Even a whole morning spent listening, as I did recently, to such an informative and entertaining speaker as Dr Gabija Toleikyte does not turn a mediator into a neuroscientist or act as anything more than a tantalising introduction into this discipline. Dr Toleikyte’s seminar ‘Neuroscience of Emotions and Decision Making’ contained many insights into the way in which our brains work and how we take decisions. As far as I am aware neuroscience does not feature in many non-medical professional training programmes; perhaps it should.
Dr Toleikyte described the different parts of the brain that deal with ‘System I, automatic’ processing (fast, unconscious, emotional, intuitive, automatic using mental ‘shortcuts’) and ‘System II, controlled’ processing (slow, conscious, rational, deliberate, concentration, rule based, effortful).
Trainees and young solicitors who worked with me during my career as a solicitor became used to me telling them that there is no such thing as a ‘difficult’ client. If they found a client ‘difficult’ that was because they had failed to understand the client and get onto the client’s wavelength, that is part of their role as solicitors and accordingly the failure was theirs – not that of the client.
Having delivered that pious homily, I would then admit that some clients were (how shall we say?) easier to deal with than others. Leaving aside my early years as a solicitor, when I was still too young to have the experience of life which was to serve me so well later (or at least so I liked to think!), I have acted for three clients to whose wavelengths I could never quite attune, despite my best efforts and whose decisions on major aspects of their litigation seemed quite irrational. Each was female and each came from overseas (California, Korea and Thailand).
I suspect their gender was irrelevant. The first two were veteran litigants and I was the latest in a long line of lawyers whom they had instructed; which may have been relevant. Cultural differences may have played a part; certainly, in the case of the Californian there were misunderstandings based on the separation of two legal systems by a common language.
Nevertheless, I sensed failure on my part when eventually we parted company, although I was satisfied that I had achieved on their behalf all (indeed more) that might reasonably have been expected.
Active listening, not making assumptions or rushing to judgement when meeting a client are all skills that mediators and solicitors are taught to develop. A solicitor usually has many opportunities, over months or years, to get to know a client. In contrast, a mediator only has a short time at the start of the mediation within which to get to know the parties and to win their trust. ‘Speed-dating’, as it has sometimes been described.
Unlike a neuroscientist, a mediator cannot wire up the parties’ brains during a mediation and observe changing patterns as the mediation ebbs and flows. The mediator can, however, provide a safe environment both in the pre-mediation discussions and on the mediation day and thereby help the parties to take the best decisions they can in the circumstances, moving from System I to System II processing, whilst bearing in mind that over-analysis under System II can lead to ‘analysis paralysis’ and a need to revert to System I to take a final decision! The mediator can also encourage each party to listen carefully to the other.
Lawyers will usually advise their clients to take decisions based on reason not emotion. But Dr Toleikyte points out that we all have emotions, the primary function of which is to trigger behaviours in response to the environment to increase survival of the individual or the species. They are crucial for decision-making and can be distinguished from feelings which are in turn triggered by thoughts.
A good mediator will acknowledge and respect a party’s emotions, which the other party to the dispute initially may not, yet also challenge the party’s thoughts. If the initial thoughts turn out to be mistaken, the feelings go away and the party may be able to take a more rational decision which will assist settlement than would have been possible at the start of the mediation day.
There is clearly much in neuroscience that is relevant to everyone engaged in the dispute resolution process. Having barely scratched the surface of this fascinating discipline, I look forward to learning a lot more about it in the years ahead.