For those of you who are old enough to remember one of the greatest rock groups of our time, the Bee Gees, and for those of you of a younger generation who have discovered the music of that iconic band, you’ll be familiar with the line from one of their greatest songs: “It’s just emotion that’s taking me over.” It turns out that’s not just a great lyric from a great song – it’s also a teaching point for mediation.
Here’s what I mean by that: In most mediations, emotions can play a key role in the resolution process in 2 ways: First, depending upon the type of dispute, the parties often already bring what can be referred to as “emotional baggage” to the table before we even begin the mediation process. That “emotional baggage” can result from hurt feelings in a myriad of settings, such as between family members in a trust and probate dispute; between business partners whose relationship has soured; by a client who believes he or she has been wronged by a professional (such as a physician, or a real estate or securities broker); or by a homeowner who believes he or she has been wronged by a general contractor (or a general contractor who believes he or she has been taken advantage of by the owner).
The second way emotions can play a key role in mediations is with respect to the process itself. Other than the lawyers and insurance company representatives, most mediation participants have never been in a mediation before. To them the process is completely new, and is often anxiety-provoking – especially when overlaid upon the “emotional baggage” that they are already carrying from the dispute itself. Since the parties are of course also the decision-makers regarding settlement, it’s critical for mediators to recognize these emotional factors, and to help the parties deal with them – so that the parties may in turn get past the “fight or flight” response that we, as human beings, instinctively have toward what we perceive to be dangerous situations, and so that they may then in turn begin to think, and respond, rationally.
Here are a few ways I’ve found to be helpful in getting past the parties’ emotional overlay:
- First, even where the parties have agreed to have a joint session, I always meet with each side separately before bringing them together. I do this so that I can “demystify” the process for them, so that they know what they can expect to happen in the joint session and as the day progresses, so that they can in turn get a comfort level with the process – and with me as their “facilitator.”
- Second, in my initial separate caucus I also let the parties know that they can expect to experience an emotional “roller coaster ride” as the day proceeds. There will be times when it will seem that we’re making great progress, and other times when it will seem that resolution is a lost cause. I let them know that that’s completely normal, and I ask them to trust in the process as they’re experiencing those emotional highs and lows.
- Third, in appropriate cases, either in joint session or separate caucus depending upon whether the decision-makers are insurance representatives or principals in the dispute itself, I’ll sometimes ask the parties first to take a moment to think about how they’re feeling about being involved in the dispute that has brought us together in this mediation. Then, I’ll ask them to indulge me by closing their eyes for a full minute and to think about how they will feel when they wake up tomorrow morning and their first thought is – “Wow, this dispute is finally over, and I don’t have to worry about it anymore.” 9 times out of 10 I’ll see a smile gradually start to appear on their faces as they’re visualizing that moment. When that happens, not only does that greatly reduce their anxiety level for the process, but it also reinforces the enormous psychic value of putting the dispute behind them and moving on with their lives, in turn increasing the importance of that goal as a factor in making settlement decisions.
So – the next time it seems that “It’s just emotion that’s taking [your client] over,” know that there are ways that we can overcome that problem in mediation.
As always, I remain dedicated to providing the best possible ADR services in the format that best suits the parties’ needs, whether through Virtual Dispute Resolution or in person when it is safe to do so. I look forward to working with you.