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Revolutionizing Mediation through Technology

by Robert Bergman

July 2019

Robert Bergman

The Challenge

In recent years, as the world has migrated toward a reliance on social networks, the internet of things, and digital transactions, disputes have grown exponentially in terms of number and complexity. In the interest of settling these disputes quickly, given that the courts have become more congested, mediation and arbitration have grown in both prevalence and popularity.  Today, approximately 98% percent of civil suits are settled by non-judicial methods—most being private negotiation between the parties, settlement conferences with the court, and various forms of alternative dispute resolution (ADR).   However, in too many cases, mediation is viewed as the last hope in resolving a conflict instead of the first step in a collaborative process.  By the time disputing parties sit down with a neutral to resolve a conflict, emotions are running high, and reason can be in short supply.  Disputants are often stuck in “child logic,” with no clear consensus on their priority of key objectives, an unrealistic set of litigation expectations, and an anger and distrust of the opposing party.

Mediation has grown in popularity and use as a non-judicial means of settling disputes; however, it has remained immune to using technology to fundamentally re-engineer and improve the process.     

Background

Our Brains and Conflict

To understand why mediation can be so useful, its important to know how our brain regulates our decisions. From an evolutionary perspective, the earliest part of our brain to develop was the Mammalian Brain (Paleocortex, limbic system, midbrain) where the primary focus was Consciousness, Emotion, Memory, and Fight or Flight.   The frontal lobes of our brain (Nonmammalian or Neocortex) were the last part to develop and are responsible for regulating behavior, making choices between right and wrong, and predicting probability of outcomes of actions and events.[1]

Disputes inevitably lead to an increase in emotional reactions as our Mammalian Brains react first to a perceived threat. Anger, of course, stems from feeling threatened and some form of inner pain, or other strong emotions such as fear, anxiety, shame, hopelessness, and powerlessness. According to Dr. Bernard Golden, Ph.D.[2], most people, independent of age and intelligence, react to these threats by regressing to “Child Logic.” Child Logic refers to the “magical thinking associated with earlier brain development and infuses our expectations with emotions rooted in our wishes and hopes, unmanaged by the facts of reality.” It is Child Logic that supports beliefs such as “Life should be fair” or “I deserve justice”; or “I should get what I want.”  It’s as if the emotional brain has hijacked the rational brain, and they are no longer effectively communicating with each other.  Transcending Child Logic requires that we can distinguish between what we need (clear objectives) and what we want (emotionally driven objectives).

Regulating emotional thinking during mediation

To minimize objectives driven by emotionally charged Child Logic, NextLevel Mediation™ utilizes a combination of decision analytics and selective attention to enable a more effective mediation environment. Selective attention to detail is one of the most valuable instruments humans have in balancing emotions and bringing into focus important stimuli. Research conducted by Wadlinger and Isaacowitz[3] has shown that individuals can effectively regulate their emotions through their attentional deployment, and this process can be successfully trained.  They concluded that individuals who can better regulate their emotions from attentional training may experience more positive emotions which in turn can enhance attentional resources, such as increasing flexibility, and control.

By using the research from selective attention in concert with the analytics of decision science, application technology can help to diminish the effects of emotional thinking while illuminating an individual’s real objectives.

The Solution

NextLevel Mediation™ utilizes two methodologies from decision science to improve the effectiveness of mediation: Analytical Hierarchical Process and Decision Trees.  In decision analysis, a decision tree and the closely related influence diagram are used as a visual and analytical decision support tool, where the expected values (or expected utility) of competing alternatives can be calculated.  Decision trees are used to value the multiple financial outcomes possible in any litigation — whether a case is dismissed, summary judgment is granted, or the plaintiff “wins” an amount, or something else happens.  The process allows disputing parties to understand the reality of litigation and helps to set more realistic expectations. Analytical Hierarchical Process (AHP)[4] on the other hand is a general theory of measurement that is used by our application to establish objective priorities.    Cognitive psychologists like Harvard’s Arthur Blumenthal[5], tell us that making comparisons is intrinsic to human capabilities, whether skilled or not. Comparisons lead to relative thinking, which in turn can be used to derive relative numbers representing importance or priority. The AHP methodology utilizes pairwise comparisons to establish ratio scale measurements and square reciprocal matrices to calculate vector priorities.

Instead of waiting until the first face to face conference to address a highly emotional  conflict, NextLevel Mediation™ has developed a unique cloud based SaaS (Software as a Service) system that utilizes the above methodologies to help mediators unravel the gordian knot of emotions, understand the objectives of each party, level set each party with the reality of litigation and provide a framework for negotiating an optimum result. 

ENDNOTES

1.        Julie Sasscer-Burgos, Psy.D. NSA, “Our Brains on Conflict, Neuroscientific  Explanation”,  May 14, 2014 (Lunchtime series).

2.       Bernard Golden, Ph.D.  https://www.psychologytoday.com/us/blog/overcoming-destructive-anger/201611/the-power-emotions-override-rational-thought

3.       Heather A. Wadlinger and Derek M. Isaacowitz: “Fixing our focus: Training attention to regulate emotion”, Pers Soc Psychol Rev. 2011 Feb; 15(1): 75–102.

   4. Group Decision Making: Drawing Out and Reconciling Differences by Thomas L. Saaty, Kirti Peniwati

 5.   The process of cognition (Experimental psychology series) by Arthur L Blumenthal  | Jan 1, 1977

Robert Bergman with Next Level Mediation provides full mediation services - including proprietary and confidential Decision Science (DS) analysis that assists each party in understanding their true litigation priorities as aligned with their business objectives. Each party receives a one-time user license to access our exclusive DS Application Cloud. We provide each party with a complimentary electronic copy of the DS Report.

A total of 45 years of experience in decision sciences, software engineering, business strategy simulation, defense, Scenario Planning, System Dynamics Modeling and market research. My background and years of experience of applying quantitative decision methodologies to improve international standards negotiations and strategic business decisions, brings a unique perspective to the mediation of business to business disputes



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