ADR: Mediation, Neuroscience And Your Brain
Mary Welch | June 24, 2013
Real estate agents suggest the aroma of baking bread or cookies entices clients to buy houses. Stylists recommend wearing red because it implies power. What about spritzing a mediation room with a lavender essence to encourage a harmonious settlement?
Wait—what? Is the latter idea just a New Age fad or is it a common-sense solution grounded in science?
Mediators and law school professors increasingly are bringing neuroscience into mediations to reframe the conversations and promote reflection.
"The intersection of law and mediation is still a young field—cutting edge, actually—and we're still learning how the brain functions in decision-making. Neuroscience takes it into a few directions when you're talking about mediation," says Timothy Hedeen, professor of conflict management at Kennesaw State University.
"It's based on how you can manipulate the primal emotions and get to an area of trust and empathy. We are not wired, for instance, to accept unfairness. So how can your perception of fairness be applied in mediation so that you can go from someone who is pissed-off mad and wants to play hardball to someone who is willing to listen and negotiate? It's really changing how we think," Hedeen says.
Mediators approach their jobs in a variety of ways and develop tricks of the trade, learned through experience, to massage a situation in order to achieve a more organic and agreeable settlement.
Some mediators may privately be skeptical, but respectfully acknowledge the entry of neuroscience into the profession, while others dismiss the trend outright as New Age nonsense. Believers assert that those "trick" techniques are based less on intuition and experience and more on neuroscience, which is the study of the nervous system and how it deals with thoughts, emotions and behavior.
By understanding how the brain works, mediators can proactively and methodically direct a mediation toward a harmonious outcome. Rather than reacting to the emotions and energy in the room, mediators—using the underlying tenets of neuroscience—can change that energy and the way the parties view the mediation process itself, helping them understand why they ended up in mediation in the first place.
"You are not conducting group therapy," says Georgia Geiger, a Marietta-based mediator and owner of Above & Beyond Conflict. "But the new research is fairly accurate and what many would say is instinctual. The more we tap into the science the more we'll have more of a solid basis for success. Mediation influences people to change the way they think. When you look into the psychology and neuroscience of it, it becomes transformative."
Neuroscience is the study of the nervous system and how it deals with thought, emotion and behavior. The brain is divided into three basic parts, two of which—the brain stem and the prefrontal cortex—are at the heart of the mediation process, determining whether it will go forward or stall. The brain stem rules the basic human drives (flight, fight, food and fornication). Think of it as your primal instincts—crude, forceful and basic—to be acquired and protected at all costs.
The prefrontal cortex is the home of kinder, gentler, more evolved thinking. It takes us past our need for primary survival toward nonprimal social necessities, which are defined by SCARF: Status, Connection, Autonomy, Relationships and Fairness.
On a very basic level, neuroscience and mediation involve the mediator identifying which (or all) of the four basic drivers are in play, then negating them and unlocking the inner SCARF—moving from protect to connect.
In scientific terms, the process moves adrenalin, which is found in the fight/flight part of the brain, to oxytocin production, which triggers the more evolved, human state, Hedeen explains.
Mediation with neuroscience is a "framework for, on a fundamental level, quieting the noise—those perceived threats—in people's heads that may keep them from making a rational decision," says Ellie Lanier, managing attorney of the mediation practicum at the University of Georgia School of Law.
"With a deeper understanding of neuroscience and what's going on in the person's brain, you can understand why someone is willing to spend $3,000 in mediation and court fees to recover $300. You get everyone to take a step back, remove the threat—whatever it is—and then get to a place where SCARF becomes important. Then you can get down to fairness and moving forward."
Lanier cites a dispute where a landlord faced several tenants and reached settlements in all but one case.
"I was working with students in the law clinic on this situation and the landlord was in a fight-or-flight mode, and we were able to probe a bit and remove the threat," she says. "In this case, the threat was that the tenant had made some comment that the landlord took offense at and the landlord closed down. It was a threat to his status and he wasn't willing to negotiate with this tenant the way he did with the others. After that was dealt with, you can get down to a real mediation."
Getting to 'yes'
Two standard mediation techniques are based on neuroscience: priming and framing—filtering mechanisms that can either fuel the emotional barriers to settlement or defuse them. Priming, done successfully, evokes an atmosphere of fairness and reconciliation by replacing inflammatory words with more calming, positive ones.
Jane C. Greenspan, a mediator with JAMS in Philadelphia and a former justice of the Supreme Court of Pennsylvania, regularly relies on the theories of neuroscience, especially the priming and framing aspects. "Priming is how the brain reacts to a stimulus, such as an image or set of words, and how that reaction causes a response to a later stimulus, such as a settlement offer," she says.
Greenspan cites a case where a plaintiff, a victim of racial slurs and disparaging treatment at work, was fired and then sued his former employer. As the talks hit the mediation room, the client was very emotional, which heighten his demands for retribution. Going back to the primal emotions, he was in a definite "fight" mode, feeling that his dignity as a man was at stake. He wanted not only a resolution, but also to punish his former employer. Negotiations were at a standstill even though the plaintiff's counsel repeatedly told him that the settlement was unrealistic.
In this case, the priming effect was a negative one as the plaintiff reviewed trial exhibits, including racially offensive graffiti, prior to the settlement conference. With those images still in his head, he viewed the initial low offer as an aggressive or dismissive act.
"Again, priming is all about how a client will react to stimuli and bad stimuli and it can certainly hurt a negotiation," Greenspan says. "You introduce stimuli that will have a more positive impact on negotiations and you have to think how bad stimuli can hurt. Sometimes, in a case like this, maybe the defense attorney may call for a break so the plaintiff can deal with emotions that the pictures evoked."
In addition, how a mediator "frames" the transaction is crucial, Greenspan says. Framing, in layman's terms, might be akin to a soft- sell—removing potentially toxic trigger words that would upset the parties. "It is instinctive and requires creativity so that both sides can accept the negotiations and settlement."
When it comes to negotiations, especially financial ones, the brain is "sensitive to the proposition of loss and gain," says Hedeen. "And the stronger of the two is loss. People are loss-averse and that comes from fear. Given the choice of avoiding a loss or gaining something—a reward—people will choose not losing something."
A wise moderator will "make it look like there was no greed, no entitlement involved. People will make a bad decision because they are so scared of losing," he says. "So sometimes you explain that they are taking a short-term loss to make a long-term gain. As a moderator you have to make it look less bad so the person can walk away and say 'Well, at least we didn't lose.' "
So in Greenspan's discrimination case, a mediator should frame the negotiations in a way that both parties perceive a win by emphasizing what they are not losing.
For the defendant, making a reasonable offer can potentially avoid a significant damage award, as well as trial costs and the commercial backlash from bad publicity.
For the plaintiff, a settlement offer eliminates the investment in the trial and the real risk of getting no money.
"Framing allows both parties to eliminate their worst -case scenarios," she says.
Behind the conflict
Jaime Dodge, an assistant professor at the University of Georgia School of Law whose undergraduate research involved neuroscience in mediation, agrees.
Mediation, she says, brings the conversation into "feelings of autonomy and the value we put on things."
"People go into mediation thinking that they have something and someone is trying to take it from them. So it is up to the mediator and lawyers to restructure the discussion about how they are thinking about compensation, for instance. How can I restructure the parties' thinking so that one might settle for a smaller amount? This is especially important if the parties are still going to have an ongoing relationship, such as in family cases and, actually, many business partnerships as well."
An example is a recent mediation where the driver for a locally owned small business had a stroke while on the job and ran over and killed a child. The company offered the family $1 million, the maximum of its insurance policy; the family demanded more.
Michael L. Wetzel of Bogart, Ga., was the mediator. He realized that the family really didn't want more money; they didn't want to lose their daughter.
"Once we recognized that, the company was more than happy to set up something in the daughter's name at the local animal shelter, where the child had volunteered. This was a way that the child lived on."
He added, "sometimes you create ways of creating intangible currency to trade instead of just monetary ones."
Neuroscience and the need to divert one's emotions to the SCARF mode is often used when the parties are too angry, too emotional, too stressed to think clearly. The body, Hedeen says, "goes on autopilot for self-preservation and they go into mediation and tell their story and they revisit the issues again, and can't think of a solution. You have to actively override those memories and emotions. With neuroscience, you retrain them to be more thoughtful, less barbaric. You bring in new patterns of thinking."
Mediation most likely fails when one party is "hands-down not going to settle, no matter what," says Athens-based mediator Nicole Woolfork Hull of the Hull Firm.
"The situation becomes so adversarial that you have to change their mental framework to get them to a different place. Oftentimes you discover that someone's feelings are hurt. They feel they've been wronged and no one cares. And, if you address that, maybe even have someone apologize, you can then get them moving forward."
Sometimes, Dodge says, a party feels powerless and is reactively lashing out.
"The mediator then must help the person get their guard down. What is their real interest? What are they struggling with internally? Many times, they fear losing their identity," she says. "'I will be viewed as a failure because I was fired for the wrong reasons.' The person feels disrespected. But it doesn't have to be an adversarial process. You can help the person understand the firing was for a business reason. Empathy can be a powerful tool."
Some people live for a fight, says Tracey Harris, an Atlanta mediator who handles workplace disputes, and the mediator "needs to figure out how to tone it down. You need to make them understand it won't be a profitable fight and then they will get to a reasonable place."
Jill Tanz, adjunct professor at DePaul University College of Law whose mediation practice specializes in foreclosures, uses neuroscience to locate "critical spikes in stress" that makes it difficult for the person to concentrate.
"It's not a good place and the stress is causing them not to look at their options correctly. They feel they don't have control over the process; they can't control the outcome so they react more forcefully. The mediator needs to calm it down and help the person get control of his or her body. Even if that means taking deep breaths," she says.
Tanz, who says she believes neuroscience will become more of an influence in mediation, says that when emotions are at their peak in the mediation room, lawyers who "pushed back when I was training them about neuroscience and acknowledging emotions have no problem with me using my techniques to stop a crying party."
Maybe some lavender spay may not be such a bad idea after all.
"It's based on how you can manipulate the primal emotions and get to an area of trust and empathy. We are not wired, for instance, to accept unfairness."
"Mediation influences people to change the way they think. When you look into the psychology and neuroscience of it, it becomes transformative."
"With a deeper understanding of neuroscience and what's going on in the person's brain, you can understand why someone is willing to spend $3,000 in mediation and court fees to recover $300. "
"People go into mediation thinking that they have something and someone is trying to take it from them. So it is up to the mediator and lawyers to restructure the discussion..."
"The mediator needs to calm it down and help the person get control of his or her body."