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Emotions in Mediation – Yours and Theirs: The Good News is they Matter

Daniel Goleman’s book, Emotional Intelligence: Why it can Matter More than IQ (Bantam 1995), stayed on the New York Times best seller list for 80 months, with people buying six million copies. The popular response to his book suggests that people are yearning to understand the role of emotions in their lives. Goleman’s thesis is simple. Emotion intelligence is essential to good judgment. Our ability to recognize and modulate our emotions often spells the difference between success or failure in our personal and professional relationships. He defines emotional intelligence as self-awareness, impulse control, persistence, zeal, altruism, self-motivation, empathy, and the ability to love and be loved by friends, business associates and family. It includes listening well, the ability to calm oneself and the ability to give constructive and supportive feedback. One reviewer said that the book reminds us that our “humanity lies in our feelings, not our facts.”

The book explores the extensive research that now exists on the brain physiology of emotions. Briefly stated, most of our emotional responses find their origin in the evolutionarily older parts of our brain – the mid-brain, and especially the amygdale. This center for quick emotional response allows us to jump back on a wooded path in fear when we think we see a snake. Nanoseconds later, part of the visual impulse finally makes its way to the neocortex of the brain located behind our foreheads. It is then that we realize: “That’s not a snake; it’s a stick! I don’t need to be afraid.” This quick emotional response often meant life or death to our primate ancestors. Now it can cause us trouble. Id. at 3-29.

Mediators need to understand this physiological system because it explains what Goleman calls “emotional hijacking.” Clients who fly into a rage or express other strong uncontrollable emotions are typically reacting to the amygdale stimulation. They have not yet registered the modulating influence of the neocortex. Some clients, in fact, may have less developed or damaged neocortext centers. Taking a break when emotions run high in mediation, allows a client to “catch up” with the neocortext signals. Oddly, the neocortext also plays a role in providing emotional context for current situations based on past experiences. Id. at 27-28. A New York Times article that appeared in January 2004 explains that when our actual perception of the current situation is blocked, limited or otherwise flawed, we act based on past experience – some of which involves past emotional situations or context. Perhaps this explains why, when you meet someone who reminds you of your bossy big brother, you react to him in the way you react to your brother, even though you have had little time to get to know the new acquaintance. Suddenly you are the sullen younger brother passively resisting the efforts to control or persuade you. The research shows that when we cannot access this past emotional context – because the neocortext is damaged or destroyed – we make bad decisions.

In my ADR survey class, I spend a day discussing the role of emotions in conflict. I have a very skeptical audience. Few of my students even have the working vocabulary needed to describe emotions. For heavens sake, they say, they are in law school to learn rigorous logical analysis of the law. They are not there to consider the touchy-feely stuff I want them to learn. I force the students to read (that is, I test them on it) a really terrific article by Melissa K. Nelken called “Negotiation and Psychoanalysis: If I’d Wanted to Learn About Feelings, I Wouldn’t Have Gone to Law School,” 46 J. Legal Educ. 420 (1996). She argues that “[w]ithout some degree of …attention to feelings, lawyers [and mediators] run the risk of missing much that is central to competent representation.” Id. at 423. She asserts that clients suffer when lawyers cannot see the client’s “emotional self as anything but an impediment to sensible, rational management of the legal problem the client brings.” Id. She also suggests that in negotiations we need to identify the emotional barriers that undermine our effectiveness. A woman negotiator, showing great self-awareness, admitted that she often felt that the other side had a better position and that she was at his or her mercy. Nelkin suggests that her insecurity may reflect her own feelings about aggression. The son of a physically and emotionally harsh father said, “Now, I realize I remove myself from situations that remind me of negotiations with my father. I anticipate hostility sometimes where there is no danger of it arising. This sometimes leads me to make concessions to assure that the danger level is never reached.” Id. at 426.

My mediation students are now working with a book by Stone, Patton and Heen called Difficult Conversations: How to Discuss What Matters Most (Penguin Books 2000). Chapter Five discusses the importance of acknowledging emotions that arise and fuel conflict. The authors explore four ways in which emotions play a role in any difficult conversation (including mediations): (1) unexpressed feelings can leak into the conversation and affect a participant’s tone of voice, body language, and facial expressions, (2) unexpressed feelings can burst into the conversation in embarrassing and destructive ways, (3) unexpressed feelings make it difficult to listen, and (4) unexpressed feelings take a toll on self-esteem and relationships by keeping an important part of the participant out of the conversation. Unexpressed emotions may make a mediation participant “sarcastic, aggressive, impatient, unpredictable, or defensive.” Id. at 88. Ken Cloke, as I explained in my last article, would say that skillful mediators need to intervene at this deeper (third) level of conflict resolution to deal with issues of emotions and the “heart.”

Stone and his colleagues suggest that participants to a difficult conversation need to understand why they have developed the emotional “footprint” they now have. Often the footprint reflects how our families handled emotions. It may reflect the emotional role we played in our families. We may feel reluctant to express sadness or fear, but free to express anger. We may give ourselves permission to express positive emotions, but bottle up what we define as “negative” emotions. As mediators, we need to understand our own footprints, but we also need to be able to spot and understand the footprints of our clients. The authors suggest that a participant’s urge to blame the other party, often masks important unexpressed feelings. “The urge to blame arises when the contribution system is explored in a feelings vacuum….Once those feelings are expressed (Here’s what I’ve contributed, here’s what I think you’ve contributed, and, more important, I ended up feeling abandoned”), the urge to blame recedes.” Id. at 99.

Many of these same themes are explored in Daniel Bowling and David Hoffman’s new book called Bringing Peace into the Room: How the Personal Qualities of the Mediator Impact the Process of Conflict Resolution (Jossey-Bass 2003). In a chapter called “Emotional Intelligent Mediation,” Marvin Johnson and two colleagues identify four key emotional competencies: self-awareness, self-management, social awareness and social skills. The social awareness skills identify many components of any basic mediation training: listening, reading non-verbal cues, being open to diversity, seeing others’ perspectives and understanding others. Taken together, they are the skills required to successfully project empathy. Id. at 159-60. The social skills include win/win influencing, conflict resolution, collaboration, leadership and communication. These competencies make us light on our feet by giving us the ability to recognize the need to use different approaches with different people. Id. at 161-62.

The authors argue that many mediators avoid the expression of emotions in mediation because they lack these competencies and other elements of emotional intelligence. Other mediators, sounding a lot like my students, resist dealing with emotions because they do not consider them essential to a resolution. The authors summarize the chapter by quoting a participant from one of their training workshops: “As mediators, we must work to feel comfortable with, not afraid of, emotions. We can’t always keep everything smoothed over. Emotions are present like an elephant in the room. As mediators, it is vital for us to acknowledge the elephant and invite it to be present. Emotions are a very powerful mediating tool because the conflict really is about emotions.” Id. at 164.

They conclude by asking the reader three questions: “(1) To what extent do you experience the management of emotion – your own and that of the parties – as central to your work as a mediator? (2) In what ways have you seen emotional intelligence (or the lack of it) – either your own or that of the parties…influence the resolution of a dispute? (3) As you look at the list of competencies… where – on the scale from unconscious incompetence to unconscious competence – would you place yourself with regard to each one?” Id.

And so I pose these questions to you, too.


Paula Young

Paula M. Young is an associate professor at the Appalachian School of Law located in Virginia teaching negotiation, certified civil mediation, arbitration, and dispute resolution system design.  She received in 2003 a LL.M. in Dispute Resolution from the top ranked program in the U.S.   She has over 1400 hours of… MORE >

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