Research & Policy House | January 2021 | Emotions and Digital Mediation 1
Emotions and Digital Mediation
Brendan Pitman*
Mediation literature acknowledges the role of emotions in conflict.1 In recent years, progress has been made towards developing strategies for mediators to better manage emotions during the mediation process.2 These strategies have generally assumed that disputants are present within the same room.3 As technology continues to flood our daily social and business interactions, coupled with the catalytic role of COVID-19, it is no surprise that greater interest for mediation via digital technologies has surfaced. It is argued that the currently implemented strategies for managing emotions in mediation require adjustment in order to effectively manage emotions of disputants via digital technology. This paper is divided into four parts. Part I briefly looks at the historical development of mediation and objects of the facilitative model. Part II is devoted to examining prominent psychological and philosophical emotion theories and conflict theories. Part III applies mediation and emotion theory to two real life case studies. Part IV critically evaluates the adequacy of currently implemented strategies for managing emotions in mediation to deal with the challenges of digital technology, and offers suggestions
for improvement.

Part I
Historical context
Mediation is no longer a fringe activity. It is becoming common place in the legal environment both in Australia and internationally.4 This may be for reasons including the desired flexibility of reaching a voluntary agreement, the improvement to the process of conflict interaction, and the confidential nature of mediated disputes.5 Appreciating the historical development of mediation can assist in understanding the underlying reasons for the way mediation is currently practiced. Mediation has typically developed as a result of a * LLM (UQ), LLB(Hons), BBusMan (HR) (University of Queensland), GDLP (Queensland University of Technology), Sessional Teaching Fellow – Law Faculty (Bond University), Senior Associate (Small Myers Hughes Lawyers). I thank Bruce Mortimer, Garth Pitman and Patrick Cavanagh for their valuable insight and rigorous feedback on this paper.

1 Erin Ryan, ‘The Discourse Beneath: Emotional Epistemology in Legal Deliberation and Negotiation’ (2005) 10
Harvard Negotiation Law Review 231;
2 Kathy Douglas, Clare Coburn, ‘Attitude and Response to Emotion in Dispute Resolution: The Experience of
Mediators’ (2014) 16 Flinders Law Journal 111.
3 Craig Smith, ‘Applying findings from neuroscience to inform and enhance mediator sills’ (2015) 26 Australian
Dispute Resolution Journal 249.
4 Department of Labour, ‘Current Trends, Process and Practice in Mediation and Alternative Dispute Reslolution’
(New Zealand, 2008) 82.
5 Bernard Mayer, The Dynamics of Conflict Resolution: A Practitioner’s Guide (Jossey–Bass, 2000) 198-199.
Research & Policy House | January 2021 | Emotions and Digital Mediation 2
combination of political, social and cultural movements.6 Historically, there has been a common
understanding that disputes can be resolved by an appeal to higher ideals rather than a descent to
legalistic terms that may not practically favour anyone (other than the knowledge that someone was
‘right’).7 These higher ideals naturally gravitate towards emotional values and ‘soft’ ways of viewing
resolution of a dispute. With this historical context, it is little surprise that the facilitative model of
mediation has dominated mediation practice.

Facilitative Mediation
Mediation literature has, until recent years, separated itself from emotion theories. Mediation practice has been somewhat suspicious of emotion as the literature has often held to a dualism of rationality and emotion. Interestingly, Laurence Boulle suggests that the object of the facilitative model is to address conflict at both emotional and cognitive levels, and to improve the parties’ emotional condition by moving them from anger to acceptance.8 This view expressly acknowledges emotions as integral to the objective of the facilitative model and presumably envisages a condition where emotions and rationality can coexist. Overtly recognising and regulating emotion in mediation does not lessen the need for rational thought but rather demands that the two systems be balanced.9 The Law Council of Australia developed the Ethical Guidelines for Mediators premised on the facilitative
model of mediation.10 Central to these guidelines is the understanding that if a mediator facilitates communication and increases understanding between disputants, that the parties are likely to reach their own agreement. This theory however is based on the assumption that the parties to a dispute are rational. Realistically, this is not always the case. The irony with this assumption is that mediators, as agents of reality, would do well to reality test the assumptions that underpin their own foundational model. With the increased recognition of the primacy of emotions in conflict and the effect that emotions have on a disputant’s ability to problem solve, 11 focus has shifted toward developing strategies to manage emotions. Despite these comprehensive guidelines, no mention is made of the role of emotions in the mediation process and the possible effect of emotions on mediation via digital technologies.12 Central to the facilitative model is an understanding that minimal (if any) intervention can be made by a mediator to
manoeuvre the disputants toward a resolution. A mediator’s role is to do no more than facilitate 6 Jerome T Barrett, Joseph P Barret, A History of Alternative Dispute Resolution: The Story of a Political, Cultural and Social Movement (Jossey-Bass, 2004) xiii. See also, Laurence Boulle, ‘A History of Alternative Dispute Resolution’ (2005)
7(7) ADR Bulletin 130.
7 Ibid.
8 Laurence Boulle, Mediation: Principles, Process, Practice (LexisNexis Butterworths, 3rd ed, 2011) 84.
9 Deanna Fogg, ‘Emotions in Negotiation’ (2007) 18 Australian Dispute Resolution Journal 186, 193; James Gross,
‘Emotion regulation: Affective, cognitive and social consequences’ (2002) 39 Psychophysiology 281.
10 Law Council of Australia, Ethical Guidelines for Mediators (2011); Mary Walker, ‘Guidelines for lawyers in mediation’
(2007) 9(8) ADR Bulletin.
11 Nisha Nair, ‘Towards understanding the role of emotions in conflict: a review and future directions’ (2008) 19(4)
International Journal of Conflict Management 359.
12 Law Council of Australia, above n 10.
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negotiation and not attempt to impose a settlement.13 The balance between facilitation and intervention however is made more difficult for mediators that encounter intense emotions. Emotions are very difficult to divorce from communication. At its highest, emotions can be said to be the hinge to the door of sustainable resolution, and the foundation of all conflict.14 It is suggested therefore that communication cannot be truly facilitated if that facilitator does not manage disputants’ emotions. That is because the very communication which a mediation seeks to facilitate is tangled with emotional ties that are commonly understood to both cause disputants to be irrational and shape how the communication is both sent and received. Mediators may be inclined to ‘tip toe’ through emotional complexities during the mediation process. These emotional complexities are uncertain and expose a mediator to risks of compromising their impartiality. It is suggested that while a facilitative mediator should not impose a settlement on disputants, that is not to say that a mediator may not intervene in a dispute to gain an understanding of the emotional drivers of the disputants.15 There is however a delicate balance between granting legitimacy to disputants’
emotional expression and losing impartiality. Regardless of the model of mediation, a mediator must at all times maintain impartiality among the disputants and maintain confidentiality.16

Part II
Emotions play an important role in both the creation, sustaining and resolution of conflict. Key emotion and conflict theories will be examined to understand how these theories may be applied to assist in the mediating of disputes via digital technology.

Emotion Theories
Emotion theories precede on the assumption that people are never without emotions.17 This is especially true when people are in conflict. Conflict is a playground for emotions that, when managed properly, can improve the communication and relationship between parties.18 While psychological and philosophical literature are replete with theories of emotions,19 minimal interdisciplinary work has been explored.20 Among these theories however, is no unitary approach to what counts as emotion and how emotion is developed. The following brief examination of key theories 13 Studer v Boettcher [2000] NSWCA 263, [59].
14 Samantha Hardy, ‘Online Mediation: Internet Dispute Resolution’ (1998) 9 Australian Dispute Resolution Journal 224.
15 Mayer, above n 1, 10.
16 Boulle, above n 5, 339.
17 Freddie Strasser and Paul Randolph, Mediation: A psychological insight into Conflict Resolution (Cromwell Press Ltd,
2004) 147.
18 Laurence Boulle and Nadja Alexander, Mediation Skills and Techniques (LexisNexis Butterworths, 2nd ed, 2012) 10.
19 Agnes Moors, ‘Theories of emotion causation: A review’ (2009) 23(4) Cognition and Emotion 625.
20 Louis Charland, ‘Reconciling Cognitive and Perceptual Theories of Emotion: A Representational Proposal’ (1997)
64(4) Philosophy of Science 555, 555-556.
Research & Policy House | January 2021 | Emotions and Digital Mediation 4 of emotion will set the foundation for a discussion of emotion theories applied to the mediation process via digital technologies. William James theory
In 1884, William James’ theory of emotion challenged the common understanding at that time regarding the cause of emotion.21 James’ theory has two primary premises. First, that emotion is the result of a bodily response to a perceived event.22 Put another way, if a person sees a big, grizzly bear, that person may run. It is that person’s feeling about the bodily response of running which causes an emotion. Second, that this perceived event may be no more than an anticipation of the event.23 That is, an event need not be actually experienced to cause an emotion. It can be the very thought of the event (whether it comes to fruition or not) and the assumptions behind what the outcome of that event means, that can cause emotion. While this theory has been widely critiqued,24 it nevertheless adds valuable insight to the experience of a disputant in a mediation process. A mediator can generally control the events that occur during the mediation process. This can be achieved by a mediator’s opening statement which establishes the rules for the mediation, or by setting up the mediation room in a non-adversarial layout (for example, a circle or “round table” layout). It can also be achieved by removing disputants into private sessions if there is a circumstance in joint session that a mediator perceives would hinder the progress of the negotiations. However, even after a mediator has done all they can to manage the environment, a simple glance or gesture by a disputant can derail the progress of the mediation significantly. While text based digital technologies discussed below do have limitations, digital technologies may limit the variables that would otherwise be present in a face to face interaction. However, the degree of disconnect inherent in digital technologies would make any repair to an emotional situation much more difficult than in a face to face interaction. With our familiarity and acquaintance with digital technology
increasing, it is plausible that potential disputants’ perception of conflict interaction via digital technologies may be better than in face to face environments. Appraisal theories According to appraisal theories, the relevance of the perceived event to that person’s goals is key to determining the bodily response of that person and the intensity of the emotion caused.25 Applying appraisal theory to the previous example, if a person perceives a big, grizzly bear, that in and of itself may not cause an emotion. However, if that bear advances towards that person and physical safety is relevant to that person, then an emotion is caused. The intensity of that emotion will vary depending on the
21 William James, ‘What is an Emotion?’ (1884) 9(34) Mind 188.
22 Ibid 189-190.
23 Ibid 192.
24 Moors, above n 19, 636.
25 Moors, above n 19, 639-641.

Research & Policy House | January 2021 | Emotions and Digital Mediation 5 degree of relevance that the person puts on physical safety. Thus, appraisal theories assist to explain why two people react differently to the same situation, and why that reaction may be to different degrees.26 Among the family of appraisal theorists, the theory put forward by Richard Lazarus is commonly discussed.27 At its core, Lazarus’ theory is that emotion is caused by a cognitive process to a perceived event, and prior to a person’s bodily response. That is, the emotion both precedes and informs a person’s bodily response. While the process order of appraisal theories is opposed to James’ theory, the theories
align in terms of the individual parts of that same process. The critical issue raised by appraisal theories is how can a mediator know the relevance of each disputant’s goals and, if known, manage the agenda of a mediation. This theory is true in a standard dispute between builder and owner, where the builder elevates the priority of receiving payment and the owner elevates the priority of having defective work repaired quickly and to a good standard. What a mediator can do is use both pre-intake sessions or open ended questions28 during a mediation to gain insight into the interests of the disputants. It is these interests that will inform a mediator as to the relevance of each disputant’s goals, and thus the possible strength of emotions that can be expected. Of course, the relevance of a disputant’s goals are not static and may vary, and a suggestion for mediators in this scenario is to remind disputants of the agenda items formulated and agreed to at the beginning of the mediation. Network theories Network theories have a very organized view of emotion. These theories are founded on the premise that a person’s memory stores emotions and that perceived events trigger these stored emotions.29 These stored emotions can be the result of a re-appraisal of prior experiences. For example, if a person buys a Ford vehicle, and that Ford vehicle is unreliable, that person would likely store an emotion in their memory equivalent to their experience. If the person spoke about or observed a Ford vehicle in the future, that stored memory may be triggered. This body of theory may explain the reluctance of a disputant to talk about a particular topic, or the reason why certain disputants gravitate toward mediation
via digital technologies. The network theories do not answer how these stored emotions are triggered by events30 but do draw from appraisal theories and accept that stored memory may be changed from time to time by re-appraisal. This family of theories also provides a mediator with the knowledge that there are pre-existing 26 Craig Smith, Richard Lazarus, ‘Emotion an Adaptation’ in L Pervin (ed), Handbook of Personality: Theory and Research
(New York, 1990) 609.

27 Richard Lazarus, Psychological stress and the coping process (McGraw-Hill, 1966).
28 Mieke Brandon, ‘Questioning our questions – expanding facilitative dispute resolution questioning techniques’ (2011) 12(6) ADR Bulletin 132.
29 Moors, above n 19, 643.
30 Symposium, ‘Affect and Cognition: The seventeenth annual Carnegie symposium on cognition’ (Psychology
Press, 2014) 292.

Research & Policy House | January 2021 | Emotions and Digital Mediation 6 experiences that cause emotion that are not attributable to anything done or not done during mediation. These theories highlight that active listening and reframing is key if a mediator wishes to convert what was a previously negative emotion, into a constructive one.31
Philosophical theories Philosophical theories on emotion are primarily divided into two categories: cognitive theories and perceptual theories. The separation of the theories into these two categories however, adds no value other than to highlight the need to distinguish between cognitive and perceptive elements of emotion.32 Philosophical perceptual theories strike a familiar chord with most psychological emotion theories. Broadly, perceptual theories are founded on the notion that emotions have more to do with a person’s perception of an event rather than their cognitive judgment of that same event.33 Put another way, the perceptual theories view every person as having a lens in which they view an event, and not that every person has an emotion as a result of forming a belief about that event. This is similar to appraisal theories in that it explains how two persons can perceive the same event but have two different emotional reactions. These perceptual theories make clear that if mediation is to be successful, that it must be malleable to individual circumstances and disputants. Emotional flooding Emotional flooding is an intense emotional reaction to a set of behaviours that causes a person to become disengaged.34 Colloquially, emotional flooding is a system overload.35 The degree to which emotional flooding effects people varies depending on variables including race, gender and age.36 Emotional flooding may be caused by an external perceived threat or a person’s own negative, internal scripts.37 The versatility of the possible causes of emotional flooding make this occurrence a challenge for mediators.

Emotional flooding can be difficult to detect but it can have adverse consequences if allowed to exist. Findings in neuroscience are that emotional flooding has the effect of shutting down the cognitive part of the brain and increasing reliance on reflex reactions. Critically, it is this cognition that is required to 31 Tony Bogdanoski, ‘The importance and challenge of active listening in mediation’ (2009) 20 Australian Dispute Resolution Journal 206.
32 Charland, above n 17, 556.
33 Sergio Mastin, ‘On some paradoxes of current perceptual theories’ in Sergio Mastin (ed), Foundations of Perceptual
Theory (North Holland, 1993); Jesse J Prinz, Gut Reactions: A perceptual theory of emotions (Oxford University Press,
2004) 4-9.
34Amy Hooper, Crystin Spann, Tiyahri McCray, Claire Kimberley, ‘Revisiting the basics: Understanding potential
difference with John Grottman’s Horsemen and Emotional Flooding’ (2017) 25(3) The Family Journal: Counselling and
Therapy for Couples and Families 224, 225.
35 Tricia Jones, Andrea Bodtker, ‘Mediating with Heart and Mind: Addressing Emotion in Mediation Practice’ (2001)
Negotiation Journal 228.
36 Hooper et al, above n 34.
37 Ibid 228.
Research & Policy House | January 2021 | Emotions and Digital Mediation 7 problem solve and find solutions to the dispute.38 As a result, emotional flooding can freeze the conflict resolution process and reduce the prospects of achieving a satisfactory outcome.39

Circle of Conflict
Christopher Moore’s circle of conflict theory divides the possible sources of conflict into five categories: Data, Interest, Structural, Value and Relationship. 40 Conflict is dynamic and will often exist as a result of a combination of actors that fall within multiple categories. The areas for potential conflict that do not seem to be adequately represented in this theory are language and culture. These two potential sources of conflict are increasingly relevant as mediation can cut through traditional boundaries via digital technologies. It is nonetheless a useful taxonomy because conflicts that arise from the same category carry similar characteristics and may be managed in similar ways. The emotions that follow a particular source of conflict are also likely to be similar. Other theories of conflict argue that conflict is a combination of three elements, namely cognitive disagreement, negative emotion and behavioural interference.41 If there are cognitive disagreements and behavioural interferences only, conflict either would not occur or at least not to the same extent that it does where negative emotion is present. Even if conflict did occur, it would de-escalate quickly.42 Within this context, Moore’s Circle of Conflict can be understood as addressing the cognitive and emotional elements of conflict.

Part III
Case Study 1: Charter Pacific
In Charter Pacific Corporation Ltd v Belrida Enterprises Pty Ltd & Ors,43 Justice Fryberg heard a complex, 157 day trial regarding an action for misrepresentation. Central to the case was the Plaintiff’s allegation that it was misled by the Defendants to acquire certain shares and to lend money to a particular company. The disputants previously attended an informal and formal mediation, both which did not result in resolution. In his decision, Justice Fryberg made this insightful comment:  “…the issues have become clouded in the minds of the witnesses…cloudiness induced not only by the effluxion of time but…also by intense personal emotion”.44 38 Rebecca Low, Dykem Brown, ‘The Impact of a Digital Recorder Intervention in Pragmatic/Experiential Therapy for Couples: A Pilot Study to Assess Emotional Flooding’ (2014) 36 Contemporary Family Therapy 70. 39 Ken Skinner, ‘Emotion in Mediation’ (2015) 26 Australian Dispute Resolution Journal 241, 248. 40 Christopher Moore, The Mediation Process: Practical Strategies for Resolving Conflict (2nd ed, 1996) 60-61. 41 Louis Pondy, ‘Organizational conflict: Concepts and models’ (1967) 12(2) Administrative Science Quarterly 296. See generally, Heni Barki, Jon Hartwick, ‘Conceptualizing the construct of interpersonal conflict’ (2004) 15(3) International Journal of Conflict Management 216.
42 Ibid.
43 [2002] QSC 254.
44 Ibid 63 [210].
Research & Policy House | January 2021 | Emotions and Digital Mediation 8 While mediation and litigation are admittedly opposed in their approach to a dispute, it is argued that overt recognition and careful management of emotions, can actually increase clarity for the parties and enhance prospects of achieving lasting resolution.
There is in Justice Fryberg’s observation an implied tension between rationality and emotions. It is inferred that this intense personal emotion existing at the time of the trial, existed during the informal and formal mediation attempts. When factoring in the value of successful cross claims against the plaintiff, the plaintiff walked away with nothing (and potentially owing money). Speculating for a moment at the amount of legal costs incurred, the critical question is, why did the case not settle through mediation? Three suggestions for how the mediator/s may have managed the intense emotions are put forward. First, the mediator may have sought an early commitment from the disputants to follow the process that had been explained. Feelings of deception and mistrust would have likely been high given the nature of misrepresentation, thus fostering an environment of trust early would be crucial. Depending on the
model of mediation followed, it is hoped that the option of making a formal apology was at least explored by the parties. Second, the use of breaks to mitigate or remedy the results of emotional flooding could have been employed to allow the disputants to reassess their interests. Third, reframing any expression of emotion to move towards feelings of acceptance would likely have been critical to maintain momentum both for the disputants and mediators’ benefit.45

Case study 2: The Boundary Fence46
John and his wife own 12 Smith Street, Gold Coast. This property is 850m2. They have lived at this property for over 10 years. John and his wife plan to perform some renovations to the garage and northern side of the house. Their house has been built very close to their northern boundary fence. Gary and his wife own 14 Smith Street, Gold Coast. They are the northern neighbours to John. This property is 830m2. Gary and his wife purchased this property in November 2017. Their plan is to demolish the house and build a new house, with the view to on selling the property. Gary had a survey of his property performed. The survey revealed that 36m2 of his property was on John’s side of the boundary fence. This had the effect of making John’s property 886m2 and Gary’s property 794m2. The house that Gary intends to build on his land needs the entire 830m2. Records indicate that the boundary fence has been constructed on its current alignment for over 50 years. Both John and Gary have legal representation. This dispute is suitable for mediation for the following reasons. Both parties have a willingness to resolve the matter and wish for a resolution to be both time and cost effective. There is relative equality of 45 Lori Schreier, ‘Emotional Intelligence and Mediation Training’ (2002) 20(1) Conflict Resolution Quarterly 99. 46 The author of this article has carriage of this dispute in his practice at a private law firm. Individual identifiers have been changed.

Research & Policy House | January 2021 | Emotions and Digital Mediation 9 bargaining power. The nature of the dispute lends itself to a flexible and informal process that allows the parties to develop creative solutions that may otherwise not be available through the courts. A mediation process will help preserve their future relationship as neighbours and allow their underlying interests to be explored.47 Applying Moore’s Circle of Conflict, the source of the conflict may be a mixture of data, interest and relationship. Data conflict may exist as to the interpretation of the survey plans. For example, what boundaries does the survey assume are the correct boundaries? Did the surveyor make any assumptions? What is the relevance of the current fence alignment? If the current boundary fence position is incorrect, why was the fence built there? How did the surveyor assess who owned the land on John’s side of the
boundary fence? The interests of John and Gary are seemingly opposed. John’s interest will be in maintaining the current fence alignment. Any re-alignment of the fence may cause significant interference with his house. Gary’s
interest will be relocating the fence so that he can have access to the land that is part of his property. John will likely think that it is unfair to move the fence when it has been on that alignment for over 50 years. Equally, Gary will think it is unfair that he has paid for a property that he is not able to fully use. These divergent interests may also be causing relationship conflict. That is, both John and Gary may think less than favourably of the other because of the way that the dispute is being handled. Each will feel that they are right and that the other needs to conform to their view.

It will be important that the mediator employ elicitive questions and reframing skills. By drawing the inner thoughts of the parties out, it will cause the parties to verbalise their concerns and expose any negative inner scripts. By appropriately reframing these concerns, the mediator would hope to construct a positive environment that will be the foundation for a productive discussion. By following these techniques, the mediator may find that while there are many opposing interests, the parties share a common interest of resolving the issue in a timely and costs effective manner to avoid any further issues when the properties are on sold. This data conflict can be managed by a mediator ensuring that confidentiality and voluntariness are emphasised in their opening statement. This will be critical to fostering an environment where the parties are open to sharing the information that they possess. A mediator can also encourage parties in private sessions to share with the other party in joint session, any information that may assist in reaching a resolution. Neighbourhood disputes have a tendency to be bitter so it will be especially important to ensure that the early phases of the mediation process are fully explored. This will help ensure that no 47 Gay Clarke, Iyla Davies, ‘ADR – Argument for and against use of the mediation process particularly in family and neighbourhood disputes’ (1991) 7 Queensland University of Technology Law Journal 81; Roger Fisher and William Ury, Getting to yes (Random House Business Books, 2nd ed, 1999) 41. Research & Policy House | January 2021 | Emotions and Digital Mediation 10 interests are undiscovered when moving to the option generation phase. Given the likely bitter feelings, a mediator may choose to use humour to cut through any tension between the disputants.48
Questions may include, “What are your concerns about this issue?”, “Gary, can you tell us how you felt when you approached John about this issue?”, “John, Gary has proposed that the fence be re-aligned or that an amount of compensation be paid. What are your concerns about this proposal?”, “Are there any other boundary issues with other fences at your property?”, or “John, you seem to be upset when we talk about the back part of the fence. Can you share why that is?”. Appraisal theories suggest that both John and Gary may have an emotional response as a result of the perceived meaning of relocating the fence. The author of this paper knows that John has buried his pet
dog under a tree and if the fence is relocated, will interfere with that burial. If this interest did not surface, it would likely stifle any possible resolution.

Part IV
Digital Technologies
Digital technologies pervade many facets of our life including work, home, family and school. It is no wonder therefore that mediation practice is beginning to utilise these digital technologies. So far this paper has addressed emotion theories and discussed mediator techniques on the assumption that a mediation is being conducted face to face. The intersection of emotions in mediation and digital technologies however, raises a series of critical issues.49
These include: What effect does a digital medium have on the expression of emotions? How can a mediator most effectively foster trust among disputants when using digital technology? How can a mediator recognise and manage emotion through text based communication? What are the differences and similarities of the expression of emotions via digital technology and face to face interactions? Digital technologies are defined as any medium through which people may interact other than face to face, which includes a wide spectrum from text based (instant message, text message, email), voice based (telephone, audio call) to virtual calling (for example, Skype). The foregoing discussion does not address the inherent variables with technology including accessibility, speed, connection quality, hardware, and 48 Michelle Maiese, ‘Engaging the Emotions in Conflict Intervention’ (2006) 24(2) Conflict Resolution Quarterly 187, 192.
49 Konstantinos Kafetsios, Despoina Chatzakou, Nikolaos Tsigilis, Anthena Vakali, ‘Experience of emotion in face
to face and computer-mediated social interactions: An event sampling study’ (2017) 76 Computers in Human Behavior 287; Ray Friedman, Mara Olekalns, Cameron Anderson, Jeane Brett, Nathan Goates, ‘The Positive and Negative Effects of Anger on Dispute Resolution: Evidence from electronically mediated disputes’ (2004) 89(2) Journal of Applied Psychology 369.
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assumes that all parties are equal with respect to these variables.50 The effect and management of
emotions in text based and voice based digital technologies will be analysed.

The impulsive response is to think that computer based communication is ‘cold’, without emotion and immature in its ability to convey emotions. While that may be partly true, research suggests that emotions are expressed to the same degree or more via computer based means than face to face.51 Interestingly, text based communication can actually carry greater emotional effect than face to face. In a way, people are emotional bobcats that will unload their feelings more easily via a sterile platform. This is because computer based communication is a less threatening environment to express negative emotions and a sender is able to more easily save face.52
Text and voice based Mediation conducted through text based technologies allows only limited emotional information to be transferred, resulting generally in ambiguous communication or guessing by a mediator. The key
information that is not able to be transferred includes non-verbal cues and intonation. It is these nonverbal cues from which a disputant’s intentions may be inferred.53 The common theme among emotion theories is that a bodily response exists (although disagreement as to what part of the emotional process it falls). It is these bodily responses, or non-verbal cues, that shape the meaning of communication. For example, if a person is disinterested, typical non-verbal cues would include crossed legs, cross arms, yawning, slouching, distracted eyes, and leaning away. If a person is frustrated or angry they may sigh, rub their face, neutral stare, interrupt, drum fingers or bite lip. To
address these absences of non-verbal cues, disputants may utilise emoticons and other paralinguistic techniques to convey their emotions.54 The difficulty for a mediator is that words alone, including the use of emoticons, can be disingenuous. Non-verbal cues act as a form of corroboration between the words expressed and the meaning intended by a disputant.55 Typical techniques to put emphasis in a text based communication are to use CAPITAL
LETTERS, bold, underline, exclamation marks or a COMBINATION! of all three.56 Depending on
technological capability, a disputant may also use a smiley face, angry face or other picture in their
50 Michael Legg, ‘The future of online dispute resolution: Online ADR and online courts’ (2016) 27 Australian
Dispute Resolution Journal 227.
51 Daantje Derks, Angela Fischer, Arjan Bos, ‘The role of emotion in computer-mediated communication: A review’
(2008) 24(3) Computers in Human Behavior 766.
52 Monica Riordan, Roger Kreutz, ‘Emotion Encoding and interpretation in computer-mediated communication:
Reasons for use’ (2010) 26 Computers in Human Behaviour 1667.
53 Daniel Druckman, Mara Olekalns, ‘Emotions in Negotiation’ (2008) 17 Group Decision Negotiation 1.
54 Tanimu Jibril, Mardziah Abdullah, ‘Relevance of emoticons in computer-mediated communication contexts: An
overview’ (2013) 9(4) Asian Social Science 201.
55 Hardy, above n 14.
56 Monica Riordan, Roger Kreuz, ‘Cues in computer-mediated communication: A corpus analysis’ (2010) 26
Computers in Human Behaviour 1806.
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communication. These emoticons and paralinguistic variants of non-verbal cues57 fall short of conveying
the same richness as face to face non-verbal cues. Absent these typical non-verbal cues, a mediator may infer the disputants’ intentions by increasing their quantity of communication with disputants, use of elicitive questions, and setting more detailed ground rules. The more communication that a mediator has with disputants via digital technologies, the more meaningful the interactions.58 The mediator’s communication must also be meaningful as too many irrelevant communications can cause a recipient to become frustrated and disinterested.59 A mediator may also consider providing a response template to disputants or at least having disputants commit to
providing set particulars for every communicate they send. These particulars could include describing the feelings they have, rating the intensity of that feeling or providing reasons for any view expressed. This adaptation may not only be ideal, but necessary in order to help the mediator gain a proper understanding of comparative issues in the conflict. Another challenge for a mediator is managing the emotions that may arise simply from the asynchronous
nature of text based communication.60 People may be in different time zones. Interestingly, the ability to be constantly connected also creates an expectation that a person is constantly connected and that responses ought to be quick. This can result in emotional flooding of a disputant as a result of a rehearsal of negative inner scripts, resulting in that person becoming disengaged from the process. A mediator may recognise emotional flooding through short answers to questions or a lack of response entirely. A current strategy that can be adjusted by a mediator is to schedule times to make contact. This allows both parties to be prepared, reflects real time interaction (as much as possible) and is likely to build trust between mediator and disputant. It is arguably never more important for a mediator to create trust among the parties and enforce confidentiality than via text based communication. The nature of text based communication lends itself to extended periods of time between responses and minimal (if any) visibility of the conversations with others. While this may be true for face to face mediations, the virtual distance between disputant and mediator limits any reassurance that a disputant may receive from physical presence. Not only does building trust enhance communication in mediation, but it helps avoid the negative emotion that arises when a disputant supresses their emotion.61

57 Daejong Kim, Mark Frank Sung Tae Kim, ‘Emotional display behaviour in different forms of Computer Mediate
Communication’ (20104) 30 Computers in Human Behavior 222.
58 Ya-Hui Hsieh, Chin-Chung Tsai, ‘The effect of moderator’s facilitative strategies on online synchronous
discussions’ (2012) 28 Computers in Human Behavior 1708.
59 Ibid.
60 Boulle, above n 8, 284.
61 Jane Richards, James Gross, ‘Composure at Any Cost? The Cognitive Consequences of Emotion Suppression’
(1998) Personality and Social Psychology Bulletin 1033.

Research & Policy House | January 2021 | Emotions and Digital Mediation 13 Alternatively, it can be said that depending on a person’s physical attributes (including height, dress, mannerisms), the physical presence of a mediator and disputant may actually reduce any perceived trust.62 In this way, mediation via digital technologies eliminates any physical first impression that may otherwise be difficult to overcome. While trust may be more difficult to achieve via digital technology, a possible reason why disputants may elect for such digital medium is because there is distrust in the traditional methodologies of mediation.63 One way to manage this is for a mediator to ensure that they strictly comply with any set ground rules and to transmit a photograph of themselves to the disputants via the digital technology. Creating a physical identity on digital technology where the disputants are otherwise disconnected, will help to foster trust among the parties. Another suggestion is to ask disputants their level of comfort with digital technologies and to explain in detail how confidentiality is maintained.64

Conclusion
The boundaries of mediation practice are expanding. This paper has started to bridge the gap between two emerging thought towers: emotions and mediation via digital technologies. The insight from psychological and philosophical emotion theories and conflict theories are valuable to inform the strategies of emotion management in mediation. This paper has integrated the concepts of emotions, conflict and mediation into a framework that establishes the basis for future evaluation of the application of digital technologies as tools for mediation of disputes. It is suggested that further research be conducted to determine whether the adaptations suggested in this paper would have the desired effect across varying age groups. Ultimately, the challenges of conducting mediation via digital technologies are not insurmountable, but rather require some careful adjustment to the currently practised mediation strategies. 62 Laurent Waroquier, David Marchiori, Olivier Klein, Axel Cleeremans, ‘Is it Better to Think Unconsciously or to
Trust Your First Impression? A Reassessment of Unconscious Thought Theory’ (2010) 1(2) Social Psychological and
Personality Science 111.
63 Karolina Mania, ‘Online dispute resolution: The future of justice’ (2015) 1 International Comparative Jurisprudence 76,
85.
64 Graham Ross, ‘Building Trust Online: How to Adapt Mediation and Negotiation Techniques to the Virtual
Environment’ (Paper presented at the Proceedings of the 6th International Workshop on Dispute Resolution,
Liverpool, United Kingdom, 15 December 2010) 82.
Research & Policy House | January 2021 | Emotions and Digital Mediation 14

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