In such an ethnically and culturally diverse world of today, conflict resolution and the role of mediators are getting more and more important. Though the underlying issue of a conflict may differ in so many ways, there is one common element in every conflict: a human involvement. Thereby, it is understandable that existential aspects of human condition may shed some light on dispute resolution. Undoubtedly, existential anxieties as fear of death & freedom, loneliness, time and temporality and uncertainty inevitably interfere with successful outcomes of mediation. A mediator should properly address all these existential concerns and appropriately handle heavy emotions created by them. Thus, it is important for mediator to have basic knowledge of existential aspects of conflict resolution. Likewise, Mediator’s information level on such cognitive processes as brain’s working systems and biases also play a crucial role in resolving the conflicts successfully. In this sense, practical applications of existential philosophies and some facts of cognitive sciences are the essential elements of successful mediation outcomes. A psychologically and cognitively informed mediator are much more able to solve the conflicts in a transformative manner.

From the moment an infant begins to sense the differentiation between self and others, it starts to conflict to exist in the world. Anyone with a moderate knowledge of infants based on simple observation may easily realise how powerfully it can obstinate when it is prevented from fulfilling its wishes. In fact, there is a few bigger sources of stress than a toddler who is trying to develop a sense of identity through conflicting with its basic caregivers. No matter how unimportant underlying issue is, conflicting to exist as a separate identity by drawing borders between self and the others makes sense. This biological fact brings us to another existential reality: To conflict is to exist. To put it in Rene Descartes’ s terms: I conflict therefore I am.¹

This existential struggle to exist in early years of life has a crucial role for the construction of the ‘Ego’ without which a healthy sense of self cannot be developed. Issues of self and identity raise profound and often painful questions about who we are.² Thus, it is within our deep nature to feel stress whenever we enter into a dispute; even for the most trivial ones, to experience a kind of existential anxiety with any conflict is inevitable. Taken into consideration this fact, it is easy to understand why it takes arduous work to manage and settle conflicts in a proper and successful manner. In this article, I tried to introduce some psychological and cognitive tools and discourses that will help mediator cope with difficulties arising from the existential stress of the conflict resolution.

As widely accepted by scientific circles, cognition & psychology are the direct result of biological & neurological mechanisms of the brain and they are not separate but unique entities either of which completes the other and could not exist without the other. Additionally, we are born with different propensities for aggressive behaviour depending on our gender, our genetic background, the amount of nourishment we received from placenta, and our mother’s consumption of nicotine, alcohol, and medication during pregnancy.³ Thereby, I took into account some neurobiological facts such as information processing (thinking) systems & biases that may have considerate amount of impact on the psychology of the conflicting parties, and the mediator as well, in my article.

However, this article does not cover all conventional applications of a successful mediation that has been said and written until now by almost each scientific work on the subject. Instead, it will focus on two main elements: Psychological and cognitive factors that significantly affect the success of the mediation process in a practical manner: Meeting the existential needs of disputants and keeping the parties’ cognition in the right thinking system.

It’s also worth mentioning that any organization, corporate or institution cannot foster without peace in the workplace. To create and sustain peaceful environment in and workplace heavily depends on negotiation skills and successful mediation outcomes. Thus, it is very important for the workplace mediators to bear in mind the facts and the opinions presented in this article, while they are performing their duties, in order to produce transformative relations for both inside and outside of the workplace.

Materials and Methods

In this study, I tried to explore the cognitive and psychological facts that mediator may utilise to effectively conduct the mediation process. The idea that ignited this effort was to explore the patterns of conflict and its resolution as well. In this sense, the common factor of ‘human involvement’ in conflicts led me to deep looking and scientific observation to find out some practical applications to get successful outcomes in mediation. For this aim, I used existential philosophy and its main elements such as fear of death & freedom, loneliness, time & temporality, and uncertainty. These elements help me reinterpret some practical applications of conflict resolution to reach successful outcomes in mediation. The question of ‘what the particular existential needs of conflicting parties are’ was the central theme of my work.

I also searched for the past literature thoroughly to determine the particular characteristics of decision making and thinking processes, since I think that they play crucial roles for successful outcomes in mediation. I used my previous professional experience and knowledge to scientifically show correlation between the cognitive and psychological attitudes of mediator and outcomes of mediation. As a former High Court Justice, knowing brain’s thinking systems, biases and decision-making processes eased my job. Some cognitive methods to overcome the biased thinking was not unfamiliar to me. Besides, my curiosity on transformative mediation took me to contemplate and search on psychological and cognitive factors that play important role for successful outcomes. After researching the relevant background literature thoroughly, I tried to combine all the essential elements which I found worth writing in this article to create an integrated and meaningful scientific work on the subject.

It’s also worth mentioning that any organization, corporate or institution cannot foster without peace in the workplace. To create and sustain peaceful environment in any workplace heavily depends on negotiation skills and successful mediation outcomes. Thus, it is very important for the workplace mediators to bear in mind the facts and the opinions presented in this article, while they are performing their duties, in order to produce transformative relations for both inside and outside of the workplace.

1. Meeting the Existential Needs of Disputants

Conflict takes place in a diverse world, a world of ethnic, national, geographical, cultural, economic, social, religious, and legal differences.⁴ In such a complex environment of today’s world, conflict may show up in any race, nation, ethnicity, gender, or age. Likewise, anything from the most materialistic objects to abstract honorific issues can be a source of a conflict.

Though the subject and object of a conflict may vary in countless ways, they all share one commonality: a human element. An element that inevitably brings different values, emotions, opinions, attitudes, sensitivities and even childhood traumas into the equation of dispute resolution and consecutively complicates it. In many senses, conflict and dispute arise at our boundaries and edges.⁵ Yet the psychologically conscious mediator’s main task stems from the very same contrast: to find and utilize universal patterns arising from simply ‘being a human’ that will help mediators successfully manage and resolve conflicts. This idea brings us the necessity to shed a light on to conflicts through existential lenses.

According to a widely accepted definition, existentialism may be defined as philosophical standpoint which gives priority to existence over essence.⁶ The concept of ‘universal patterns of human condition’ is intrinsically connected with the most significant feature of being a human: Existence. In other words, to conquer the ever-standing patterns of human behaviours in a conflict, one must start with each unique individual experience. In this sense, existentialism- as a philosophy of existence- which takes the idea of ‘individual personal experience’ as a central theme, may help the mediator explore and resolve the unique codes of all conflicts.

There are some certain concepts of existential literature which are adaptable to mediator’s toolbox to relevantly deal with the anxieties arising simply from basic existential concerns. The most significant ones can be counted as time & temporality, uncertainty, fear of death, need to be accepted, meaning of life and fear of freedom. These are the very existential concepts that a successful mediator must bear in mind without which a successful outcome would certainly be less likely. Looking conflict through this existential aspect, it is reasonable to claim that addressing these stressors in mediation process has a crucial importance on the likelihood of a successful mediation. However, in any mediation process, these existential concerns will show up in such a subtle form that only the mediators with appropriate toolbox may recognise and fix these problems arising from them.

The first challenge to the mediator is to overcome the parties fixated desire to litigate, and their psychological relectance to mediate.⁷ Just like the resistance to mediate, disbelief in process and mediator, forcing the other party to make concessions, struggle to prove righteousness, making unreasonable offers to humiliate other party, demanding unrealistic claims to revenge on other party may be given as some examples of these subtle forms.

Though addressing these subtle forms of existential concerns is not an easy task, an ingenious mediator may develop an appropriate remedy no matter how difficult the task is. Asking open-ended questions, active listening, summarizing, and reframing are the most renowned conventional methods to give the disputant an opportunity to ventilate on these stresses and consecutively release the tension. Existential concerns will inevitably produce certain heavy emotions which should be handled propriately to get successful outcomes. The lesson here for mediators is that suppressing emotion is not only impossible, but also counterproductive.⁸ If skilfully applied, it is no doubt that any disputant will be more eager to end the conflict in a relaxed mood, free from existential anxiety. In this sense, any proper comparison made by mediator that will show the advantages of mediation against litigation in terms of time and cost efficiency will obviously ease them on anxieties created by ‘time and temporality’ related issues. Similarly, an opening statement that clearly puts the action plan in an appropriate and detailed manner will of course help them cope with feelings of uncertainty.

Mediators differ as to the extent of the coaching that they should or should not provide to the parties.⁹ They may also have different attitudes toward the confrontation level in negotiations. In other words, while some of them let the parties freely debate in a fierce manner, others may be afraid of losing control in such hot debates. However, to satisfy parties need to vindicate, a mediator may need to flexibly allow the parties show and prove their cases rather than strictly warning the parties about being accusatory. Depending on parties’ preferences, a mediator may even let the parties stage a quasi-litigation of the case for the sake of satisfying their powerful desire to vindicate. To break the parties’ resistance to mediate by addressing these existential concerns creatively, no matter in what form-except the violence- the application takes place is crucial element of successful mediation; as a result of these methods, getting one step closer to a settlement will compensate the effort put in this manner.

Likewise, taking into consideration that choosing to settle or to litigate may invoke the fear of freedom¹⁰, mediator may emphasize parties’ self-determination power to create their destiny by being the judges of their own case. It is highly probable that to decide¹¹ on a dispute may stimulate the participants’ fear of death as well. Priming parties with benefits of conflict free, peaceful life may relevantly lessen these ultimate existential anxieties. It is also worth mentioning to the parties that, compared to the mediation, litigation is much longer and tiring process seldomly producing beneficial outcomes. In this sense, parties may also be reminded that the most precious thing one can possess, the psychic energy, shouldn’t be wasted by complex and exhausting court proceedings. There is no doubt that especially legal counsellors of the parties will benefit from mediation process by accomplishing the legal task in a more effective way with a better outcome for both themselves and their clients. All these arguments, if put in a proper and sensible manner, will serve the mediator’s aim to create ‘winwin’ solutions by helping disputants free themselves from the fear of freedom and death.

However, any mediator must bear in mind that all these above-mentioned discourses should be displayed in a manner that strictly complies with equality principle. There is no doubt that as a neutral 3 rd party, a responsible mediator should locate himself at an equal distance to either party. Private sessions are much more convenient than joint meetings for dealing with the existential concerns of one party. Yet when a mediator necessarily establishes a rapid rapport with one party in a mutual session, he must start building trust with the other party without losing time. Additionally, since trusting relationship between the parties and the mediator is the key element for both successful process and positive outcome, it is essential for the mediator not to start using discourses explained in the previous paragraphs until a proper amount of rapport and trust is established between them and the parties.

2. Keeping The Parties’ Cognition in The Right Thinking System

There are some essential information about human cognition that every each mediator should know to conduct the mediation skilfully. Primary one is that the psychological states and moods of the participants are deeply connected with the neurobiological processes that takes place within the body and particularly the roof of it; the most complex part, the brain.

Electrical and chemical signalling within and between neurons consume energy.¹² It is a widely known biological fact that our brain which constitutes 2% of the total body weight consumes 20% of the overall body energy. Besides, energy consumption takes place not only in neural information processing activities but also in maintenance activities of neural circuits even in the resting times. ‘Housekeeping’ tasks may also consume energy during signalling.¹³

This significant biological feature of human brain inevitably has massive impact on emotions, thoughts and other cognitive processes which consequently affects the mediation outcomes. Considering this biological fact, it is also understandable that the capacity of processing information efficiently and maintenance activities of the brain will be affected by the energy levels of the overall body and its commanding office, brain. In this sense, hunger is undoubtedly an important factor of brain’s energy level. Mental and physical exhaustion are also the causes of low level of glucose which is main fuel of

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the brain. Sleep has been proven to improve memory recall, regulate metabolism, and reduce mental fatigue.¹⁴ Thereby sleep deprivation will certainly affect neurons capacity of processing information since it will reduce its capacity to get rid of the wastes produced by thinking.

Another factor that may affect neural circuits’ capacity are negative emotions which reduce critical thinking capability. In a recent study among students, it is scientifically shown that critical thinking was positively associated with the achievements of the students, whereas negative emotions such as anger, anxiety, shame, boredom and hopelessness were negatively correlated with success rates.¹⁵

Human beings activate defensive systems in the face of threat¹⁶. Thereby, the other main factor which will reduce in the face of danger and threat. In such situations which are high likely to occur in conflicts, since the amygdala will take over all crucial parts of the brain and allocate them to cope with the imminent danger and threat, cognitive abilities will inevitably diminish to almost 0.

One of the most important cognitive phenomena that a mediator should always take into account is the brain’s working (thinking) systems: System 1 operates automatically and quickly with little or no effort and no sense of voluntary control. System 2 allocates attention to the effortful mental activities that demand it, including complex computations¹⁷ considered to be evolutionarily old and characterized as fast, associative, emotional, automatic and not requiring working memory. System 2 is considered to be more evolutionarily recent and characterized as slow, declarative, rational, effortful and relying on working memory.¹⁸ Though System-1 is the leading hero of the human cognition, one of the main characteristics of it is its proneness to errors. Its main function is to preserve the brain resources for survival purposes by making snap judgements and thin-slicing¹⁹ which require relatively low energy consumption compared to system 2. Thin-slicing is part of what makes the unconscious so dazzling²⁰. System 2 is the real problem solver mechanism which takes over the command upon the proposal made by system 1. Both systems are essential and equally important for the harmony and balance of the human behaviours. Truly successful decision making relies on a balance between deliberate and instinctive thinking.²¹

Such professionals whose job depends heavily on cognitive skills as judges, lawyers and in a broader sense decision makers, must accurately know and recognize the unique conditions that necessitate the use of each thinking system for better mediation outcomes. At this point, mediator’s amount of task gets doubled. Besides his own cognition, he needs to keep the track of the parties’ cognition as well in order to prevent them from getting off the road.

It is usually recommended that mediator should ensure the right conditions that naturally favour the parties’ system 2.

Though this common sense is generally true for reasonable and long-lasting outcomes, a mediator should never underestimate the power of system 1 which plays an important role even for referring the task at the hand to system 2. To give an example for such conditions, rapport creating crucial task of the mediator will be evaluated by the parties’ system 1, since the likeability of the mediator will be being judged from the very moment they start to speak by thin slicing of the parties; in other words, by thinking without thinking, the most significant feature of system 1.

Similarly, since human beings are notorious for their low accuracy to give right decisions on such extremely important subjects as life changing personal events, it may be acceptable to let the system 1 to take over the control up to a certain level to ease the task of giving the right decision whenever the logical system 2 cannot handle the situation properly. In such cases, the mediator or the parties may take the advantage of system 1’s significant function- ability to lower the blood pressure and heart rate when the right decision is made- as an indicator of having decided rightly upon the matter.

Another element of the successful mediator’s psychological toolbox is properly handling the biases. In thinking, also known as System 1 thinking, are quite useful and yield adequate answers.22 But sometimes they lead to biases which we described as systematic, predictable errors of judgement.²³ Systematic errors are known as biases, and they recur predictably in particular circumstances. ²⁴

One of the mediator’s main task is to make the parties be aware of these biases.25 A cognitively informed mediator should know and recognize all these commonly practiced biases which will divert the participants from the right track. Managing conflict is like herding cats: disputants often do not follow directions, become upset, and can change directions at unexpected times.²⁶ When faced with a bias, even simply telling the parties about the existence of such a cognitional error in a neutral manner may correct the parties’ biased thinking.

In addition to this, since the biases are the products of fast thinking-System-1, to save the party from the grasp of any bias, mediator has no choice but slow down the thinking process of the biased party. A practical tool for rendering this change is to stimulate the system-2 of the victim by asking open ended questions²⁷ which will lead them to slow down by reasonable thinking. Similarly, to properly handle strong emotions created by biased thinking, conventional wisdom of giving breaks not less than twenty minutes is a simple proper way to cool down the party and let them release themselves from the powerful grasp of stormy emotional states.

3. Conclusion

Mediation is a very complex alternative dispute resolution mechanism in which existential and cognitive issues interfere with the successful outcomes. A successful mediator who aims to settle the disputes appropriately has to be equipped with appropriate psychological and cognitive tools which are so essential to keep the parties in the right track that leads them to peaceful and transformative settlements. Otherwise, so many interfering difficulties will inevitably create either unsettlements or settlements lacking transformative and therapeutic elements. On the other hand, psychologically and cognitively informed mediator will be able to induce a perception shift by creating a new meaning. By doing so, a healing affect will occur in mediation process that makes the parties interpret the events in a more conflict-free, better way. In other words, after such a transformative experience, parties will learn to show empathy by unconditionally accepting themselves and the others in a healthy and easier manner; to put it simply, they will learn to free themselves from the burden of unnecessary conflicts and live a more satisfactory life.

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References

1 In Latin: ‘Cogito, ergo sum’ which can be translated into English as ‘I think, therefore I am’

is the first principle of the philosophy of 17th century French Philosopher, Rene Descardes .

2 Bader, E. E. The Psychology of Mediation: Issues of Self and Identity and the IDR Cycle,

Pepperdine Dispute Resolution Law Journal, Volume 10, Issue 2, 2010, p.183

3 Swab, D. We are Our Brains-From The Womb To Alzheimer’s, 1st ed.,2015, p.174, Penguin Books.

4 Randolph, P. The Psychology of Conflict,- Mediating in a Diverse World. Narrated by

Philip Franks, audiobook ed., Audible Studios for Bloomsbury, 2015. https://www.

audible.com/pd/B01B561C7M?source_code=ASSORAP0511160006&share_

location=player_overflow. 00.12.25-00.12.34

5 Mulligan, J. Process Oriented Psychology: Advanced Practices for Dispute Resolution,

Journal of Mediation and Applied Conflict Analysis, Volume 5, Issue 1, 2018, p.651.

6 More, V. Existentialism: A philosophic stand point to existence over essence. The

South Asian Academic Research Chronicle, Volume 3, Issue 1, 2016, p.14

7 Randolph, P. (n 4) 03.21.43 - 03.21.51

8 Hoffman, D. A. Wolmana D. R. The Psychology of Mediation, Cardozo Journal of

Conflict Resolution, Volume 14, 2013, p.771.

9 Randolph, P. (n 4) 03.45.28 – 03.45.34

10 Freedom is accepted to be one of the main existential anxiety sources by existential

philosophies.

11 In Latin, the suffix ‘cide’ which is found in such words as genocide, germicide,

herbicide, and homicide has the meaning to ‘kill, cut down’. As for the’ de-cide’,

it obviously has the very same etymological roots which imply ‘to kill all the other

choices by determining on one of them’. Taken into account this fact of killing all the

other choices as we decide, it is understandable that every decision- making process

-no matter how unimportant the subject is- may invoke an existential anxiety arising

from killing the other possible choices, and thus other ways of life; consequently, any

decision-making activity may create an anxiety arising from ‘fear of death’ which is

caused by ‘fear of living a wrong life’ as a result of a possible wrong decision.

12 Niven, J. E. Neuronal energy consumption: biophysics, efficiency and evolution, Current

Opinion in Neurobiology, Volume 41,2016, p.129.

13 Engl E, Attwell D. Non-signalling energy use in the brain, The Journal of

Physiology, Volume 593, Issue 16, 2015, p.3421.

14 Eugene A.R. Masiak J. The Neuroprotective Aspects of Sleep. MEDtube Sci. Volume 3, Issue 1,

2015, p.35.

15 Villavicencio, F. Critical Thinking, Negative Academic Emotions, and Achievement: A

Mediational Analysis, Asia-Pacific Education Researcher, Volume 20, Issue 1, 2011, p.122.

16 Bader, (n. 2), p.206.

17 Kahneman, D. Thinking Fast and Slow, Narrated by Patrick Egan, audiobook ed. Randolph, P.

The Psychology of Conflict,- Mediating in a Diverse World, Narated by Philip Franks, audiobook

ed., Random House Audio, 2011., https://www.audible.com/pd/B005TKKCWC?source_

code=ASSORAP0511160006&share_location=player_overflow. 00.46.29-00.46.49

18 Conway, S. B. & West, R. System-1 and System-2 realized within the Common Model

of Cognition. Conference paper: AAAI Fall Symposium, Arlington, Virginia, DOI:10.48550/

arXiv.2305.09091., 2022 p.2.

19 The term ‘thin-slicing’ refers to make a quick decision based on a very small amount of

information.

20 Gladwell, M. Blink: The Power of Thinking Without Thinking. 1st ed.,2006, p.23, Penguin

Books

21 Gladwell, M.2006, p.141.

22 Kahneman, D. Sibony, O., & Sunstein, C. R. Noise-A Flaw in Human Judgement, 1st ed. 2022, p.

161. William Collins.

23 ibid p. 161

24 Kahneman, D. (n. 17), 00.02.07 - 00.02.24.

25 The most renown biases are: Confirmation bias-to search for evidence which proves

one’s belief; fundamental attribution error- tendency to ascribe our own weaknesses to

circumstances and success to our character whereas we do exactly opposite with others

; overconfidence bias- tendency to think we are smarter, fairer, and more talented then we

are; endowment bias- seeing an owned object more valuable then when we do not own;

memory bias- tendency to recall memories that are congruent with a current emotional

state; lost aversion- feeling the pain of loss twice as powerful as pleasure of gaining; sunk

cost bias- emotional tendency to look back and recover the past sunk costs obsessively.

26 Munsinger, H. L. Philbin, D. R. Why Can’t They Settle? The Psychology of Relational Disputes,

Cordazo Journal of Conflict Resolution, Volume 18, 2016-2017, p.312

27 Nevertheless, a mediator should be carefull on asking ‘why questions’ which may

invoke a feeling of guilt.

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