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Getting the Feel of Feelings

The Master Mediator/ Part 1 of 2 on Emotions and Decisions

By Robert A. CreoJuly 2016 | Print

Legal Positivism is based upon the concept that law consists of the enforceable commands of government, and does not depend on the validity of other criteria, such as normative or religious values, or natural law. The concept embraces the idea that natural law does not override government dictates enunciated in statutes, regulations, rules and court precedents.

The paradigm causes the legal system to treat emotion as immaterial or disposable. Lawyers and judges pretend it is not there—and then doing so becomes impossible. Judges may scold the lawyers, witnesses and jury into ignoring it as being inconvenient, or a distraction to be surmounted by the power of reasoning and logic.

I was taught as a lawyer to suppress my own emotions. From day one of law school, we were trained that how we “feel” is irrelevant to the determination of the law, and the case at hand. Experienced lawyers soon recognize the legal fiction while privately paying homage to emotion to control it or otherwise accommodating it.

The legal system provides redress for certain emotional injuries. Defamation, libel, slander, misappropriation and other causes of action address harm to identity and reputation.

Emotional distress caused by tortious behavior is also recognized. A recent U.S. Supreme Court case limiting damages under the Privacy Act, 5 U.S.C. § 552a (1974), held that:

In sum, applying traditional rules of construction, we hold that the Privacy Act does not unequivocally authorize an award of damages for mental or emotional distress. Accordingly, the Act does not waive the Federal Government's sovereign immunity from liability for such harms.

The Court also noted that pursuant to the scheme for common law torts of libel and slander, “special damages” are limited to actual pecuniary loss, which must be specially pleaded and proved.

“‘General damages,’ on other hand, cover ‘loss of reputation, shame, mortification, injury to the feelings and the like and need not be alleged in detail and require no proof.’” Federal Aviation Administration v. Cooper, 132 S. Ct. 1441, 1451 (2012)(available at http://bit.ly/1X9mIEZ)(citations omitted).

An Emotional Process

The pivotal working point: The mediator's ability to be comfortable with emotion—including his or her own feelings—are instrumental in creating a setting that produces positive results.

The pivotal awareness point: Recognition of the role and power of emotions in decision making.

The task: Respecting the feelings of others, and yourself.

In many jurisdictions, the harm of being shamed is included as a basis for liability.

For example, Section 1705. Defamation per quod—Essential Factual Elements (Private Figure—Matter of Private Concern), of the California Jury Instructions provides:

To establish this claim, [name of plaintiff] must prove all of the following:

[ … ]

3. That because of the facts and circumstances known to the [listener(s)/reader(s)] of the statement(s), [it/they] tended to injure [name of plaintiff] in [his/her] occupation [or to expose [him/her] to hatred, contempt, ridicule, or shame] [or to discourage others from associating or dealing with [him/her]];

“Shame, mortification, or hurt feelings” are expressly included as elements of actual damages in the jury Instruction.

HOLISTIC DECISIONS

Years of research and work by Antonio Damasio, a professor of neuroscience and director of the Brain and Creativity Institute at the University of Southern California in Los Angeles, as well as others, that includes sophisticated studies with magnetic image scanning of the brain, has concluded that decision making is a holistic process that integrates logic, emotion, and values.

The traditional duality of separating reason and emotion is simplistic, and dangerously inaccurate. See, e.g., Robert A. Creo, “Back To Basics: The Playing Field,” 33 Alternatives 24 (February 2015)(available at http://bit.ly/290PTEG).

PROCESS EXPRESSION

Mediation is an emotion-laden process.

It not only permits, but encourages, the expression of emotion and validates emotional criteria in the decision making process. See, e.g., Nancy Holtz, “How the ‘Inside Out’ of Emotions Affects the Inside of a Mediation,” 34 Alternatives 3 (January 2016) (available at http://bit.ly/28ZFyZn) (stating that participants are always speaking and acting from the heart).

During many years of serving as a mediator, I never thought about, let alone tried to understand the powerful emotions such as shame and guilt.

Since emotion is absent from legal analysis and doctrines, the processing of a human problem via the civil legal system gives us permission not to consider individual behavior through the prism of shame.

Legal guilt and blame is there, and is redressed via economic damages. Usually shame is implicit or absent as a remedy. Public shaming may be part of the criminal justice system, and some situations, such as decisions by the National Labor Relations Board or other regulatory actions, notices naming violators may be part of a remedial course of conduct.

In settlements and consent decrees, however, it is common to include non-admissions of liability or underlying wrongdoing. Although crisis management advisers may promote organizations and individuals to own their errors, apologize, and promise to make amends, this is not the typical defense in civil litigation.

The paradigm moves quickly away from right or wrong, guilt or shame, to facts, which can be proven, and legal defenses.

This channeling away from emotion, however, is, and should be, disrupted in mediation. This is intentional by advocates of the classic mediation model which eschews a legalist approach in favor of a more “touchy-feely” dynamics.

Much already has been written about the non-economic benefits of mediation, including apology and reconciliation opportunities. Few efforts have been made to unpack the potential role of shame in many decisions made during mediation.

In Part 2 in the September issue of Alternatives, the Master Mediator column will continue the Emotion and Decisions focus with an exploration of the role of shame in decision making and mediation.

ADDITIONAL READING

Antonio Damasio, Looking for Spinoza: Joy, Sorrow, and the Feeling Brain (Harvest House, 2003).

Brene Brown, Daring Greatly, How the Courage to be Vulnerable Transforms the Way We Live, Love, Parent, and Lead (Avery Reprint, 2015).

Biography

The columnist is a Pittsburgh attorney-neutral who has served as an arbitrator and mediator in the United States and Canada since 1979. He conducts negotiation behavior courses that focus on neuroscience and the study of decision-making, and was recognized by Best Lawyers in America as 2014 Mediator of the Year for Pittsburgh. He is the author of “Alternative Dispute Resolution: Law, Procedure and Commentary for the Pennsylvania Practitioner” (George T. Bisel Co. 2006). He is a member of Alternatives' editorial board, and of the CPR Institute's Panels of Distinguished Neutrals. His website is www.robertcreo.com.

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