If you Google the word “emotion” the following definition appears first: “a strong feeling deriving from one’s circumstances, mood, or relationships with others.” It goes on to give an example sentence, “she was attempting to control her emotions“. We Brits have proudly built a reputation for having a “stiff upper lip” as if it is something to be proud of, but is it healthy? I can’t help wondering why we so often feel that we must control our emotions? Emotion is natural and yet so many of us fear it.
In this blog I am going to discuss – and challenge – the apparently widely accepted view that in probate dispute mediations emotion should somehow be curtailed for fear that if it is allowed out, it may de-rail constructive negotiations. The most common manifestation of this is dispensing with a joint session because it may be fraught with emotion. An outpouring of emotion is considered by many to be negative because it may waste time or cause people to go backwards before they can go forwards in the negotiations.
I believe that emotion is an essential ingredient in a probate dispute mediation.
During my 12 years as a contentious probate lawyer, I have been involved in a significant number of mediations involving grieving and feuding families. Acrimony and emotion are always present in high doses. The mediator and the lawyers do their absolute best to manage the moods in the rooms. Often the lawyers decide that a joint session would be disastrous, and the clients follow that advice because it feels sensible and comfortable. This is not a criticism of lawyers – I have done it myself. It would take a brave mediator to challenge this decision at the start of the day as it could damage rapport. The unfortunate result of this is that the parties then often bunker down and are kept apart all day. Even after a successful mediation, exits from the building are sometimes staggered for fear of an altercation erupting if the parties were to meet face to face. Having personally witnessed such an altercation on departure once, this approach is not illogical.
It strikes me as being akin to the difference between a football match and a rugby match. In football, extreme segregation of the fans seems to cause tribal behaviour. When it erupts, it can be ugly and the mood can spread like wildfire, sometimes with extreme results. In a rugby match on the other hand, the fans are mixed, and the mood is generally jovial banter. It may well end a little ugly due to inebriation, but it’s rarely too sinister. Of course, I oversimplify to make a point, but it’s clear to me that by building a wall between two sides, whether it be a line of match stewards or a few meeting rooms, we perhaps exacerbate the problem underlying the conflict – heightened emotion and a feeling of “them and us”.
A good analogy was recently given to me be by an ex-hostage negotiator who now works for CEDR, Philip Williams, when talking about the effect of stifling emotion. He described a boiling pot with a lid on it – if the pot stays on the heat, eventually the water will boil over. So it is with emotion – it needs to come out somehow. If the lid is kept on, it is likely to boil over in a damaging way.
This is backed up by psychological science. Emotions are energy and when energy is created it must go somewhere. Emotions also manifest themselves in 5 stages: charge, tension, discharge, relaxation and flexibility. The key to managing emotions is to allow a person to move through the stages. If a person gets stuck at 2 (tension) and the emotion is blocked, then it is likely to manifest itself in sickness, anger or frustration.
If emotion is suppressed early on in a mediation, there is a risk that it will erupt negatively later in the day, possibly just at the crucial time when the parties may need to be in touch with their rational brain. When emotion strikes in that way, it causes what psychologists call an “amygdala hijack” – causing our bodies to go into “fight or flight mode”. If this is not managed carefully, a person can be consumed by anger which is likely to be followed by impaired judgment. That is because it is very difficult for human beings to access their rational brain when their emotions are triggered.
Enough of the theory – what is the answer in a probate mediation? The well-known mediator, the late Paul Randolph, was a great believer in having a joint session at which the clients, not just the lawyers, should speak in order to let the other party hear the other party’s perspective and so they could have an opportunity to convey their feelings to the other side. He truly believed in the power of an individual having the opportunity to express their emotions and feel that they had been truly heard.
Whilst a joint session at the beginning of the day could be intense for a client, it could also be highly therapeutic and effective. On the other hand, in certain cases, perhaps a joint session at the beginning of the day is too much? I firmly believe that just because a decision may be taken at the beginning of the day not to have a joint session, that does not mean that the parties should be kept apart all day. Hearing the impact of a dispute from your opponent first-hand is incredibly powerful and can certainly pave the way for a breakthrough that may result in a resolution.
My training on the CEDR private client mediation course taught me that in many cases, there is no substitute for getting family members together to talk to each other, however deep the divisions may be. Whilst this is generally the case where there is some desire for reconciliation beyond the resolution of the dispute, surprising things can happen when face to face communication takes place. Yes, it is hard. Yes, it will be uncomfortable. But on the other side of a difficult conversation there generally lies positive progress.
So, as you can probably guess, my view is that emotion is your friend rather than your foe in a probate mediation.
My two take-aways from this blog are:
- Whether you are a client, lawyer or mediator reading this – don’t fear emotion. It’s natural for an individual involved in conflict to experience heightened emotion. It’s also necessary for a person to move through the stages of emotion to see things clearly on the other side.
- Just because a joint session may be dispensed with at the beginning of the day, doesn’t mean it should be abandoned for the rest of the day. Keep an open mind and you may be surprised by what could happen.