ADR, Mediation

Neuroscience knowledge boosts settlement chances

By AdvocateDaily.com Staff

All parties involved in alternative dispute resolution can benefit from understanding what is going on in the brain during settlement talks, Toronto lawyer and mediator Eric Gossin tells AdvocateDaily.com.

Gossin, partner with Devry Smith Frank LLP, recently co-chaired a panel on neuroscience in ADR in a program presented by the Ontario Bar Association and says it was one of the most intriguing sessions he’s been involved with.

“When you’re involved in intense forms of conflict, which is what happens during a lawsuit, your brain is hardwired to react in particular ways,” Gossin says. “This program was all about teaching mediators and counsel how to recognize those responses when they are happening.”

For example, while most people have heard of the virtually automatic “fight or flight” response activated by the amygdala in the brain, Gossin says few lawyers would think of it as happening in the context of their work.

“That’s what’s going on when someone says, ‘I’m out of here,’ or when you can’t get them to budge at all, and you can see them shutting down in front of your eyes,” he says. “These are both ways that people can respond to threats.”

Gossin says lawyers and meditators can use a basic understanding of the neurological processes behind these reactions to help prevent them from being triggered in the first place and boost the chances of resolution.

“One of the speakers told us about the power of emotional control and how high emotions lead to less thinking,” he says. “If you can set an environment for people to be businesslike and calm, you’re likely to be a more effective mediator or counsel.”

Gossin says some of the insights gained at the OBA session backed up his intuitions about how to achieve settlements at mediation.

“I wouldn’t have necessarily attached those neuroscientific labels to them, but I’ve always been interested in the interpersonal aspect of mediation and try to approach all parties with empathy,” Gossin says.

For example, one of his favoured strategies is what he calls “setting a positive table” for mediation.

“You need to remove negative expectations so you don’t end up with unfavourable results,” Gossin explains. “There is an inclination for lawyers to call up mediators with a negative or defeatist approach and say the case hasn’t got a hope of settling. My aim is to change the tone to a positive one, so I explain my approach and tell them they might find themselves surprised by the results.

“The real art of mediation is in how you frame and reframe the situation for the various parties. Good mediators know how to do it in a positive way so that the threats are downplayed and the inclination to get combative is reduced,” he adds.

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