Professor Kathy Douglas (RMIT) discusses her paper on ‘Lawyers’ Practice in Mediation: Including Emotion as Part of Lawyer Guidelines’ with members of the Australasian Dispute Resolution Research Network.
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Thank you Kathy, I really enjoyed your presentation, and appreciated how you drew together a number of recent empirical studies about lawyers in mediation. You talk about “allowing and encouraging” emotions in mediation and I agree that neither lawyers nor mediators ought to discourage or ignore emotions related to conflict. I have 3 strains of thought I’d like to share.
1. Sometimes participants could benefit from support to recognise and express their emotions, and to recognise and understand that emotions of the other participants. Lack of recognition of a person’s own emotions and those of the other would be moments of disempowerment and lack of recognition that a transformative mediator would see as opportunities to intervene. What kinds of questions could be asked by lawyer or mediator to help someone reflect upon and identify their emotional state? There’s the obvious “how are you feeling about that”, but perhaps it would be interesting to explore the “how” of lawyer and mediator support for identification and expression of emotion. What kinds of interventions came up in your empirical work?
2. Sometimes people who have suffered trauma dissociate from their emotions as a coping mechanism – and interpersonal conflict could be a source of trauma. Alexithymia is an inability to identify and describe emotions experienced by oneself. This breaks the connections between feeling – cognition – belief that Laurence was talking about. It also makes it impossible to make decisions, because without connection to our feelings we lose our ability to trust our own judgment. I think this is something that lawyers and mediators ought to know about. At what point would it become unethical to progress with a decision making process with someone who lacks capacity emotionally to evaluate a decision? They might be cognitively functional, and emotionally calm (numb). This could be a blocker to their ability to make a decision and agree upon an outcome. How would lawyers or mediators judge this, and what should they do about it? Mindfulness can be learnt and is a powerful strategy to reconnect with bodily sensations (feelings) and to recognise the thoughts that arise in response to the bodily sensations. Mindfulness training probably requires a specialist professional to be effective, at least where a person has reached a state of alexithymia.
3. My last observation comes from my experiences teaching a Dispute Resolution Summer School this year. Self-reflection on learning is a core part of the learning journey. A few students have identified emotions during their workshop activities. They have labelled negotiations that got emotional as “hard”, and often reacted with reduced optimism about the prospects of settlement or doubts about the appropriateness of mediation and other consensus based DR processes. Often a (role playing) client’s overt emotions will be used to justify a decision that the (role playing) lawyer should protect the client by speaking for them. They also observed that sometimes when playing a role – in what is essentially a classroom game – they have felt emotions in that role. These are powerful learning opportunities that I think we can capture in the law classroom (most but not all of my students are studying a LLB). Conflict does involve emotions, and self-reflection and mindfulness are essential skills of professionals who support people about their conflict. If our students are already uncomfortable with emotion, then maybe we have an obligation to help them get more comfortable with it. We can notice, acknowledge, talk about, and explore ways it affected the learning activity, the participants, and would affect a real world situation.
I’ll be interested in other people’s ideas about any of the above.
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Hi Olivia, these are great thoughts and questions – thank you for sharing!
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Thanks so much Olivia – really great thoughts which I’m sure will really contribute to Kathy’s write up of the presentation for publication. A perfect example of what the ADR Research Network Roundtables seek to offer our members! Thanks again for offering such considered and extensive comments.
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Hi Kathy, thanks so much for your presentation. I agree there is much more that can be done to recognise the role of emotion in dispute resolution. One solution is to teach law students about emotion, which I am sure we all do. The more difficult thing I experienced as a young lawyer was the disconnect between the best practice I had learned about at university and what happens when you are in a junior position in legal practice. I handled this by remembering that I individually owed a duty to pursue my client’s best interests, so where I differed from my senior it was important for me to speak up in mediation prep – and I (mostly) did. But this isn’t always easy or effective. Do you have any other thoughts / suggestions for how new lawyers can advance their current knowledge about how to appropriately recognise and manage emotions?
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