When the judge began, he told the group to re-imagine the setting to replace the tables and chairs in their mind’s eye, because it was now time to have a vertical conversation.  We all laughed and as he spoke, eventually it became a dialogue between us, and at the end, I remarked that I appreciated that in our responses to each other, it seemed we had had a horizontal conversation.

It was all in good fun, but for me, it symbolized our basic differences, that our aspiration as mediators is to provide a very different kind of conversation than people expect to have with professionals, where we have no power over them and where we can relate to them without so much of the professional distance and authority which mark so many interactions and characterize the traditional adversary system of the courtroom.  The potential of horizontal conversations to shift the power from the professional to the parties is at the heart of what we hope to be doing in our conversations on this blog as well as when we teach and mediate.

Conflict is often considered quite unpleasant, unproductive, and to be avoided if at all possible. When people come to conflict professionals about a dispute, they typically have already tried to work it out themselves and have given up.  Sometimes they blame the other person for their impasse and sometimes they take some of the responsibility themselves, but their feeling is often that the conflict is intractable and there is nothing more they can do.  They think they don’t have the skills to work through conflict together.  They may feel powerless and hopeless.  They often feel quite pessimistic about finding a solution.

Their lawyers may feel similarly pessimistic.  Studies have shown lawyers are generally more pessimistic than the average person.  The lawyer’s job is traditionally focused on preparing for a court to make a decision because the parties cannot.  Thus, even though lawyers work towards and can reach agreements, they are often thinking about what happens if there isn’t an agreement.  When they initially hear about the conflict from their client, the pessimism of both the clients and lawyers may reinforce each other.

I am naturally a pretty optimistic person, with a sense that things will work out well and looking for the silver lining even in difficult circumstances.  Not hopelessly Pollyannaish, but definitely on the half full side of a problem.  When I serve as a mediator, my optimism can help to balance the pessimism or hopelessness that the lawyers and parties feel.  With even just one person in the room who believes that conflict itself isn’t so bad, that we can work through it and that a solution can be found, the parties can try on the idea that they will figure it out.  When they feel discouraged, knowing someone else believes they can do it may be what part of what helps them to find additional motivation to continue.   I have seen parties get a “second wind” after asking me if it’s worth continuing and hearing my response that I think an agreement is possible.

Many of us have experienced how critical it is to have someone believe that we can do something that seems a stretch or impossible for us – a parent, a mentor, a teacher, or a coach.  As professionals working with people in conflict, our optimistic belief that the parties are capable of working through conflict and reaching an agreement together may be what helps them to stretch and make the extra effort to do that.

The wife, when asked whether she had any concerns about the Collaborative process, said that she did not know if she would be able to trust the husband’s attorney since she had so little trust for her husband.  The way the woman playing the wife phrased this was to say directly to the husband’s attorney, “I don’t trust my husband and because you are his attorney I’m not sure that I’ll be able to trust you in this process.”  In response to that very direct statement, the team became defensive. One person took the opportunity to defend the Collaborative process. Another wanted to reassure the wife that the husband’s attorney could be trusted but did not know how to do that. The training participants turned to me for help.

I suggested to the team that although it might feel uncomfortable, this was not necessarily a difficult moment in the process. Instead, I invited them to see it as an opportunity.  An opportunity to discuss with the wife what trust meant to her, whether and why she would want to trust both attorneys and the rest of the team and what it would mean for her if she were able to do so.

With guidance, the role play participants inquired of the wife about trust and then reflected back to her their understanding of her response.  The result was a significant shift in the dynamic of the team and their work with the parties.  Both parties were able to talk about what trust meant to them, what the breach of that trust had meant to them and what kind of trust would need to be established in order for them to move forward.  The team was able to hear what they would need to do to establish trust with the parties and what it would mean if they did not.  It was a moving experience.

It can be helpful to recognize the power and persistence that the Conflict Trap can have over any and all of us. When conflict takes over, it creates its own reality. It dictates the terms on which we experience others and ourselves caught up in conflict’s grasp — right and wrong, winning and losing, success and failure. And it often does so in insidious, unseen ways that can make others the personification of evil and can make us either completely unrecognizable to ourselves or, if we are willing to admit it, perhaps a bit too recognizable.

Conflict readily dictates reality according to its own terms to those in its grasp. These edicts might include the need to think, feel, and speak based on right and wrong, winning and losing. Emotions, such as anger, rage, and righteous indignation are evoked and readily escalate. Others may be felt but are, if recognized, kept hidden. Hurt and fear are sometimes denied and unseen. Compassion, connection, understanding, and caring often disappear, as if they don’t exist.

It seems that the only way out is to win — through threat, pressure, persuasion, or manipulation. Or dig in your heels and wait the other side out until they come around – knowing, even if you become enmeshed in a prolonged stalemate, you can at least feel the satisfaction of righteous indignation. And if the other does not wisely succumb, surely a third party decider will vindicate you — because indeed there is one right and one wrong, and you are the one who is right.

Mediators are often thought of as third party deciders responsible for recognizing who is right and who wrong and acting accordingly. There is a danger that mediators too, can often find themselves thinking of themselves as responsible for this task as they seek to devise ways to help the parties end the conflict. From that experience and perspective, almost any technique that helps the parties reach closure can make sense including caucusing or substituting one’s own solutions for those of the parties.

The Understanding-Based approach suggests that supporting people caught in Conflict’s grasp requires not only helping the parties work out some kind of solution on the surface. It means recognizing the power of Conflict’s hold over the disputants, and also all too readily over us as well, and seeking to free them (and us) from that hold. We seek to do so by working with parties in conflict, not only in physical form in the same room (our non-caucus approach) but also in spirit as we seek to find ways to deepen understanding within and between the parties and reach for solutions that honor all of us.

We have found six principles that have guided us in that work. We set them out briefly here:

• First, we seek to rely on the power of understanding rather than the power of coercion or persuasion to drive the process.
• Second, the primary responsibility for whether and how the dispute is resolved needs to be with the parties.
• Third, the parties are best served by their working together and making decisions together with the support of the mediator.
• Fourth, we seek to proceed by agreement about how we work at each step of the mediation as well as the substance of what might be decided at any point.
• Fifth, we work to allow tension and to honor and work creatively with it and through it rather than denying or avoiding it
• Sixth, we recognize that conflicts are best resolved by going under the conflict — working to uncover what lies under the level at which the parties experience the problem and fuels their conflict.

In future Newsletters, we will from time to time be developing each of these principles and their importance and power in supporting parties to resolve their conflict through understanding.

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What makes this so difficult to learn is that it is entirely counter-intuitive. How can focusing on myself help others, particularly others in trouble? What is particularly troubling to many is a feeling that we don’t want to mix up our personal life with that of our clients. If we did, we would be part of the problem rather than the problem solver. Of course, for those of us who are lawyers, this violates much of what we learned about how to help clients. In fact, detachment is often considered to be a key ingredient of professionalism. As a matter of fact, we often find ourselves most irritated by professionals who have lost that detachment and seem so caught up in their identification with their clients that they have lost all perspective. As mediation and now collaborative practice have gained ground as part of the conflict scene, we have noticed that this problem of over-identification with clients is not limited to lawyers, but seems to have crept into the work of all of the professionals who participate in conflict resolution.

While we have the impulse to try to keep our distance from the clients so that we don’t create problems, the skill that is necessary is to bring our understanding of ourselves to draw closer to the clients and to the heart of the problem. There is unquestionably a danger in getting too caught up in our client’s situation and losing sight of the bigger picture. There is also a danger in too much detachment which guarantees that our distance from the problem will render us ineffective in understanding what the parties are going through and being able to convey that to the people we are trying to help. The key is to learn how to work with our reactions to draw us nearer to our clients. This is easy to say and hard to do.

We have developed the Self Reflection for Conflict Professionals Intensive program to help participants access and utilize their inner lives when working with people in conflict. Through becoming familiar with the ways in which they relate to others going through conflict the goal was to use those insights to help their clients evolve in their relationship to conflict. In the program, one of our major discoveries has been that the most troubling emotional reactions we have to our clients are the keys to be able to help them. By engaging within ourselves to work with these reactions rather than ignore or dismiss them, we have found that engaging these unpleasant feelings opens the door to help others. Our workshops vary from one day to one week and include ongoing support for this work.

For more information, see our video about our program at http://www.youtube.com/v/GqU45jn-GhE&feature=youtube_gdata_player&autoplay=1&rel=0&fs=0&hd=0

Certainly there is abundant evidence in all societies and throughout the world that the urges toward domination, revenge, exclusion, greed, hatred and protection of oneself, one’s family and one’s group have enormous power and attraction. Historically, rights-based legal systems have provided a critical check on sheer power as the dominant form of dispute resolution and will continue to be central. Yet, the underlying impulses toward compassion, connection and empathy are also deeply present and suggest the possibility of another evolutionary step. These deeper human motivations are often available to us if the deeper desire is recognized and the possibility of expression supported. In this month’s recommended book, In The Third Alternative, Steven Covey posits that the best solutions can only be reached when people are willing to be empathic — including their own view as well as the other’s in guiding the path toward resolution.

Can mediation be grounded in an empathetic response to conflict between people? We believe it certainly can. The Understanding Based approach to mediation and our non-caucus model brings the parties together and seeks to work through their differences. As mediators, we reach first to understand each party within ourselves and then to the further possibility of accessing and finding expression for compassion and connection in each of the parties, and between them.

We also see this possibility of tapping the often hidden empathy between disputing parties as underlying, perhaps deeply so, the movement toward mediation in general. We certainly recognize how strong the desire is to forge quick solutions to conflict – “to just get it over with” – - as is so often the case with many parties in mediation, and also with many mediators. In the widely accepted and used shuttle approach, the mediator goes back and forth between the parties (and their attorneys) sitting in separate rooms, trying to bring about a solution-often one set out by the mediator (although some mediators who rely on shuttle diplomacy may also seek 1 to reach for empathy). Dealing with what underlies the conflict may be largely ignored, in favor of moving the parties toward compromise solutions, using persuasive techniques and even subtle, or not so subtle, forms of coercion.

We believe that the personal and social reaching for greater empathic understanding lies at the heart of the gradual movement toward and acceptance of mediation, despite the many steps often taken by people in and around conflict that appear to negate that impulse and that movement. As we view it, Conflict is a force in our social and individual psyches with a powerful hold. So where empathy and compassion appear to enter the scene, Conflict can readily evoke the power in individual parties of self-righteousness, anger, blame, fighting and a win- lose perspective. Conflict can also evoke in mediators these same inclinations in mediators, with the result of our all too readily seeing the parties’ conflict exclusively through the lens of judgmentalness, power and discord.

And yet the possibility and power of empathy and compassion are there — often hidden and fearing expression — if only we recognize that possibility and embrace the willingness to reach for them within and with the parties. And it can start with us – finding and cherishing the deeper desire for empathy within us and seeking to develop its expression for ourselves and in our connections with others.

But sometimes, I am more like the video mother.  I am going through the motions of connecting to the client by apparently listening and responding to my client, but something has prevented me from entering her emotional space and accepting it.  It may be that I am distracted and not fully listening or engaging – perhaps my mind is on the case I just finished or the one coming up.  Or it may be that I have reacted to something the client has said or her demeanor and non-verbal communication and rather than entering her emotional space, I am caught up in my own reactive emotions and feelings.  Or it may be that I have made a judgment about something she has said or done or the stance she is taking and I move into trying to convince her she ought to be feeling or thinking differently.   When that happens, I am not attuned to the client and she can feel that.  She may repeat what she has said or may tell me I don’t get it or may tell me a less complete story by assuming I am not interested.  In that case, both my client and I lose the valuable opportunity for understanding her perspective and reduce the chances that I will be able to meaningfully assist her.

So – is it live or is it Memorex?  The client can tell.  I will be renewing my efforts to be fully present, to be aware of my reactions, and to be open to taking in and accepting my client’s story and emotions.

One advantage is that the lawyers and parties have more control over the outcome and process, e ven though they sometimes feel they have more control if they are meeting separately because the lawyer can shield a client from the other side, particularly in a situation in which sensitive information is disclosed to the mediator. However, there is then enormous reliance on the mediator’s judgment regarding what information is revealed and what outcome may be acceptable to the either side. In a joint meeting, the parties and lawyers are privy to unfiltered content and can make their own independent determination regarding what would be acceptable to the other through observing both verbal and nonverbal communication.

Another advantage of a joint meeting is the possibility for parties to hear and be heard by each other, which is particularly important for many people to be ready to let go of the conflict and come to resolution. Lawyers who are sensitive to their clients’ emotional states recognize that what may lie at the root of irrational behavior of a client is the parties’ frustration at not being understood, or being misunderstood by the other.
A third advantage is the ability to have a conversation about the law, which is often an important stage in the mediation. It can be enormously educational to parties to hear about the law not only from their own lawyer but also from the mouth of the other lawyer. This is further enhanced if the lawyers are willing to take the additional step of going beyond posturing and discussing the legal risks their clients face.

Another opening that can occur in joint meetings is for the parties to understand what is important to themselves and the other by being present when they speak about what is really at stake for them. A live conversation helps them to appreciate the realities of their situation in a more immediate and visceral way than can happen through separate conversations with and reports back from the mediator.

The participation of lawyers and clients together with a full understanding of the situation provides unparalleled opportunities for creativity and synergy that come from the physical reality of having everyone together.
Is this for everyone? Of course not. Is it right for all lawyers and parties? No. But having a thorough and honest discussion with lawyers and parties together regarding the process is an opportunity in and of itself to have a different experience of everyone’s relationship to the conflict.

A focus that looks forward does not mean, however, that it is wrong to talk about what happened in the past (as some approaches to mediation suggest). Indeed, it can often be critically important to clarify, understand and to receive and express understanding for each other’s perspective on what happened in the past that can allow for a fuller and more whole-hearted movement into the future. This work can be important for individuals when they want the resolution to take account of the hurt and angry feelings that may have been so central to the dispute even if they will not have a future relationship. It can also be particularly important and desirable when there is ongoing relationships such as between parents in a divorce or business associates as they continue to interact in the future. A firm ground going forward can be built upon a fuller understanding of what happened in the past. To do so means creating the opportunity for letting go of the hold that “judgment” can have over us and being open to the meaning that understanding can have for us.