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Importance of Emotional Intelligence in Negotiation and Mediation International Comparative Jurisprudence 2 (2016) 55–60 HOSTED BY Contents lists available at ScienceDirect International Comparative Jurisprudence journal homepage: www.elsevier.com/locate/icj Importance of emotional intelligence in negotiation and mediation Edward J. Kelly a,n, Natalija Kaminskienė b a University Counsel, East Tennessee State University, 1276 Gilbreath Dr., Box 70285 Johnson City 37604 TN, USA b Mykolas Romeris University, Ateities St. 20, LT-08303 Vilnius, Lithuania article info abstract Article history: Emotions play a very important role in the search for dispute resolution, but very often are Received 3 June 2016 neither understood nor effectively addressed by the parties to the dispute, also not Accepted 5 July 2016 properly controlled and managed by the professionals that are helping the parties to reach Available online 5 July 2016 peaceful dispute resolution. The effective negotiator or mediator must take into account Keywords: not only the economic, political and physical aspects of the process, but also the emotional Legal disputes tenor of themselves as well as that of all of the parties. Emotions This paper has three objectives: to define emotions and their role in solving legal Emotional intelligence disputes by the means of negotiation and mediation processes; to outline main elements Negotiation of the process of developing emotional intelligence as they play out in the mediation and Mediation negotiation processes; and to explore some of the mechanisms for addressing and opti- mizing the emotional climate in negotiation and mediation processes. The object of the research – emotions in the processes of legal dispute resolution – negotiation and med- iation. The research is composed of introduction, three parts and conclusions. Introduction provides a brief overview of the object of that research and its goals, part one describes emotions and their roles in negotiation and mediation processes, in part two four ele- ments to develop emotional intelligence are overviewed and in the third part analysis of mechanisms for addressing and optimizing the emotional climate of negotiations and mediation are presented. The conclusion gives main ideas of the assignment of that work in brief. & 2016. Mykolas Romeris University. Production and hosting by Elsevier B.V. All right reserved. This is an open access article under the CC BY-NC-ND license (http://creativecommons.org/licenses/by-nc-nd/4.0/). 1. Introduction negotiations and mediations, people in fact are an im- portant part of the problem. Simply put, the fundamental The conventional wisdom when entering into negotia- basis of negotiation and mediation practice is not merely tion in previous decades was to “separate the people from the cognitive analysis of competing interests and the ra- the problem” (Fisher & Ury, 1983). Unfortunately, in many tional development of the most efficient outcome, but also the acknowledgment of the underlying emotional factors at play. The emotional and the rational aspects of nego- tiation can be seen as yin and yang – complimentary rather than opposing forces. They interact to form a dynamic n Corresponding author. E-mail addresses: [email protected] (E.J. Kelly), process, which can result in optimal results. The effective [email protected] (N. Kaminskienė). negotiator or mediator must take into account not only the http://dx.doi.org/10.1016/j.icj.2016.07.001 2351-6674/& 2016. Mykolas Romeris University. Production and hosting by Elsevier B.V. All right reserved. This is an open access article under the CC BY- NC-ND license (http://creativecommons.org/licenses/by-nc-nd/4.0/). 56 E.J. Kelly, N. Kaminskienė / International Comparative Jurisprudence 2 (2016) 55–60 economic, political and physical aspects of the process, but emotions. I want to use them, to enjoy them, and to also the emotional tenor of themselves as well as that of all dominate them” (Wild, 2015). The capacity to be aware of, of the parties. Consider two examples where emotions act control and express one's emotions and to handle inter- to destroy settlements: personal relationships judiciously and empathetically is A couple engaged in divorce settlement discussions. After known as emotional intelligence, EQ or EI (Goleman, a day of working with their attorneys, the parties agreed on 2005). As long as we believe that both emotions and their issues of child support, allocation of residences, division of control while solving legal disputes is inevitable process, almost all property. The parties finally engaged in an ex- we dedicate this paper to the topic of emotional in- tremely heated discussion involving allocation of a dog, telligence in negotiation and mediation. which the couple had held for years. The failure of the set- Hence, this paper has three objectives: to define emo- tlement effort frustrated the attorneys and resulted in con- tions and their role in solving legal disputes by the means tinuous, expensive and acrimonious litigation. of negotiation and mediation processes; to outline main In a full day settlement discussion of a personal injury elements of the process of developing emotional in- matter involving medical malpractice a mediator was able to telligence as they play out in the mediation and negotia- reach what she considered an equitable settlement offer from tion processes; and to explore some of the mechanisms for the defendants, a physician, a nurse, a resident physician and addressing and optimizing the emotional climate in ne- the hospital where surgery had been performed. When she gotiation and mediation processes. presented the settlement offer to the plaintiff, the plaintiff The object of the research – to explore emotions in the became quite agitated. In a rambling conversation, he as- processes of legal dispute resolution. serted again and again that “no one ever said they were The authors present their research based on the fol- sorry!” The mediation failed. The case went to trial and ap- lowing classical methods of social research: analytical, lo- peals followed. Finally, three years after the mediation, the gical, systematic method and method of generalization. plaintiff received a recovery of less than half the amount of- fered at mediation, and all of the parties were saddled with excessive attorney fees. 2. Emotions and their roles in negotiation and media- No one could doubt that in both of the examples pre- tion processes sented emotions played a very important role in the search for dispute resolution, but were neither understood nor An emotion is a conscious mental reaction (for ex- effectively addressed by the parties to the dispute, also not ample, anger or fear) subjectively experienced as a strong properly controlled and managed by the professionals that feeling, usually directed toward a specific object, and ty- were helping the parties to reach peaceful dispute pically accompanied by physiological and behavioral resolution. changes in the body (Merriam and Webster). Roger Fisher There are essentially three dimensions to the conflict interprets emotion as “…a felt experience. You feel an element of negotiation: the emotional, the cognitive and emotion; you do not just think it. When someone says or the behavioral. Emotional part of any conflict is especially does something that is personally significant to you, your important for psychologists. But unlike psychologists very emotions respond, usually along with associated physio- often lawyers-mediators prefer not to notice the emotional logical changes, and a desire to do something.” (Fisher & side of dispute resolution process or at least not to induce Ury, 1983). the parties to go deep into their emotions, believing it can “In a recent survey, mediation trainers rated addressing complicate the process or result in their inability to control emotional issues as generally more important than ad- the behavior of the disputants. If it were possible, lawyers- dressing substantive issues in a mediation session. Failure mediators would prefer to mediate disputes that have no to adequately address the emotional issues can result in emotional charge at all. Lawyers typically believe that ineffective mediation. Close to half those surveyed, in- consistent, reasoned, objective, and rational decision- cluding two thirds of the most experienced mediators making is cornerstone of any dispute resolution processes. thought mediation training does not sufficiently teach Here comes the question, is it possible to separate people mediators how to address the parties’ emotional reac- from their emotions? To our opinion, that is “mission im- tions.” (Schreier, 2002). possible”. Especially if we speak about family, medical In their work on emotions in negotiation “Beyond malpractice disputes, victim-offender conflicts where Reason: Using Emotions as You Negotiate” (Shapiro & emotion is sewn-in to the tissue of the conflict. Even in Fisher, 2005). Fisher and Shapiro demonstrate not only commercial disputes where parties tend to convince each how negative emotions can impede integrative negotia- other that there is nothing personal and it is just business, tions, but also how positive emotions can enhance the emotional element is obviously present. A small claim to negotiation process, pointing out that emotions play a role the court to give “a good lesson” to negligent contractor is in all negotiation. only one of everyday examples that prove existence of Shapiro presents very interesting classification of pos- emotions even in those conflicts that are usually
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