This insightful article was featured in ADR Times and provides a number of interesting points that could be noted by the discerning mediator, negotiator or manager  for consideration during ‘conflict’ discussions.

Research in neuroscience has generated numerous insights into the way humans process information, experience emotions, and make decisions. More recently, scientists have begun to understand how these behaviours are related to brain activity. Using imaging technology like fMRI, scientists can actually see what our brains are doing when we engage in various behaviours and complete various tasks. While these neuroscience and neuroimaging studies have broad relevance, they also shed light on decision-making processes that is especially relevant to the dispute resolution context.


Richard Birke, associate professor of law at Willamette University and director of the Willamette Centre for Dispute Resolution, has distilled several practical recommendations for negotiators and mediators from this growing body of research. Interested readers should consult his article in the Ohio State Journal of Dispute Resolution (25:2 2010, pp. 477-529). Here, I will summarise just one of the most compelling practical lessons for mediation to flow from Birke’s fascinating review.

After the mediator’s opening remarks, most mediations proceed to a storytelling phase where the parties each have uninterrupted time to talk about their perspectives of the conflict. The conventional wisdom here is that telling one’s story is cathartic for both parties, particularly because the mediation setting allows for greater expression of emotions and needs than does the court setting. Ideally, this opportunity increases participant satisfaction with the process and in turn the durability of future agreements. The parties’ opening statements – because they may highlight the parties’ more intangible needs that could be addressed through non-monetary means – are also believed to generate ideas for settlement. Further, by providing an opportunity for the parties to “vent,” the storytelling phase may put them in a mind-set more conducive to making concessions and agreements.

Recent brain research calls some of this conventional wisdom into question, according to Birke.

You may be familiar with the ground breaking work of behaviourist pioneers Ivan Pavlov and B.F. Skinner, who conditioned fear responses in animals. In their experiments, animals were exposed to a painful event (electric shock) at the same time as an inconsequential event (a light coming on or a bell ringing). After repeated exposure to these two stimuli, the animals became conditioned to expect pain to result from the inconsequential event. The light or bell became a conditioned stimulus that generated the same fear response as the actual electric shock. These experiments helped us understand behaviours associated with conditioned fear, but recent work by NYU neuroscientist Joseph LeDoux has revealed more about the underpinnings of conditioned fear behaviour in the brain.

When neurons in a person’s brain fire (i.e., release a particular chemical) and stimulate other neurons, a chain reaction called a neural network is formed. Once a network has formed, the brain activity associated with that particular chain reaction can be repeated by the person more easily. Birke cites the example of pathways formed by repeated hand-eye movements; their frequent repetition facilitates actions like typing or piano playing, a phenomenon commonly known as muscle memory. Recalling an event actually reengages the same neural pathways that were engaged by the original experience. Pathways that are associated with extremely vivid experiences can become so durable so quickly that the experiences can be recalled in great emotional and sensory detail without repetition long after they occurred. LeDoux found that neural networks created as a result of fear are some of the most durable in our brains.

Once a fear pathway is created, it is unlikely to go away or even become less intense. The evolutionary advantages of this quality are evident, but it is often ill adapted to modern life. For example, think of a time when you were startled by the loud noise of a passing truck. Yours is a conditioned fear response resulting from the association your brain has made between loud noises and painful injury. A similar noise alone can rapidly re-engage the neural pathways associated with fear of pain. Interestingly, this process can occur before you are consciously able to tell yourself, “It’s ok, there is no truck about to hit me.”

In fact, with the help of chemical tracers, LeDoux found that fear travels two neural paths – one path to the body and one path to the brain. He discovered that the path to the body is actually faster, meaning that before we even know we are afraid, blood has reached our legs to prepare us for the freeze/fight/flight reaction. More importantly, the part of the brain that is activated by fear – the amygdala – is one of the oldest parts of our brain, in evolutionary terms, and assesses pain, pleasure, and threat in the present. The prefrontal cortex evolved later and is responsible for complex reasoning and future-oriented decision-making. It turns out that while our amygdala is activated in the name of survival, we have a hard time accessing our prefrontal cortex. In other words, fear activates our “animal brains” and makes it harder for us to think clearly.

What does all this mean in the mediation context? According to Birke, “there is every reason to believe that a person who retells in detail an event that is painful or traumatic fully relives that trauma in their neurons.” In mediation, this means that the brains of parties who tell their conflict stories will – for a period – be controlled by their freeze/fight/flight instincts (amygdala) and thus will be less able to consider new options for action (prefrontal cortex). This is certainly not the ideal mind set for parties when they are being asked to explore interests, brainstorm and generate creative options.

So what’s a mediator to do? How to balance the potential benefits of having parties tell their conflict stories early in the mediation with the knowledge that doing so may place the parties in a less resourceful state in which they rely on instinctual urges associated with a bygone era of human evolution? Birke suggests two simple interventions that a mediator can use to manage this conundrum.

First: take a break at this stage in the process. According to Birke, “after a party experiences the trauma/catharsis of telling their story, it is a very good time for a coffee or lunch break, and it may even be the case in some disputes that it is a good place to end for the day.” I might extend this to suggest that regular breaks throughout the mediation are advisable, as emotional triggering is likely not limited to the storytelling phase of the process.

Of course, some mediations take place in settings where frequent breaks are not terribly practical. Particularly in court-referred work where time is short and a premium is placed on reaching settlement in short order, a break may not be feasible. Birke’s second suggestion might be more amenable; when a break is not possible, “one technique to consider when faced with a party who seems to be emotionally flooded is to call that party’s attention to their breathing.” Mindful breathing invites parties to engage in a present tense activity, and this can help to reengage the parts of the brain responsible for control and regulation and can make it easier for parties to weigh offers less reactively. (The privacy of caucus may be the better setting to encourage parties to focus on their breathing.)

Ultimately, whether or not mediators decide it is useful to introduce breaks or mindful breathing into their process, they should take away from recent neuroscience research additional reasons to be patient with parties and to be circumspect about the ease and speed with which they can recover from revisiting emotional events in order to make well-reasoned decisions in mediation. As neuroscience research continues to advance, there are likely to be additional insights that shape our understanding of best practices; the reflective practitioner is urged to stay tuned!

by Dr. Heather Hancock

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