Crossing the Racial Divide

By Gary Friedman

Eric and Gary in serious thought in discussion regarding racial bias and conflict

“You know, Gary. The difference between you and me is that I need you and you don’t need me.” When I heard this coming from Eric, an amazingly talented and courageous black man, I was completely taken aback. Eric and I were part of a multi-racial training team that was preparing to present a program on racial bias and transformation. We were committed to being honest with each other, particularly as part of our investigation of the deep underlying personal layers of racism that we were exploring.

I knew that there was a lot that I didn’t understand about both the perspective of people of color and my own unconscious racism. As I took in Eric’s statement about both himself and me, my first instinct was to respond by saying that it wasn’t true that I didn’t need him. But as he talked and I began to reflect I felt that there was some truth in what he said. After all, I had spent many decades living in ignorance of so much of what people of color were experiencing and at least on the surface, it hadn’t interfered with my life. I had managed to successfully create a work life of practicing and teaching mediation with very little contact with people of color. Living in a rather affluent community, I also knew that the professional mediation community was almost entirely white, so to that extent, what Eric had said about me was true. And I knew that as a white professional with some status in the professional community, I could open doors for Eric that he wouldn’t otherwise be able to access. Yet when I acknowledged the truth in his statement out loud, I felt awful. It clearly stung him to hear me confirm his statement, and I felt guilty, arrogant and sad.

But this was just the entry point of our discussion. As we talked more, we both realized that this statement was apparently true on the surface, but there were underlying layers that revealed a different picture.

At a deeper human level, I knew that my relationship with Eric was important, both because it offered me a rare opportunity to talk with a person of color who I cared about and who was willing to explore the deeper issues of racism that separated us and was causing so much pain in the world.

My picture of myself as a white liberal, not racist, had been punctured by the deep conversations we had been having about the many ways in which my privilege as a white man had provided me with advantages not available to him. Simply the differences in the color of our skin, for starters, opened doors for me and closed doors for him that made life easier for me and harder for him. So on this deeper level, my relationship with him mattered a lot to me.

But this wasn’t just personal. It was also cultural.  I know that I need this relationship to shake things up and help me learn about the parts of my life that have been dulled or repressed by my whiteness.  We, white people need to have people of color in our lives because the need for social change is so urgent and profound that all of us are affected by our current system in ways that erode the quality of lives for all of us.  And most of all we  need to heal the deep wounds that we all carry whether we know it or not from 400 years of white supremacy.

When I first responded to him acknowledging that he was right about my not needing him , I said “you know, Eric, while that might be true that I could walk away from our relationship and on the surface my life would continue rather undisturbed, what I realize is that because I choose to be in relationship with you, it actually feels stronger to me. Our friendship matters a lot to me and the fact that it is something I want might be a greater commitment than if I felt that I didn’t have an option to not have you in my life. And on a deeper level for you, maybe you don’t need me at all. While I might be able to open doors for you that might otherwise be closed, your emotional well-being may not be dependent on me. And I think that there are even deeper levels of this question of the difference between need and want that we haven’t explored.”

Eric responded “Maybe, but your saying you didn’t need me really hurts.” When I put myself in Eric’s shoes, even though it was painful, it felt important to understand how different the world looked to him than me, how layers of pain that came from our cultural differences added to the gulf between us.  And how we both suffer from the institutionalization of discrimination that we carry today from so many years of inhuman treatment.  And at the deepest level, I think we both know that the change can’t happen without each other.

 Knowing this, I could already feel like I was being changed by this experience. There was a lot more to go, but we had opened something that felt quite profound that was bringing us closer to each other.

If you are interested in learning more about intentional conversations between the races, check out our upcoming training on October 5-6, 2019.

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Complicating the Narratives

Complicating the Narratives

What if journalists covered controversial issues differently — based on how humans actually behave when they are polarized and suspicious?

By Amanda Ripley / Solutions Journalism Network


Amanda attended our Self Reflection in Action training in February 2018 during her research for her work on changing journalism, particularly focusing on the question of how to address conflict.  Amanda is a thoughtful writer who inspires journalists to bring new skills and direction to their work for the benefit of all of us.  We highly recommend her article.  Here is the beginning of her article at Solutions Journalism with a link to read the rest.

Last summer, 60 Minutes brought 14 people — half Republicans, half Democrats — to a converted power plant in downtown Grand Rapids, MI. The goal was to encourage Americans to talk — and listen — to those with whom they disagree. Oprah Winfrey led the conversation, her debut as a 60 Minutes Special Correspondent — and her return to TV news, where she’d started her career as a Baltimore anchor four decades earlier.

It was an extraordinary opportunity. For three hours, nine cameras captured the group’s conversation about Twitter, President Trump, health care and the prospect of a new civil war. The crew even built a special table, just for the occasion. The edited 16-minute segment would represent the first of a series of planned 60 Minutes shows focused on a divided America. It was a chance for a respected news outlet to go beyond the clichés and name-calling and excavate richer, deeper truths, at a time of profound division in America.

In the end, that was not what happened. The episode drew nearly 15 million viewers, making it the third-most-watched TV show of the week, according to Nielsen ratings. But the on-air conversation was strangely dull and superficial.

First, a heavyset man named Tom said he loved Trump more every day; next, a blonde woman named Jennifer said Trump made her feel sick to her stomach. Later, Winfrey went around the table asking each person for one word to describe the typical Trump voter, then repeating their answers. “Frustrated,” said Tom. “Frustrated,” said Winfrey.

What went wrong? How could one of the most successful, relatable interviewers in American history create such uninspired television?

Deep in their bones, talk-show hosts (like journalists generally) understand certain things about human psychology: we know how to grab the brain’s attention and stimulate fear, sadness or anger. We can summon outrage in five words or less. We value the ancient power of storytelling, and we get that good stories require conflict, characters and scene. But in the present era of tribalism, it feels like we’ve reached our collective limitations.

As politicians have become more polarized, we have increasingly allowed ourselves to be used by demagogues on both sides of the aisle, amplifying their insults instead of exposing their motivations. Again and again, we have escalated the conflict and snuffed the complexity out of the conversation. Long before the 2016 election, the mainstream news media lost the trust of the public, creating an opening for misinformation and propaganda. If the purpose of journalism is to “see the public into fuller existence,” as Jay Rosen once wrote, it’s hard to conclude that we are succeeding.

“Conflict is important. It’s what moves a democracy forward,” says journalist Jeremy Hay, co-founder of Spaceship Media, which helps media outlets engage divided communities. “But as long as journalism is content to let conflict sit like that, journalism is abdicating the power it has to help people find a way through that conflict.”

But what else can we do with conflict, besides letting it sit? We’re not advocates, and we shouldn’t be in the business of making people feel better. Our mission is not a diplomatic one. So what options does that leave?

To find out, I spent the past three months interviewing people who know conflict intimately and have developed creative ways of navigating it. I met psychologists, mediators, lawyers, rabbis and other people who know how to disrupt toxic narratives and get people to reveal deeper truths. They do it every day — with livid spouses, feuding business partners, spiteful neighbors. They have learned how to get people to open up to new ideas, rather than closing down in judgment and indignation.

To read the rest, click here.

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Speaking Truth to Power: Mediator’s Roles by Gary Friedman

As neutrals, most of us work pretty hard to keep our opinions out of the mix in helping parties reach agreements.  As a matter of fact, in the Understanding Model, that is one of our agreements with parties in deciding how to work together.  In this supercharged political environment with the headlines of sexual harassment, racial discrimination and a whole host of situations that show up in our offices or impact the people who come to us, we have a particular challenge in keeping quiet about our opinions when that poses a danger of allowing a more dominant party to take advantage of a party more inclined to avoid or accommodate to adapt to a situation.

Part of our agreement with the parties includes two exceptions to our not weighing in with an opinion.  One of the exceptions is that we weigh in when the parties are making an illegal agreement, that is, one that would not be enforceable by a court.  That’s pretty clear.  The second exception is that if it seems to us that one party is taking extreme advantage of another, we want to leave room to speak up and even refuse to draw up an agreement that in our view would be unjust.  This is a tricky bit of business, because there are many agreements the parties might make that we would not agree to if we were a party.  That’s fine and that makes sense.  But how do we determine the difference between such instances and becoming accomplices to injustice.  Isn’t this rather subjective, one would ask?  Yes, of course, but that does not mean that because it’s subjective, we stay silent.  It does mean that we need to be quite clear that our consciences are part of the mix in determining how we operate as mediators.

So how then do we work within ourselves to be able to find the line that determines whether we speak up or not? First, we need to distinguish between our speaking up and the consequences of doing so. It may well be that our expression of an opinion leads to a conversation where we realize that we are off base, that some prejudice of ours has blinded us to the fact that the parties’ agreement does make sense for them.

Second, and this is probably the most important part of it, we need to distinguish between the dynamic between the parties and the substance of their agreement.  When the agreement appears to be the result of one party speaking forcefully or aggressively and the other party withdrawing or retreating, we need to scrutinize the result much more carefully than when there seems to be real give and take between the parties.  Of course, when lawyers are participating in the process, there is much less danger of this taking place.

If the problem is not the dynamic but a reaction to the substance of the agreement, we need to ask ourselves the following questions. Are we uncomfortable with this agreement only because it differs dramatically from the law or the likely outcome in court?  Here we need to recognize that even without mediation, when lawyers negotiate with each other, they often recommend to their clients results that they know would leave their clients worse off than going to court.  Why? Because for a number of situations, it is more important for clients to be able to put the conflict behind them than to go through a prolonged litigation process even if the likelihood is that the result would be better for them.

What this all calls upon us to do as mediators is to be straight with ourselves and the parties we are trying to help.  Critical to this is the ability to self reflect and notice our own internal dynamic to distinguish between our judgmental reactions and a more dispassionate analysis of what is going on between the parties or us and the parties.  Have we allowed a personal dislike of one person to impair our judgment or is there something else to this?  Part of our job is to make these discriminations and not let ourselves off the hook by deciding that our neutrality must lead to our muzzling ourselves and at the same time not use our reactions as a way of imposing our ideas on the parties we are helping by acting as judges or arbitrators.

All in all, keeping this and other tensions alive is a fundamental obligation we have to ourselves, the parties, and our world.  What a challenge.

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Trust and Positive Neutrality by Katherine Miller

Simon Sinek writes in Start with Why:

“Only when individuals can trust the culture or organization will they take personal risks in order to advance that culture or organization as a whole. For no other reason than, in the end, it’s good for their own personal health and survival.”

“Great organizations become great because the people inside the organization feel protected. The strong sense of culture creates a sense of belonging and acts like a net. People come to work knowing that their bosses, colleagues and the organization as a whole will look out for them.”

I have been thinking about trust in the work we do.  I have been thinking about the role of trust and trustworthiness in developing positive neutrality.  When we work with parties in conflict, we lower our guard and allow ourselves to be vulnerable with them as an invitation to do the same with us.  We hold ourselves in a place of openness and invite them to do the same.  Our openness and vulnerability creates a virtual net for the daring action of the parties in conflict to let down their guard and seek connection rather than defensiveness.

I’m intrigued by the idea of positive neutrality. It means to engage with each party as fully as possible for that party.  To open oneself to both and not choose between them.  It also requires allowing them to own their conflict.  Taking responsibility for their conflict would in some ways be closing myself off to them—to what is truly going on for them.  How does this relate to trustworthiness?  It does because if I am going to take over the conflict, then I disempower each party from coming to a resolution they own—if they worry that is true then they may not trust me with the whole of their truth.  If I take over responsibility for the conflict than I will ultimately be choosing between them or engaging in some form of power dynamic with them rather than staying in the supporting role.  People may WANT me to decide so they no longer have to sit with conflict but I understand that if I do, I give up positive neutrality—and the trustworthiness that comes with it—for the role of the arbitrator and that is a very different place.  There the parties trust me to make a decision –good or bad-but they don’t trust me with themselves.

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Dealing with Others is Dealing with Ourselves Dealing with Others

Remember: dealing with others isn’t just dealing with others.  We think of it that way, but that’s a mistake.  Dealing with others is dealing with ourselves dealing with others.  There are no others apart from us, and there is no us apart from them.  Our problems with others are our problems with ourselves and vice versa.  Recognizing this is the first principle.  Practicing the discipline of relationship is exactly training ourselves to understand and act in relation to others in ways we are not used to acting….   Gradually we learn that when we are different others are different too, because, without our understanding that we have been doing this, we have been co-creating with others the conflicts and interpersonal hassles of our lives.

By Norman Fischer

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Blaming is Useless by Norman Fischer

Blaming is useless. It is a smokescreen, a blind, a weight that drags you down and doesn’t get you anywhere. It is important to notice this as soon as you are frustrated and start blaming. Catch yourself. (This takes practice—you have to be quick.) Then focus instead on observing the actual feeling of frustration.

What does frustration feel like? Does your breathing tighten? Do your shoulders tense up, or does your face get red and hot? Do you clench your teeth? Your fists? What thoughts fly into your mind? Are there memories that come up? Visual images? What is frustration really like?

Oddly, if you accept frustration as frustration and study it without trying to relieve it by blaming or becoming angry, it will not overcome you. Instead, it will dissipate fairly quickly, or at least more quickly. You will simply digest it naturally.

Every human being already has a degree of persistence: we need some persistence just to stay alive, to hold down a job, to keep a human relationship functioning. All of us show up for our lives to some extent. We are all more patient and forbearing than we know, and we should recognize this and congratulate ourselves for it. We don’t need to create the quality of persistence out of nothing. Rather, we need to expand and strengthen the persistence that is already there. Cultivating persistence takes persistence.

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No One Likes a Bully…They Bring Out the Worst In All of Us

By Catherine Conner and Katherine Miller

I remember distinctly one of the most intense encounters with a bully in my professional life.  I was representing a mother who desperately hoped to settle to save their children from the father’s hostility and placing the children in the middle of their conflict.  He was representing himself as he was quite certain that he knew the only feasible outcome and was outraged in a meeting when I pointed out that his proposal was much more favorable to him and much riskier for my client.  He stood up and started pacing while speaking louder and more vociferously about why he was right and the terrible things that would happen to my client if she didn’t agree with him.  I could feel my protective instinct building and my blood starting to boil.  I stood up, walked up very close to him, and told him something along the lines of “sit down and stop being a jerk” but in more colorful language.  He did sit down and toned down his bullying in the moment, but continued to try coercing my client outside of my meetings with her.   Since that incident, I have spent a lot of time thinking and trying out more effective ways of dealing with bullies.

Check Your Own Reaction

The first step is to check on your own reaction to their behavior.  Are you now caught up in a familiar pattern when faced with bullying behavior?  Perhaps you react as I did by meeting them with a competitive and coercive attitude and actions.  Or do you become contemptuous and try to crush them with your intellectual prowess?  Or perhaps you move into a victim role and attempt to pacify them?  Or just withdraw and refuse to engage?  If you can recognize your favored fight-flight-freeze-fawn reaction immediately, you can make a choice to act differently rather than be controlled by it and remain stuck in a conflict trap.

  • Empathize
  • Acknowledge
  • Imagine

It’s hard to imagine that working on managing our own reactions can have an impact on the bully.


The next step is to take time to reflect on why the person is being a bully.  When there are other ways to deal with conflict, why is this person choosing the bully path?  What happened previously in his or her life or is happening now which has convinced him or her that this is the best approach?  Is there something you can empathize with that will help you move out of your conflict trap?

It may be that you already know enough about the situation to make an educated guess about what is driving him or her.  But it may be that you need to learn more by asking questions.  The tricky part is to be able to ask them with genuine curiosity and interest rather than as an opportunity for more judgment.  By putting yourself in his or her shoes and asking curious questions, you may learn enough to feel and express empathy for him or her and their situation.  “I can see that as the person who has handled the finances for many years, you have given a lot of thought to how this situation might work out.  And that there are a lot of pieces here that could affect the future financial health of the family and you are worried about that.  And it is very frustrating when your wife isn’t agreeing with you as she has always done in the past.”  Sometimes verbalizing and acknowledging that you see them in a positive way can make a difference.


When faced with conflict, some people may feel guilt or blame and respond with aggression to deflect some of the guilt or blame to the other rather than feel the entire burden themselves.  It may be that you or your client has contributed to the difficult situation, but that contribution has not been acknowledged so the other person doubles down in trying to share the blame or guilt.  If you can acknowledge each person’s contribution which has led all of you to the current conflict as a joint problem, you can then search for the intent and motivation to each contribute to finding a path together out of the conflict.

Dealing with a bully can be challenging.  Sometimes despite our best efforts and attention, the pattern is too entrenched and other measures such as obtaining court orders are necessary.  However, there are times when taking the time to pay attention to the conflict trap, empathizing and acknowledging each person’s contribution will shift the dynamic.

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Divorce and Animal Custody by Debra Vey Voda-Hamilton, Esq.

d-vodahamilton-bio-picHow can you, as a conflict professional, nip conflict in the bud-before it comes back and nips you and your client in the butt when handling divorces involving animals and animal custody?   Courts do not adequately address the feelings and emotions surrounding an animal that has played a central role in a married couple’s life.  This is especially true when that animal is their child.

When your clients come to you and ask about sole or shared custody of their animal how do you answer their query?  They are likely contemplating that a conflict will arise in the divorce discussion over who gets the animal.  You can’t cut the pet in half.  Courts rarely want to get involved with custody issues surrounding pets.  The law cannot respond to the feelings we have for and receive from our animal that creates the basis for a conflict needing resolution.  As a practitioner, sit down with your client in a collaborative process or clients in a mediation and spend time listening to them about how they see the pet in their life before, now and in the future.  What is it they want/need from the continuation of their relationship with the pet?

Here is an example of what a recent litigation attorney told their client in divorce about their present and future life with Roscoe the dog.  The attorney said that since their client paid at least 50% of the dog’s expenses they deserved to spend 50% of their time with the dog. They encouraged their client to fight for 50% of the time.  Their client spent a great deal of time and money in litigation.    Interestingly, the couple asked to be referred to a mediator before the judge decided who gained full possession of the dog.  Each attorney wished the mediator good luck because these clients were entrenched and immovable on 50% of the time with their dog.

After about four hours of discussion in mediation about how each party viewed the dog in their life, the parties began, independently, to reality test what 50% of the time with the dog would really look like.  All the while the mediator simply listened and supported the speaker, their view of the facts and their love of the dog.  In reflecting back what each of the clients were saying, the mediator had the opportunity to facilitate listening for understanding on both sides of the stories they had in their heads.  It became clear to everyone in the mediation that there was a solution right in front of them, they simply needed to find their way to it on their own.

What were not explored in litigation were the individual parties’ stories involving the dog in their life.  One of the parties was a schoolteacher and really only wanted the dog during vacations.  The other party stayed at home and worked from the home.  They loved having the dog around all day but also really wanted to travel.  By the end of the mediation, they realized that, in fact, if one of the parties took the dog during school and summer vacations, the other person could care for the dog during school and travel too, without having to pay for kenneling fees.  It worked out perfectly.  Mediation allowed them to do something no one had ever done with them before; explore what it was they wanted their relationship to be with this animal.

In mediation and collaborative practice, we can create the opportunity for couples to have that discussion about what their future with the dog looks like.  It works with cats, birds and horses too!  If you step away and don’t add the conflict over an animal to the litigation, you can solve for the best outcome for all, especially the animal.

Unfortunately your pet does not hate your ex. Maintaining an open line of communication truly puts the best interests of your pet into the equation.  Be brave, engage in proactive animal conflict resolution.  Here is a wish for everyone going through a divorce with a pet: that you have the ability to recognize what it is you want in your relationship with the animal first, discuss what that is second, and then finding a resolution where both of parties can enjoy the life and love of their four-legged animal comes naturally.

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To be human is to tell your tale and listen to someone else’s.  But it would make a difference to know that stories are stories.  They are real, but not in the way we think they are when we take them too earnestly and allow them to mesmerize us.  Stories are true as stories but not true as life.  They require interpretation and reflection if we are to draw lessons from them.  Stories teach us through their shapes, sounds, structures, and suggestions, their between-the-lines content that speaks to us through our souls rather than our minds or even our hearts.

To know that my story is not exactly mine, but is rather a wave rising up within the sea of stories, is to appreciate my story and everyone else’s in a new, wider, and more significant way.  Maybe by looking at stories this way we can see them as large and mysterious.  Then perhaps we won’t need to cling any longer to one particular version of our story as the only true story, the story of victimization or trivialization or despair or boredom;  instead we might began to see our many stories as stories of humanness, of being-aliveness, not just our own small possessions.  And then, perhaps, we can be inspired by our own stories, and begin to make use of them in a new way.

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Living in Tension

by Gary Friedman


A key skill for conflict professionals is the ability to live with the variety of tensions that present themselves to us as a regular part of our work life, particularly the tension of sitting in the middle of differences between parties. Now, many of us are being tested as never before by the political situation, where we are regularly facing a world of surprises, challenges, disappointments, evoking rampant fear. At least, I notice these many reactions within myself.

How do we manage ourselves during these troubled times? How will our efforts at work to live with tensions help us deal with the larger world? And how can we bring our understanding of what is happening in the larger world to help our clients deal with what is happening in their lives?

I don’t know. That is a fact that I have to accept. That’s hard to swallow but it’s also reassuring. So much of my life seemed quite figured out prior to November 8th, but the trauma of the election and subsequent events has opened me to a deep recognition of how much less I understood about the country than I thought. The world seems turned upside down a lot of the time, with daily events that only add to the challenge of living in these times.

While more than just a little unsettling, I have also discovered a major upside and interesting opportunity presented to me (us). There is a famous Buddhist saying “Not knowing is most intimate.” What I understand this to mean is that when I am clearest about what is happening within me and between me and others, this often creates a distance between me and others, and even within me, that is not present when I am struggling, confused, fearful and vulnerable.

The vulnerability that comes from not knowing creates an opening in me. I can feel more connected to more of the world when I admit my uncertainties than when I settle for an answer that closes off my curiosity. This can also happen between me and the parties I’m trying to help in my work.

With the trauma of Trump, there is no pretending that I understand all of what is going on, both outside me and within me. When I realize this and bring that attitude to my work, I feel more openness to the parties and recognize that easy answers are often not so useful as staying with uncertainty. In fact, uncertainty is closest to the truth of our situation. Anyone who believes that they know what is going to happen next is often disappointed to find out how wrong they are. That has never been more clear than it is now in the wider world.

If we can find the courage to recognize that we don’t know, and live with the tension of that, we have a better chance of expanding our understanding of ourselves, each other and the world. So all of our work as conflict professionals to learn and practice the skill of living with the tension of not knowing can serve us to better face the world now, and facing the world can help us be better conflict professionals. Perhaps a small silver lining but potentially important for us all.

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Resting in the Openness of Mind

By Norman Fischer


Resting in the openness of mind.  Sometimes it’s called not knowing. Why would we have to know everything all the time? Why do we have to be so knowledgeable, so smart, so in control?  We don’t! There’s no need to figure everything out.  We can just be alive.  We can breathe in and breathe out and let go and just trust our life, trust our body. Our body and our life know what to do.

The problem is to let them do it, to relax and let them guide us. Of course life is complicated and we have many things to work out in our material and psychological lives. But also we can find a place of refuge sometimes — in our own life, in our own breath, in our own presence.  Maybe the easiest way to do this is also the simplest way: just stop and take a breath.  One breath, maybe two or three.  You could do this now. Take a breath and return to the openness of mind.  Breathing in, breathing out, and in the feeling of the breath, noticing whatever is there and letting go of it, easily, gently.  Even if you are bored with yourself, even if you have some disturbing things going on in your life that produce disturbing thoughts and feelings in you, it is still possible in this precise moment (even now, as you are reading) to notice breathing, notice the body, notice the feeling of being present in this moment of time. This will relax you. This is what it feels like to rest in the openness of mind.

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Don’t Be One Sided by Norman Fischer

Don’t be One Sided.  This one is very important in human relations, and it runs exactly counter to the usual way we approach things.  Usually we are exactly one sided: there’s our side and the other person’s side, and it’s our side that is important, correct, or right, so much so that we may not even notice that there is another side.  But there’s always another side.  This may be so, but that also may be so.  This may be so today, but tomorrow it may not be so.  If there’s a side there’s always another side.

Don’t be One Sided has another sense too – don’t favor people you like over people you don’t like.  Try not to be one sided in that way.  This seems impossible and inadvisable.  Are we really supposed to regard our close friends, our spouse and our children the same way we regard an acquaintance or an enemy?   Realistically, no.  But that’s not the point.  The point is to notice how much in almost all our encounters we are subtly prejudiced by our one-sidedness, constantly upholding ourselves and those we like and running down (in however small a way) those we don’t like.  These prejudices, which we take for granted and affirm, actually cause us more trouble than we realize.  They create a subtle climate of preference, for and against, that gives rise to  more of our interpersonal rough spots than we realize.  So even though we may not be able to feel an equal feeling toward all, this slogan puts us on notice that we better take our one sidedness into account and do what we can to de-emphasize it.

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Navigating Conflict for Mental Health Professionals

a new workshop offering continuing education credits to all therapists.


Dr. Stacey Shuster

by Stacey Shuster, Ph.D.

Most therapists are trained to shy away from providing concrete advice to clients, and therefore are initially reticent to focus on the steps needed to move from understanding to agreement to contract.  It requires a different set of goals and skills on the part of the therapist attempting to navigate through emotionally laden disputes to know how to bring closure to a set of disagreements and help turn the wishes and positions of clients into mutually agreed-upon and documented arrangements.  For me, making the transition from a psychologist to a mediator involved a steep learning curve.

In 2002, I decided to apply my training and experience as a licensed psychologist to the area of divorce work.  I was originally motivated by a story I read in the San Francisco Chronicle:  Sharon Silverstein, a lesbian mom, had learned that it was too late to stop her ex-partner Annette from completing a second-parent adoption of their child and decided to challenge California’s second-parent adoption statute in the courts.  Not only did she try to limit Annette’s right to a second-parent adoption; upon failing, she took her personal vendetta all the way to the California Supreme Court.

Fortunately, Sharon lost.  But I realized that I did not want to stand by and allow angry exes to try to use the courts to change laws that impact the rest of us when they didn’t get what they wanted from their partners.  That was when I decided to pursue training to be a mediator, collaborative coach, co-parent counselor, and parenting coordinator.  My goal was to make the breaking-up process more civilized, cooperative and caring.  Fourteen years and countless trainings later, most of my work now revolves around divorce.

There were skills that were easier for me to learn – “looping” (what therapists tend to practice as some combination of active or reflective listening, empathic attunement, and reframing); then there were those that were more difficult.  I had a great deal to learn about the nuts and bolts of a divorce case and family law; an even greater amount to learn about financial matters.  I found the conflict I witnessed in divorce cases to be among the most turbulent and heart wrenching I had experienced as a therapist.  But the aspect of the work that I have found to be the biggest challenge was to determine when and how to take the awareness, knowledge, and insight gleaned from the Understanding-based model and move from there to help clients develop an expanded view of what mutually beneficial arrangements might be possible. In Gary Friedman’s parlance, once I went “down the V” and determined the significance of the conflict emotionally, I had to learn when and how to go “up the V” in order to form durable contracts.  I continue to learn about the fulcrum point of moving from the emotional underpinnings of a conflict into a process that can lead to a client’s willingness to include the goals and interests of the other party in coming to agreement.

What I have often experienced is that, for some conflict-ridden couples, the ability to make even small but meaningful agreements with each other starts the long process of laying down the layers of the “cushion of good will”, to use John Gottman’s terminology, and establishing a modicum of trust.  At times, our best efforts at looping, understanding, and recognizing the core issues underlying clients’ positions fail to catalyze the change we would like to see.  But through this work we can sometimes glimpse repair and healing in the midst of heartbreaking pain and struggle.

I’ve had the privilege to work with a fantastic array of professionals who have the same goals I do:  to keep divorcing couples out of court to the extent possible, and to help them co-parent their children with respect and civility. Each time I work on a case with these other providers, my bag of tricks expands, stretches and grows.

I’m honored to have joined the faculty of the Center for Understanding in Conflict.  On March 16-18, Catherine Conner and I are teaching a workshop on the Understanding-based model for mental health professionals.  This is an opportunity for providers originally trained as psychotherapists to learn how to apply the ample range of our skills to conflict-based processes, such as divorce and other interpersonal – and often legal – disputes.  This seminar will explore the challenges in shifting from providing therapy to helping parties work through conflict, and will present a structure for reaching agreements using the concepts and tools of the Understanding-Based conflict resolution model.

I am thrilled that Catherine and I have been able to obtain approval from the California Psychological Association to offer continuing education credits to all mental health professionals. I look forward to working with Catherine to teach this workshop, which will concentrate on how and when to take the insight and awareness that clients can achieve in working with therapist-mediators and work towards forming contracts with each other.

We invite all therapists, mediators, co-parent counselors, collaborative coaches, parenting coordinators, and child specialists – with or without training in the Understanding-based model – to join us to learn together how to help clients achieve understanding about the conflicts in which they are embroiled in order to form durable agreements with each other.  Participants in this course will have the opportunity to engage in a seminar-style learning environment, using role-plays, case material, and research-based learning, to share our collective wisdom in this very challenging work.  Collectively, the participants in this course will have the opportunity share and exchange information, skills and wisdom to help one another learn.

We hope to see you in Berkeley on March 16-18 for our Navigating Conflict workshop.

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Reflections on SCPI

(SCPI = Self-Reflection for Conflict Professionals Intensive)

by Liza Hanks

I participated in the SCPI program for the first time in 2016, a few months after I completed the 40-hour mediation and conflict resolution program with the Center for Understanding in Conflict. I thought, when I signed up, that SCPI would be a good follow up to that training and a way to further practice what I learned there. All of that was certainly true, but I found SCPI to be something different as well—less vocational and more transformative.

Like many lawyers, I graduated from law school, passed the bar, found a job and did my best to do it well.  And then twenty years went by. In the daily pressure of billable hours, building a practice (and raising two kids), there wasn’t time to reflect upon any of it.  In my experience, being a lawyer was often about not making mistakes and hardly ever about being creative, thoughtful, or challenging the status-quo. Being a lawyer was often like wearing clothes that didn’t quite fit—satisfactory, but confining.

Participating in SCPI was an invitation to bring creativity, curiosity and critical thinking to my practice and a welcome one. I’ve found new meaning in what I do and a new vision for how I plan to do it in the future.

Here’s a short list of what I got out of the program:

1. I met colleagues from various disciplines who were interested in using self-reflection to deepen their practices. I felt real affinity for my fellow SCPI participants and it was a pleasure to learn with them.

2. SCPI teaches three foundational practices that I use every day to keep myself focused and continually engaged: journaling, meditation, and taking moments throughout the day to pause, breathe, and check in with my felt sense of a situation.

3. The format of the program lends itself to experiential learning – there’s time and space to practice what you are learning in a supportive environment. It’s not ‘book learning’ — it is learning through direct experience.

4. I wasn’t able to attend the group sessions in person each time, but I came to love doing these through video conferencing. We were able to have deep discussions and group learning even though we were all over the country—without leaving my office I could spend a few hours with smart, committed people and practice new skills in a dynamic way.

5. SCPI (as does the mediation training) frames conflict in a positive way. I’ve come to have tremendous respect for the value of conflict in eliciting honesty and open communication between parties. I’m more patient in my practice and less in a rush to ‘fix’ things—I am better at letting my clients find their own way through thorny issues.

6. SCPI asked me to do something that nothing in my legal education ever did before: value, cultivate, and attend to my own subjective experience while practicing law. This skill has already made me a better listener and a more creative attorney with clients.  That’s the vocational part. At the same time, it has made me more aware of what I do and don’t like about my law practice and has given me concrete ideas about how to make it more satisfying and reflective of my core values. That’s the transformational part.

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Conversations That Could Make a Difference

by Gary Friedman

In this post-election period, the trauma that we have experienced as a result of the divisive campaign has taken a huge toll on many of us.

The dumbed down conversations and demeaning, personal attacks that have marked the political discourse have left us with a deep down disgust and alienation. We’ve witnessed and even participated in mean-spirited and nasty exchanges that have left us feeling spent, grieving the loss of dignity and respect that we deserve for ourselves and our fellow citizens.

Now many of us feeling shattered, helpless, fearful of what comes next and what will happen to the country we love.

The national discourse has polarized the country. Each side has demonized the other, and treated efforts to talk with disbelief, disrespect, insults, name-calling, and threats issued from rage and fear.

Attack and defense, righteousness, talking past each other. For those of us in the conflict business, this is familiar territory. People come to us like this this all the time. And as mediators or conflict professionals, we have helped hundreds, thousands of others presenting themselves just like this to get through to each other and to find a different way of talking. We know how to do this.

We know that deep layers of grief, fear and pain underlie peoples’ experience and leave them trapped in those feelings. And we know that when those feelings are unearthed, expressed and understood, they reveal commonalities as well as differences, which can bring people together to solve problems.

We understand that our natural self-protective instincts keep us from being more open. Yet we also understand that the cost of staying hidden is a continued isolation, separation through the fears and judgments that create the walls between us.

And we know what is possible in the face of this kind of conflict. When we can reach the level of vulnerability that comes from creating a safe place for people to feel and talk from a place of depth and caring, the atmosphere changes and constructive dialogue can emerge.

This is what can happen with the political dialogue.

Imagine what it would be like if we could bring our skills and experience to bear to help others and ourselves create a dialogue between what is being called the red and blue to heal the wounds that we are all carrying?
What would it be like to restore a sense of hope to our lives, especially when we know how many people have been injured by the prejudices at have been expressed and even championed at the highest level?

What I’m suggesting is that those of us in the field of conflict look to find opportunities to create small groups of people interested in coming together to increase their understanding of what is happening and open a dialogue at the level of our personal and political identities. Through developing pockets of understanding with others in honest, difficult and painful exchanges, we can create a more inclusive framework that can be contagious.

The principles and techniques that we have been working from can form the underpinnings of such dialogue, and let us bring safety, constructive dialogue and depth to our exchanges.

This is particularly true for those of us with experience in working together with conflict participants in the same room. Consider what it might be like if the following principles were used to guide a personal political conversation.

1. Emphasize the power of understanding. As an alternative to coercion or attack and defense, we could agree to operate from this intention, and let it underpin the dialogue. We often say that the test of a worthwhile conversation is whether the participants come away with a deeper understanding of themselves, the others, or the larger reality. Keeping our eye on this ball could make a difference.

2. Pay attention to how we are talking with each other, as well as what we’re saying. This could help us create a constructive dynamic that could make a difference. Making agreements about how we talk to each other can contribute to the safety and openness we’d hope to find.

3. Recognize the limitations of the right-wrong framework. Doing this could lead us to an exploration of deeper truths that we all experience as human beings trying to find a way to coexist with some degree of harmony.

4. Bring the attitude of “looking for possibility in the face of impossibility.” This can help us light the motivations that are there, often buried by our need to protect ourselves from disappointment.

5. Uncover and operate from the deep motivations that make us want have these conversations. It will not be enough to talk to each other in this moment of crisis and pain. The key will be to sustain a new kind of dialogue that could spread and underpin similar efforts that could make a difference to us personally and to the body politic.

If we understand that the tools we use every day in facing conflict can serve us and our communities now, we have an extraordinary opportunity to help bridge the painful gaps that have divided Red and Blue, neighbor and neighbor.

So the first question we need to answer is whether and how we can find others who are similarly inclined to be interested in having these conversations.

The next question is for us as conflict resolvers used to helping others whose conflicts are limited to their lives. How do we deal with our own personal reactions, which are inevitable in these conversations and could get in the way? We’ll be talking about that in our next newsletter.

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Study the Self to Forget the Self

Training in Empathy and Compassion awakens our willingness to be with our own suffering and the suffering of others. Most of us believe suffering is negative, difficult, and to be avoided at all costs. Suffering breaks our spirit and ruins our life. So rather than face the suffering we blame others or the world for the unfortunate things that have happened to us. Or we blame ourselves, imagining that we are essentially incapable of happiness and right action. All of this amounts to a strategy of distraction. Blame is a way of avoiding the actual suffering we feel. And if we are unwilling to face our own suffering, how much more are we unwilling to take in the suffering of others, let alone the whole mass of suffering of this troubled world. There is no way we could even entertain such a thought.

But the training proposes that we do exactly that. That we take in our own suffering, the suffering of our friends, our communities, and of the world, because nothing is more effective than this to change our habitual point of view. We develop this capacity with the practice of Sending and Receiving, which begins with our willingness to receive and heal our own pain. Of course our efforts to do this will encounter powerful resistances within us.

Suffering constellates resistance and loves it, loves our fear, gobbles it up, becomes bigger and stronger. The more we try to push away the suffering the more difficult it is to bear. But through the practice of Sending and Receiving, repeated patiently over time, we discover that when we stop resisting we can bear the suffering with much more equanimity than we previously thought possible. The monster you run away from in the dark becomes more and more frightening the faster and further you flee. The monster you face in your own house becomes a pussy cat, which sometimes scratches, and sometimes makes a mess on the floor but you love her anyway. We discover we don’t have to be afraid of suffering, that we can transform it into healing and love. And this is not as hard to do as we might have thought. Whatever our state, whatever our capacity, we can do it. We need only start from where we are and go as far as we can.

Doing this, we discover that our practice (and our life) isn’t about, and has never been about, ourselves. As long as spiritual practice (and life) remains only about you it is painful. Of course your practice does begin with you. It begins with self-concern. You take up practice out of some need or some desire or pain. But the very self-concern pushes you beyond self-concern. Zen Master Dogen writes, “To study Buddhism is to study the self, to study the self is to forget the self.” When you study yourself thoroughly, this is what happens: you forget yourself, because the closer you get to yourself, the closer you get to life, and to the unspeakable depth that is life, the more a feeling of love and concern for others naturally arises in you. To be self-obsessed is painful. To love others is happy. Loving others inspires us to take much better care of ourselves, as if we were our own mother. We take care of ourselves so that we can benefit others.

Training in Compassion, pp.65-66.

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Compassion In Suffering

When you are willing to really take in your own suffering, you find, within that very suffering, the suffering of others; and the reverse is also true: when you are able to truly take in the suffering of another, you find within it your own human pain.  Being willing to receive pain, we come to understand, is the only way to open our hearts to love. Norman Fischer, Training in Compassion, Page 34

Conflict can readily put any and all of us face to face with suffering.   As mediators, we are often faced with the parties’ suffering and also with our own. It is normal to seek to avoid pain — both our own and that of others.  Yet, sensing and acknowledging our and others’ suffering can be a way to help us to engage, live and work with it in a healing and constructive manner.

In Training in Compassion, Norman addresses the suffering that can envelope us when faced with conflict, our own and that of others.  We can all readily experience suffering as a heavy, draining, and burdensome aspect of conflict.  Norman addresses this suffering in a manner that can also allow an appreciation of, and the possibility for, at least a somewhat less painful and disabling experience of the suffering we all fear and often feel when faced with conflict, and how through accepting it we can open to our connection with others.

As mediators, we face parties’ pain.  We also confront what it touches in us – which is often our own pain as well as our compassion.   And we have the opportunity to bring that place of suffering and compassion within us to our work as mediators.  And through doing so, we have the possibility to address and to touch, in a sensitive and healing way, the parties’ pain as well as our own.

Acknowledging suffering need not be an overwhelming experience — neither theirs nor ours.  Norman helps put suffering in a manageable context by saying we can feel it and let go of it through our breath — “breathing in suffering, breathing out ease.”

It is surprising how hard it can be to acknowledge (at least outwardly) that suffering is going on within others and within ourselves.  We fear acknowledging it because we fear we will be stuck with it, trapped in it.  Yet, ironically, it is the failure to acknowledge it that can keep us in it.

Suffering does not have to be so overwhelmingly painful and frightening. Ironically, we can make use of it to deepen and strengthen our lives. For us as mediators, that is true of the parties’ suffering as well as our own.

Sadness, too, can be meaningful. As can pain.  Not just the parties’ but also our own. Pain and sadness can be an opening, a deepening, depending on how we hold them. Ironically, by not recognizing and acknowledging the parties’ sadness and pain, and our own, we can be trapped by them, and in them.  Norman says that the willingness to take in suffering is key to our lives.  It can certainly be key for our work as mediators.  Ironically, we may suffer more by failing to acknowledge our suffering.

The parties can do the same by failing to acknowledge their deeper experience underling their conflict. Acknowledging does not mean becoming mired in pain as we might fear.  It is accepting that it is part of our experience, our humanity.  Acknowledging suffering can help us live with it and move through it. Indeed, with this awareness, we may be able to bring some lightness, and some light, to the human experience of suffering. And to our work in mediation.

And, of course, it also it is not all sadness and pain in the conflicts that come to mediation.  There is also the possibility for, and not infrequently, the realization of joy and wonder. For many, acknowledgement of  their suffering can open them to their positive feelings, including joy and wonder. We are looking for authentic engagement, with others, between others and ourselves, with ourselves.

We believe that to be most helpful professionals need to be close to the problem. Understanding ourselves, using our own emotions and our emotional understanding can help develop that intimacy, that closeness. And an essential part of that is acknowledging others’ suffering and our own.

It is helpful to realize how judgmental we can be about the parties’ and our own.  And how judgmental the parties can be. We need to notice, to see, to realize that we all have judgments.  To be in relation to them.  If we do not realize this, that we have them, they can readily take over.  By accepting we have them, we can begin to let go of their grasp.

Instead of turning away from judgments, we can turn toward them.  Instead of turning away from suffering, we can recognize it, open to it, accept it.  Accept ourselves.  Help the parties’ in conflict to do so. Accept themselves. Mediation holds the possibility of authentic engagement. We are looking for authentic engagement — with others, between others, with ourselves.  Opening to the possibility.  Finding possibility in the face of seeming impossibility. Realizing hope in the face of despair.

At the deepest level, people know what is right for them, not the professional.  As professionals, we can be helpful in helping them realize that. In doing so, we need to be present, to strive to bring presence to every moment.  And, to be with ourselves to be with others, to support them in being with themselves with each other.

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Getting Down to Business

Getting Down to Business by Catherine Conner, CUC Instructor, Collaborative Practice Attorney and Mediator.  

People who come to conflict professionals (mediators, lawyers, collaborative professionals) are often exhausted by their conflict.  It may have been going on for weeks, months, or sometimes for years.  They have an abundance of feelings – frustration, sadness, anger, disappointment, hope, dread, mistrustful, betrayed, anxious, and more.  Yet often, both the conflict professionals and the parties have the fantasy that once the walk through the professional’s door, they will tamp down the emotions and “get down to business.”  If it’s a legal dispute, then we should look at the law and the law doesn’t care about emotions.  It is simply a question of becoming clear on the facts and applying the law to the facts.  Or it could be an economic issue and we just need to get practical about what is the most rational way to solve the problem.  If we can find the magic pill to stick to the facts and make the emotional side of conflict go away, we can just ignore feelings, “get down to business”, and find a solution.

This fantasy can leave conflict professionals feeling like they aren’t doing things right when they aren’t able to push aside their own or other’s feelings.  If they were more skilled, less judgmental, more “professional”, they would be able to refocus everyone on the business at hand.  But we know that brain research shows that the decision making is strongly influenced by the emotional side of the brain, and maybe informed by rationality, but certainly not created in rationality.

We can’t make feelings go away – no one can. Conflict is emotional – for the parties and for the professionals.  When we pretend that we don’t need to deal with emotions, we can end up absorbing all of the upset in the conflicts we deal with.  After years of working with divorcing families, I realized that I had suppressed a lot of sadness and it was leaking out.  I eventually hit a crisis point when I decided I had to find a different way of working.  People who come to our programs sometimes have reached the same point.  One attorney who was a litigator told us she felt she was being eaten alive by her work.

The good news is we can use emotions to help work through conflict and find a way through what’s going on rather than pretending they don’t exist when we all know (hush-hush) that they do.  When we acknowledge, accept and allow our emotions to exist in our professional life, we don’t have to hide part of ourselves when we are working.  When conflict professionals start to get this, that’s when they get excited: “You mean I can use this? It’s okay to feel the way I feel? It doesn’t make me a bad person?” There’s a place to go with the emotion, something to do with it. They can say, “This is who I am – a feeling person who wants to get beyond black and white models in which one person is always good, the other bad, or there is only one right or wrong. What I’ve been trying to do my whole professional life is to find a way to be more myself when I’m working, so I don’t have to hide myself.”

And when we acknowledge and pay attention to our own emotions, we respond differently to the emotions of the other people in the room – the parties and other professionals.  The emotion we notice in ourselves may be a sign that someone else is feeling similarly or it may be an indication that we are reacting to someone else in a way that we should pay attention to.  By being curious and examining why a particular emotion is arising, we can choose how to respond.  I may be moved to comment on the sadness that seems to be underneath someone’s anger as I feel that sadness as I listen to them.  Or I may notice that I am pulling back from someone as I react to their hostility.  My curiosity about what is provoking both of us may help me to understand the situation differently and move towards rather than away from them.

Initially when I started paying attention to my emotions, it was quite challenging.  At a self-reflection retreat, Norman Fischer led us in a meditation in which as we breathed in, we let in difficult emotions and as we breathed out, we imagined transforming them and sending out healing.  By the end of the meditation, I was in tears from the tsunami of emotions I had previously absorbed and ignored, and was now unleashing.  Norman suggested that I could use a ratio other than one to one, perhaps one breath of taking in the emotions to four or five breaths of releasing them.  I practiced this for some months and as I found more balance inside of me, I was able to respond differently to emotions in the room when working as a conflict professional.  As I was able to consciously pay attention to and acknowledge mine and other people’s emotions in the midst of conflict, the understanding in the room increased and the death grip of ignored emotions decreased.  The attitude of “of course, difficult emotions are here and welcome” paradoxically results in a more relaxed atmosphere in which we are able to work through all aspects of a conflict.

There will always be more.  New challenges and new opportunities.  In facing the challenges, we so often discover the opportunities.  In pursuing the opportunities, we find ourselves facing new challenges.  New challenges are new opportunities if we recognize and allow them.


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Book Review: What Is Zen? Plain Talk for a Beginner’s Mind by Norman Fischer and Susan Moon

Hot off the presses is “What is Zen? Plain Talk for a Beginner’s Mind”, a new book by Norman Fischer, who is one of our teachers in our Self Reflection for Conflict Professionals intensive (SCPI) series, and Susan Moon. In our SCPI classes, we incorporate meditation and other forms of self-reflection to increase our capacity for recognizing the relationship in our work between what is happening inside of us and outside of us when working with people in conflict.  For anyone interested in broadening their understanding of how to explore what is happening inside, this book is a great introduction to the concepts and practices of Zen, one of the many paths for self-reflection, a skill we strongly believe is essential for any conflict professional.  The question and answer format is highly readable and enjoyable.

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Beyond Entanglement to Gratitude

The mind and heart react according to their well-worn habits. Whatever habit of mind you have now comes from your actions and thoughts of the past (however unexamined or unintentional they may have been).

Whatever habits of mind you will have in future depend on what you do or don’t do from now on. The way you spontaneously react in times of trouble is not fixed. Your mind, your heart, can be trained. Once you have a single experience of reacting differently, you will be encouraged. Next time it is more likely that you will take yourself in hand. Each time becomes easier than the last. And little by little you establish a new habit.

When something difficult happens you will train yourself to stop saying, “Damn! Why did this have to happen!” and begin saying, “Yes of course, this is how it is, let me turn toward it, let me practice with it, let me go beyond entanglement to gratitude.”

Because you will have realized that because you are alive and not dead, because you have a human body and not some other kind of a body, because the world is a physical world and not an ethereal world, and because all of us together as people are the way we are, bad things are going to happen. It’s the most natural, the most normal, the most inevitable, thing in the world. It is not a mistake and it isn’t anyone’s fault. And we can make use of it to drive our gratitude and our compassion deeper.
~ Norman Fischer – CUC Instructor and Author

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Resting in the openness of mind

Sometimes it’s called not knowing. Why would we have to know everything all the time? Why do we have to be so knowledgeable, so smart, so in control? We don’t! There’s no need to figure everything out. We can just be alive. We can breathe in and breathe out and let go and just trust our life, trust our body. Our body and our life know what to do. The problem is to let them do it, to relax and let them guide us. Of course life is complicated and we have many things to work out in our material and psychological lives. But also we can find a place of refuge sometimes — in our own life, in our own breath, in our own presence. Maybe the easiest way to do this is also the simplest way: just stop and take a breath.

One breath, maybe two or three. You could do this now. Take a breath and return to the openness of mind. Breathing in, breathing out, and in the feeling of the breath, noticing whatever is there and letting go of it, easily, gently. Even if you are bored with yourself, even if you have some disturbing things going on in your life that produce disturbing thoughts and feelings in you, it is still possible in this precise moment (even now, as you are reading) to notice breathing, notice the body, notice the feeling of being present in this moment of time. This will relax you. This is what it feels like to rest in the openness of mind.

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Tools in the Toolbox or Intuition?

Conflict professionals who attend our programs are often looking for “tools” to add to their “toolbox.”  When I attend conferences, I often end up with a list from one of the workshops such as “Top Ten Interventions for Difficult Clients”.   I wrote a book for Collaborative professionals that is a compilation of forms and checklists to use in Collaborative cases.  For many of us, it is comforting to have a framework for how to manage a case so things don’t fall through the cracks and to have that “tool” to bring out when things get messy.  Our anxiety decreases when we have these support systems in place.

But there is a risk that the tool, form or checklist may become a barrier to being fully present and connecting to people in all of their unique, quirky selves.  When I am too attached to my checklists and tools, I may filter what is happening in front of me to fit it into something that will respond to my “tool”.  Or I may ask questions to complete my checklist (actual or mental) rather than following the path a party is taking.  When we do this, the process becomes more about us than the parties.

So how do we integrate the helpful use of tools and being fully present and connected?

First, practice and become familiar with the use of your tools and checklists. When we first use a screwdriver, we feel graceless, but when we are experienced, we have a better sense of the right time and way to use it. One of our core tools is looping – demonstrating to a speaker that the listener/looper has understood what the speaker is communicating.  In order to be able to loop successfully in the most tension filled moments, you have to practice a lot in easier moments.  Loop your family, friends, a clerk in a store, colleagues, anyone that you are having a communication glitch with.  As you practice, you become more adept, it feels less awkward, and you are more likely to use it in a high tension meeting.  Learn when it is a helpful time to use a checklist and gather appropriate information in an organized way and when it is time to set aside paper, pen, stop taking notes and just listen.

Second, prepare in advance, both for your use of tools and to be present and connect.  For example, if you are relatively new to mediation, it may help to review what you have learned about the process right before a meeting, reviewing materials or notes from a training.  Or you may want to consider tools you may be using. However, once you have done this more cognitive preparation, take the time to be present.  Take three breaths.  Let go of the other cases or pressures in your life that chatter in your head.  Imagine the parties sitting with you and open your heart for them.

Third, during the meeting, pay attention to your body and gut.  Learn the signs your body sends to you.  What does it mean when shoulders start to rise towards your ears?  Does your posture change in certain types of interactions?  What happens to your breathing?  As you become more familiar with your individual signs, you have more information to understand the situation and decide how to respond.

Finally, use your intuition.  If you have practiced and are familiar with your tools and you are fully present and connected, your intuition will guide you.  And your intuition may even be to throw out the tools, checklists and toolbox and say “I’m not sure what to do next?  Any ideas?”  Sometimes, the best tool is to open up the opportunity for everyone’s input and to work together to figure it out.

~ Article by CUC Instructor Catherine Conner, Mediator/Collaborative Practice Attorney

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When Things Seem Impossible

By Katherine Eisold Miller

Sometimes when people in conflict are negotiating to try to find a solution they come to a point when things seem impossible.  Both people are entrenched in their view of the situation and seemingly unwilling to move.

When the situation seems impossible people get scared.  The fear creates an added tension in the room that can permeate the discussion pushing people apart.  Lawyers and other professionals sometimes react by pushing harder toward settlement sometimes using scare tactics to force the settlement before it “breaks apart” and sometimes they give up.

We sometimes call this situation impasse.  I don’t like that word because it adds to the sense that the place of difficulty is hardened like concrete and immovable.  We don’t have a common word that represents a negotiation flowing beautifully where everyone is engaged in finding a solution that works for all parties.  Why then do we honor the place of stuckness with its own word?  Difficult moments happen.  Sometimes things seem impossible.  That is to be expected.  When it does, it is not a cause for panic.

Why might the situation not be as “bad” as it seems?  A number of changes might be made to return people to the flow of negotiation that don’t involve one side capitulating.

Something might be wrong with the structure of the negotiation.  The way the discussions are happening might be a problem.  The wrong people are in the room or someone else is needed.  Attention might be focused in the wrong area.   Participants might not have all the information they need in order to move forward.  Refocusing on how we are working together — what is working and what is not — often helps get the conversation back on track.

Time sometimes intervenes.  Sometimes people need time to process before they can make important decisions.  I have often seen people caught up in hurt  and anger take some time to process those feelings and come to a better place and then be able to come back to the negotiation from a better place inside themselves.  Sometimes time is necessary to resolve issues where the situation is in too much flux to nail down.

Explore motivation to stay in negotiation or to leave.  What do participants hope to achieve?  How painful is the dialogue?  Will leaving the discussions help or hurt and in what way?  Sometimes the negotiation conversation is moving away from what is important to the participants and bogged down by red herrings or more trivial (to the parties) matters.

My friend and colleague Zoketsu Norman Fischer during guided meditations often suggests breathing into a problem or discomfort and seeing what happens.  Breathing into impossibility both figuratively and literally is a possibility that might make all the difference to moving from impasse to synergy. 

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By Katherine Miller

Recently I went to a panel discussion of the merits and challenges of the “med-arb model” and the possibility of applying it to family law matters in New York State. The panel was comprised of very distinguished jurists and academics and the conversation was at a high level of sophistication.  The panel was inconsistent in their support of the med-arb model but it was unanimous in the use of Caucusing.

Toward the end of the evening, I raised my hand and asked the panel to consider the internal experience of the mediator.  I posited to them that for me—and for them—the shift in the mediator’s internal experience to NOT being responsible for the decision of who was right and who was wrong or who won and who lost, freed me to be more available to the parties and therefore made me more effective.  Before I made this statement, I outed myself as one of those non-caucusers that some of them had earlier referenced (perhaps with some slight disdain).  I engaged with the panel in a lively discussion about the impact of the responsibility for decision making on the mediator’s effectiveness as a neutral.  The discussion continued until the program’s end and was summarized nicely by the Hon. Sondra Miller as perhaps centering on the trust the parties are able to place in the mediator and the impact that trust has on the mediation.

After the conclusion of the presentation, I went up to shake hands with the presenters.  The Hon. Stephen Crane asked me about keeping the parties together.  In particular he was interested in hearing about what happens when the parties get to the part of the discussion where the conflict lies.  We talked about allowing the conflict to exist so that the parties have an opportunity to work through it to the point of realizing new opportunities. He responded by talking to me about a technique he uses called the “extended joint session” where he keeps the parties together for an extended period of time and in our conversation  he seemed to open to the possibility that the extended joint session might have more possibility than he previously thought.

As I broke away from that conversation, many other people came up to me to talk about keeping people together: what do I do when it gets hot? Why do I do it? How do I manage myself when tensions run high?  The answers to these questions vary but what’s really interesting is how fascinated experienced ADR professionals are with the idea of keeping parties in conflict together, but how rarely they actually do it.

Judge Crane asked me “How I got started keeping people together.”  I wonder: Why keep them apart?


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Finding Our Way Through Our Conflict

            How do I become a mediator?

            I am close to burnout.  How can I find a more satisfying way to work?

            I don’t want to become a mediator but I am responsible for helping people in conflict at work and I need help.

            I have tried to mediate, but I realize there is a lot more to learn.  What other training should I take?

            A friend told me about your model and/or your training, so I think I should come to a class but I don’t know why or what.

People call us with questions like this. Conflict is filled with difficult—even volatile—emotion, which often goes unacknowledged in the legal process or other systems in which being “businesslike” is considered the norm.  People who call about our programs want something different. We teach lawyers, mediators, psychotherapists and other professionals who work with conflict to see, acknowledge and tap the emotions in themselves and their clients to achieve a deeper understanding of the issues, and to find solutions that will genuinely satisfy the parties.

We believe that there is no such thing as “neutrality” in the conflict professional. We like and dislike clients, we are annoyed by them, and we feel the effects of being targets of their discomfort, hostility and grief. We teach those who work with conflict to turn the emotions they’ve always avoided into a source of empathy, connection and understanding that allows them to guide the parties through the same process, and help them identify and resolve the deepest issues that separate them. These are rarely the issues they initially bring into the discussion.

The Understanding based model we teach not only allows the parties to successfully find their own best solutions, it also relieves some of the greatest stresses conflict professionals face. We show them how to bring their full humanity into a conflict, and to emerge whole, having best served their clients.

As the Center for Understanding in Conflict has grown, we have examined how people can most effectively learn our model and use what makes sense to them in their work.  Initially we offered a basic 40-hour mediation training and then invited participants to advanced trainings.  Over time, we have realized that people come to our Center in different ways that work for where they are in their lives, how they learn, and what they need.  We have expanded what we are offering to create different gates to come through and different paths of learning.

You might be asking yourself which classes make sense for you?  If you want to start swimming in our waters, what is the best way to start?

Jumping Into the Deep End: Basic 5 day, 40-hour program – Working Creatively with Conflict

If you have the time, this intensive program is the best way to get a sense of our model of working with conflict.  Although focused primarily on mediation, the program offers an introduction to all aspects of our model, and is appropriate for anyone who works with conflict as part of their work.  Lawyers, therapists, mediators, human resource people, financial professions, collaborative professionals are the usual mix of people who come to this program and live together in a residential setting where they are immersed in our model of mediation.  There is also a mix of people with respect to experience in mediation ranging from very experienced to newcomers.  While we don’t believe that a five day program is sufficient for anyone to be fully trained as a mediator, many who complete this program feel ready to begin mediation practice and all who come find ways of integrating what they have learned into their professional and personal life.  People from all over the world come to these programs.

Getting Your Feet Wet:  Half day classes and webinars

Sometimes people want to get a taste of what we do before jumping into the deep end.  We offer half day in person classes and one hour webinars in which we teach an overview of our model (our upcoming afternoon class “I’m right, You’re Wrong: From Blame to Understanding” is an example) or attend a webinar on a particular aspect of our model or how it applies to a specific situation (e.g. our webinar “3 Mistakes Lawyers Make That Keep Them (and Their Clients) Stuck in Conflict”).  These programs are offered for anyone who is interested and double as introductions to the understanding model to give participants a sense of whether they want to participate in other courses that we offer or as refreshers for people who have taken other courses but want to touch base with others and are finding the theme particularly relevant to their lives.

Learning the Strokes: Conflict Challenges

We offer one to two day classes on specialized topics, ranging from exploring each stage of the process such as contracting or interests, specific tools such as looping, or aspects of conflict resolution such as the role of the law or working with attorneys in mediation.  We are also planning to offer trainings focused on the use of the model in particular professions, such as one planned for later this year for mental health professionals. In these courses, participants have opportunities to raise problems they are experiencing in their work that touch on the theme and see how others are working with similar problems.  Center teachers demonstrate how to use the understanding model to deal with those problems.

Understanding the Depth:  SCPI program – Self-Reflection for Conflict Professionals  Intensive

This ongoing program starts with a months-long series which includes two all day meetings and regular monthly meetings, in person for locals and virtual meetings for people who live too far to attend the monthly meetings.  The purpose of this program is to develop and enhance the ability of participants to access their inner lives as a resource when they are working with people in conflict.  The core of the program are a series of self-reflective practices to develop this skill using a variety of techniques including meditation, journaling, regular meetings with other participants and  is taught by a team of lawyers and meditation teachers.  After finishing the initial series, participants can attend our Advanced SCPI all day meetings which occur approximately quarterly, and are often following a particular theme (this year “Power and Love.”) The program applies to all conflict professionals, much like the basic mediation training, and is open to anyone interested in learning how to use their inner resources more effectively in their work.  It is probably better to take this course after taking the basic mediation training, but several people who are not interested in learning to mediate and have not taken our basic program but have found this course valuable.

Laps:  Support and Development

This course consists of regular monthly meetings of supervision with others in both mediation and collaborative practice, and is best suited for people who have active practices in mediation and/or collaborative and who have participated in our basic mediation training.

Around the World:  International Programs and Advanced Retreats

We offer a number of programs in Europe based on the understanding model ranging from one to five days in various locations in France, Italy, Germany, Austria, Spain and other European countries with similar programs that we offer in California and New York. For example, this September we are offering a SCPI program in Talloires, France for English speaking Europeans for four days focused on the theme of working within ourselves with fear and trust.  Our teachers are often engaged by other organizations to teach on topics relevant to the group.

Biennually we offer 5-7 day retreats in Mar de Jade, Mexico with a major focus on self-reflection and its application to our work.  This is an opportunity for participants from all over the world to come together and work intensively in a relaxed setting to explore intra personal issues.  The course is taught by Norman Fischer and Gary Friedman and will be next offered in February of 2018.  Participants need to have completed at least one Center program. It is recommended that they complete either a SCPI intensive or the basic mediation training to participate.

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Immersed in the Nightmare

There are problems that plague us as conflict professionals.  Some of these problems are shared by many and are often recognized as a “worst nightmare”. Some are unique to each of us as we battle our private demons. As teachers we’ve noticed that participants in our programs—new and experienced—have questions that start, “How do you handle it when…”or “What should I do if…”.

When mediators, lawyers and other conflict resolution professionals feel out of control or are triggered for any reason, it can be very tempting to try to take over the process in order to stop feeling uncomfortable. When our nightmare appears in the room, it sometimes feels  chaotic and even downright scary. This is often a good time to remember the basics.

One of our underlying concepts is Let the Parties Own the Conflict – whatever the conflict is, whatever the dynamic, it is theirs and they are responsible for it. That is not to say that there is nothing  we can or maybe even should do. It is just to remember in these moments, we are there to help to the extent the parties want and are willing to let us.  I find it helps in these moments for me to take a breath (or 3) and remember that it is their conflict, not mine.  If I allow myself to get pulled into their conflict by taking responsibility for it, then I may actually lose the opportunity to be helpful. I may even relinquish the privilege they have imbued me with to help them change their dynamic.  So I take a breath and notice what’s going on for them and for me.

After taking the time to ground myself, this is often a time when I will “loop the dynamic” by  reflecting back to the parties what I see going on in the room.  Sometimes this statement is about what each of them is saying, but much more often it is about how each is feeling and what happens between them.  It is also a time to turn the conversation from the “what” to the “how.”

I recently had a couple in mediation who worked well together most of the time but both were hyper-sensitive to perceived criticism from the other.  Time after time, they’d dive down the rabbit hole into a defensive and repetitive argument with lightning speed.  I felt powerless to help them and I didn’t know what to do.  They came in for a session and, after I greeted them, I told them I’d been thinking about what happens between them.  Then I described how I saw them both as so sensitive to criticism from the other and where I saw that came up.  I asked them if that felt familiar to them and they both agreed.  There was actually a look of relief on their faces when I named what was happening in the room.  Then I asked them if they would like it to be different.  It might have seemed obvious that they did but I wanted the explicit agreement in the room, “yes, I want it to be different” from each and both of them. They agreed.  I asked them if they would like me to stop them when it happened again and see if we could find a different dynamic.  “Yes I would” they each said.  When we then went back to the “what” conversation and it happened again,  I intervened as we had agreed and reflected back what had just happened in the room. Something was different this time. This time they stopped and breathed and noticed…and moved forward in a different place.

Sign Up for our Immersed in the Nightmare training in April for more support and recommendations on how to handle the moments when you are immersed in your own nightmare while in a conflict.

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Correct All Wrongs with One Intention by Norman Fischer

Correct All Wrongs with One Intention means that when we notice, inevitably, that we are not being so generous or so kind or so openhearted, that our activity has not been dedicated, in our hearts, altruistically, that instead we’ve completely lost track of all our good intentions and have become, as if half-asleep, narrow, grim, desperate, we should take a breath right there at the moment of noticing this.  With that breath we forgive ourselves (“Oops, there I go again, sorry”) and go on. We reset the dial with one intention: our purpose is to be of some benefit to others, to dedicate ourselves to others.  This one intention is something we can always trust and always rely on to set us straight, no matter how mixed-up we may be.  Even when our motivations seem entirely false – when it seems that our wanting to meditate, our wanting to be good or wise, is completely self-serving and foolish or that we have stopped wanting to do anything spiritual whatsoever and we are completely lazy and sour – there is never any doubt about this single, simple thing: yes, we do want to be of some benefit to others.   Even when nothing else makes sense this makes sense.  Whatever is going on, always come back to this best and most basic motivation – the wish to care about others and to be of some service to them.

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Correct All Wrongs with One Intention

Correct All Wrongs with One Intention.

This slogan means that when we notice, inevitably, that we are not being so generous or so kind or so open hearted,  that our activity has not been dedicated, in our hearts, altruistically, that instead we’ve completely lost track of all our good intentions and have become, as if half asleep, narrow, grim, and desperate, we should take a breath right there at the moment of noticing this.  With that breath we forgive ourselves (“Oops, there I go again, sorry,”) and go on.  We reset the dial with one intention: our purpose is to be of some benefit to others, to dedicate ourselves to others.  This one intention is something that we can always trust and always rely on to set us straight, no matter how mixed up we may be.  Even when our motivations seem entirely false  – when it seems that our wanting to meditate, our wanting to be good or wise is completely self-serving and foolish – or that we have stopped wanting to do anything spiritual whatsoever, and we are completely lazy and sour – there is never any doubt about this single simple thing: yes, we do want to be of some benefit to others.  Even when nothing else makes sense, this makes sense.  Whatever is going on, always come back to this best and most basic motivation – the wish to care about others and to be of some service to them.

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Why the %#*@ Do We Do This Work?

Probably the most important indicator of sustaining work as a mediator, or conflict resolution specialist is our motivation to do this work.  It is not obvious to those outside our field why we would choose to enter the messy lives of people in crisis, upset with each other and often filled with turmoil.  Don’t we have enough trouble dealing with our own lives not to add the extraordinary challenge of presuming that we can help others?

When we are working well with others who appreciate us and who are genuinely interested in finding their way through conflict with mutual respect, it’s easy to feel the joy of this work.  But when the going gets rough and the room is filled with anger, accusations, manipulation and deception, and the parties are not only not appreciative of each other, but include us in their lines of fire, it’s a different story.  These moments call upon us to know as deeply as we can not only what we are doing, but why we have chosen to be there.

In our SCPI (Self Reflection for Conflict Professionals Intensive) programs, the internal investigation of the many layers of our motivations is a central focus of our work.   With the support of each other, we uncover as deeply as we are able the various strands in our lives that have led us and can provide us with the inner strength necessary to withstand the many challenges that we experience in helping others in conflict.

What makes this so important for each of us is our creation of deep anchors within ourselves that we can draw upon and use in both the particular moments that are most difficult and in the long run to create and sustain internal rewards that come from a commitment to working from our hearts as well as our heads.

We make this a continuing and ongoing exploration to find not just the obvious or apparent reasons that we are already aware of, but the hidden layers as well that connect to our individual histories and have the potential to provide us and our clients with the deep satisfaction that can come from such an effort.  In SCPI we offer daily practices and exercises that open those doors for each of us.

The kinds of reasons that others have found in those explorations include not just our ideals but the deeply personal needs and longings that conflict work satisfies. Of course there are pragmatic reasons that include earning a living, supporting our families, feeling productive.  But others, some of which are surprising, can be uncovered as well. In sharing our stories and discoveries with each other in SCPI, we reinforce each other’s and our own choices to live professionally and personally at this deeper level.

In this exploration, we also confront the profound  paradox of looking within ourselves, finding the strength that comes from that, and understanding that we do this for ourselves to help others.  That is the basic thrust of the effort and our SCPI program.

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When We Are Captured by a Power Struggle

It’s not unusual for parties in conflict to have their ideal solution in mind at the beginning of our work with them.  Recently at a mediation, one of the parties announced he had worked out what he was certain would be the best solution that would benefit both of them and speed up the process, and the other party asked to hear it.  He stood up and used the whiteboard as a prop to walk through his solution and demonstrate how the outcome would be a “win-win.”  It was clear to me that he was using rosy financial projections and that the other party would be in a much riskier position than him if his solution was adopted, but it wasn’t clear the financially unsophisticated party understood that.  I could feel myself being triggered by his style and the content and being drawn into a power struggle with him. I wasn’t going to just sit there and allow him to dominate the other party.

As conflict professionals, we know that power and control show up in conflicts.  In our Understanding model, we look to the power of understanding rather than the power of coercion to empower parties to make decisions together that make sense for them.  But our relationship to power and control and our reactions when they show up in the room can get in the way of our aspirations to work in the Understanding model.  There are two useful distinctions that can help us with the choices that we make to use power in ways that support the process.

First, there is a distinction between dealing with the dynamic between the professionals and the parties and dealing with the content of the decisions that they are making.  When we are intervening and choosing to come in strongly, it is quite different if we are doing it on behalf of trying to level the playing field between the parties rather than effectively taking over the substantive decisions they are there to make. That does not mean that we think of ourselves as having the sole control or responsibility for the way communication occurs.  Even when we intervene strongly, we like to think of ourselves as partners with the parties in designing and implementing a process that will support them to make decisions together. So we don’t take over, and we don’t back off – we join together with them and there are times when we need to be quite assertive for that to be effective.

The second distinction we make is between reacting and responding by making conscious measured decisions.  Often the problem with control is that we react to someone else with our own aggression as a knee jerk reaction.  We are often caught up in a power struggle that leaves us in an emotional tangle with the person or persons and then makes us part of the problem.  We can be off and running, feeling out of control and ineffective, saying things that we regret, or simply polarizing from the other in a way that shuts down forward progress.  This is an ongoing challenge for all of us, even very experienced mediators and conflict professionals.  Our buttons get pushed and we feel alienated from the people we are helping and they feel it too.

Learning to become familiar with our own impulses to control others, what behavior triggers that, and how we respond to those triggers is critical to our work as conflict professionals and benefits us in all of our relationships.  There is a lot for us to understand about ourselves in our own history of relating to power, how we now respond to power, and how we can change our responses in the future.

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Interview with Debra Hamilton: Mediating Conflicts Over Animals

Katherine (KEM): Today I’m here with Debra Hamilton. Debra is the author of the newly published book, “How To Use Mediation to Resolve Conflicts Over Animals”. She is a pioneer in the world of animal mediation, which is not mediation between animals but mediation between people with disputes around animals and I am thrilled Debra to have you here today.

Debra (DH): Thank you Katherine, it’s really fun to be here. The book has a cute little title that starts it off as Nipped in the Bud, Not in the Butt. That way people can really understand that mediation can enable them to solve conflicts by having a dialogue. That you nip it in the bud instead of, as animals will do, nip you in the butt. And that’s what happens when conflicts arise.

KEM: So that’s really interesting. I think the field of disputes around animals is obviously much broader than divorce, which is my area of practice. But I just wanted to tell you a little story, but maybe I’ve shared this with you in the past, but when I told my husband that, my first husband, that I wanted a divorce the first thing he said to me was you’re taking the dog. And that was fine with me, but ironically and sadly years later he admitted to me the thing he felt the most guilty about was abandoning our golden retriever, Denver, and that he had pushed him off onto me in this sort of aggressive way which he regretted for years and years to come. I think that animals are family members, you know that. I think sometimes people, whether or not they have children or don’t have children, really focus a lot on the animals and they become very important and maybe you could talk a little about your experience with that.

DH: Well, it’s funny you mention that because today when I was thinking about this interview I said I hope I remember to talk about the people who may decide not to take the animal in divorce or actually hold the animal as ransom because they know how important it is to the other party.  At the end of the day they realize “wow I would have liked to keep the cat, the dog, the horse, the bird in my life. Attorneys don’t always get how important animals have become in our culture since the 60’s. From the 60s on they became our family members, our companions. They’re no longer just property.  As we know under the law, so if you go to court it doesn’t always work out in the best interest of either party or the animal. There was a recent case, Travis v. Murray, I wasn’t involved with, but it was a divorce and they fought hammer and tongue for this dog and the judge made a ground breaking decision.  In my opinion, a heart breaking decision because he gave them the opportunity to have a hearing and that’s not ever been done before. It’s been done for the Escalade and the Ferrari, but not for the dog. So he gave them this hearing, it was wonderful.  He said you have to decide who owns the dog outright and we, as attorneys, know with property there is sole ownership. You can’t really have joint custody of a dog; they’re not going to go there. It was great, however, this dog was now owned by one of the parties, not both of the parties. But what happens if one of the parties gets sick? Wouldn’t the dog prefer to be with the other party but for the fact you’re so angry. So in divorce, I get it, taking the dog because your husband has never taken care of it. Taking the dog because your wife really doesn’t like the dog. Whatever it is, recognize that the dog doesn’t dislike your spouse, you do. In our mediation and Collaborative group, we talk about that people get really angry with each other. To hold onto that and bring the dog in the argument really doesn’t serve the purpose you really want to serve;  the dog, the cat or the bird or the horse will really suffer. They don’t dislike the other spouse as much as you do.

KEM: I think animals are caught in a very weird place in the law, right? They are property, they’re chattel meaning inanimate objects as far as the law is concerned and yet of course they are not. Many of us who are animal lovers feel relationship with our animals very deeply and it’s a responsive relationship because they feel a relationship with us unlike our chairs or cars or our desks or whatever. The animal has a relationship with each of us as well and yet the law doesn’t treat them in that type of custody way, which is more the way obviously we think about children.  In some ways, there is more similarity between relationship between a person and a dog, but not so much animals that don’t live in your home. So an animal you share your home with it feels more like a relationship with another person than with an inanimate object and yet the law doesn’t treat animals in that way. I think what you’re talking about really in this case and in others like it is how can we treat animals in a way that is not as akin to another person but not as a chair or a car or a bank account?

DH: Well that’s why I created my practice because I am one of the only people in the United States.  There’s about five other of my colleagues who help people deal with this question involving the custody of an animal outside the divorce parameters. A lot of my attorney friends have said to me I wish I had a dollar for everyone who said this. I had wish I’d known you in the middle of a divorce agreement negotiation and we got down to the dog and everything had been settled but we got down to the dog and it almost blew up. What people don’t understand in our practice of divorce, especially in litigation, you have to ask upfront “do you have a pet?” You really need to now ask that almost at the same time that you ask “do you have children?” because the pet is usually the last best thing that you all did together. The kids cost you a lot of money, they sometimes aggravate you. The dog or the cat that lives with you only brings you joy, never asks you for much except maybe for food.  They’ve done studies if you pet a dog , live with a dog, pet a cat, your heart rate goes down your life seems more full. You relate to people and other animals better. You relate to your children better. So having an animal in your life is really impactful. So with divorce, you’re going through the worst time in your life.  As you said your ex-husband said I really regret not having Denver in my life at the end of the day. Well a lot of people do regret that, but at the time they know Katherine’s going to leave $20,000 on the table so that she can keep Denver and the attorneys are mystified that people will do that. There was one article I read in the Miami Harold when I was first starting this practice and the attorney was first quoted as saying my client left $20,000 on the table for a dog and it was old. So we, you and I own a dog, so it mystifies us that they did not get it. It had nothing to do with age; this was something that was going to anger her in this very emotional divorce process.  You and I have done collaborative and mediated divorces. I only do the piece with the animal but it really is something that has to be addressed, has to be talked about and it can’t be left until the end of the day.

KEM: I actually have two thoughts on my mind but let me start with this one and that is that it’s interesting that keeping money on the table over the dog that happens with kids too.

DH: Right.

KEM: That’s actually the worst piece of litigating and really the reason why I gave that model up because it didn’t meet my own core values of how people should be with each other and sometimes it’s necessary, it’s just not how I wanted to spend my life. Hence my mission to change how people divorce because I think there are better ways. One of the things I realized when I was litigating is that even with everybody wanting to do the best thing and keep the children out of it and really, genuinely, both parties, both attorneys, the court, it’s impossible not to bring them in in some way. Not necessarily into the courtroom but into the negotiation because of the emotional attachment and intensity that each parent has. At the same time, though, except in the worst of cases, most parents understand the importance of two parents in a child’s life. They may criticize the other parent and they may think they’re doing a bad job, they may think that they have a lot of ways in which they can offer helpful or not so helpful suggestions as to how the other person could do things differently, but they understand it took two of us to put this child here on the Earth regardless of how that child was brought into the family and we know that it’s important for that child to have both of us. The children have a voice, they literally can talk, right? And animals I think are much more prone as a culture to project onto them. I’m sure I’m guilty of this too it’s not a criticism but an observation. It makes it so much easier no, Fido or Rover or

DH: Fluffy

KEM: Fluffy, thank you, won’t miss Joe or Jill.  You know it’ll just be us because they like me better. I’m the one who always feeds, who always walks, who always grooms, or whatever it is.

DH: You’re absolutely right. So, I had a client who was sent to me by an attorney who wished me good luck because they were at loggerheads. One attorney had told his client that he had paid all the bills on the dogs so he deserved 50% of the time with the dog at the time of divorce. He couldn’t manage that because his ego got in the way because he should get 50%. When we sat down in mediation, he said, like you said, in child custody you can have the child, but in custody of a pet, you can’t. He actually recognized that the dog would be better off most of the time with his ex wife and he would get the dog every weekend and all vacations. He said, you know, I never would have gotten here without the ability to really examine and focus what it was I wanted. I think that’s what we bring to the table at Dialogue for Divorce. We get the parties to focus on what’s really important to them. I simply have the focus on what they feel is the best for the animal and after we get over the anger and talking of how you’ve never fed the dog, walked the dog, or cleaned up after the dog that’s fine. But when you think about the dog and its best interest, making sure both of these people who have been its parents for its life, they would prefer to be with one if the other couldn’t care for it and vice versa and you would know and feel better even if you know even if your spouse isn’t the best caregiver, the dog would be safe.

DH:  People really will go to the mat for their animals. I’m sure you can attest to this. They will absolutely, as you said, recognize what is best for the children because the children can verbalize and they know and they really want to be good parents, but the pet can’t verbalize and they really do want to keep that pet in their life or they know how much you want to keep that pet in your life so they hold it as a bargaining chip.  I’ve been able to in my practice both teach people how to address this conflict and my attorney friends how to ask about it and not necessarily set their clients up to want as my one attorney friend did, more than he/she can handle. You might not have the same living arrangement, you might not be able to have a pet, and you might not be able to afford to have a pet. You really have to best interest of the pet as well as you

KEM: and your children

DH: and your children.

KEM: I’m thinking of a client of mine who post divorce is living separately from her now ex husband and sharing custody of their children and the dog. This was a women who spent a lot of time at home alone, a stay at home mom when she began a home based business. She was home with the dog a lot and the dog was supposed to go back and forth with the children and I remember her saying you know I really miss the dog when she’s not here. It’s not that I don’t miss the children but this sort of companionship of having the dog with me and her relationship with her dog really deepened on the other side of divorce and this was a dog they had gotten for their kids and the typical people kind of thing. I really think that going through divorce or any other obviously traumatic, difficult time in life, your pet can become even that much more important.  So then the focus of your comfort and the relationship with your pet is being wrested away from you in a difficult time in your life. Sometimes this sort of symbolic thing of not only are you leaving me, not only is my  life as I know it over, but you’re taking away from me my biggest source of solace and comfort.

DH: Right, the one thing when I come home from work that never asks me for anything,, just comes and greets me and says hello. Especially in families that have chosen to simply have animals and not have children when those families break up. I had a mediation of a conflict between people over an animal and they weren’t married but this animal was their child. They had been together for a number of years and when they broke up they used to steal the dog from each other because they just wouldn’t be able to give it up. This was, as you said, their solace, their comfort the result of the relationship breakup. And through mediation, which they were never able to do with attorneys, they were able to have that conversation, talk to each other about why it was so important that this animal stay in their life. Recognizing that to the other party, it was just as important but they were able to listen.  You and I both know that enabling parties in mediation or collaborative to actually listen to other party through the voice of the collaborative attorney or mediator helps them understand that the best interests of the children or the animal.  You can actually come to a solution you never even thought of before. I know you’ve probably spoken about it a number of times on this radio program how solutions have come from the parties themselves.   They never would have thought they could have come to that simply because we enabled them to sit down, take time, focus, and think about the thing they’re arguing about which is the animal, the children and in my case, always the animal and knowing what to do for the best interest. After they get, dumping their bucket as I say of how much they dislike you, and they can come back around, “I really dislike you, I’m not going to like you anymore but Fluffy doesn’t dislike you as much as I do”.  Frankly there are cottage industries springing up over the big cities that are providing that transportation – doggy day cares, doggie taxis that actually provide transportation between divorced  couples so they can actually share the dog and never have to see each other.

KEM: Many times people come into mediation around conflicts over animals or divorces or anything and they have the same conflict conversation again and again and again where one person says one thing and the other person says another thing.  They’ve had the same exact conversation word for word, minute for minute and they both come in so frustrated and they’re so desperate to have someone hear where they’re coming from and affirm that they’re not wrong.  I think that what you’re saying about the conversations you have with divorcing people around their animals or other conflicts around animals is that in the mediation process you’re able to expand that conversation.  Could you tell us a bit more about how that works or just some examples about how you have seen that happen?

DH:  Well, in the discussion that we always start with, as you’ve said, they’ve never taken care of the dog, they’ve never fed the dog, they’ve never even spent time with the dog other than the dog was on the couch maybe during TV. But then you listen to the other side which says well, she always fed the dog, she always walked the dog and I really I work too much, but I always took the dog out on Saturday mornings. And then, the memory spurred oh yeah you did take the dog out on Saturday mornings, I forgot that. I remember this school teacher. He only had a set amount of time he could spend with the dog and that was totally forgotten in the anger, as it sometimes is and when you sit down and have a conversation with the parties they start to remember things and they talk about them.  Since they’re talking to the mediator first and the other party hears it through the reflection of the mediator of understanding and looping and making sure we hear what it is that one party is saying, we both practice understanding based mediation and it’s something that you try to understand exactly where the person is coming from and they give you that information.  It spurs the memory of the other person or it gives credit to the party who is speaking because you are understanding them.  They tend to listen more deeply to how the mediator reflects back what’s being said and they hear it in their head in a different voice.  They hear it for the first time sometimes even though it might have been said a hundred million times but I just wasn’t listening to you because as in conflict I’m always thinking about how do I answer you and I’m not really hearing what you’re saying.  So especially with the animals, I can enable people to stop and listen to the other party and figure a way to find a solution.

KEM: Each person’s view of the actual facts is expanded to include a little bit of the facts as the other person sees them.  We see that in conflict all the time.  People come to my office and disagree on the color of the sofa in their living room and it’s not like one person is wrong and one person is right or whether or not if I see the sofa oh yeah it is green not blue like what does that have to do with anything? It’s really about being able to have a shared understanding of the facts enough so that they the dispute that they’re having they can make enough room for the other person to include them in the solution.

DH: For me, it makes such a difference when we can sit down and have a conversation, recognize how much an animal is important to both parties even though each party hasn’t given the other one credence. It’s overly important to you or I’m going to punish you for it, because you gave it too much attention and not enough attention to me.  And that’s why we’re getting divorced or you’ve never given it attention, why do you want it now?  You’re only doing it to hurt me. Then as you said with your ex-husband, they get to think now they didn’t have that opportunity then to reflect maybe what life would look like without Denver and maybe had he reflected on that, he would have said maybe would like to have him once a month or I would like to have him once a year when you’re on vacation.  And that would established that connectivity that Denver would have appreciated because I’m sure he didn’t dislike your ex-husband and so it was him. So who knows but it could have been something that god forbid anything ever happened to you there was always somewhere else for the animal to go.  That is always my thrust when I’m talking to a divorcing couple. I say “I get it they should stay with Katherine, I get that but if something happens to Katherine, wouldn’t you like, Dave, to get it” because that’s the person the dog knows second best. And you think about that and I don’t have a crystal ball and maybe that is a good thing.

KEM: I’m thinking that when we talk about custody of children, the children have a voice in it and we talked about that a little bit earlier.  There are child specialists and child forensic psychologists and there are whole kind of ways in which the children can use their voice and the gift of language and communicate their wishes to other human beings.  There are animal psychics and animal communicators.  It’s hard not to kind of roll your eyes a little bit when you hear that or we do it by the telephone. Is there any way that you have come across in an intriguing or interesting way of getting actual feedback from the animal other than the folks standing on two sides of the park and each calling for Fido?

DH: That sort of is prone to danger because of the fact that Fido was always going to go to the person who it’s most attached to. I have 5 dogs and each and everyone of them would run towards me and nobody would run towards my husband because he doesn’t have a lot of impact with them.  But he loves them and when I’m not there they’re not running to anybody else but my husband. It’s a little manufactured if you try to have someone decide, oh so they like Katherine better because they all ran to Katherine and so we’ll give them to Katherine. When in fact, the dogs would pick Debra if no one else was in the room because they are both equal. What I have found is that most of the dogs if you leave them in the room, and you observe the interaction with the dog, the dog will interact almost identically with both parties unless of course someone is abusive.  Then you have to think about that and if there is a claim of abuse then you have to think about that. However, most of the time it’s simply that you don’t want to have to deal with the other spouse.  Which is why I brought up the cottage industries supporting people to get the dogs back and forth, because you really want to support the animal’s ability to live with everyone because they don’t hold a grudge, they aren’t angry. Especially where kids are involved to enable the dog to go back and forth. Cats don’t really survive as well going back and forth from their home to some other home. It can be done especially if some other people are diligent, but it is a little more difficult than dogs. Dogs are much more adaptive.  But you really want to make sure when you’re having that conversation about who loves the dog more or who the dog loves more, you’re very careful not to skew it because that will almost always be the person who takes care of the pet. That does not mean that the only person the pet would go to in a pinch. I don’t disagree that people can talk to your dog from the other side.  There are a lot of people who have great websites that help you have a dialogue with your dog both when it’s alive and when its dead and a lot of people put a lot of credence in that. I tend to really like to have a conversation with the divorcing people and keep them in the present and focus on what they want to do in the best interests. I always cringe when people want to go to court to fight over their dog. The courts hands are really tied because it’s like a chair.

KEM: The courtroom in my opinion is very bad for families. I discovered that in 10 years of litigation. Not just matrimonial litigation but child welfare litigation and I think it’s possibly even a worst place for animals

DH: Oh it really is because you just don’t ever get the ability to speak about the emotion because it’s only the facts man.

KEM: Before we end, I want to give people a chance to contact you so what is your contact information.

DH: well, you can reach me at or you can write me at [email protected] you can follow me on twitter at hlawmediation and you can linkedin with me. You can call me at 914-273-1085. I look forward to speaking with anyone who is in conflict over animal whether in divorce or not. Neighbors with barking dogs, call me too.

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Skinned Alive? Power and Control in Conflict

One of my mediation clients once said, “I know what win-win is.  That’s what you tell the other person to make them feel better after you have skinned them alive.”  People in conflict often fear the other party will use power and control to take advantage of the situation and coerce them into an unfair agreement.  To protect themselves, they join in the power struggle and use the means under their control to influence the outcome.  When decisions are the result of coercion, they are more likely to boomerang and leave each party feeling “skinned alive.”  We see this particularly when we observe disputes between nations but also in the ineffective use of power when parents use their coercive power to get their children to do what the parent thinks is best.  Although the conflict may have ended, at least temporarily, the outcome may not be optimal and the relationship may have been damaged, leading to future conflicts.

We created the Understanding model with a view that the power of understanding is an underutilized power that is a true alternative to the power of coercion.  The people who have created the problem and will have to live with the results of the solution have the wisdom within them to know what decisions make sense for their lives.  If parties can minimize coercion to make the best decision together, the agreement is more likely to be one that they will be committed to.

So what is our role as professionals?  We help them hang in there to not surrender to the other or overpower the other so that we can preserve for them the ability to make decisions together.  We help them navigate the minefields of the dangers of other professionals who might want to take over the decisions for them.  We seek to empower our clients to make decisions together with our support.

So what could go wrong?  Us.  Our relationship to power and control. Do we overtly or secretly try to manipulate the parties to reach the result that we think is best for them while giving lip service to the decisions being up to them, wink, wink, nod, nod?  And how do we cope with the challenges that arise when one party wants to control the other?  Do we step in to shut that down to protect the one from being overpowered by the other?  Do we respond to aggression by the parties or the other professionals we are working with, with our own aggression and find ourselves polarized from others, or worse, successful in our attempts to dominate the process?

Many conflict professionals pretend that they don’t use power and control as part of their process.  They see power and control as dirty words.  Yet upon reflection, we know that being unconscious of the way in which we try to influence others is far more dangerous than admitting that it’s appropriate for us to be exerting power as a responsible professional.

In the next couple of months in our newsletter, blogs and advanced training, we will be exploring the question of our relationship to power and control and how that impacts our work with the people we are trying to help.

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The Meeting Place: Marissa Wertheimer

At our basic trainings, we are often asked “how do I start mediating?” or “how can I shift my work in a different direction?”  So we are offering a new feature in our newsletter, where we interview former Center participants/students who have integrated the Understanding model into their work or career, sometimes in unexpected or unpredictable ways.  (We appreciate any suggestions for people you want to recommend for future interviews.)

Our first interview is with Marissa Wertheimer, a mediator and Restorative Justice trainer in the San Francisco Bay Area.

How did you first become interested in mediation?

Whenever I tell the story of my professional journey, I always start with my first training with Gary Friedman in 2002 at the Center for Understanding in Conflict, which changed my life.  The “aha” moment for me was learning about looping for understanding.  I immediately started using it and was blown away by the positive outcome of giving people your undivided attention, particularly my spouse and children.  It was so powerful when people knew that they had been heard that it changed how I related and connected to other people.  From that moment, I continued to use it and integrate it into my life and work.

Although I was very attached to the Understanding Based model, I also took other mediation trainings as well as continuing to take advanced trainings at the Center.  I learned to appreciate how Gary and Jack had so carefully and rigorously deconstructed what Gary was doing when he mediated so I could learn from the pedagogy that was developed to teach the model.

How did you start mediating professionally?

In 2003, I started volunteering at Marin Mediation Services (“MMS”), which was a community mediation organization.  A year later, I was offered a position conducting both victim offender and community mediations.  I feel lucky that I was there when the job became available.

There was an element of timing, but it also sounds like your focus on becoming well educated, your volunteer work, and your passion was the foundation for being invited to walk through the door when it became open.  What happened next?

I continued to work at MMS.  A few years later, I attended a presentation during Dominic Barter’s first visit to the United States to spread the word about Restorative Circles, a specific process grounded in the philosophy of Restorative Justice initially developed in Brazil. There is a lot of overlap between the concepts and techniques underlying the Understanding Based model that I had been using and the Restorative Circles model.  It made sense to me immediately and was a path that paralleled with the work I had been doing in victim offender mediations.  I could see that when people articulated what someone else had been saying, it led to transformational outcomes from conflict.  Barter’s work with youth in the justice system, continually developing and broadening the theoretical underpinnings to support the practice, was very inspiring to me. I went back to MMS knowing I wanted to try this approach and was able to help build the Restorative Circles practice we use now. We started with juvenile cases and occasionally included young adults while continuing to also do community mediations.

Did that change at some point?

Yes, in 2010, the community mediation services were eliminated.  I continued to work for the County of Marin but only in Restorative Justice.  This past year I had an opportunity to collaborate with several RJ advocates in the Marin County Justice system to launch a RJ Pilot Program in the Adult system.  Additionally, I became a Commissioner on the Juvenile Justice and Delinquency Prevention Commission and with other Commissioners and community partners, we were able to advocate for widening restorative practices from that platform.

Even though I was only working in Restorative Justice, I continued to help with teaching mediation at the Center for Understanding in Conflict and attending advanced programs such as SCPI (Self-Reflection for Conflict Professionals Intensive) because I wanted to stay connected to mediation and the Center’s community.

What are you doing now?

I recently left my employment at the County of Marin while continuing to work on the Restorative Justice pilot program for adults.  Although I loved my work there, I also knew I needed a change.  SEEDS Community Resolution Center in Berkeley has been developing a Restorative Justice program for several years.  I knew the program coordinator from my work on the ADRNC board and when she was going on maternity leave, I was invited to temporarily fill in for her. I am also starting to build a private mediation practice and working on everything involving in starting up a business, including developing a website and marketing.

Tell me more about your work on the board of ADRNC.

I wanted to support and be involved in the dynamic programming opportunities they were offering members so I joined the board.  It was a wonderful opportunity to connect with mediators from different parts of the Bay Area and to get a landscape view of the mediation community and who was doing what. I was encouraged to think about what was needed for mediation as a profession, how I could contribute, and further refine my own interests and career path.

What else are you doing?

I am a trainer for the IIRP (The International Institute for Restorative Practices) conducting trainings around the country.  Sometimes, a specific group such as a school district will bring us in to train their whole staff.  Other trainings are open to people from different occupations who are interested in learning about restorative practices.  One of the things I love is to work on co-designing a program that will meet the participants’ needs.  The first thing I do is to stay grounded in the present, listen and loop them to make sure we are on the same page, which is huge when you are contracting with someone to provide them with services.

What do you do for fun?

I love bowling, stand-up paddleboarding, cycling, hearing the amazing music available in the Bay Area, attending theater, and spending time with my partner, his son and my 3 adult children.

Thanks Marissa for your time.  We appreciate your dedication and hard work which benefits all of us.

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Reflections from Europe, 2015 by Gary Friedman

I’m just back from a month of teaching Inside Out programs in Europe, including France, Germany, Austria and Italy.  My strongest impression is that we have reached a critical mass to legitimize self awareness as not only helpful but indispensable to being effective and having a satisfying professional life.   The old walls separating the personal from the professional don’t seem to work anymore if they ever did.  It is also true that the mainstream of the lawyer culture is not yet there.  What this means is that the need for personal support to sustain SCPI work is critical to its success.

I am also struck by the relationship between intimacy with oneself and intimacy with others.  The more we become familiar with our own inner workings, the more capacity we have to connect with others.  More and more I have the feeling that we are building something together across the world that is gathering steam yet often stirs controversy as well.

A doctor in one country says I don’t want to feel too close to my patients because the pain is overwhelming.  Yet as he speaks, I cannot help but feel how painful it is for him to be repressing that pain.  A lawyer in another country speaks of the loneliness she experiences when she pushes people away with her aggressiveness.  A psychologist in still another country finds relief to know that she can let down the professional mask and show her humanity and consequently feel like she is more comfortable with herself now that she has decided not to hide.

Of course, it’s not easy.  Of course, there are minefields.  Above all, it’s gratifying for all of us to see that beneath our professional masks, we are all trying to help others find their way through conflict, and that when we can show that to each other, we all feel emboldened.  And for me, more and more what I experience is that it is the collective search to find ourselves that transcends the personal importance of any one of us, especially me.

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The Trap of Determining Success By Whether Parties Reached An Agreement by Gary Friedman.

Many people come to mediation with a goal of reaching an agreement, so it’s a good thing when they do.  As mediators, we also want people to reach an agreement so they’ll be happy with us as mediators and we will feel successful.  We believe that our reputations will be enhanced by our rate of success.  People seeking mediators often want to know our “batting average”–how often people reach agreements with us.

So it is tempting when a mediation is hanging in the balance for us as mediators to exert pressure on the parties to make an agreement.  We can say that we are doing it for them, and also know that we are also doing it for ourselves.  Quality of agreement concerns can go out the window under the pressure of feeling the risk that the mediation might “fail.”

In the light of day, however, determining success or failure of a mediation is much more complex than looking to whether the parties reached an agreement or not.  We know this as mediators because some of our worst nightmares are not the cases that blew up, but where we participated either by acquiescence or silence to a deal that we knew in our heart of hearts came about by one party capitulating to another, or one taking advantage of the other, or worse, where we might have even thought that one party didn’t quite understand the agreement or the consequences of the agreement.   And some of our best experiences are situations that did not end in agreement but one or maybe both parties were able to have an authentic dialogue that impacted their lives in ways more profound than whether they made an agreement.

If we don’t judge our success by whether the parties made an agreement or not, how do we figure out whether the process worked?   In my experience, I have had a disproportionate number of referrals from former parties that did not reach an agreement in mediation.  So, at the very least, this tells us that the parties don’t determine the quality of the mediator by whether they reached an agreement.  So here it is much more subjective, in terms of our experience and the parties.  Did the parties have authentic dialogue which led to a greater understanding of themselves, each other or their situation?  If they did, I would like to think that the mediation was constructive.  From my perspective as a mediator, did I feel as if I gave my best effort to bring my full self to them, to understand them, to help them understand each other?  If I did, from my point of view, it was successful.   These criteria, much harder to define, yet they come much closer to heart of what mediation is about.

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Continued From the April 2015 Newsletter: Telling the Truth About Lying

However, in order to be able to explore the circumstances, as mediators, we may have to first deal with the dynamic.  Usually accusations of lying are accompanied by anger and upset and result in defensive behavior and sometimes counter accusations.  Our job is to be able to settle the situation down, to bring to bear the power of the light of understanding by turning down the heat of the expression. We do this by directly describing whatever dynamic we observe: “I notice that once Bill accused Joan of misrepresenting how much money from her family that Joan put into the purchase of the house, you both appeared to be very upset.  Is that true? And can we talk about that?”

Our observation of both the content and the dynamic of a conversation is the result of what we call “bifocal vision”.  When the dynamic interferes with the parties hearing each other, we need to address it, and unless we do, it will be hard to have a constructive conversation where we can get down to understanding what actually happened.

Still the question remains, what do we do when it is clear to us that one party has lied to the other?  Here the challenge is to not be so invested in the success of the mediation that we avoid the difficult conversation.  If we avoid dealing with the situation in hopes the parties will reach an agreement because that is how we measure the success of the mediation, we can become co-conspirators to avoid helping the parties face their situation.  It can be a mark of the success of the mediation that one party realized that the truth of the situation was that they could no longer trust the other, and that they needed the protection of the legal system to be able to get to the truth.

Finally, as mediators, we also need to know how to deal with our own reactions to one or both of the parties so that we don’t move into a position of becoming judges and at the same time don’t avoid pointing out dangerous behavior that can skew the mediation unfairly.  While we don’t want to relativize truth, at the same time, we need to support the parties to determine how they each want to deal with the fact of a lie.  Sometimes, the confession of a lie can lead to a commitment to be more honest, so we need to walk the line of not condemning the person who lied and renew our commitment to having honest conversations.  Ultimately it is up to the parties to decide what they want to do about the discovery of a lie, and it is also our prerogative if we feel that our neutrality has been compromised to make our own stand based on our integrity.  Dangerous, difficult work.

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Changing Minds by Gary Friedman

A recent article in the New York Times about politicians changing their minds, emphasizing the difference between flip-flopping and evolving, got me to thinking about this crucial part of our work.  When we are mediating, what do we notice about parties changing their minds?

Sometimes people are just acting strategically and take positions with the idea that they will change them if the other person is responsive to them.  Other times, real changes take place because a new understanding of the other person, the external situation or themselves results in a changed view that allows for movement.

Recently, the husband in a couple I was mediating took a very strong position, and once his wife had taken a polar opposite position, recognized that they would be stuck if he held on to his position, so he changed his mind and agreed to go along with her if she would agree to something else he wanted.  This happens all the time in mediation.  We encourage parties to have an open mind, to see the other person’s point of view, understand it and be responsive.  When this is done reciprocally, it draws people closer to each other.  When one person is convinced the other won’t change, we see all kinds of behavior in response to that, including conceding, giving up, or digging in even more strongly to hold on to their original position.

As mediators, our job is to understand how we can best facilitate the parties’ negotiation through encouraging each party to stretch their understanding of the whole problem.  Seeing the difference between whether the changes are coming from a place of reacting to the other or make real sense to the person changing is a critical skill for us to develop.  We do this by checking out the changes with the party, seeing what the perception was that changed their mind, and making sure that one party is not simply accommodating the other for the sake of getting the mediation over with.  It turns out this can be much more complicated and subtle than it may sound, especially when we examine our own small and large changes of mind.

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4 Things for Lawyers to Do When Emotions Flare by Katherine Miller and Catherine Conner

Lawyers are notoriously uncomfortable around emotions.  When feelings might run high and hot, most lawyers want to keep parties apart.  After all, we went to law school to solve problems, not be therapists.  Nonetheless, lawyers deal with conflict and like it or not, conflict precipitates passionate reactions and sometimes those responses are challenging.  There is good news though . . . if we can learn to work through the emotional reaction — instead of trying to avoid it — we have a better shot at finding a superior solution to the problem.

Law school and our early training teach us to prepare a researched and thoughtful argument and then make it.  Our gut instinct from our training then is to argue and try to be rational in the face of an emotional outburst.  It’s ridiculous actually to think that we will have any possibility of convincing an emotionally flooded person that their reaction is wrong by using a rational argument or frankly any argument at all.  Contrary to the lawyerly gut instinct to argue, the best response to an emotional outburst might be to check in with yourself.

Take 3 breaths

Literally take the time of 3 breaths to gauge your own reactivity.  Check on your demeanor, tone of voice, nonverbal communication, facial expression, think about slowing down and lowering your voice if needed.

  • With breath 1, wonder what is going on for the person or people;
  • With breath 2, notice how it makes you feel and what it touches in you.
  • With breath 3, resolve to act with empathy from your insights not your own reactivity.


Listen to the other person and let them know you heard them.  In our Working Creatively with Conflict: Mediation and Conflict Resolution Training basic training, we teach participants a fundamental two step skill for listening that we call the Loop of Understanding.  Mastering the skill of “looping” helps lawyers learn to respond appropriately to what is being said without having to argue or try solve the expressed problem before truly understanding it.  Looping what is being said often has a soothing effect and also buys time to figure out what to do next.

Looping the Dynamic

Observe what happened in the room and remark on it without judgment.  We call this looping the dynamic – commenting on what is happening in the room that caused the emotional outburst.  Looping the dynamic may stop the defensive reactions and – create space to move beyond a right-wrong conversation.

Don’t Take it Personally

Take the initiative when you think it might be about you.  Try especially hard to do this when people are mad at you – e.g. your client thinks you aren’t protecting them enough.  If the person is angry at you, it may not be about you.  You have triggered something in them.  Or they may be triggered by the other party, attorney or something else.  The triggering event may be personally directed but the strength of the reaction is about what is going on for them.  Rather than reacting defensively to what may feel like a personal attack, ask questions to understand what has triggered a strong reaction.

Interested in learning more?  Click here to purchase our 1 hour webinar.

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3 Mistakes Lawyers Make that Keep Them (and Their Clients) Stuck in Conflict by Catherine Conner and Katherine Miller

Clients arrive in your office because they have a problem they haven’t been able to solve and are hoping you will fix it for them so they can get on with their lives.  Like many lawyers, you probably enjoy being a problem-solver and feel satisfied when you help your clients find a path to a resolution.  After you gather sufficient information to understand and analyze the situation, you usually attempt settlement negotiations.  Sometimes those discussions work out great but other times you can end up stuck and mired in the conflict.  When that happens, it is disappointing and frustrating both for you and your client.  The constant grind of adversarial tactics and the toxicity of the emotions evoked by conflict can lead you to question your choice of profession.  It’s often said that the best agreement is one in which both parties are unhappy, but isn’t that a dismal goal? It’s not surprising that the rate of depression and substance abuse is higher among lawyers.

What might you be missing and what can you do differently that will enable you to help your clients solve their problems and bring you greater job satisfaction?

Missing the opportunity

One mistake lawyers frequently make is not taking the time to learn what is important to the other party. It is challenging to create a settlement proposal that will be attractive to the other party if you don’t know what drives them.  Lawyers often make assumptions about the other party’s thoughts directly on the disputed questions based on their legal analysis of the case. Lawyers often make the mistake of not getting sufficient information to evaluate all the concerns that affect the other party’s decision making.  Understanding what is really underneath the conflict for parties and how the problem and possible resolution affects their lives is information you MUST have to effectively settle your cases.

So what can you do differently?  Work together with the other lawyer to create the opportunities for the parties to sit together and describe what is important to them so you both get to hear them rather than relying on each other to interpret what is important to them.

Missing the big picture

Experienced lawyers see similar cases over time and may even come to develop their own story about types of cases.  “Ah, a case #7.  I know exactly how this one is going to turn out.”  Or we may see similarities in the people involved in our area of practice and create a narrative about what that means for the case and possible outcomes.  “He is one of those employees who exaggerates the situation to make himself feel more important.  He won’t settle unless his contribution is lauded.”  While there is value to seeing patterns in cases and developing a sense of the possibilities that may occur, the risk is that we may become too comfortable with a limited range of options and stop too early in looking for what is unique about this client and this situation.

Another risk is that we can become so aligned with our own client that we are unable to consider other perspectives.  We can’t imagine that what happened in the dispute is anything other than what our client has told us because our client is so reasonable and the other party is so clearly distorting the facts.  This is particularly easy to do if our client’s story and goals are consistent with our strongly held beliefs and values, which reinforces our goal that justice is being served by our actions.

So what can you do differently?  Remain curious about the big picture about this particular case.  What makes this case different from every other case you have handled?  How might you or your client be distorting your perspective by looking too narrowly at the situation or filtering what you are hearing through the lens of your values or biases? Are there creative directions to move towards a resolution?

Missing the message

All of us have an ongoing inner dialogue that helps us navigate the world.  Lawyers learn that our professional inner dialogue should focus on finding the best facts to develop the case for our clients and to ignore or discard what is not relevant.  As our clients are talking to us, we are filtering what they are saying and planning our next questions to lead them to give us the most vital information to make our case.  We often miss what the client actually wants us to hear – what is most important to them in their situation.  We can end up pursuing goals that we think they want rather than what they actually want.

Interested in what you can do to better understand what you clients want, seize opportunities to settle and help your clients be happier? Learn more by visiting

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From the January Newsletter: Going Under the Conflict, continued

The thought that we have in this newsletter, or in the “understanding based approach” to mediation, ready answers can obviously seem and be presumptuous and can even keep us cut off from the  struggles that are upon us all.  Yet, can we, we ask, reach for ways to seek to connect, to seek to honor the underlying connection of who we are as human beings together in this society in the face of, in the midst of, the too often felt experience of the deep divisions that so sadly appear to beset so many?

Conversely, to be quiet in the face of difficulty, because they are indeed so many and so large, can be to cover our eyes, our ears, our mouths, our hearts.

What we can do, at least for ourselves, is to seek to understand — to bring understanding for ourselves and for others and with others as we seek to understand and express often different deeply held views.  We can seek to understand, while not necessarily agreeing with, the differing perspectives, experiences, feelings, commitments of others and of ourselves as we face and feel the pain, and sometimes also the hope, around us and within us.

To say that we are all connected, at times like these, may seem naive or somehow misplaced, even distasteful, however true it may be.  Certainly, we may not be in touch with the connection between us or we may experience it only by the pain and anger that we can feel in losing touch with our contact with one another.  Yet as we view it in the understanding-based approach, our underlying connection is there.  Whether and how we experience it and what we do with it is an ongoing question and challenge.

In the face of all we see and may be a part of in the larger communities and society of which we are all a part, we also face the challenges and opportunities posed by conflict in our work as mediators.  In light of the larger conflicts that we see reported and at some level are ourselves a part of, the challenges posed in our work with personal mediations between disputing parties may seem less significant, less important. Yet they can be as significant and important to those we serve and also to ourselves.

It is on that journey to a deeper level — through hurt, anger, frustration, resentment, despair, hope (and much more) — that we can reach a deeper possibility of supporting parties in dealing effectively and meaningfully with their conflict. It is also possible that the larger context of conflict in society can bring greater sensitivity for us in our work with individuals in mediation, and our work with parties in mediation can bring greater sensitivity to our and others’ understanding of the larger social challenges.

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Going Beyond Mediation: How can we talk to each other by Gary Friedman

I’ve just had an experience with the community where I live in which I was part of a team working to create a community wide dialogue about the crucial issues facing us. It was an extraordinary experience in many ways, but what I found most interesting was how so much of what I have learned and we teach in our training programs was critical to the success of our dialogue.

It’s easy to underestimate the challenge and importance of turning the attention of many people to the dimension of HOW we talk to each other.  Particularly when people feel passionately about the issues, stopping to consider how we will talk about them doesn’t come naturally;  it requires a lot of discipline.   Exhausted and discouraged by a few people dominating our community meetings, attendance had declined.  How could our team inspire them to become involved again – or for many for the first time?  People want to feel safe to express themselves. Much leg work and personal contact preceded the meeting.

When our team presented its recommendations for ground rules that could make for a more constructive dialogue for the 100+ people in the room, there seemed to be a group sigh of relief:  maybe, just maybe, this conversation would be different. Hope rose in the room when we made suggestions about how we could give each other the room to speak, and in doing so, and not spend our time when we weren’t speaking to just prepare responses to what the other was saying, but really listen to the other.

While there was still some skepticism when we suggested this was an opportunity for all of us to better understand each other and the issues that we were working on many began to sense this would really be a new kind of meeting.

Yet when we turned our conversation in smaller groups to the dimension of thinking and talking about what process we could use to resolve  major issues confronting us, it was too hard for some not  to simply plunge into the substantive discussion that had created so much fire between us.  We had to repeatedly come back to our agreements about the process and reinforcing it to keep us on track.  Eventually we made significant enough progress and most of the community came away elated from the meeting.   We had finally broken a decades long habit of meetings where people felt disrespected and discouraged.

I say all of this because so much of what participants in our training programs report to us is that what they learn applies to so much more than the form of mediation.  A significant number of people who come to our programs don’t end up mediating but they find themselves applying the learning to many parts of their life, both personal and professional and they are happy that they came.  Increasingly, we have people come to our mediation programs who want to learn about how to help people deal with conflict because conflict is part of their job or life.

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Don’t Make Assumptions by Katherine Miller

I’m reading The Four Agreements by don Miguel Ruiz.  The Four Agreements are:

1. Be impeccable with your word.

2. Don’t take anything personally.

3. Don’t make assumptions.

4. Always do your best.

I’m struck by the implications for mediators of the Third Agreement – Don’t Make Assumptions .    Ruiz writes, “If others tell us something we make assumptions, and if they don’t tell us something we make assumptions to fulfill our need to know and to replace the need to communicate. Even if we hear something and we don’t understand we make assumptions about what it means and then believe the assumptions. We make all sorts of assumptions because we don’t have the courage to ask questions.”

I wonder if making assumptions is what sometimes makes asking questions so hard.  When it’s hard to ask a question is it hard because we assume that the question will be hard to answer?  Or, are we already making assumptions because we think we know the answer and are already in judgment about it?  Or, is it something else?

Sometimes, in the Support and Development classes we run, a participant will come in with a challenging mediation that she’s working in.  Sometimes, the challenge is that the mediator doesn’t know what is going on for one or both of the parties.  The mediator wonders could it be this?  Is it that?  It must be something really difficult because the mediator is so uncomfortable not knowing what to do.

If we apply Ruiz’s third agreement – don’t make assumptions – it makes asking so much easier.

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All Speculation is Equally Speculative by Catherine Conner

Along with millions of other listeners, I just finished listening to the #1 rated Serial podcast for the last twelve weeks. Sarah Koenig narrates her year long journey exploring whether a 1999 murder was committed by the victim’s 17 year old boyfriend who was convicted or if he is innocent. In each week, more information is revealed, some bolstering the conviction and some leading in the direction that he was framed.

My two daughters have also been listening and now my husband is binge listening. We have discussed who we think did the murder and what information we are focusing on. Our opinions changed from week to week as we learned new information and the craving increased for the next episode to learn more to fill in the picture. It was like working on a jigsaw puzzle and the satisfaction you feel when you find missing pieces.

In the last episode, Sarah Koenig said something that has stuck with me, “all speculation is equally speculative.” When applied to my own speculations other than about Serial, my immediate internal reaction was “well, yes for many people that is true, but my speculations are based on carefully weighing what I have learned so they are really closer to the truth than speculation.”

That is what often happens in my office and what I love about my work. People in conflict come in and each has his or her story about what has happened in the conflict and feel quite strongly that their speculation is the truth. They tell me their stories and I also create a speculative story about them and their conflict. And then we get to explore together what has happened and what it means for their future. Over time, the stories may change as we learn more and fill in the pieces of the puzzle. When the parties, other professionals and I are able to be more open minded and have an “all speculation is equally speculative” attitude, it’s easier to find a path out of the conflict. We may not ever have exactly the same final version of the story of the conflict, but we don’t have to hold so tightly to our own speculative stories. I love listening to stories, I like challenging myself to stay curious, and I find great satisfaction helping people to work through conflict. That is why I love my work.

If you are interested in listening to the Serial podcast, you can download the episodes at Make sure you have plenty of time available because it’s like a good book that you stay up reading until 3 am to finish.

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Getting the Monkey Off Our Back by Gary Friedman

I’ve recently returned from teaching another course in mediation at Harvard’s Program on Negotiation, composed of professionals from all over the world.  I’m struck once again by how much sense it makes to people from different backgrounds and cultures to mediate together with all parties and, if they have lawyers, with the lawyers too in the same room.   What I also notice is how quickly mediators are willing to accede to a party or lawyer’s request or, even upon their own initiative to move into separate rooms to caucus.  I admit that sometimes I experience those impulses as well.  When there is a lot of tension in the room, we all want to defuse it.  It’s natural to want to do so simply because it’s uncomfortable. I occasionally feel that if I could be in a room with just one side, I’d be able to make more progress than when we’re all together.  This is particularly true in the latter stages of the process when we are dealing with a distributive issue and the parties (and/or their lawyers) are operating strategically.

But I know that if I were to give in to that impulse, I’d be buying into a whole pack of consequences that include feeling much more responsibility for the process and even the result.  As we say in our programs, it’s hard enough when you’re sitting in the middle with everyone there not to have “the monkey on your back”.  Even more so when we move into separate rooms.

So what to do with the impulse?  What I find myself doing now is to notice the impulse in me when it arises, and instead of pushing it down, to investigate it, to see what the information reveals about what is happening in the room to the others as well as within me that is giving rise to the impulse.  Usually in me I discover some fear that maybe things will get out of control or that we’ll get stuck.  When I examine the fear, I realize that it often comes from a place inside me where I am falling into the trap of putting “the monkey on my back.”  Once recognizing that, it leads me back into the relationship to the parties that I want to have.

Fundamentally, I believe that the parties’ problem belongs to them, and not to me. That doesn’t mean I don’t want to do everything I can to help them, but it does mean that it would be a problem for me and the parties if I were to be caught inside that trap.  So the way out is to start with myself, notice “the monkey” moving toward my back, and before it gets settled there, to do something within me and then with the others that puts the monkey back where it belongs.  Mediation is about helping the parties with their problem to find their solution.  I can do that better when I’m not weighed down with the burden of feeling that it’s my problem.

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Inside Out in France by Gary Friedman

I recently finished a two day SCPI program in Talloires, France, and was genuinely happy to see the enthusiasm an experienced group of mostly French mediators had in learning the skill of self reflection. As one participant expressed to me, “For me,  I had to first recognize that as a mediator I have feelings. Second I had to identify the particular feelings. And third, I have to figure out how to use the feelings to help the parties.”
What was most interesting to me was to once again understand the barriers the participants had to overcome to see inside themselves. The reluctance of European professionals to reveal to themselves and each other their feelings and relevant personal reactions to their clients has a long and storied history and was challenging to unpack, but once understood and shared by the group, it allowed us to open doors that had a particular poignancy and relevance for me. With my latest book containing so much of my own personal life, I am trying to support our profession to legitimize the value of personal insight to make a difference in our work.

What is increasingly clear to me is how important it is for people to feel supported and to provide support to others to keep this inquiry legitimized and alive, because our mainstream education and  professional norms don’t support this at all.  I hope that my new book Inside Out: How Conflict Professionals can use Self Reflection to help their clients will also help. Vive la France for joining in this effort.

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The F Word by Katherine Miller

Years ago, I remember being at a training when Gary described the word “fair” as the “F” word.  I have repeated that truism countless times since.

Everyone wants to be treated fairly and almost everyone wants to be seen as having been fair in the treatment of others.  The problem is that people can’t agree what fair means.  And when they can’t agree, they spend much time and effort trying to convince the other that “it’s only fair”.

Ironically, in the English language the word “fair” means according to the relative merits of each or consistent with rules and logic. However, it also means moderately good or satisfactory.

We all often heard a favorite adage among lawyers that a “fair agreement” is one that all parties are equally unhappy about and yet sometimes, people are willing to tolerate a tremendous amount of pain in order to avoid doing something that feels unfair. I have often been pushed by Collaborative clients who are anxious to be done with their divorce negotiations to “get it done”.  Those people feel tremendous pressure to be out of the conflict and yet they will not often agree to a term that doesn’t feel fair even if they could easily afford to do so.

Children often complain to their parents that “it’s not fair” and parents tell them time and time again that life isn’t fair.  We all know this to be true and yet we struggle with the desire to strive for fairness.  “Fairness” is a seductress and yet clinging to righteousness can be very dangerous.

It’s important to focus on what is important to each person and not on a comparison between the two.  Focusing too much on the comparison—fairness—can lead to longstanding bitterness and unhappiness.

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Empathy and Powerlessness by Gary Friedman

I recently read a report in the New York Times of  a neuro-science experiment which confirmed that people who experience being powerful are less empathetic than those who are not.  I’m not sure I believe the study, which was based on measuring brain impulses when people observed others squeezing a rubber ball, or something like that.  In any event, it got me to thinking that in our training of mediators and others who help people in conflict, that it’s a good thing for the professional to feel powerless.

In fact, many of the people we train are used to exercising a significant amount of power in their personal and professional lives.  Many of us like to be in control and that often comes out as exerting pressure, or at least gentle persuasion, over our clients and other professionals.  This idea of choosing to be powerless is likely to hit a nerve in those of us used to having our way and even being appreciated for it.

It is a radical idea that we take on this stance of powerlessness.  By powerlessness, we don’t mean that we are supposed to sit there like lumps of clay feeling helpless.  What we want to do is to be empathetic as a way of validating and empowering the parties to step forward and chart their life direction through the conflict.  If the study has any validity, we know that once we have the impulse to tell people what to do or try to push, manipulate, wheedle or cajole them in the direction that makes sense to us, if we act in any of those ways, we are undermining the parties.  And by the way, we are less empathetic. Since it is literally true that unless the parties make an agreement there will be no result in mediation, it makes sense that we experience ourselves as powerless to decide for the parties.  What, then, can we do?  If the study is correct, or even if it isn’t, our job is to be empathetic toward the parties with the hope that empathy will be contagious.  That is our primary skill and that is what makes a difference.

What’s the problem with thinking that our goal should be to experience powerlessness, especially if it leads to empathy?  Well, we don’t want to think of ourselves or other people to see us as wimps.  But we’re not wimps, because it takes so much courage and skill to make the intellectual and emotional effort to fully enter the lives of the people we’re trying to help.  So let’s hear it for powerlessness, but we might not want to put it on our websites or professional cards, “Experts in Powerlessness,” just yet. Not until the study catches on.

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Simplify by Katherine Miller

Often times when people are in conflict, they have worked themselves into a tightly knit knot of right and wrong, black and white, me and you.  The conflict includes many layers of emotion, fact, law, etc. and in that space is impossible to resolve.  One thing that we can do as mediators is to help people sort out the tangle into manageable pieces.  We can do this by helping them see the conflict from a different angle.


For example, people often come into my office with the belief that they need to convince the other that they are right.  When this happens it is often bilateral meaning that both parties are trying to convince the other that they are right.  Of course, neither hears the other and they are locked in an endless dialogue.  Sometimes it is useful to help them understand that they can resolve the conflict without either successfully convincing the other or giving up their view of the situation.  It is usually not necessary to convince the other of the wrongness of their view in order to resolve the conflict.  Not only is it not necessary but it is impossible.

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Blogging From Europe, Part II by Gary Friedman

I’m still teaching in Europe having taught a program primarily for mediation trainers, and the question that was most controversial was whether mediation trainers should reveal their views about the model of mediation they prefer when training new mediators. It took me a while to even be able to understand the question, partly because I have always taught the one model of mediation that I practice. Although recently I have taught several programs with other teachers, simultaneously teaching the settlement conference caucus based model, and have found that interesting.  What I learned in this program was that those trainers who didn’t want to indicate their preference for a model were taking that position out of respect for the mediator’s choice, analogous to the parties decision making choice in mediation.   While this impulse I can respect, I strongly differ with it for a number of reasons. First, I think we should all teach what we best know and believe and the differences between models are significant. Second, by choosing to teach one model of mediation, we give the participants a chance to work off of that model, and use those parts of the model that make most sense to them. Finally, Hiding our preferences leads to a kind of mushiness to act as if all models of mediation are equally valid, and can give the impression that there are no values choices underlying the choice of model to teach and practice.
Our model of mediation comes out of deeply held beliefs and I think it is important to the mediation community that we make those visible to the people we teach with the passion that we feel for them while at the same time don’t fall into the trap of imposing our beliefs on others. As a matter of fact, one of my most deeply held beliefs is to respect the choice of others to make their own decisions which doesn’t mean we have to hide our own beliefs. We do encourage people who come to our programs to go to other trainings where they can learn other models.  But we’re not about to start teaching what we don’t practice.

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Blogging From Europe by Gary Friedman

I’m in Europe right now, having taught last week in Spain, now in Milan, and later this week in Geneva.  Anxiety about the development of mediation is running high here, yet the enthusiasm remains undimmed. What is most interesting to observe is the response of the legal cultures.  In Spain, mediation has not reached the level where it is threatening to the bar, so mediation is not much on the radar.  In Italy, there is a real struggle going on with much active resistance by lawyers to the old mandatory mediation law, which resulted in a court ruling finding mediation unconstitutional, followed by a new mediation law which provides for more choice.

As an outsider, what is most remarkable to me has to do with our relationship to coercion.  As a mediator, I find myself wanting to persuade those around me of the value of mediation.  Yet in that desire to persuade is the seed of the potential problem, of wanting to use coercion to convince people of the power of a process that is based on choice. When we behave in a way that contradicts the basic value that we believe in, everyone can feel that, and this undermines our effort. So what are we to do about our enthusiasm for mediation– pretend that it’s not there?  No, the answer lies in making the effort to be congruent in our conversations about mediation with our belief about the power of choice based on understanding.  What that means is that we need to not oversell mediation.  As a matter of fact, we should not sell mediation at all. So we look for the moments that are ripe for engaging in authentic conversations about mediation where we speak as readily about the disadvantages as the advantages of mediation, and I have to remind myself, even within the mediation world, to do the same about our Understanding-based model in relation to other models of mediation.  This is a humbling, but very interesting, challenge. Holding on to “the truth” is a dangerous and unproductive game and nowhere near as satisfying as a stance of curiosity to dig more deeply into understanding how we can deal better with conflict.
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Anxiety by Katherine Miller

Anxiety is powerful.  I was well into my 5th decade before I realized it wasn’t going to kill me.  Seriously, I was in my 40s before I stopped doing whatever it took to stop feeling anxious and made more proactive (rather than reactive) choices.


Obviously, parties in conflict feel anxiety.  Anxiety, fear, outrage, betrayal . . . among other challenging emotions almost define how we think about parties in conflict.


Today, I am thinking about the anxiety of the mediator or Collaborative professional.  I have been thinking lately that our own anxiety can sometimes (dare I say often) lead us to act reactively rather than proactively.


Sometimes we sit in the mediators chair and we worry about something.  For example, we worry that we are going to have to deliver some bad news about “the law”; that the parties will reach “impasse”; or something will come up that we do not know how to handle.  When we have that worry and are not fully aware of its impact on us then it has a hold of us much the way unrecognized judgment does.  We stop seeing what’s happening in the room; instead we are distracted by our own anxiety.  That anxiety can influence what is happening either by distracting us from seeing what is there in the room for them or causing the parties to become focused on what is important for the mediator.


In a Support and Development class recently, we discussed a case where one party came in with a view of the law that is very different from the mediator’s.  Unanimously, the class had a concern about how to deliver “bad news” to one party without caucusing.  That worry – “what happens if I have to tell one party ‘bad news’” – kept them from seeing the dynamic in the room.  Once we broadened our view of the situation, many more options came into play to help the parties through that difficult moment.


I think about this all the time when I am working with people.  How is my own anxiety playing here?  Much like judgment, I think if we can identify our own concerns, our own worries, etc., we have a much better chance of acting proactively rather than reactively.  It may be uncomfortable but it won’t kill us.

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Listening by Catherine Conner

At a recent training, I described the Loop of Understanding and then asked the participants to practice in pairs listening to each other and demonstrating to the speaker’s satisfaction that the listener-looper had fully understood what the speaker intended to communicate.  In the follow up discussion, one participant said “it was such a pleasure to be listened to so fully.” I too have felt that pleasure when I have experienced someone else wholly committed to listening to me with the goal of truly wanting to “get me.”  A couple of weeks later, in the middle of a lively discussion about ethics in a Collaborative study group, three other people started talking at once, and kept talking, seemingly unable to yield the floor to the others.  I too have felt that compulsion to speak up so vigorously about something I felt strongly about.  However, at the time, I was just plain irritated.


If I make the effort to listen deeply to someone else and set aside my own reactions, thoughts, and distractions, a clarity about their thoughts and feelings can emerge.  As a listener, I find this quite satisfying.  However, if I have strong opinions about the topic, it can also be frustrating to wait to be able to speak.  This happened to me a couple of days ago during a business meeting about a sensitive topic.  The sense of urgency to speak up increased and my actual listening plummeted.  I replaced listening with my own analysis, sometimes to point of reworking it as I thought about what I would say next.  At the first available pause, I jumped in.  While there was a momentary relief at adding my opinion to the mix, the pleasure, understanding and satisfaction that accompanies a listening conversation was lost.


So in the next few days, I’m going to strive to be more attentive to the balance and interplay between listening and speaking, especially when it’s a topic I feel strongly about.  I’m going to listen as fully as I can, take a moment to reflect, and then speak from the resulting blend of what I have understood from listening to others and my own thoughts.

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Sometimes the best thing to do is nothing by Katherine Miller

Sometimes the best thing to do is nothing.


When I am mediating, there are times when the best thing I can do is nothing.  Sometimes there are difficult moments the parties need to work through.  Those moments are sometimes painful for them and often I feel that pain as well.  It can be very tempting to step in a try to do something.  Often we as mediators can be helpful.  Other times, the moments are best left simply observed.  We are not doing nothing when we quietly observe what is happening between the parties, we are witnessing it.


The Observer Effect is a scientific principle that refers to changes that the act of observation will make on a phenomenon being observed.  Of course, this is particularly true when the phenomenon is human interaction.  There are times when the act of witnessing an exchange between people is enough to change it for them enough to help them hear each other differently and more would be interfering.


As mediators we often feel we should be doing something.  We feel that urge to do something especially in the difficult moments. We think we should somehow be making the moment less difficult for them.  When those moments come, it can be tempting to take over and when that happens there is a tendency to do too much out of our own anxiety.  I suffer from this tendency myself.  When their pain makes me anxious, I want to do something about it.


Less is more.  Sometimes observing enough.  Other times a simple loop goes a long way.  In those painful moments, they need to hear each other, not me.


There are, of course, difficult moments when we as mediators can do a lot.  I am not suggesting that silence is always the best policy.  Looping, reframing and more are often incredibly useful to the parties to help them work through challenging conflict.  Sometimes the act of observation is more powerful and we shouldn’t neglect that tool.

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The Pursuit of Getting Better by Gary Friedman

I’ve recently noticed in both my personal and professional life that many of us either constantly strive to make our lives more satisfying or feel bad if we don’t make enough of an effort to be better at what we do.    We challenge ourselves to become more competent, more effective, setting out an aspiration that sets a high bar for ourselves.   It’s good to be reaching for something more, not to rest on our laurels no matter how much we think we have achieved.  Especially in our field, dealing with conflict is difficult, calling upon us to do so much to help people.  There is always more for all of us to learn in order to be more effective.

But there is a down side to this striving.   With the pressure to succeed, we can easily feel disappointed in ourselves when we don’t live up to our self-created expectations, never mind other peoples.’  It is particularly difficult to measure our accomplishments.  If litigators, the measure is simple; either we win or we lose.   In mediation, the tendency is to judge our success by whether the parties reached an agreement or not.   Yet it is much more complex to know how important our contribution is to the parties’ reaching an agreement when we understand that their motivations are far more central in determining whether they reach an agreement than whatever we think we did to help.

Often we end up second-guessing ourselves, particularly if we fall into the trap of believing that we should have done better.  This is a recipe for burn out, or at the very least, living a life in which we suffer from our own self-judgment.

What then can we do?  We’re not about to, nor should we, give up on pursuing excellence.  But what is realistic and can help a lot is if we cultivate patience and acceptance.  Not easy to do when something happens with my clients that is upsetting.  I wonder what else I could have done to help.

More recently, and maybe this is a byproduct of being about to reach the age of 70, I have become more inclined to give myself a break, to realize that I am not quite as important as I would like to think in the process of the success of any particular mediation.  And I also notice that if I can lighten up on myself, I am also more effective.  This is not the same thing as settling for mediocrity.  It is something more like acceptance of the realities that I and my clients face. I’d like to think that the days of the tyranny of perfection no longer have the same hold on me as in the past, and I’d like to recommend you do the same.

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Reading Minds by Catherine Conner

Reading Minds


I recently listened to an interview with Nicholas Epley, the author of Mindwise, How We Understand What Others Feel, Think and Want.  He is an experimental psychologist who believes that “your brain’s greatest skill is its ability to think about the minds of others in order to understand them better.”  He described an experiment conducted at the Max Plantz Institute in Germany which compared the ability to solve problems by 105 two year old children to 106 adult chimpanzees.  Some abilities were physical such as the ability to track where an item was placed.  The toddlers and chimpanzees had similar capacities for these physical skills.  But there was another set of tests which looked at social skills such as the ability to track someone else’s gaze to determine what they wanted.  In those skills, the toddlers were far superior.  Epley stated that our ability to understand what is going on in the minds of others is what has allowed us to work together so successfully as a species

He described a number of problems with our ability to understand others.  One is overconfidence.  Even though our social skills are far superior than an adult chimpanzee, we still make mistakes because we believe we know others’ minds better than we actually do.  Our egocentrism skews our opinion of others’ thoughts because we rely too much on what is happening inside our own brains to predict what is in the minds of others.

After listening to this interview, I started to think about our work as conflict professionals.  When I think Back to when I have been in a conflict with someone else, I am fairly certain my ability to discern what is in the mind of the person I am in conflict with is diminished.  My egocentrism is in the forefront and my interpretation of what the other person is thinking is distorted.  I imagine all sorts of things about what they “must have been thinking.” Even if the other person tells me that isn’t what they are thinking, I’m not inclined to believe them.  It’s as if we are speaking different languages – the one inside my head and another one inside theirs. My social skills are more at the level of the adult chimpanzee.

It can be helpful at such times to have someone outside the conflict provide another possibility – “this is what I thought he was saying or thinking.”  In a sense, they are my interpreter who describes what was going on inside the other’s mind.  When we are working as conflict professionals, one of our tools is the Loop of Understanding – to demonstrate to a speaker that we have understood what they intended to communicate.  One of the side benefits of looping is that we may also be serving as the interpreter for the other person in the conflict.  As they listen to us loop, they can reevaluate whether their belief about what was going on in the other’s mind was accurate or not.  We don’t want to push them to do that (“now do you understand what he was saying?”), but rather our attempt to understand the other may be a window for them to consider a different interpretation if they are open to that.  When that happens, there can be a sense of relief, that we have restored one of greatest skills – our ability to understand what is going on in the mind of others.

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Self-protection: How much do we really need? by Gary Friedman


It’s hard not to notice how much effort many of us put into protecting ourselves.  It’s a basic survival instinct.  If I don’t protect me, who will?  What do I need to protect myself from? All kinds of things: people trying to take advantage of me, ranging from cold callers, commercials, the noise of well-meaning neighbors, drivers who aren’t paying attention, all kinds of unwanted intrusions.  Even from our most intimate friends and family, words that can hurt, even if in the form of jokes.   So I’m pretty good at being able to know how to put up walls around me if I need to that keep me safe and provide me with the possibility of charting my own life direction.

So it’s a good thing that we know how to protect ourselves.  The problem that can develop is that we become unconscious of when we are protecting ourselves and enter self-protection mode on automatic pilot in situations where it’s not only unnecessary but counter-productive.  So in relationships with people that we want to be close to, we may be creating a distance between us, a wall that we don’t want to be there, because it could prevent intimacy with them and produces a self-protective reaction in them that only serves to increase the distance between us.

In the professional or mediation setting, this dynamic can also be a problem where the parties are operating exclusively in self-protective mode and we want to help them come together in a more open way.  If we are in self-protective mode ourselves, we all remain distant from each other and guarantee our ineffectiveness.  If we can at least take down the walls between ourselves and our clients, maybe they’ll feel encouraged to do the same.

The challenge then is to become familiar with the many ways that we protect ourselves in our personal lives and make choices about opening up to others when it makes sense to do that.  In that way we can use that understanding of ourselves to make choices as professionals that create the kind of relationships with our parties that we want to have.

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Sometimes Its Hard To Know What To Do by Katherine Miller

Sometimes it’s hard to know what to do.  That’s true in life and it’s true when we sit in the mediator’s chair.


I remember when I took my first mediation training in 1990 that the trainer made a big point that when you want the people to leave, get up and stand by the door.  I don’t know why this made a big impression on me but it is one of the only things I can recall about that training.  For years I wondered when I (or anyone for that matter) might actually want to get the people to leave so badly that I would get up and stand by the door.  And then one day a couple of years ago, it happened.


I was mediating a family case.  The wife was very quiet and came from a culture where women are historically submissive.  The husband came from a more assertive background and could be quite bullying in his behavior.  To be fair, the wife was often provocative in a passive (aggressive) manner but the husband often became aggressive and very difficult to work with.  We went through a couple of sessions making slow progress then maybe in their fifth mediation session things came to a head.  They were arguing about support for their teenage son who had taken the mother’s side and was not speaking to the father even though the family was still living together under one roof.  The father did not want to pay support for this son either to the mother or directly to the boy himself and was becoming belligerent.  The mother needed help with the child’s expenses.


I listened to both sides.  I looped.  I worked on understanding each other’s views.  Dad just got louder and angrier and Mom receded deeper into my chair.  I asked if this approach was working for them.  They agreed it wasn’t, we recontracted and nothing changed.


It was time . . . I got up and stood by the door.  They looked at me.  I said, “This isn’t working.  I think you should leave.”  The Husband said, “What, you’re kicking us out?”  I said, “Yes, you’re not listening to each other.  There’s nothing I can do to help you.  Please leave.”


[Let me say that this was not easy for me.  My heart was pounding.  I could barely believe my own gall and yet I truly felt this was the right thing to do.]


The husband was so taken aback, his attitude changed immediately and that was all it took for them to reach a settlement after another full session.  I was relieved the day they signed their papers but the story doesn’t end there.


A couple of years later, I was coming home from a meeting in the City at lunch time.  I bought myself some lunch and got on the train a few minutes early in order to eat it.  As I walked into the train car, I passed the husband.  We greeted each other and I moved past.  On the outside, I was cool as a cucumber.  On the inside, all that angst was roiling up.  I sat down and got out my lunch and began to eat.  I looked up and here he comes up the aisle toward my seat.  He stopped and said, “I just wanted to say ‘thank you.’ You really helped us a lot.”  I asked after his family and he told me everyone was doing well and then after a few additional pleasantries, he returned to his seat.  My heart was still pounding but it was a lovely closure to have.

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Verboten for Mediators: Telling People What to Do by Gary Friedman

Most of us spend a lot of time in our lives giving people advice and seeking advice from others.  This is often extraordinarily valuable for the receiver and the giver.    I like giving advice and I also like asking people for advice.  So it has always been hard for me to resist when my mediation clients ask me what they should do, or what do I think would be a “fair” agreement.  Why not, I think?  They want the advice and I like giving advice, so what could be the harm?

The problem is just this:  When a mediator tells people what to do, he/she is changing the contract from mediation to something else that approaches arbitration.  And it’s arbitration without the usual protections one has in arbitration, such as a lawyer and rules of procedure.  Further, it is changing the relationship from one of equality to hierarchy.  I know, if they don’t like the advice, they can always reject it.  This however doesn’t take into account the vulnerability that people feel when they are in conflict, just wanting the conflict to go away, particularly if they trust the mediator.  It also robs the parties of the opportunity to have to think about their own solution, and to find a way to meet the other party at that level.  And to know that, in the end, they did not surrender the power to decide to someone else.

My commitment to this refusal to decide comes from a deep faith, borne out by much experience, that in the end, people are better at making their own decisions and will be more satisfied if they do that than surrender that power to someone else.  It also comes from a belief that in fact, they understand their own lives far better than anyone from the outside ever could, and if we, and they, can stand the tension of working through whatever is necessary to find that, we are giving them a great gift.   That means that I have to find my own satisfaction as a mediator in finding a way to share all of my experience and help them avail themselves of that without turning it into something more. That’s hard, but in the end, that has been what has sustained me in this work for almost forty years.

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Pro bono and Low Bono for Mediators and Collaborative Practitioners by Catherine Conner

I participate in a time limited pro bono program sponsored by my collaborative group with the cooperation of our local courts.  We provide a collaborative team for four hours to assist low and modest income people to move toward an agreement.  Our program has been remarkably successful in helping people reach agreements, with 30 out of 32 cases resulting in an agreement.  I worked on a case recently and was struck again by how much can be accomplished in a short time with motivated parties and a skilled team.  With the support of the team, the parties were able to discuss the core of their conflict and left appreciative of the process.  I left feeling grateful for the opportunity to serve members of my community that otherwise would have been in limbo.

In the last year, I chaired a task force of the International Academy of Collaborative Professionals (IACP) that examined access to collaboration.  IACP recently published a special edition of the Collaborative Review focused solely on access to collaboration.   The issue is available online at to anyone interested in learning more about the variety of programs being developed, the questions and factors involved in starting a program, and the benefit to practitioners of being involved in providing services.  While the articles are specifically about providing collaborative services, many of the ideas can be applied to pro bono and low bono programs for other methods of consensual dispute resolution.  If you are not already involved in a volunteer program, you may find it inspiring to read!

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Like Meditation…by Katherine E. Miller

For years in our Self-Reflection programs (affectionately called “Norman Programs” on the East Coast), I have been asserting that dressage is like meditation.  Many of you may have no idea what dressage is or only learned about it through the spoofing of Ann Romney on The Colbert Report or The Daily Show during the last Presidential election season and for those people dressage is dancing with horses.  If you have ever seen equestrian sports in Olympic coverage, dressage is the prancing – not the jumping.

In any event, dressage is like meditation because it requires an opening of the mind and awareness of the body.

I came across an article recently making this exact point and I forwarded it to Norman in an email triumphantly proclaiming proof of my theory.  He wrote back . . .

“yes but then again everything is like meditation!”

I was momentarily deflated (although extremely tempted to argue that the “but” should be an “and” in that sentence).

I recounted this story in a support and development class a day or two later and received a chuckle or two.  Later in that class we were discussing looping and I had an Aha moment . . . looping is like meditation.  (OK, I know . . . Norman says everything is but let’s face it that probably is not true for most of us).  Looping is like meditation because I am aware of my body but not caught in it.  I am aware of internal responses to what is being said and I stay with the speaker.  Looping is calming for me because it just is.  I don’t need to do anything about what I am hearing.  I just need to hear and accept someone else’s perspective.  Like an itchy nose or tingling foot, my need to do something to fix the other person’s problem or shift them to a different place can be breathed through.

I have followed this thought since that moment and find it makes it that much easier not to try to solve spoken or perceived problems prematurely.  It makes it easier to stay with them and not formulate my response in my head while they are still speaking.  I’m finding that the idea holds.  Looping is like meditation . . .

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From The Newsletter, The Sixth Principle, Going Under the Conflict

It is on that journey to the deeper level — through anger, hurt, frustration, resentment, despair, hope (and much more) — that we can reach a deeper possibility of supporting the parties in dealing effectively and meaningfully with their conflict,if they are motivated and willing to do so. The challenge of the “if” has been addressed throughout the journey (of the first five underling principles); and the possibility of the parties going under the conflict together with the mediator continues here.

Schematically, we represent the journey of going under the conflict in terms of a “V.”

These different emotions and attitudes underlie conflict as we view it.  Conflict can deny our connection to one another and deny ourselves in the process.  The caucus model accepts (and, in doing so, also affirms) that denial.  We see conflict as too often denying the human connection between us and in the process denying ourselves.  The frustration, anger, and pain that underlie the conflict and mark the relation between the parties is often limiting.  Where some approaches simply accept that as reality and work to find a “solution on the surface” (which certainly can prove important), we strive to deal with the underling deeper connection between the parties and start to find an answer there.  To the extent that they are motivated, willing and able to do so – which, we believe, is much more often than parties imagine –they somehow may be able to recognize and learn that that possibility is there.

We have all had the experience of old conflicts that while possibly “resolved” on the surface often stay with us for years (sometimes for generations).  It may be conflicts of others that we have heard about. Sometimes it is those that mark our own or our families’ history.  That that is true makes the challenge of a deeper resolution that much more touching, important and possibly hopeful.  Those of us who seek to mediate in the understanding-based approach know that hope and aspire to deal with that possibility and that challenge.

In one of our trainings several years ago, a judge from a rural town in the United States, who was studying mediation for use in the courts, told of a most touching case she had confronted years earlier.  A man rushing to the hospital where his wife was giving birth to their first child crashed his car into the car of another where the father was driving his seven year old son home after picking her up at school.  The young child died from his injuries.  Both fathers and both mothers were devastated. A law suit evolved with claims and counter-claims stemming from the accident and the threats and counter-threats that followed in its wake.

At a court appearance about six months after the accident and the birth, the father whose car had killed the other child was standing at counsel table replying to a question when he started to cry uncontrollably, saying between the tears that he had never been able to look his newborn in the eyes. The other father who lost his daughter started to walk toward the one who was speaking and crying.  The judge was about to ring for the bailiff when she sensed the meaning of what might be happening and hesitated.  A moment later the two fathers embraced as they both cried.  The case was later resolved in the court-based mediation program suggested by the judge and readily accepted by the parties and their counsel.

We write about this most touching interaction here since it so represents the very real pain that can underlie conflict and how we as humans can deny the very deep ways we are interconnected often because of our pain.

Not all conflicts will reach through the pain, resentment and anger to honor the connection under the conflict that binds us all.  And, as we view it, the promise and possibility is always there under the conflict if we are willing to see it, reach for it and go there with the parties.  In large and small ways, as mediators we are always working with that human challenge – reaching in ways that honor the parties and, as they are willing and able, their connection.

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Can’t We All Just Get Along by Gary Friedman

At the first sign of any inter-personal tension in the room, a good friend of mine usually says half in jest, “Can’t we all just get along?”   Sometimes the effect of that on the others is to lower the temperature by stopping the conversation.  Mostly though, it doesn’t break the tension, and sometimes, it actually increases it.

As we are learning more about brain science, it turns out that we actually do seem to want to get along, that we’re happier, or at least, more able to think clearly or at all, when we are not living in the effect of being triggered by others.

I certainly notice that when things become uncomfortable in my personal life, tension within the family, for example, my first response is to want to make it go away.   But I have found, over time, that instead of dismissing whatever it was that created the tension that I felt, I have learned an enormous amount about my relationship to others, and my own life when I have found the courage to investigate, rather than push away, the painful feelings that usually underlie tension between me and others.  Not that all of the conversations that ensue necessarily resolve the tension, but they are always sources of discovering something new, and while challenging to explore within myself and others, have been worth it to me most of the time to pursue, at least alone, if not with others.

Realizing that I can’t resolve all of those tensions and experiencing the accompanying discomfort is not easy, yet those tensions are indispensable to my being able to empathize with my clients and colleagues when I’m being paid to help.

Of course, it makes sense to pick our battles and not turn every point of tension into a fight or even a further exploration with the person who has provoked us.  But it always makes sense to at least notice these tensions when they arise, and go into them with the other person when we are both ready.  This allows for a deeper connection between us and ultimately, possibly a deeper sense of harmony between us when we can find our way through the problem.  This is what we advertise that we can do for our clients, and it’s definitely been worth it for me to try it at home as well.

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Beginnings and Endings by Catherine Conner

Beginnings and Endings

I recently participated in a discussion about birth and death.  One of the outcomes of the conversation was to consider both beginnings and endings that occur at life events.  When my daughter was born, I focused on the birth as the beginning of a new life and the mother-child relationship.  The emotions I experienced were the ones I often experience at a beginning – excitement, trepidation, joy, and happiness.  When my father died, I thought of his death as the end of my relationship with him and felt grief and sadness.

Yet a beginning is also an ending and an ending is a beginning.  My child’s birth started my life as a mother but ended my life without parental responsibilities and the more carefree nature of that life.    When my father died, it was the beginning of an inner relationship with who he was and who I am in relationship to that.  I can now experience the sweetness of waking up from a dream in which he has appeared.  I sometimes say to myself, “Dad would have enjoyed this” and it makes the experience more meaningful.  I didn’t see these beginnings and endings clearly at the time of the transition, but now recognize they existed.

At times of crisis or transition, it’s sometimes hard to recognize both beginnings and endings.  This can happen with our clients who are in conflict and we can be drawn into that limited view.  Sometimes when I listen to a client who has decided to leave a particularly troubled marriage to a spouse that did not treat him or her well, it’s tempting to make judgments about the spouse and join in the client’s view that looking forward – the new beginning – is what is important.  When I have a client that is struggling to understand how a conflict developed and the impact it has had on a relationship, I can get caught up in trying to sort out the past – the ending.

And even if I’m not drawn into the client’s perspective, it’s not always appropriate to point out the limited view.  It’s not necessarily the right time to say “yes, your relationship is ending and that is very sad, but it’s also a beginning that you might find intriguing.”   Or “this may seem very exciting to be starting fresh, but you may want to examine what has happened as this relationship is ending.”  However, I believe that if I can be aware of beginnings and endings and hold that perspective in my consciousness, I will act in ways that will help the larger picture be available to my client when he or she is ready.

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The Center Announces New Self-Reflection for Conflict Professionals (SCPI) Program

We are pleased to be able to offer once again a nine-month intensive program in Self- Reflection for Conflict professionals beginning in September.

The focus of the program will be to train participants in ways of accessing their inner lives while working with clients in conflict that are constructive for the professionals and productive for our clients.  We will learn together about connecting with our deeper impulses that fuel our commitment to working with people in conflict – such as compassion and the search for greater self understanding and mutual understanding.  We also learn about dealing with the barriers to that understanding, such as judgment, anger and the desire for control, and how to recognize and work with those barriers to bring us closer to ourselves and our clients.

For more information and to register

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“Ego in the Room” by Katherine Miller

A participant in a recent support and development class told a story about his first mediation several years ago which concluded with an agreement between the parties.  He said that when it was over and the parties and their attorneys were leaving, he said that the mediation had gone pretty well for his first mediation.  That statement infuriated one of the parties and the mediator was upset that he had somehow inserted his own ego into what was supposed to be their process.

This story led us to a full evening’s discussion about the boundary between us and them and the implications of allowing the process to become about us – our closure rate, for example – rather than about the parties.

Interestingly, while we do not want to make the process about ourselves, we do want to bring ourselves fully into the room with all of our experiences, personal and professional, that allow us to be fully present for the experience of the parties. So the challenge is to be fully present as ourselves and yet not turn or manipulate the process to meet our own needs.

Later in the week, I was talking with a Collaborative colleague about a couple of cases we have together where the parties have been processing information about their children that they have received from the child specialist.  In both cases the full team had been present to hear the child specialist’s feedback.  The team had really listened and supported both parents to bring their authentic voices into the discussion truly without strategic intent.  The team’s willingness to be fully present for both parties regardless of whose client was whose had a powerful positive effect on the parents, affirming the importance of both their roles and working together to parent their children.  In these meetings, various members of the team told short stories about his or her own experience parenting children through divorce and yet these stories were not intended and did not turn the conversation away from the parties and toward themselves.  They were offered as support for the parties and not as a distraction from the problem and the conflict they face.

It is a challenge in the work we do to bring ourselves fully into the room and not make the conversation about us.  When we do allow our egos to creep into the conversation (and we all do at times), we run the risk of becoming invested in the outcome of the negotiation.  If we are keeping score of how many cases we settle—we are invested.  If we are thinking what the other professionals involved think of us—we are invested.  Once we insert ourselves into the conflict in that way, we compromise our objectivity and may no longer be able to be as helpful to the parties.

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Article about the Understanding-based model in the Consumer Attorneys Association of Los Angeles Advocate

To Caucus Or Not To Caucus – That Is the Question by Gail Killefer: A mediation model in which the parties work in a joint session without caucusing

In July 2012,  Gary J. Friedman of the Center for Understanding in Conflict (Mill Valley, California), presented “To caucus or not to caucus” at an advanced mediation  training for the  Mediation Panel of the U.S. District Court, Central District of California. In this  interactive training, Mr. Friedman demonstrated the  benefits of working with the  parties in joint  session.

Friedman has developed a model of mediation in which the  parties work in a joint session  – without caucusing – in order to gain  a fuller understanding of the  dispute directly from one another and  actively participate in the resolution of their differences. He has used this model in over a thousand mediations in the last two decades in the areas of intellectual property, real estate, corporate, personnel, partnership formations and  dissolutions – topics  with which the  panel mediators are familiar.

Friedman’s use of the  joint  session and his reluctance to “caucus” – or to meet separately with one side and its lawyer – was thought-provoking and controversial. The response of the  audience was as varied as the  backgrounds and expertise of the panel themselves.

The Audience

Each  year, the  U.S. District Court for the Central District of California hosts an advanced mediation training for the attorney mediators who volunteer to serve on the Court Mediation Panel.

The  panel consists of experienced attorney mediators. They view the Court’s annual training as an opportunity not only to learn about cutting edge topics in mediation, but as an enjoyable day spent with interesting colleagues.

The Central District’s Mediation Panel consists of nearly 200 attorneys with a wide variety of practices. Some panel members are full-time neutrals; some are full-time litigators with mediation training and experience; and  some  combine a litigation and mediation practice.

Some  panel members have  a solo practice; others are members of small, medium or large firms; or they  work under the  umbrella of a mediation provider such as JAMS or ADR Services. For cases assigned by the  Court’s ADR Program, all panel mediators volunteer their preparation time and the first three hours of a mediation session.

To be appointed to the  Mediation Panel by the Court, attorneys must meet strict qualification standards: they  must  be a member in good standing of the  Bar of U.S. District Court, Central District of California; they must have at least 10 years legal practice experience; they  must have substantial experience with or knowledge of civil litigation in federal court; and they must possess significant expertise in one  or more designated areas of law. The panel includes attorneys with substantive experience in 22 areas of law. Panel mediators must also complete a court-conducted or court-approved training course in mediation.

From this diverse talent pool, 60 panel mediators participated in the training  “To caucus or not to caucus.”

Theory Underlying the “Understanding- based” Model

Friedman’s approach to mediation is focused on the parties and their understanding of the  conflict. In the  under-standing-based approach to mediation, the parties stay in joint session and work through the conflict to reach a resolution. This approach gives the parties and  the lawyers an opportunity to truly “hear” the other side.  It also gives the parties more control and more responsibility for the decision-making that takes  place  – and  for finding a resolution.

To prepare for the  training, Friedman asked  the  participants to read a chapter in his book, written with Jack Himmelstein and published with the  ABA and Harvard’s Program on Negotiation, Challenging Conflict, Mediation through Understanding. The chapter, entitled “Love, Death, and Money: To Caucus or Not to Caucus,” offers an example of a mediation  using the “Understanding-based” model – and  a lawyer’s typical resistance to that model.

At the  start of the mediation described in the  chapter, a lawyer to one of the  parties resisted the  mediator’s preference to stay in joint session. She wanted the  mediator to meet separately with her and her client and for the mediator to give them, in confidence, his opinion as to what  would  happen if the  case proceeded in court. She was also concerned that once the  parties began discussing a monetary settlement, the  other party would  leave  in anger. She hoped the mediator would facilitate the  negotiation by shuttling between the  two parties.

Caucus model

Many  lawyers are – and  most  of the participants at the  start of the  training were more comfortable with the  caucus  model, in which the  mediator shuttles back and forth between rooms, meeting with the  par- ties separately. The  mediator can confiden- tially discuss  the  strengths and  weaknesses of the  case. This  approach allows the mediator to build rapport with each side and to coach each side in the negotiation.

Keeping the parties separated also relieves everyone of the discomfort of conflict.

Friedman pointed out that this  traditional adversarial setting draws the  focus away from the  parties and  gives authority to the  mediator. The mediator becomes the person most knowledgeable about the conflict because he or she has solicited information from each side  and communicated selectively to the other. The mediator will often predict a realistic settlement range or number and work towards bringing each side to that number, possibly manipulating the parties – or making the parties feel manipulated – to move  them to the  mediator’s number.

The Presentation

Friedman led  the  audience through the five stages of the Understanding-based model of mediation: 1) contracting; 2) defining the problem; 3) working through the conflict; 4) developing and evaluating options; and  5) concluding agreement. He then used role-play techniques to engage the  audience and demonstrate the principles he described.

At the beginning of the training, Friedman stood in a large paneled room at the center top of a horseshoe formation of chairs. As he  talked and solicited responses from the audience, he wrote on a large pad, taping finished pages to the  front wall. For the role play, which involved a tense relationship between a U.S. manufacturer of a medical device and its distributor in India, the audience moved their chairs into smaller groups composed of one mediator, two lawyers and  two clients. The  scripts for the role plays shared common facts but  each included unique facts supporting the  individual character’s perspective of the dispute.

The  audience was very much “with” Friedman while listening to the  need for a contracting phase – engaging the  parties, negotiating the  ground rules of the mediation, explaining the  process and  clarifying the roles of the participants in the mediation.

Friedman explained that in the  second  stage  of the  mediation, defining the problem, he would  first turn to the lawyers and ask them to explain the legal aspects of the case. After the lawyers explained their legal positions, he asked the parties to explain their personal interest in the  dispute and how the dispute arose. Throughout, Friedman “looped” the  speaker, meaning that he actively  confirmed his understanding of what the speaker said.  The speaker responded affirmatively or clarified or restated his or her statements.

In discussing the  third stage  of mediation, “working through  the  conflict,” some participants in the  audience grew increasingly skeptical and resistant when they realized that the mediator in their role play was not  going to break into separate caucuses. They  resisted raising difficult issues in a joint  session, issues they were more comfortable discussing in caucus.

As the  role-play groups experienced difficulties, Friedman asked  participants to step forward to the center of the room to replay their experience in a fish bowl setting.  As they repeated their dialogue, Friedman coached them, modeled a different approach and encouraged them to experiment with techniques designed to reach a deeper understanding between the parties.

As the afternoon went on, the push-back  became more spirited. When Friedman suggested that the mediator in the  role play ask each lawyer to explain in joint session the  risks of going forward with his or her case, it became clear that this technique was foreign to the  experience  of most  of the mediators. Some mediators began to grill him,  pressing for an admission that certain issues can only be productively discussed in caucus.  In some instances, the comments were down- right hostile. Friedman had stepped into the  lion’s den but, from all appearances, he relished the  challenge.

Friedman persevered, demonstrating at each stage  of a mediation how the  parties and lawyers could be kept in one room and work through the conflict. For some, seeing how Mr. Friedman worked created several “aha”  moments. They were moved by watching a mediator work with the parties to deepen their understanding of a dispute and, as a result, shifting the way the  parties viewed  each other and the conflict  – a transformative experience.

The  feedback after the  training was mostly  positive. Those mediators who were skeptical of the  “understanding- based” model appreciated and enjoyed the engaged, spirited, and  provocative conversation. Those who were not sold on the techniques found them interesting. Even those mediators who were at times hostile to Friedman’s approach appreciated his refusal to take offense, his humor, and his passion for his topic.

One  participant reflected after the training that lawyers often tell mediators how they want a mediation session conducted – and that the caucus format is the customary process. In this process, the lawyers seem to believe they have greater control over the conversation and work to get the mediator “on their side.”  This participant said many commercial mediators are concerned about adopting an approach which alienates lawyers – whom  they  perceive as their clients. And the panel members with litigation practices resisted a technique they believed to be unrealistic or that could compromise their cases.

Based on e-mails received from participants after the  training, some accepted the idea that the “Understanding-based” model could work for cases that involved relationship-oriented disputes. But they could not see themselves using a joint session in a case involving distributive bargaining, especially when the defendant is an insurance adjuster rather than an aggrieved individual.

Benefits of the Joint Session

So, what are the benefits of the joint session?  Friedman’s model views the  parties working through conflict together as an end in itself.  The joint session shifts the authority to the parties: they  know what the  mediator knows, which gives them more control over the process. The parties must participate in the discussion and take responsibility for the resolution. Friedman believes that when the parties develop an understanding of each other’s interests in the dispute, they become open to more creative solutions that benefit them both. The  process may strengthen the relationship between the parties. At the very least, it will strengthen the  parties’ commitment to the resolution.

I silently  thanked Mr. Friedman this week while mediating an interpleader action involving individuals with competing claims to life insurance proceeds. After reading the court file and meeting with the parties, I “knew” how the  funds should be allocated. But, thinking of Friedman’s model, I did not separate the parties in order to suggest “my” number in caucus.

Instead, I kept  the  parties together and had  them share their stories about the deceased, their relationship to him, and how they viewed the life insurance policy. After two hours of discussion, some of which was emotional and uncomfortable, one party blurted out the allocation that she considered fair – and, as it so happened, it was “my” number. The other party nodded her head in agreement; the case settled. By taking the time to work through the conflict with each other, the parties reached the allocation in a manner that gave them more certainty, more satisfaction, and an opportunity to reconcile with one another. The mediation took extra time, but it was worth it.


At the very least, the debate among the Central District’s Panel Mediators during last summer’s advanced mediation training was stimulating and interesting. Friedman offered a new approach to mediation with insights and  new techniques. He made some converts; others were not  sold on his tech- niques but found the  material interesting. Most participants at least tried to imagine drawing on the  new techniques and  adapt- ing them to future mediations. The  respons- es to Friedman’s presentation were varied, thoughtful, and  interesting – just like the Central District’s Mediation Panel itself.

Gail Killefer is the ADR Program Director for the U.S. District Court, Central District of California. Before joining the Court in August 2010, she had a private law and mediation practice in San Francisco. She served as an Assistant United States Attorney in San Francisco from 1989 to 2001. Before 1989, she served as a Trial Attorney with the U.S. Department of Justice, Torts Branch, in Washington, D.C., and as a law clerk to the Honorable Barrington  D. Parker.  She received a B.A. from Stanford University and a J.D. from Vermont Law School.

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From Our Newsletter: The Fifth of Six Principles: Allowing Tension

‘That should be easy’, you may think. ‘Of course the parties accept that they have a conflict.  That’s why they came to a mediator.  Let’s move on.’


But the parties accepting that they have a conflict and accepting the tension that goes with their being in conflict are different.  Indeed, much of what parties do when they are in conflict is to deny the tension that goes with being in the conflict. And they do so by blaming the other. He or she (the other party) is simply wrong and must change … or at least change his or her position.  Then it will be over.  Right / wrong.  Yes.  Tension?  No.


And the mediator too can very much want the conflict to go away.  Let’s resolve it.  Or at least let’s go around it (or over or under) by some technique such as having the parties in separate rooms so that they (and I, the mediator) do not have to live with their tension.


But, as we view it, the first step for the mediator is to accept and acknowledge that the parties are in conflict.  And for the parties to accept that discomfort  “You disagree.  That may be hard to sit with. But sitting with it – acknowledging it —  is the first important step in seeking to go beyond it.”


In this way, this principle is closely related to Principle 2:  responsibility — the primary responsibility for resolving the dispute is with the parties.  We may be tempted as we sit in the mediator’s chair to take responsibility for solving the problem in order to end or avoid the conflict that is in the room.  In fact, the parties may want and even implicitly or explicitly ask us to do so and yet we advocate resistance to that plea.  Solving the problem for the parties, assuming that would be possible, disempowers them from finding a way to solve the problem together and likely leads to future conflicts between them.


Try it yourself.  Instead of seeking to make the tension of being in conflict go away, and do all the things we might do to hurry up its going away, simply allow it. This is an easy one to practice (in terms of opportunities). We don’t have to wait until we are in the mediator chair. We have tensions every day, and every day we may seek to deny them or choose one side of the tension in the effort to make the other side wrong, and thereby make the tension, go away.  The other possibility is simply to allow the tension.  Embrace it.  And recognize, and possibly say, “There I go being human again.”

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CUC Training Can Be “Life-Changing”

“I was reminded recently that at the beginning of my mediation training with the Center for Understanding in Conflict many years ago, we were asked to complete a form which included a question along the lines: “What do you hope to accomplish from it?”

Being slightly put off by the question, I chose to respond with an answer that I thought was appropriately facetious, something like: “I hope it changes my life.”

As things have turned out, the training contributed substantially to doing precisely that. A few years later, I left the firm at which I had practiced in the conventional manner for the previous 30 years, and began steering my practice toward mediation. Work went from feeling like work to being an incredibly satisfying joy (most of the time). The training – and mediation in general – are largely responsible.”


Richard Abrams, Esq.

Berkman Bottger Newman & Rodd, LLP

New York, New York

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Putting Off Until Tomorrow What I Could Do Today by Catherine Conner

I am currently reading the November/December 2013 edition of Scientific American Mind in which the focus is research and insights about the Seven Deadly Sins.  One that struck a chord with me as I read the magazine instead of doing other things such as writing this blog is the article entitled “Prodding Our Inner Sloth” by Sandra Upson. I flirt with sloth every day as I think about exercising, working on that case with the overdue project, meditating, making that phone call to someone that won’t be pleasant, or numerous other items on my To Do list that seem like attractive candidates for procrastination.  Can I summon up the will to do them?  Sloth is also a challenge in our cases as parties or professionals commit to tasks and then fail to perform them in the expected time frame, sometimes causing significant tension or conflict by their lack of action.


In her article, Upson described research which showed that procrastination is a method of neutralizing negative emotions.  By distracting ourselves in some way (surfing the internet, eating our favorite food, doodling, taking a nap, or one of my favorites – playing Words with Friends), we can avoid unwanted feelings.  In some cases, the distraction may be an unconscious move to repair a bruised sense of self. In our work with people in conflict, negative emotions may very well be fueling procrastination.


Upton suggested several strategies to move out of procrastination.  One is to reconnect your thoughts and feelings so they align with your highest goals by reframing the task in a larger context of self-improvement, because humans are highly motivated when we connect to our deepest goals and values – cognitive reappraising by “a deliberate move to change the meaning of the situation by altering our emotional response to it.”.  One study showed that people who first wrote about a personal value of great importance later had more persistance at a boring activity.  Another strategy is to give yourself a break and forgive yourself when you have procrastinated rather than compounding negative feelings with guilt.  Research showed that people who forgave themselves for procrastinating were less likely to procrastinate in the future. A third strategy is to shape your environment to reduce obstacles to exercising willpower, thus eliminating the chance for a negative emotion to arise.


In our work, we can help ourselves with procrastination by examining how a task connects to our goals or values (e.g.  writing those meeting minutes immediately meets our goal of serving our clients well by helping them to remember the key points of the meeting and reminding them of tasks they need to accomplish.)  We can help colleagues or clients with procrastination by discussing with them how tasks fit into the larger context of accomplishing their goals consistent with their values (e.g. paying child support in a timely manner meets the goal of providing for your children and maintaining a positive relationship with the other parent for the benefit of the children.)  We can give ourselves and others a break by forgiveness when we procrastinate to reduce the negative emotions evoked by the procrastination and then we can brainstorm together how to reduce the obstacles to accomplishing the task or set up a mechanism to encourage us to do the task.


Whew, now that I have finally written this blog, I’m going to go take a nap…or perhaps I’ll exercise.

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Just Back From IACP by Katherine E. Miller

I just returned from the International Academy of Collaborative Professionals Forum in San Antonio.  While there, I had the chance to recommend to some colleagues that they attend Sharon Ellison’s workshop on Powerful Non-defensive Communication and was reminded again about how insightful her work is.  I have also given as suggested reading to one of my Support and Development groups some of her writings.  If you haven’t read one of Sharon’s books or attended one of her workshops, I highly recommend listening to Taking the War out of Our Words.  I think it is much better to listen rather than read because then you can hear the differences in tone that are so crucial to how we communicate.

Sharon suggests that many of our interactions are power struggles.  Sometimes, even when we are intending to be supportive, we can be engaged in power struggle.  When we counter what another person says, we are often engaging in power struggle.  Sharon gives these examples,

Child: “I can’t do this math assignment. It’s too hard!”
Parent: “Sure you can, honey.” You are really smart.

Friend #1: I’m feeling kind of low. I don’t think I’ll go to the party.
Friend #2: Oh, C’mon. You’ll feel better if you go.

The intent of the Parent and Friend 2 is probably to be supportive and yet they inadvertently set up a power dynamic when they counter the first speaker.  I wonder if we sometimes do the same thing as mediators or Collaborative professionals when a party expresses doubt about the process.  When we seek to reassure, do we counter the party and create the opposite result of what we hope?

Sharon talks about how we instantly become defensive in many situations and relationships—personal and professional.  When we become defensive we lose some of our ability to problem solve and that, of course, reduces the effectiveness of our communication.  We communicate that defensiveness inadvertently through tone and facial expression as well as in our choice of words.  Sharon talks about approaching people with genuine curiosity and she demonstrates ways to say exactly what you want to say but to do it in a way that does not incite conflict.

While in San Antonio, I also had an opportunity to watch Ellen Bruno’s film Split about children of divorce.  Gary discussed Split in this blog a month or so ago.  The film is a powerful reminder of the impact of divorce on children and also on their resiliency.  I was moved to tears by the poignancy of the children’s words and impressed by how articulate they were about their experiences.   I plan to show the film to my children and stepchildren over Thanksgiving and see what comes up.

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When the Political Heat Turns Up by Gary Friedman

Right now I’m on the East Coast in between training programs trying not to watch the news or read the newspapers.   When I think about my mediation practice, I feel more or less insulated from the larger political events of the country or the world.  Yet I know that when Congress meets or fails to meet, when we were close to military action in Syria, as the public dialogue escalates into meanspiritedness, eruption into anger and accusations without any  interest in understanding, and coercion is THE main or exclusive way things get dealt with, I can feel its effects even when I am in my mediation room with parties, and I think it affects them too.  The way I feel it is in small ways, when someone comes across rigidly or filled with blame and accusations I find myself more easily irritated or afraid than usual, and it takes longer for my effort to be compassionate to kick in.  When I do notice my reaction, and I recognize that behind the bluster, the anger, the threats are people who resort to those strategies because they are afraid and vulnerable.  When I can feel that in them I can make an effort to engage with them at that level and hope that we can shift the conversation to bring understanding into the room. It has to start with me and then maybe I can help them do the same.
I also sense that the behavior of the parties is affected by the tenor of national and international politics. Loss of hope, despair, anger visit the parties too from that wider world.
And then I start to think not just about my and my clients vulnerability but maybe that’s the way the politicians feel too. It’s hard in this moment to feel compassion for John Boehner and his fear of losing his job.  And for the Tea Party people,  it’s even more of  a stretch to feel their anxiety. So I realize that I do have choices about how I want to relate to the wider issues, and I guess I’ll start reading the news again as I go back to work, and have a chance to see if anything’s changed with me and the world.

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Do I Have to Like Everyone I Work With? by Catherine Conner

One of the reasons I decided to start my own practice is so I could decide who would be my clients and who I would turn down.  But it turns out that my idea about how much control I have was a pleasant illusion that doesn’t really work so well in real life.  Sometimes, people who seem fine when I first meet and start working with them turn out to be quite unpleasant in the end.  Others that I feel some ambivalence or antipathy towards in the beginning grow on me and turn out to be quite likable folks.  But does this make a difference?  Do I need to like my clients and other people I work with?  Shouldn’t a professional be able to work with anyone regardless of personal feelings?

My experience is that my connection to my clients, the other party in a case when I am not a neutral, and my colleagues makes a tremendous difference.  If we are feeling positively towards each other, it’s easier.  When a request is made, there is an assumption of good faith and openness to consider the request.   When questions are asked, the immediate reaction is not to look for the hidden motive but to answer the question.  Responses, advice and discussions are characterized by an effort to listen and understand.  That doesn’t mean there aren’t legitimate differences of opinion and that conflict does not occur.  That is healthy and I would worry if that wasn’t happening.  But the differences are respected and the conflict worked through.

So knowing this, what do I do when there is someone in a case that I am starting to dislike, knowing that things will be more difficult when that happens?  The first step is just to be aware of my negativity, to recognize it before develops a headwind.  Next, I explore what it is causing my aversion.  Is it something about him or her or is it actually something about me that I would rather not look at it in the mirror they have become?   If it really is them, then I try to be curious about why they are acting in a way that evokes such a reaction.  Perhaps there is something about their behavior that I could understand in a different way that would lessen my negativity.  I also try to find things I can actively like about someone, sometimes just one or two small things but sometimes when I put some effort into it, I can find quite a few things.  If none of these steps work, then I think about what it must be like to be someone who is so unpleasant that it’s impossible to find something to like about them even with some effort.  It’s quite possible that they are suffering tremendously from whatever compels them to act in such a disagreeable way.  In almost every case, this has helped me to find a different perspective and empathy.  If not, then I have to consider the extent to which my antipathy is going to affect the case and whether I should still be working on the case.  On occasion, the right answer has been to refer the case to someone else.

I would appreciate hearing from other people about what it means to you when you dislike someone in a case and what you do about it.

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September 2013 Newsletter: The Third of Six Principles, Proceeding By Agreement

On a very basic level, mediation in many contexts often unfortunately appears to be independent of any agreement by the parties to mediateIndeed, “mandatory mediation” — where a judge can or even must order parties to go to mediation — is widely accepted.  And given the clogged nature of our court systems, mandatory mediation may be ordered in a wide variety of cases.

While we are certainly suspect of the use of mandatory mediation, we do see a relatively simple way of lessening or “neutralizing” the “mandatory” nature of court ordered mediation and then proceeding with the parties by agreement if they are willing. Namely, the mediator can simply say, as we regularly do when faced with people who feel they have been compelled to come to mediation: “The judge ordered you to be here.  Is there any reason you might each want to stay?  If so, are you willing to say what that might be?  If not, and either or both of you do not want to stay, you are free to go.”  And if they both do want to stay, we can then proceed by agreement.  Of course, this only has meaning if they have the option not to stay and to go back to court (which in some settings the parties unfortunately do not).

Indeed, a value of “mandatory” mediation can be to get the parties in the room with a mediator where neither party (or their lawyers) were willing to suggest mediation for fear that their doing so might suggest that they have a weak case.  If both parties want to give mediation a try, are willing to stay and to say that they are willing to stay, then they may well proceed to mediate — by agreement.

A second mediation anomaly (as we view it) which has developed over time, which for us appears to distort the idea of proceeding by agreement, is the not infrequent wedding of mediation with arbitration.  For example, some “med/arb” mediators” write into their mediation agreements that if the parties feel they have become deadlocked in the mediation and cannot reach agreement, they legally empower the mediator to morph into an arbitrator and make a legally binding resolution to the parties’ conflict.  Commenting in detail about this seeming anomaly is beyond the scope of what we seek to do here. We simply want to emphasize that in the Understanding-Based approach, the core principle of proceeding by agreement is not abandoned by the mediator — even by agreement. The parties are, of course, free to seek mediation in a different way with the mediator having more power, but we would not suggest or agree to mediate in that way.  Proceeding by agreement of all inevitably impacts the way the parties see the mediator and each other, and how the parties and mediator interact – which is exactly what we hope to achieve.

While these all too frequent departures from the centrality of the principle of Proceeding by Agreement in mediation through mandatory mediation and med/arb variations are important, widespread and worthy of focus beyond what we have commented upon briefly here, the central challenge of this core principle of Proceeding by Agreement is much more pervasive.  That challenge runs deeply throughout the mediation — impacting on, building and sustaining the context that supports the mediator and parties working together throughout.

Specifically, at each point throughout the mediation, we seek to Proceed by Agreement, to assure that the parties can together formulate and express their intentions about how to proceed, together.  For example, at the very start of the mediation, when we ask if they are each willing to say something about what brought them here to mediation, we seek their explicit agreement on who will talk first.  In effect, this is a “ground rule” for how we proceed together throughout.  And for the very reason of the importance of this principle, we prefer the term of “ground agreements” rather than “ground rules.”

We might say, “I suggest we proceed by us all hearing a little from each of you about what brought you here if that is OK with both (all) of you. Is it OK to proceed in this way? If so, who might wish to begin.” And if one of the parties (or their lawyers) simply starts, we might say: “it looks like you agree with proceeding in this way and would like to start.  Is that so? And, if so, we would then ask the other(s) whether proceeding in this way makes sense and whether it is fine with whether the first party begins — if that is OK with him/her/them.  If so, we can proceed with that first party.  If it bears further discussion about whether the specific task makes sense and/or who might begin, we would do that until we had agreement about “how” we might best move forward together.  If they disagree, working out the agreement may in fact be time well spent.

This might seem a bit overdone to some. After all, we all make agreements every day with friends, spouses, colleagues about how we proceed in a range of contexts; and our agreements are mostly implicit.  Anything more may seem laborious and, in fact, appear to be questioning our common (implicit) understandings.  But even in these non – conflict laden contexts, some proceeding explicitly about the agreements we make (and agreeing about the disagreements we have) can enhance understanding, trust and mutuality.

And in mediation, the parties are realizing, together with each other and with the mediator, that they can reach agreements together, with the support of (and in agreement with) the mediator, even at a time when agreeing about anything may well have seemed impossible.  By agreeing about “the how,” they are, in effect, getting practice in agreeing and working through their disagreements.  In so doing together, they are forming a base for deciding about the “what” — the issues they seek to work out in mediation.  So, too, when the parties disagree, they  can agree about how they disagree.  They can then agree to work together to address their disagreement together with the mediator, if they are willing to do so. This might all seem a bit overkill, but in our experience working through agreements about the how is building the foundation for Proceeding by Agreement and allowing the parties to work together to make decisions together about the what which can serve them both/all well.

For us it is simply a question of honoring the parties and supporting and reinforcing the idea and reality that “this is your dispute, and I want to work with you in ways that we can all agree can work for all.”  In effect, the parties are getting practice, step by step, in how to move forward together  – by agreements amongst all of us.  If they disagree, it is not time wasted but an essential challenge of finding ways to proceed that work for all.  It provides the opportunity to affirm that the parties can indeed differ, to validate their differing views and to work through their differences.  And it taps their motivation, however hidden and nascent, to do so. Working together in this way with the mediator adhering to the goal of proceeding by agreement, the parties are assuming responsibility (and learning to assume responsibility), together with the mediator, for their mediation.

One by one, we work through these ground agreements.  Many mediators simply have a list of ground rules which they may well simply hand out to the parties.  And our understanding-based approach to proceeding by agreement may well be met with skepticism. But for us it is a core principle we seek to honor.  Indeed, proceeding by agreement is, ironically perhaps, the most basic of ground rules.  Shared ground agreements, consciously made together, can support the motivation and shared understanding that can give the process its shared power.  For some in conflict, if not for many, mediation might seem the least bad alternative.  In proceeding by agreement, we seek to tap the motivation, willingness understanding and perhaps the slowly emerging commitment that can give the process its shared power.

While we have focused here primarily on the contracting stage at the start of the mediation, proceeding by agreement is a principle that is overriding throughout the mediation.  At each stage, at each point, with each task from start to finish, we seek to proceed by agreement about how we are going to proceed. In doing so, we seek to tap the motivation, willingness understanding and the perhaps slowly emerging commitment that can give the process its shared power.  If either party chooses not to continue in mediation, that party is certainly free to do so. We would likely ask if they are willing to share with the other their reasons if the other party is willing to hear the reason(s); but ultimately either party is free to leave the mediation.  Again, to  proceed in the mediation, it will be by agreement.

And, of course, in reaching substantive agreements and a final resolution, we seek to Proceed by Agreement to reach a substantive agreement that honors all the parties and the mediator.  With this attention on proceeding by agreement at each step, it is highly likely that any substantive agreement the parties reach will be one that the mediator can readily respect.  But in the unlikely event that the parties appear to be reaching a substantive agreement that the mediator feels he or she cannot honor, it would in our view fall on us to share our concerns, offer suggestions and find a way together to proceed by agreement of all.

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Vulnerability Doesn’t Have To Be That Hard by Katherine E Miller

That’s what Jack told me years ago and it is a statement that has fascinated me ever since.

Maybe 10 years ago, I was taking a role of law class with Jack and Barry Berkman.  I was much newer to the Center then and did not know Jack or Barry as well as I do now.  The class met in a series of evening classes from 6 – 9 much as Support and Development does these days.  There was a role play of a divorce case.  At some point during the evening, something clicked for me and I slipped into the role of the husband.  When I say slipped, I mean I completely became him.  I fully felt the anger and frustration I expected he felt and I held back nothing.  When it was over, I was mortified.  I felt as if I had exposed myself in front of these people I hardly knew and was seriously concerned about what they must think of me.

I took the train home alone and barely slept that night I was so worried.

The next day, I called Jack and we talked about it.  That is when he made the above statement.  When I responded in surprise, “What do you mean?”  He said, “Vulnerability can be like stubbing your toe.  You can hop around on one foot screaming Ow! Ow! Ow!  I stubbed my toe. It hurts, it hurts, it hurts!!!” OR, you could say, “Ow, I stubbed my toe and it hurts.” And move on with your day.

This conversation changed my life (Jack doesn’t remember it).  It was in this conversation that I realized I have a choice about how I respond to things.  I do not have to react in the same way to the same set of stimuli.  I could experiment with another internal response.  Sure, stubbing my toe hurts.  Being vulnerable is hard. The question for me was now, could I learn something from that?  If I could open myself up to the learning even in the face of the fear or the hurt, I thought that could be a game changer.  It turns out it was.

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“Split,” a film for kids of divorce (and their parents) by Gary Friedman

A new documentary about children of divorce by Ellen Bruno has just been released, and it’s terrific.  I don’t know how she did it but she managed to have children just speak into the camera in a moving, honest way about their experience as children in the midst of their parents’ divorce, unfiltered by questions or interviewers’ participation.  I watched this with one of my adult children and his wife, both of whom had gone through this experience decades ago, and they were both deeply affected.   It is so hard for parents to not be so caught up in their own difficulties to be able to see how different their kids’ experience is than they might think.  For example, what it’s like going back and forth between mother and father’s house has such a different slant to it when you watch what it’s like for the kids.  We all know that co-parenting is preferable to having children raised by one parent, but the toll taken by the back and forth is so stark that it’s impossible not to look again at our deeply held assumptions about it.

Parents who agonize about whether they should stay together because of the kids will have to take seriously the deep pain that children experience when their parents are fighting.   For the mediation and collaborative world, this is such a powerful example of the importance to the children of parents getting along with each other, whether it is in the context of staying together or getting a divorce.

Particularly for those of us professionals who don’t meet directly with the children, and are left to understand the situation through the reports of the parents, this film presents a powerful opportunity for us to feel what the children are going through.

Ellen will be presenting at all of the major conferences this fall,  the International Association of Conflict Professionals (IACP),  Association of Family and Conciliation Courts (AFCC) and some mediation conferences as well.  To learn more about it, you can go to the website for the film, www.

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From Our Newsletter–The Understanding Based Model: When Can You Use It?

We have a number of ways of thinking about this that we think might prove useful.   The first is not to fall into the all or nothing trap. That is, either strict conformance to the model or abandoning all efforts to use the model.  There are many in between choices that can lead to incremental acceptance on the part of the mediator, parties and lawyers.  For example, looping is something that is helpful in all contexts where communication needs clarifying, particularly in situations where the mediator observes there seems to be either  a mistaken or lack of understanding on the part of a lawyer or party.  A simple step is for the mediator to loop.  A second step to be done only with an agreement by all participants is for the participants to loop each other or for lawyers to loop each other just to clarify and demonstrate understanding.  This second step doesn’t need to be presented in the beginning as a required part of the mediation process but offered as one possibility that may be agreed upon later in the process.
A second crucial example is the development of the understanding of what is important to the parties.  The first step is to explore the situation and understand it from the parties’ perspectives.  The second step is to delve deeper into the parties’ perspective, possibly to the point of the meaning underlying the conflict.  The third step is to frame the understanding of what is important and the meaning for the parties into a list of interests for each.  Each of these steps would need to be the subject of agreement between the mediator and the parties if they are to occur.  Each step opens the door more widely for the conversation and basis for decision making to change from simply a distributive to an interest based discussion.
What is most important in all of this is that as mediators, we don’t require the parties and lawyers to work in a way that makes sense only to us.  At the same time, we don’t give up and go to the other extreme of simply trying to please the parties and/or lawyers when we feel we would be abandoning process options that might be helpful and that we feel  can help.  It is crucial not to make assumptions about what people are willing to do about process without having a full conversation.   Initial autopilot resistance may not turn out to be real and easy compliance with the mediator’s ideas may end up in passive resistance.  A full conversation requires courage on the part of mediator to be willing to fully describe how you would like to work and why, and to listen deeply to how the parties and lawyers want to work and why.  Even more important than what you say to everyone in the room is how you are in your relationship to them.  If you like the understanding model because it is more respectful of others, be respectful.  If there are other values that touch you about using the model, your words and conduct should be consistent with those values.  The quality of your presence is an intangible key element of the discussion.
For example, for the question of everyone sitting together in the same room, it is quite important that the specifics of the situation and the parties’ needs provide reasons for meeting together.  One reason that is almost always present is to put the parties in the position of making decisions together.  It’s much more likely that will come about if they are participating together in the same room.  Second, if there are particular misunderstandings between the parties that either or both parties want to clear up, being together is both an efficient and essential way for this to come about.  Third , if there are elements beyond a monetary settlement that require a future relationship between the parties, either ongoing or just to implement the agreement, participating together may help them build a base for future interactions.  These as well as other factors are all part of what can be explored in a full discussion about whether to meet together in the same room.
In these discussions, the mediator needs to be ready and willing to be transparent about how they would like to work with the lawyers and parties and be ready to engage in genuine dialogue with everyone so that if there are differences about process, the mediator is a party to the process discussion and open to working through the differences.  What we think does not make sense is to avoid contracting altogether – It is through contracting that the possibility of working with all or parts of the Understanding Based model can become real and mutual.

Tips for Contracting about the Understanding Based Model
1.  Practice by writing what you would like to say to parties and lawyers about the way you want to work with them.  We are not suggesting that you read what you have written out loud, but that writing will give you clarity in advance before you are dealing with their reactions.
2.  Convey authenticity by making your approach to mediation feel like it’s yours rather than you imitating someone else. Take what you learned in our training and make it your own.
3.  Demonstrating receptivity rather than defensiveness will encourage others to do the same.  When someone questions or criticizes what you have said about how you want to work, listen carefully to them and be open to asking questions to more fully understand their concerns and continuing a dialogue about the process options.
4.  If you have been using the Understanding Based model for some time, write about it on your website or submit a blog to us so it feels more alive in you and more natural, which will then be apparent in your contracting discussions as well as help others interested in the model.

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Forgiveness and Conflict by Catherine Conner

Forgiveness and Conflict

by Catherine Conner

A couple of weeks ago, I volunteered to write a letter about a sensitive issue.  I found myself avoiding writing it even though I didn’t expect it to be a tough task.  A few days later, I went to a meditation class in which the focus of that particular class was forgiveness, including a guided meditation on the topic.  The first step in the meditation was to contemplate an action for which you wanted forgiveness from someone else or needed to forgive yourself.  Immediately, my mind went to something that happened in third grade that I still feel ashamed and embarrassed about.  Not something huge, but something I never apologized for and can’t now.  The emotion was still there and it was a challenge considering forgiveness for my conduct.  Another step was to contemplate someone that you wanted to forgive but hadn’t yet.  The image appeared of a particular person who had committed a serious wrong towards me, whom I had never considered forgiving.  I tried out the words, “I forgive you”, and the image changed to the person expressing great relief.  I felt a loosening of my hard feelings toward her.  And I then realized that my challenge in writing the letter about the sensitive issue was connected.  The sensitive issue was similar to the one in which the wrong towards me had occurred and my lack of forgiveness for the prior incident was impeding my ability to act in the current moment.  The next day I sat down and wrote the letter.

This experience led me to think about the role of forgiveness in the conflict resolution process, a topic of discussion in recent years.  As a professional working with parties in conflict, I sometimes believe that an apology or forgiveness could create the possibility of a shift by one or both parties.  From the outside, it seems so clear what should be apologized for or that forgiveness should be forthcoming.  I have encouraged or even pushed the possibility of an apology or forgiveness out of this observer’s clarity, sometimes in a “conspiracy” with the other professionals who also see it as a path to resolution.

But from the inside of the conflict, the emotions that are stirred up by the thought of apology and forgiveness can be overwhelming.  Shame, embarrassment, resentment, sadness, retribution, grief, and other feelings can be evoked not only by the current incident but reactivated from unresolved grievances from the third grade or ten years ago or a few months ago, or from other incidents with the same person or with someone else.  My own experience of contemplating forgiveness reminded me how raw and entrenched these emotions can be.  Expecting a party to move into an apology or forgiveness in the middle of a conflict that may already be evoking strong emotions may be unrealistic or harmful.  I still think about opening the door for apology or forgiveness in the right moment, but with greater care and compassion for what may arise.

I would be interested in hearing about other people’s experience with forgiveness.

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“I Was A Lousy Looper” by Katherine E. Miller

When I first took the Center’s mediation intensive training (and was exposed to looping for the first time) in 1998, I thought looping was . . . well . . . awkward.  I appreciated the need to connect to the parties.  I cared about my clients deeply and thought it important that they feel my concern.  But the technique of looping did not come easily.

At the time, I thought I could connect with the clients and communicate my care through what I called, “The Power of My Personality.”  This meant that I focused all of myself on the parties and held them in the center of my energy.  Although as I write this that seems like it might have been a weird experience for the people, it seemed at the time to work for them.  The problem was, it was completely exhausting for me.

And so, I worked on my looping.

My husband helped: whenever I looped him clumsily he would say, “Don’t use that mediation crap on me.”  Perhaps this was not the gentlest or most tactful reminder that I had much to learn, it was, however, extremely effective.

My kids helped (and with 5, this was a big help).  My youngest, starting at toddlerhood, would fight to the death (at least it seemed to me at the time), to make her point.  When I looped her, she would dissolve in tears tell me I was right and come for a hug.  This was powerful evidence that looping works and I kept practicing.

One of my older daughters provided me with some of the best proof that this is a powerful technique.  When she was in middle school, she came home one day in a crisis such as can only happen at that stage in life.  I knocked on her door and suggested that I come in and hug her.  She told me through her tears that not only was that the worst idea on earth but that I was not permitted to even cross the threshold of her door.  As a mother, all I wanted was to solve her problem.  I wanted to tell her that she was perfect and that nasty little friend of hers didn’t hold a candle to her.  I wanted to say, “this will pass.”  But none of that was going to help.  She needed me to hear her pain and so I looped her.

This went on for about 20 minutes and she told me I could come in and sit on the chair in her room.  I continued to loop.  She talked for another 20 minutes and I listened and looped.  Then she told me I could sit with her on the bed.  Another 20 minutes passed this way with me now sitting near her on the bed and then she told me I could hug her.

It was only because I could acknowledge her pain as it was and not try to make it go away or solve the problem that my daughter was willing to let me comfort her.  I can’t say that it was easy.  As a mother it was hard to just listen when my child was in pain.  I wanted to DO SOMETHING.  Ironically and somewhat poignantly though, the only thing I could do to help was to listen and let her know I heard her.

My experiences with my family and with clients encouraged me to practice and hone my looping skills.  Over the years I have learned to listen in a different way.  I have learned to listen for meaning not just to words.  I have learned to “loop” back more fully and gracefully.  I no longer have to think about it, it comes naturally.  So naturally in fact, that one day last year when I came home from work frustrated about something that had happened and told my husband, he looped me. . . and I loved it!

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From Our Newsletter: The Third of Six Principles, Working Together

Over time we have been exploring in the Newsletter the six interrelated principles that guide our work in the Understanding-Based approach to mediation.  These are:

• understanding – We rely in the power of understanding rather than coercion or persuasion;
• responsibility — The primary responsibility for resolving the dispute is with the parties;
• working together – The parties are best served by making decisions together — with the support of the mediator.
• proceeding by agreement – The mediation proceeds step by step by the parties, and mediator, choosing together how to proceed.
.• allowing tension – Tension, which is inevitable in conflict, presents an opportunity rather than an obstacle to working creatively with and through the conflict.
• going under the conflict   —  Conflicts are best dealt with by working to uncover what lies under the level at which the parties experience the problem.

We have previously commented on the first two —  Understanding  and  Party Responsibility.  Here we address the third:  Working Together.

An early teacher of ours (Jack’s and Gary’s) used to end a training program with a period of silence, at the conclusion of which she would say:
“We are alone ….  We are each alone ….
We are alone … together.”
That may well meaningfully apply when we are caught in a conflict.  We each all too easily find ourselves trapped together in the conflict. Trapped together, perhaps with another with whom we well might least want to be trapped, but trapped together nevertheless.  Stuck.  Caught.  Together.  We call this “the conflict trap.”
We may wish it were not so. We may have cajoled or threatened the other side in the effort that it might not be so.  But short of giving in or giving up, we are all too readily stuck.  If we cannot easily get our way and get the other to submit or withdraw, and if we are not willing to give in or give up ourselves, we are caught.  No wonder then that we might want a third party authority to decide — a parent, a judge, an arbitrator  — some authority with the power to put an end to it – and to confirm us in the right.  And if we make it with the other side to mediation, we might readily, and naturally, want to convince the mediator to do just that — to persuade, cajole, pressure, manipulate the other party to the conflict —  our opponent,  the one who is in the wrong — to give-up, relent or at least “be reasonable.”  Or, if necessary, the mediator should decide for us – and, again reasonably, for me.
As we see it in the Understanding-Based approach to conflict, what might seem an impossible challenge presents a basic human possibility and opportunity for the parties in the conflict and for the mediator.  The parties are in it together and they can work together, with the support of the mediator,  in the effort to resolve their conflict to their mutual satisfaction.  If they are willing ….
So we pose from the start of the mediation, indeed from the first contact with the parties, our desire to work together with the parties at the same time, without caucusing.   Indeed, if we are first contacted by one party, we encourage that party to contact his/ her/ their counterpart so that we can have even this initial contact “together.”  And the point is not just that the parties will need to agree about the ultimate substantive result that they will hopefully reach that will resolve their dispute.  In the mediation, we proceed step-by-step, making agreements between the mediator and each of the parties about “how” to proceed.  The parties and mediator are thus making agreement after agreement together about “the how,” which will serve all well as we come to look together at “the what.”  As mediators, we may have “separate” conversations with each party (if we agree together to do so), but those “separate” conversations are in the presence of the other party – not in caucus.  In short, we work together.
Working together, the parties can agree that they disagree and how they disagree and/or agree, step-by-step with the mediator.  And they can work together to address their disagreement together if they are willing, with the help of the mediator, to do so.  Each party can identify and articulate, with the support of the mediator, their separate and their common interests underlying the dispute. And if the parties are willing, the mediator can work together with the parties to see if each can understand the other’s perspective – not agree with the other but simply (and challengingly) to understand.
Having worked together to articulate and understand what is important to both, what they have in common and where they diverge, they can then work together to develop and evaluate the concrete options for resolving the dispute that can work for both parties in terms of meeting those underlying interests.  Ultimately, they can separately and together choose a result that resolves the dispute for each, for both – having resolved their conflict together.  Working together. Alone, together.

Proceeding by Agreement  in this manner, step by step, is another of our inter-related core principles – which we will explore in a future Newsletter.

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The Empathy Error by Gary Friedman

In our work with both conflict professionals and clients, we have stressed the importance of developing the skill of empathy, which we believe is critical to understanding and supporting them.   To truly empathize requires us to use all of our intuitive emotional resources in order to step into the shoes of the parties, to identify with the experience of the other while remaining separate.  It is a major challenge for all of us, particularly when we have negative reactions to another.

I have noticed both in myself and with other professionals that once we have made the great effort to understand the clients, we are inclined to believe that what we have imagined to be going on with the other is real.  That is, we believe that the hypothesis of what we believe to be true with another is, in fact, true.  Once we become attached to our idea of what is true, we become part of the problem.   It is essential to check out what your imagination tells you with the person you are trying to empathize with. You can do this by saying, “I think I understand what you are saying and feeling, but I want to clarify it by reflecting back to you my understanding of your experience. Please correct me if I’m mistaken.”

We see a look from a client that appears to be an expression of anger and we assume that the client is angry.  Maybe  there is some anger there, but there may also be another emotion or set of emotions that are as powerful if not stronger than the anger.  But because we see what feels like anger we decide that we are right.  We might be, but we might not be, because we have used our imaginations and what we see in front of our eyes to draw a conclusion.  That is not the reality, it is only our perceived reality, and instead of connecting to the client, we can be increasing the distance between us and the client.

We also can be increasing the gulf between the parties, particularly if the other agrees with what we see.  They each act as if they are the expert on the other’s internal reality and proceed from there assuming they know the other’s truth.  Each then has to defend themselves against the charges of what they feel is a misunderstanding of the other.

Humility is important in our effort to develop empathy.  Becoming attached to our assumptions only hinders the process.  Be willing to accept the client’s experience as primary.   “I (we) have no window into another person’s soul.“

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Can We Use the Understanding-based Model in Time Limited Pro Bono Mediations? by Catherine Conner

Can We Use the Understanding Based Model in Time Limited Pro Bono Mediations?

Like many ADR professionals, I volunteer for settlement conferences at court, which are typically scheduled for 3 ½ hours. These cases can be very challenging because of the dynamics between the parties and/or professionals, sharply differing views on the facts and law, prior polarizing adversarial activity, or the pressure of an upcoming hearing or trial.  Ideally, there would be sufficient time for meaningful and productive discussions at a measured pace that accommodates these challenges.  But there isn’t, so the question is whether the consensual process we are hoping to use can be adapted in the face of these challenges to the short time frame allotted.

The temptation is often to quickly push through the contracting stage regarding process in hopes of having enough time to get to the “real” issues.  We make “suggestions” about how to proceed with the clearly communicated expectation that parties and attorneys should follow our lead.  We brush aside any resistance with quick assurances that this has worked before and they should trust us.  We assume responsibility for getting to a settlement because of the press of time.  When I have done this, the reactions range from a willingness to try what I am suggesting (“it’s worth a try”) to a begrudging acceptance (“I don’t think this will work, but you are the boss”) to active resistance (“let me tell you how I do it that always works.”)

In recent Support and Development group meetings, we have examined through discussion and role plays how to approach time limited assignments.  Through trial and error, we slowed down the initial stages of the meeting.  The contracting discussion included a suggestion for each process step, obtaining input about whether it could be helpful, checking on and addressing any concerns, and reaching agreement about whether to adopt that step.  We also attended to and respected the role of the attorneys in protecting their clients in a new and potentially vulnerable setting (e.g. obtaining the consent of the attorney before asking a client to speak). Although at times it felt painfully slow in the face of the limited time frame, the attention to understanding and agreeing upon the process clearly shifted the atmosphere in the room.  By creating a meaningful process together, the parties and attorneys became more willing to continue to work together jointly to understand their situation in hopes of finding a solution.  They expressed openness about sharing information that they previously had been holding close to the chest.  The responsibility for the outcome shifted away from the mediator.  Even though the contracting phase took a not insignificant portion of the limited time, it was clear that the rest of the meeting would proceed more productively towards an understanding based solution.  We were reminded that taking the time to reach agreements on process is a critical step in reaching a substantive agreement.

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Caucus and Connection by Katherine E. Miller

Caucus and Connection?

Recently one of my LinkedIn groups has been having a “discussion” about when to call a caucus.  Many of the participants in that discussion talk about the importance of establishing connection with the parties and they use the caucus for that purpose.  Many commentators use the connection established in caucus to:

  • obtain relevant information
  • flesh out underlying emotions
  • deal with power imbalance
  • detect underlying motivations
  • avoid conflict in the mediation room, and
  • get information about hopes and fears around the mediation process itself.

And the list goes on.

Mediators who use the caucus feel strongly that it is a necessary and important part of the mediation process.  We tend to differ with this approach.

Without saying that a caucus is never appropriate or useful, I would challenge the assumption that caucus is necessary or desirable in the all of the above contexts.

When I start a mediation, I explain to the parties that I work with them together and do not have separate conversations with one party outside the presence of the other.  Instead, I say, I will have separate conversations with each of them in the presence of the other.  Each of them will get the chance to tell me what is important to them and the other will have the opportunity to hear those statements.  I go on to say that I do not expect them to agree with each other and that it may be difficult to hear the other’s perspective.  I say that I have two reasons for working this way.  One is that if I have a separate conversation with each of them outside the presence of the other, the person who ends up with the important information is me but it is the parties who will be making the decisions and so it is crucial for them to have that information as well.  Second is because we are human beings, each party will wonder what I am being told about him or her by the other in their separate meeting and that adds a layer of unnecessary complexity to what is already a complicated situation.

When I explain my reasons for not wanting to caucus, people get it even if it is not what they were expecting.  Not only do they get it, but they recognize that there might be an opportunity in this method.

When people are in conflict, no matter the circumstances, they are often locked in a battle of right and wrong.  A frequent result of this paradigm is that each feels that if the other simply understood where they were coming from and why, s/he would not oppose so vigorously.   The possibility that the mediator could sit in the mediation room and understand the perspective of both parties and tolerate that tension, often can make the conflict less powerful and the grip of what we call the conflict trap weaker.

I find that I am able to develop a strong connection with my mediation clients even in the presence of the other and that their shared connection with me allows them to find a way to connect in the conversation.  Each party feels that I understand their view and what is important to them but not meeting with me alone, inhibits the temptation for each to feel that I am their side against the other.  When this shared connection develops, it is powerful and can help the parties bridge their differences in order to engage in fruitful conversation.

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Motivations to Mediate

One of the core premises of our model of mediation is that the parties are  motivated to mediate.  Since mediation is voluntary, unless both parties have reasons to mediate, mediation is not likely to be successful.   Motivation is the driving force that fuels the mediation.  With sufficient motivation, the parties are likely to reach agreement almost regardless of the mediator’s competence.  With insufficient motivation, even a highly skilled mediator will not make enough of a difference for the process to work.

In almost all conflicts that come to mediation, there is usually a mix of motivations that the parties have to mediate.  The kinds of motivations that are typically easy for the parties to identify and articulate are the desire to save money or to expedite the result.  Another motivation can be the desire to participate in the determination of the result, which means having veto power over any outcome.  Sharing control of the result, even with someone they strongly disagree with, is often more attractive to people than giving the power to decide to a third party.  Another major reason that parties may want to mediate is the possibility that they can find a result that is better for both parties than a court determined outcome.   Other motivations closer to the parties’ hearts are harder for some to identify and harder still to disclose in the presence of the other.  These may include preserving the relationship, wanting to have a direct conversation with the other where the possibility of greater understanding by the other of their view could be valuable, as well as a number of other kinds of motivations that are more specific to the situation the parties find themselves in.

No matter how strong the motivations of the parties, there are usually a number of reasons why each party would not want to mediate, ranging from a degree of animosity that they feel toward each other, the need to feel vindicated by someone else as being right, mistrust of the other’s willingness to work toward a mutually acceptable result, and the desire for more protection than they might find in mediation.As mediators we are concerned when parties feel that they are compelled mediate, and we encourage people to be willing to choose not to mediate if it doesn’t make sense to them to do so.  Even if the parties are ordered to mediate, one of our ground rules is that the parties can leave at any time.  The reason that we do this is our view that unless parties have the ability to say “No” to the process, they don’t have a real “Yes” that they will be able to draw upon to get through the challenges of the process.

We also believe that parties are in a much better position to understand their true motivations once they are in the same room together with the mediator.  There is something about the physical presence of a neutral with the parties that conveys an enormous amount of emotional and rational information about what mediation is.  Simply sitting together knowing that the neutral doesn’t have the decision making power underscores the opportunity for the parties to be able to make decisions together.  This is the essence of the process and is often quite different than what the parties have in mind when they mistakenly think that the mediator is a judge–like figure or will become an advocate for the party they agree with.  This expectation comes out of our history that when we have serious conflicts with others, we do not have much experience going through such conflicts together with the person with whom we disagree to make a decision that is mutually acceptable.

It is a profound and adult decision for people to find a way through their disagreement with someone else.  It is not for everyone, and at the same time, the intensity of the conflict can often be an aid to helping parties recognize how valuable it could be for their lives to find peace through mutual understanding.

In the contracting phase of mediation, we think it is important to be clear about how the mediation process is different than the other options available to the parties and then to have a conversation with them about their motivations to mediate, as well as concerns that they have about mediation, to put them in a place to make a clear choice to mediate.  What we are looking for at the beginning is to see if the motivations to mediate are sufficient to begin the process with the hope that participation in the process can deepen the parties’ understanding of why they want to do it.  This forms the container for how the parties can work together that allows for a true alternative to dealing with conflict.

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Bringing Conflict Resolution Into Our Personal Lives by Gary Friedman

What happens when we bring our conflict resolution skills into our personal lives?

Over the years, the greatest challenge has been to “walk my talk” with family and friends.  I’ve learned my intention is critical to any success: if I attempt to loop someone in the family with the hope of cooling them off instead of genuinely wanting to understand them, inevitably the looping effort fails.  If I recognize there’s a real difficulty I must bring my best self forward  by putting my ego needs aside and opening my heart.  Not easily done when the emotions are strong. But without clarifying my intention I cannot  be effective in breaking a new ground of understanding with my family.
My  day to day efforts dealing with the irritations that are inevitable in any intimate relationship have been somewhat uneven, but what I do notice is, for example, when I make a “you” statement rather than an “I” statement, it indicates my intention is ill-focused.
Most of all, loving and accepting the people I care most about means continually working within myself to turn judgment into curiosity and to be willing to be vulnerable.  I do hate being wrong and apologizing but I almost always feel better after I’ve done it.
A daily meditation practice is a wonderful way to give myself some room to know what is going on with me.  I am often surprised by the thoughts that come to my mind when I simply try to follow my breath.
The humility I’ve gained from my personal efforts to understand myself within my family has led to an increased ability to empathize with the  difficulties of people who come to my office or our training programs.

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Why I Work With People In Conflict by Catherine Conner

Why I Work with People in Conflict by Catherine Conner

They weren’t that unusual.  Many couples have learned how to push each other’s buttons, particularly when in conflict, and they were experts.   There had been a lot of tension between them in the beginning, but it had eased considerably and in the last meeting, there seemed to be a new tone in their communication.   Our meeting was to fine-tune the last details of their agreement and I wasn’t expecting their regression to their earlier pattern of anger and hostility.  By the end of the meeting, I was exhausted.

After a short lunch break, I had a meeting on another case with my client, his fiancé and her lawyer to discuss their premarital agreement.  The atmosphere was dramatically different.   We raised questions and brainstormed ideas about possible subject areas of their agreement.  They were happy, generous and attentive.  At various times, one would turn to the other and tell him or her that an idea was not appropriate because it wasn’t fair to him or her.  Together we worked through a few areas in which they had felt stuck in their private discussions.  By the end of the meeting, I was rejuvenated.

On my way home, I started thinking about what it would be like to work all the time with people who were happy, generous and attentive.  I could hear someone asking “wouldn’t that get boring?”  My answer – “I don’t think so.”  I imagined going home every day with the feeling I had after the meeting with the engaged couple.  And sighed.

So why do I choose to work with people in conflict?  Why am I voluntarily spending my days with people who often have very strong and challenging emotions and dynamics and that can leave me exhausted?  I have asked myself that many times before and asked it again.

Since my youth, I have been troubled by humanity’s resort to violence to resolve conflict.  While I can cognitively understand why individuals or groups end up in violent conflict, to my heart it remains an inexplicable mystery.  And a little piece of my heart breaks every time I hear about such violence.  By working with people in conflict and helping them to reach agreements in a different way, I am doing my little part to change the way people approach conflict.  Maybe the next time they are in conflict with someone else, it will be a little different.  Maybe they will talk to someone else about how they worked through conflict with less harm to each other.  I hope that the work I do in working with people in conflict and teaching professionals how to work with people in conflict will ripple out from my little pebble in the pond to larger waves in our world.  And reflecting and reminding myself about this keeps me going on those tough days when I am exhausted and heals my broken heart.

For more about motivation when working with people in conflict, see the June edition of the newsletter of the Center for Understanding in Conflict.

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The Second of Six Principles: Party Responsibility

Six interrelated principles guide our work in the Understanding-Based approach to mediation.

understanding – We rely in the power of understanding rather than coercion or persuasion;

responsibility — The primary responsibility for resolving the dispute is with the parties;

working together – The parties are best served by making decisions together — with the support of the mediator.

proceeding by agreement – The mediation proceeds by the parties, and mediator, choosing together how to proceed step by step.

.• allowing tension – Tension, which is inevitable in conflict, presents an opportunity rather than an obstacle to working creatively with and through the conflict.

going under the conflict   —  Conflicts are best dealt with by working to uncover what lies underthe level at which the parties experience the problem.

Over time we are exploring each of these in the Newsletter. We have previously commented on the first — Understanding. Here we address Party Responsibility.

In the traditional law-based and court-based model of dispute resolution, the judge is responsible for decision making and the lawyers for presenting the legal arguments to the judge on behalf of their clients. The judge’s determination is final, subject only to appeal to other judges.  Arbitration has a somewhat similar responsibility structure.  The disputants are not required to take their dispute to arbitration.  But once they both (all) agree to do so in what is termed “binding arbitration,” the ultimate decision for the resolution of their conflict rests with the arbitrator. The parties’ lawyers make their legal arguments to the arbitrator with the arbitrator having the responsibility and power to decide, and ultimately deciding, much like the judge in the courtroom.

As mediation has become more known as an alternative to court or arbitration, the “caucus approach” has become increasingly used. In this approach, the mediator meets with each side separately, a form of shuttle diplomacy, going back and forth between them, focusing on the parties differing positions and the concessions they might be willing to make as she or he seeks to craft a solution somewhere between their respective positions.  The mediator is also likely to make a mediator’s proposal and work separately with each party to compare that proposal with the outcome, and attendant costs, if the parties were to reject that proposal and go to court.  In this approach, it is obviously the mediator who has the whole picture and the responsibility for fashioning “the deal” which both sides, perhaps with some urging from the mediator, are persuaded to accept.

In the Understanding-Based approach, we view the parties as having the responsibility – together – to work toward and decide the resolution of their conflict. It is the parties’ conflict, not ours; and we support them in recognizing and taking responsibility for their conflict as theirs.    For the parties to take responsibility means developing the shared view that it is their conflict.  They hold the power and the responsibility, together, for resolving their conflict.

To take responsibility in this way is challenging for both the parties and the mediator.  But it is as rewarding as it is challenging. It is challenging for the parties because taking responsibility for ourselves in the midst of the many demands of our lives is challenging of itself.  Taking responsibility individually and together with another, or others, with whom we are in conflict is ever so much more so. For when people are caught in the grasp of conflict, they are easily trapped in a mutually reinforcing set of attitudes that they are right and the other wrong — what we term “the conflict trap.”  They readily feel – and are supported in feeling by the world around them – that the only way out is to win or to give in. The only way out is that the other party admits that he, she, they are wrong or that a third party convinces them or decides for them.  Taking responsibility with them? Now there’s a challenge.

And it is also challenging for the third party, for the mediator, because we learn from an early age, and the lesson is reinforced every day, that a third party’s job is to persuade, to pressure, to decide, to enforce.  But the possibility is there.  And embracing it is the challenge of the understanding-based approach.

Indeed, stressing the importance of party responsibility does not mean that there is no mediator responsibility – that the mediator is responsibility-free.  Indeed, the mediator’s responsibility is strong and demanding.  It is precisely the mediator’s responsibility to support the parties to recognize, assume and exercise their individual and shared responsibility for working together toward a resolution of their conflict that can work for all.  It means the mediator supporting the parties each in asserting their own view while also being open to hearing that of the other – as they develop ways to find their solution to their conflict.  And it means the mediator doing so with clarity, with understanding, with care and with compassion.

And that leads to the next of our inter-related core principles —  Working Together – which we will explore in a future Newsletter.

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The Horizontal v. Vertical conversation: How do we want to be talking to each other? by Gary Friedman

Last week, I arrived at a mediation conference where I was on a panel to be in dialogue with a judge, comparing court annexed mediation with our approach.  I was taken aback by the setting of the law school classroom, with 115 chairs behind tables and the panel sitting in front facing the masses.  For me, this setup directly contradicted how we like to be working with people when we teach, as well as with parties in mediation, placing barriers between us and the people and having all attention directed to us.  All we had to add was a raised platform, and it would have been a perfect contradiction.  Because it would have been physically impractical, if not impossible, to change the set-up of the space, I began by asking the audience to imagine that we removed all of the tables and that we were all sitting in a circle.  I went on describing the kind of conversation I hoped we could have as a horizontal conversation, which meant to me that we were all on the same plane where we could meet as equals, agree with each other and disagree as well, but in any event, have a genuine, interactive conversation.

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.

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Optimism and the Conflict Professional by Catherine Conner

As everyone was preparing to leave after having reached an agreement at a recent mediation, one of the attorneys said to me that she always liked to be pleasantly surprised when she didn’t think an agreement was possible. Since then, I have been pondering her statement, our culture’s attitude about conflict, and professionals’ impact on people in conflict.

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.

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Defensiveness and Looping: Found Opportunities, by Katherine Eisold Miller

I was struck by a moment that happened in a fishbowl exercise in a recent Collaborative training. The role-play was of a first joint meeting in which the parties were discussing the process and deciding whether to commit to it.  It involved a couple in which the wife had learned after a long marriage that her husband was a serial adulterer and had been since the early years of their marriage. She was very distressed and mistrusting of her husband.

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.

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From the January, 2013 Newsletter

It is helpful for us as people working to support others in dealing with conflict, to understand our own experience with conflict from the outside as well as the inside. In other words, our experience of conflict as an observer of others as well as how it feels to be in conflict ourselves. In both contexts, conflict can be readily seen and experienced as an enormous, and too often, destructive force with subtle and persistent attraction and incredible power. That force can keep individuals, organizations, communities and societies caught in its relentless grasp for weeks, months, years, decades, lifetimes, generations and centuries as the bible and history bear witness. We call that: “The Conflict Trap.”

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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Mediation and the Movement towards Empathy

Many see a movement in the world toward greater empathy and understanding. We agree and view mediation as part of the evolution for humankind. Much has been written about this movement of humanity toward greater compassion; and while it is beyond the scope of this newsletter to recount this perspective, a 10 minute cartoon style video may be interesting to some to give one framework for these ideas– For us, the growing acceptance of mediation, whether viewed locally or globally, holds the possibility and potential of greater empathy in the resolution of human conflict. Although it is by no means a sure thing.

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.

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I just finished a two day training led by Gabor Mate, a Canadian doctor who spent many years treating addicts and has written and spoken extensively about the connection between our emotions, physiology, relationships, and emotional and physical health.  One topic he addressed was the concept of attunement, which he described as being in the same emotional space as another and accepting it.  He reported on a study of mothers and infants in which the mother and child were in separate rooms.  In the first round, the mother and child interacted via video feed.  In the second round, the videotape of the mother was played for the child and very quickly, the child became quite upset.  The video mother was not attuned to the child in the moment – the child was aware that the video mother was not in the same emotional space and rejected her.

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Mediation Intensive Training, California (10/3/12 – 10/7/12)

Marin County, California

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The Mediation Intensive Training provides both experienced mediators and those new to the field with the perspective and skills necessary to work within the Center’s model of mediation. Participants learn what it takes to shift from a stance of advocacy to one of mediation – for professionals and parties alike. The program is open to attorneys as well as other professionals working to integrate the principles of mediation into their practice or work. Our prior participants have included ombudspeople, collaborative coaches, family business consultants, non-profit staff and other professionals who work with conflict.

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Advanced Program : “Role of Law”

Friday November 9, 2012 – Saturday November 10, 2012


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Integrating the law and the participation of lawyers into the mediation process without having the law or lawyers dominate is a significant challenge for mediators.  In this program, we will clarify the role of the law in mediation and teach mediators how to guide parties to their own determination of the weight and relevance of the law to their situation and how lawyers can participate in a way that supports their clients and the mediation process. Participants will learn the following:

•How law can be used to enhance the parties’ understanding and empowerment without having it take over from other reference points for decision-making

•Why to bring in the law and the value of the underlying principles of the law

•How to bring in the law with lawyers in the room and without the lawyers in the room

Faculty: Gary J. Friedman and Catherine Conner

* There is a $50 early registration discount if you register more than 30 days before the program starts!


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Mediation Intensive Training, New York (11/28/12 – 12/2/12)

Bailey Farms

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The Mediation Intensive Training provides both experienced mediators and those new to the field with the perspective and skills necessary to work within the Center’s model of mediation. Participants learn what it takes to shift from a stance of advocacy to one of mediation – for professionals and parties alike. The program is open to attorneys as well as other professionals working to integrate the principles of mediation into their practice or work. Our prior participants have included ombudspeople, collaborative coaches, family business consultants, non-profit staff and other professionals who work with conflict.

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“Mediation Intensive Training”at Green Gulch – The 2011 Redux!

Together with Bev Jewell, a mental health professional with whom I have co-mediated cases at my mediation center in Palm Springs, we are driving south after completing a five-day retreat workshop at the Zen Center at Green Gulch, located in Marin, put on by The Center for Understanding in Conflict and taught by Gary J. Friedman and Catherine Conner.

This is Bev’s first direct training with the Center – it is my third, and my second go around with this very course. I learned of Gary and Catherine’s work a little over two years ago, when I began to explore collaborative practices following twenty-seven years of often acrimonious divorce litigation practice. Since then I have also attended their advanced workshop at Mar de Jade, Mexico. After investing 120 hours of my life at their feet (literally so, given that the casual atmosphere of these classes permits participants to lie or stretch on the floor at will), Gary and Catherine have become familiar friends – actually like old friends, I suspect, for all of the program attendees as I believe these would also attest.

Gary Friedman and Jack Himmelstein have developed a mediation paradigm that for me seems grounded in Buddhist principles of ahimsa and present-ness. Probably the most direct disclosure of the essential quality of the foundation’s Understanding model is a tantalizing reference in their study materials to Martin Buber’s philosophical works concerning the “I-Thou” or “I-You.” Buber asks us to investigate how we tend to contrast and develop our “stories” of ourselves, in light of others, who each also have their uniquely own. As we move through the world, we tend to bump into the self that every other human drags around with them too, and sometimes these collisions spark conflict. This seeming separation between us and them, however, actually shows us where we might devote our attention if we wish to transcend the mistaken belief that we are not, in truth, all One. Such is one strategy for solving conflict.

I am not sure that Gary would agree with my characterizations because he doesn’t directly talk much about spirituality in this course. Yet spiritual principles were implicit for me – you bring what you wish and you take what works for you, and this is all allowed.

Gary and Catherine suggest that to be effective as mediators, the only “skill” that is required is to really be curious and interested about the people whom we would aspire to help. Firstly, however, this exploration must begin with the relationship we have with our own selves. Each evening, once our sessions ended at 9:00 p.m., the program participants enjoyed impromptu gatherings in the cottage where we were housed, and shared (wine inspired) conversations about finding meaning within our own struggles, as they might be applied to helping others through our mediation practices. In listening to these stories it seemed clear to all that there is great value in applying our unique life experiences to mediating parties in conflict, and hence in transmuting our own difficulties into something that is alive and can be harnessed in service to others. Which also happens to serve us well as individuals in our own lives – always a nice thing.

The ‘Mediation Intensive Training Program’ is larger than other more academic mediation trainings that I have examined. It resonates for those who find themselves chafing against the bonds of more traditional frameworks. First generation dispute resolution sometimes assumes that the best people to make choices about how the lives of people in conflict should unfold are not necessarily the disputants themselves, but the mediators. Such an approach is natural enough, but it is possibly misguided. In my initial stage of becoming a mediator I too fastened upon an either-or  judgment about the “superior’ ethics of this craft as compared to traditional divorce warfare. What the heck, we may forgive the enthusiasm of ignorance waking up. (Self-judgments can be instructive, and then we kick them out the door, kill the Buddha so to speak, and so begin afresh).

I admit that my income today remains tied to litigation, although I don’t apologize for that in the slightest. Unlike some other mediation styles, the Understanding Model doesn’t judge litigators, courts, lawyers, or the default government sponsored system of dispute resolution. The model is the antithesis of making judgments while admitting that judgment, like shit, happens.

Indeed, it genuinely honors the conflict resolution structures that have developed to aid human beings to co-exist without killing each other, whether metaphorically or otherwise, over uncounted generations. It also recognizes the some people need protections that mediation cannot afford them, and it is quick to send them on to lawyer warriors as their circumstances require. It encourages the involvement of lawyers within the mediation process at every turn, in order to assure the best informed consent for the parties.

Having now studied aside almost eighty other like-minded individuals in my trainings with the Center, I’ve noticed that the Understanding Based Model resonates particularly for members of the mental health, education, and family science communities. It has an emotional intelligence that appeals to intuitive beings who care about human suffering on a practical level. It offers an inspiring approach to “the how” (style) and “the what” (substance) for family peacemaking (and all forms of conflict resolution), and for me it has been useful in developing a mediation practice that honors and respects the rights of all of us, including especially the parties to mediation, to ultimately make our own best (or possibly worse) choices.

Bev and I developed heartfelt relationships this past week with twenty other professionals who notably did not only consist of family lawyers looking to relocate their practice interests. The folks who attended this workshop included a retired government attorney, a non-profit public interest worker, at least two children advocates, an upper management representative who works for Google, a human resources executive/musician, a divorce wealth management specialist, and even a botanist (all of us ages 25 to 73 years). On a fuller level the Center for Understanding in Conflict is about the greater community of souls with whom we share this planet and these precious lives, in these times of increasingly limited resources.

Your experience of it will depend upon your professional locus and philosophical interests. Some people – and especially the “seasoned” litigators” among us – may find ourselves needing to be de-conditioned a bit, before we can accept that imposing our best intentions upon mediating parties, as a form of parental-like wisdom, can be coercive. The model holds that nothing that we might volunteer is certain to be preferable to what the parties themselves might devise with the support of us “neutrals”, which doesn’t mean we shouldn’t act as pointers. The conflict always belongs to them. Gary and Catherine offer many useful techniques to aid us in becoming a container of understanding. However, these tools require study and effort in order to gain any level of mastery over them.

So I took the course a second time, not just for the opportunity to mingle with a committed group of awakened and awakening personages, but also to refine the mediator’s tools that the Understanding Model introduced me to. In the two years since I first learned of the Center my mediation practice has taken root and sprouted limbs, and leafs and flowers too. Having now had the great good fortune to work with over forty pairs of divorcing spouses and domestic partners since last year, my insight and retention of how the model works feels to have been greatly advanced by revisiting the program.

Today, as Bev and I continue to wind our way south along Highway 101 in the dappling sunshine and rain clouds, I reflect that retaking the course had a relevancy that made sense to me on a level that I simply could not fully absorb the first time around, and especially before I had acquired some significant mediation experience.

I am grateful that I rejoined Gary and Catherine this week alongside the Green Gulch monks and their fabulous bread-making to reconvene with soft and deeper revelations. I am grateful for the new friends and connections that I made among the other open-hearted seekers. I eagerly plan for the six mediations that I learn have become scheduled over the ensuing two weeks, and vow to be as present to listen to the parties’ needs as I can. I will endeavor to hold and contain each of them, and them all.

Such is just what my experience is becoming. I do not presume to speak for you. But I am quite sure that the Center for Understanding in Conflict invites you to speak for you.

Thurman W. Arnold, III, CFLS

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New York Advanced Seminar Series-Support & Development Groups

Wednesday February 1, 2012 – Saturday June 30, 2012

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The Center regularly offers Support and Development groups in New York for those who have completed our Mediation Intensive. The focus of these groups is on integrating the Understanding-based model into participants’ work with conflict resolution in a manner that is authentic to the individual professionals.

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