Justice Outside the Court: An Ethnography of Emotions in Commercial Mediation

The increasing amount of commercial litigation in Europe blocks courts and businesses into expensive and time-consuming trials. Mediation provides a valuable alternative to court litigation as it allows solving disputes through a flexible, informal procedure where the parties can talk about their emotional concerns. Emotions are key to conflict resolution but in commercial litigation there is still a widespread assumption that business people act in a purely logical, rational manner, putting emotions aside. Drawing on extensive literature showing that emotions are central in all spheres of social life, the purpose of this project is to explore the ‘invisible’ emotional dimension of commercial mediation, to understand how emotional dynamics impact the resolution of commercial disputes. This three-year research will contribute to developing existing theories on the role of emotions in rational, commercial interactions and legal proceedings. Data will be collected by shadowing and interviewing mediators and by observing real mediations in Italy and England. These countries are ideal case studies since they have opposite percentages of success in commercial mediation, different mediation techniques, and emotional cultures. This study is especially important given the increasing interest in mediation across different legal systems to improve conflict resolution and reduce judicial workload, in the longer run affecting society’s stability and economic well-being.