Can Emotions Aid in Dispute Resolution and Mediation?

Katherine Moulton

By Katherine Moulton

Dec 18, 2020

In dispute resolution it is important to recognize that emotions among and between the parties will run the gamut…from anger, fear, grief, humiliation, frustration, and even fatigue to elation, gratification, and appreciation. Mediators often find themselves in a paradoxical position – on one side encouraging and empathizing with productive and often intense emotions, and at the same time compelled to fulfill our obligation to remain unbiased and impartial during mediation sessions.

Many experts suggest that hiding emotional energy in a mediation session is the only way to reach resolution. I disagree. I believe that attempting to ignore the emotional components will most often prevent the dispute from ending with reconciliation and resolution. Embracing the power of emotions when entering into a mediation or settlement discussion, and even using them to benefit the dialogue can be effective. Once it is understood that emotion is often the foundation of most conflicts, rooting out and understanding those specific sensitivities that can influence settlement between the disputants becomes a helpful tool.

When a mediator does admit the expression of feelings by the disputants, within reason of course, she has the opportunity to offer understanding and empathy for the parties’ positions, and not only gain respect but, also through the expression of emotions can glean valuable information that may be instructive to the mediator. So often the most important part of engaging a party in positive resolution is simply giving them a chance to be heard. At the same time, embedded in emotional discourse can be the tiny nuggets that ultimately form the basis for settlement.

Emotions can indeed play both a positive and negative role in mediation. Knowing how to glean information and disputant goals and needs from passionate discussion is extremely effective in moving a negotiation forward. An important role of the mediator is to carefully balance between allowing emotionally charged dialogue and normalizing it without making the party feel marginalized (i.e. “I understand how you feel”, “it’s normal to feel angry in a situation like this”, etc.) Properly managed so that the party believes the neutral facilitator is truly interested and respectful of their feelings can foster trust in the mediator, a calmer environment for discussions and constructively contributes to resolution.

On the other hand, it is also possible that the idiom “give them an inch and they’ll take a mile” could result! In this case, and to prevent combustive behavior from waylaying an otherwise productive mediation, at the first opportunity the mediator must regain control of the discussion, ask the parties if they are comfortable discussing the issues in a joint session, suggest that it might be a good time to take a break, ask the party who is not expressing the emotion if they would agree to a brief caucus, or other such strategies. The mediator must maintain a balanced emotional environment so that negative thoughts and dialogue do not prevent the parties from thinking clearly and creatively. Knowing when, and when not to interject oneself into an intensifying conflict takes focus and solid reasoning.

To be effective in managing emotions during dispute resolution discussions, a mediator must possess a keen ability to quickly assess the parties’ emotional state, understand what we are hearing, and recognize motivation behind what is being said. Renowned Psychologists P. Salovey and J.D. Mayer presented several thesis on the subject of “Emotional Intelligence” and define it as, “The ability to perceive emotion, integrate emotion to facilitate thought, understand emotions and to regulate emotions to promote personal growth.” This theory seems very fitting to the task of a mediator in establishing an environment that gives the disputants a sense of compassion, trust, respect and other essential elements of a productive mediation. After all, if we have not given the disputants as much emotional resolution as there is settlement of the more traditional matters at issue in the dispute, the ultimate solution remains somewhat incomplete.

Even the most experienced mediators continue to hone their skills in being able to recognize the signs of rising emotions before they become uncontrollable, polarizing and destructive, understanding strategies to redirect emotions so they can be used positively and productively in the dialogue, and being comfortable addressing and managing emotional situations.

And finally, though a written settlement agreement is the ultimate goal in mediation, succeeding in also meeting the emotional satisfaction of the parties brings a more collaborative and rational agreement. The use of emotions to promote and foster positive dispute resolution, and being able to deal with feelings skillfully, is an effective tool available to mediators and disputants in attaining a lasting and complete resolution.

About the author

Katherine Moulton

Katherine Moulton is an award-winning hospitality executive and industry leader with more than 30 years’ experience. She is widely recognized by peers and business leaders, including as Independent Hotelier of The World by Hotels Magazine. She also offers strong advocacy for hospitality excellence, education and mentoring as well as a commitment to community through diversity of board and institutional roles. Ms. Moulton is a Florida Supreme Court Certified Mediator and focuses her alternate dispute resolution work on issues related to the hospitality and related industries. Katherine is a Partner and the Executive Director of Cayuga Hospitality Consultants and president of Hospitality Advisory Services.

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