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=IGQmdo
K_ZfY (© Daniel Simons, used with permission)

 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

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, 2013
http://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:

 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

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