J. Lack The Neurophysiology Of Conflict A Mediators Perspective (Cisa, Geneva, 17.12.08)

The Neurophysiology of Conflict:
A Mediator’s Perspective

Jeremy LACK
Counsel & Attorney-at-Law, ALTENBURGER (CH)
Door Tenant, QUADRANT CHAMBERS (UK)
Counsel PCZLAW (US)
Commercial Mediator (SCCM, WIPO, CEDR, CMAP, IPOS)

Zürich Genève
Seestrasse 39 Rue Rodolphe-Toepffer 11bis
CH - 8700 Küsnacht CH - 1206 Genève
Tel. +41 44 914 88 88 Tel. +41 22 789 50 20
mail@altenburger.ch mail@altenburger.ch

1 © B. Sambeth Glasner & J. Lack 2008. All rights reserved. www.altenburger.ch

Outline

Part I: Introduction to Conflict Resolution methodologies (mediation)

Part II: An attempt to look at the brain & techniques in mediation


General Caveat

This sort of presentation is
particularly dangerous
when given by unqualified,
non-scientific, dilettante,
lawyers!

This presentation will be
• Non-scientific
• Non-empirical
• Fundamentally flawed
• Highly subjective

Some of this will be blindingly
obvious (e.g., Mr. Jourdain
reciting prose).


Metaphores only, using “brain regionalization” concepts

“Your brain is divided into two
hemispheres. The left hemisphere is
sequential, textual, and analytical. The
right hemisphere is simultaneous,
contextual, and synthetic. Of course,
we enlist both halves of our brains for
even the simplest tasks. And the
respective traits of the two
hemispheres have often been
caricatured well beyond what the
science actually reveals. But the
legitimate scientific differences between
the two hemispheres of the brain do
yield a powerful metaphor for
interpreting our present and
guiding our future.”
From the Introduction to
A WHOLE NEW MIND, Daniel Pink.

Concept: Michael Leathes and http://news.bbc.co.uk/cbbcnews/hi/sci_tech/newsid_2191000/2191138.stm


Alternative Conflict Resolution Methods
Appropriate Dispute Resolution (ADR)
Least Evaluative
Least Structured Consensual
Parties in control
Least Formal NEGOTIATION

MEDIATION
Source: J. Kalowski, JOK Consulting

INDEPENDENT EXPERT
APPRAISAL

CONCILIATION

NEUTRAL EVALUATION

ARBITRATION

Most Evaluative ADJUDICATION Adversarial
Most Structured Third party in control
Most Formal


Arbitration …

Resolution

Source: Joanna Kalowski

A

P1 P2


… Conciliation …
Resolution

Precedent C
Justice

Statute

P1 P2
OBJECTIVE
FAIRNESS


… Mediation

Resolution

P1 P2

M
SUBJECTIVE
FAIRNESS


A Definition of Mediation

“The process by which the participants, with the
assistance of a neutral person or persons,
systematically isolate disputed issues in order to
develop options, consider alternatives and reach a
consensual agreement that will accommodate their
needs.”
Folberg & Taylor
Commercial Mediation, 1984

This can be about issues of substance and issues of process.
Mediators are NOT providing therapy or dealing with abnormal
behaviour, but only seeking to use short intervention techniques,
to facilitate cortical thinking in the brain.

Statistics for mediation (Source: ACB, NL 2006)

Average duration of a mediation 4 x ½ day sessions

No. of disputes resolved in a single mediation 15%

Percentage of cases reaching a settlement 79%

Willingness of the parties to repeat mediation 92%

Average value of thedispute Euro 5 million

Average cost Euro 3,500.00 / party

http://www.mediation-bedrijfsleven.nl/english.shtml


The Evolution of Man

Source: http://www.didntyouhear.com/wp-
content/uploads/2006/10/evolution1.jpg


Conflict: We need to take a new look at ourselves

VS.

Vitruvian Man Sensory Homunculus Man
How we like to perceive ourselves How our brains are actually wired


Typical Approaches to Dispute Resolution

Source: J. Kalowski


The rights-based approach to dispute resolution

THE LEGAL SYLLOGISM (an equation):

Facts (past & present)
+
Applicable law(s)
=
Outcomes
(« conclusions »)

“We have to rely only on objective facts”.
“We have a “sacred duty” to find the truth.”

Facts = Perceptions: Unconscious Biases

VS.

“Rational” Biases “Irrational” Biases
Old v. Young Woman Which way does she turn?
http://nexusnovel.files.wordpress.com/2006/10/old-younglady.jpg http://www.news.com.au/dailytelegraph/story/0,22049,22535838-5012895,00.html


Can neutrals “escape” their mental models?


All conflicts resemble a piece of cheese …

Perception = subjective reality
NB. We are NOT dealing with abnormal behaviour, nor therapy.


The source of disputes …

IncoMprehension ?


A dispute is never about what it is about …

Although the
“objective”
The Facts aspects of the
The Law(s) dispute may be
The Positions apparent …

Misunderstandings
Perceptions
Emotions
Interests … the “subjective”
Concerns aspects remain to
Feelings be discovered.
Beliefs
Values
Needs
Fears


The Principles of Getting to Yes

• Separate the people from the problem
• Focus on interests v. positions (subj. needs v. strategies)
• Understand alternatives (BATNA/WATNA/PATNA)
• Brainstorm: invent possibilities without assessing them (in view
of needs)
• Seek options for mutual gain (in view of needs)
• Assess options (in view of needs)
• Try to always use objective criteria

Although the parties can often negotiate directly there is a systemic benefit to having a
third party present. The presence of and focus on a neutral tranquilizes the amygdala,
and allows the other party to listen without having to react. The neutral can also help
create “frequency-shifting” activities.


The Diagnosis
Target zone for conflict resolution
1 Disagreement
The Problem
2 Debate+polemic
The people
3 Actions,
not words
4 Images and
coalitions
WIN-WIN
5 Deliberate loss
of face
6 Management of
threat
7 Limited destr-
WIN-LOSE uctive blows
8 Fragmentation
of the enemy
9 Together into
the abyss
LOSE-LOSE
Inspired by: Tina Monberg Mediation has a special impact at Step 4
Source: F. Glasl’s “Confronting Conflict”


A Holistic Approach to Conflict Resolution
Fundamentals
VALUES NEEDS Constraints

Strategies
Focus

Options

OUTCOMES
OUTCOMES
ISSUES

Interests

Positions Alternatives


Mediation + other ADR = “full picture” dispute resolution

The Facts Arbitration or
The Law(s) litigation
The Positions

Misunderstandings +
Perceptions
Emotions
Interests Mediation
Concerns
Feelings
Beliefs
Values
=
Needs
Fears a more complete
dispute resolution
process?


Outline

Part I: Introduction to Conflict Resolution methodologies (mediation)

Part II: An attempt to look at the brain & techniques in mediation


The Triune Brain: 3 Levels of Evolution
See : Paul D. MacLean http://en.wikipedia.org/wiki/Triune_brain

Source: Source: http://www.cop.com/info/346edb.gif
http://www.solarnavigator.net/biology/biology_ima
ges/brain_animal_comparisons.jpg


Emotions: A gateway for mediators
Perception is 100% emotional (whatever we would like to believe).
Emotions reflect our needs and interests.

Source: http://cti.itc.virginia.edu/~psyc220/kalat/JK379.fig12.13.amygdala_con.jpg
http://cti.itc.virginia.edu/~psyc220/kalat/JK379.fig12.13.amygdala_con.jpg
The amygdala act as a rapid relevance detector:
They act as a switch between “reptilian” and “cortical” thinking.


Cognitive Dissonances (Leon Festinger, 1957)
If two cognitions are relevant to one another, they are either
consonant or dissonant. Two cognitions are consonant if one follows
from the other, and they are dissonant if the obverse (opposite) of one
cognition follows from the other. The existence of dissonance, being
psychologically uncomfortable, motivates the person to reduce the
dissonance and leads to avoidance of information likely to increase the
dissonance. The greater the magnitude of the dissonance, the greater
is the pressure to reduce dissonance.

Festinger’s Smoking Example: A habitual smoker who learns that
smoking is bad for health will experience dissonance, because the
knowledge that smoking is bad for health is dissonant with the
cognition that he continues to smoke. He can reduce the dissonance
by changing his behavior, that is, he could stop smoking, which would
be consonant with the cognition that smoking is bad for health.
Alternatively, the smoker could reduce dissonance by changing his
cognition about the effect of smoking on health and believe that
smoking does not have a harmful effect on health (eliminating the
dissonant cognition). He might look for positive effects of smoking and
believe that smoking reduces tension and keeps him from gaining
weight (adding consonant cognitions). Or he might believe that the http://ankb.stumbleupon.com/
risk to health from smoking is negligible compared with the danger of
automobile accidents (reducing the importance of the dissonant
cognition). In addition, he might consider the enjoyment he gets from
smoking to be a very important part of his life (increasing the
importance of consonant
cognitions).
Source: Cognitive Dissonance: Progress on a Pivotal Theory in Social Psychology
Edited by Eddie Harmon-Jones and Judson Mills


A number of factors affect Cognitive Dissonances

Source: http://chiron.valdosta.edu/mawhatley/9710/cogdiss.JPG


The Amgydala: A (metaphorical) target for mediators?
The amygdala:
• A gateway for emotions: they create
stress/fearful stimuli before the cortex has had
time to assess them.
• A storage place for autobiographical
memory (in ICMs?)
• Can dominate and prevent reasoned
cortical thinking once activated
• A relevance detector & switch: process
whether stimuli should be treated as a threat
and whether they should be reacted-to sub-
cortically (without time for thought) or in
conjunction with the cortex (especially, the
orbitofrontal cortex (“OFC”))
• A perception modulator: they can affect
how rapidly we absorb certain information
(e.g., if a possible threat is perceived) and
even filter and distort perceptions, based on
emotions and previous memories stored in the
OFC.
• Basis of the OFC-Amygdala feedback circuit:
the amygdala and OFC affect one-another
(directly & indirectly via the hypothalamus).
• This combination determines how stimuli can Source:
be received, processed and transmitted for http://www.astralvoyage.com/projection/images/amygdala2.jpg
further action by a human being.

Oxytocin & Mirror Neurons: Impact on Amygdala

In conclusion, our data reveal a pronounced
impact of oxytocin on amygdala reactivity and
brainstem interactions in humans, extending a
large body of work on neuropeptide regulation
of complex behavior to this species by
establishing an effect of oxytocin on a key
component of affective and social processing.
We hope that this work will contribute to the
development of therapeutic interventions with
oxytocin or synthetic agonists in diseases in
which amygdala dysfunction has been
implicated, including anxiety disorders,
depression, and autism.


Bringing Oxytocin Into the Room
• Using Emotions in Mediation (R. Fisher & D. Shapiro BEYOND REASON) 2006

- APPRECIATION
- AFFILIATION
- AUTONOMY
- STATUS
- ROLE

• Discuss basic values as to process

• Clearly identify and list on a flipchart the needs or interests of each party

• Establish a mutual recognition of the other party’s needs

• Demonstrate willingness to work towards “win-win” outcomes

• Must be genuine / authentic for it to resonate positively with mirror neurons and
dampen the amygdala.

K. Cloke: Conflict Revolution “Changing the way we change”
“On a purely chemical level, scientists are now aware of dozens of enzymes, hormones, neurotransmitters, and
chemical compounds that have a critical impact on the attitudes and behaviors of people undergoing change or
conflict. There is, for instance, adrenalin that triggers the “fight or flight” response; testosterone that stimulates
aggression; oxytocin that instills trust, increases loyalty, and promotes the “tend and befriend” response; estrogen that
triggers the release of oxytocin; endorphins that reinforce collaborative experiences with pleasure; dopamine that
generates a reward response and fortifies addiction; phenylethylaline that induces excitement and anticipation; and
vasopressin that encourages monogamy among males in a variety of species.
On a somewhat larger scale, there are genes and proteins that direct the manufacture of these chemicals and shape --
not only our physical appearance, personality traits, and predisposition to risk-taking -- but immune responses that
can be detected by means of smell, influencing perceptions of attractiveness and repulsion.
In addition, there are a host of other chemical compounds and prescription drugs that are capable of accentuating or
minimizing, instigating or discouraging collaborative and adversarial behaviors, both in change and conflict. For
example, scientists have traced the development of empathy in primates, including human beings, to “mirror
neurons” that fire in the brain of an observer, replicating the experience the one who is observed. Thus, when we
watch someone suffer or become frightened, similar neurons fire in our brains, reproducing those experiences.
On a more macroscopic scale, the brain is divided into two hemispheres, each of which processes conflict and change
experiences somewhat differently, emphasizing logical reasoning, linear thinking, pattern perception, and emotional
responses. The brain is subdivided into regions that directly influence conflict behaviors. There is, for example, the
ventral tegmental area that reinforces the reward circuit; the nucleus accumbens directly beneath the frontal cortex
that releases oxytocin; the hypothalamus that produces testosterone; and most importantly, the amygdala, an almond
shaped region near the brain stem that regulates our conflict and change responses, especially anger and fear.”
Conflict Revolution: Mediating Evil, War, Injustice and Terrorism, Janis Publications (2008) pp. 337-38


1. Translating between the Cortical and Reptilian Pathways
What happens if we believe our needs are threatened? Can we “shift frequencies”
by “translating” reptilian expression/perception into cortical thought/perception?
GIRAFFE WOLF
S
We respond P
differently to E
stimuli … A
K

H
Depending
E
on how we
A
hear them …
R
Source: Marshall Rosenberg: “Nonviolent Communication”


2. Reframing & Creating Choices
Frames, Biases, and Rational
Decision-Making in the Human Brain
Benedetto De Martino,* Dharshan Kumaran, Ben Seymour,
Raymond J. Dolan; Wellcome Department of Imaging
Neuroscience (UK)

Human choices are remarkably susceptible to the
manner in which options are presented. This so-
called "framing effect" represents a striking
violation of standard economic accounts of
human rationality, although its underlying
neurobiology is not understood. We found that
the framing effect was specifically associated with
amygdala activity, suggesting a key role for an
emotional system in mediating decision biases.
Moreover, across individuals, orbital and medial Functional magnetic resonance imaging (fMRI) shows
prefrontal cortex activity predicted a reduced amygdala activity that represents an emotional signal,
susceptibility to the framing effect. This finding which pushes subjects to keep sure money and gamble
highlights the importance of incorporating instead of taking a loss in gaming simulations. Activity in
emotional processes within models of human OMPFC best predicted individuals' susceptibility to the
choice and suggests how the brain may modulate framing effect. De Martino speculates that the OMPFC
the effect of these biasing influences to integrates emotional signals from the amygdala with
approximate rationality. cognitive information, such as the knowledge that both
Science 4 August 2006: Vol. 313. no. 5787, pp. 684 – 687 options are equally good. "People who are more rational
Source http://economistsview.typepad.com/economistsview/2006/08/the_framing_eff.html
don't perceive emotion less, they just regulate it better."


3. Looping -- a “frequency-shifting” technique

1. You inquire
2. The other person responds
3. You demonstrate your understanding and test it with
the other person
4. Did they confirm your understanding?
(a) If no, go back to step 1
(b) If yes, ask another question and “loop” again.

Can the disputants loop one-another’s needs?
What is the effect on the amygdala/cortical interactions?
Does this induce oxcytocin release?
Based on Robert Mnookin Beyond Winning 2000 1st ed. pp. 63-65,
and the teachings of Gary Friedman and Jack Himmelstein

4. Self-Awareness: The 3 Conversations in all Conflicts

1. What happened?
– Perceptions v. facts
– Intentions v. impacts
– Blame v. contributive responsibility

2. How did we feel?

3. Self-identity
– Am I good?
– Am I competent?
– Am I worthy?

Source: D. Stone, B. Patton & S. Heen, Difficult Conversations: How to Discuss What Matters Most


4. Non-Violent Communication Formulations

An “algorithm” for avoiding amygdala activation:

1. When the … (de-personifies)
2. I feel … (facilitates expression of emotion)
3. Because I … (provides a rational basis)
4. Would you mind … (facilitates a “no” answer)?

Source:
Marshall Rosenberg: “Nonviolent Communication” + David Bernstein


5. Using Structured Creativity: e.g., De Bono’s 6 Hats
Group dynamics may stimulate mirror neuron pathways and open new channels for thought


7. Other mediation techniques to stimulate new pathways
• The presence of the mediator in itself (w hoto address: judge but no power?)
• Systemic dynamics (e.g., constellation therapy)
• Using Narrative Theory (archetypes: victim, monster, warrior, magician)
• Letting off steam (the fulcrum model of emotion v. logic)
• Agreeing on points of disagreement (= parties looping one-another’s
disagreements)
• Aiming for a “connection of the heart” (= parties loop one-another’s needs)
• Positive energy and humour (or surprise and consensual pressure tactics)
• Practical exercises, use of games, and recreational breaks
• Appreciative-based enquiry and possible art work
• Role playing & role reversal
• Brainstorming on options for mutual gain (without evaluating)
• Limiting discussion to personal needs only (strict definition) and how to satisfy
them
• Confidence-building measures
• Extreme “out-door” exercises or team events
• Team games and joint construction projects
• NLP & mirroring back non-verbal communication
• Setting procedural steps that will guarantee outcomes (e.g., MEDALOA)

Some reactions to previous speakers‘ presentations
Per Eddie Harmon-Jones
• Focus on values and needs: The use of empathy to create sympathy early on
in mediation (e.g., mutual assessment / understanding of needs) may
“dampen” subsequent anger reactions. (But literature shows it is ability to
showe appreciation of perspectives that matters more than ability to
empathize).
• Importance of seating: being upright v. reclined chairs affects management of
anger. Reclined decreases LH PFC activation.

Per James Blair
• Pathologies are not the same as “normal” people
• Focus on perceived needs and interests
• But can mediation work with psychopaths (based on a needs-oriented
approach)? (According to M. Rosenberg, the answer seems to be “yes”)
• The addition/evolved need to bond: modulation (but not impairment) of mirror
neurons and oxytocin affecting motivation?
• Can one aim for a “Connection of the heart” – establishing mutual recognition
of needs?
• Must be genuine / authentic for it to resonate with mirror neurons


A Holistic Approach to Conflict Resolution
Fundamentals
VALUES NEEDS Constraints

Strategies
Focus

Options

OUTCOMES
OUTCOMES
ISSUES

Interests

Positions Alternatives


J. Lack The Neurophysiology Of Conflict A Mediators Perspective (Cisa, Geneva, 17.12.08)

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