Rights, Interests, Passions & Emotions in judicial mediation
Zariski, Pr Archie
Athabasca University, Canada
Fisher and Ury admonished us to “separate the people from the problem” and concentrate most of our energy on satisfying people’s more substantial, material interests. When “the people are the problem” they gave little guidance beyond encouraging “venting” of emotions. For Christopher Moore, however, immaterial “psychological interests” that go beyond materialistic concerns are legitimate, and often key, components of disputes that require attention and response. Passions seem to have been eclipsed in the modern age by rationality, but why, therefore, do we continue to speak approvingly of a “passion for justice” or for truth? Most practitioners of dispute resolution are taught to treat emotions as negative forces in disputing, but cultivate in themselves positive emotional states such as confidence, benevolence, even love for human beings embroiled in their messy conflicts.
These questions and conundrums have challenged dispute resolvers for years, but present even more difficulties for the judicial mediator who is also expected to be the foremost rational proponent and defender of legal rights. This paper advocates a holistic view of rights, interests, passions and emotions based on the premise that the people are always the problem – problems exist only in the perceptions, beliefs, and emotions of real people. Indeed, I argue in this paper that integrating emotions and passions into the practice of judicial mediation is essential along with acknowledging people’s rights and helping them to advance their interests.
This paper adopts a functionalist approach to rights, particularly procedural ones such as the right to commence legal action, to be heard in those proceedings, and to demand a response from the other party. Such rights serve basic human interests all of us have in explaining and justifying our grievances and attempting to understand why other people do what they do. Interests in turn are driven by emotions, and passions can be seen as involving valued goals that go beyond satisfying individual interests and to which strong emotions are attached. Instead of insisting on an unhelpful dichotomy between “substantive” issues (usually assumed to be based on material self-interest) and “relationship issues” we should recognize the existence of “passionate interests” (some of which may be altruistic) in many conflicts and disputes that require emotional understanding and responses. Emotions should be considered as more than merely instrumental in helping to build trust and cooperation that results in good substantive solutions, but rather as independent and important parts of both problems and solutions.
The sources which this paper draws on in support of its arguments include recent research in the cognitive dimensions of passions and emotions, the philosophy of virtue ethics which values emotions as an integral part of human flourishing, and the insights of behavioral economics.
This paper offers some concrete suggestions for judicial actions and techniques that may help to uncover and legitimise passions and emotions that have been suppressed through the transformations disputes undergo when litigated. In doing so it attempts to encourage and empower judges to look beyond rights and material interests for possible solutions that satisfy the parties’ quest for justice.