Can’t Fight This Feeling: The Role of Emotion in Mediation Advocacy

I’ve observed a trend. It involves the feelings of legal advocates coming into play during mediation. This is often presented as an emotional tie to the client, passion about the collaborative opportunity or being personally dedicated to finding a fair outcome. While I am not sure this is planned strategy, it suggests a ‘heart on one’s sleeve’ fashion in mediation representation.

If you want to paint a mental picture, or otherwise embrace a stereotype about the emotional type of lawyer I am referring, consider Angry Dad from The Simpsons as counsel at your mediation. A male-presenting legal advocate who would struggle to select which of the emotion options offered by Facebook applies to them in the moment.

As one of the common knocks on the self-represented is their emotional ties to the case, why, then, would lawyers trend toward expressing emotion in the course of their advocacy?

Could this be a sign of stubbornly clinging onto old school negotiation tactics? Particularly when coupled with aggression, it might qualify as what Taylor Swift calls “ego swinging”.

Could it be explained as a way for a lawyer to demonstrate to their client that they are committed? Perhaps, though it would make more sense explained as an attempt to hide vulnerability. After all, there are plenty of opportunities for legal advocates to show their clients they are committed beyond getting frazzled, aggressive or clenching a lip in the presence of opposing parties. Preparation meetings and caucus, for example.

Sticking with the Angry Dad motif, consider Murray Goldberg’s habit of putting on pants before leaving the house. A base polish is expected out of legal professionals, right?

In considering the contemporary role of emotion in legal advocacy, I checked in with estates litigator and mediator Kim Gale. The Gale Law website features the catch phrase “Seriously. We care”. I asked Kim what this meant. She explained that she does not want her clients to feel like a number. Kim takes the time to understand them, and their interests. At the same time, she recognizes why someone retains a lawyer in the first place. This includes a desire to involve an objective person who will keep their “eye on the prize” rather than get swept away on a roller coaster of emotion.

Perhaps, then, legal advocates taking part in mediation should heed The Weeknd’s advice to save their tears for another day?

Personal injury lawyer and Advocate for the Disabled, Anil Hampole, does not think it necessarily wrong for a legal advocate to get emotional or even cry in the course of their mediation advocacy. “Provided that the lawyer maintains respect for all other parties, as well as themselves.” Hampole reminds us that everyone – even lawyers – are human. They have emotions. Yet, he believes such emotions must be presented in a professional manner and not work against a client’s best interest. To, as Gale says, keep their eye on the prize, Anil feels the legal advocate must remain in control of their actions and reactions.

The Incredible Hulk schtick of building up unexpressed emotion until reaching a boiling point of explosive release is a recipe for lost professional composure. It also reeks of toxic masculinity. Legal advocates best serve their clients, and themselves, by keeping in touch with their emotions. This includes processing feelings in healthy ways. It requires both self-awareness and self-control.

We have moved away from the notion of the capable lawyer suppressing their emotion to instead see capable advocacy inclusive of accepting, understanding and staying in control of one’s feelings. It involves emotional intelligence, an ability that instructor Oliver Martin Jr. has found to be lacking in the focus of traditional training. Emotional intelligence would allow lawyers to navigate their own emotional expressions in the manner Hampole suggests is appropriate, and also better equip them to understand and support the feelings of their clients.

Legal advocate Yulia Rodionova got my attention with a LinkedIn post earlier this year, where she shared: “I am wiping away tears while putting together a written argument for my client’s case. Is internalizing your client’s experiences a good or a bad thing?” What struck me about the reveal from this immigration and estate planning lawyer out of London, Ontario, was how that emotional expression would typically stay behind closed doors. The client connection is there. A tear is shed with the delivery of written submissions, but the submissions are not offered on tear-soaked sheets of paper. Might this be an example of a healthy way for legal advocates to process their emotions?

In speaking with Yulia about the post and topic of emotions in advocacy, she spoke of empathy in both cognitive and emotional ways along with the importance of understanding the complete perspective of a client. Without understanding the emotional aspect of a client’s situation, Yulia feels a component would be missing in their advocacy. As a lawyer’s role in mediation can include telling their client’s story, relating to the emotional aspect is essential. Rodionova believes legal advocates should be trained to understand and appropriately label emotions to best serve their clients. This aligns with Martin Jr.’s call to better embed emotional intelligence within related education. That should help us move away from legal advocates throwing temper tantrums at mediation.