THE IMPACT OF BRAIN SCIENCE ON CONFLICT AND ITS RESOLUTION

• Citation: (2019) 31 SAcLJ 547
• Published date: 01 December 2019
• Publication year: 2019
• Date: 01 December 2019

I. Introduction

1 Experienced negotiators, mediators and dispute resolvers rely heavily on a logical, rational process to resolve disputes. They also rely on their instinct, intuition and experience to assist disputants and counsel the parties involved in the conflict or dispute. A necessary part of the work of settlement and resolution is often to manage high-conflict personalities and heightened emotions, deeply held beliefs, overconfident case assessments, and other barriers to seemingly rational deals.

2 Brain science1 is a 21st-century phenomenon; it suggests insights and strategies to assist conflict resolution. It adds to the ideas gained from psychology, psychotherapy and sociology the insights from pure neuroscience, and in many cases challenges many of the myths surrounding conflict and its resolution. And it is evolving.

3 Brain science is rapidly gaining popularity and providing different and valuable insights into human behaviour. It is being used to help understand how the nervous system functions in health and

disease. Studying the brain involves investigating fundamental questions as to the nature of consciousness, or how one forms and retains memories. It is also being used to help us understand the nature of conflict and the role that the brain plays both in initiating conflict, as well as resolving it.

4 Almost all conferences and seminars now include presentations and workshops on the topic. It is being used to train negotiators and mediators (and conflict resolvers more generally); it is being used by sales and marketing organisations to inform strategy and customer communications; it is a powerful tool in the training of leaders and managers; it supports psychologists and therapists in their clinical work; and it is rapidly developing its academic focus.

5 To this latter point, a study of neuroscience papers2 showed that the number of papers and core neuroscience journals had grown significantly from 2006 to 2015. In this article, China emerged as a major neuroscience contributor, jumping from 11th place in 2006 to second place in 2015 on the list of most productive countries for neuroscience research. Over this period the number of articles and papers relating to the sides of the brain increased linearly, according to the researchers.

6 Through the advent of rapidly expanding brain science (and the technologies that underpinned it, for example, Functional Magnetic Resonance Imaging (“fMRI”) (among many)), some of the conclusions may prove in time to be somewhat erroneous, and contradictory. The science of the brain is by no means settled, but what is already known dramatically helps the understanding of how humans make decisions. It is through this exploration of decision-making that conflict resolvers can now better understand the impact of the human brain on conflict and its resolution.

7 It is also well recognised by conflict resolvers, and other ADR practitioners, that the tools at their disposal for better understanding and resolving conflict have increased in number and expanded in reach and use over the last ten years. Additionally, the term “ADR” has become increasingly mutated in its use – from its original definition as alternative dispute resolution (being an alternative to litigation and the court) to that of appropriate dispute resolution (most appropriate choice of dispute resolution process) or assisted dispute resolution (where conflict resolvers use a range of tools to assist clients reach an outcome which best meets their needs).

8 The difference between these three words “alternative”, “appropriate” and “assisted” is not just nomenclature or a play on words; it represents a shift in philosophy and approach to dispute resolution. Brain science is encouraging and supporting the rate at which this shift takes place.

9 This article aims to explore the brain science, and specifically what is known about the role of the “social brain”,3 behind success and failure in conflict resolution: good and poor outcomes. More importantly it explodes many of the myths on which many practitioners rely, and explains why rational processes do not always work. It begins with an exploration of rational processes – starting with interest-based negotiation (“IBN”) – and then takes the journey through deeper resolution processes. This journey focuses very much on the role of the “social brain” in conflict and in conflict resolution.

10 My intention has been to keep brain science simplified. All the fields associated with the science of the brain have become complicated very quickly, to the point where the “lay-person” can become lost in the myriad of terms and abbreviations used, the chemistry and physiology involved, and the language used by academics to explain brain functioning. Ultimately, practitioners want materials that they can understand, and pathways that take them from what they know to an exploration of new possibilities in their own practice – workable strategies and useful tools.

II. Conflict and resolution

11 As a starting point, we now know the following things about conflict and its resolution:

(a) It is usually a battle between reason and emotion.

(b) It results from disappointment, loss, grief, betrayal and perceived injustices.

(c) It usually has a rational element (associated with economic loss), as well as an emotional element.

(d) Emotions have a profound effect on negotiation and mediation.

(e) Reason fails to control emotion (for example, “I'm so angry I cannot think straight”).

(f) The higher the stakes, the greater the emotion, the greater the conflict.

(g) Emotions are connected to our values, beliefs, ideologies and self-concepts (hopes, dreams, and aspirations).

(h) The exploration of emotions is the key to successful resolution of conflict.

(i) Rational decision-making can only occur once emotional issues have been resolved.

Brain science helps explain why this is so, and why conflict resolution – particularly of deeply ingrained conflict – is so difficult.

A. Interest-based negotiation (IBN)

12 The starting point for most ADR practitioners has been the Harvard Negotiation Project, and the advent of IBN. This project was initiated in 1979 in the Law Faculty at Harvard University, and was led by William Ury and Roger Fisher. It is based on the idea of “principled negotiation”, and, as the authors note in their Introduction to Getting to Yes, the method “employs no tricks or posturing” (contrasting it with other popular negotiating methods which were in vogue at the time, and still are today).

13 Getting to Yes4 was first published in 1981 and has become the text for negotiation and mediation training at Harvard University, and in which the so-called “Seven Elements” were initially proposed.5

14 Getting to Yes has sold over 20 million copies worldwide and has been translated into 20 languages. It applies mutual game theory (win-win), and its central concepts have been used in negotiation and mediation training in the US, UK, Australia, New Zealand, Europe, India, Asia, Middle East and Africa. The book has had a profound effect on negotiation and mediation training and practice worldwide.

15 Most educators and trainers have the view that IBN is a rational process, and this is also reinforced by the words of the authors: “It [that is, the method] suggests that you look for mutual gains wherever

possible … and that the results should be based on some fair standards independent of the will of either side”.

16 IBN differentiates itself from the (often resorted to) process of “positional bargaining” in which each side takes a position, argues for it and ultimately makes concessions and trade-offs to reach a compromise.

17 At its centre is the idea of “interests”, and in Getting to Yes “interests” are defined as wants, goals, desires, concerns and needs. It is the meaning and use of these terms (wants, goals, desires, concerns and needs) which require further definition and explanation.

18 From a brain science perspective, IBN is a highly cognitive process that requires “separating people from the problem”6 which is a strategy for shifting the focus of parties away from their negative personal emotions connected with the matter to their possible mutual needs, and options that may satisfy them both.

19 Importantly, Fisher and Ury do acknowledge the impact of emotions on the negotiation process:7

People often come to a negotiation realising that the stakes are high and feeling threatened. Emotions on one side will generate emotions on the other. Fear may breed anger, and anger, fear. Emotions may quickly bring the negotiation to an impasse or an end.

An impasse or an end in a negotiation or mediation brought about by strong emotions doesn't necessarily have to be the case, however. Through an understanding of brain functioning, and being equipped with different techniques and tools, an experienced negotiator or mediator can either avoid the impasse or move past it, should it arise.

(1) Interests

20 Interests are said to underpin “positions” (which include rights and the law), and are often found represented as an “iceberg model”, as shown below:

21 As the iceberg model depicts, positions (that is, what is seen, heard, and demanded by parties) are above the waterline, whilst interests are found below the waterline and remain to be discovered as part of the negotiation or mediation process.

22 Further, the model also depicts that the further down (below the surface) the interest is, the more “personal” it is: that is, the more important it is for the individual and the more vigorously its satisfaction will be sought. At this level “interests” become very emotional and are shaped by a person's values, beliefs, fears and/or ideologies. This means that disputant parties are less likely to sway from their negative personal emotions connected with the matter until the emotions are adequately...