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Compelling Mediation

PGP Mediation Blog by Phyllis G. Pollack

On January 11, 2013, I posted a blog entitled “A Mediator’s Wish List” which discussed a letter to Santa Claus in which the author, a mediator, asked for three gifts: perspective and understanding; empathy and connection; and forgiveness and healing. (a-mediators-wish-list ) The letter appeared in the January 2013 issue of the Indian Arbitrator. (Santa Claus Responds )

Well, Santa wrote back! But, not with the response one would expect. In the February 2013 issue of the Indian Arbitrator, Paul Randolph, a barrister, mediator and course leader at Regent’s College London, UK replies in a neuroscientific fashion.

Initially, Santa notes that he has given the requested gifts many times over, to no avail. The problem is that when people get involved in a dispute, their rationality and logic fly out of the window. They forget about perspective, understanding, empathy, connection, forgiveness and healing. All they want is “… to sue the bastard!” (Id. at 2). And, they do not care if they will never collect any money pursuant to a judgment….They just want vengeance. (Id.)

As Mr. Randolph explains,

“…the problem is emotions. You are amongst an emotional species that are not programmed to compromise or forgive; you are programmed to win-and in winning you want to see blood on the walls!….

The biological explanation for such behavior is the Amygdala, a small part of your brain that controls your ‘automatic’ emotional responses, your ‘ûght or ûight’ ‘reûex’. When you are in dispute with another, the Amygdala reacts to the threat of attack by initiating a reaction within the brain which overrides the neo-cortex (the ‘rational’ thinking part) and physically prevents you from applying analysis or reason or logic. It is often called an ‘Amygdala Hijack’ because of the way in which it seems completely to take over the brain. In present day terms of course, for your clients, the attack is not necessarily a physical attack, but rather a personal attack upon their values and integrity….” (Id. at 2-3)

In light of this neuro response to litigation, by which parties seek complete victory and vindication, humiliation of the other side and money or other damages, Mr. Randolph suggests that “mediation” simply cannot compete with an “Amygdala Hijacking!” (Id.)

So, what does he propose? That there be “robust government intervention”, i.e., that the powers to be make it impossible to litigate without first attempting mediation. That the judiciary and/or legislature require mediation as a precondition to litigation. ( Id. at 3.)

I find this suggestion particularly poignant in light of the Los Angeles County Superior Court’s recent announcement that due to budget cuts by the state resulting in shortfalls in its operations, the ADR office (the largest in the country) will be completely dismantled as of the new fiscal year, July 1, 2013. Pro Bono or “free” mediations and reduced rate mediations will no longer be available through the court’s program. If a party wants to mediate, she will have to find a private provider and negotiate a rate. The courts in Los Angeles County will no longer be in the business of “compelling” parties to mediate by strongly suggesting that they select a mediator from the court’s panel; there will be no panel and no mediation program.

Everyone is waiting to see how this abolition of the Court’s mediation program will affect not only the mediation business, but the Courts in terms of case load and backlog for setting trials. If Mr. Randolph is correct; that our amygdala kicks in and prevents us from seeking a non trial by fire resolution unless we are forced to do so, then the LA County superior court system is in for a whole lot of trouble.

Hopefully, he is wrong… and that before our amygdala hijacks our better senses we do come to our senses and realize that “mediation” and the other forms of alternative dispute resolution are the ONLY way out of the dilemma created by our fiscal crisis. We all wait with baited breath to see what happens!

…Just something to think about!


Phyllis Pollack

Phyllis Pollack with PGP Mediation uses a facilitative, interest-based approach. Her preferred mediation style is facilitative in the belief that the best and most durable resolutions are those achieved by the parties themselves. The parties generally know the business issues and priorities, personalities and obstacles to a successful resolution as… MORE >

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