Failure to recognize the critical role they play in success can be a stumbling block.
ByJohn McCorvey Jr. | Neutral, Miles Mediation & Arbitration
| 12:00 a.m. November 2, 2023
The Bar Bulletin
Too often, when litigants express strong emotions in mediation, counsel, and sometimes even the mediator, become uncomfortable and suppress such expression.
A seasoned attorney or even a client, such as an insurance adjuster, may have participated in hundreds, if not thousands of mediations and be somewhat desensitized to a litigant’s emotions.
However, for most litigants, the mediation process is going to arouse a wide range of emotions.
Counsel may not need the benefit of knowing how their client or the opposing party feels about the case to evaluate it for settlement purposes, but most litigants need to feel heard and understood to travel the emotional path of decision-making to a point of readiness to make a settlement decision.
Effective mediators understand the emotional path that must be traveled before a litigant can make a settlement decision and help them along that path.
All decisions are influenced to some degree by emotion. The part of the brain that is responsible for expressing and experiencing emotional states also is involved in making decisions.
It is estimated that 90% or more of decision making is emotion-based. Studies show that emotions not only need to be recognized as an important part of the decision-making process, but that emotions are essential to the process and actually enhance it.
Ignoring a litigant’s feelings has a detrimental impact on his or her ability to make a good decision.
Every decision a person makes is made against a backdrop of feelings. The important thing to consider from the mediator’s perspective is that whatever feeling the litigant is experiencing they need to work through it to make a good decision.
An effective mediator will uncover a litigant’s feelings by asking open-ended questions, such as “how has this (insert underlying facts such as “accident” or “business breakup”) impacted your life?” or “help me understand what’s most important to you about this case.”
The most effective mediator then listens to the answer.
Active listening should be utilized. The mediator may make remarks such as “I see” as the litigant speaks, or even use re-framing by saying things like “it sounds to me like you feel angry that (insert name of opposing party) failed to own up to their fault in this situation” or “own up to their end of the bargain.”
An effective mediator will empathize with the litigant by trying to articulate the feeling of the litigant back to her or him.
For example, saying something like “it sounds like this has been a very frustrating and painful experience for you,” and then waiting for the answer.
It takes time for people to process their emotions and emotions often are processed in stages.
It may be a good time for the mediator to spend some time with the opposing party while the litigant the mediator has been speaking with processes their feelings.
A break as short as 10 minutes is helpful to someone who is processing emotions.
While the lawyers may be more focused on the monetary aspect of the case, it may be more important to the litigant to receive an apology or hear what the opposing party has done to make sure the same occurrence doesn’t happen to someone else, i.e., enhanced security, new corporate policies and procedures, etc.
Emotions are a part of mediation because emotions are a major component of the human psyche. Contrary to popular belief, emotions are not detrimental to decision-making, but a necessary component that enhances good decision-making.
An effective mediator uncovers a litigant’s emotions and utilizes empathy to assist the litigant in processing her or his emotions.
The failure to recognize the role that emotions play in mediation can be the stumbling block for many a potential positive mediation outcome.
John McCorvey is an AV Preeminent Peer Review rated attorney by Martindale-Hubbell with 33 years of experience as a trial lawyer and 15 years as a certified mediator.