Mediation conflict: What would Freud do?

Sigmund Freud believed that unrecognized and unresolved conflicts were the basis for neurotic behavior and unhappiness. In his early years, Freud thought that a three month course of analysis, during which the unconscious conflicts could be brought to the patient's consciousness, would enable the patient to resolve the conflicts and cure the neurosis. Modern analysts believe that understanding conflict is only part of a larger and longer process, which involves coming to terms with the existence and impact of the conflicts, in essence, in assimilating the conflicts in addition to merely understanding them, a process that lessens anxiety and stabilizes the patient.

To see how this might work, consider a hypothetical patient with a hyper-critical sibling. On the one hand, the patient loves the sibling - on the other hand, the patient hates the sibling because the patient is tired of the unremitting criticism. However, our hypothetical patient does not recognize that the sibling was hyper-critical. This unrecognized and poorly understood conflict makes the patient unhappy. Finally, after much analysis, the patient understands that while he or she loves the sibling, the sibling has been hyper-critical. The patient also understands how the criticism has damaged his or her own emotional development. Freud thought that this enlightenment, this understanding, would make the patient feel better. Interestingly, if Freud was right, the patient would become happier even though the patient had endured years of criticism by the parent or sibling - in other words, although the "resolution" of the issue was far from perfect, the end result is that the patient still feels happier because the patient feels better now than he or she had felt in the past. The patient's greater understanding of the relationship also allows the patient to separate from the sibling in a healthier way.

What's the connection between Freud's insight into the relationship between conflict and happiness and the mediation process? I believe that there is an important connection and it may require re-thinking something very basic about the mediation process. And by the way, lawyers are more closely connected to Freud than you might think. One of the most prominent members of Freud's inner circle was the German lawyer Hanns Sachs. Freud trained Sachs to analyze patients and Sachs later became a full-time analyst in the United States and analyzed many people who became famous analysts in their own right.

Let's start with the fact that the resolution of nearly all litigated matters occurs as a result of some form of distributive bargaining - a process that determines how much one party will pay to the other party. Although distributive bargaining settles cases, it's inherently imperfect because plaintiffs are rarely made whole and defendants usually feel that they have paid more than they would have otherwise preferred. This is the well-known "everybody's a little unhappy" type of settlement which is the traditional hallmark of the mediation process. In this traditional paradigm, it's easy to see that the primary goal of distributive bargaining is simply a resolution of the monetary aspect of the dispute. Satisfaction or happiness is only a secondary concern. Thus, although in a monetary settlement the goal of resolving the dispute is reached, the parties are rarely happy with the amount of money that they received or what it cost them to settle the case.

There is, however, an additional "layer" to the dispute that does not involve money. In many litigated disputes, even those involving sophisticated business people or large commercial entities with experienced lawyers, where you might assume that it's all "strictly business," there is considerable personal animosity, hostility and anger. Because the distributive bargaining process is not intended to address those emotional concerns, the parties may reach a monetary settlement but remain hostile or angry for reasons having nothing to do with the monetary compromise.

In a great number of cases, however, even though the parties have compromised on the money issues and even though there has been little focus on the emotional aspects of the dispute, at the end of the mediation the parties may warmly congratulate one another on achieving the settlement, effusively compliment one another on what a good job everyone did and even embrace, hug or even kiss one another. This happened recently at the end of an exceptionally contentious mediation where the parties made no secret of their hatred, and the lawyers disagreed on every substantive and procedural aspect of the case and fought like tigers about every single thing both inside and outside of the mediation. The case settled by the plaintiff making a substantial compromise downward and the defendant making an equally substantial compromise upward, but with no real discussion about the contentiousness of all concerned. Astonishingly, when all the parties and lawyers ended up in the same room to receive the signed copies of the memorandum of settlement, there was a spontaneous outpouring of affection and good will - the two lead lawyers embraced (although admittedly it was a "man-hug" where each lawyer pounded the other on the back with a clenched fist). To everyone's amazement, the lead parties did likewise.

How to explain this behavior? I think that the answer may be found in Freud's theory about resolving conflict.

It is self-evident that every lawsuit involves conflict. The plaintiff believes that he or she has been wronged, and that the defendant refuses to recognize or admit the wrongdoing and pay for it. The defense believes that either no wrongdoing has occurred or that the price for same should be lower than what the plaintiff seeks. There are both legal and factual conflicts. It is stressful and difficult for both sides as they wend their way through a legal system that is complicated, time-consuming and expensive. In a way, the settlement does nothing to resolve the conflict, at least "officially." There was no finding that the plaintiff was "right" or the defendant was "wrong." There was no apology by the defendant. There was, of course, a payment of money, which might be perceived as an acknowledgment of wrongdoing, perhaps leading to a feeling of vindication on the part of the plaintiff. But there was a settlement. The battle was over and the parties were free to pursue other, more productive pursuits.

I think that the outpouring of goodwill and real happiness that I saw at the end of the mediation described above was the result of the simple act of ending the conflict. Based on the behavior of the parties, even though the settlement may have been imperfect with respect to the monetary issues, and even though the settlement may have been imperfect because it did not really address, much less resolve, the emotional issues, the mere fact that the conflict ended was sufficient to make the parties happy. The realization that each party was better off having resolved the conflict also allowed the parties to separate - to end their relationship of conflict. If Freud was correct about the power of conflict to make people unhappy, it makes sense that resolving conflict, even though the resolution may be imperfect, is the reason why people feel happy.

As a result of the fact that nearly all mediators of litigated matters concentrate on distributive bargaining, mediators, and the parties in mediation, measure "success" in mediation by a settlement that reflects an agreed-upon dollar figure. It's therefore not surprising that the parties spend little time on anything but the effort to reach a mutually acceptable number. But perhaps there is another measure of success that complements the dollar settlement - the emotional benefit that resolution confers upon the parties by simply ending conflict. Perhaps, and this is the shift of the paradigm, mediators and lawyers should spend more time and effort on this measure of success. The very real and valuable fact that ending conflict makes people feel better. People often (usually to the annoyance of mediators) use the phrase "work your magic." Perhaps this transformative effect of the mediation process, making people happy by resolving conflict, is the real magic of the mediation process.