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<xTITLE>How Understanding Neuroscience Improves Mediation </xTITLE>

How Understanding Neuroscience Improves Mediation

by Lucia Kanter St. Amour
August 2020 Lucia Kanter St. Amour

All mediators can gain a basic understanding of the crossover of neuroscience and dispute resolution, which can lead to new breakthroughs working with parties in mediations. When parties hire a mediator to help them, they are in crises. They have most likely already tried to work out a solution and met with impasse. When people are in crises, the brain secretes cortisol. Increased cortisol levels impact: 

  • Decision making
  • Risk assessment
  • Rational cognition
  • Focus 
  • “Working memory” (how much information a person can hold, process and use at any given moment)
  • Perception of “Threat”

The emotional and physiological response is by and large the same for both physical threats (a snake) and emotional threats (“she’s going for full custody of the kids”), and the cognitive response toggles between 3 fundamental levels of functioning: Reptilian (fight or flight, the neural networks related to fear/survival - a very durable network); paleo-mammalian (social bonds, decisions); Neo-cortical (high level executive functions)

The exercise of law, engineering, accounting, science, etc. is a neo-cortical activity, but decision-making is a sub neo-cortical activity.  So, when someone suddenly shifts position and we think they are acting “irrationally,” it’s that a different part of the brain (the non-executive part) has taken over. Even the common act of getting angry at one’s kids is a core relational theme (more on that below) leftover from the Reptilian brain (“my progeny is in danger and I need to act”), but if the Executive / higher brain reappraises in time, it can ask whether anger is really the appropriate response to the situation. Think of how helpful a mediator can be if they recognize when this is happening.

The brain employs a 3-goal system:

  • Avoid: sticks (threats, penalty, pain)
  • Approach: carrots (rewards)
  • Attach: to other people (bonding)

Although we are wired to cooperate socially and to bond, we are very reactive to threats, and the brain has a Negativity Bias:  this means the Sympathetic nervous system lights up like a Christmas tree at even a whiff of a threat, and that “sticks” are more impactful than “carrots!”

Consider for a moment your Amygdala hippocampus system (in your brain, just behind your ears).  It is primed to label experiences negatively and will flag a negative experience prominently in the memory.  With ambiguous communication, this means that IF a negative inference can be made, it WILL be made, in lieu of a positive interpretation. The negativity bias is so robust that it takes 5 positive interactions to undo a single negative one.  Thus, people will do more to avoid a loss than realize a gain; and the Avoid system is routinely hijacking the Approach and Attach system. The result of threat reactivity is that parties in a dispute overestimate threat and underestimate opportunity in their initial appraisals.  If the mediator doesn’t help them reappraise that the snake is a stick, the brain continues to pump cortisol and reinforce stress. (Is anyone remembering an argument with your spouse or significant other at this point?) The cost of not steering people towards reappraisal is that actions and decisions while feeling threatened lead to over-reactions, which causes other people to feel threatened, and a vicious cycle ensues.  The Approach system is inhibited, thus limiting options and opportunities.

*Take away: understand, as a mediator, that it is more likely that parties will deviate from rationality than be consistently rational, and know how to identify which part of the brain is working, when and why. Use active listening, reframing, and timing of breaks to help the parties’ brains reappraise and stop the vicious cycle.  

A brief word on the role of emotions:

Here is what I have learned from my 30+ hours of training from the Paul Ekman Group and Dr. Ekman’s book Emotions Revealed: Core Relational Themes inform how we deal with people in the world.  Our cell assemblies have, over thousands of years, created a sturdy emotion alert database. This database serves an important purpose:

FEAR protects us; our lives are saved because we are able to respond to threats of harm protectively, without thought.  

DISGUST reactions make us cautious about indulging in activities that literally or figuratively might be toxic. 

SADNESS and despair over loss signals to others that we may need help.  

Even ANGER is useful; it warns others, and us as well, when things are thwarting us.  

Probably the most important nugget I learned from Paul Ekman’s book Emotions Revealed is the concept of the Refractory State –  this is the time during which our thinking cannot incorporate information that does not fit, maintain, or justify the emotion we are feeling.  For example, have you ever tried to apologize to someone while they are still mad at you? It’s futile. A Refractory State lasts an average of 20 minutes, and the person experiencing the strong emotion simply cannot take in any new information until the refractory state has passed. As a mediator, recognizing a refractory state can be key in terms of what you, the mediator, do next. When you identify the refractory state, understand that the Executive level of the brain is not operating during this refractory period – and it may be time for a break and/or switching to asynchronous communication.

CONCLUSION

Rationality is a myth. Instead, human behavior and circumstances are predictably irrational (the title of another book I recommend, by Dan Ariely) can demystify how parties behave in mediation (and in life)  Although we are experienced mediators (some of us attorneys) well trained in analytical reasoning, we would do well not to hail reasoned and analytical dialogue as the prevailing mode of conflict management.  Rational choice theory is but one approach to negotiation and conflict, and not necessarily the most effective one where emotions, distrust and suspicions simply cannot be suspended even among people of good will and reason.  With even a simple understanding of neuroscience and emotions, mediators can manage the human experience effectively and without relying upon faulty and insufficient ideology of how one “should” behave or “should” approach decision-making. 

Biography


A member of the Neuroleadership Institute, Lucia has specific training in behavioral science, and how real people act in real conflict situations and decision-making. She is the Founder and Principal of her firm, Pactum Factum, which specializes in negotiation and dispute resolution; and a mediate.com Certified Online Mediator.

Lucia has been practicing law since 1998. Ten years of her practice included regular clinical teaching positions in Mediation, and Negotiation and Settlement at UC Hastings and UC Berkeley Law. She has also been a visiting lecturer at many prominent law and business universities in the U.S. and Europe; and served for a number of years as an annual Competition Judge and Mediator for the International Chamber of Commerce in Paris, France.

Lucia was one of the small team of original designers of the Equal Employment Opportunity Commission’s pilot mediation program in 1996 for the San Francisco Regional Office, and later received her mediation certification from Harvard Law School's Program on Negotiation. She has consulted and mediated general civil and business disputes; community disputes; and specializes in employment and special education related disputes. Her law practice has included both private and public service as well as non-profit advocacy. She previously practiced employment law in Orrick's San Francisco office; and was an in-house employment attorney for the Judicial Council of California, Administrative Office of the Courts (AOC), the policymaking body for the entire California court system.



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