[PODCAST] Reflecting on the Emotional and Psychological Dimensions of Alternative Dispute Resolution

In this podcast, JAMS neutrals Stephen Sulmeyer, J.D., Ph.D., and Hon. Lynn Duryee (Ret.) weigh in on how to differentiate between the emotional and legal aspects of a dispute, including walking through poignant examples. Mr. Sulmeyer and Judge Duryee discuss the role of tools, such as developing negative capacity, in successfully navigating the emotional elements of a case, as well as their thoughts on recognizing and addressing defense mechanisms exhibited by parties during proceedings. They conclude with reflecting on how the dynamic of proceedings has shifted amidst the transition to mostly virtual proceedings, and what to keep in mind to support better case outcomes.

Moderator: [00:00:00] Welcome to this podcast from JAMS. In this episode, we're going to be talking about the emotional and psychological dimensions of dispute resolution, including virtual mediations and the wrinkles they've added to that landscape. With us are Stephen Sulmeyer, a lawyer, clinical psychologist and mediator, and Judge Lynn Duryee, also a mediator, who spent 21 years as a superior court judge in California.

So, thank you both for joining us. Judge Duryee, you and Stephen have been speaking and writing on the emotional and psychological dimensions of ADR for a while. How did your partnership first begin?

Judge Lynn Duryee: [00:00:44] Our partnership began about 15 years ago when I was the family law judge on the Marin County Superior Court and I realized I needed to do something to help settle the cases. I knew about settling cases, but I didn't know about settling family law cases. I don't know how it happened, but Steve showed up in my life and volunteered with me week after week, sitting down with stressed-out parents and helping them settle their family law disputes. We became good friends, and he has taught me so much about psychology and settling cases.

Moderator: [00:01:23] Stephen, in previous talks and articles, you and Judge Duryee both have discussed the differences between the legal and emotional case. Can you help us understand the difference?

Stephen Sulmeyer: [00:01:36] Sure. Well, the position that we've arrived at, really from experience, is that every dispute, and even every negotiation, has quote, unquote a legal case and an emotional case, and what we mean by that is that you can look at, let's say, a mediation that's currently in court from a legal lens. If you do it that way, you are seeing the way a judge would see it, the way a lawyer would see it, in terms of causes of action and kinds of evidence that you need to establish your case and so forth. All of that's what we call the legal case.

The emotional cases: What does the case actually mean emotionally and psychologically to the participants? We see that often these two have nothing in common. So, for example, on the surface, if you just look at the legal case, let's say a copyright infringement case, it looks like it's about a question of whether or not somebody copied somebody’s copyrighted work, but from the emotional case point of view, it may be that, in fact, they hate each other.

This actually happened in my first copyright case. This was Saul Zaentz v. John Fogerty of [the band] Creedence Clearwater Revival. John was sued for copyright infringement. It wasn't about that. It was about that Zaentz hated him and Fogerty hated Zaentz. That's really what it was about.

So we found it to be useful to make these distinctions, to differentiate the legal case from the emotional case, because they require different tools, different languages, different skills to work with and resolve each one.

Moderator: [00:03:11] Judge Duryee, how about you? How do you see this? How have you seen this difference sort of manifest itself in the real world?

Judge Lynn Duryee: [00:03:19] I had a case last week that is a perfect example of this. There was a plaintiff who was suing someone for a highly charged sexual assault. It was really clear that the evidence did not back up her allegation. So, as a judge, if I were hearing the case, I'd be thinking about evidence and what the various witnesses might be testifying about and what [the] likelihood of success might be, but that wasn't the thing that was going to settle the case. The thing that was going to settle the case was listening to what she had to say and how this event, as she perceived it, had affected her life. That was an easy thing for me to talk about: her emotions, her reactions, how she was doing now, what she was doing to recover. In that way, we were able to settle the case, whereas if I just focused on, as Steve said, the causes of action, the legal case, she would have hated me, and we would never have settled it.

Moderator: [00:04:22] Well, lawyers are not trained psychologists, but what can lawyers do to prepare their clients for these two kinds of cases, Stephen?

Stephen Sulmeyer: [00:04:32] Well, I don't think you need to be a trained psychologist in order to work with these concepts, but I do think you need to be cognizant of them. I think you need to do a little introspection to assess your own comfort level with dealing with these issues. In my experience, most lawyers are sort of overtrained with their rational minds but undertrained with their emotional minds, and tend to like to be in a position of control, in a position of being in familiar terrain, familiar territory, and don't want to tread where they feel less than fully confident.

So, to overcome that barrier, to the extent it exists, I think it's important to become familiar with some of these concepts, with the language that is necessary, the sort of logic that's necessary to deal with the emotional and psychological issues, to develop one's comfort zone so that one can work in an area with confidence.

Moderator: [00:05:33] Judge Duryee, obviously this is super important for mediators. Can you talk a little bit about that?

Judge Lynn Duryee: [00:05:38] Yes. It's important for everyone who's in the room; right? It's important for the mediator. It's important for the lawyer. And it’s important for the parties.

Just like Steve said, it's true about lawyers and judges who are acting as mediators, and it's true of lawyers who are acting as lawyers in a mediation. We're not trained as psychologists, and it makes us feel that we're not qualified. But you know what? We're all human beings who have had our experiences, and we care about the people who are coming to us in a mediation.

So, if you're a mediator, you want to welcome that emotional expression because that's probably going to be the key to settling the case. If you're the lawyer in a mediation, [it’s the] same. You're going to be with your client all day long. It's going to be a super-hard day for your clients. So be willing to be with your client through that hard day. A lot of times, participants in mediation are shocked that it's such an emotional experience for them. But of course, it's an emotional experience because something bad happened to them. It was so bad that it caused them to be involved in a lawsuit, and here, finally, is a day of resolution.

It's going to be a hard day, but hopefully the mediation process is going to help them get through to the other end and find some healing.

Moderator: [00:07:03] You both have discussed ego defenses in the past. Stephen, can you explain what they are and how they can impede a successful mediation?

Stephen Sulmeyer: [00:07:13] Sure, I can, but I think it's important to recognize that the ego defenses show up in different ways, depending on whether we're talking about the legal case or the emotional case. So let me lay a little bit of a foundation before I answer your question directly. One of the things that Lynn and I have found, again through experience, is that there is no legal solution to an emotional problem, and what we see is that people come to us in mediation with the legal case and the emotional case conflated. That in itself is an example of an ego defense, and I’ll unpack that in a moment, but the way it can show up, for example, let's say, is a divorce mediation.

I'll just give you a line that somebody actually said to me in a divorce mediation. The husband was really angry with his wife because she'd had an affair, and he said, “I'm not paying her a dime of spousal support because she had the affair.”

That is an example of the conflation of the legal and the emotional cases. He's talking about a legal issue, spousal support, but he's coming from his emotions. She doesn't deserve anything.

So I asked him a question, which was “Well, let's say, hypothetically, your wife was willing to agree to take zero in spousal support. Would you feel less betrayed?”

“Well, no, but at least then she'd know how I feel and how hurt I am.”

“Well, maybe there's a more direct way to let her know that if that's important to you. Why don't you tell her?”

So that then opens up the emotional case, and so you can see that there's some resistance there to going into that pain and that humiliation of having discovered that his wife was cheating on him. So the defense was “I'm not going to feel my feelings. I'm going to focus on the legal case.” Right?

This is sometimes referred to as an intellectual defense, which is one of the classic ego defenses. So, in order to answer your question, you have to ask yourself, “Which lens am I looking through?” Because, if people are addressing the legal case, sometimes they're employing ego defenses and sometimes they're not. Sometimes they're just analyzing the legal case in the way it needs to be [analyzed].

So I think we tend to see these ego defenses showing up when these two cases are conflated. They can show up in the following ways: One is the intellectual defense, and another one is what's called “projection.” Projection is when there's something we hate about ourselves, something we dislike about ourselves so intensive that we have cut it off. We've split it off. We've repressed it into the unconscious. The problem is that things that are repressed don't like to stay repressed. Freud called this “the return of the repressed.” So we end up seeing in others, projecting onto others, these split off parts of ourselves. So we may take a great dislike to our next-door neighbor and see them as being bullying or being insensitive when they secretly may be things we believe about ourselves. Next thing we know, we end up in a boundary dispute, and we're in court or we're in mediation. We believe these things about them, not seeing that actually we're trying to defend ourselves from what it feels like to believe this to be true about ourselves.

Judge Lynn Duryee: [00:10:42] Can I just underscore what a profound point that is that Steve is making?

That's the kind of thing that is so useful for mediators and participants in mediation to appreciate—is that it’s painful and it's hard, but it's often that thing that we're seeing in others, we're critical of it, or we're noticing it because it's something that is true within ourselves that we're not really saying.

Moderator: [00:11:10] I was going to ask you, Judge Duryee, if there are strategies available to mitigate against these defenses. I mean, what I hear both of you saying is at minimum sort of recognizing, again, the difference between the actual legal case and the emotional case.

Judge Lynn Duryee: [00:11:26] I'm going to answer this, but Steve, when I'm done, I want you to answer it because you know so much more about this than I do. But one of the things that I've noticed in myself is if I'm in a mediation and someone's upset and they say something to me like “you're not being fair” or “you've made up your mind already” or “you're being judgmental” or “you're believing what the other...”—something that challenges my neutrality and would cause me to maybe react—I have now learned that I don’t need to react, that [it’s] just my ego that's getting involved.

The thing that's important for me is just to practice awareness in that moment and to remember to keep my heart and my mind on the person who's speaking and find out why that seems important to them or how they feel like they've been wronged, rather than just reacting because my ego has been hurt and I feel I need to defend myself.

Steve, what about you? How do you answer this question?

Stephen Sulmeyer: [00:12:24] Well, I am following right on what you're saying, Lynn. There's a lot of sort of technical ego defenses that would take some unpacking, like projective identification and transference. I don't want to take the time to get into those, but I think Lynn hit it on the head when she was saying that the defenses are to protect ourselves from feeling bad about ourselves feeling painful emotions, basically feeling anything that we believe we can't tolerate.

That's really the common denominator, I think, with these various ego defenses. So, framed that way, I think it makes it a lot easier to see that what's going on is people are scared. They're afraid that they're going to feel something they can't handle. Typically, there's two sort of broad categories of these kinds of defenses, and one is “I'm not going to feel, so I'm just going to just be in my head, just live from my neck up.”

The other way is what I sort of call the “hysterical defense,” which is “I'm not going to feel my feelings by pretending to feel them. So I might seem to be very feeling, very emotional and loud and expressive, and in fact, I'm not feeling my feelings at all.” It can look like it to the untrained eye, but bottom line is, people don't want to be vulnerable.

They don't want to feel things they can't tolerate, and, in a sense, if they do, they kind of collapse in a sort of a regressed way to how they were when they were two or three years old and were overwhelmed by feelings they didn't have the capacity to tolerate. That's really what they're trying to do, shore themselves up, strengthen their ego so that they can sort of hold it together and not disintegrate into their worst nightmare of who they secretly believe they are.

Moderator: [00:14:17] You both have stressed the need for lawyers and their clients to develop their negative capacity. So, first of all, let's define that. What is negative capacity, Stephen?

Stephen Sulmeyer: [00:14:30] Broadly defined, it's the ability to tolerate the intolerable. So I was just talking about how, when we're very little, we are exposed to feelings that we cannot tolerate. Babies don't have that capacity. Toddlers don't have that capacity. So we develop various kinds of defenses and filters so that we don't have to fully feel those feelings.

Negative capacity is something we have to develop so that when we are exposed to these feelings—because, as Lynn was pointing out, like the sexual assault case, people actually are feeling some intense feelings, fully or partially. We're going to resonate with that. We're in the same interpersonal field, and we want to resonate. We want to connect empathically, but if it triggers our own defenses, our own fears about what we can tolerate, we're not going to really be able to attune with that person. We're not going to really be able to be in empathic contact with that person. So it really behooves us to develop the internal capacity to stay present and to stay open to whatever's arising in us. So what we call “negative capacity” really comes from John Keats’ "Ode on a Grecian Urn." He called it “negative capability,” and really there are several components to it.

One is mindfulness. You have to be able to be aware of what's arising in you, and you have to be aware of how that's impacting you. Secondly, you have to develop what Eric Voegelin called “therapeutic distance,” which is the ability to maintain a certain amount of reflective distance—I think was the term he used, reflective distance—which is the ability to reflect on what is arising in you. So there's a certain almost subject-object distance, and that provides a little sense of a buffer.

Judge Lynn Duryee: [00:16:25] So sometimes in mediation, people are upset. Sometimes people will start yelling, and it can be very emotional. If you're a lawyer or a mediator in that room, you might think “I have to get out of here. This is awful. I want to leave” or “I want to yell back.” It kind of triggers that fight or flight thing.

Steve is the one who taught me about expanding your negative capacity. I, often in a mediation, will have a Post-it in front of me that says “expand your negative capacity.” For me, what it means is reminding myself that I can handle this, that I'm big enough to be able to handle someone else's terrible, emotional expression, that I do not need to react to it.

Steve, I remember the exact moment when you taught this to me, and it was during a family law mediation with a know-it-all mediator. Do you remember that? And what you said to me then?

Stephen Sulmeyer: [00:17:26] Vaguely, but go on.

Judge Lynn Duryee: [00:17:28] We had a very confusing case, and there were two sides, and they were diametrically opposed, and we took a recess, and the other mediator says, “I think I've got it all figured out.”

Do you remember what you said?

Stephen Sulmeyer: [00:17:42] I remember what he said. He said, “She's lying,” and then you turned to me and said, “Well, Steve, what do you think? And I said, “I'm confused.”

Judge Lynn Duryee: [00:17:51] That's negative capacity; right? [It’s] being able to not feel like you need to know all the answers, that you can be confused, and that makes you open and curious to hear more instead of frustrated that you're trying to get a difference, trying to get a certain solution based on what you think the facts are.

Moderator: [00:18:10] I was about to ask, as a mediator, can you help set the stage for more negative capacity in the room? Do you feel like you can have an impact on other people's negative capacity?

Judge Lynn Duryee: [00:18:22] Totally. Because one of the things that you're doing as a mediator is repackaging something you're hearing in one room so that it can be received in a better light when you explain in the other room. For example, in this room, you think that you're acting in good faith and the other side is being unreasonable because your offer is good and you think the demand is too high, but you know what's crazy is in the other room they think exactly the same thing. So we're two sides of the same coin.

Moderator: [00:18:59] I want to touch on virtual mediations and their impact on the emotional and psychological challenges of ADR. Stephen, what have you noticed over the last couple of years, when virtual mediations have really become the norm?

Stephen Sulmeyer: [00:19:18] I haven't seen that much of a difference. I certainly prefer in-person mediations. I'm a big fan of bringing people together in joint session. It's certainly a lot easier in person to read body language and really just to feel into the interpersonal field with what's happening, but we managed to do fairly well in the virtual realm, and we still are faced with the same kinds of challenges.

We've just been speaking about like why does it matter—whether you're [meeting] virtually or not—why does it matter if you make this distinction between the legal case and emotional case? Really the bottom-line reason I think is because that's what people really care about. They care about the emotions first. They care about the emotional case first. Can I give you an example of that?

Moderator: [00:20:06] Absolutely.

Stephen Sulmeyer: [00:20:07] So this was a family law case—another one—and the husband was living in the family residence. The wife had moved out, and when we pointed out “Hey, you cannot afford”—we had a financial neutral—“you can't afford to stay in this house. You couldn't afford it before when you were one family. Now that you're split into two, you certainly can't afford it.” And the husband's reaction was “I am not moving out of the house. Don't mention it again.”

“But, well, take a look at this spreadsheet.”

“I'm not talking about the house. Don't mention it again.”

And, actually, it was the financial neutral who said, “Help me understand what's important to you about staying in the house.”

He said, “Well, that's where she's going to come back to me.”

So you could hear a pin drop in that room.

So the wife was very compassionate and kind and acknowledged that and said, “You know, with all the compassion in my heart, that's not what's happening. I'm not coming back.”

So he was finally able to overcome emotional ego defense and allow himself to grieve, and he shed tears, but that's what he was defending against. Then, once they'd had that missing conversation and he could actually allow himself to grieve, that was it. That was the resolution of the emotional case.

Then he took a look at the spreadsheet and said, “Oh my god. I can't afford to stay in this house. We've got to sell it.”

Moderator: [00:21:34] He had to first settle the emotional case. Judge Duryee, how about you? Have you noticed any changes to the emotional and psychological dimensions of cases in the virtual sessions?

Judge Lynn Duryee: [00:21:50] I have. In addition to what Steve has talked about, as we all know, Zoom—or virtual mediations have pluses and minuses. The pluses are sometimes people in their own homes—you know, when their cats are there and they are doing the laundry at the break and kids are running around in the background—feel more comfortable, and you can sometimes settle into the mediation faster, but sometimes as a mediator, you have to work harder because you're not in the same room. They can't feel the love that you're trying to convey to them. Sometimes their video is off or Wi-Fi is terrible. So a lot of times I can't see them, but I know that they can see me. So I am working harder to make sure that I'm looking into the camera, and I'm making sure that I'm projecting myself, even though I can't—I'm not getting the feeling back from them. I'm trying harder to show that I'm there for them and that I care about them.

Then [there are] other things too, [like] that we're so used to sitting in front of the computer all day, but that's not the same as living your life. So just being mindful, like let's all take 10 minutes and go outside and get some fresh air because we're not in a room together and we need to see some natural light. Little things like that have made a difference.

Moderator: [00:23:14] I suppose it's harder to make a connection with certain parties, and I take it that strategies for building sort of the emotional resilience that we've been talking about would apply to any kind of mediation, whether it's virtual or in person.

Judge Lynn Duryee: [00:23:28] Yes, but like, for example, there’s such a thing as a “Zoom room,” where everyone's in a room and it looks like you're looking at them from the end of a conference room table, quite different from looking at them just from the shoulders up. So you have to find a way to be able to connect in that room when I feel like you're sort of shouting at them.

Moderator: [00:23:49] For sure, a major challenge indeed. I know there is a lot more to discuss, but let's leave it there. I want to thank our guests, Stephen Sulmeyer and Judge Lynn Duryee, for a fascinating conversation. You've been listening to a podcast from JAMS, the world's largest private alternative dispute resolution provider.

Our guests have been Stephen Sulmeyer and Judge Lynn Duryee. For more information about JAMS, please visit www.jamsadr.com. Thank you for listening to this podcast from JAMS.