Mediation and emotions : perception and regulation

Irvine, Charles and Farrington, Laurel Rose (2016) Mediation and emotions : perception and regulation. In: The Emotional Dynamics of Law and Legal Discourse. Hart Publishing, Oxford, pp. 211-239. ISBN 9781849467872

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    Abstract

    ADR provides a useful lens through which to consider the place of emotion in disputes. Its multi-disciplinary roots embrace law, psychology, economics, philosophy, international relations and therapy. And yet mediators themselves have shown ambivalence about emotions, with practice lurching between intrusive fascination and denial. Commercial mediators, particularly conscious of their place in the shadow of the law, have tended to stress pragmatic solutions and efficiency. Other domains, such as family law, favour mediation precisely because of its capacity to deal with emotional concerns. This chapter draws on recent findings from the fields of neuroscience and social psychology suggesting that the distinction between emotion and rationality is a false dichotomy. Emotions play a key role in both perception (how we receive data from the outside world) and judgement (how we evaluate those data). The law struggles to find a useful means of dealing with the emotional realm. And yet the visceral effects of conflict are plain: who can ignore the atmosphere in a courtroom, or between people in dispute? Perception and judgement are central to the legal system, playing critical roles in establishing truth and ultimately justice. The methods used by mediators to integrate emotion and rationality offer potentially useful parallels for the legal system. The chapter develops three themes • the developing understanding of emotion in mediation 
 • the nature of empathy and its significance in mediation practice 
 • the way in which emotional self-regulation is harnessed and supported by 
mediators.

 Mediation’s most significant philosophical move is to cede responsibility to individuals, not only for outcomes, but also for the criteria by which those outcomes are judged. A similar psychological move sees mediators, resisting law’s marginalisation of emotion, offer parties the opportunity to take account of both cognition and emotion in reaching agreements. This chapter sets out a new model for understanding the role of empathy and emotion regulation in mediation practice, enabling mediators to help disputing parties move from belligerence and defensiveness to cooperative problem-solving. It concludes by suggesting that lawyers may learn useful lessons from this alternative form of dispute resolution.