Mayhew-Hite Report        An Argument for the Integration of Dogs in Mediation: The Impact of Dogs on the Building and Maintenance of Trust and Cooperation

Alexander Karcher

I. Introduction

Forty-four percent of Americans own a dog,[1] and it’s easy to understand why. Dogs often provide a tremendous amount of varied support to their owners. In a recent poll, 60% of dog owners believed they led more satisfying lives than non-pet owners,[2] and this belief is supported by scientific research that shows dogs can have measured positive effects on the general health and wellbeing of their owners, including by means of emotional support and companionship, reduction in stress and anxiety, and by measured reductions in blood pressure, cholesterol, and triglyceride levels.[3] But despite the recognizable benefits dogs provide to humans, even a cursory observance of our everyday lives shows us their roles have remained largely in our homes. That is until the last few decades, when the presence of dogs in settings beyond the home expanded quite significantly to venues such as hospitals,[4] prisons,[5] libraries,[6] nursing homes,[7] and even in courtrooms.[8]

Even with the rising presence of dogs in workplace environments, one venue where a wagging tail will rarely greet you is in mediation, where mediators, in their ever-present quest to improve and to enhance the practice of mediation, have largely overlooked the value a dog may bring to the table.[9] In fact, dogs have the ability to enhance mediation and to enhance the experience and satisfaction of the parties in many ways, but especially by aiding mediators in the management and reduction of common negative psychological dynamics of mediation. These dynamics, if left unmanaged, often undermine a mediator’s efforts to build and maintain trust and cooperation between the parties.[10]

The article will first discuss the importance of cooperation and trust in mediation before analyzing five of a mediator’s common obstacles to building and maintaining those two key elements. In discussing the five obstacles, or mediation dynamics, the article will outline methods and strategies mediators currently use to manage them in the absence of dogs.[11] Each discussion of current methodology will be followed by a discussion of the benefits dogs can provide in mediation, demonstrating how in many cases dogs further the current methods of mediators, and in other cases add an entirely new and beneficial element to mediation that would be impossible to achieve in their absence. The article will conclude with a brief discussion of the potential limitations of dog integration in mediation.

II. Building cooperation and trust is often hindered by five negative psychological dynamics in negotiation and mediation.

In his book, The Mediation Process, Christopher Moore discusses obstacles to building trust and cooperation between parties in negotiations and in mediation. Among these obstacles he cites five negative psychological dynamics that he believes have an impact on a mediator’s ability to build cooperation and trust: (1) strong emotions, (2) misperceptions or stereotypes held by one party towards the other, (3) poor communication, (4) legitimacy problems, and (5) lack of trust.[12] Together, a discussion of these five dynamics provides an effective roadmap to analyze how dogs may enhance the mediation process.[13]

A. Dogs have a unique “touch” when it comes to aiding a mediator in managing emotion in mediation.

Emotion has been described as the “underpinning of all conflict” and a central theme in all mediation contexts.[14] The litany of emotions parties exhibit at all stages of the conflict resolution process have been well documented since the earliest days of Alternative Dispute Resolution and mediation.[15] Among the common emotions experienced by parties are feelings of anger, hurt, frustration, distrust, alienation, hopelessness, resentfulness, betrayal, and fear.[16] Provided the extensive list of emotions often experienced in mediation, the integration of dogs into the process for their ability to impact party emotion is persuasion enough for many as to why dogs fit the bill for mediation. As one practitioner put it, the question of why “dog therapy” techniques should be utilized in mediation can be answered with one of mediation’s most prevalent characteristics—emotional intensity.[17]  While mediators practicing within various models of mediation at times disagree as to how to manage emotion, most would agree that negative emotions left unmanaged have the potential to hinder a mediation and negatively impact the experience of the parties.[18] Others argue that un-checked emotions might derail any substantive outcome, such as settlement.[19] To successfully manage the role of emotion, mediators typically adopt a common-sense, and perhaps subconscious, three-step approach: (1) recognize that a party is experiencing a strong emotion, (2) attempt to diagnose or identify what emotion that may be, and (3) select an appropriate intervention, or perhaps non-intervention, strategy to assist the party in managing that emotion.[20]

Traditionally, mediators identify the occurrence of emotional responses through observation of things like tone of voice, pacing of words, facial expressions, changes in posture, or body movements.[21] However, merely identifying a party is exhibiting an emotion is typically less difficult for a mediator than developing a strategy to deal with that emotion.[22] Mediators are trained to actively listen, and to allow parties to vent their emotions, either in joint session or in caucus.[23] These two strategies allow a mediator to manage emotion by creating an environment where a party feels their concerns have been heard, and also allows a party to feel as though they have the opportunity to explore their emotions without repercussion or qualification.[24]

Although current strategies for addressing increased emotion show success on a regular basis, introducing a dog into a scenario of heightened emotion provides the opportunity to manage emotion more effectively and more intimately, which I argue has the tangential benefit of improving party satisfaction with the mediation process. Consider, for instance, the following description of a real divorce mediation where the mediator was accompanied by two working dogs named Rugger and Reilly:

The he in this particular session was yelling and gesticulating wildly and she sat momentarily still only waiting to respond in kind. Rugger, up to this time had been laying quietly, now looked up and away, ears down with an apparent expression of dismay that Labs display when people are angry and heated in their discussion. They are quite sensitive to humans, seem to know when something is amiss and become anxious when the tenor of discussion takes on an angry tone. Not atypically, he seemed to be taking it personally. Being opportunistic, I seized the moment for my intervention: “Folks, I’m sorry to interrupt, but your discussion seems to be upsetting Rugger.” They stopped on a dime and apologized. While all of my previous best devised and well studied efforts to manage the conflict were to no avail, they seemed to understand that the dog deserved special consideration and courtesy.

But it only worked for a while … [s]uffice it to say, the verbal battle between the parties resumed later in the session. This time, Reilly offered up an even more potent intervention strategy, unavailable to human conflict moderators. As he again became agitated and animated with arm outstretched and forefinger pointing towards the heavens, shrieking out how she was destroying his family and was the sole cause of the ruination of the family … I [noticed that Reilly, usually next to Rugger,] was not there. Suddenly, [the husband’s] tone calmed and I watched his red face, flush with the blood of anger visibly recede as he looked down toward his legs. There was Reilly–he had walked over to him and gently placed his chin on his knee. The guy smiled, petted Reilly, calmed down and apologized for the outburst. Reilly had done what no mere mortal mediator could do.[25]

In this brief excerpt, it is easy to visualize the role of a dog in mediation, and also to understand the enhanced value that dogs bring to the table. If we take the three-step approach to managing emotion mentioned above, you will notice that both the mediator and the dog in the scenario were working not just as a team, but also individually. Both navigated the three-step process of recognizing, identifying, and adopting a strategy to intervene at two separate occasions.

In the first paragraph the human mediator did this individually. He recognized that the male was having an emotional response, identified the male’s emotion as anger, and adopted a strategy to intervene. In this instance, the mediator chose to disassociate the need to lower emotion, and did so neither relying on the female nor on himself as the mediator, but rather on the dog. In doing so, the mediator achieved two things: he preserved the opposing female’s empowerment status by suggesting that the discussion was upsetting Rugger, rather than the opposing party, thereby eliminating any perception of weakness against the female; and, he also preserved his own authority and impartiality as mediator by not citing his own perception or needs as a reason to intervene.

In the second paragraph of the excerpt Reilly, and not the mediator, acted autonomously in recognizing, identifying, and adopting a strategy to handle the male’s emotion. Interestingly, in this part of the excerpt the author described a sudden escalation in emotion and an equally sudden de-escalation, which the mediator attributed to the physical intervention of Reilly with the male. This seems to suggest that Reilly may have recognized an emotional response was occurring even before the mediator had time to recognize and identify it. The ability for Reilly to sense building emotion before the mediator is not a radical idea when you consider that “[n]ot in spite of their basic canine nature but because of it, dogs are uniquely attuned to and synchronized with human behaviors.”[26] For example, dogs have the ability to sense hormonal changes and physiological changes that humans cannot, often well before those changes have any physical effect on us.[27] And service dogs that provide support for a variety of disabilities, such as for those with Asperger’s syndrome, are trained to use physical intervention when they sense their handler is in need.[28] Thus, while neither Rugger nor Reilly are highly trained service animals, the same attributes and instincts that make dogs effective when trained as service animals also make them inherently effective emotional management animals in a different context.[29]

The above scenario shows multiple roles a dog may play in mediation. From bystander to active participant, Rugger and Reilly are capable of enhancing the mediation in a way that is entirely impossible in their absence. Without them, the mediator’s chosen strategy of dissociation may have been less desirable and less effective. Additionally, the physical intervention of Reilly was a completely impractical intervention method for a human mediator. Thus, the dogs proved effective in limiting the effects of heightened negative emotion, and therefore enhanced the mediation by improving the experience of the parties and aiding the mediator in managing one of several obstacles that impact a mediator’s ability to build and better maintain cooperation and trust between parties.[30]

B. Managing misperceptions, stereotypes, and judgments held by one party towards the other is an inseparable dynamic from the tenet of communication.

Another common negative dynamic that often serves as an obstacle to building cooperation and trust are misperceptions or stereotypes held by one party towards the other. These commonly arise through poor communication and misunderstandings of the parties. Adam Curle once observed, “many of man’s feelings about others derive from his feelings about himself. Since these feelings are often intricate, contradictory, and not fully grasped at the conscious level, his attitudes toward others are correspondingly obscure and irrational.”[31] The phenomena of misperceptions and stereotypes are ones mediators commonly experience. To counter judgments mediators adopt many strategies, including by stressing common association, where parties can sometimes be induced to change their perception of each other by finding undisclosed or forgotten commonalities.[32] Issue framing and stressing positive developments in the mediation have also been theorized to ease the ability of parties to find common ground and to better communicate.[33]

In transformative mediation the strategies mediators use in addressing misperceptions and stereotypes differ from those above. For example, while a facilitative mediator may often assist a party in reframing or restating a statement in another way to “facilitate accurate communication and positive reception,”[34] the goals of transformative mediation seek to address misperceptions more directly. In so doing transformative mediators mirror, or reflect,[35] a party’s words back to them. This provides that party an opportunity to hear their exact language with the intention of allowing the party to grasp what Curle argued could have been an unconscious, obscure, or irrational pre-conclusion. Doing so, to a transformative mediator, is essential to ensuring clarity of communication and ultimately transformation of the party.[36] This makes sense given the goals of transformative mediation, where empowerment and recognition are the two most important effects that mediation can produce, and where the transformation of the parties themselves from what they were before they entered mediation overarches any aspirations of settlement.[37]

No matter the model of practice, no matter the strategy of the mediator, and regardless of the goals behind that strategy, the common thread through all of them is communication. Each strategy to managing misperceptions and stereotypes demonstrates a mediator’s attempt to improve and clarify the communication and understanding of the parties and the meaning of their language. This article was previously road-mapped addressing misperceptions and poor communication as two entirely separate obstacles to the establishment of trust and cooperation; however, it’s clear that while each addresses distinct challenges to mediators, neither dynamic can be analyzed in the absence of the other. Thus, in order to see how a dog’s presence aids a mediator in managing and addressing misperceptions or stereotypes it is important to also understand how a dog helps improve communication of parties.

i. Dogs are well documented to possess qualities that aid communication and cooperation between people.

As the use of dogs increases in environments outside of the home, their use in schools, libraries, courtrooms, nursing homes, hospitals and prisons has been well documented to provide a host of benefits to the humans they interact with. In fact, research shows the mere presence of dogs enables humans to be more articulate and more confident communicators.[38] These effects are really the culmination of many benefits that humans receive from the presence of dogs. For example, reductions in anxiety, empowerment of the individual, greater self esteem, and more confidence are all documented benefits dogs provide to humans. All of these benefits contribute to the ability of a party to be a successful communicator.

In the 1990s an experiment was conducted to gauge what, if any, affect a dogs’ presence would have on people taking a standardized anxiety-measuring test. People who took the test with the experimenter and a dog in the room scored lower (i.e. had less anxiety) than those who took the test with only the experimenter present.[39] In another experiment, women who attempted a challenging task felt a reduced amount of stress and performed better when dogs were in the vicinity than when a human friend was close by.[40] These results support more recent and separate conclusions by librarians and teachers who believe that their students gain empowerment through less anxiety, and thus are able to learn to read more efficiently when reading directly to a dog than to a human.[41]

Even further, observations by handlers of dogs put to work in courtroom settings have shown increased cooperation between those who are exposed to “courthouse dogs” and authorities within the court. One handler noted a memory of a child who emerged from a courtroom holding the hand of a judge too anxious, too fearful, and too intimidated to effectively communicate with that judge.[42] Both the judge and child spent a few minutes outside of the courtroom with the dog and were later able to return to the courtroom and have an effective dialogue, free of anxiety and fear.[43] Other occasions of dogs accompanying witnesses to the stand have been credited with empowering the witness[44] and enabling them to better articulate their testimony.[45] These observations are also in line with the documented benefits of dogs in hospital and institutional settings, where they have been used for the express purpose of empowering and drawing out patients who have become withdrawn and nonresponsive.[46]

While it’s obvious that the numerous benefits mentioned in the immediate three paragraphs above cross various spectrums of the originally listed five negative dynamics in mediation, it’s important to note that the elements and necessary qualities that lead to effective communication are multi-faceted, and cannot be derived from one singular attribute. For example, even if you take away or better manage anxiety, a remaining empowerment (or perhaps better stated, lack of empowerment) issue may still inhibit quality communication.[47] These layers of emotions, misperceptions, and judgments, are all potential obstacles to quality communication.[48] The interplay of anxiety, emotion, and empowerment in mediation is the unique dynamic that makes dogs so qualified to assist mediators. For instance, human mediators are constrained to addressing misperceptions or stereotypes through strategies of human intervention – issue framing, mirroring, rephrasing, dissociation, etc. – while a dog has the ability to address many of the underlying causes of misperception all at once and simply by being present in the room. If we also highlight a dog’s inherent ability to sense when its own physical intervention may be necessary, we see these benefits become even more pronounced. What makes a dog so beneficial in all of the current settings they serve demonstrates the benefits a dog would provide to parties in mediation and to mediators as they work to manage negative dynamics like misperceptions, stereotypes, and poor communication, all of which serve as obstacles to building and maintaining cooperation and trust.

C. Dogs provide reactions that legitimize party emotion, even if the other party is not willing to recognize that emotion.

Another negative dynamic that can serve as an obstacle to building cooperation and trust is problems with legitimacy. Legitimacy is a party’s acceptance and recognition that an opponent, an opponent’s interests, and an opponent’s emotions are genuine and reasonable and conform to recognized principles or accepted rules or standards.[49] Without a perception of legitimacy, negotiations often never begin.[50] Legitimacy of emotion refers to the acceptance of a party’s right to possess emotions, not to whether another party legitimizes them.[51] The recognition of emotion is where dogs provide the most beneficial impact to issues of legitimacy. Specifically, dogs help to legitimize emotion by their body language and expressions, which are often visible to the parties. These expressions are also available to the mediator as a tool to draw attention to emotion if the mediator deems it necessary.

Mediators, particularly those practicing under the facilitative model, are taught to address issues of legitimacy through communication and explanation. To do this they often clarify emotion through summarization by saying things like, “It sounds to me like you’re feeling frustrated and perhaps a bit angry about the situation; is that accurate?” In doing so, mediators are able to both “check-in” with a party, and also provide legitimization by naming the emotion they hear and see in a party’s speech and behavior. However, legitimization is most often an obstacle to building cooperation when an opposing party fails to recognize the emotional response of the other.[52] To combat the effects of this, mediators may explain to a denying party that while an acceptance of the emotion is not necessary, they should recognize the other party’s emotion does exist.[53] The process of requesting recognition by the mediator is a delicate balance of summarization and strategy that may make the mediator appear to be partial or sympathetic to a particular side, especially if one party continually challenges the legitimacy of the emotion of another.

By implementing the use of dogs the risk of a mediator appearing partial is minimized, and the presence of the dog provides both reassurance to parties experiencing emotion and makes it more difficult for opposing parties to question the existence of that emotion.[54] In the divorce scenario discussed above, Rugger and Reilly interacted in a variety of ways with the parties, including serving as objects of dissociation and as active participants in the management of emotion. But in that scenario both dogs also provided legitimization to the male’s emotion. For example, the mediator describes in the first paragraph the body language of Rugger changing dramatically as the emotion of the male rose, going from laying quietly to “. . . ears down with an apparent expression of dismay that Labs display when people are angry and heated in their discussion.”[55] Those who own dogs would know and understand this look well. And in the second paragraph Reilly felt compelled to physically intervene in the emotional response of the male, demonstrating an even higher degree of legitimization.

Although we have no insight as to how the female was responding to the male’s anger, except for that she was “ready to respond in kind,”[56] it’s perceivable to imagine a scenario where a participant would write-off the other party’s anger as not genuine and illegitimate. This view of Rugger and Reilly as legitimizers of emotion provides a demonstration of how the presence of dogs in mediation may addresses this issue. While the dogs provided empathy to the male, and thus legitimized his emotion under a different definition and understanding of the word, they made it harder for the opposing party to deny the male was having an emotional response. After all, a denying party need not accept the emotion of the other party as genuine, but recognizing that it is occurring is helpful to building cooperation and trust. Additionally, by using the dogs as the “legitimizers” of the emotion, the mediator was provided an opportunity to try disassociation and redirection before directly addressing a denying party for their failure to legitimize emotion. This step may minimize appearances of mediator partiality.

Related to the importance of a mediator maintaining impartiality is a similar concern regarding the impartiality of the dog. Dogs, at least those suitably trained to participate in mediation, are the ultimate impartial party. For instance, Rugger and Reilly in the passage above provided empathy to the male and made it more difficult for the female to deny his emotion. They also stood ready to provide equal support and empathy to the female, and in doing so would have made it harder for the male to claim her emotional response as illegitimate. In maintaining the impartiality of the dog, and the perception of impartiality, the mediator must also play a role, and should strive to only use the dog for disassociation and other purposes equally and when deemed necessary.[57]

The legitimization of emotion by way of dog may also be more fulfilling and satisfying to parties than legitimation by a human mediator. After all, many people who choose to own dogs, and those who own them for a variety of disabilities, often remark on the compassion dogs provide. For these reasons the integration of dogs in mediation would provide new avenues for mediators to manage issues of legitimization, and may also provide more meaningful interactions between parties in periods of heightened emotion.

D. The integration of dogs in mediation may also improve circumstances where a lack of trust exists.

While minimizing the effect of negative emotions and perceptions is effective to a degree, it is actually the enhancement of positive feelings and perceptions that often lead to establishing trust and cooperation.[58] Fortunately, dogs can help do both. Trust often refers to a person’s capacity to depend on or place confidence in the truthfulness or accuracy of another’s statements or behavior.[59] The elements of trust are often built through effective, clear, and non-contradictory communication between parties themselves, and between parties and mediators.[60] Trust is also built through symbolic actions like bargaining in good faith and emphasizing any previous instances in which the parties have relied on each other and found one another trustworthy.[61] In addition to emphasizing positive developments, a mediator can help build trust by stressing process, demonstrating knowledge, and by clearly articulating what is expected of the parties during and after mediation.[62] This building and maintenance of trust is often a slow process that requires incremental steps toward building credibility.[63]

Trust is the most attenuated of the five negative dynamics that a dog may help to manage and create. For example, if we believe that the competitive nature of mediation lends itself to unreliable and impoverished communication, where language is used to mislead or intimidate,[64] then the establishment of trust is an uphill battle for even the most skilled of mediators, and one in which a dog’s presence may not provide much benefit. However, a less cynical viewpoint may lead to the opposite conclusion: that clearer communication, less anxiety, and managed emotion, and thus more rational minded individuals, would have the ability to establish trust more quickly and more durably. If a dog’s presence enables parties to speak more clearly and with less contradictory statements, it is logical that a dog would help, and certainly would not hurt, the establishment of trust in mediation. Finally, a party’s ability to receive messages and to hear what another is saying is often a key factor in establishing an open and trustworthy dialogue, and studies show that when anxiety is low, people are often more effective listeners than when anxiety is high.

E. The benefits of dogs in evaluative mediation may not be as pronounced as in facilitative and transformative models, but their benefits are certainly not adverse to an evaluative mediator’s goals.

While this article references the use of dogs in facilitative and transformative settings, their use in evaluative mediations would provide similar benefits. Mediators in that practice model place greater emphasis on the merits of each party’s case and the potential pathways to settlement,[65] but cooperation and trust are still central elements to conflict resolution process,[66] and thus a necessity for evaluative mediations. Therefore, the same benefits dogs provide to mediators in other models would transfer to an evaluative model, even if the evaluative model doesn’t place as great an emphasis on management of emotion or emotional satisfaction of the parties.[67] For example, no matter the model of mediation, all mediators and parties benefit from well-managed emotions and clear communication, and party experience will certainly be enhanced through less anxiety, decreased blood pressure, and generally less stress. This would be especially true regarding the relationship between evaluative mediators and their parties, where clear communication of parties with the mediator is essential for the mediator to make an assessment about he conflict as well as its resolution.[68] Certainly the use of a dog would not have any adverse effect to an evaluative mediator’s purpose. Thus, the implementation of dogs in all three major models of mediation stands to benefit the parties in numerous ways, and regardless of the central goals of a mediator can help to manage vital elements of any conflict resolution process.

III. Limitations on the use of dogs in mediation.

The use of dogs in mediation does not come without limitation. Although 44% of Americans own a dog, more than half of Americans do not, and likely for equally sound reasons as those who do own them. Thus, there remains a substantial portion of the population who may not want to interact with dogs in mediation, and this concern must be one of several additional points of pre-mediation screening. Other limitations include the general expense of purchasing a working dog and providing for its care, in addition to the increased time to adequately screen parties ahead of mediation. Finally, the safety and wellbeing of the dog and of the parties must also be considered.

A. Not just any dog can be a mediation dog, and the dogs that are adequately trained and tested come at a premium cost.

For purposes of this article, I have categorized and referred to dogs in four general groups: (1) companion dogs, (2) emotional support dogs, (3) service dogs, and (4) working dogs. While companion dogs, also known as your everyday household pet, provide numerous benefits to their owners, these dogs do not meet the skill and obedience levels needed for use in mediation.[69] Similarly, emotional support and service dogs both have specific legal definitions and purposes that do not apply in the mediation context.[70] Thus, the category of dog that would best describe a dog suitable for mediation would be a working dog.[71]

For purposes of this article professional working dogs refer to dogs that are specifically trained for use in professional settings. Dogs with this classification undergo extensive obedience training, often for a period of years, and are required to have specific personalities and temperaments prior to achieving certification.[72] Most working dogs are trained by professional organizations such as Assistance Dogs International and come with a hefty price tag.[73] The high cost and time required to obtain a working dog is a factor that may limit the availability of highly trained working dogs to most mediation departments. To assist in cost, grants and fundraising efforts for organizations that wish to acquire working dogs often help to cover a large portion of these expenses.[74]

Therapy dogs, which typically do not fall under the definition of a working dog, are documented to frequently participate in mediation. However, these dogs may not be as reliable or well suited for the cause. Generally a therapy dog is a companion animal that has met a standardized threshold of obedience and has been certified by one of several therapy dog organizations.[75] Therapy dogs, unlike working dogs, are often trained by their owners, and represent a much more cost-effective avenue for the common mediator interested in implementing the use of dogs in practice. Regardless of whether a dog is a working dog or therapy dog, the temperament of the animal must be considered, and dogs that show more affection towards females than males, children than adults, and so on, should not be utilized for purposes of maintaining the balance of power between parties and the impartiality of the mediating team. Ultimately the responsibility of choosing a dog suitable for mediation will fall on the mediator, who should undergo additional training for this type of practice.[76] Additionally, parties should never be permitted to bring their personal companion dogs to mediation for a variety of reasons, one of which being that the use of dogs in building cooperation and trust is undermined if each party brings their own dog. Doing so has the potential to perpetuate the “us vs. them” adversarial mentality.[77]

B. Additional screening must be implemented to adequately determine when the use of dogs in mediation is appropriate.

There is a multi-faceted consideration that must be undergone in pre-screening to determine when the use of dogs in mediation is appropriate. One such consideration is determining if the parties feel comfortable having a dog present in the process.[78] If any party feels fear, anxiety, or other discomfort from the presence of a dog, either from previous experiences or otherwise, the use of one in mediation is improper. The integration of a dog’s use must follow the core value of mediation as a voluntary process, and such choice must be left to the unanimous adoption of the parties.[79] That’s not to say a mediator cannot explain the benefits they believe the parties would gain from the presence of a dog prior to the parties making such determination.

While the wellbeing of the parties must be considered, so too must the wellbeing of the dog.[80] Studies show that individuals who have committed domestic violence may be predisposed or more likely to commit acts of violence against animals.[81] Thus, some mediators advocate that any type of domestic victim-offender mediation should be off-limits to dog integrated mediation.[82] This decision should be a case-by-case assessment left to each individual mediator.

Besides the physical wellbeing of the dog, the dog’s mental wellbeing must also be considered. Dogs provide tremendous opportunities to enhance mediation because they have a unique ability to connect with people; however, like people, dogs are susceptible to a range of emotions brought about by stress. Therefore the frequency of their use must be monitored and controlled.[83] Hospice facility dogs are perhaps the best example of the need to monitor and control exposure of a dog to high-stress and emotional environments. Some hospice facility dogs often receive vacation periods away from the facility and patients due to their propensity to grieve the loss of those who they have formed bonds with.[84] Like hospice dogs, a dog used in mediation will not be capable of high-intensity mediation on a daily basis, and for the dogs emotional health and wellbeing, must be given days off.[85] One mediator explained that due to the intensity of his mediations he typically uses his dog only a handful of times a month.[86]

Finally, observations by mediators who already implement dogs in their regular practice suggest that the benefits dogs bring to mediation may be linked to the bonds they form with the parties during the screening process. While no mediators suggest that this
“meet and greet” with the dogs is an absolute necessity, they do suggest that if possible, each party should be given an opportunity to meet the dog prior to the commencement of mediation so to ensure that the parties gain the maximum benefit possible by the dog’s presence. This also provides an opportunity to insure that the dog does not act in an adverse way toward any party.

IV. Conclusion

Dogs understand conflict,[87] and their ability to reduce anxiety and empower parties are attributes that make dogs the perfect untapped resource for enhancing mediation and aiding mediators in the management of negative dynamics that often stand in the way of building and maintaining cooperation and trust. Whether dogs are active participants or passive bystanders in mediation, their mere presence provides impartial support to each party by way of reduced anxiety, reduced blood pressure, and decreased stress. Combined, the numerous effects dogs have on parties empower them and allow them to speak more clearly and effectively while maintaining a more balanced emotional state.

Furthermore, the benefits dogs provide in mediation are conducive to all models of mediation. For a facilitator, dogs serve as an additional tool at the disposal of the mediator, standing by as an object for disassociation or as an intervener. For a transformative mediator, dogs may serve as the ultimate figure of empowerment and impartiality, permitting the mediator the opportunity to take an even farther step back as parties more clearly communicate and strive towards recognition and transformation. And for an evaluative mediator, a dog serves as an additional means of achieving resolution, allowing the parties to better articulate their cases and the mediator a better opportunity to evaluate each party’s position.

Despite evidence that dogs have been companions and provided benefits to humans for centuries, their roles in modern society still remain largely in the home. Even still, their use in hospitals, schools, nursing homes, prisons, and courtrooms have all provided evidence of the benefits they provide to humans. It is only logical these benefits would transfer to mediation. Thus, in the ongoing quest to enhance mediation and the experience and satisfaction of the parties, especially through the management of dynamics that impact cooperation and trust, dogs should top of the list of untapped resources for mediators to consider.

[1] Americans and Their Pets, GALLUP, (Dec. 21, 2006), http://www.gallup.com/poll/25969/americans-their-pets.aspx.
[2] Id.
[3] CENTERS FOR DISEASE CONTROL AND PREVENTION, HEALTH BENEFITS OF PETS (2014), http://www.cdc.gov/healthypets/health-benefits/ (also noting that pets can decrease feelings of loneliness, while simultaneously increasing opportunities for exercise and social interactions.).
[4] Lorraine Judson Carbary, What Are Those Animals Doing on the Health Care Team?, 25 J. PRAC. NURSING 28, 28-30 (1975); see also Alister Blythe, Patients’ Best Friends … Companion Animals, 90 HEALTH & SOC. SERVICE J. 1479 (1980).
[5] Linda M. Hines, Pets in Prison: A New Partnership, 37 CAL. VETERINARIAN 7, 7-17 (1983) and Cheryl Wittenauer, Inmates Say Training Dogs To Help Disabled Helps Their Self-Esteem: Women Prisoners Train Service Dogs, http://www.trivalleycentral.com/trivalley_dispatch/news/inmates-say-training-dogs-to-help-disabled-helps-their-self/article_dd5d88a4-9b10-5a2d-a85d-4128bd3dd8e0.html (last visited Sept. 20, 2016) (discussing increased inmate enthusiasm and improvement in inmate positive self-image through the use of dogs within the prison system, in addition to “the entire feel of the institution soften[ing] since the integration of dogs.).
[6] Nancy Polk, See Spot Listen, N.Y. TIMES, Apr. 13, 2003, Section 14CN, at 17; see also Reading to Dogs: A Library’s Guide to Getting Started, http://readingtodogs.weebly.com/research.html.
[7] Clark M. Brickel, Depression in the Nursing Home: A Pilot Study Using Pet-Facilitated Psychotherapy, in THE PET CONNECTION, 407, 411-14 as cited in Andrew Leaser, See Spot Mediate: Utilizing the Emotional and Psychological Benefits of “Dog Therapy” in Victim-Offender Mediation, 20 Ohio St. J. on Disp. Resol. 943, n.14 (2005) (showing that social interaction by residents placed with dogs increased over those who had no such interaction).
[8] Courthouse Dogs, “Using a Courthouse Facility Dog in the Courtroom,” www.courthousedogs.com/courtroom.html.
[9] While articles have been written to demonstrate the potential benefits of dogs as an aide to a testifying witness and in other roles within the judicial system, few articles have been written regarding the use of dogs in mediation and their ability to impact the management of dynamics relating to cooperation and trust. This article is meant to fill that gap.
[10] Jonathan G. Shailor, Empowerment In Dispute Mediation: A Critical Analysis of Communication 11 (1994).
[11] In discussing methodology this article focuses primarily on the facilitative and transformative models of mediation, with only a very brief discussion on evaluative methodology and the benefit of dogs under that model.
[12] Christopher W. Moore, THE MEDIATION PROCESS: PRACTICAL STRATEGIES FOR RESOLVING CONFLICT 124-25 (2d ed. 1996).
[13] This article relies heavily on Chapter 7 of The Mediation Process to provide an effective blueprint for discussion of the dynamics of mediation that dog integration would likely address. To counter this reliance on one scholar, the article will also provide supporting evidence of these viewpoints by way of other scholarly works. In addition, the article was heavily influenced and sourced from the article See Spot Mediate: Utilizing the Emotional and Psychological Benefits of “Dog Therapy” in Victim-Offender Mediation, supra note 7.
[14]  Moore, supra note 12, at 161-62.
[15] Id. at 125 (citing Ann Douglas, Industrial Peacemaking 310 (1962), S. Kessler, Creative Conflict Resolution: Mediation (1978), and Isolina Ricci, Mom’s House, Dad’s House (1980).
[16] Id.
[17] Leaser, supra note 7, at 948 (discussing the use of dogs in victim-offender mediation and the emotional intensity in that setting). Notably, Leaser analogized the role of mediators to those of therapists. While his argument for the integration of dogs may be compelling on those grounds to some mediators, I do not refer to “therapy” dogs in my article under the assumption that doing so may infer the parties are in need of therapy, when in reality they may not be.
[18] Moore, supra note 12, at 124; see generally Douglas Stone et al., DIFFICULT CONVERSATIONS: HOW TO DISCUSS WHAT MATTERS MOST, 85-87 (1999); see generally Roger Fisher & William Ury, GETTING TO YES: NEGOTIATING AGREEMENT WITHOUT GIVING IN, 59-82, 91-96 (1980).
[19] Id. at 125.
[20] Id. at 127.
[21] Id. at 128.
[22] Id.
[23] Id.
[24] Id. at 129; see generally Leaser, supra note 7.
[25] Robert D. Benjamin, Mediation Dogs, 19 MEDIATION NEWS, Winter 2000, at 10 (emphasis original).
[26]  Robert D. Benjamin, Dogs As Conflict Mediators, MEDIATE EVERYTHING (July 2003), http://www.mediate.com/articles/benjamin13.cfm.
[27] Jaymi Heimbuch, 6 Medical Conditions That Dogs Can Sniff Out (June 28, 2016, 10:54am), at http://www.mnn.com/family/pets/stories/6-medical-conditions-that-dogs-can-sniff (describing a dog’s smell as so acute that they have the ability to discern changes in our hormones and bodies that are signs of cancer, narcolepsy, migraines, low blood sugar, seizures, and most pertinent to the above example, stress and fear).
[28] Kate Bratskeir, Here’s How a Dog Can Help Stop An Aspergers Meltdown (June 17, 2015, 11:09am) at http://www.huffingtonpost.com/2015/06/17/aspergers-dog-video-samson-danielle_n_7594598.html. To see the since-removed YouTube video once imbedded in the Huffington Post article, see https://www.youtube.com/watch?v=UxOa71purzw.
[29] This is likely due to the centuries-old bond between humans and dogs. For example, in 2011 researchers discovered the remains of a male dog that lived 7,000 years ago in Siberia that ate human food and was buried as though he were human. Another discovery found gravesites older than 10,000 years in which dogs were buried alongside humans, of particular significance as an indication of the close relationships the dogs shared with their human counterparts. Prehistoric Dog Lived, Died Among Humans, SEEKER (Feb. 28, 2011, 3:00 AM), http://www.seeker.com/prehistoric-dog-lived-died-among-humans-1765181907.html; Jennifer Hord, Man’s Best Friendship at least 14,000 Years Old (Oct. 13, 2014), http://www.fromthegrapevine.com/nature/mans-best-friendship-goes-back-14000-years; see generally Leaser, supra note 7.
[30] Notably, a dog’s presence is not meant to be an absolute bar on permitting a party to truly vent when deemed necessary. Ultimately the mediator remains in control of the dog and in control of the process. Thus, determining when the dog should be present, or not, and determining when caucuses with or without the dog present should occur must be left up to the mediator, and also to the parties. This point underscores the need for a mediator to undergo advanced training tailored to the use of dogs in mediation.
[31] Moore, supra note 12, at 132 (citing Adam Curle, Making Peace (London, 1971)).
[32] Id. at 133; Deborah M. Kolb, When Talk Works: Profile of Albie Davis, 260, 266 (regarding searching for themes and sustaining momentum and morale in mediation).
[33] Id.
[34] Id.
[35] Robert A. Baruch Bush & Joseph P. Folger, The Promise of Mediation: Responding to Conflict Through Empowerment and Recognition 261-62 (1994).
[36] Id.
[37] Id. at 82-83. Bush and Folger argue, “In the transformative orientation, the ideal response to a conflict is not to solve ‘the problem.’ Instead, it is to help transform the individuals involved, in moral growth . . . It means encouraging and helping the parties to use the conflict to realize and actualize their inherent capacities both for strength of self and for relating to other . . . If this is done, then the response to conflict itself helps transform individuals from fearful, defensive, or self-centered beings into confident, responsive, and caring ones, ultimately transforming society as well.”
[38] CalmClinic, How Anxiety Can Impair Communication, http://www.calmclinic.com/anxiety/impairs-communication (discussing how people who experience anxiety often describe having a more difficult time communicating effectively when they are experiencing moments of heightened anxiety). It would follow, then, that if a dog has an innate ability to lower anxiety, they would also have an innate ability to affect communication.
[39] Mary Randolph, Dog Law: A Legal Guide for Dog Owners and Their Neighbors (3d ed. 1997).
[40] Id.; see also Leaser supra note 7 at 959 (citing Alan Beck & Aaron Katcher, Between Pets and People: The Importance of Animal Companionship 159 (1983)) (noting that dogs can make a unique contribution to mediation because of their capacity to make people feel safe, loved, and worthwhile).
[41] Nancy Polk, See Spot Listen, N.Y. TIMES, Apr. 13, 2003, Section 14CN, at 17; Reading to Dogs: A Library’s Guide to Getting Started, http://readingtodogs.weebly.com/research.html (outlining basic research on the benefits of dogs for children in libraries). In schools and libraries it is believed that students’ anxiety is brought on by their fear of judgment from both their peers and their teachers. It’s conceivable that similar anxieties exist for parties in mediation, and that a party exhibiting severe anxiety could talk directly to a dog rather than the mediator or opposing party in order to better manage their anxiety, and thus to better communicate. Instructing the witness to talk directly to the dog is a tactic that prosecutors have used with success for testifying children who are accompanied to the stand by courthouse dogs.
[42] Rosemary Simota Thompson, K-9 Probone-O Contribution at Juvenile Court, 14-JAN Chi. B. Ass’n Rec. 40 (2000).
[43] Id.
[44] Hart-Cohen, “Canines in the Courtroom,” GPSolo 54, at 2-4 (July/Aug. 2009), available at www.abanet.org/genpractice/magazine/2009/jul_ aug/caninesincourtroom.html. Here, observation led to the argument that a child witness who is accompanied by a court facility dog is empowered to testify without fear, sometimes merely by holding the dog’s leash and having control of it. The article also notes a tactic briefly mentioned above of petting and speaking directly to the dog instead of the examiner. This led to a sense of well being in the child, decreased anxiety, lowered heart rate, and thus more effective testimony. While this tactic may help children who may be present in mediations, I hesitate to suggest a mediator should attempt this approach for fear of patronizing a party; however, the flexibility of mediation and a case-by-case analysis would enable a mediator to know what is best under their respective circumstances.
[45] Id.; see generally Samuel A. Corson & Elizabeth O. Corson, Pets as Mediators of Therapy, 18 Current Psychiatric Therapies 195, 201 (articulating that dogs are an effective instrument for developing communication and re-socialization.).
[46] Sandra B. Barker & Kathryn S. Dawson, The Effects of Animal-Assisted Therapy on Anxiety Ratings of Hospitalized Psychiatric Patients, 49 PSYCHIATRIC SERV. 797, 798 (1998).
[47] Stone, Patton, Heen, supra note 18, 85-87.
[48] Id.
[49] Moore, supra note 12, at 137.
[50] Id.
[51] Id.
[52] Id.
[53] Id.
[54] See generally, Leaser, supra note 7.
[55] Benjamin, supra note 25, at 19.
[56] Id.
[57]  Mark S. Umbreit, Mediating Interpersonal Conflicts: A Pathway to Peace 194 (1995).
[58] Moore, supra note 12, at 140; Kolb, supra note 32.
[59]  Id.
[60] Id.
[61] Id.
[62] Id.
[63] Id.
[64] Morton Deutsch, Conflicts: Productive and Destructive, 25 J. of Soc. Issues 1, 7-41 (1969).
[65] Robert Rubinson, Mediation Models and Comparative Dispute Resolution: Of Grids and Gatekeepers: The Socioeconomics of Mediation, 17 Cardozo J. Conflict Resol. 873, 878 (2016).
[66] See generally Stone et al. supra note 47.
[67] See generally L. Randolph Lowry, Evaluative Mediation, in Divorce and Family Mediation: Models Techniques, and Applications 72 (Jay Folberg et al. eds., 2004) (discussing the efficiency argument for evaluative mediation, where “evaluation expressed at the appropriate point shortens the time of dialogue and moves mediation toward settlement.”). While evaluators are not indifferent to party emotion, when efficiency, settlement, and evaluation of claims is the goal, a fundamental difference arises between how facilitative and transformative models view emotion compared to evaluative models. For example, one characteristic that distinguishes facilitative mediation from evaluative mediation relates to its treatment of the past. Evaluative mediators are concerned with how a “fact-finder” will view issues of the past, and in this sense acts as a quasi fact-finder. Facilitative mediation, however, encourages a forward-looking orientation. Rubinson, supra note 65, at 880. This is also fundamentally different than transformative mediations treatment of the past.
[68] Rubinson, supra note 65, at 878.
[69] Leaser, supra note 7, at 973.
[70] Rebecca F. Wisch, FAQs on Emotional Support Animals, ANIMAL LEGAL AND HISTORICAL CENTER (2015), https://www.animallaw.info/article/faqs-emotional-support-animals#s2 (distinguishing emotional and service animals). The Animal Legal and Historical center defines service dogs as: “dogs that are individually trained to do work or perform tasks for people with disabilities. These tasks can include things like pulling a wheelchair, guiding a person who is visually impaired, alerting a person who is having a seizure, or even calming a person who suffers from Post-Traumatic Stress Disorder. The tasks a service dog can perform are not limited to this list. However, the work or task a service dog does must be directly related to the person’s disability. Service dogs may accompany persons with disabilities into places that the public normally goes. This includes state and local government buildings, businesses open to the public, public transportation, and non-profit organizations open to the public. The law that allows a trained service dog to accompany a person with a disability is the Americans with Disabilities Act.”) (Emphasis added). The Animal Legal and Historical Center further defines emotional support animals as “an animal (typically a dog or cat though this can include other species) that provides a therapeutic benefit to its owner through companionship. The animal provides emotional support and comfort to individuals with psychiatric disabilities and other mental impairments. The animal is not specifically trained to perform tasks for a person who suffers from emotional disabilities.” (Emphasis added). Emotional support animals and their owners are granted protection under the Federal Fair Housing Act.
[71] See generally Gabriela N. Sandoval, Court Facility Dogs – Easing the Apprehensive Witness, 39-APR Colo. Law. 17, 21-22 (Apr. 2010). Sandoval argues on the training level of courthouse facility dogs, and not on mediation, however her arguments for best practices in that setting is compelling here.
[72] Id.
[73] Not Just a Courthouse Dog, THE CRIME REPORT, Apr. 14, 2014 (suggesting that the cost of training the dogs ranges from $6,000 to $7,000, and lifetime veterinarian fees, trainer time, room and board, and insurance, can run from $25,000-$50,000.).
[74] See generally id.
[75] Wisch, supra note 70 at 2 (describing therapy dogs, which often operate under the characterization of Animal Assisted Therapy (AAT) Dogs, as dogs that are typically the personal pets of their handlers who have met specific criteria for health, grooming, behavior, and obedience. While managed by their handlers, their work during AAT is not handler-focused and instead provides benefits to others.). Although some argue this level of qualification does not meet the standards needed for mediation, this should be a decision left to the mediator, and dogs who undergo adequate testing through Therapy Dogs International, or similarly qualified therapy dog certification programs, may indeed be suitable for mediation.
[76] Leaser, supra note 7, at 976-77.
[77] Id.
[78] Id.
[79] Id.; Philip S. Arkow & Shelby Dow, The Ties That Do Not Bind: A Study of the Human – Animal Bonds That Fail, in THE PET CONNECTION, supra note 7.
[80] Id. at 976-77.
[81] Angela Campbell, The Admissibility of Evidence of Animal Abuse in Criminal Trials for Child and Domestic Abuse, 43 B.C. L. Rev. 463, 464-65 (2002). This article presented evidence that 24% of abused women reported their abuser had abused animals in the women’s presence, while another study found that 71% of the 74% of women in a battered women’s shelter who owned a pet stated that their abuser had also abused the animal.
[82] Id.; Leaser, supra note 7, at 976-77.
[83] Leaser, supra note 7, at 976-77.
[84] Personal experience of the author found that at least hospice facility dogs in the Hospice of Northwest Ohio system take frequent leaves to grieve. This is further supported by evidence of the grief dogs feel after losing someone they have formed bonds with. Cesar Milan, Dog in Mourning: Helping our Pets Cope with Loss (2015).
[85] Leaser, supra note 7, at 977.
[86] Leaser, supra note 7, at 977 (citing Terrie Carpenter, a therapy animal evaluator and trainer, who states that scheduling should depend on what each individual handler believes is most healthy for their dog).
[87] Robert D. Benjamin, Dogs As Conflict Mediators (July 2013) http://www.mediate.com/articles/benjamin13.cfm.