Elizabeth Bader

Dear Friends and Colleagues,

The following is Section II of my new article, The Psychology and Neurobiology of Mediation, recently published in the Cardozo Journal of Conflict Resolution.  This section introduces a core part of the analysis of mediation from the perspective of neurobiology.

See also Section I of the article, referred to here in the discussion of the angry client.

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Elizabeth Bader, The Psychology and Neurobiology of Mediation,

Volume 17 (2) Cardozo Journal of Conflict Resolution (Winter Issue).

. . .

II.            A Neurobiology of Mediation: An Overview

     From a neurobiological perspective, a distinctive feature of mediation is that parties in mediation experience both threat and safety at the same time. The sympathetic nervous system, the branch of the nervous system that produces the fight-or-flight response,1 is aroused as parties confront and negotiate with their adversaries. Yet, at the same, the sympathetic nervous system is soothed and calmed through the process of social engagement2 and communication.

Ideally, as parties’ fighting and self-protective impulses are managed and controlled, they become more able to think clearly, and to reach realistic resolution. This is the magic of mediation.

This is what happened with my angry client. His felt need for self-protection played out as an issue of “face,” self-esteem and self-identity. He became aroused and indignant. Through our dialogue he settled down. He stopped taking the offer personally. He weighed options. We moved on.

Some people may not experience sympathetic arousal easily, or the IDR cycle, for a number of reasons. As Peter Levine and others have explained, not everyone can easily mobilize the healthy fight or self-protective responses characteristic of the sympathetic nervous system.3  Gender may also be a factor.4 Yet for others, especially high-functioning individuals involved in high-conflict civil litigation, the IDR cycle may actually be required as a matter of physiology.

It is my hope that what follows can help mediators and lawyers understand more about parties’ reactions during mediation, learn to read subtle elements of body language, help decide whether to caucus or use joint sessions, and become sensitive to the all-important dimension of timing as they work with the IDR cycle and its variations.

  1. For a basic anatomy of the sympathetic nervous system, see infra Part III.C.
  2. On social engagement and the “social engagement system,” see infra Part III. E.
  3. Levine, In an Unspoken Voice, supra note 3, at 102 and 104 (“highly traumatized and chronically neglected or abused individuals are dominated by the immobilization/shutdown system,” which shuts down other nervous system functions such as fight/flight responses)
  4. See infra Part IV.D.2.