Abhimanyu Chutani

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Essay topic: Emotions and Mediation

“When angry, you will make the best speech you will ever regret”
William Ury,2012

Introduction

Anger is an inevitable part of a conflict. In mediation, there are two parties with the belief
that they are right. At the beginning of the mediation process, often in the beginning, there is
no scope for any negotiation. Over the course of mediation, there will be certain turning
points and opportunities to move towards problem-solving, on which a mediator should
capitalize. 

Having said this, the puzzle in this essay is what role emotions play and why it is important to
acknowledge them in a mediation process. I argue that the mediator’s emotional
acknowledgment helps give mediation a “natural” flow. Dealing with emotions in mediation
also helps mediators to guide parties to navigate long-term healthy relationships.

 In research, there are two arguments, traces of which can be seen throughout the essay.
Briefly, one side says that dealing with emotions complicates the mediation process. On the
other hand, it is argued that dealing with emotions helps the mediation process better. This
essay starts with briefly explaining what mediation is, followed by explaining who a mediator
is. After which this essay looks deeper into the role that emotions play in the mediation
process and why it is important to acknowledge them. Towards the end of this essay, the
qualities of a mediator in the context of emotional acknowledgment are discussed, and the
criticisms of the argument I have put forward are mentioned. 

Section 1 Mediation and Mediator 

Mediation is a form of Alternative Dispute Resolution (ADR). It usually involves two parties
and a mediator who is a “Qualified neutral” or an unbiased person. (Fisher and Brown,1998)
The mediation’s goal is to reach a mutual agreement between the two parties. Mediators play
a very important role. They control the pace and progression of the mediation and
simultaneously give the parties the control to make decisions and set their agendas, among
other things. Mediation has much flexibility to it. Mediation involves a lot of conversations,

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communication, and expressing. Mediation has a big emotional component that tends to be
downplayed. A mediator has to adapt quickly to the situation in mediation. Along with
adapting to the parties, the mediator must also adapt to individuals’ emotions. (Robbennolt
and Sternlight,2012) They also have to bear in mind what and when they are speaking in the
mediation process. They should pay close attention to the unsaid cues, facial expressions and
the silence of the parties. All these make the role of the mediator central to the mediation. In
saying so, the mediator needs to know when to let his grip loose on the mediation process and
when it is necessary to intervene. Timing and observation of the mediator is important to get
to a mutual agreement between two conflicting parties.

Section 2 Emotions and Mediation

Having looked at what is mediation and a mediator, this essay now dives into a better
understanding the weight that emotions carry in the mediation process. American
Psychological Association (APA) defines emotions as “complex reactions of patterns
involving experiential, behavioral and physiological elements” (APA,2019). This is the
working statement of emotions for this essay. Suppose one is to look at the statement and
deconstruct it carefully. In that case, one of the reasons emotions are so hard to recognize and
therefore, important in a mediation process is that they are complex. Identifying and
acknowledging emotions in a mediation process leads to factors which then contribute to
problem-solving stage. (Kalter et al., 2021) Emotions, because are complex, can sometimes
take a long time to deconstruct. Nevertheless, it is something that needs to be done in an
attempt to take the two parties to a solution. The mediator needs to recognise emotions and
act upon them. (Kalter et al., 2021) Because there are conflicting emotions, there is a need for
a mediation process.

Emotions can be both, positive and negative. These two sets of emotions are manifested in
any mediation process. Positive emotions include but are not limited to, happiness and
enthusiasm, and negative emotions are anger, fear, and sadness. (Kalter et al., 2021) In a
mediation process, especially if the case is of subordinate-supervisor, these set of emotions
will be felt in relation to how much power does levy on another. (Denny,2013) Power shapes
the emotions of parties in a mediation process. For example, if subordinates and supervisors
conflict, subordinates are more likely curtail their emotions and also have higher levels of
negative emotions. This is because they fear that if they share their resentment and anger

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against the supervisor, there will be repercussions for them. Whereas, the supervisor/s might
have more positive emotions such as enthusiasm because they are in power and have nothing
to lose. 

This theory is called Approach/Inhibition theory of power. (Anderson and Berdhal,2002)

This theory suggests that power individuals are approach-motivated. This means that they are
more focused on their gains, using their power to pull the mediation process in their favor and
they tend to express emotions more freely. On the other hand, the lower power individuals
perceive the mediation scenario as more threatening and tend to behave with a lot of social
constraints. This is because, as mentioned above, they have relatively more to lose. In
addition to this, the lack of emotional expression can make a subordinate an emotional barrel.
(Bollen and Euwema,2015, p.258) The more the anger is repressed the harder it becomes to
come up with a solution. The only way to get past this hurdle is by understanding and
addressing the various emotions. While power yields a different expression of emotions, but
Bollen and Euwema (2015,p.261) showed through their research that while the way anger is
expressed might be different, but subordinates and supervisors can feel the same amount of
anger. 

It, therefore, becomes important for the mediator to understand the power difference that
exits in a mediation process. (Deeny,2013) This is because a satisfactory mediation
agreement will likely be reached unless the power difference is understood and addressed.
Recognizing these emotions can help the mediator find cues and help the parties navigate
equal and favorable bargains. As said earlier it can be difficult to recognize these emotions, a
possible solution to this problem mentioned in texts is having a co-mediator. (Shapiro,2009,
p.141) What this implies is that having four eyes is better than two. One mediator will take
care of the questions and notes posed to the parties, while the other, the co-mediator will
handle all the non-verbal cues and gestures. (Nonverbal cues includes looking at facial
expression, body language, hand movement among other.) 

Recognizing emotions also helps the mediator understand what really matters for the
disputants. (Kalter et al., 2021) Not just that, allowing the disputants to express emotions in a
safe setting, helps them to believe in the fairness of the process. If a disputant party feels
overwhelmed, it would be very difficult for them to engage in problem-solving behaviour.
This would then make the process of mediation even harder. Rather if the negative emotions

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can be identified by the mediator first and then the disputants, it can lead to positive
emotions, such as “I am happy; we are finally discussing this” (Mayer,2000) This positive
emotion is something that the mediator can build upon and help the parties to be more future
focused, invest time in understanding each other’s sides and thus leading to favourable
conclusions and solutions. 

Recognizing emotions should be seen as an opportunity as well. Strong emotions in a

mediation process mean that people genuinely care about the issue/conflict they face. (Doran
and Goldberg,2017, p.2) When a party expresses emotions it is not necessarily a bad ‘thing .’
A mediator should listen to them and empathize with them. What also helps is paraphrasing
their emotions. When a party feels listened to and acknowledged, it builds their trust in the
process of mediation. (Kalter et al., 2021) 

Emotional communication in mediation should be encouraged. Overlooking emotions like

resentment, humiliation, confusion, and despair can lead to an impasse. (Denny,2013) When
emotional communication is encouraged, certain issues that might not be in the original
complaint will surface. For example, on the face of it, while lodging complaint, any valid
reason is submitted but that is not what might be troubling the disputer. This can be better
understood with the following example. Person A’s mother stays at the nursing home. A is
busy working professional. She does not have time for her mother. Hence, she has lodged her
mother under professional care at a nursing home. One day A’s mother gets a notice that she
has been sued for non-payment and will have to evict.Mediator is called. The process starts.
‘A’ gets irritated and storms out of the discussion. The mediator is confused, because the
mediation process seems to going well. On asking ‘A’, the mediator finds out that ‘A’ has a
lot of anger and reservations against the nursing home for how they treated her mother at
such an old age. She though her mother was in good hands. On discussing this issue with the
nursing home, they admit they could have handled the situation better. Thus, they were able
to get over the impasse. Also, this example shows that there are layers to emotions in a
conflict. To reach a resolution, it becomes important to deconstruct them.

There are a few steps that can help a Mediator in the mediation process to help emotional
communication and slowly deconstruct it. 

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First, cultivate a safe and trustworthy environment. (Doran and Goldberg,2017) This process
can start from something as simple as the way chairs are arranged or even how the
surroundings of the mediation environment look. For example, if an object or maybe the
colour of the wall or the way the room is structured in a way that it reminds the disputer of
the place where they faced, maybe, discrimination, then they are unlikely to have positive
emotions. This would thus hinder with the process of trying to find a solution. Also, when a
party enters a mediation, they have low self-esteem and can be scared. Another way is by
reinforcing the basic ethic of mediation, that whatever they speak will remain confidential.
Thus, helping them ease into the process.

Second, ‘feel the back of your chair’. As mentioned earlier, if negative emotions are
expressed freely , that is a good thing for the process. (Shapiro,2009,p.143) As Eyal Winter.
(Doran and Goldberg,2017) points out that “moderate” anger can enhance once decision-
making skills. This means if two angry parties start to yell at each other, the mediator should
not try to stop them; instead, the mediator should wait and see where it goes. 
Third, but if the yelling gets out of hand, the mediator should get up and stop them. There are
three options available to do so. 

1. Ask them how the conversation is going. A mediator should attempt to make them
self-reflect and make them analyse whether what they are doing is even worth it. 
2. As a mediator try to summarise what you have heard till now and validate their
emotions with your summary.
3. If the above two do not work. Take a break. Taking a break works by cooling off the
situation. It takes away the two parties away from each other for a while, thus giving
them time to rest and recoup. 

Fourth, is to try and bring the parties back to the present. Parties can often be stuck in past
when the scenario is heated up. Try to pull the parties back in the present by asking them
“what can help them right now, and also moving forward?” (Doran & Goldberg,2017) This
reinforces in the minds of the two parties the end goal od the mediation process:
RESOLUTION.

Another theme that comes up concerning emotions and mediation is apology and forgiveness.
(Irvine and Farrington,2017) The question often is does apologizing change the way one

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behaves in mediation? According to a paper by Van Kleef and De Dreu (2010,p.756),

apologizing doesn’t guarantee a co-operative behaviour. They use two terms pro-socials
(more cooperative) and pro-self(more potency oriented i.e. they try to gain more power and
influence). They argue that apologizing does not change anything, but the deal breaker is how
that apology is received. For example, pro-social, because they are more attuned to issues of
morality, are more likely to take an apology and reciprocate. On the other hand, pro-self are
more likely to see an apology as a sign of weakness of the other party and an opportunity to
gain power and exploit them. (Van Kleef and De Dreu, 2017, p.756)

Section 3 Some Qualities of an Effective Mediator 

The acknowledgment of emotions is not a one-way street. A mediator also needs to be

viewed as effective mediator by the disputants. The question here is how can or how should a
mediator display their positive or negative emotions? It really depends on the situation. There
are times when the mediator has to use deceiving emotions, to move the mediation process.
Of course, there is a risk of this backfiring on the mediator. If it backfires, the disputers lose
trust in the mediator, and meditation looses it is legitimacy. 

In expressing emotions, the mediator should remain empathic and not sympathise. The
problem with showing sympathy is the loss of neutrality. If the mediator shows sympathy
towards one group, then the purpose of mediation is compromised. (Smilouitz,2008,18) It
also catalyses fluctuating arguments. This means the disputants worry that the mediator will
remember the last argument of the day. Hence, the party will try to come up with different
arguments and statements to impress the mediator, instead of trying to find solutions to their
own problem. In this case, the mediator becomes a problem. A mediator also needs to be
emotionally balanced. 

Mediator plays an important role in the creation of ‘Human Chemistry’ among the parties.
(Smilouitz,2008,19) Throughout the mediation process, the mediator tries to foster healthy
communication to build strong relations, personal or professional, among the disputants and
push for a mutually beneficial result. The mediator should also have the ability to tell a party
they are wrong, without telling them they are wrong. Diplomacy is a key skill for a mediator.
(Smilouitz,2008,19)

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A mediator should also have thick skin. (Smilouitz,2008,19; Robbennolt and Sternlight,2012)
This means that if a mediation is not successful, the disputants would throw much blame at
the mediator. 

 Section 4 Criticisms 

The criticisms of the argument put forward in this essay i.e., it is important to express
emotions in mediation, and the mediator plays an important role by acknowledging them, has
a few criticisms to it. 

First, Kelly and Kaminskiene (2016,p.56-57) in their article on emotional intelligence,

present a classification on how negative and positive emotions influence the way a mediator
or a negotiator might function in a mediation process. They state that emotions may divert the
mediator’s attention from the matters that are important. This means that there is an agenda,
and mediators need to stick to it. Expressing emotions, they argue, can also hinder thinking.
Lastly, they say emotions can take charge in the mediation process. If it’s positive emotions
then it can enhance the mediation process. However, if it is negative emotions, it can push
parties to reject offers offered by the other party to get back at them for expressing their
emotions. 

Second, many legal practitioners believe that emotions are irrelevant to a mediation process
and to the parties. The parties are only interested in reaching a settlement and not interested
in dealing with their emotions. (White and White,2009,17) They argue that expressing
emotions makes the situation more complex, escalates tension, and leads to no productive
developments. 

Third, no matter how the hierarchical or the power structure looks, the impact of the
expression of anger on any of the parties cannot be underestimated. This means if one party
expresses their anger on another party, they will likely retaliate with the urge of “give back”.
In this case, the goal of thinking about the future or reaching the settlement is forgotten. 
Fourth, a very interesting theory given in an article titled The Role Of Anger in Mediation,
written by A.I.Schien (DOI:https://mindengross.com/docs/default-source/publications/the-
role-of-anger-in-mediation) is that a disputed party is likely to give in to an angry party
because they believe that the angry party’s limits are very high. If the limits are high, they

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will not easily bend to a conciliation. Thus, better to give in with high offers. However, they
also argue that this can backfire. Once the fear of rejection of offers is removed, the offers
made to the angry party are much lower. 

These are the major arguments which come up in various texts when it comes to the debate
whether emotions should be expressed in mediation or not. Even though these arguments
have merit individually, a mediation process would be nothing without emotions. Also,
mediation as a process occurs or happens when there is a conflict of interests, and interests
are deeply tied with emotions. Therefore, you cannot take emotions out of a mediation
process and then try to come to a mutual agreement.

Conclusion

Throughout this essay, an attempt was made to show how emotions play a central role in the
mediation process. Emotions in mediation can be both positive and negative. If there are
positive emotions, it can be capitalized on, but if there are negative emotions, then they need
to deal with them to move on with mediation. As Daniel Goleman said “when in control, the
emotional mind harnesses the rational mind to its purpose, thus distorting memories and
current emotions” (Yeend,2021). Much research has been done on negative emotions and
how they affect the process of mediation, but not a lot empirical research has been done on
positive emotions. It would be interesting to see whether positive emotions yield better or
faster results. Mediation, the job is not done until both the parties agree to solution. If there
are curtained emotions it leaves mediator with no choice but to deal with them. Having said
that, with the arguments stated above, the centrality of emotions and the importance of
acknowledgement of the emotions, especially in a power-despaired structure can be seen. 

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