Mediating entails working with people in relationship. And given the nature of relationships, this means verbal and non-verbal communication, the stories people have about their world, what people believe, understand, think, know, what they think they know, and what they think is real and true. Mediators engage with people’s thoughts, feelings, understandings, perceptions and conceptions, as well as their attributions and projections, biases and prejudices. They work with issues of power, control and survival, with fear and aggression. Fundamentally, mediators work with people’s psychologies and identities, their worldviews and self-views – everything that makes up what it is to be a human being. A tall order!
The need to keep abreast of new learning in human cognition and behavior
The conflict resolution field has sought theoretical understandings of the causes, sources, and types of conflicts in order to develop more effective practice interventions. What leads to conflicts and tends to make some conflicts difficult to resolve? Mediation is necessarily interdisciplinary as it seeks insights from the varied areas of study that shed light on human behavior, from psychology to ethology. The more we can understand how and why people function, the more mediators can help them navigate the challenges of their relationships.
Therefore, as conflict resolution practice continues to develop and mature, keeping abreast of advances in the various disciplines that shed light on human behavior will be critical. Best practice will be informed by broader and deeper familiarity with the expanding knowledge base related to human behavior and experience. The challenge is driven by the constantly expanding nature of human inquiry. There are implications for the design of basic, intermediate, and advanced mediator training programs, and for mediators’ continuing education requirements. Within the academic context, what would a complete dispute resolution curriculum look like at the undergraduate, Masters, and Doctoral levels? What key understandings would we include from, to name a few, psychology, decision sciences, rhetoric, political science, economics, anthropology, and, increasingly importantly, from neuroscience?
Neuroscience, in particular, is becoming increasingly relevant. All of the disciplines we learn from are, and will be, increasingly informed by the developing insights from the science of the brain and extended nervous system. All of the dynamics of communication, perception, cognition, and identity that mediators manage in conflict resolution are grounded in the workings of the brain. The rapidly emerging fields of neuroscience and behavioural psychology offer: (a) understanding of conflict and conflict resolution behaviors; (b) an understanding of why there is considerable resistance to mediation’s use around the world; and (c) the opportunity to expand what mediators do in order to enhance mediation’s productive use.
Brain science and dispute resolution
We are learning more about the underlying drivers of human conduct that lead people under pressure to adopt an adversarial or binary approach to problem-solving. The exponential growth in recent years in our knowledge of the working of the human brain gives us much to work with. The reptilian brain, with its adrenalin-driven, protective flight, fight, or freeze response designed to protect us from physical threat, is still active today when we perceive social and psychological risks.
Within the process of mediation, cognitive biases abound, whether confirming party preconceptions, reactively devaluing others’ contributions in negotiations, attributing ill will to others’ conduct, promoting over optimism in lawyers’ analyses (and at the same time, paradoxically, encouraging risk aversion at certain times) or causing parties to fall for the fallacy of sunk costs – and so on. However irrational it may seem from an objective viewpoint, these can lead us to the binary, right/wrong, yes/no thinking which of course is characteristic of the litigation process and adversarial relations generally.
The characteristics of brain function can also help us understand why mediation is sometimes feared or resisted by those seeking the resolution of a conflict, whether in the justice system or in other contexts. To what extent are the expectations of mediation (for example, listening to, acknowledging, and legitimizing the other party’s experience, shifting one’s understanding of the situation, moving away from positional bargaining, etc.) perceived as threats to identity? Does the language used by mediation evangelists deter those with standing in the conventional system from adapting to or adopting mediation?
There are characteristics of basic neural function that can disincline parties from assuming responsibility for outcomes and participating in collaborative problem-solving. Being able to blame another for the problem (or its solution, if imposed) can feel easier and safer. As an obvious example, the balance between adherence to prior learning and openness to new understandings (the neural stability/plasticity balance) is skewed towards the former in the conditions of threat and uncertainty that are characteristic of conflict, inclining parties to resist considering new ways of seeing the conflict and their erstwhile adversary.
Including brain science in mediator training and practice
The more effectively mediators understand and are able to use the growing knowledge of how we think, perceive, and experience, the more likely it is that even the most seemingly intractable conflicts can be assisted by mediation. In our own practices as mediators, we have found that by making explicit reference to some of the insights from neuroscience in context and with appropriate language and relevant examples, parties are able to absorb the learning that arises and turn that learning into practical use in the course of negotiations, often achieving remarkable results.
Looking to the future, it is difficult to imagine that mediation and other collaborative approaches to resolving differences and bridging divides will maximize their effectiveness without understanding and incorporating the evolving knowledge of the fundamental roots of human behavior and understanding of brain function. Yet in practice, and in our training and education, interdisciplinary insights have tended to be only marginal.
Collaborative problem-solving in the face of differences and disagreements will more likely become more society’s norm if this field or practice we call conflict resolution expands its scope to incorporate more actively, intentionally, and thoroughly into the education and training of mediators the scientific understandings of human behavior and psychology. Our premise is that greater understanding will lead to more effective practice and innovation.
[i] Tim Hicks is a conflict management professional providing mediation, facilitation, training, coaching, and consulting to individuals and organizations. From 2006 to 2014 he led the Master’s degree program in Conflict and Dispute Resolution at the University of Oregon as its first director. He returned to private practice in 2015. Tim is the author of Embodied Conflict: The Neural Basis of Conflict and Communication (2018) published by Routledge.
[ii] John Sturrock QC is founder and senior mediator at Core Solutions Group in Edinburgh, Scotland, and a mediator with Brick Court Chambers in London, with an extensive practice across the private, public and policy sectors. John is a Distinguished Fellow of the International Academy of Mediators, a coach and facilitator and frequent commentator on the field of conflict resolution. Click here for examples.
Originally published via Mediate.com on June 19 2020. Republished with permission.