Mediation and the art of managing emotions
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By Tim Hardy

It never ceases to amaze me how often parties say that their emotions play no part in a dispute. Absolutely not, they tell me at the start of a commercial mediation. They profess to be emotionally detached, rational, fair and reasonable – yet later in the day it often becomes clear that emotions are driving their decision making. So how can emotions be managed and rational thinking restored?

A few months ago at a mediation between shareholders seeking to agree terms to dissolve a business it had got to 10pm. Two issues – both related to money – had been resolved. A third issue had the parties in deadlock. Party A suggested the remaining stock be split 50:50 but Party B wanted an 80:20 split. The deal was off and Party B announced they would start legal proceedings the following day. This struck me as strange as I’d understood that the stock had no value.

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Having observed the parties throughout the day it seemed to me that Party B was angry and disappointed that the business had failed, and that this was clouding their judgement. I suggested we took a short break and, after some time alone with their legal team reflecting on the situation, they dropped the threat of proceedings and agreed to the 50:50 split.

Letting go of emotions

When someone is experiencing an emotional reaction during mediation, it’s important to give them time to identify that emotion, to recognise and express it. In his book, The 3rd Alternative: Solving Life’s Most Difficult Problems – which looks at taking the heat out of conflict – the late Stephen Covey counsels the need for patience and listening. His tenet is that you should let someone have their say so they can then start moving away from their emotional, irrational response towards a rational, reasoned response.

For these reasons if a party is genuinely upset by something the other party has done or said and it’s getting in the way of moving forward, I believe it’s important to give them the space to express their frustration, anger or disappointment, hopefully in a polite and controlled way.

Occasionally, that level of honesty can lead to a shouting match but it’s never fatally wounded the mediation. Rather, it’s been cathartic. If a party tries to suppress their emotions, it can stay within them, festering and growing, inhibiting their ability to think rationally. In my experience, giving parties the opportunity to express their feelings enables them to let go of their pent-up emotions and return to rational thought.


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