Emotion and Decision Making in Mediation - A Cognitive Approach

Practical Applications of Recent Developments in Neuroscience

Jeffrey A. Nelson, Esq.

A person’s thoughts and actions can be described in terms of:

1. Mind (internally-focused, subjective) – One’s inner experiences, thoughts, feelings, and intentions. The “self.”

2. Behavior (externally-focused, objective) – One’s outwardly observable actions: e.g., movements, speech, facial expressions.

3. Brain – Physical link between Mind and Behavior. Not outwardly observable, but brain activity is scientifically measurable. Brain activity is an expression of the Mind, which in turn causes* Behavior (also, bi-directional pathways).

© Jeffrey A. Nelson

Cognitive neuroscience relies on the basic assumption that strong, repeatable correlations between specific brain activity and specific behavior/experience are evidence that the brain activity causes (or is caused by) the behavior/experience. Uses terms like “neural substrates” and “correlates,” etc. Skeptics: “Well, whatever. My mantra is ‘correlation is not

causation!’”

Cognitive Scientists: “True, but:

Every science requires some degree of inference from hypothesis to conclusion, from cause to effect!”


Functional Magnetic Resonance Imaging (fMRI) –Powerful magnets and sensors produce nearly real-time, detailed images of brain activity by tracking oxygenated blood profusion (higher concentration of blood in an area = “activation” of that area of the brain). Very high spatial resolution.

Electroencephalogram (EEG) – Electrodes covering the surface of the scalp measure changes in electrical activity (neurons firing) in the brain. These changes are called event related potentials (ERP). Very high temporal resolution.


1) What you see is not always what you get: Things are usually not how they appear.

2) Emotion and Decision Making Positive emotion is difficult to achieve and short-lasting Negative emotion is easy to achieve and long-lasting

Perceived threat or pain by a party during mediation has a quicker, bigger and longer lasting impact than a reward

3) Economic model of ideal “rationality” vs. reality (automatic and controlled processing) in decision making E.g., An option is less desirable once it is on the table

Realistically rational decisions in mediation require intensive attentional resources, higher cortical function, and active cognitive effort.


http://www.youtube.com/watch?v=IGQmdoK_ZfY (© Daniel Simons, used with permission)


http://www.youtube.com/watch?v=IGQmdoK_ZfY

People are biased to attend to, and believe, verbal over non-verbal messages – this requires higher-level processing but is dangerous.

To know what someone MEANS in their communication, must consider both non-verbal cues AND context.

Words LIE and cause MISINTERPRETATION; body language, voice intonation, and facial expressions DO NOT!! Communication in context!

Face-to-face > phone call > email

Active looking and listening is critical to empathy.


Zaki, et al., Journal of Neuroscience, June 23, 2010© Jeffrey A. Nelson

Zaki, et al., Journal of Neuroscience, June 23, 2010 STS = Superior temporal sulcus © Jeffrey A. Nelson

Zaki, et al., Journal of Neuroscience, June 23, 2010 © Jeffrey A. Nelson

Social decision making is context-dependent

It requires cognitive resources (i.e., attention, of which we have a limited supply, especially when tired or upset)

There is no one “decision making area” of the brain

Decisions emerge from distributed processes; specific brain areas and/or structures play key roles


Six basic emotions are universally expressed AND recognized across cultures (Images from Eckman):


Specific combinations of facial muscles (Action Units) flex (activate) to form the expression of each emotion

Measured electronically and coded in the Facial Action Coding System (FACS), giving each emotion a unique “signature”

Electromyography(EMG) is used to

measure facial muscle group activation


• Fear

• Happiness


The face presents rich social cues: it is a window into others’ emotional states – resist the verbal context bias!

WORDS LIE; FACES DON’T! Authentic emotional expressions are automatic,

unconscious, and uncontrollable. SO: Whether facilitating, counseling, or negotiating, pay

attention to facial expressions to gauge parties’ emotions and respond appropriately


Features associated with X- and C-systems: reflexive (automatic) and reflective (controlled) processes. Liebermann, Social

Cognitive Neuroscience, 2007 © Jeffrey A. Nelson

Part of the reflexive (low-resource) “X-system”

Automatically processes emotional cues

Originates feelings of “reward”

Critical structure for evaluating emotion/social status in others...


Cognitive neuroscience has shed light on:

(a) understanding others attending to nonverbal cues like facial expressions;

utilizing context but avoiding context bias - empathy,

(b) understanding oneself required to find similarities, which help concessions,

(c) controlling oneself executive control (PFC) vs. automatic process (limbic

system), and

(d) the processes that occur at the interface of self and others (social cognition).


Implicit, reflexive, on-line mental mechanisms are employed in understanding social situations (“X-system”)....

J. De Jong, et al., May, 2013http://dx.doi.org/10.1016/j.schres.2013.02.034

...but in order to employ the higher level processing of the “C-system” to make rational decisions one must:


http://dx.doi.org/10.1016/j.schres.2013.02.034

http://dx.doi.org/10.1016/j.schres.2013.02.034

Facial Action Coding System (1977) by P. Ekman, W. V. Friesen P. Ekman, Universals and cultural differences in facial expressions of emotion, Nebraska

symposium on motivation, 1971 Tversky and Kahneman, The Framing of Decisions and the Psychology of Choice, Science, 1981 Bazerman and Samuelson, I Won the Auction But Don't Want the Prize, Journal of Conflict

Resolution, 1983 Lieberman, Social Cognitive Neuroscience: A Review of Core Processes, Social Cognitive

Neuroscience, 2007 Lieberman, The X- and C- Systems: The Neural Basis of Automatic and Controlled Cognition, 2007 Van den Bos, et al., The Role of the Ventral Medial Prefrontal Cortex in Social Decision Making,

The Journal of Neuroscience, 2009 De Martinoa, et al., Amygdala damage eliminates monetary loss aversion, PNAS, 2010 Danziger et al., Can We Share a Pain We Never Felt? Neural Correlates of Empathy in Patients with

Congenital Insensitivity to Pain, Neuron, 2009 Zaki, et al., Social Cognitive Conflict Resolution: Contributions of Domain-General and Domain-

Specific Neural Systems, Journal of Neuroscience, 2010 Bogacz and Lack, The social brain during mediation: a tentative model, 2010 Birke, Neuroscience and Settlement: An Examination of Scientific Innovations and Practical

Applications, 25 Ohio St. J. on Disp. Resol. 478, 2010 Alexander, Confrontation or conciliation: does science have the answer?, International Institute for

Conflict Engagement and Resolution, 2012 Heeden, Remodeling the Multi-Door Courthouse To "Fit the Forum to the Folks": How Screening

and Preparation Will Enhance ADR, Marquette Law Review, Spring 2012 Lucas et al., Why some faces won’t be remembered: brain potentials illuminate successful versus

unsuccessful encoding for same-race and other-race faces, Frontiers in Human Neuroscience, 2011 M. Stollstorff et al., Rationality and emotionality: serotonin transporter genotype influences

reasoning bias, Social Cognitive and Affective Neuroscience, 2012


Emotion and Decision Making in Mediation - A Cognitive Approach

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