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When co-operation is eroding during the ADR process, facilitators are looking more frequently to brain science to understand what promotes settlements, Toronto family lawyer Nathalie Boutet writes in Lawyers Weekly.
When it comes to how the science of the brain applies to ADR, Boutet writes that a depletion in glucose and oxygen levels after sustained periods of mental activity, such as decision-making and negotiation, result in decision fatigue.
“It is recommended that you and the clients take breaks, drink water and eat during the ADR process to reduce the risk of decision fatigue and ego depletion,” she says.
Boutet also notes that the brain’s limbic system is designed to protect us from danger, generating an automatic reaction to real and imagined threats. While useful when there is a genuine threat to our safety, these reactions diminish our ability think and reason when trying to solve a problem, says Boutet.
“On numerous occasions, our clients might experience emotional threats such as a threat to their financial safety, their reputation or even an uncertain future,” she writes.
“When this happens, we can retreat to a private room to work with them. Asking them to write down their emotions will make them think; thinking and writing moves us from emotion to cognition and promotes co-operation,” she explains.
A number of actions, says Boutet, are also known to facilitate co-operation through the release of oxytocin, such as active listening and securing small agreements.