopamine and serotonin.  Simply, both feel good when released.  Among other things, serotonin induces feelings of collegiality and reduces anxiety, while dopamine increases focus, drive, and facilitates learning.  Dopamine is released when you seek, expect, and especially obtain a reward, and it helps you remember how to obtain that reward again.  Collegiality, via serotonin, is helpful in mediation, producing in the parties or attorneys the sense that the mediator “sees” their side of the dispute, while the reduction of anxiety and a willingness to learn are more likely to lead to clearer thinking and evaluation in the decision-making process.  Focus and drive keep the parties’ minds on the objective, i.e., resolving the dispute. 

Dopamine also helps regulate the release of cortisol, epinephrine, and testosterone.  These neurochemicals run rampant when a person is feeling stressed and aggressive, cloud the amygdala (thought to be responsible for the fear response in fight/flight confrontations), and impair decision-making.  According to Pranjal Mehta and Robert Josephs, two neuroendocrinologists, high levels of cortisol deplete our executive function and make us anxious.  We feel less in control.[4]  Parties and attorneys that feel a lack of control in the mediation process are less likely to reach an agreement.  Higher testosterone levels are commonly related to assertiveness, however, when both testosterone and cortisol spike, a person’s judgment is impaired.  There is a sweet-spot of high testosterone combined with low cortisol that correlates with effective, team-focused leadership, an ability to provide constructive feedback, and the courage and resilience to steadily push forward through challenges – all qualities in a successful mediator and a successful mediation.

According to Zak, this cascade of the release of oxytocin, dopamine and serotonin creates a virtuous circle that he calls the Human Oxytocin Medicated Empathy (HOME) circuit.  In a stable, safe environment, oxytocin induces good behavior.  It “generates the empathy that drives moral behavior, which inspires trust, which causes the release of more oxytocin, which creates more empathy.”  When the brain releases oxytocin, a person feels more empathetic.  They act more cooperatively. 

In the context of a mediation, for example, a more generous compromise in the negotiation process inspires a greater sense of trust in the other side.  That other party then experiences an increase in oxytocin, creating empathy on their part, and thereby a similar compromise in their negotiation position.  This is the nature of negotiation in mediation, or any dispute.  Nonetheless, the essential element in beginning the process is the trust the parties and counsel feel in the mediator.  Their levels of cortisol, epinephrine, and - in the case of some attorneys - testosterone are already elevated when they think about the conflict and one another.  The mediator, as the third-party neutral and most recent entrant into the fray, is charged with the responsibility of creating an atmosphere where, despite all of their toxic chemistry, he or she will lower the temperature in the room, i.e., lower the “bad blood,” create a sense of cooperation, and bring the parties to a point where they are thinking clearly about the conflict and are focused on working toward a compromise.  This process starts the very moment the mediator first talks with or meets the parties or attorneys.  And at that moment, the mediator wants their brains and bodies to be experiencing increased levels of oxytocin, serotonin, and dopamine.  Creating this neurochemistry from the outset sets the stage for higher levels later in the mediation process, putting the virtuous cycle into action, and increasing the probability of resolution.  Just a little bit of extra oxytocin could be the tipping point in getting the parties to a settlement. 

2. Cognitive Ease

In “Thinking Fast and Slow,” Daniel Kahneman’s profound book on his and Amos Tversky’s work regarding human irrationality, he describes the two cognitive systems at work in the human mind.  In sum, System 1 operates automatically and quickly, with little or no effort and no sense of voluntary control, while System 2 allocates attention and resources to the mental activities that require effort, including complex analysis.[5]  Cognitively, people generally gravitate toward the “law of least effort.”  Effort is required to remember several ideas simultaneously, follow rules, make computations, and manage stress – all things that factor into decision-making in mediations and resolving conflict.  This effort also diverts and depletes the brain’s resources, including basic calories.  Although the brain only weighs about 3 pounds, it consumes approximately 20% of a person’s daily caloric intake.  A particularly stressful mediation may consume more. 

The mind prefers a state of “cognitive ease.”  Cognitive strain occurs when a person must put forth mental effort and there are unmet demands.  A mediation session is rife with cognitive strain.  When someone is in a good mood, they are less likely to activate System 2.  They are more comfortable, more creative, less suspicious, and act more out of intuition.  Just as a party is when they are experiencing elevated levels of oxytocin, when someone is in a state of cognitive ease, he or she is more agreeable and inclined to generate and accept ideas directed toward reducing a conflict, rather than maintaining it.  There are always times wherein a mediator needs to raise and apply pressure to further motivate the parties towards resolution.  Nonetheless, to reach that point, it is often more helpful that the parties feel comfortable, in control, and that the final terms were reached collaboratively with them and the mediator.  They will then feel more ownership of the final agreement, and that the terms not only make logical sense, they feel right.      

C. How to Create Neurochemistry in Mediation     

Mediators and counselors are taught a variety of practices and approaches when working to resolve a conflict.  As their practice develops, so do their skills.  Each mediator’s style is unique.  An experienced one also recognizes that he or she needs to be flexible and able to adapt as the conflict demands.  Understanding how his or her behavior, responses, and tools (some as simple as a pencil) can affect the other parties - change their neurochemistry – can make the difference in inspiring compromise, creating collaboration, and focusing the parties on reaching and ultimately achieving a resolution to the conflict.  Below are a few tips and techniques that have helped me be successful in resolving disputes and cases, particularly those that are rooted in emotional issues, such as family disputes.[6]  They can also be particularly useful in dealing with challenging attorneys.

1.Relax your Body and Set your Posture.

Before walking into a mediation session, in that minute or two after you receive the call that one or more of the participants have arrived, take a moment to relax your body.  Studies have shown that a one-minute relaxation exercise will increase activity in areas of the cerebral cortex essential for language, communication, social awareness, mood regulation and decision-making.  The longer the relaxation exercise, the more focused and attentive you become.  This helps decrease your levels of cortisol, thereby decreasing the amount of stress you feel and display.[7]  Manners in which to do so include sitting quietly and taking deep breathes - counting up to seven on each inhalation and exhalation, stretching, and even yawning.  Yawning provides a significant intake of oxygen to the brain and, as discussed above, elevates levels of oxytocin.  The higher your levels of oxytocin and lower your levels of cortisol when you interact with the parties and attorneys will have similar effects on them.  You carry them with you when you enter the room.

Studies have also shown that when a person engages in certain physical postures or “posing,” their cortisol levels can decrease by 25%, while showing an increase of testosterone up to 19%.  Even simple, subtle changes in posture such as “sitting-up-straight,” which can and should be done while engaging with the parties, can have the same effect.[8]  You display confidence, competence, and control, you increase the neurochemicals that promote these attributes in yourself, and thereby increase the same feelings and neurochemistry in the parties.  When the parties feel more confident and in control, and they sincerely desire it, they will be more motivated to work toward resolution.

2. Listen, Reflect, and Reframe.

Deep listening and reflection create neural resonance.  In relationships and communication, being fully listened to and understood is the most commonly cited value.[9]  When you genuinely listen, among other things that happen, people begin to trust you, you acquire useful information, parties collaborate towards a solution, and when people feel heard they themselves are more likely to listen.[10]  Similarly, when people feel heard and contribute to solutions – when they are co-owners of them – they are more likely to commit to and follow through with the agreement.  To listen deeply, focus your full attention on the speaker, maintaining eye contact.  Eye contact stimulates those areas in the amygdala and cortex related to social interaction, thereby decreasing your levels of cortisol and increasing oxytocin.[11] Try to soften your eyes by thinking of a loved one or pleasant memory.  This stimulates activity in the anterior cingulate and insula of the brain, increasing a sense of empathy and compassion toward others.[12]  It increases both feelings of empathy and compassion in yourself, and promotes feelings of cooperation and collaboration in the other party.

As part of listening and maintaining eye contact, the more you imitate, or mirror, a person’s communication style, the more you increase the neural resonance between you and them, and this generates more empathy, cooperation, and trust.[13]  You increase your respective levels of oxytocin, which feed the virtuous cycle discussed above.  To practice, for example, in improvisation classes, the actors are often taught to sit face-to-face and repeat a single word back to one another, reflecting the facial expressions, volume, and intonation of the speaker.  This helps the listener perceive or “receive” not only the word spoken, but the emotion imparted with it.  This activates those areas of the brain, i.e., creates the state of mind, in the listener.  When reflected back, mirror neurons are activated in the speaker.  As discussed above, activation of mirror neurons increases levels of oxytocin in both the listener and speaker, helping create empathy, trust, and neural resonance.  This is true for most forms of body language and vocal tone. 

Further, not only does mirroring a person’s facial expressions, body language, or tone help activate mirror neurons and create neural resonance, but words, ideas, and narratives themselves activate similar areas in the speaker’s and listener’s brains.[14]  Many mirror neurons are located in the brain’s language centers and may be important in regulating our ability to empathize and cooperate.[15] As a mediator, when you reflect back to a party what you understand them to be saying, thinking, or feeling, it helps create neural resonance between the two of you, activating mirror neurons, and increasing your respective oxytocin levels.  An increase in oxytocin helps increase feelings of cooperation, bringing you closer to resolution.

Not only does it increase these feelings of cooperation, it also gives the mediator better opportunities to reframe the messages or positions of the parties.  When the listener and speaker, i.e., mediator and party/attorney experience this neural resonance, if and when it becomes necessary for the mediator to help the party see the issue differently, from a different perspective, or even from the other party’s perspective, because there is resonance, the speaker will be more open or understanding of a reframed position.  Because the mediator and party are already on the same “wavelength,” the party is open to a new or slightly different idea.  This helps the mediator make progress in the discussion and facilitate resolution.

3.  Put Them at Ease

Like snowflakes and smiles, no two personalities are the same.  Each is unique and each gives rise to differing manners of communication and interaction.  Despite these differences, there are still somewhat universal ways in which people can be made more comfortable, encouraged into a state of cognitive ease, and, for the mediator, in a better position to resolve a dispute.  Below are a few techniques a mediator can keep in mind to reduce the parties’ cognitive strain and increase cognitive ease.

Many mediators are also attorneys, former attorneys, or retired judges.  Attorneys are infamous for their lengthy disquisitions, extensive, thoroughly researched and footnoted cogent arguments, and profound, voluble oratory, all intended to overwhelm and belittle opposing counsel or even their own clients.  Many seasoned litigators see themselves as the natural successor of Clarence Darrow, and ceding the stage deprives the audience of their deep wisdom and irrefutable advocacy.  This doesn’t always translate well in mediation.  To help increase cognitive ease, a mediator should try to limit his or her messages to 20 to 30 seconds at a time, imparting 3 to 4 pieces of data.  When a person talks longer than that or tries to impart too much information, it begins to tax the listener.[16]  If a person begins to experience cognitive strain, they will begin to arbitrarily choose which words seem relevant at that moment.  A person experiencing cognitive strain is also more likely to make a selfish choice and a superficial judgment in a social situation.  If too much information is imparted, their short-term memory becomes overloaded, and a person will remember only what he or she wants to or believes is important.  Alternatively, the mediator may strive to conduct sessions as a consistent dialogue or conversation, keeping his or her messages shorter and less taxing, but no less informative.  This allows the parties and attorneys to feel heard and understood, that they are learning information from the mediator about the other side’s position, and they are getting helpful ideas directing the mediation towards resolution.  This promotes collaboration and maximizes cognitive ease.  Arbitrarily selecting what is important, acting out of self-interest, and making a short-sighted decision are all anathema to settlement and developing a well-considered, long-lasting agreement.   

Mediators are trained to be optimistic.  The attorneys and parties often walk into the session skeptical that a resolution can be reached.  It is part of the mediator’s role to overcome that doubt and create an atmosphere and attitudes that motivate settlement.  Much like increasing oxytocin and testosterone through posing, a smile can go a long way.  Begin with one, smiles are contagious.[17]  Even when a person may not initially be feeling happy, physically expressive behavior can create the emotional experience.  In 1988, Fritz Stack, Leonard Martin and Sabine Stepper conducted a study establishing that when people engaged the muscles typically associated with smiling they found things funnier and were more agreeable.  If the parties or attorneys “catch” your smile and begin to engage the same muscles used for smiling, it can induce pleasant feelings.  As Kahneman explained, even when you have a pencil in your mouth crosswise to make you “smile,” it can induce cognitive ease. 

To convey optimism, use positive language.  Positive words induce activity in the motivational centers of the brain, i.e., the listener is more likely to act upon hearing them.  Further, they make an anxious or depressed person feel better, and those that use them have greater emotional control.  They put both the speaker and listener at ease.  Negative words create cognitive strain, can have a stronger affect, and are remembered longer than positive words.  Of course, do not be “Polly-anish.”  It is often the mediator’s job to break bad news or express hard truths.  However, it is also her or his role to seize opportunities in negotiations and emphasize the favorable points to maintain progress.  Begin with and encourage optimism, and watch little victories pile up.

Finally, sugar.  Mediations can be long and not only mentally demanding, but physically.  As discussed above, the brain consumes up to 20% of a person’s daily caloric intake.  Low glucose and calories can make a person irritable, resulting in bad decisions, poor performance, and a refusal to persevere.  Even having a bit of candy or other source of sugar can not only help improve someone’s mood, it can provide the brief bit of sustenance that a party or attorney may need to push through to a resolution.  Have a snack ready that is high in carbohydrates, e.g., trail mix with dried fruit, cookies, or even a little chocolate.  It may serve as an extra bit of energy needed to keep the meeting going and “sweeten” the offers.      

D. Conclusion

Make no mistake – the above is not a substitute to being completely prepared to address the substance of the issues in mediation.  Study the briefs; call the attorneys or parties prior and learn about the main impediments to settlement; be ready to knowledgeably discuss the facts and legal issues which underlie the dispute.  Master the merits of the conflict before the mediation.  Nonetheless, remember that all of the mind’s machinery is at work in all of the participants, including some very powerful chemistry.  Increasing the right kind and amounts of chemistry – oxytocin, dopamine, and testosterone - and creating cognitive ease in the parties, can be just enough to tip them into agreement, resolve the conflict, and send everyone home wanting to indulge in a different kind of chemistry.   

 

ENDNOTES 

[1] Presence. Cuddy A, Little, Brown and Co., 2015.

[2] Kenneth Cloke, a wonderful mediator in Southern California began exploring these ideas in his 2009 article, “Bringing Oxytocin Into the Room: Notes on the Neurophysiology of Conflict.”  I offer this less comprehensive piece to supplement those ideas, with reference to recent work on the topic.

[3] The Moral Molecule. Zak P, Penguin Group (USA), 2012.

[4] Presence. Cuddy A, Little, Brown and Co., 2015.

[5] Thinking Fast and Slow.  Kahneman D, Farrar, Straus and Giroux, 2011.

[6] Some of the practices and cites discussed below can be found in reference to a form of communication Andrew Newberg, M.D., and Mark R. Waldman call “Compassionate Communication,” Words Can Change Your Brain, Penguin Group, 2012.  They readily carry over to mediation. 

[7] “Short-term meditation training improves attention and self-regulation.”  Tang Y. Y., Ma Y, Wang J, Fan Y Feng S, Lu Q, Yu Q, Sui D, Rothgbart M.K., Fan M, Posner M.I. Proceedings of the National Academy of Sciences of the United States of America.  2007 Oct 23; 104(43): 17152 – 56; “An investigation of brain processes supporting meditation.” Baerentsen K.B., Stodkilde-Jorgensen H, Sommerlund B, Hartmann T, Damsgaard-Madsen J, Fosnaes M, Green A.C. Cognitive Processing. 2010 Feb; 11(1):57 – 84.

[8] Presence. Cuddy A, Little Brown and Co., 2015.

[9] Words Can Change Your Brain. Newberg A, M.D., Waldman, M. R., Penguin Group, 2012.

[10] Presence. Cuddy A, Little Brown and Co., 2015.

[11] “The eye contact effect: Mechanisms and development.” Senju A, Johnson M. H. Trends in Cognitive Sciences. 2009 Mar;13(3):127-34; “Oxytocin enhances amygdala-dependent socially reinforced learning and emotional empathy in humans.” Hurlemann R, Patin A, Onur O. A., Cohen M. X., Baumgartner, T, Metzler, S, Dziobek I, Gallinat J, Wagner M, Maier W, Kendrick K. M. Journal of Nueroscience. 2010 Apr 7; 30(14):4999-5007. “Intranasal oxytocin increases positive communication and reduces cortisol level during couple conflict.” Ditzen B, Schaer M, Gabriel B, Bodenmann G, Ehlert U, Heinrichs M. Biological Psychiatry. 2009 May 1; 65(9):728-31.

[12] “Love hurts: An fMRI study.” Cheng Y, Chen C, Lin C. P., Chou K. H, Decety J. NeuroImage. 2010 Jun: 51(2):923-29.

[13] “Mirror neuron system involvement in empathy: A critical look at the evidence.” Baird A.D., Scheffer I.E., Wilson S.J. Society for Neuroscience. 2011 Jan 10:1 – 9.

[14] “This is your brain on communication.” Hasson U, ideas.ted.com, 2017.

[15] “Mirror neurons and the evolution of language.” Corballis M.C. Brain and Language. 2010 Jan; 112(1):25-35. Epub 2009 Apr 1.

[16] “Working memory capacity for spoken sentences decreases with adult ageing; Recall of fewer but not smaller chunks in older adults.” Gilchrist A. L., Cowan N, Naveh-Benjamin M. Memory. 2008 Oct; 16(7):773-87; “Neuroimaging analyses of human working memory.” Smith E. E., Jonides J. Proceedings of the National Academy of Sciences of the United States of America. 1998 Sep 29; 95(2)):12061-68.

[17] “Why are smiles contagious? An fMRI study of the interaction between perception of facial affect and facial movements.” Wild B, Erb M, Eyb M, Bartels M, Grodd W. Psychiatry Research. 2003 May 1; 123(1):17 – 36.

Biography


Jeffrey R. Windsor is a mediator and attorney practicing in California and Hawaii. Jeff trained in mediation at the Straus Institute for Dispute Resolution at Pepperdine University School of Law and the University of California Hastings College of the Law. He obtained his J.D. from Santa Clara University School of Law, and his B.A. from the University of Michigan. He is an alternative dispute resolution panelist, facilitator, and pro tem with the State Bar of California, Dispute Prevention and Resolution of Hawaii, and with Northern California’s superior courts, Bar Associations, and resolution centers. Jeff has over 15 years’ experience representing plaintiffs and defendants in civil litigation. He has mediated, litigated, managed, tried, arbitrated and settled hundreds of cases ranging from multi-party, complex actions to disputes before an action has been filed, and has facilitated family meetings. Drawing on his skills and experience as a litigator and mediator, he will listen to the parties’ objectives, assist them in evaluating their respective positions in their dispute, and in developing effective solutions. He keenly understands that litigation can be an expensive, protracted endeavor, and helps parties navigate the clearest path through it.



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