- Contract Disputes and COVID-19
(posted: Jul 18, 2020)
Is COVID-19 an act of God? This is a knotty question that our Court and hundreds of others will be wrestling with for a long while. Read Mr. Windsor's article for the San Mateo County Bar Association.
- Webinar: Mediating Your Business Disputes
(posted: Apr 29, 2020)
May 5th at 10am, Jeff Windsor will discuss issues related to commercial contract and lease disputes arising out of the stay-in-place orders and moratoriums as a result of COVID-19.
- Creating Chemistry in Mediation
(posted: Jul 23, 2018)
A look at how neurochemicals increase empathy, control, and focus, which help in resolving a dispute, plus simple techniques mediators can practice to establish trust and create cognitive ease.
Creating Chemistry in Online Mediation
posted: July 19, 2020
For a mediator, establishing a connection at the outset of a mediation with the parties is essential. When we first meet someone, we are immediately evaluating a person's warmth and competence, asking ourselves, "Can I trust and respect this person?" This can be even more challenging when a mediator is meeting parties for the first time by video conference. With the new necessity and rise of online dispute resolution (ODR), a mediator should be ever more mindful of the neurochemistry at work in establishing trust with the parties. Some might argue that ODR is a much more "mental game" than a traditional mediation because the participants do not have the opportunity to read body language or "size each other up." Fortunately, mediators can "virtually" create the same chemistry as they might at an in-person mediation.
1. The Neurochemistry of Trust
Much has been written in recent years about the importance of empathy. Empathy is vital in not only understanding and being sensitive to other's experiences and thoughts, it helps establish personal trust. Once a mediator establishes warmth and competence with the parties, s/he has already taken a significant step in resolving the dispute. As Amy Cuddy puts it, "trust is the conduit of influence."
Oxytocin is a hormone and neuropeptide generated in the brain's hypothalamus. It is closely associated with neural resonance and empathetic responses. Mirror neurons, which are regulated by oxytocin, can be stimulated by observing others engaged in different activities. A common example is yawning — when we see somebody else yawn, we almost invariably do the same. Seeing another yawn stimulates mirror neurons in our own brain. This generates oxytocin, and we feel a sense of empathy for the other's tiredness.
The increase in oxytocin also triggers the release of two other neurotransmitters in the brain: dopamine and serotonin. Both feel good when released. Serotonin induces feelings of collegiality and reduces anxiety, while dopamine increases focus, drive, and facilitates learning.
Dopamine also helps regulate the release of cortisol, epinephrine, and testosterone. There is a sweet-spot of high testosterone combined with low cortisol that correlates with effective, team-focused leadership, an ability to provide constructive feedback, and the resilience to steadily push forward through challenges — all qualities in a successful mediator and mediation. The release of oxytocin, dopamine, and serotonin can create a virtuous circle. Oxytocin can induce good behavior, which then generates empathy, which drives moral behavior, which inspires trust. An increase of trust causes the release of more oxytocin, which creates greater empathy. When people feel greater empathy, they act more cooperatively.
In the context of mediation, for example, a more generous compromise in the negotiation process inspires trust on the other side. That other party then experiences an increase in oxytocin, creating empathy on their part, and thereby, likely, a similar compromise in their negotiation position. The essential element in beginning the process is the trust the parties feel in the mediator. Their levels of cortisol, epinephrine, and testosterone are already elevated when they consider the conflict and one another. The mediator has the responsibility of creating an atmosphere where, despite all of the toxic chemistry, s/he will lower the "bad blood," create a sense of cooperation, and bring the parties to a point where they are thinking clearly about the conflict and are focused on working toward a compromise. This process starts the very moment the mediator first talks with the parties. And at that moment, the mediator wants their brains filled with increased levels of oxytocin, serotonin, and dopamine. Creating this neurochemistry from the outset sets the stage for higher levels later, putting the virtuous cycle into action, and increasing the probability of resolution. Just a little bit of extra oxytocin can be the tipping point in getting the parties to a settlement.
2. How to Create Neurochemistry in an Online Mediation
Before starting a mediation session, take a moment to relax. Studies have shown that a one-minute relaxation exercise will increase activity in areas of the cerebral cortex essential for communication, mood regulation, and decision-making. This helps decrease your levels of cortisol, thereby decreasing the amount of stress you feel and display. Even simple changes in posture such as "sitting-up-straight" display confidence, competence, and control. This especially important in ODR, discussed further below. You increase the neurochemicals that promote these attributes in yourself, and thereby increase the same feelings and neurochemistry in the parties that are watching and working with you.
Deep listening and reflection create neural resonance. People begin to trust you, and when people feel heard they themselves are more likely to listen and collaborate. To listen deeply, focus your full attention on the speaker, maintaining eye contact, which stimulates the areas in the amygdala and cortex related to social interaction, thereby decreasing cortisol and increasing oxytocin. In a video conference, studies have shown that trust is more easily established and maintained between parties when they are looking directly at one another, as opposed to indirectly or at an angle. In many cultures, the failure to maintain eye contact indicates deception and leads to feelings of mistrust. Try to soften your eyes by thinking of a pleasant memory. This stimulates activity in the anterior cingulate and insula of the brain, increasing empathy and compassion toward others. Further, the more you mirror a person's communication style — including tone and gestures — the more you increase communal neural resonance, which generates more empathy and cooperation.
Many mediators are also litigators. Attorneys are infamous for their lengthy disquisitions, however, this may not translate well in mediation. To help increase cognitive ease, a mediator should try to limit his or her messages to 20 to 30 seconds at a time, imparting 3 to 4 pieces of data. When a person talks longer, it may begin to tax the listener. If too much information is imparted, their short-term memory becomes overloaded, and a person will remember only what s/he wants to or believes is important. Again, this is especially important in ODR. We have all experienced "glitchy" Internet connections where the image or sound of someone we're communicating with becomes frozen or halting. Not only does this technological interference interrupt the message, it can cause "breaks" in neural resonance — the connection — between the mediator and party. Be succinct in your messaging.
Mediators should be optimistic. The parties begin a session skeptical that a resolution can be reached. It is part of the mediator's role to overcome doubt and create an atmosphere and attitudes that motivate settlement. A smile, even over video, can go a long way — and they're contagious. Even when a person may not initially feel happy, physically expressive behavior can create the emotional experience, and when people engage the muscles typically associated with smiling they were more agreeable.
Finally, to convey optimism use positive language. Positive terms induce activity in the motivational centers of the brain. They put both the speaker and listener at ease. Negative words create cognitive strain, can have a stronger affect, and are remembered longer than positive words. Of course, do not be "Pollyanna-ish." It is often the mediator's job to tell hard truths. However, it is also their role to seize opportunities in negotiations and emphasize favorable points to maintain progress. Momentum is crucial, especially in ODR, where parties can easily become distracted by click-bait or current events. Begin with and encourage optimism, and watch little victories pile up.
Make no mistake — the above is not a substitute to being completely prepared to address the substance of the issues. Set up your online conference room well in advance; study the briefs; call the attorneys prior and learn about the impediments to settlement. Master the merits of the conflict before the mediation. Nonetheless, remember that powerful chemistry is at work in all of the participants, and the same chemistry that you create at an in-person mediation can be created in ODR. Taking small steps to increase oxytocin, dopamine, and serotonin and creating cognitive ease in the parties, can be just enough to tip them into agreement and inspire everyone to indulge in a different kind of chemistry later.
 Presence. Cuddy A, Little, Brown and Co., 2015.
 Herein, I briefly revisit ideas discussed in a prior article, "Creating Chemistry in Mediation." Windsor J, LinkedIn, 2017.
 The Moral Molecule. Zak P, Penguin Group (USA), 2012.
 "Short-term meditation training improves attention and self-regulation." Tang Y. Y., Ma Y, Wang J, Posner M.I. Proceedings of the National Academy of Sciences of the United States of America. 2007 Oct 23; 104(43): 17152 - 56.
 Presence. Cuddy A, Little Brown and Co., 2015.
 "The eye contact effect: mechanisms and development." Senju A, Johnson M. H. Trends in Cognitive Sciences. 2009 Mar;13(3):127-34; "Oxytocin enhances amygdala-dependent socially reinforced learning and emotional empathy in humans." Hurlemann R, Patin A, Onur O. A., Cohen M. X., Baumgartner, T. Journal of Nueroscience. 2010 Apr 7; 30(14):4999-5007.
 "MultiView: Improving Trust in Group Video Conferencing Through Spatial Faithfulness." Nguyen D, 2-3, Berkeley Institute of Design (ACM Press, Proc. CHI 2007).
 "i2i Trust in Videoconferencing." 49 Comms. of the ACM 103, 105 (2006).
 "Love hurts: An fMRI study." Cheng Y, Chen C, Lin C. P., Chou K. H, Decety J. NeuroImage. 2010 Jun: 51(2):923-29.
 "Mirror neurons and the evolution of language." Corballis M.C. Brain language. 2010 Jan; 112(1):25-35 Epub 2009 Apr 1.
 "Working memory capacity for spoken sentences decreases with adult ageing; Recall of fewer but not smaller chunks in older adults." Gilchrist A. L., Cowan N. Memory. 2008 Oct; 16(7):773-87.
 "Why are smiles contagious? An fMRI study of the interaction between perception of facial affect and facial movements." Wild B, Erb M, Eyb M. Psychiatry Research. 2003 May 1; 123(1):17 - 36.
 "Inhibiting and facilitating conditions of the human smile." Strack F, Martin L.L. Journal of Personality and Psychology, 54, 768-777.
 Words Can Change Your Brain. Newberg A, M.D., Waldman, M. R., Penguin Group, 2012.
Article originally appeared on the Contra Costa County Bar Association's website.