Academic journal article Southern Journal of Business and Ethics

Mediation Madness Ii: Dealing with Destructive Emotions

Academic journal article Southern Journal of Business and Ethics

Mediation Madness Ii: Dealing with Destructive Emotions

Article excerpt

I. Introduction

Mediation offers an alternative to the rigors of formal litigation in a courtroom. It has become a successful conflict resolution tool because it provides an opportunity to resolve virtually any issue in "a cost effective and timely manner."1 Moreover, according to Gene Valentini, director of the Texas Dispute Resolution System, one can speak freely in mediation "about anything you feel will get you to a point of resolution because nobody's recording or saying it's out of order, whereas in the courtroom you may not be able to address those things."2 When business leaders prepare for and manage a successful mediation, they will understand the dynamics of the process.

Applying models and recent research from the field of group dynamics, this paper offers insight into how to prepare for and conduct mediation when intense negative or destructive emotions arise. According to Daniel Shapiro, negative emotions disrupt or "hijack" rational thinking, while positive emotions contribute to interpersonal dynamics that enhance effective decision making."3 Thus, negative emotions are potentially destructive and pose a threat to mediation success if they are not appropriately addressed. This article examines negative emotions and their impact on mediation. It offers three tools to help mediators identify and deal with negative emotions in mediation: a Continuum of Emotional Escalation to help mediators arrest exploding emotions; a Life Cycle Model of Destructive Emotions to help mediators identify key negative emotions likely to arise at each stage of mediation; and a Situational Model of Emotional Intelligence to help mediators match mediation style to the emotional readiness of participants. Finally, it puts forward coping strategies for dealing with destructive emotions at each phase of mediation. The extent to which business leaders recognize and respond to negative emotions can determine whether mediation succeeds. Before considering how skills can be developed in this area, it is important to examine the meaning of mediation, its use, and its success in resolving conflict.

II. The meaning of Mediation

Texas statutory law defines mediation this way:

(a) Mediation is the forum in which an impartial person, the mediator, facilitates communication between parties to promote reconciliation, settlement, or understanding among them.

(b) A mediator may not impose his own judgment on the issues or that of the parties.4

Unfortunately, this statutory definition offers little insight into what mediation actually can and should be. When successful, mediation can be characterized as proactive, forward-looking, and problem-solving in nature. As a process, it is enlightening, flexible, confidential, and, typically, evokes less stress than does formal litigation. It is not a drastic action and does not involve the surrender of freedom that arbitration dictates, as the latter requires an impartial third party who breaks a deadlock by issuing a final binding ruling.5 Mediation basically involves negotiation through a disinterested third party, and it effectively can defuse emotional time bombs. One drawback mars this otherwise rosy picture: neither side is bound by anything in mediation. Arbitration binds; mediation intervenes benevolently. If the parties involved remain stubborn, intervention can sour, and mediation then becomes an exercise in futility.

Proactive use of mediation can help businesses keep conflict out of costly litigation and can even help settle conflicts already in litigation. For this to happen, though, business leaders must know what should transpire in mediation and how to prepare for it.

III. The Use Of Mediation

Over the past two decades, the use of mediation has exploded. Business leaders and the courts have discovered its value as a cost-effective alternative to litigation in the traditional adversarial system. The number of mediation cases in Texas, Oklahoma, and Nebraska (the states nearest the region to track statistics) is staggering. …

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