This article is dedicated to the memory of Daniel Scott Epstein (January 26, 1979 – March 25, 2009)
INTRODUCTION
The focus on this article is assist lawyer advocates and lawyer mediators in being attuned to the presence and in addressing the key emotions of grief, anger and fear as they arise in the context of mediation. Dealing with these emotions is more often than not the key to successful mediations. Commentators in the field of mediation often address the motivations, underlying interests, and needs of the parties involved in conflict. [1] Skillful mediators search for and address these factors during the course of mediation. [2] Nonetheless, commentators, mediators, and negotiators tend to overlook the emotionally powerful issues of grief, anger, and fear. Acknowledgement of emotional factors empowers parties, creates a legitimate sense of control and fairness, and creates the opportunity to restore, preserve, or enhance relationships. [3] In short, by addressing emotions mediators and negotiators will unlock the door to key motivations, interests, and needs facing parties.
The focus on the emotional issues of grief, anger, and fear will often allow the parties to untie the knot which stands as a barrier to resolution of legal disputes.
These emotions are like strands of a braid, with the braid undone the knot dissolves and rational solutions become possible. Untying the knot first requires being alert to the fact that emotions govern many if not most of our “rational” decision making process and that grief, anger, and fear in one form or another are the emotion bundle we are most likely to see during the mediation process. If awareness is the first step in addressing the knot of emotions than empathic listening is the second step. Empathic listening requires lending an ear with understanding, appreciation, and respect. It means attending to another as you would have another listen to you when you are vulnerable.
Emotions of grief, anger, and fear often arise in wrongful death and catastrophic injury cases; but, are also present in business, employment, family business, and other disputes. It takes an empathetic negotiator and/or empathetic mediator to zero in on these underlying dynamics.
It is our view that utilization of a strictly evaluative approach, which focuses on only the “rational” evaluation of issues, leaves parties feeling unheard and unappreciated. [4] Though the resolution may be fair with this approach, the failure to attend to the emotional components of grief, anger, and fear leaves parties with unresolved emotions and a palpable sense of perceived injustice. An opportunity for positive closure is lost, even if the case is settled.
The purpose of this article is to draw attention to the emotions of grief, anger, and fear, and to discuss how to explore them and attend to them during the mediation process.
THE EMOTIONS OF GRIEF, ANGER, AND FEAR
Emotions
“We cannot stop having emotions any more than we can stop having thoughts. The challenge is learning to stimulate helpful emotions in those with whom we negotiate and in ourselves.” [5]
Fisher and Shapiro quoted above define “emotions” as a “felt experience” that affects our bodies, our thinking, and our behavior. [6] Michelle LeBaron expands on this by noting that “emotions” are instinctive and intuitive impulses to act that kick in before rational analysis. [7] Michael Brown identifies the three basic emotions as grief, anger, and fear. [8] Gary Zukav, states that love and fear are the two basic emotions. [9] We see the emotions of grief, anger, and fear most frequently during mediations, but, of the “big four” emotions, love is least frequently in play during mediations.
Contrary to the indication by some authors, [10] we believe that it unrealistic to separate people from their conflict problem. People’s emotions are part and parcel of the conflict. Reason and emotions cannot be separated from each other, if we are to reach the soul of the conflict.
If we avoid dealing with emotions during mediation we will often miss the core of the mediation process thereby losing the opportunity for a full measure of peace, reconciliation, restoration, and a perception of fairness.
When emotions arise in mediations, they should be addressed and explored, not ignored. Attorney advocates and attorney mediators must be prepared to deal with both the rational and the emotional aspects of conflict. Empathy and empathetic listening is an important tool in the arsenal of negotiators and mediators. [11] Empathic listening (listening from another’s perspective) allows a good negotiator or mediator to hear and appreciate the emotional factors that motivate parties in order to reach the core or soul of their issues. The skillful attorney mediator draws a person out in the expression of his feelings. This is done by creating a safe environment. This in turn is accomplished by eliminating distractions (such as laptops, cell phones, and note taking), listening for deeper meanings, making eye contact, by body language that reflects involvement, attentive silence, active listening, and connection. It all begins with listening with your eyes and focusing on the person who comes to the conflict with an emotional knot that needs to be untied. You listen and look for the emotional currents. You draw them out by establishing a connection. A connection can be developed my listening with patience as if there is no one in the room but you and the person in the midst of a difficult conflict. Reflective listening , which, is nothing more than testing by reframing, paraphrasing, and summarizing what you think you heard, can create the connection that then becomes that basis for trust. It may be that with careful listening a shared experience may be revealed that will enhance the bond of connection.
Emotions can have either a positive or negative impact on the mediation process. If a party has not yet dealt with the grief associated with the loss of a loved one, a long term business relationship, a leg, a major business deal, or the end of a way of life, it may be too early to sit down at the mediation table – the grief may still be too raw. Advocates and mediators need to have some familiarity with the grief process in order to ascertain where parties are in adapting to a profound life change. Is a party so stuck in anger, remorse, numbness, sadness, or denial that they cannot participate in a rational case assessment? Do one or more parties need to have a pre-mediation visit with an empathic mediator or a professional counselor? If possible this assessment should be made in advance of mediation and in most instances it can be made if counsel is at all attentive to the moods and emotions of their clients. Based upon experience and training the lawyer mediator may well be the one to ask attorney advocates if a pre-mediation caucus or a staggered start would be helpful in addressing some of these difficult emotional concerns. As ex-parte communication occurs throughout the course of most mediations there is no reason why pre-mediation meetings should not occur just as long as long as all parties are given equal access to the attorney mediator. Even if there has been some healing, the participants in a mediation cannot ignore its existence, as mediation is likely to reopen the emotional wounds that have scabbed over.
The displaying or sharing of emotions and feelings add energy and dimension to a party’s story – which is why generally the parties in conflict, not their lawyers, should tell their story. In many instances the opposing party will have greater appreciation for the opponent’s story if they hear if from him/ her rather than his/ her attorney. Also, in some instances the parties in conflict need to tell their story and share their emotions so they can continue with their journey through this conflict. Mutual story telling allows parties to share emotions, thereby giving context to rational case analysis. The enlightenment that comes from this sharing can often generate creative problem solving. Thus, the key at mediation is creating an opportunity for story telling to either a party in conflict or to a mediator. The point being made here is that the conflict story is that of the “partners in conflict” and not their counsel. In many instances, it is the parties that need to express their feelings; they are the ones who need to both listen and to be heard. Studies reflect that recognizing these needs has a significant impact on the principals’ sense of process fairness, and their willingness to come to closure. This requires lawyer advocates who have enough self-esteem to step back and lawyer mediators with sufficient skill to facilitate rather than adjudicate. Thus, lawyer mediators and lawyer advocates can often do more with a sense of humility that allows for the parties in conflict to have center stage. When this is accomplished we generally find that there is plenty of room on the stage for all the actors and the talent of all can bring the “play” of conflict to a successful end.
Grief
“… the term grief refers to the process of experiencing the psychological, social, and physical reactions to your perception of loss.” [12]
Grief is a profound multi-dimensional reaction to change that accompanies a significant loss, loss of a relationship, way of life, and/or sense of security. Grief often involves an abrupt social or personal change accompanied by feelings of anxiety, sadness, depression, denial, numbness, frustration, remorse, regret, bewilderment, uncertainty, emptiness, and/or fright. The social change may involve the loss of an occupation, the loss of friends, and family. The personal change may involve the loss of self-esteem, self-worth, and faith in God. Parties in one type of conflict or another may find their entire world torn asunder. They may face financial ruin and emotional collapse. In such circumstances should we be surprised if they are burdened with the question of “why do bad things happen to good people”? Why then should we be surprised that grief is one of the three intertwined strands of emotion that often tightly binds up a party’s capacity to deal with conflict? Yet, this is when people reach out to lawyer advocates to seek legal redress for grief that they feel is caused by another’s misconduct. Then lawyers appropriately seek a way of finding a “rational” process of legal redress. But, can expect the emotional component of their client’s legal grievances to diminish? No, they go on.
Indeed, denial, despair, loss, and sadness are some of the feelings that are wrapped up in the mourning process that accompanies grief. It is hard to make decisions, much less rational ones, when your world is shattered by a loss that impacts you emotionally, physically, and/or financially. As noted before lawyer advocates and lawyer mediators must be tuned into the overt and covert feelings associated with loss. The reactions to losses that fuel intense grief do not move along a timed natural progression. Feelings and adjustment come and go in waves that circle back. Leaving go of the case, working through the mediation may enable the grieving party or parties to move ahead. One piece of advice is that for intense cases lawyer advocates may wish to role play the mediation with their clients. The idea is not to script the mediation but to get their client emotionally set to make difficult and important decisions at the mediation.
Grief clouds judgment and fuels the thought process. Grief can cause you to become paralyzed or to react irrationally. How then can a grieving participant, frozen by grief, find a way to analyze and accommodate this emotion, so rational resolution of legal conflicts becomes possible? One idea that we have just suggested is a realistic role play. Another is to work with an empathic lawyer mediator who will hold premeditation meetings, use staggered starts, and be patient and calm.
It is generally a mistake not to attend to a party still grieving a profound loss. There are two main ingredients for successfully dealing with a participant’s grief at mediation. The first is to listen, really listen, to bear witness. The second ingredient is to forge a connection with the grieving party, if possible. For example, in a recent wrongful death case, the widow (whose husband had been burned to death and a mediator (who had just lost his son), spoke together about their respective journeys in grieving. During a conversation between the two of them during a caucus the widow noted experiencing an over whelming sense of drowning- an inability to catch her breadth. The lawyer mediator looked up in surprise and said, “I thought that I was the only one who had this feeling”. A quiet connection of trust and a bond of understanding were forged between the two “fellow travelers” in grief. The point here is that utilizing active listening skills and, when appropriate, self-disclosure are important tools that can create a connection that can assist in the many levels of resolution. In the case described following the mediation the widow sent the mediator a book she had used as part of her grief therapy.
While grief is a strong strand in the braid of emotions, it generally does not stand alone. Whether standing alone or in a “braid” accompanied with anger and/or fear; grief generally cannot be ignored during mediation. Anger
“When you say something unkind, when you do something in retaliation, your anger increases. You make the other person suffer, and they try hard to say or do something back to make you suffer, and get relief from their suffering. That is how conflict escalates.” [13]
While people seek counsel for all manner of redress in all sorts of situations they are, as suggested previously, often fueled by grief, anger, and/or fear. These emotions frequently accompany the parties to mediation.
Thus, we come to the second strand of the emotional triad or “braid” – anger. Anger is a blinding emotion that has the power to permeate a conflict and radically color the character of the mediation. During mediations we see feelings of rage, pain, bewilderment, distress, loss, remorse, and regret flowing from intense anger. Unresolved anger however expressed, causes enormous barriers to conflict resolution.
It is extremely difficult to reduce the level of anger in cases where a wife has lost her husband or a child. People who suffer life changing injuries such as amputations, spinal cord injuries, or severe burns also endure profound grief, and intense anger.
The painful process of dealing with anger issues often requires a pre-mediation meeting, as dealing with these issues cannot and should not be rushed. A agreed upon premediation meeting can allow the lawyer mediator to gauge and engage the anger and to do some effective coaching in relation to this emotion. Patience, presence, understanding, compassion, calmness, and empathy must be applied in such cases. In many instances, mediations are rush. The “regular” participants in mediation (attorneys, adjusters, risk managers) are ripe and ready for a rational risk assessment with the input of a neutral who is mutually trusted. However, the person whose life has been turned upside down isn’t willing to be rushed to move into a different phase of his or her life. The catastrophically injured have to not only accept a new life but they also have to let go of litigation that has been the focus of their life since the occurrence. They deserve a mediator who will exercise patience and understanding, dignity, and respect that addresses both the emotional components and the rational components of mediation. The story telling, silent attentiveness, the active listening takes time. In some cases the pre-mediation meetings or a staggered starts we suggest allow for the required extra time that parties deserve. Such techniques facilitate more case closures and require fewer mediation sessions.
In cases where anger abounds, it is sometimes necessary to facilitate its expression even though it makes others uncomfortable. In other cases, it helps if some of that anger can be expressed to a surrogate – the mediator. Regardless of the decision on how to deal with anger during the mediation process, the fact is, it must be dealt with by the mediator and by the parties. Thich Nhat Hanh’s Buddhist mindfulness teaching about anger quoted above allows for a calming of one’s anger. Some people can reach a positive reflection about their anger after some verbal expression. Generally, total avoidance of anger issues, is a mistake, as it often leads to a barrier to resolution and a lingering “after taste” of unfairness and incompleteness. Patient, calm listening combined with positive reframing can often move the energy expressed with anger forward in a helpful manner. When lots of anger abounds in a mediation some mediators find it helpful to calm themselves in order to stay outside the anger and to listen to what is being said and what is being communicated. This, in some instances, means allowing parties to express their anger, rather than cutting it off in fear of its expression. Several things may occur with the expression of anger. The party expressing his anger may finally feel that he has given full expression to his feelings. The recipient of the anger may finally appreciate the passion of his partner in conflict. A skillful mediator may be able to use this anger in a positive way with reflective reframing.
Fear
“…Fear is the gatekeeper of your comfort zone. Your comfort zone is whatever is familiar to you…Now your comfort zone is the people you already know, the routines you’re used to, the places you feel at home…Your comfort zone is what you are comfortable with, where you feel safe. [14]
Fear, the third strand of braid of dominating emotions, is raw and basic. While fear is not often addressed in mediation articles, it can be a palpable, powerful, and a primal force during the mediation process. It can be paralyzing. It can shut a party down or lead to avoidance (flight), capitulation (fright), or intransigence (fight). All three responses are formidable barriers to conflict resolution.
Fear can be described as apprehension, dread, or fright. [15] Fear has both a psychological and physiological component. Fear is often associated with the significant change. That change can involve a personal injury, employment, business, or other significant disruption of a way of life.
Joseph LeDoux, the foremost researcher on fear has stated that:
“[a]nxiety and fear are closely related. Both are reactions to harmful or potentially harmful situations. Anxiety is usually distinguished from fear by the lack of external stimulus that elicits the reaction – anxiety comes from within us, fear from the outside world.” [16]
Put another way, anxiety stems from our internal processing stemming from our concern of external factors. Anxiety is uncomfortable, so we are motivated to change the uncomfortable stimuli, remove ourselves from the anxiety causing stimuli, or avoid such stimuli. [17] Fear and anxiety stem from uncertainty, lack of predictability, lack of self-confidence, and lack of control.
People in conflict often shut down due to fear and anxiety and become paralyzed in thought and in action. “Fear is without question the most intense persuasive factor.” “Parties, counselors and claim adjusters fear failure, embarrassment, ridicule, loss of face, and financial harm.” Fear impacts political campaigns, fans nationalism, and controls parties involved in mediation. Fear of change, loss of face, loss of control, and economic loss drive mediations. Fear may well be the dominant influence in mediation.
John Gray, the author of Men Are from Mars, Women Are from Venus, has stated:
“Sometimes life frightens me and I’m tempted to retreat instead of risking failure. But when I challenge this fear and choose to take risks, this stretches my soul. By forging ahead and trying something new – even when I am scared – I perform an act of courage. And this act of courage strengthens my soul and strengthens my character.” [20]
“To the extent that we stop struggling against uncertainty and ambiguity to the extent we dissolve our fear is the extent to which we are able to adjust, to face the future, and to move ahead.” [21]
The lawyer mediator needs to recognize and draw out the parties’ fears. Often when a party openly discusses his or her fears they don’t seem as insurmountable as when it is a silent fear. Sometimes a discussion about fears can lead a party to appreciate his or her resilience. You see, the reverse side of fear is courage. A key for mediators and negotiators is to show fearful parties there is hope and positive possibilities to be found in the future; that the challenge of change can be meet. So often a candid discussion will lead a party to see not only what has been lost but also what he or she still has and what he can take on. It may also mean that encountering a known risk (fear) is what circumstances require.
Alarm, concern, unease, apprehension, panic, distress, and fright accompany fear, and can stymie mediation. Meaningful dialogue is halted until these physiological and psychological responses are processed or dissipated. The key for mediators and negotiators is to identify the fears that are operative and fueling these emotional reactions of the participants. Thus, lawyer mediators need to listen before they lead. In some instances fears is apparent while in other instances fear is hidden. In either instance, skill is required to recognize and address them via a transparent dialogue. Often it is best to explore them openly. In other instances, story telling can allow a person to put his fears in a proper perspective.
In short, lawyer mediators and lawyer advocates have to be attuned to the fears that are in play during a particular mediation. We have to spot these concerns and address them with open dialogue. Failing to spot or attend to fears frequently can doom a mediation. The key to appreciating and understand fears is the utilization of the people skills we have discussed before in this article. Recognizing parties fears and motivation requires not only knowledge of the law but of people. Mediators have to know the parties, create a connection with the parties, and establish trust if they want them to listen to and respect their risk assessment.
Conclusion
Key emotions mediators have to deal with are grief, anger, and fear. Generally, these emotions have been evoked because of a profound change that underlies conflict and the pursuit of legal redress. Abrupt or profound change can evoke any or all of three of these powerful emotions.
We know that where a death is deemed wrongful, the failure to deal with the ensuing emotional braids of grief, anger, and fear, can doom a mediation that would otherwise be successful. This is similarly the case in catastrophic injury cases, domestic dissolutions, business and professional dissolutions, probate and employment cases, and business deals that threaten careers or institutions.
Mediators and negotiators must be prepared to untie the braid of emotions that entangle people so that a rational dispute resolution analysis can occur. A sense of satisfaction, fairness, and justice can not occur until and unless the emotional triad is addressed. In our view this braid of emotions, often avoided and ignored or worse–negatively reacted to– must be skillfully untied so rational risk assessment and decision tree analysis can be successfully utilized. Indeed, dealing with these emotions can often be the key to successful mediation.
Discussion about the loss or change that has brought parties to mediation in caucus or as the case and circumstances warrant, in general session, allows the party or parties who have experienced loss or change to discuss it and share it. This allows the party or parties the opportunity to share their story. It allows others to respond to those stories. Connection, understanding, appreciation, acknowledgement, and respect may then evolve. This dialogue impacts the fuel that underlies the litigation. It impacts how parties will anticipate how jurors will appreciate the story or stories that will unfold before them in the courtroom. Thus, the airing of emotions may give a different slant to the evaluation and disposition of the dispute that brings the parties to mediation. In the right circumstances, the airing of emotions may be helpful for both the teller and the listeners. It is often the key to conflict resolution. As lawyer mediators, we sometimes suggest a pre-mediation caucus or a staggered start to get at these emotions, hear the stories, discuss the changes, and in the process build trust that later on in the process allows parties to seek and hear evaluative comments or coaching from a neutral.
In short, we believe that lawyer mediators and lawyer advocates must consider whether grief, anger, and/or fear are involved in their negotiation and then consciously determine how to deal with them. Overlooking or ignoring the emotional components underlying most mediations will often either result in the continuation of the conflict or a resolution that fails to meet the level of procedural fairness and personal satisfaction that people seek in mediation.
End Notes
1 E.g. O. Russell Murray, The Mediation Handbook, (Bradford Publishing Company, 2006), P. 16-17.
2 Id.
3 Joe Epstein and Scott Baroway, Top Mediation, Trial Talk (June/July 2009)P.21.
4 Id.
5 Roger Fisher and Daniel Shapiro,Beyond Reason, (Viking 2005), P ix.
6 (Id. at P 4, 11.)
7 (Michelle LeBaron, Bridging Troubled Waters, (Jossey-Bass 2002), P 47.)
8 (Michael Brown, The Presence Process, (Namaste Publishing and Beauford Books 2005), P191.)
9 The Seat of the Soul, (Fireside 1998), P 120,)
10 (Roger Fischer, William Ury, Bruce Patton, Getting to Yes, (Penguin 1991)),
11 Compare Douglas Stone, Bruce Patton, and Sheila Hein, Difficult Conversations, (Penguin Books 1999), P. 163-164 with Joe Epstein and Susan Epstein, Pre Litigation and Early Dispute Resolution, (Trial Talk April/May 2007), P. 23-25.
12 Therese A. Rando, Ph.D., How To Go On Living When Someone You Love Dies”, (Bantam Books 1988), P 11.
13 Thich Nhat Hanti, Taming the Tiger Within, (Riverhead Books 2005), P 115.
14 Rhonda Britton, Fearless Living (Perigee 2001), P23
15 See generally, Rogent’s International Thesaurus, (Harper Resource 6th edition 2001), P 127.
16 Joseph LeDoux, The Emotional Brain, (Simon and Schuster 1996), P 228.
17 Id. at P. 232.
18 Roger Dawson, Secrets of Power Persuasion, (Prentice Hall Press 1992), P 7.
19 Joe Epstein, The Powers of Psychodynamics in Shaping Mediation Outcomes, (The Colorado Lawyer, January 2004, Vol. 3, No. 1), P 45.
20 Richard Carlson and Benjamin Shield, Editors, Handbook for the Soul, (Little Brown and Company 1995), citing Love Vitamins for your Soul, by John Gray, P 57.
21 Pema Chodron, The Places that Scare you, (Shambhala Classics 2002) P 103.
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