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Mediation & Emotion – Help or Hinderance?

You’d have to say that for most of us normal human beings if we have a dispute we become emotional. It might be that we become angry, fearful, resentful, bitter, nervous or even traumatised. It’s rarely a positive emotion that displays when we sense a conflict and looming dispute. But very often, we know it’s important to control these emotions, as it clouds your judgement and objectivity.

Why do we shy away from emotion?

Simply put it’s uncomfortable. Symptoms like butterflies, sweaty palms, racing thoughts, shortness of breath are all indicators that we’ve been threatened in some way and our natural fight - flight - freeze instincts to some degree are triggered. Our innate response is to get away to protect ourselves.

These triggers were of great assistance when we were threatened by lions or tigers, but often do not work so well in our modern day lives where we have obligations to work with others, to collaborate and produce positive outcomes. We usually need to return to work or home or whatever situation has triggered us sometime and if we don’t then it’s probably not going to provide the best outcome for us.

There are tips and tricks you can invoke to help you “Keep Your Cool in High Stakes Communication” but generally when we are triggered by one of these negatives, our ability to make the best decisions are hampered.

Emotion is Normal.

My day to day work is all about disputes. Whether within my capacity as a mediator, litigator or business owner, I can hardly think of a day where I am not managing some existing or potential dispute.

I think it’s important to first acknowledge that emotion is normal and without emotion there would be no dispute in the first place. If we were all robots with no emotions then there would be little to discuss, but the world would be a less interesting place.

All disputes have drivers and without oversimplifying what can be very complex, when a relationship breaks down, there are a number of common key drivers. Often people feel their expectations have not been met, they have not been acknowledged or they feel threatened by something either real or imagined. Regardless, all of these situations will spark emotions and counter responses.

I regularly conduct mediations in the area of family law and particularly property settlement.

There’s a misconception that solicitors just want to jump straight in on the balance sheet and I’m often greeted with opening lines like “well this is just about the money so we don’t need to let them go into all of the emotional stuff.”

I couldn’t disagree more. Of course this is emotional! Two people who promised on some level to build a life together are pulling it apart with significant consequences for themselves and those they love. It’s going to be emotional.

To ignore this elephant in the room presents me as the mediator with an insurmountable problem and what will likely happen is the parties will continue to orbit in their own planets and never come together to make any mutual resolve. If this is the attitude then the matter may as well continue to litigation and let someone else make the decision.

One of the tell tale signs that someone has an unacknowledged emotional driver is when their story continues to repeat and continue in circles. If the discussion is ever going to move forward then this needs to be identified and acknowledged.

Communication Myths

● Acknowledgement is not agreement

● Disagreement doesn’t have to mean conflict

There’s a common view held in modern society that assumes that if we disagree then we have a conflict. It is possible and entirely probable that we often don’t agree with each other, but this shouldn’t mean inevitable conflict or that the other party has some sort of phobia because they don’t agree with you.

Also, acknowledging and accepting that if someone sees something in a different way to you it doesn't mean that they are wrong. It takes courage to experience emotion and accept other viewpoints. When parties become so entrenched in their own hurting and emotion it can be difficult and threatening to them to acknowledge a different viewpoint in the other, and it’s easier to attribute a negative or sinister agenda to them.

When undergoing mediation, it’s likely a very complex set of actions and reactions take place, which is why it’s important to appoint a qualified mediator who can manage this with experience, safely and strategically.

Why mediate

Mediation is one of the few places in the justice system where you can look at the drivers of the dispute - the emotions.

Many people start to litigate and even finish litigating and you’ll hear the term it was “unfair”. I rarely hear of someone who feels, even when they get the positive outcome in a manner that they got a fair hearing. So what are they really saying? Chances are they don’t feel they were acknowledged for the wrong caused to them and probably they weren’t. The court process just doesn’t have the capacity to provide this to you.

Mediation allows all parties to have a stake in their own outcomes rather than to have this taken out of their hands and imposed on the parties.

However, as a caveat, I’d like to add that there are times when it is not appropriate to mediate - particularly in certain areas of a family law or if violence is an issue.

Keep a Forward Focus

We can’t turn back time but we can make the most of the time and energy we have from this point forward. We have the ability to draw a line in the sand and look forward at any time and change.

Rehashing the past keeps us stuck there.

One of the saddest things I see in Family law is where a couple has spent some 20 – 30 years together then in the divorce process have the misconception that the court process will help them get some sort of compensation for their perceived loss over that period. Often, large amounts of money and time are spent in trying to get this sense of justice. I have not seen anyone who has managed to achieve this. But I have seen a lot of people use up more of their precious lives entrenching themselves in the story of their past and not focusing on their future.

Keeping a forward focus and marketing the best decisions for the now can be difficult.

Letting go and setting up new ways of thinking about your future and acknowledging others’ perspectives is hard work and may feel frightening but it can also be liberating.

Shying away from emotion is, in my opinion as detrimental as indulging in it. Neither will help the parties move forward.

Mediation can provide a structured and safe way of exploring issues and devising a mutual plan for the future.

Voice Lawyers and Consultants assists individuals and businesses in the areas of employment law & intellectual property management, family law and dispute resolution. If you’d like advice or help call us today on (02) 9231 8602 or email to schedule an appointment.

Kayte Lewis is a mediator, lawyer and professional development specialist dedicated to helping people ‘find their voice’ through communication. As the founder of Voice Lawyers & Voice Consultants and Advocates, Kayte believes in gaining a deeper insight into organisations and individuals to find a resolution.

Voice Lawyers have offices in Sydney CBD and Macquarie Park and hold workshops in both Sydney and Melbourne.

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