In 2011 the National ADR Advisory Council (NADRAC) formulated a set of National ADR Principles (included in the 2012 publication Your Guide to Dispute Resolution) as follows:

1. People have a responsibility to take genuine steps to resolve or clarify disputes and should be supported to meet that responsibility.

2. Disputes should be resolved in the simplest and most cost effective way. Steps to resolve disputes including using ADR processes, wherever appropriate, should be made as early as possible and both before and throughout any court or tribunal proceedings.

3. People who attend a dispute resolution process should show their commitment to that process by listening to other views and by putting forward and considering options for resolution.

4. People in dispute should have access to, and seek out, information that enables them to choose suitable dispute resolution processes and informs them about what to expect from different processes and service providers.

5. People in dispute should aim to reach an agreement through dispute resolution processes. They should not be required or pressured to do so if they believe it would be unfair or unjust. If unable to resolve the dispute people should have access to courts and tribunals.

6. Effective, affordable and professional ADR services which meet acceptable standards should be readily available to people as a means of resolving their disputes.

7. Terms describing dispute resolution processes should be used consistently to enhance community understanding of, and confidence in, them.

On 14 September 2016, the ADR Advisory Council (NADRAC’s supercedent) noted in a published paper on their website that: ‘ADR is founded on ideas – it is intrinsically ideological. The ideas which underpin ADR are neither scientific nor inert – they comprise an unmistakeably value-laden set of principles’. 

ADRAC went on to ask the following questions which continue to be relevant and challenging for the DR community in Australia.

Can the principles be combined to arrive at the following four core values:

1. personal responsibility – based on the ability to make informed choices

2. proportionality – between dispute and process

3. fairness and integrity – as to process (query as to outcome)

4. public confidence.

Are there core values missing from this list?

Is ADR essentially about the provision of a process which is fair, or an outcome which is fair, or both? And whose assessment of ‘fair’ is to be applied in any instance: is it to be evaluated from the perspective of the law, society, or the participants?

Please share your views!

Acknowledgements: Fern

The reality of the stressful nature of life in lockdown as a result of COVID-19 is that the quality of our communications and negotiations is under pressure. We need to harness our dispute resolution agency, and employ positive strategies and methods from the art of mediation, in order to ensure we do our best to prevent, manage and resolve disputes. We also need to practice self-management, for example by building our resilience skills, so that we protect our psychological well-being and ensure we have the right attitudes and energies for lockdown living.

In this last post for the Lockdown Dispute Resolution #101 series we consider a second aspect of self-management – reflective practice. Mediators regularly engage in reflective practice. For example, after Associate Professor Libby Taylor and I have conducted a co-mediation in the Bond Family Dispute Resolution Clinic, we always debrief together and reflect on what went well and what we could have done differently or better. We ensure our feedback to each other is honest but constructive and it’s always a very rich learning experience.

The self-management skill of reflective practice can help us to manage and cope with stress as we endure the impact of COVID-19.  It can also enhance our capacity to communicate and negotiate effectively.

Reflective practice

Reflective practice is a positive cognitive process that we can all use to enhance our capacity for self-management and our interactions with others in lockdown. Reflective practice helps us to strategically and thoughtfully identify gaps between our existing knowledge, skills and values, and those we want to gain or develop. Reflective practice can also help to maintain our psychological well-being because it supports emotional intelligence which in turn supports balance, happiness and self-regulated behaviour. Once you know how to do reflective practice it is hard to unlearn – it’s a valuable skill that has application in both our personal and professional lives.

Donald Schön

There is a substantial body of scholarly literature and research on reflective practice. Chris Argyris and Donald Schön published the first scholarly work in the area of reflective practice in 1978. Schön was one of the leading thinkers in reflective practice until his untimely death in 1997 at the age of 66.

After considering a range of theorists’ work on reflective practice, Russell Rogers devised the following definition. Reflective practice is:

a cognitive and affective process that (1) requires active engagement on the part of the individual; (2) is triggered by an unusual or perplexing situation or experience; (3) involves examining one’s responses, beliefs, and premises in light of the situation at hand; and (4) results in integration of the new understanding of one’s experience.

The attributes of a reflective practitioner are all the sorts of attributes we need to be effective communicators and negotiators in lockdown. For example, reflective practitioners learn from experience; identify personal and professional strengths; identify areas for improvement; identify their needs; develop goals; implement strategies to achieve goals; acquire new knowledge and skills more effectively and efficiently; better understand their own beliefs, attitudes and values; are self-motivated, self-directed, and more confident; cope well with uncertainty and anxiety; exercise sound judgment; are able to accept and constructively process critical feedback; and are committed to life-long learning (Davies, 2012).

Putting theory into practice

The theory of reflective practice certainly sounds positive. There are many ways to put this theory into practice. One reflective practice model that is easy to enact has been developed by Graham Gibbs. This model involves 6 steps:

• First, identify an experience or situation that requires reflection. For example, my difficult Zoom communication with a work colleague today.
• Second, describe that experience or situation by asking ‘What happened?’ This is not an analysis of the situation – merely a description. For example, my colleague was agitated that a decision had been made without consulting her and expressed this in an aggressive way towards me. I responded defensively.
• Third, explore your reactions and feelings in relation to that situation or experience by asking ‘How did I feel about the situation?’ For example, I felt really angry that she accused me of poor collegiality without asking for more information about the situation. I felt upset that she had spoken to me so aggressively. I felt I had to let her know that and defend myself.
• Fourth, analyse and evaluate the situation or experience by asking questions like: ‘What could I have done differently?’ ‘Was the experience similar or different to previous experiences?’ For example, I could have remained calmer and used empathy to understand where my colleague was coming from. I could have asked more clarifying questions rather than responding defensively. I could have used LARSQ more effectively to lift the quality of the interaction. I could have acknowledged the colleague’s upset and suggested we pursue the conversation at another time.
• Fifth, make some conclusions about the situation or experience, starting with general conclusions and moving to conclusions that are more specific to you and your own personal situation or way of working. For example, I want to avoid this sort of communication exchange with any colleagues in the future. With this particular colleague I want to reach out to apologise for my defensive response, revisit what happened and ensure a better communication process that will settle the issues.
• Sixth, use all the steps above to create a personal action plan for yourself, using questions like: ‘How will you manage a similar experience next time?’ What will you do differently, what will you do the same?’ ‘What have you learned from the situation?’ ‘What steps can you take to make the most of this learning experience?’ For example, I’ll talk with my mentor about what happened and seek some further feedback from them. I’ll work to fix the relationship with this colleague. I’ll aim to set ground-rules for communications when a colleague appears to be approaching the situation aggressively. 

Reflective practice is a skill that is best learned by doing. To become a competent reflective practitioner, we need an established structure and framework, such as Gibbs’ model above, to guide our reflections. We also need to commit to that framework and allocate dedicated time in our busy schedules to ensure that we actually put reflection into practice.

Being a reflective practitioner has lots of positive flow-on impacts for coping with the challenging circumstances of COVID-19 and life in lockdown. Reflective practice can help us to be more effective as communicators and negotiators, and ensure that we do our best to prevent, manage and resolve disputes.

Thank you: This series of posts was only possible through the collegial generosity of ADR Research Network members. Thank you to Professors Laurence Boulle and Nadja Alexander for very kindly allowing me to use and adapt Chapter 6 of their Mediation Skills and Techniques (Lexis Nexis, 3^rd ed, 2020) for many of the posts. This book is a must-have for any dispute resolution practitioner, and anyone interested in extending their dispute prevention, management and resolution skills. Thank you also to my co-authors James Duffy and Dr Anna Huggins for writing Lawyering and Positive Professional Identities (LexisNexis, 2^nd ed, 2020) with me. Elements of this work were used for the development of a number of posts. Thank you also to Professor Jonathan Crowe for allowing me to use aspects of our forthcoming work Mediation Ethics: From Theory to Practice (Edward Elgar, 2020).

Finally, a big thank you to the ADR Research Network members who are a wonderful, collegial and scholarly community of practice – you are all an inspiration. Thank you especially to Dr John Woodward our President for 2020 (who generously let me encroach into his Blog Editor month of May); and to Nussen Ainsworth – convenor of the ADR Research Network Blog for 2020.

Acknowledgements

The content of this post was adapted and reproduced from Rachael Field, James Duffy and Anna Huggins, Lawyering and Positive Professional Identities (LexisNexis, 2nd ed, 2020) Chapter 4.

Lockdown image: Inside Sources

Donald Schön: infed

Gibbs Reflective Practice Model: Cambridge International Education

Theory into practice: Pinterest

See also:

Chris Argyris and Donald Schön, Organization Learning: A Theory of Action Perspective (Addison Wesley, 1978).

Samantha Davies, ‘Embracing Reflective Practice’ (2012) 23 Education for Primary Care 9.

Graham Gibbs, Learning by Doing: A Guide to Teaching and Learning Methods (Oxford Centre for Staff and Learning Development, 1988).

Russell Rogers, ‘Reflection in Higher Education: A Concept Analysis’ (2001) 26(1) Innovative Higher Education 37.

Donald A Schön, The Reflective Practitioner: How Professionals Think in Action (Basic Books, 1983).

Donald A Schön, Educating the Reflective Practitioner (Jossey-Bass, 1987).

There is no doubt that living in lockdown can be stressful. The BBC has reported on a recent UK Office for National Statistics survey which suggests that people in lockdown are more worried about their mental wellbeing than their general health. Just under two-thirds of 16- to 69-year-olds surveyed were most affected by boredom, stress and anxiety and the inability to make plans. If simply experiencing life in lockdown is stressful, it is logical to infer that lockdown communications and negotiations are impacted by this stress, and that our ability to prevent, manage or resolve disputes in our homes and virtual workplaces may well be compromised.

In these last two posts for the Lockdown Dispute Resolution #101 series we consider two aspects of self-management that can help us to manage and cope with stress as we endure the impact of COVID-19.  In this post we consider the nature of stress and some basic resilience skills that we can adopt to improve our stress management capacity. In the final post for the series we consider reflective practice as a self-management tool that can help us to cope with the dynamics and pressures of lockdown. Self-management strategies are critical to effective communication and negotiation in lockdown.

Understanding stress

Stress is something that we all experience as we navigate our daily lives. Indeed, it is an inevitable part of life to experience strains, burdens, difficulties and unexpected change.

There are some important things to understand about stress:

1. Not all stress is the same. There are high levels of stress, low levels, and mid-range levels of stress. Stress varies on a continuum according to factors like duration and intensity.
2. Different people may experience different levels of stress in response to the same stressor. A situation becomes more or less stressful depending on an individual person’s cognitive appraisal of a situation and their relative ability to deal with that situation.
3. Not all stress is harmful. Within the range of levels of stress, moderate stress can actually work out for many people to be quite a positive thing. Positive stress is known as eustress, while negative stress is known as distress.
4. Experiencing too much stress is referred to as ‘hyperstress’. ‘Hypostress’ on the other hand concerns experiencing too little stress. In lockdown we can experience both hyperstress – feeling overwhelmed by too many new and different challenges and clashing priorities, as well as hypostress – feeling bored, unchallenged or unstimulated.
5. A moderate level of stress can be helpful because it can help build our capacity to deal with challenges; and it can prompt us to think creatively and resourcefully when dealing with difficulties.
6. Stress can impact us and manifest in a range of ways. For example, we can experience headaches; muscle tension or pain; chest pain; fatigue; stomach upset; sleep problems; anxiety; restlessness; lack of motivation or focus; irritability or anger; or sadness or depression.
7. If high levels of stress are experienced over a prolonged period of time this is known as chronic stress. Chronic stress can have a damaging impact on our physical and mental health, and can even lead to serious health problems, such as depression and heart disease.
8. Importantly, stress can be managed. We need to intentionally manage stress if we are to prevent it from affecting our health in a negative way.
9. We all need to keep an eye on our stress levels in lockdown, and if we sense that they are consistently too high, then we need to proactively take positive steps to address them.
10. It’s also important in lockdown for us to look out for other people and to check-in with them if we have concerns.

Resilience

Intentionally managing our stress in lockdown involves quite practical, common sense approaches and strategies around building our resilience. Resilience is a capacity to cope well under pressure, as well as an ability to respond and endure in situations of adversity. In other words, resilience skills help us to manage and prevent stress.

Watson and Field refer to research that identifies a range of positive characteristics of resilient people (2011, 399). For example, resilient people are socially competent, flexible, able to empathise, have good communication skills and a sense of humour. They are good at problem solving. They have an ability to think abstractly, reflectively and flexibly. They are autonomous, having a strong sense of independence and internal locus of control. Resilient people are purposeful and positive about the future. They are creative, have an ability to gain positive attention, are optimistic even in the midst of adversity, and have a sense of what a meaningful life means for them. Resilient people nurture relationships and take advantage of support. And they have a positive self-concept, self-awareness and self-understanding.

Building resilience

The following ideas for building resilience, and ensuring we manage and prevent stress levels from becoming too high, might seem simple or obvious. However, they are tried and tested and found in lots of well-being work. Most of us already know that these approaches are positive, but sometimes we need to be reminded to put them into action.

Being active

There are many benefits to being physically active. Not only is exercise a critical part of a healthy lifestyle, physical activity also boosts endorphin levels which make us feel good. We don’t have to become a marathon runner overnight, or take up activities we don’t enjoy. Even short bursts of activity can help us to feel better, concentrate better and become more productive. We just need to do some physical exercise every day, keep it simple and enjoyable and choose something that works best for us.

Eating well

It is a given that nutrition is a critical component of well-being. Eating well (so that blood sugar levels are in order) and keeping hydrated, are more important to managing stress levels than might be imagined. We need lots of fresh fruit and vegies, cereals, grains, nuts and proteins, and not a lot of junk food, alcohol and sugary foods in large quantities.

Prioritising relationships

Relationships are important to well-being. We know this from a lot of the positive psychology research which confirms that relationships, and being connected positively to others such as family and friends, are critical for most people to thrive as human beings.

Keeping things in perspective

Managing stress requires us to keep things in perspective. This means allowing things sometimes to be ‘good enough’ rather than ‘perfect’. Keeping things in perspective also involves prioritising the different elements of life and focusing energy on the most important elements. It means acknowledging that mistakes, failure and disappointment are all a part of a life lived well, and often present very valuable learning opportunities. It means aiming for a balanced life and integrating life, work and play. And it means having reasonable expectations of ourselves and others, and knowing, and being able to capitalise on, our own personal strengths.

Asking for help 

There are lots of different support systems in society and in our communities and with friends and families that we can identify. What’s important is being able to reach out for support when we need it and asking for help. Sometimes a conversation with a GP is helpful.

Rest and sleep

Sleeping well daily is critical to well-being and stress management. Individual people are different in terms of how much sleep they need to refresh, and sleep needs also differ depending on our age. The National Sleep Foundation has done extensive research into sleep. They suggest that an adult who is 18 years or older needs between 7–9 hours of sleep a day. Being stressed can cause difficulties in getting to sleep. Having a sleep routine can help. For example, planning the end of the day to include wind down time — preferably for 30 minutes before going to sleep — can be helpful.

Relaxing

Learning to relax is important to managing stress, building resilience and well-being. Yoga or Tai Chi are great ways to relax. Other strategies for relaxing include for example: mindfulness meditation, breathing exercises, exercising, and listening to music. The main thing is to work out what works for you. It could be a combination of things.

Positive self-talk

Positive self-talk can help to avoid negative thinking induced by stress.  Using positive self-talk can help build confidence and affirm a sense of having a capacity to cope. It can also help with reaching goals. For example, simply saying to ourselves: ‘I can do this!’.

Coping with disappointment and setbacks

A particular subset of resilience skills relate to getting over disappointments and setbacks in life. Setbacks are challenging but such experiences can be used constructively. We need to avoid blaming or being too hard on ourselves. We are only human and setbacks are a part of life. If we don’t ever feel disappointed, how will we understand what it is to feel truly happy and elated?

COVID-19 and life in lockdown are challenging. It’s a time when we need to be the most effective communicators and negotiators, and ensure that we prevent, manage and resolve disputes. Managing stress through enacting some basic resilience-building strategies is a simple proactive intentional way that we can harness our dispute resolution agency.

Final Blog: Lockdown Dispute Resolution 101 #25: Self-management strategies in lockdown: Reflective practice

Acknowledgements

The content of this post was adapted and reproduced from Rachael Field, James Duffy and Anna Huggins, Lawyering and Positive Professional Identities (LexisNexis, 2nd ed, 2020) Chapter 9.

See also, Penelope Watson and Rachael Field, ‘Promoting Student Wellbeing and Resilience at Law School’ in Sally Kift et al (eds), Excellence and Innovation in Legal Education (LexisNexis, 2011) 389.

Stress image 1: WebMD

Stress image 2: Medium

Resilience image 1: Medium

Resilience image 2: Positive Psychology

Our efforts in lockdown to prevent, manage and resolve disputes can be supported by engaging with some psychology basics. Not only do we need to recognise the different biases we bring to lockdown negotiations and communications, there is also a range of other insights that we can learn from psychology. We don’t have a mediator at home and in virtual workplaces to help us, so we need to draw on our dispute resolution agency and harness this knowledge ourselves.

As we know, psychology is the scientific discipline that studies the human mind, human behaviour and the mental processes that inform human behaviour. Psychology as a profession is dedicated to helping people solve practical problems with human fundamentals – such as how we think and feel. A common misconception of psychology is that it is only concerned with mental health issues, such as depression, anxiety and stress. These issues fall under the heading of clinical psychology, which is a particular psychological specialisation. However, other aspects of psychological knowledge can help us in lockdown communications and dispute resolution practice to understand why people behave, think and feel in certain ways. It is therefore clear that our efforts to make communication and dispute resolution in lockdown more effective can be enhanced by connecting with the evidenced-based knowledge base of psychology.

In this post we specifically look at emotional intelligence, emotional flooding and emotional transference and countertransference. If we tap into some of these ‘psychology basics’ we will be better able to understand conflict, disputes and our responses to them in lockdown.

Emotional intelligence

Simply put, emotional intelligence is the intelligent use of emotions. This requires an awareness of our emotions and an ability to use that awareness to beneficially aid our thinking and behaviour. Emotional intelligence informs our capacity to perceive emotions, assimilate emotion-related feelings, understand the information of those emotions, and manage them.

Emotional intelligence contains four competencies. First, the ability to perceive emotion accurately. Second, the ability to use emotion to facilitate thought. Third, the ability to understand emotion. Fourth, the ability to manage emotion.

Emotional intelligence is strongly related to intrapersonal intelligence and interpersonal intelligence. Emotional intelligence from an intrapersonal perspective considers an individual’s emotional self-awareness and their ability to regulate their own emotions. Emotional intelligence from an interpersonal perspective involves a person’s ability to accurately detect the emotions of another person and to manage their emotional responses.

Harnessing our emotional intelligence is important for communicating and negotiating in lockdown if we are to engage as well as we can with family, friends and work colleagues.

Emotional contagion

Emotional contagion is a psychological phenomenon that refers to the ‘catchability’ or contagiousness of emotions. For example, if Rachael is in a particularly happy mood, this mood may end up rubbing off on Anna and Anna may subsequently begin to feel happier. Anna might then ‘infect’ others with her happiness. Emotional contagion ‘refers to the tendency to catch (experience/express) another person’s emotions’ (Kimura, Daibo and Yogo, 2008, 27).

One formal definition of emotional contagion (sometimes referred to as primitive emotional contagion’ or ‘implicit emotional contagion’) describes the construct as ‘the tendency to automatically mimic and synchronize facial expressions, vocalizations, postures, and movements with those of another person and, consequently, to converge emotionally’ (Hatfield, Cacioppo and Rapson, 1994, 5).

Emotional contagion has also been defined more broadly to mean ‘a process in which a person or group influences the emotions or behavior of another person or group through the conscious or unconscious induction of emotion states and behavioral attitudes’ (Schoenewolf, 1990, 49).

An awareness of emotional contagion can help us to understand the feelings of others and therefore see a conflict in a more positive light – and take actions that might lead to positive outcomes. This awareness can also help us to avoid catching the emotions of others, which otherwise might lead to feelings of helplessness, or hostility towards the other party.

Emotional flooding

Emotional flooding occurs when an individual becomes swamped by emotions. Biologically, intense emotional experience can affect the way the brain works. Information exchange to the neo-cortex is inhibited, with the result that people find it difficult to think in cognitively complex ways and to function properly. This might sound like a really extreme and rare occurrence, but it actually happens to people surprisingly frequently.

Have you ever found that in a heated argument, or when you are faced with a stressful situation, that your brain does not seem to function quite as well as you would like? Your muscles feel a bit tense, your heart rate goes up, your breathing becomes a bit more rapid, or your voice becomes unsteady? Maybe you feel like bursting into tears? These are all signs that emotional flooding may be occurring.

Knowing about emotional flooding is important for us in lockdown communications and negotiations. It is not uncommon to feel distressed if we are experiencing conflict, and this makes us particularly susceptible to emotional flooding. Emotional flooding is most likely to occur when we experience negative emotion that has been triggered by an external event, or even our own negative thoughts. It can be counterproductive to engaging in higher order thinking. That said, emotional flooding can occur to varying degrees in different people. For example, it might manifest itself in the person we are communicating with as their appearing just a bit spaced out, or mentally stuck.

Literature suggests that it may take at least 20 minutes for someone to recover from an experience of emotional flooding. Obviously, there are some situations where we can’t afford to take a 20-minute time out. Ideally then, we should try to avoid emotional flooding. Understanding our own triggers for emotional flooding is a vital step in its prevention. Reframing external problems or threats as challenges to be overcome, and correcting or challenging negative internal dialogue, are two strategies for combating emotional flooding. Positive self-talk is really helpful in this regard!

Transference and countertransference

The concepts of transference and countertransference have their origin in the work of Sigmund Freud and his focus on psychoanalysis/psychodynamic theory. Freud was a famous psychologist for many reasons, although when most people think about Freud, they often think about beards, couches, and unconscious and sexually repressed thoughts and behaviour. These images are all accurate to a certain degree. As it turns out, one of the reasons why Freud used ‘the couch’ when treating patients related to the notion of countertransference: ‘Freud frankly admitted that he used this arrangement inherited from the days of hypnosis, because he did not like “to be stared at”; thus, it served him as a protection in the transferencecountertransference duel’ (Benedek, 1953, 202).

Talking about transference and countertransference outside the context of psychotherapy arguably dilutes the precise clinical meaning of these terms. Given this caveat, transference refers to a process in which we might project on to the person we are communicating with certain traits – which might not be based in reality – but which stem from our previous associations with that person. Countertransference involves a reaction to their expressed emotions and point of view from a perspective of our own unresolved personal issues. Just like emotional contagion and emotional flooding, transference and countertransference are regularly occurring phenomena. They don’t necessarily lead to problems, but it is important to appreciate when transference and countertransference are at play.

Tomorrow’s Blog: Lockdown Dispute Resolution 101 #24: Effective communication strategies in lockdown – self-management: Part 1. This is followed by Lockdown Dispute Resolution 101 #25: Effective communication strategies in lockdown – self-management: Part 2. These are the 2 final posts in the Lockdown Dispute Resolution 101 series.

Acknowledgements

The content of this post was adapted and reproduced from Rachael Field, James Duffy and Anna Huggins, Lawyering and Positive Professional Identities (LexisNexis, 2nd ed, 2020) paras 10.27-10.42.

Psychology image 1: American Psychological Association

Emotional intelligence image 1: Cognitive Institute

Emotional contagion image 1: Psychology Today

Emotional flooding image 1: Highly Sensitive Refuge

Countertransference image 1: Moosmosis

See also:

Therese Benedek, ‘Dynamics of the Countertransference’ (1953) 17 BULL Menninger Clinic 201.

Paul Olsen (ed), Emotional Flooding (Human Sciences Press, 1976).

Gerald Schoenewolf, ‘Emotional Contagion: Behavioral Induction in Individuals and Groups’ (1990) 15(1) Modern Psychoanalysis 49.

Elaine Hatfield, John T Cacioppo and Richard L Rapson, Emotional Contagion (Cambridge University Press, 1994).

Tricia Jones and Andrea Bodtker, ‘Mediating with Heart in Mind: Addressing Emotion in Mediation Practice’ (2001) 17(3) Negotiation Journal 217.

Lezlie Burwell-Pender and Kate H Halinski, ‘Enhanced Awareness of Countertransference’ (2008) 36(2) Journal of Professional Counseling: Practice, Theory, and Research 38.

Masanori Kimura, Ikuo Daibo and Masao Yogo, ‘The Study of Emotional Contagion from the Perspective of Interpersonal Relationships’ (2008) 36 Social Behavior and Personality 27.

Nadja Alexander, Jill Howieson and Kenneth Fox, Negotiation: Strategy Style Skills (LexisNexis, 3rd ed, 2015).

In this post we think about the psychological and neuro-science impacts on our efforts to prevent, manage and resolve disputes in lockdown. This is another area where we need to enact our dispute resolution agency to be effective communicators in our homes and workplaces during COVID-19.

Mediation and the Brain

Psychology is about how the human brain works. The workings of the human brain are an increasingly important knowledge base for mediators and in lockdown we can learn from the art of mediation in this regard. In lockdown discussions we need to be aware of, and take into account, our relative emotional and psychological states.

We can no longer assume that individuals make utilitarian decisions on a rational basis, in the promotion of their own self-interests and in terms of objective cost-benefit analyses of their options. Such assumptions have been challenged, amongst other things, by the disciplines of behavioural economics, cognitive psychology, game theory, neuro-science and decision theory.

In mediation and in lockdown communications we need to expect some level of ‘irrationality’ in terms of our problem-solving and decision-making as humans.  Studies in cognitive psychology, for example, have demonstrated through observation, experiment and surveys that many people are guided by cognitive and social biases, heuristics and other unconscious factors when they make decisions and not by conscious rational considerations.

Various cognitive and social biases have implications for mediation and other DR processes:

First, the confirmation bias involves parties being selective in their choice of facts and evidence, accepting and emphasizing what supports their preferred outcomes to a situation and ignoring, marginalizing or rejecting the information which undermines it. This bias is essentially a form of one-eyed self-deception which is widespread in dispute situations.

Second, the anchoring bias involves parties being unconsciously influenced by a number or dollar figure provided from negotiating opponents, or even from an extraneous source, and adjusting their expectations and negotiation range accordingly.

Third, the optimistic over-confidence bias involves persons betting themselves ‘against the odds’ and expecting to do better than the average, for example franchisees in a particular industry or claimants in vehicle accident compensation cases.

The many unconscious biases in human decision-making cause parties in mediation to diagnose conflicts inaccurately and to intervene inappropriately, not only frustrating attempts at settlement but prospectively causing disputes to escalate in extent and intensity. The biases can also operate cumulatively – for example an employee’s confirmation bias about the circumstances of their removal from office is likely to exacerbate their unrealistic over-confidence about achieving a positive outcome to a dismissal claim, such as reinstatement, or a higher than normal damages settlement.

While artificial intelligence (AI) claims to avoid or annul many of these features of the human condition, decision-making biases can also be inadvertently embedded in software and algorithms and thereby impose residual preferences on decisions.

Mediation and Neuro-Science

Neuro-science adds to the knowledge base of psychology through observation and analysis of actual brain activities in human subjects. Through imaging of physiological, electrical and chemical impulses in the brain, scientists can observe the impacts on the brain’s neural pathways, and different parts of the brain, when a patient or subject is exposed to different sounds, sights, words or other stimuli.

A compelling illustration of these insights is provided in relation to the phenomenon of loss aversion, one of the cognitive biases previously identified by psychologists. When subjects undergoing brain-scanning are exposed to the single words ‘loss’ or ‘gain’ there are profound differences in the observed neural impacts – in broad terms the former term has an effect several orders of magnitude greater than the latter, in respect of both intensity and duration. In this instance the brain science reinforces orthodoxy long prevalent in mediation theory: parties who perceive they are facing a loss are likely to be risk-accepting and seek an outcome away from the mediation, but if they perceive a gain at the mediation table they are likely to be risk averse and favour settlement.  Brain scanning provides corroboration and a deeper explanation for the phenomenon, founded on human survival instincts, which responds to threats more intensely than to rewards. While survival instincts arose originally in relation to physical threats, they are now also a product of perceived unfairness, undignified treatment, negative emotional experiences or unfulfilled expectations in the mediation room.

Through brain-scanning and other investigative procedures, neuro-scientists have provided far-reaching evidence and understanding of how electrical messaging and chemical releases operate under conditions of stress, emotion and ambivalence, all of it potentially relevant to mediation.  For example, mirror neurons in one party’s brain can be activated by agitations in those of another person, leading to emotional contagion among disputants in high-level conflicts.  The chemicals dopamine, oxytocin, adrenalin and cortisol are released in response to specific pleasurable or stressful circumstances, including those encountered in the mediation room, and they affect respective parties’ behaviours, judgments and decisions.  The plasticity of the brain, however, entails that its operation is not always predictable and it can change its habits and patterns over time.

Another dimension of brain science derives from the organ’s bicameral structure. In 2017 Australian judges were addressed on the divided brain by an English psychiatrist, Ian McGilchrist, his work drawing on science, philosophy, literature and culture. He accentuated the significance of brain bicameralism in many aspects of human affairs and societal development – and by implication in dispute resolution activities. A more dated ‘left brain-right brain’ notion had been prevalent decades earlier, associating the left with attributes such as logic, language and analysis and the right with factors such as emotion, affect and art. This construct had in some respects been overtaken by work on the triune brain, and its implications, referred to above.

McGilchrist’s work essentially re-affirms in more erudite terms the significance of the two hemispheres, while emphasising that both sides are involved in all brain functions, from thinking to feeling and from mathematics to imagination, and continuously communicating with each other. However, despite the hemispheres being interdependent in all brain activities, each has significantly different ways of operating.

At a simplified level the brain spheres can be differentiated as follows: the left hemisphere is analytical and linear, it fragments experiences and operates with patches of information as opposed to whole entities and it uses categories and concepts in predictable patterns – ‘claimant’, ‘respondent’, ‘damages’ and the like. It has a narrow focus of attention and tends to decontextualize, divide and simplify, providing a ‘re-presentation’ of the world. Above all the left hemisphere is where our competitive instincts reside, it is utilitarian in focus and, importantly for mediation, it is convinced of its own rectitude and has difficulty changing its mind.

The right hemisphere is where new experiences are initially processed. It provides a big-picture assimilated view of the world, deeper and wider than the localised short-term view of the left. It has integrative powers, providing a more complex and connected picture of reality than the left, and it is more intuitive, imaginative and empathetic. Here there is a richness of thought, stimulated by gesture and symbol, poetry and myth, music and metaphor. Moreover, the right hemisphere operates largely at an unconscious level with few of our experiences and effective decisions, that McGilchrist suggests, operate within our actual consciousness.

The hemispheric modes of experience can be significantly opposed in their approaches and are sometimes in states of conflict. Human decision-making, whether in personal, business or mediation contexts, is initially dictated by the right hemisphere, albeit at an unconscious level. The complexity of thought in the right segment is then translated into the (sometimes simplistic) language and categories of the left. The ongoing development of the left hemisphere over the ages has made it more assertive than its partner and enabled it to manipulate reality, shutting down the right’s holistic view of the world – deeming it quaint and out of touch with a reality created by the right. Its penchant for self-consistency entails that it finds it difficult to accept that it might be wrong, a common syndrome in mediation. These factors explain the optimistic over-confidence encountered repeatedly in the mediation room (from both parties and advisers) which provides a challenge to mediators and other dispute resolvers.

It is not possible to depict definitively how emerging knowledge bases in psychology and neuro-science can be given effect at the mediation table. It is no easy task, for example, for mediators to identify parties’ cognitive and social biases accurately as these operate instinctively, without even the relevant party’s conscious awareness, and the other party and mediator may well remain unaware of them. Nonetheless all knowledge about human decision-making is potentially relevant in mediation and provides a tentative foundation for understanding the dynamics of parties’ negative dispositions and behaviours and what might be done about them. Moreover, while the biases may induce a lack of rationality to mediation decision-making, there is some degree of predictability in the different forms of irrationality.

John Wade used the metaphor of the mediator’s tool-box of interventions, implying that mediators will not always be able to adopt standardised procedures and linear logic but may have to be reactive, responsive and instinctive in using different tools in the process.  The National Mediator Accreditation System provides some guidance on mediator responsibilities in relation to conflict, negotiation and culture but this is of only limited proportions. Psychology and neuro-science are definitely new tools for the mediator’s tool-box.

In lockdown communications we don’t have mediators with us thinking about all these complexities to communications. So we need to enact our dispute resolution agency and be aware of the psychological and neuro-science elements at play. In the next post we consider some of the specific psychological elements we can be aware, and take account, of in our lockdown communications.

Tomorrow’s Blog: Lockdown Dispute Resolution 101 #23: Effective communication strategies in lockdown – dispute resolution psychology basics: Part 2

Acknowledgements

The content of this post was adapted and reproduced from Laurence Boulle and Rachael Field, Mediation in Australia (LexisNexis, 2018) paras 6.72-6.99.

Brain image 1: Harley Therapy

Confirmation bias image 1: Medium

Neuroscience image 1: Nature

Prof Ian McGilchrist image: Byron Clinic

Prof John Wade image: Mediate.com