Working with Our Reactions

In the last three and one-half decades of working primarily as a mediator, it has come as an extraordinary revelation to discover that an understanding of my personal reactions to the people in conflict I am trying to help is not only professionally valuable, but indispensable to effective mediation. Moreover, I have learned ways of working with those reactions, particularly the strong negative responses that are part of the everyday life of anyone trying to help people who are in conflict, that are indispensable to my effectiveness. Now rather than suppressing my emotional reactions, I find myself not just allowing those reactions, but actively searching for them and using them. More than any other technique or skill that I have learned as a mediator, investigating my inner self has proved to be the most essential and effective way to help others solve their problems. Much of this, I admit, seems counter-intuitive. How can paying attention to myself, my own insides, be helpful to others, the outside world? Particularly, feelings that I am not happy to experience, such as anger, upset and fear. How could paying attention to them, be anything but a problem, if my job is to help others?

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

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

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

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

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Tips for Working with Lawyers in Mediation

  1. Appreciate and support the importance of the lawyers protecting their clients. The way mediators see lawyers is often a self fulfilling prophecy. Instead of seeing the lawyers as a problem to begrudgingly deal with or work around, view the lawyers as an important part of the team.
  2. Don’t try to convince a lawyer he or she is wrong. Try to understand why they think they are right. Listening by the mediator is far more effective as lawyers are more likely to listen when they feel listened to first. And the mediator’s own understanding of the problem may change from listening to the lawyer rather than challenging him or her.
  3. See lawyers as people too. While they are participating in a professional capacity, lawyers have feelings and aspirations that impact them, their clients and the process.
  4. Don’t fight lawyer aggression with aggression. It almost always leads to further aggression.
  5. View lawyers as a great resource for problem solving and creativity.
  6. Create the opportunity for a conversation about the law which is separate from the conversation about what is important to the parties. Respect the parties’ and the lawyers’ decisions about how important they want to make the law and watch out for our own tendency to direct people based on how important we think the law should be in the solution.
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Why Should Lawyers Be Interested in Joint Mediation Meetings?

We keep hearing from mediators that they would like to have everyone meet in the same room, but the lawyers don’t want to. There are compelling advantages for the lawyers, the mediator and the parties to consider in deciding whether to meet jointly rather than separately. Mediators recognize that lawyers are often a driving force in mediations, so mediators need the lawyers’ active support and agreement for joint meetings to be successful. The dialogue often starts in the initial conversation with the lawyers.

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

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

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

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

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Looking Toward the Future, While Taking Account of the Past

When disputes are resolved in court, judges generally make a decision based on how the law applies to what happened between the parties – to past events. This keeps the dispute, and the parties in the dispute, generally oriented to the past. One reason mediation makes particular sense to parties is that the focus can be on what is important for the parties in their lives presently and going forward. Many parties to disputes, whether business people, divorcing spouses or others can easily become stuck in the past. “Conflict” readily keeps them focused on bygone grievances, hurt and justifications. Understanding can soften the hold that conflict’s focus on the past can have over them, and allow them to build greater understanding toward the future. If the focus is exclusively toward the past, it is easy to become or stay stuck there.

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

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Looking Beneath the Dispute to What is at Stake for Both Parties at a Deeper Level

The positions that we take when we become mired in conflict easily and naturally become reified and take on a life of their own. We are “for this” and “against that,” and our adversary obviously (and we believe, malevolently) seeks the opposite. When we look beneath the problem that has emerged in terms of the surface positions, we often find that we have more in common that we thought, and at least what is important to each of us might not be mutually exclusive.

In terms of people’s experience at a more personal level, the challenge is how to talk with each other and in the presence of each other about what is important to us in our lives. That is particularly difficult when we have had difficult or hostile relations with each other. Since our most basic needs are for survival and self-protection (including our families and others closest to us), protection against the other becomes understandably the highest goal when the other appears to pose a threat. We are often so intent on protecting ourselves against what we are convinced is the overreaching or hostile intent of “the other,” not only can we not see their humanity, we can easily lose sight of our own. Mediation can allow the possibility of moving toward a greater acceptance of the other and, simultaneously, to a fuller acceptance and recognition of the depth for understanding within ourselves.

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Upcoming programs

Fall 2013 Advanced Program on Contracting, Northern California This advanced training is available to those who have already participated in on our Mediation Intensive Training Programs, and focuses on contracting, the agreement to mediate. We will focus on the practical elements and aspects of contracting as well as the deeper motivations and interests in the parties’ seeking to develop agreement about working together. The training will take place on November 15, 2013, at Green Gulch Farm in Muir Beach, CA from 9:00 am to 5:00 pm.  Gary Friedman and Catherine Conner will present.  The training offers 7 hours of MCLE/BBS. Register and learn more here.    

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We are in it together: An Interview with Jack Himmelstein

Professor Jack Himmelstein is co-founder and co-director, with his colleague Gary Friedman, of the Center for Understanding in Conflict, which they established in 1981 as the Center for Mediation in Law and which is based in New York and California. Since founding the Center, they have worked to develop their Understanding-based approach to conflict resolution. They have been teaching mediation and conflict resolution training programs in the United States for thirty years and in Germany, Italy, Switzerland, France, Israel and Russia for more than twenty years.

The following interview was conducted on February 18, 2012 in Heidelberg, Germany, with Katie Deuschl, lawyer and mediator.

Jack, You are an expert in the field of conflict resolution and mediation and you have been coming to Germany for mediation trainings for over two decades. What do you like about teaching in Germany especially?

I like the connection with the people that I know. I like the continuity because I have been coming every year, I think, since 1990. I like, and deeply care about, the journey we share together. I originally came to Germany years before I came for teaching mediation. It came in strong part, from the fact that I am Jewish and was interested, more than interested, deeply cared about understanding and finding the connection with the German people because of the history of Germany and the Jewish people. And I have been able to feel, build and maintain deep connections with people here and to make dear friends, many in the field of mediation.

So it has been a journey and a search for me and for the people I connect with in a field that we share built on the very real need for developing greater human understanding. I have been very impressed with the depth of the commitment to mediation of the people that I have met. And I have been and am grateful to share that journey. Gary Friedman and I, I believe, were the first to come to Germany with the spirit and practice of mediation, as we know it. And we quickly experienced the desire, even the longing, of people here to search for understanding, to build an approach based on what they learned and discovered was deeply of value to them and to make it their own in this culture in a way that promotes understanding, mutuality, and ways of going through conflict together. That has been meaningful for them and those they touch and meaningful for me to join in that journey together.

In a nutshell: what motivates you to work as a mediator and what is important to you?

To search for understanding between people in the face of differences and in the face of conflict, which means both to search for understanding within one’s self and between one’s self and another. So it is an individual searching and a mutual searching that touches me.

Jack, you first practiced law as a civil rights lawyer and then moved to teaching at Columbia Law School where you focused on training students in the human dimensions of law practice. How did you get in touch with mediation and how did you end up devoting your full time to resolving conflict and practicing mediation?

Well, it goes back long before I studied law. Throughout my life I was always interested in the relationship between what goes on inside of us and what goes on outside of us. In fact I considered studying either Law or Psychiatry and – laughs – ended up in college studying Philosophy which helped me try to understand whether to study law or psychiatry and why I was trying to figure out about the inside and the outside that was and continues to be my search. I decided to become a lawyer and while in Law School at Harvard, I approached the Harvard Medical School asking to study some psychiatry as well. I was met with much skepticism until I fortunately found my way to the office of the head of the second year psychiatry program for medical students, Dr. Leston Havens. He listened, and then said, “when I was your age, I intended to become a lawyer but was drafted into the army and served in Europe during the Second World War. As a result of my experience then, I decided to become a Psychiatrist. So I believe I understand some of what you are seeking.” So when I was in my second year of law school, he allowed me to join the study of some part of the psychiatry residency as psychiatry training for medical students. So those two worlds were always together.

When I finished Law School I received a fellowship to study abroad. I studied with Anna Freud, the daughter of Sigmund Freud, in London for a year, who at the time had a child therapy clinic. So that journey of understanding, the relationship between the outside and the inside, was always going on. When I practiced law I was a civil rights lawyer for the NAACP Legal Defense Fund against the death penalty, and that work was also all about searching for greater human understanding between the races in the United States – which was part of my
background growing up at thetime of the civil rights movement. The impulse towards justice is in us and expressed outside of us; so that inner-outer connection has always been there. When I went into teaching law at Columbia Law School, I taught a clinic in which the law students were placed on wards of mental hospitals and they also worked with medical students and they helped talk to the inpatients and outpatients about their legal problems while they learned themselves as students about the challenges facing people who were suffering from psychiatric illnesses. The impulse towards mediation was then just starting to be felt in the United States, and I applied to the National Institute of Mental Health for a grant to train law teachers from around the country, in ways of teaching law which include what was going on and what is going on inside of us. At that time, I met Gary Friedman who was looking for a different way to practice law that brought people in conflict together. Gary started to practice what came to be called mediation. He was on the West Coast, and I was on the East Coast; and we became colleagues and eventually partners in establishing a mediation institute in 1980: The Center for Mediation in Law. I applied and received a grant to do the first training in the United States for law teachers in the teaching of mediation, which I did with Gary and others. So that is both about the history and the impulse of how we can, when we face problems seemingly on the outside of us, contact the desire to search for connection between us – where we respect and honor ourselves and also seek to respect and honor the others with whom we are in contact even when we are in conflict.

You then became the co-founder of the City University of New York School of Law, where for ten years you helped develop and guide that school’s innovative experiential approach to training lawyers in the public interest…

It was through my work with law teachers from across the country while I was at Columbia that I came to work closely with Howard Lesnick and Charles Halpern, both of whom were then teaching law atother national law schools. They asked me to join them in founding the CUNY Law School with a mission of training law students in the service of human needs. I brought spirit of the search for ways to honor human connection with me to my years at CUNY where we sought to develop a people centered law curriculum that included mediation. And Gary and I continued to develop trainings in the Understanding-based approach to mediation for lawyers and other professionals through the Center that we had founded, which in time led to the trainings in Germany. Then later Gary and I thought about what was really central for mediation, it was understanding – promoting human understanding, building understanding, the longing for understanding, understanding in ourselves and for others, understanding between people – which goes back to the original question you asked me about wanting to come to Germany. I think it is that longing, that desire for understanding, that commitment to understand,that fuels our work. So in time we changed our name to The Center for Understanding in Conflict.

We called our book Challenging Conflict because we wanted to challenge the hold that conflict has over us to challenge ways that conflict can trap us. So it is the desire for understanding, experiencing and promoting understanding, longing for understanding, reaching for understanding is what I think has motivated me and continues to motivate me.

So it was the same impulse and motivation that drove you to become a lawyer that continued to be the focus for your work as a mediator.

…For me, in different forms, it is the desire for justice – which I see as an expression in the world that comes from an impulse from within that hopefully we share and can seek together to express. That can be in the Civil Rights Movement, as it was for me, but that could also be in a conflict that I am having with my neighbor or my business associate, which people have all the time.

Jack, what do you find most challenging when working with people in conflict?

It is always a question of the willingness to go past holding on to the conflict, holding on to the anger, frustration and pain. So it can be very challenging to find a way to touch that part of people that do not simply want to find solutions based on anger, frustration or even stronger feelings, but rather to look for a way to honor their connection with the other while they honor themselves – without giving in but seeking together to find a way that honors them both.

It is often challenging to tap that impulse. And my experience is that there is a willingness of people to do that although it is often buried beneath the tension of being in conflict. And in my work here in Germany, I find there is a real palpable commitment, a desire to give that expression which I continually experience with the people that I have the privilege and pleasure of interacting with as we learn together.

When you are in a mediation training, it seems that you soak up the emotions thatare expressed by the people, and you work with these emotions quite intensively. This can be quite exhausting…

You are assuming that this is exhausting– laughs – I actually find it fulfilling and relieving. I think resisting the emotions, not recognizing the emotional level, I find much more straining and exhausting particularly when there are people that are willing to tap the deeper impulses within themselves – the longing, the sense of caring, the wish. And I just feel “how nice, we are doing this together.” That is true in mediations also. The teaching part can usually flow for me when the people want it, they long for finding a way through conflict, to find a way to help others in conflict. I find that very nourishing.

I could be exhausted in a mediation where people are stuck and do not want to move forward in a way that honors them both or I cannot find a way to do that. Tapping the emotional level in a constructive, mutual way does not feel exhausting to me; it wakes me up and it brings me nourishment, even joy.

So is tapping the emotional level the main shift that takes place in a mediation?

No, it is tapping the aspiration to join together to – and this certainly has emotional parts, it is not just any emotion – but tapping what people really care about, tapping the impulse to honor both themselves and the other. It is that deeper impulse of honoring oneself in a way that does not deny possibly but even includes honoring the other. If there is only anger, which is an emotion, to tap that again and again, and only that, does not bring me great relief and satisfaction which is exactly what conflict stirs up in people and in society.

As you know from the training program, I try for learning purposes, to personify conflict running around the room (or running around the world), trying to convince everyone they should be angry. If that were the only emotion that people feel, it is not enough, and it is certainly not satisfying for me. If it is part of a larger picture that they realize that they want to go beyond adherence only to anger while honoring as well what they care about that connects them with others, then it is much more fulfilling and meaningful for me and hopefully for them. As I know you know, Katie, there is a famous Jewish expression: “If I am not for myself, who will be for me. If I am for myself alone, what am I? If not now, when?”

Many German mediators were strongly influenced by your teaching and the Understanding-based approach to conflict resolution that you developed together with Gary. Who inspired you in your work?

There have been many over the years whom I have learned from and with. And certainly my work with Gary and other colleagues in the United States continues to be a source of nourishment and learning as has my work and friendship with others here including with Lis Ripke with whom I am happily teaching here also Hans-Georg and Gisela Mähler who first invited us, and others I could name. And I am always happy to continue to learn with people like you and many others here in Germany who when they have had a taste, a feel for this possibility, for this learning, for this approach have held on and with great caring, great love, insight and the strong desire, willingness and ability to apply it in this culture in ways that for me have been extraordinarily impressive.

In some ways, I feel when I am among my colleagues here that I can happily join with others in honoring the integrity of the movement towards mediation as much if not more than in almost any other place, including the United States. I am not trying to say that it is all wonderful, perfect – considering many of the problems that I see in the United States also exist here – but it is a great journey.

Looking back at the past 30 years, what has changed, what are the lessons learned, and what are the challenges for the future?

Well, there is a continual understandable tension between mediation as a way of just getting beyond the surface of the conflict and reaching a conclusion. So for me, the caucus method of mediation or the pressure method of mediation where the mediator does not have the power as a judge would have to formally make a decision but pressures the people to make a decision is an ongoing challenge, a natural one. So many things that go on in the name of mediation now are not for me what I really feel the deeper promise and potential and hope for mediation hold. It feels more like authoritative power decision-making. And some people in conflict long for that, they long for a third party to tell him or at least to tell the other person what he or she is supposed to do. That is totally to be expected, and Gary, I and others have asked – can we continue to call what we do mediation when there are so many things going on that are called mediation that do not really have the spirit of mediation as we understand it.

I think what changed is mostly the depth of the journey, the willingness to continuously discover new ways of appreciating how we can work together to build understanding in ourselves and between people, between us and others; so I am continually fascinated by ways of looking at how we can within ourselves approach conflict, understand what is going on in us as we are in the presence of conflict and do that in ways that with great sensitivity and caring can deepen and develop understanding within us and between people in a way that seeks fully to honor them. Even the work that we did in the seminar, at the very end of the seminar we said, “uh, we have to change one of the words in the chart as it does not quite capture something that we learned together or observed here.” So it is a continual path of discovery. I think that is great and I am grateful to be a part of that – to whatever in the world or in the universe there is that made it possible for me to join with many others that I have worked with over the years and other new ones – including you and all participating these days in this seminar.

I also, and this is not so tangible as we all know, I would like to think that mediation touches on the possibility of bringing understanding to a very, very challenged and troubled world and helps deepen what I really believe is that natural ability within all of us and that desire within all of us to reach greater understanding in ways that, without giving up ourselves, we seek also to honor that impulse in ourselves to honor and reach out to others.

We are in it together. Jack, thank you very much for this interview. I appreciate very much that you shared this.

Thank you, Katie, thank you for being with me in the interview and in the seminar.

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Support & Development Group (First Session 10/9/12)

Gary Friedman, Catherine Conner, and Marissa Wertheimer will be offering a Support and Development Group in Southern Marin starting on October 9th, 2012. There will be two trainers at each meeting (Marissa will be at all of the meetings and Gary and Catherine will alternate months). The group will be for a limited number of participants and will meet the second Tuesday of the month. The group will consist of people who have completed the Center’s basic mediation training and who are working to integrate this perspective into their ongoing professional practices.

Learning will take place through case presentation, facilitated discussion, and supervised role play. Participants will present one of their cases so that the group can examine not only what is of significance for that participant and for that case, but also the issues and challenges that are raised for others in the group.

Session Dates are as follows:
Oct. 9
Nov. 13
Dec. 11
Jan. 8
Feb. 12
Mar. 12

How to Register/Who to contact:
Use the registration form to the right to register. Otherwise, you can contact Gary Friedman directly or download the flyer here.

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Structuring the Process

One of the most essential aspects of the Understanding Based Model is to provide an alternative to the coercive process of litigation, judicial decision making, and even other approaches to mediation which rely upon the power of coercion to help move people through conflict. Toward that end, we think it is important for the mediator to meet together with all parties as much as possible, if not exclusively, through the whole process. This is intended to empower the parties by creating the opportunity to have a full understanding of all the realities they face, to assert their own perspectives, and to understand each other’s perspectives.

While we think it is important for the mediator to provide a structure for the parties to have constructive communication, we think it is also important that the process itself not be one that the mediator imposes on the parties. What this means is that as much as possible, we want to enlist the parties as participants in designing the process, which we call the “how”, in order to reach an agreement on the substance or “the what”, which is determined by the parties.

So at each stage of the process, when the mediator suggests a task to move the mediation forward, we suggest using the following steps to engage the parties’ real participation, understanding and agreement regarding how we are proceeding.

First, the mediator describes the task such as describing the history of the dispute, understanding what is important to the parties, brainstorming options, or other tasks that will be completed during the mediation. Once the mediator has described the task and the parties understand the task, we don’t think it is enough to be able to simply proceed because they seem inclined to go along with the mediator’s suggestion. Because parties often feel vulnerable and want to rely on the mediator as the expert on how to proceed, we want to engage not only the parties’ understanding but their active support for proceeding with the task. So we don’t stop with the description of the task and asking for consent.

We then ask the parties to tell us if they think the task would be valuable in moving the process forward, and if so, why they think it would be valuable. As mediators, we might have an idea of why we think it would be valuable. But what is more important than our ideas are the parties’ motivations that we are trying to tap in the moment if they have their own reasons why the task is valuable. We also ask the parties about any concerns they have about the task. By having a conversation not only about what they parties find valuable about the suggested tasks, but also any concerns they might have about the task, we are encouraging people to fully evaluate the described process. Often when parties register concerns, the task is reshaped to respond to and better fit the parties’ individual abilities and needs. By engaging the parties’ active participation in designing the task, the parties will also likely feel much more committed to participate fully and actively. If the parties have lawyers in the room, it is also essential to enlist the lawyers as well as participants in designing the process so that they feel that their clients are adequately protected and that the direction of the mediation makes sense to them.

This approach to structuring the process requires the mediator not to be so invested in their own idea of how the parties should proceed that he or she subtly or not so subtly pressures the parties to proceed in a way that might not make sense to one or both parties. It is very tempting when we have an idea as mediators about how to proceed that has been successful in other mediations to assume that our idea will work for everyone. But it is sometimes true that our idea will not work for everyone and we need to be ready to respond to the individuality of the situation and who the parties are in terms of their sophistication, intelligence, emotional states, negotiation experience, and capacity for intellectual understanding of not only the problem but the procedures that are being used.

This does not mean that if the parties and or lawyers make a suggestion for how to proceed that doesn’t make sense to the mediator, that the mediator simply agrees to adopt the suggestion. Because the mediator needs to include themselves as a party to the negotiation about the process, if the mediator disagrees with the parties, then that disagreement needs to be worked through before the mediation can proceed.

This also means that the mediator should not simply give up an idea of how to proceed if the parties’ first reaction is negative. It may be that the mediator will need to live with the tension of having a conversation with the parties where his or her idea is fully explored before giving the parties the ability to reject the idea. However, there is a clear danger that when the mediator feels strongly that their idea is “right” for the parties that the mediator will be too reluctant to let go of the idea, particularly if they don’t have another idea in mind about how to proceed.

Structuring the process requires the mediator to have both an ability to assert and also the ability to be sensitive and receptive to the parties’ response. This is one of the fundamental tensions that we think needs to be at the heart of an Understanding Based Model. Structuring the process in this manner may seem like an arduous and unnecessary step to some, but we feel that this is the best antidote to a coercive process and provides the best opportunity for the parties to really feel engaged in and invested in the mediation process.

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Support and Development Groups for Mediators, Collaborative Practitioners & Conflict Professionals (9/12 – 1/13)

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Description:

The New York Center will continue its ongoing Support and Development Groups for Mediators, Collaborative Practitioners & Conflict Professionals (with Jack Himmelstein and Katherine Miller), which meet one evening per month in New York City from September to January. These groups consist of people who have completed the Center’s basic mediation training and who are working to integrate this perspective into their ongoing professional practices. Limited space available.

Please download the Website Registration Form to register.

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Self-Reflection in Action: Using Our Inner Selves To Help People In Conflict (1/27/13 – 2/2/13)

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Description:

This is a week-long  program in self-reflection in Mexico for conflict professionals.

In this program, we will have a continued focus on how we can work effectively  with our own internal responses to help people in conflict. There will be a significant meditation component to the program. The program is open to people who have completed at least one program with the Center and are working in the conflict resolution field as mediators, collaborators, negotiators, ombudspersons, or traditional lawyers.

Faculty: Gary Friedman, Jack Himmelstein, Norman Fischer

Either download and print the Mail-In Registration Form or fill out the form below to register online.

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Dealing with Judgments

To take on the deep challenge that conflict poses means confronting the role and power that “judgment” has in our lives. We say, “our” advisedly here. Because dispute resolution professionals are by no means immune from the grasp of judgment when dealing with conflict.

When using “judgment,” we need, in English, to distinguish between judging as in discernment, and judging as in critical labeling within us – right and wrong, good and bad – with usually strong emotions being associated with the judgments.  Some languages have different words for these two related but quite different kinds of “judgments.”  In English, we have one, although being “judgmental” captures the quality of disparagement.

The two different aspects of judgment can at times seem almost indistinguishable, and it is so very easy to move from the one to the other.  But we can, if we want to and if we pay attention, see the differences between the two forms of judgment, even when subtle.

In the judicial system, judges are free to have both kinds of judgments, although their judicial decisions, their rendered judgments, it is understood, should be guided by discernment:  applying the law to the facts “dispassionately.”

Conflict professionals often pride themselves as being “judgment free.”  For us, that is an aspiration that requires continual self awareness in the moment, and from moment to moment.  It is not just a matter of not showing your judgments, but of realizing them and not being attached to or caught up in them…. and, perhaps, learning from them.  That learning is not just in terms of the party or parties sitting with us, but learning within ourselves – learning in terms of appreciating the power that judgment can have over us and within us (and within the parties as well).  It also involves finding a different way of recognizing and letting go of the hold that judgment can readily have over us and others, if we wish to do so and intend to do so.  That path has the promise and possibility of leading to compassion, empathy and connection.

That does not mean that “anything goes” – that we simply accept whatever either of both parties want or do.  It rather means, for us, that we aspire in our work toward a place we may seek to meet each other “beyond right and wrong.”  Whatever our internal experience as we work to help people in conflict, we seek to join with them from a place of recognizing our judgments and the feelings that give rise to them within us — not being attached to them, and reaching, if we choose, to the search for greater understanding, compassion, empathy and connection.

Seeking that path, we can work more deeply and richly with ourselves, with the parties we serve, and with each other.

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Moving Toward Greater Understanding

In conflict, most people feel misunderstood, at least by their opposite. The traditional way of resolving differences is through efforts at persuasion rather than understanding.  Even when one wins in court, he or she may feel vindicated but not necessarily understood.  Mediation can allow for increased understanding – the parties of themselves and, hopefully, of each other.

When parties to conflict feel so misunderstood, receiving authentic understanding can be enormously valuable in creating the climate for them to work together to resolve their dispute. The mediator’s authentic effort to understand each party, done well, can lead to both parties feeling understood —  at least by the mediator.  Being understood by the mediator is valuable in and of itself.  There is also the possibility that the parties may be able and willing to try to understand each other.

Misunderstanding fans the flames of conflict.  Understanding can begin to quell them, and allow for something deeper between the parties to arise. As Thich Nhat Hanh has expressed it, when it becomes possible for each party to a conflict to see that the other is also suffering, the anger can dissipate.

Easy to say.  Much harder to do–not just for the disputants to a conflict, but for the conflict professionals as well.

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March Book of the Month

This book focuses on how to find an authentic voice with which to have some of life’s most challenging conversations.  Dr. Lerner focuses on a true expression of self in order to “maximize the chance of being heard” and keeping the connection open even in the face of strong emotion, complex dynamic and misunderstandings.

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March Reflections From Norman

Norman Quote –

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.

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The Rippling Pebbles of the First Meeting

In a recent Support and Development meeting, we addressed the importance of the first contact with the parties. In the context of discussing an actual case, it became clear how the dynamics of the initial contact between the professional and party or parties can set patterns that ripple through the life of the case.  Even seemingly small innocuous statements or actions can send messages about how we will interact in the future.

When I start a new case, there is often a lot going on inside of me.  I may still have leftover thoughts, feelings and emotions from other matters I have been working on or something going on in my personal life.  I may have developed a conscious or unconscious bias about the case just from a small bit of information (they are from “that” part of the county or oh – another case with someone in “that” field or who has hired “that” professional.)   I may be wondering if I am the right person for this type of case or these clients.  I might be worried about whether someone is going to explode in the first five minutes.  And I may want to simply know whether they are going to like me and retain me.

All of this chatter going on inside of me can take me away from being fully present and attending to what is happening on the outside that could affect the future of the case.  If I am feeling a slight aversion based on my initial unconscious bias about a party involved in the case, I could end up interacting differently with that party or the other party.  Or if I am even momentarily distracted by thinking about another matter while listening to one party in a mediation, that party may observe my distraction and conclude that I am not as interested in their story as the other party’s.  This can then become the seed that grows within the party, who several sessions later tells me that I don’t listen to them as much as the other.  When a party has said this to me, I have sometimes been perplexed because it doesn’t seem to me in the moment that I have listened more to one or the other.  But it may very well have been that initial seed that grew inside the party as an impression of me or it may have developed into a pattern of how we interact with each other that I have not been aware of.

So what do I do about this?  First, I try to become as fully as present as possible when I start, turning down the volume of the inner chatter.  My office is on the opposite building from the reception area, so I try to take the 30 seconds it takes to walk to reception to take a few deep breaths, let go of any burning thoughts (“I have time later to think about what to do about the Smith case”), and open my heart to the people I am about to meet.

During a session, I similarly try to stay present, listen carefully, pay attention to what is happening with the parties and other professionals in the room, observe the system and patterns we may be developing, and be conscious about how and what I am saying verbally and non-verbally.  Which is a tall order given that it is hard to let go of my striving to be friendly, professional, warm, and likable.  So that is a lot to be doing at once!  But I keep trying.

Most importantly, I take very seriously any indication from someone in the room that something is awry, whether explicitly stated or because I have a sense that something is off.  We talk about what is happening and what can be changed to address the unproductive dynamic or pattern.  And give permission to accept reminders or additional input if further bumps occur.  And once again, try to stay as fully present as possible.

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February Reflections From Norman

The sea of stories rolls on and on without end. Though we must tell and listen to our stories well,
trying as much as we can to understand, we know now that there’s a peace beyond understanding, a love
too boundless to be known, a tale too secret to be told.

As long as space endures
As long as there are beings to be found
May I continue likewise to remain
To drive away the sorrows of the world

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Tips – End Game #4 – Lawyers’ Participation in the Writing of Agreement

Normally, we think it is quite important for the mediator to draft the ultimate agreement
between the parties rather than leave that to one of the parties’ lawyers because it minimizes strategic
maneuvering by the drafting lawyer which can lead to a dynamic between the lawyers to gain the upper
hand. So while it is important for the lawyers to be included in reviewing and fine tuning the draft, the
mediator needs to be very active in ensuring that the lawyers’ input even on very technical matters does
not undercut the parties as the ultimate decision makers. So we recommend that parties be included in
all conversations and written correspondence between the mediator and lawyers even regarding what
appears to be technical information.

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The Last 3 Minutes

One of the most important tasks for the mediator is to be able to structure sessions with the
parties in a way that creates balance and allows for sufficient flow between the parties with mediator
participation. To do this, we often begin sessions with an agreement between the parties and mediator
about a list of the tasks that will need to be accomplished in the session. Especially in a mediation that
requires multiple sessions, there are sometimes time sensitive issues that need to be addressed in a
particular session, although there can be a danger that the focus of each session is to just make
agreements to get to the next session and not make progress towards the overall decisions need to
make. So this is a tension that the mediator needs to learn how to manage.

With this as the backdrop, we have noticed that with a significant number of parties, as a
mediation session draws to a close, one or the other or both become aware of an issue that needs to be
addressed even though there will not be adequate time to address it. Or one party has been waiting,
not necessarily intentionally, for the time to say something to the other which might be incendiary to
the other and there won’t be sufficient time for the mediator or other party to adequately address it.
Or a party raises an issue sometimes intentionally knowing there is insufficient time to fully address to
gain a strategic advantage over the other. Even with the effort on the part of the mediator to clarify and
reach agreement at the beginning of the meeting regarding all of the topics that will be addressed, this
dynamic may recur. So what to do?

First, we can see if this topic can be tabled to another session when there will be more time to
adequately discuss it. If not, our principle of proceeding by agreement would call for us to see if we can
reach an agreement with the parties to add another topic knowing that at best, there can only be a
partial discussion. Third, there could be an agreement to continue the dialogue beyond the session
either in writing or by telephone if there is such time urgency that it can’t wait for another session.

There is however, another dimension to it all and that is, that there is often a fear on the part of
a party to fully discuss a particularly difficult or sensitive issue and that is the reason why the issue is
only raised when the person knows there will not be adequate time to discuss it. This calls upon the
mediator to be sensitive to this possible dynamic and be able to have a conversation with the parties
where this dynamic is directly discussed. This is especially important if this pattern is recurring because
it could be an indication that there is a more fundamental dynamic that needs to be changed for the
parties to feel if they are working together effectively with the mediator.

The mediator often needs to include an observation on their own participation in the dynamic.
For example, it could be that the mediator chooses to run overtime with the parties and is not willing to
set clear boundaries for the parties. It could be that this dynamic takes the parties beyond the point of
being able to work productively with each other because they are so tired. And if it becomes a pattern,
it can mislead the parties into believing that there really is more time available than three minutes.

Often, when this dynamic occurs under the pressure of time, people can feel pushed into

making agreements that they will regret later, which creates the illusion of progress when the
agreement can easily become unraveled when the parties have the opportunity to really reflect on what
they have done. So again it is critical for the mediator not to judge the success of the mediation by
whether the parties are reaching agreements, but to see whether the agreements are solid, understood
by the parties, and makes sense to the mediator.

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February Book of the Month

Norman Fischer, one of our teachers, has written a long poem about conflict, some of which was
actually written during sessions where he was participating as a teacher during our self reflection
programs. The book is extremely evocative and we recommend it as a way to appreciate the many
dimensions of conflict that are difficult or possible to express in ordinary discourse.

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January-Mediation Themes

Our work in the Understanding-Based approach to mediation and collaborative practice gives direct attention to how people get trapped in their conflicts, recognizing the outer and inner dimensions of that trap, and how we can work effectively to support them in finding a way through and out of their conflicts.  We start that inquiry in this newsletter, and will continue it in the future.

Being against the other, Judgment and the Conflict Trap

Court cases in the U.S. (and likely in many other countries) are labeled Plaintiff Versus Defendant, which means, of course, one side “Against” the other, e.g. Jones vs. Jones, Sander, Inc. v. Mainline, Inc.State v. Foster, etc.  Many lawyers typically label their legal files (or correspondence) in the same manner.  When mediation cases started, mediators and lawyers had to decide how to label their files (or correspondence) since “Against” was not the spirit of mediation.  While there is no official nomenclature, most mediators use “Jones with Jones,” or “Sander, Inc. with Mainline, Inc.”

This simple difference has enormous implications.  While parties to a dispute differ, often strongly, they need not be seen or see each other as “against” one another.  Rather, they can see and be seen by each other as trying to work “with” one another.  The spirit and reality of that possibility can be vitally important in how people think and feel about and experience conflict. But the scope of that challenge in reaching for that difference can be hard to realize or even understand. Yet the promise is there. Since conflict is so rampant, and too often so destructive, the possibility of touching that promise in a meaningful way holds enormous potential for the development of mediation and collaborative practice and for so much more.

The challenge is great. Conflict is and will continue to be widespread.  It is the all too normal way relations (business, personal, social) develop, evolve, are sometimes clarified, and too often run askew.  But the destructive ways conflict is so often experienced and dealt with are not inevitable. And the differences in how we deal with conflict can contribute not only to whether mediation, collaborative practice and other alternative processes for conflict resolution are constructive and wise, but also to how we live with one another in the world.

–          Right and Wrong

In conflict, the general social perception (from inside the conflict or from outside) is one between right and wrong.  Each side experiences itself as right and the other wrong, and each readily believes and feels that it needs to prove itself right and the other wrong.  That is not only the model in court, but also on television, in the press, sports, schools, politics, in and between families, etc.  It has fueled ethnic, religious, international conflicts for centuries at enormous human cost.  Indeed, the right/wrong framework has stayed firmly with us since the day that Cain killed Able. Once caught in conflict’s

In short, “right and wrong” holds enormous power over individual psyches and our social psyches.  Advertisers know this, which is why so many TV programs are grounded in the struggle between right and wrong. “Who done it?” And “will they get what they deserve?”  “Right and wrong” touches us deeply.

The turn toward mediation, collaborative practice and other “alternatives” is a movement, as we see it, away from a rigid right/wrong perspective on differences to one that allows that each side has right, or, stated differently, that we need not see things strictly in terms of right and wrong.  But that other possibility is enormously hard to achieve, or often even to understand.

While it would likely be a mistake to see all differences as simply relative in a value neutral world where there is no right and no wrong, many, many conflicts involve and are sustained by strongly differing perspectives where the experience of the disputants is very much that they are right and the other wrong.  Or, at the very least, that their actions are justified given how they were wronged by the actions of the other. And much of the work of mediators is to help the parties see that there can be different perspectives on the same problem from different vantage points without there having to be one right and one wrong.  That for us is at the “heart” of mediation and can be liberating for parties in conflict and for the professionals who serve them.

We do not need to see those with whom we differ as wrong and ourselves as right.  The differences between us can be very real and very important and still be difference that we seek to address together, if we choose to.  They need not carry the extra enormous baggage of our having to see ourselves as right and the other as wrong and to prove ourselves as right and the other wrong.

–          Recognizing Differing Perspectives

Another way of saying this is that when parties are in conflict, they are readily convinced of the truth and rightness of their view and, correspondingly, the falseness and malevolence of the other’s.  Those of us on the one side experience ourselves as simply trying to protect our self, our family, our business or other assets.  The “other” in the conflict is correspondingly motivated, we can only assume, by the desire and intention to harm us.  Of course, from inside the world-view of the “the other,” the picture is likely reversed, but we do not see that or we discount its validity if we do.

A short way to capture the dimensions of this dynamic is that we tend to judge ourselves by our intentions while we judge others by the impact of their actions upon us.  Our own intentions seem justifiable, even well-meaning.  But if the impact of the other’s actions proves hurtful to us, their intentions must be malevolent.  When both parties are imputing the best to their own motives and the worst to the other’s, conflict can seem inevitable.

Once set in motion, this ricocheting and mutually reinforcing dynamic is hard to stop, and easily escalates. Caught in conflict’s grasp – what we call “the conflict trap” — there seems no escape.  Without a way out of the tight grip of this dynamic, the parties’ negative judgments of one another readily block any attempt at meaningfully dealing with one another, let alone working together toward a resolution of the conflict.

As we see it, one central way to help the parties out of the conflict’s trap is for the disputants to understand that people see things from different vantage points – they have different perspectives.  Differing perspectives can stand next to one another without the one having to cancel out the other.  Differing truths, each of which is felt as absolute and necessarily negating the other, cannot.  Much of what can and often does meaningfully go on in mediation and collaborative practice is educating the parties about seeing conflict as a question of differing perspectives rather than singular truths.  Once the parties to a conflict can begin to appreciate that, they may be willing to see their own view as their own view and recognize that the other from his or her perspective may have another.  In order to help the parties to begin to understand that they each have a different view of the truth and that their view does not have to cancel out that of the other, mediators and Collaborative professionals need be willing to accept, tolerate and encourage each person to express his or her truth and hear that of the other without having to argue or judge.

An old Yiddish tale captures the spirit of that challenge.

A young, and fairly new, Rabbi in an Easter European shtettel at the end of the nineteenth century was faced with a dilemma.  He was called upon to resolve a dispute between two families that had been going on for years.  He knew how important dealing meaningfully with that dispute could for those families and also for the whole community which was heatedly locked in the embrace of this conflict.   He found himself overcome with the challenge as it continued from week to week, month to month, year to year. And it was threatening to tear these families and the community apart. So he did the only thing he could do that might help.  He suggested that the families travel the considerable distance from the small shtettel to the larger town to where the Grand Rebbe, who had been his teacher, resided.  The families agreed, and with their horses and wagons, their extended families and friends, the two camps traveled the two days at their Rabbi’s advice to see the Grand Rebbe.

Upon arriving, the younger Rabbi approached his mentor, overcome with emotion, and after they embraced and greeted each other, he said to his teacher “Grand Rebbe, I have a challenge like none other I have faced in my years since I left this home of your wise teachings where I learned so much. Only you can help.” The Grand Rebbe spoke gently to his student.  “I am so happy that you have come. Please tell me and I will listen.”

The young Rabbi burst out the tale. “There is a dispute in my shtettel that has divided the community deeply and threatens to become only greater, with potentially tragic consequences for these families and for the entire community. And, thanks to the Almighty, the families have agreed to present the dispute to you for your judgment.”  And so the young Rabbi told his teacher the nature of the conflict, and the Grand Rabbi empathized with his former and present student and agreed to meet with the disputing families.

The next morning, the two camps assembled in the large meeting room where the Grand Rebbe invited them to the present their differences.  The spokespersons for the first family did so with vehemence, outrage and accusation, with supporting murmurs from that side of the hall.  After they had finished, the Grand Rebbe sat in silence for two or three minutes and then rose and said it a subdued tone, “I think you are right.”  That side burst forth with cries of delight, while those on the other side of the room looked despondent and bewildered. The young Rabbi looked on incredulously.

“And now I would like to hear from you,” said the Grand Rebbe, turning to the other family with their many supporters.  And that side put forth a very different view of the entire situation, with even greater vehemence and sense of outrage for what they had suffered at the hands of the others over so many years.

And when they were finished, the Grand Rebbe again pondered in silence, then said, “I think you are right.”  And this side of the room erupted in cheers while the others looked on in shock, disbelief and anger.  The young Rabbi, trying to take in what had happened, was overwhelmed with feelings of astonishment and bewilderment at what he thought he had just witnessed, and quietly and respectfully asked his beloved teacher for a moment in private.

“Grand Rebbe,” he said, “respectfully I must say that I simply cannot understand.  You are the greatest teacher, the one who has filled my life with knowledge and hope, and I came to you out of desperation. And today, the one family presented its side of the dispute, accusing the other to be the source of the entire conflict, and you said they were right.  And then the other family presented a totally opposite view and pointed to the others as wrongly and maliciously  causing all the trouble between them, and you said that they are right.  I am bewildered and simply cannot understand.  They both cannot be right.”

The Grand Rebbe was silent for what seemed to his student like an eternity, and then said, “I think you are right too.”

The Buddhist poet Rumi expressed the same in a simple and wonderful way  —

“There is a place beyond right and wrong.  I will meet you there.”

We will continue this inquiry in our next newsletter.  We welcome your joining us with your thoughts on our blog.

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January Book of the Month

The Upside of Irrationality:

The Unexpected Benefits of Defying Logic at Work and at Home

by Dan Arielly

This is Dan Arielly’s follow up to Predictably Irrational. Both works centered around the author’s research into why people consistently fail to act in their own best interests. This is a fascinating topic for those of us who work in “interests-based” negotiations. Arielly’s work has deep implications for understanding what an “interest” is and how people do and don’t act in alignment with those interests. His research on the development of trust between people and the powerful seduction of revenge when that trust is broken is also intriguing and relevant.

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January Reflections from Norman

Why not have aspirations so lofty they are impossible to fulfill? To have aspirations any less lofty would be to sell ourselves short.  The trick is to keep on making effort in the direction of fulfillment of the aspiration but not to think that you will  actually complete the job – and not to be dismayed or discouraged by this but instead to be encouraged by it!   This is a good approach because you will always have more to do, and always be spurred on by the strength of your commitment.  To commit to something you actually could accomplish is too small potatoes for a lofty  sacred human being like yourself.

Norman Fischer is a poet, author, Zen Buddhist priest and former abbot of the San Francisco Zen Center. Norman is founder of the Everyday Zen Foundation.

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The Essentials of Family Law: What Family Mediators and Collaborative Professionals Need to Know

Tuesday February 21, 2012 – Tuesday April 17, 2012

521 Fifth Avenue (entrance on 43rd Street)

View MapMap and Directions | Register

Description:

The Center is planning to offer an advanced seminar series in New York City: “The Essentials of Family Law: What Family Mediators and Collaborative Professionals Need to Know.” It will be held on eight consecutive Tuesday evenings starting February 21st (Please note:  No class during week of March 6th )  and ending on April 17th.  There will be some readings and other homework assignments.

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December Book Review

Thinking, Fast and Slow
by Daniel Kahneman

This book, written by a Nobel prize winner in economics (who was not even an economist)  was part of a team with Amos… who did the breakthrough thinking about uncertainty in rational behavior that has led to the development of behavioral economics.  Kahneman helps us to understand at a brain function level how some of the things we assume are true actually represent errors in our perceptions, particularly when we are dealing with uncertainty.  This is helpful to both professionals and parties in understanding better how we process information as we make decisions in ways that sometimes don’t serve our best interests.

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December Notes from Norman

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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When Each Party Is the Expert on the Other’s Reality

People in conflict who have been in a relationship often feel as if they know a great deal about the other person – the expert on the other’s reality.  They come to mediation with that set strongly in mind.  They can make righteous statements based on their sense of the reality which offend the other person.   And their take on the other person’s reality can lead them to blame or accuse the other in a way which interferes with effective communication.  Once one party starts to talk this way towards the other, this can trigger a reaction, and then they are off and running, usually in the wrong direction.

The mediator’s job is to try to help unravel this tangle by refocusing the parties on their individual realities, which are often challenging enough for them to be able to grasp and articulate in a period of great transition.  This is much easier to say than to do because it is often easier for people to focus outside themselves than to take stock of where they are and what is important to them in their own lives going forward.  It is important to first be able to help people recognize that neither of their perceptions are “The Reality” and that there are at least two different subjective realities and perceptions when they disagree with each other, neither of which represent “The Reality.”  For the mediator to be able to do that requires the mediator not to have chosen which perceptions are more true or closer to “The Reality”.

For example, in a family case involving a contentious issue of support, one person may accuse the other of not making sufficient efforts to become employed, continuing a pattern of laziness and reliance on the other to carry the financial burden.   The other may accuse the working spouse of undermining their self confidence and failing to support their efforts as they repeatedly did in the past and trying to escape their responsibility to assist financially.

One specific intervention is to ask the parties to agree on a groundrule where they each speak for themselves rather than the other.  The mediator can also give each person the opportunity to describe his or her reality and then reflect back and frame each person’s statement as their own subjective reality.  By turning the parties to themselves, the mediator is able to help the supported spouse to identify and articulate the experience of helplessness in being financially dependent and the fear of being unable to find suitable employment.  The mediator is also able to help the supporting spouse to identify and articulate anxiety and fears about financial security and the ability to meet everyone’s needs in a time of financial crisis.

The mediator interventions which helped the parties to let go of “The Reality” began with helping them recognize they were in a period of transition when things were changing, not just for each person, but for the other as well.  When the parties were able to recognize that they were undergoing changes themselves, it was easier to accept that it might be true for the other person as well.

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End Game Tip #3 – The Mediator’s Stance in the End Game

The End Game is when everything that has happened in the mediation comes together – the chickens come home to roost.  So it is particularly important for the mediator to be able to observe their own dynamic in relationship to the parties and also in relationship to whether the parties reach an agreement and what agreement they reach.  One of the two dangerous poles is when the mediator believes that it is solely the parties’ responsibility to reach a result and recedes too much, resulting in the parties not being able to find their way because they needed more help from the mediator.   The other dangerous pole comes out of a feeling of too much responsibility on the part of the mediator for the parties reaching an agreement, resulting in the mediator overcontrolling the process and content and coercive pressure that may well backfire.  So the challenge then is for the mediator to be able to come in as much as needed, and not more, to help the parties find their own agreement.

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The End Game – Tip #2

One thing that is very challenging in the End Game is to hold onto interests that have been expressed by the parties in a way that keeps them foremost as we negotiate through to a solution.  When the rubber hits the road and we are talking options and ultimately solutions, it is hard to find ways to keep what the parties expressed as important primary in their minds and hearts and ours.

Tip #2 – Frame Interests in Writing.

In our seminars we teach participants both to elicit and then to frame interests as separate steps toward unraveling what is most important to the parties and then as a way to hold onto those thoughts and feelings throughout the process.  Eliciting interests is a way to engage the parties in discussions so as to allow them to fully explore what is most important to them allowing them the time and support to understand and express their thoughts and emotions at a deep level if they wish.

Framing is a method of capturing the essence of what each party is expressing and writing it down in a way that is meaningful to that party and useful to the process. Looking to make a list of words or phrases that represent each of the things the parties say is important to them, we have a four prong test to see if the expressed interest is suitable to be written down.  The goal is to work with each party to articulate his/her interests in a frame that will be most useful in developing options.  The four tests are:

  1. Significant to Party (has emotional resonance)
  2. Points toward multiple options (not too specific)
  3. Tangible/graspable (not too general)
  4. Described as present or future benefit (rather than cost to other)

Framing interests in this way is harder than it seems.  The professional must both hold the interest expressed by the party with its emotional resonance separate from the position that person may have expressed and also negotiate with the him/her to find a word or phrase that meets the four prong test above to go on the list.

Why bother with such a challenging task?  Taking the time to create and formalize a list of framed interests is one way that we can solidify and hold what is truly important to the parties as we work toward brainstorming options and negotiating solutions.  Without this list, what is truly important to the people can disappear in a flash if the parties sense a scarcity of resources or start to get scared.  On the other hand, keeping the list on hand where it can be viewed and referred to at will, helps remind all participants – parties and professionals – what really matters and helps reduce anxiety.

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November Notes from Norman

Zen Mind Training:  59 Slogans for Generating Altruism (forthcoming)

We take our point of view so much for granted, as if the world were really as we saw it.  But it doesn’t take much analysis to recognize that our way of seeing the world is simply an old unexamined habit, so strong, so convincing, and so unconscious we don’t even see it as a habit.  How many times have we been absolutely sure about someone’s motivations and later discovered that we were completely wrong ?  How many times have we gotten upset about something that turned out to have been nothing?   Our  perceptions and opinions are often quite off the mark.  The world may not be as we think it is.  In fact, it is likely that it is not.

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November Book of the Month

The Gifts of Imperfection: Let Go of Who You Think You’re Supposed to Be and Embrace Who You Are

Brené Brown, a researcher on shame and vulnerability, has developed ten ”guideposts” to develop what she calls ”Wholehearted living”—a way of engaging with the world from a place of worthiness.  .  She advocates for authenticity which she defines as “the daily practice of letting go of who we think we’ re supposed to be and embracing who we are.”  The book lays out a way for people to cultivate shame resilience and be more able to tolerate feelings of vulnerability allowing us to be more authentic in our lives.  Dr. Brown writes, “Mindfully practicing authenticity during our most soul searching struggles is how we invite grace, joy and gratitude into our lives.”

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Corrado Mora Interviews Gary Friedman

Read the full Article at Caucus Mediation, or below.

A deep sense of the relationships; an intense comprehension of the dynamics in conflict; and a sense of the mediation process, is how to find a real and stable solution. Gary Friedman’s practice developed an approach that makes the title of the book he wrote with Jack Himmelstein appear as a perfect general description: Challenging Conflict- Mediation through Understanding (American Bar Association, 2008). If the parties aren’t able to stay together in the same room, to talk to each other expressing needs and emotions, they won’t be able to share decisions to end their war. This is a tough job for the mediator, who will conduct the parties as a helmsman in the very deep, rough sea. Gary’s approach offers an important thought to consider when deciding whether to keep the parties together or not, and how. We met in Rome, where the sun was shining and scooters were passing quickly by. Perhaps, too quickly…

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Gary J. Friedman is the co-founder and director of The Center for Mediation in Law in Mill Valley, California.  He has practiced law since 1970, serving, since 1976, primarily as a mediator of commercial and family disputes with Mediation Law Offices in Mill Valley.  He has conducted introductory, intermediate and advanced training programs in mediation and mediative approaches to the practice of law throughout the United States since 1979, and in Europe since 1989.  Author of numerous publications on mediation, including A Guide to Divorce Mediation, Professor Friedman has taught negotiation and mediation at various law schools and continuing legal education programs throughout the United States including, more recently, through the Harvard Law School Program on Negotiation and through the World Intellectual Property Organization (WIPO) in Geneva.  He is the co- author of the recently published book entitled Challenging Conflict: Mediation through Understanding.

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Gary, your approach is intimately connected to “understanding”. What is the meaning of it, for you?

When I talk about “understanding”, it is in the context of conflict.  Generally people’s approach to conflict doesn’t include understanding.  If someone is in conflict with you they might think that you don’t understand their point of view and you probably never will. So logically they assume that what’s necessary to resolve this conflict is power, the power of coercion: They will try to manipulate you, pressure you, threaten you, whatever they can do to get you to come around to their way of thinking.  While this might work it most likely will evoke similar responses in you which then, of course, sustains the conflict.  When we go back and forth in this way, we’re caught in what we call the “conflict trap” they say “I’m right; you’re wrong” and you say “I’m right; you’re wrong”.  Perhaps a compromise is reached but rarely a solid solution.  So when I use the word “understanding” it signals there’s a whole other way to deal with conflict.  This understanding is not an assumption that we already understand each other, it is a commitment to understand ourselves, each other and the situation we’re in, in an effort to use the full power of understanding to bring a conflict to a real resolution. At the heart of mediation is the possibility that people can use the power of understanding to find solutions, not because they’re giving up or giving in or taking over, but by creating a deeper understanding of the whole situation. When I feel you want to understand me, and you feel that I want to understand you, we have a much better chance to really look at the problem and see what kind of solution might actually take into account the understanding we have both of ourselves, of each other and of what’s important to us. The “other” power of understanding is not just that we understand what each other says, but that we understand –underneath the conflict- what’s really important to us, what is it that we really care about and that has lead us to the conflict. Often my experience is that when people are in conflict they give thought to what’s important to them but get caught in their reaction to the other person. If they can hold what’s important to them instead of reacting to the other person they might help the other person to do that too, and so be released from the conflict trap.

In fostering understanding, you work to create a safe environment and to make the parties switch from, the fight of right against wrong, to a coexistence of different perspectives. What are the key elements in doing so?

You’re right when you say “a safe environment”, because it’s not easy for people to open to understanding the other when in conflict. They have to have an atmosphere where they know that there’s an agreement that they’re going to deal with conflict differently, that they’re going to use understanding, that they’re not going to give up or give in, and will look at the conflict from a different perspective. Usually, people in conflict think about the What, the content of the conflict as if that’s everything, but understanding the How of the conflict, the dynamic between the people in terms of how they talk and listen to each other while dealing with their conflict,  is essential to moving toward a resolution.  Without having some sense that the environment they’ve entered is different, safer, from where they’ve been, people are not willing to shift, to break out of a win or lose war. So, how do you create the safety?   First thing, there needs to be an agreement. People need to have an understanding about the How, they must discuss the question “Can we have an agreement about how we are working together?” With the presence of the mediator, a neutral, who doesn’t have a stake in either side ground rules can be agreed upon.   The agreement enables the parties to get to the heart of what is important for them,  what’s underlying the conflict.  If people could approach their conflict on a deeper level and this often means understanding not just what they’re thinking about the conflict but what they’re feeling about it, they can use that depth of understanding, to find something that can be expressed in the conversation to serve as an anchor for them and lead to a solution. That’s the challenge in a negotiation or in a mediation: to find this anchor, a common ground, and explore why it is of value to them. Then, maybe, they could reach solutions that they can find that are better for both of them.

What are the main difficulties in creating this environment and these agreements and in educating the parties to change their approach to conflict?

It just doesn’t come natural with anybody to think in this way. So the challenges are many: it means we need to reeducate ourselves about how we think about conflict. We all have patterns that we developed in childhood, where we’ve learned to fight or flee or become paralyzed when in the heat of conflict. These patterns are deep and strong and actually were functional in our families of origin. We need to recognize these patterns in ourselves or, if we are helping other people we need to assist them to see these patterns, and how they can get in the way of  our being able to make a real change. We need first to recognize them and then to really want to change them.   Expression is essential here:  people need to be willing to speak up, often people have the pattern of not speaking up at all or appearing to agree but in their hearts not agreeing, which inevitably leads to really bad agreements. So the challenges are for each person to really be able to speak up honestly, to have real understanding of their own concerns, and to be willing to take into account the other person not at the expenses of themselves, but as part of the larger picture. Those are all different things that come to bear. There’s always  different kinds of conflict and while it’s hard to say what the challenge is in all situations, these are the kind of things that often come up.  Of course, so many conflicts are about money: what we have to do often with money is to recognize that it’s symbolic and it’s never the end of the conversation, it’s the place that we need to pass through to find out what’s underneath and eventually return to. And that’s not a simple thing, that’s a big challenge for many people.

Your approach has a fundamental principle: to work together with the parties. So you will stay for the entire mediation with both the parties in the same room. It’s sometimes very challenging because you’ll have to face many  feelings of emotion. How do you feel and how do you prepare when you’re approaching mediation?

This is one of our core ideas: having people share decision making power. Obviously, there’s a real sharing and real understanding of the conflict if people are together in the same room. It only makes sense: if they’re going to be making decisions together, they must have a chance to really hear and see the other person and also be able to show the other person how they see it. The more traditional way of thinking about this is the caucus method, where people are in separate rooms and the mediator goes back and forth and does the work for them. The problem with caucusing is that when mediators go back and forth, they often take more responsibility and power for the result than the people themselves. So I feel excited about the possibility of what can happen when two people who really disagree come to some kind of real understanding of each other. I always have great hopes and always feel challenged. I believe I should not use my experience, understanding or whatever wisdom I might have, to try to decide or influence what the solution should be for people.  I don’t know what’s the answer to their problem. I do know that I want to help them. I do know that I’m willing to use everything that I have at my disposal to try to help them find their way through this.  At a very deep level, I really believe that it is up to them to resolve their problem.  If I can help them create the means to find the best possible resolution I will feel like I’ve done my job well.  It is not enough to work through strong emotions to be nice. We must do something that’s real; it’s about dealing with each other with integrity.

A fundamental approach you use is to search for interconnections between people. In the book you wrote with Jack Himmelstein, you introduced interconnection, and how people can deal with each other, in a very interesting and profound way. You pointed out how useful it is to search for interconnections during mediation, as it could create common grounds on which to work. How do you search for interconnections?

It’s really an interesting question, because most of us think we’re by ourselves, that we’re autonomous. Yes, it is important to learn that we’re individuals with our own ideas and our own sense of self as part of the growing up process. What is true is that while we are ourselves we’re interconnected to one and other, dependent upon each other to exist: we share the same planet, the same air, water, money, we’re bound up in each other’s lives. We see right now what’s happening with the banks in Europe: it affected us in the United States, and that affects what’s happening in China.  When a nuclear reactor melts down in Japan we feel it everywhere.  The world is getting smaller as the dependencies increase.  Our survival depends on our learning to live together.  But there’s another reality: what goes around comes around, so today we’re up and we think we don’t need the other person, tomorrow we’re down and we need them. In business, in communities, in families, in mediations.  There are many different levels on which these connections exist, both material and spiritual. I think we are far less separate than we think.    We touch each other.  We are connected.

Gary, how do you help the parties to explore these interconnections during a mediation?

You know, it’s funny. Even if people only met at an intersection –that’s the only connection they’ve had in their lives- there’s some kind of relationship. Yesterday I almost got hit by a scooter. I was crossing the road, I was in the crossroad and this guy just missed me, and when he passed by I yelled, I was really angry, scared, and he stopped his scooter and he turned around, and he looked at me and I could see that he was sorry. One split second difference and it would have been a serious thing. For that moment he and I were connected. Sometimes in mediations people say “there’s no relationship between us”, but there is. There has been, that’s how they got into trouble and there’s one now. Whether we are going to see each other again in the future or not, we’ve had a relationship, we have a relationship, we may have a relationship in the future. We can bring that reality into the conversation with people and help them acknowledge that, recognize the truth of that, and honor it.

How do you think a mediator should constantly prepare him or herself for his or her work?

That’s really a great question. The most important thing as a mediator is to understand yourself and to be able to access what’s happening inside you when you’re in the presence of people who are in conflict, and to be able to use that to draw the pathway for the others. What happens, as mediators, is that we often sit together with people and we say to ourselves “Oh, that person is right, that person is wrong, we like that person, we don’t like that person”, and then we say “On, no, I’m neutral”. I pay attention to the feelings that I have inside. The central quality for the mediator is to be able to take the internal reactions we have to people and to be able to use them to understand what they are about, understand ourselves – this is the last part of the “understanding” in our model of mediation – and to be able to turn that in a way where we find ourselves closer to the people we don’t like. Usually, when we have a bad feeling, we don’t like someone, we are angry with someone or we’re upset by him or her, then we lose patience and want to push them away. They feel it. We can’t pretend it’s not there. But we can work with that feeling to understand what it was that generated the negative reaction when we met that person.  It’s turning anger and bad feelings into curiosity. We can take the differences we have with other people, which often threaten us, and say to ourselves: “Let’s explore these differences. Let’s see if I can understand you, we both can still exist”. It’s not a question about whether one of us has the right to be on this planet and the other doesn’t. It’s about how can I become curious about you, to really understand you, who you are and why it is what you do. This is really the central challenge for mediators. We are writing a book about it, it’s called Inside Out: How to help others in conflict. It’s about how to really do this shift, because it’s easy to say, and really hard to do.

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October- Notes from Norman

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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The End Game – Tip #1

We have been specifically studying the end game of the conflict resolution process for a number of years and have come to recognize that there is a lot more to it than many conflict professionals think.  Some people feel that if you can just get the parties to have effective communication with each other, the problem will be solved.  Or if we are able to brainstorm successfully, the solution will emerge.  Yet however far we go in helping the parties work effectively together, it’s important not to obscure the fact that this is a negotiation where there will be tension in the distribution issues no matter how creatively we can expand the pie.  In this series, we will be offering a number of tips which we think you might find useful at the end of a mediation, negotiation, or collaboration.

Tip #1 – Normalize Differences

Parties often have a tendency in the end game to either exaggerate or minimize differences.    When exaggerating the differences, people often feel hopeless.  When minimizing the differences, they will often overlook something that will come back to haunt them later and they end up with an agreement that is unworkable or unrealistic or will ultimately be disappointed to learn that they have no agreement at all.

The challenge for the professionals is to help the parties frame the differences in a way that accurately describes exactly where they are and affirms such differences as a normal part of the process.  Once we have an accurate grasp of the differences, we not only have a better chance for finding a solution, but a better chance of finding a solution that will actually fit the parties.

Sometimes there is collusion between the professionals and the parties, perhaps for different reasons, to skew their view of what remains to be decided or worked through.  This is when identifying the conflict patterns can help us see how those patterns might be interfering with clarity about the problem.  Are differences being minimized in order to avoid conflict?  Are differences being exaggerated or distorted in a competitive pattern?  Understanding the patterns both of the parties and the professionals allows us to approach differences with a fresh viewpoint.   One caveat, however, is that identifying conflict patterns too readily and getting stuck seeing people through that lens, can pigeon-hole them and also impede progress.

Our tip is when people disagree, even if they have made great progress, to recognize that this is inevitable and a sign of progress rather than an indication that they won’t be able to solve the problem.  By feeling that and indicating your confidence to the parties that those differences represent the moment in time where they are, we can help them to recognize they are not stuck but are actually ready to move forward.

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October Book of the Month

Divorce Without Court – A Guide to Mediation and Collaborative Divorce

by Katherine Stoner.

This Nolo Press book is a great resource book for clients, helping parties to understand how they can fully participate in the process at every step of the way, with clear and straightforward descriptions, summaries and checklists.  Kathy has been a proponent of and participant in the creation of the understanding based model and this book is an excellent foundation for parties working in this model.

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Attribution Error

We have found that there is a recurring dynamic which often exacerbates conflict between individuals.   If this dynamic is understood by the parties, it can help them understand better what is fueling the conflict and make appropriate adjustments.  Commonly referred to as the “attribution error” by social psychologists, a simple way to explain this is that we judge ourselves by our intentions and judge others by the impact of their actions on us.  If we are hurt or offended by something another person has said or done, we often assume that he or she meant to hurt us.  However, if another person is hurt by something we say or do, even though we were not intending to hurt them, we absolve ourselves of any blame because our intentions were pure.  And we don’t understand why the other person doesn’t believe that our intentions were honorable.  Because we know that our intentions are beyond reproach, we have the tendency to feel that we have the moral high ground.

For example, imagine neighbors in a dispute about whether the gate to their joint access road should be kept open or closed.  One neighbor wanted it open because he had kids in the car and it was frustrating to jump out, open it, drive through, and close it again with cranky children.  The other wanted to keep the deer from her garden and viewed it as a minor but necessary inconvenience to deal with the gate.  Both believed the other person had unreasonable needs and expectations.   The gate dispute was the beginning of a conflict that ultimately escalated into an increasingly acrimonious and escalating series of misunderstandings, during which each party ended up demonizing the other, and ultimately resulted in a lawsuit about the property line.  Once people start to make the error of attribution, it often provides the lens by which they see all the actions of the person and the conflict can escalate.

As conflict professionals, we can help by first drawing attention to this dynamic and getting agreement to talk about our observations.  After describing the dynamic to the parties as applied specifically in their situation, we can see whether this fits the parties’ experience.  The awareness of their dynamic can increase their understanding of their dilemma and may allow them to make a shift.  While pointing this dynamic out to the parties doesn’t solve the conflict, it can often reduce the acrimony that they feel when imputing false intentions to each other and allow them to see the other’s actions and their own in a different light.  It’s then easier to be able to work more directly and more collaboratively on solving the problem because this new understanding can be used to build trust.  Once the parties recognize how this dynamic can be interfering with their ability to work together, both the mediator and parties can be more attentive to how this and other polarizing dynamics can taint the collaborative atmosphere.

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September- Notes from Norman

Zen Mind Training:  59 Slogans for Generating Altruism

By Norman Fischer

Working manuscript

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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How is Collaborative Advocacy Different?

How is Collaborative Advocacy Different?

When Stu Webb wrote in a letter to his friend and colleague, Judge A. M. (“Sandy”) Keith, on February 14, 1990 , . . . “I have unilaterally declared that I will not go to court in an adversarial matter,” Stu meant, of course, two things: he would not go to court and he would not act in an adversarial manner. The next twenty-one years has been a journey of what the collaborative advocate will do.

Legal training can confound the notion of being an effective advocate with being adversarial. Yet the two concepts are quite different.  Collaborative advocacy requires a shift in how we listen to all sides of a conflict regardless of what “side” we are on and in how we communicate our thoughts and responses.  Collaborative advocacy should allow us to support the parties to work toward appropriate problem-solving discussions that address the situation presented while working through the conflict on all levels.

The Merriam Webster dictionary defines “adversary” as “one that contends with, opposes, or resists: enemy.”  Merriam Webster’s best Collaborative definition of “advocate” is “one that supports or promotes the interests of another.”  Collaborative professionals must reject the notion that supporting the interests of one person means resisting or arguing against the interests of the other.  Rather, as Collaborative professionals, we must support the interests of our own clients while discovering the interests of the other so that we can be fully engaged in exploring options that might work for all parties. Effectively giving voice to the needs of our clients while hearing what is important to the other party is one of the cornerstones of what makes our work Collaborative.  Maintaining a primary focus on our own client’s needs while working together and really wanting to insure that both parties’ interests are articulated and addressed is what makes Collaborative work really different.

One of the most important steps toward Collaboratively advocacy is to try—really to listen with genuine curiosity—to understand what is important to all parties.  Listening in this way with the intent to really understand what is important to all parties, including the other side, means we are listening without forming an argument in opposition.  It means being open to hearing an opposing point of view and accepting it for what it is without resisting or conceding.  Looping is one technique to achieve effective empathetic listening.  Looping is more than just a technique however. In order to be effective it must be done with true intent to understand the deeper meaning the speaker conveys and not just be a performance.

How can empathetic listening be a part of advocacy—Collaborative or otherwise?  Habit 5 of Stephen Covey’s 7 Habits of Highly Effective People, is “seek first to understand, then to be understood.”  Covey is suggesting that empathetic listening allows us to be most effective, not just more sympathetic.  One reason is that people tend to see those with whom we disagree as enemies.  If we allow Collaborative dialogue to stay at the level of hostile negotiations, we risk losing the full participation of all parties.  Emotionally, it is hard to bring one’s best self to a discussion when there is a risk of attack.  When all parties feel valued, respected and heard, they are able to be more open to the concerns of others and ideas that come from all sides.

Collaborative advocacy means supporting my client to express her needs, concerns and priorities fully in the Collaborative process while holding myself fully open to hearing and accepting the needs, concerns and priorities of the other party/ies before trying to help solve the problems their situation presents.  In addition to listening to all parties, as an effective Collaborative advocate I need to find ways to express myself that do not devalue another person’s expression of need or concern.  Specifically, it is important to express my views and the views of my client when necessary clearly and directly without being strategic.  This is a challenging task especially as we start to reach the end game in a particular case.  It is crucial that we have internal awareness of our own attitudes that might support, or impede, effective communication. It is useful to be honest and transparent about our thoughts and to address difficulties in communication as they come up rather than allow them to complicate the discussions.

So to continue from what Stu wrote twenty-one years ago, I like to say to my collaborative counterparts today:  “Let’s advocate together.”

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September Book of the Month

Book on CD: Taking the War Out of Our Words
—Unabridged Version, includes 12 CDs, read by the author

By Sharon Strand Ellison

This month’s recommended book is actually a CD—actually a book read by the author Sharon Strand Ellison.   This work contains some useful ideas and techniques about communication.  As conflict resolution professionals, we deal in a world often filled with long-standing misunderstanding and anticipated betrayal and hurt.  Sharon’s work on powerful non-defensive communication can help us find ways to defuse the tensions and communicate much more effectively.  Sharon’s model stresses respect and transparency and gives people the power to communicate effectively without engaging in power struggle.   Her method for asking questions alone is simple and yet effective especially for asking questions on difficult topics.

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Looping Tip #5 – How do you loop someone who is very quiet?

How do you loop someone who is very quiet?

The short answer is “with sensitivity and care.”

Looping (the loop of understanding) is seeking to understand the other and confirm that the other has, in fact, felt understood. That implicitly assumes that the other does indeed wish to be understood. The very quiet person may wish to be understood and simply have difficulty expressing him/herself.  Or she/he may not wish to be understood, at least at that moment.  So looping the quiet person may best start with an inquiry.  (Indeed all looping is an inquiry – “this is what I understand you to be expressing.  Do I have it right?”)  In other words, looping is based on the premise that I would like to see if I understand what you may be seeking to express if that is OK with you.  (Like everything else in mediation, it means “proceeding by agreement” — one of our core principles.)

With the quiet person, it can be important to make that premise explicit. We can seek to see if the party is willing to express himself and what support he might need in doing so.

“I want to try to understand what is important to you here, and I would like to see if that is OK to explore this with you.  As you often seem fairly quiet, I do not know whether you generally express yourself in this way (quietly), whether you find it difficult to express yourself here, or whether you would prefer not to do so, at least at this time. Are you willing to say if any of those are true for you or whether there may be another reason?”

In other words, we are “looping the dynamic” that may flow from the nature of the party’s quietness. It may be that the quiet party might also have a concern about how the other party might respond (getting upset or angry) which may need to be explored with one or both parties (if they are willing to do so), and an agreement reached how to proceed (which will need to be monitored if there is a willingness by both parties to proceed).

Assuming that the quiet party indicates a willingness to express herself, and agrees she wishes to do so, we can then have that dialogue about the substance of what the party might wish to express (perhaps with difficulty and/or hesitation). Of course, we will need continually to check whether the effort to understand (and be understood) is going well and whether we are correctly understanding what the party seeks to express.  And we will do well to continue to be mindful of the dynamic surrounding the party’s effort to express himself.  For example, asking of the party, and of oneself, “Is this alright that we continue in this way?”

Read more about The Loop of Understanding, and see all tips

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Support and Development Groups

We conduct monthly Support and Development supervision groups in New York and Northern California.  In these small groups, participants have the opportunity to present cases they are working on for the group to explore the challenges that arise for conflict professionals.  The groups are open to participants who have completed our Mediation Intensive Training and desire ongoing support in integrating our Understanding-Based approach into their work.  A new group in the San Francisco Bay Area will be starting on September 13.

New York Support and Development Groups will be occurring on an ongoing basis. For more information please contact: [email protected].

Support and Development Groups
The Center offers Support and Development groups for those professionals seeking to further pursue the ideals and skills learned during their participation in one of our Mediation Intensive Trainings. These advanced trainings in mediation and collaborative practice bring together small groups of persons who are seeking to integrate the Understanding-Based approach to working with conflict into their ongoing professional practices – whether in mediation, collaborative practice, traditional law practice, or other professional expressions of this work in both commercial and family disputes.

Each group will meet one evening per month from September through January (with limited space available). These advanced trainings will be facilitated by Jack Himmelstein and/or Katherine Miller. There will be three Support and Development groups in Manhattan.

Focus and Format: The focus of the groups is on integrating the Understanding-Based model into participants’ work or intended work with conflict resolution in a manner that is authentic to the individual professionals. In particular, we seek to understand how we can work effectively with the subjective inner dynamic that underlies, and often fuels, conflict at an objective level. This subjective dimension includes emotions and attitudes as well as motivations and aspirations that the parties have about themselves and each other, their particular conflict, conflict itself and its resolution. This inner dimension is also at work in each of us as professionals and between us and the parties.

At each session, one participant (or possibly pair of participants in the collaborative law setting) presents a case or possibly other aspect of their work, including the challenges of beginning and developing one’s practice. This format has worked extremely well with the presenter(s) sending out a written summary in advance and the specific issue/concern that s/he wants to discuss. We examine not only what is of significance for that participant but also what issues are raised for the others of us as well. CLE credit is provided.

For more information about California Support and Development, click here.

For more information about New York Support and Development, click here.

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August Book of the Month

Buddha’s Brain: The Practical Neuroscience of Happiness, Love and Wisdom

by Rick Hanson, Ph.D. with Richard Mendius, MD

This book examines the intersection of psychology, neurology, and contemplative practice to help us understand how our brains affect our mental states of happiness, love and wisdom.  Our ability to be aware of our inner state impacts our effectiveness as professionals working with people in conflict.  This book educates us about the science underlying our inner functioning and the practices that will help us to work with our inner world for the benefit of ourselves and others.

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Denying Difficulty

Denying difficulty, we never learn that difficulty can be creative and fruitful. This national habit of denial of difficulty does not foster a climate in which maturity can grow. It encourages us all to be children for our whole lives, to be self-deceitful and surface-oriented, skimming along on the slick bubble of the dream, which is terribly fragile exactly because it leaves out the realistic acceptance of life’s often drastic actualities.  It is no wonder that there is so much suffering in our culture, despite our wealth and power.  So many of us seem not to know how to face life as it really is.  And therefore we find it very difficult to grow up.

That’s the downside of the American dream, and it is a very serious one. But the American dream is also wonderful. The dream keeps us innocent, flexible, and energetic, qualities that have produced our immense national success. Because of the dream, we believe that freedom, democracy, and fair-mindedness are always possible, and we are willing to sacrifice to protect them. Because of the dream, we are inspired by wild and immense spaces untouched by human hands, and we want to preserve such spaces—our forests, mountains, and skies. This hopeful, energetic, almost naive American spirit provides a wonderful basis for a marvelous and open sort of maturity, which is the potential we have. But we haven’t realized it yet.

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Looping Tip # 4 – How to Loop When Someone is Aggressive or Domineering

When faced with the challenge of looping someone who is aggressive, domineering, or blaming the other person, it can be very daunting.  We particularly don’t want to loop the blame as blame.  Our suggestion is that we reframe the blame in a way to hold the speaker accountable for their own experience.  For example, “So from your perspective, the impact on you of what the other person did was frustration.”  We are trying to refocus them on looking at and expressing their own experience.  When looping the person in this way, one approach can be to meet them energetically so that they feel that you have captured the way that they feel, not just with the words you use to loop but also your means of expression.  We can reframe their expression as something that may be able to be heard better by the other person while showing the speaker that they can be passionate about something without expressing it aggressively and thus provide a path for expressing their strong feelings.   Because people who are aggressive, domineering or blaming may trigger a reaction in us, it is important to be aware of our reaction but not loop while caught in that reaction.  If we can be aware of our reaction and maintain our own composure with a full acceptance of the speaker as a person, we can more effectively loop the speaker.  Sometimes, a looper who can calmly loop the aggressive speaker while capturing the essence of their communication helps the speaker to regain his or her composure.

Read more about The Loop of Understanding, and see all tips

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The Differences Between Mediation and Collaborative Practice

What is the difference between mediation and Collaborative Practice?  This question is often asked by a person trying to choose which process might work better for their situation.  Currently, the question is more likely being asked by someone facing divorce or separation or the end of a domestic partnership, areas in which the use of Collaborative Practice is well established.   However, the use of Collaborative Practice is expanding to estate planning and probate, commercial, employment and other areas of civil practice, so the ability to explain the difference between the processes to potential clients is important for professionals in many practice areas.

Mediation is a voluntary process in which the parties make decisions together based on their understanding of their own views, each other’s views, and the reality they face.  Is Collaborative Practice any different?  The intent is the same and the differences can be subtle.

Typically, a matrimonial mediation does not have lawyers present in the room.   This works well for people who feel that they truly know their own mind and situation and with the help of the mediator, are comfortable speaking for themselves.  They may not need the presence or support of additional professionals to reach an agreement.  They often choose mediation in order to have a more direct influence and control over the process and the outcome.

When lawyers are present in the mediation room, they may be advocating for their clients’ positions within the context of the mediation, but may also be planning for the possibility of litigation.  For some clients, it can provide a sense of comfort and continuity to know that they have continued representation by someone prepared to protect them until a final resolution, whether in mediation or litigation.  This sense of safety will then allow them to participate more fully in the mediation process.

The mediator’s role, with or without lawyers present, is to manage the process, meaning the mediator is responsible to make sure both parties are heard and understood and that enough information about the parties’ situation and the law is presented for informed decisions to be made by both parties.  The mediator facilitates a conversation between the parties and also makes sure that conversation is held from a place of understanding and reasonable equality of influence.  For some clients, feeling “heard” by a neutral third party is a key step in being ready to reach an agreement and the mediator can provide this function as well.

Collaborative Practice is also a voluntary process, but one in which lawyers are present as allies for the parties and will not be involved in litigation.  In Collaborative discussions, lawyers are not aligned with their clients’ positions.  They seek to understand not only the view of their own client but also the perspective of the other party or parties.  There are often mental health and financial professionals who work together with the lawyers to form a collaborative team that attends to the emotional, financial and legal aspects of the parties’ situation.  The collaborative team is jointly responsible for managing the process for the benefit of all parties.  The singular focus of all of the professionals and the parties on settlement while in the Collaborative Process often changes the quality and content of the discussions so that people feel freer to talk about what is happening on many levels and on what really matters to the parties, which can lead to a more satisfying resolution.

People who feel they need more support in the process often choose Collaborative Practice.  There may be an imbalance of power or dynamics or challenges in communication which will benefit from the assistance of mental health professionals.  Or there may be an imbalance in information, or a perceived or actual lack of sophistication with financial concepts, that can be addressed with the help of financial professionals.  The collaborative team can help the parties determine what resources and professionals will be most useful for them.

How do the parties choose the process?  There is no one process that is the right answer for everyone.  The right process is the one that meets the needs for each individual situation, matching the parties to the mix of professionals and process that works for them.

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July Book of the Month

Book of the Month:


Being Wrong
By Kathryn Schulz

This is a groundbreaking book that deeply analyzes the whole phenomenon of being wrong in a very serious way, from a new field called “Wrongology”.  This is so fundamental to how people deal with conflict that the more we understand about this phenomenon, the better able we will be able to be to release ourselves and others from the grip of blame.  Schulz makes the powerful point of how our openness to being wrong is an indispensable part of our growth.

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July Reflections from Norman

Still, no matter how well we know ourselves and how much we achieve a steadiness of character, we are never immune to mistakes. With self-acceptance we know this, and we try to make use of our mistakes, learning from them as best we can. Over time we see how often our worst mistakes and most ignominious failures have turned out to be our greatest teachers. Some of our greatest disasters turn out to have powerfully positive consequences for our lives, even though it may take a long time for us to recognize it. Given all of this, we become less worried about making mistakes, although we are regretful when we make them, especially when others are hurt in the process. Zen Master Dogen famously referred to his long life of spiritual endeavor as “one continuous mistake.”

Sometimes our mistakes can be helpful to others: if we show that there can be dignity in making mistakes, others can learn from us that they don’t have to live in constant fear of error. Many times in my life I have witnessed mistakes that my teachers made—being headstrong or stubborn, being angry when it was inappropriate, being nervous when I wanted them to be clearheaded and cool. Sometimes they said or did things impulsively, or even deliberately, that they shouldn’t have said or done. Most of the time I appreciated these mistakes, for they made me see my teacher’s humanness and vulnerability. Far from seeing the mistake-making as a flaw that lowered the estimation of my teacher in my eyes, I saw it as a wonderful badge of his or her humanity, which helped me to accept my own imperfection more easily.

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Tensions in a Team

Whether we are mediating or working in the collaborative process, we are often in relationships with other professionals, either directly or indirectly.  The success of the process will often depend to some extent on our ability to successfully manage the various tensions that can arise between professionals.  When we understand that these tensions are inevitable, natural and usually very much a result of the difference in our functions and orientations, we have a much better chance of bridging the gaps that exist in our understandings.   Rather than simply working to try to eliminate the tensions, if we can understand the source of the tensions, that understanding will often point to the direction of solving the substantive problems between the parties and understanding the dynamics between the parties.  Isomorphism is a term for the tendency of a system to replicate another system, which can arise in our cases.  If we can recognize and understand how the system that is developing between the professionals is mirroring some aspects of the parties’ interactive system, this can help us to better understand the parties’ system.

These issues are often difficult and subtle to get a handle on, between us and the other people we are working with as well as within ourselves.  We must be able to observe our inner responses to the parties and to the other professionals as well as what is happening on the outside in our relationships.  As always, we strongly believe that the key to being able to really help people in conflict is to use the power of understanding.  There are times when the need to deal with inter-professional relationships will be critical and other times when it is not so important.   At every stage, we can watch out for conspiring unwittingly with other professionals to pretend that our perspectives are either more similar or more different than they might really feel to us.  It can be as much a problem when we collude with the other professionals to ignore our differences as when we overemphasize them out of the tension we feel.

A source of at least some of the tensions between professionals can be the role they are playing, including whether they are there on one side or acting as a neutral, and the kinds of relationships they have established or failed to establish with the clients.  It is helpful to recognize that in these situations, we often need to pay attention to the weakest link for the whole process not to come unraveled.  Viewing this as a team challenge rather than a problem with one member can lead to a more comprehensive approach to addressing the concern.

In mediation, particularly when we might not have direct contact with the professionals, these tensions can also exist with a “shadow team” such as when we feel that a lawyer or other professional is sabotaging the progress of the mediation or giving incompetent advice, but we end up dealing with them through the clients.  Depending on the clients to be the conveyers of the information between the professionals runs the danger of increasing the misunderstanding between us and it may be necessary for the communication between the professionals to be more direct, while taking care not to leave the clients out of the loop.

The goal here is to create relationships with the other professionals that neither exaggerate nor minimize our differences.  Concretely, this means that a professional needs to be able to see these dynamics in the roles and relationships and have the courage to be the first to speak up, which means risking putting our professional relationships at risk and jeopardizing what otherwise may appear to be a well functioning team. If we can have agreements with the other professionals about including this dimension as part of our dialogues, this can enhance our ability to work effectively and enhance our relationships.

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Looping Tip #3 – Looping the Speaker’s Emotions and Non-Verbal Communication

When people speak, paying attention to the words they use to communicate is only a part of understanding what they are trying to express.  Various studies have found that nonverbal cues comprise 80-93% of what is communicated.  So when we loop, if we loop only the words that people are using, people will often not feel very well understood.  Looping their feelings may require us to use our own feelings to pick up what the speaker is trying to express.  One way to loop the feeling is to name it.  Sometimes, the most effective way is to feel and show the feeling as we loop back the content of what was said.  Because looping has a self correcting mechanism, if we are wrong in guessing what the feeling is, we’re still likely to reach a greater understanding since we are pointing to the emotional level and the correction will hopefully be at that level.  So as long as you don’t decide you are right, don’t be afraid to take a chance to loop the feeling.

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Gary Friedman to teach Workshop for Mediators in Intellectual Property Disputes

The WIPO Workshop for Mediators in Intellectual Property Disputes is an intensive two-day training course in the techniques of mediation, emphasizing effective communication and increased understanding. The Workshop is based on lectures and simulated mediation exercises in the intellectual property field. Participants take active part in the exercises, which are carried out in small groups.

Participants will be expected to have a basic understanding of intellectual property in general and mediation in particular. In this connection, reading material will be provided to registered participants ahead of the program. Proficiency in English is essential for participation.

The Workshop is designed for lawyers, business executives, patent and trademark attorneys and others wishing to familiarize themselves with the mediation process and to receive training as mediators. It provides an introduction to mediation in the intellectual property area, with focus on the appropriate role(s) of both parties and their lawyers in a mediation and on specific mediation techniques.

WIPO
“Based in Geneva, Switzerland, the WIPO Arbitration and Mediation Center was established in 1994 to offer Alternative Dispute Resolution (ADR) options, in particular arbitration and mediation, for the resolution of international commercial disputes between private parties. Developed by leading experts in cross-border dispute settlement, the procedures offered by the Center are widely recognized as particularly appropriate for technology, entertainment and other disputes involving intellectual property.”

The workshop will take place in Geneva May 30th and 31st.

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The Loop of Understanding – Tip #2

One of loopers’ biggest challenges is to loop people whose tendency is to speak for long periods of time.  Our normal tendency when people do this is to be polite and not interrupt them.  We think that this is not so helpful to the speaker or the looper since the looper will reach a point where they may forget some of the important parts of what the client has communicated and the client will be unclear whether or not they have been understood.  And the speaker might feel lost in the complexities and detours that might have occurred in their own expression.  So we have to overcome our natural reluctance to interrupt.  Our attitude in doing this is critical.  If our attitude is to shut down the speaker, then that is what will be communicated.  But if the effort is to understand, then the interruption in the service of understanding will be more acceptable.  So our tip is to pick a moment when it seems appropriate and say something like, “Excuse me, but I just want to be sure I understand what you have been saying so far.”  And then loop.

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June Book recommendation

Mediating Dangerously:  The Frontiers of Conflict Resolution

By Ken Cloke

Ken Cloke understands what we think is at the heart of mediation, which is that there is no safe place for the parties or mediator to stand.  When we withdraw to try to find safety, we are deceiving ourselves and letting down the parties.  His book gives you a sense of how to work within ourselves to help others.

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Reflection from Norman- June 2011

One very effective way to practice with frustration is to make a detailed study of it just at the moment when you find yourself in its grip. Trying not to be frustrated when you are is just piling more frustration on top of your frustration. So why not instead look at it close up? When you do, you will notice that when frustration arises, the first thing you naturally do is look for someone or something to blame—even if that someone is yourself. But as soon as you do that, you are actually increasing your frustration, because you are leaping over your actual experience of frustration—futilely trying to avoid it, in effect—by focusing your energies on the object of your blame. The pile of frustration is always too high, however, to leap over. You only fall back in, over and over again.

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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The Value of Participation by Lawyers in the Mediation Process

Historically, many mediators have felt that lawyers’ presence in mediation would be disruptive and distort the process and outcome.   As lawyers have learned to support their clients in mediation as the primary decision makers, they have also learned a number of skills to enhance the effectiveness of their clients’ participation in mediation.  Our view is that if lawyers are suitably brought into the process, their participation adds great value in the following ways.

The lawyers’ ability to protect their clients provides their clients with some of the benefits that the clients would have in negotiations conducted through lawyers without the clients losing control over the decision making process.  Lawyers can prevent their clients from reaching agreements that they would later regret by ensuring they fully understand the agreement, its consequences and how it meets their needs.    Lawyers can also help their clients identify their interests and use those as anchors for the negotiation process rather than taking rigid positions.  They can help counteract any tendency of clients to be over-accommodating.  Lawyers’ support of their clients can allow clients to actually be more open than they would be without the security of having their protectors in the room.

In addition, having both lawyers in the room can clarify the law for each of the clients, particularly when the lawyers are willing to talk about both the strengths and risks that their clients face in going to court.  This provides clients with an unusual opportunity  to understand the law without going to court because they receive a full picture of the law from each lawyer rather than only hearing about the law from their own lawyer, which may have been presented in a light most advantageous to the client.

Lawyers can also participate in the mediation process in a way that will be useful for those particular clients.  Lawyers often know the best methods and resources for gathering the necessary and accurate information so that the clients are in a position to make decisions based on full understanding of the situation.   Lawyers are particularly skilled in thinking creatively about possible solutions, and if properly channeled not to usurp the client’s role, can bring that expertise into the room to expand the range of opportunities that might be best for both parties rather than thinking in a more legally restrictive way.   Lawyers can also provide a reality check to ensure that a tentative agreement can actually be effectively implemented, including anticipating problems that could come up down the road and addressing those as part of the agreement.  In addition, as lawyers have evolved to be more attuned to the emotional and communication dimensions of the process, they can help their clients cope with their emotional reactions and communicate effectively during the meetings.

On occasion, having consulting lawyers outside the mediation room can become problematic if the lawyers do not support the process or if the differences in their advice to their respective clients create confusion or distrust.  In those instances, it may be important to have the lawyers come into the mediation meeting so that the issues can be dealt with head on rather than having the lawyers undercut the process outside the room and not be able to deal with it directly.

As mediation has evolved, lawyers’ sophistication and understanding of mediation has increased.  If we can meet the challenge of reducing adversariness, lawyers’ participation in mediation can result in a more satisfying process and outcome.

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May Book Recommendation

Sailing Home: Using the Wisdom of the Odyssey to Navigate Life’s Perils and Pitfalls (from Simon and Schuster, June 2008)


This is a wonderful book to help us to understand ourselves more deeply, particularly with respect to the arc of the journey of our lifetime, using the myth of the Odyssey as a metaphor, Norman brings home the archetype of the challenges and conflicts we all face going through life.

Find out more here.

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Reflections from Norman

Norman Fischer is a poet, author, Zen Buddhist priest and former abbot of the San Francisco Zen Center. As founder of the Everyday Zen Foundation, his work with meditation practice has taken him into many corners of contemporary American life, including lawyering as a spiritual path.  Norman has worked with the Center for Understanding in Conflict on inquiries that focus on bringing the calmness and insight of meditation practice directly into conflict situations.


I have learned from working with my colleagues at the Center that conflict is not the exception in human relations – it is the rule.  Its roots are deep, common, and various, and not easy to deal with, and there is no substitute for simply wading out into the deep waters of conflict with honestly, fierceness, and a willingness to plunge into the depth of human feeling when necessary.    Regardless of how calm good and nice we think we have become, as long as we and others have desires and needs, we will clash, and if we don’t expect this and learn how to deal with it, we will either have to live in some sequestered self-protective way, or be embroiled in stressful controversy much of the time.

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How professionals collaborate with parties to design the process

Several steps are necessary for professionals to engage the parties as co-designers of the process, whether it is mediation or collaborative practice or some other process for addressing a conflict.  First, professionals need to see themselves in a horizontal relationship with parties rather than in a vertical relationship.  Second, professionals need to understand the value of the parties participating, because the parties will be more invested in process and the process will be more responsive to the ways in which parties are more comfortable working together.  The result will then be more likely to come from the parties and emerge from the design.

This requires the professionals to respect the primacy of the parties as decision makers.  The professionals must be able to support the parties and follow the parties’ instincts about the process that avoids the minefields of the parties’ previous interactions, which the parties understand can stop them in their tracks.  The parties are the experts on their dynamics and the content of their problem.

The professionals’ participation is to use their experience and expertise to help the parties think clearly about a path that will lead from a problem to a solution.  They can suggest a variety of possible process options the parties can choose from that might work for them.  For example, it is often assumed that any outside experts should be neutral.  But it could be that where one party has a lot of financial expertise, the process might work better if the expert is called in to help one of the parties rather than being a neutral.

There can also be productive tension between professionals and parties in designing the process that can be worked through if the professionals are willing to both assert their view but at the same time support the parties as the decision makers.   The professional must be able to communicate their expertise so that the party appreciates the value of their expertise, particularly with respect to consequences that the professional is aware of but the party might not yet understand.

Finally, it is just as important for the professional not to yield their wisdom to party for the sake of supporting the party as it is for the party not to yield their understanding of themselves or relations because of the professional’s expertise.  For example, it could be that a trusted family business accountant could provide the parties with sufficient credibility for both to choose the accountant as the small business evaluator, but it is also critical that the parties understand the pitfalls and dangers of using a professional that might have a future relationship with one of the parties.  The professional could feel the pressure to go along with the parties’ desire to use someone they trust.  The parties could feel the pressure to go along with a more complicated process by an expert they don’t know.  Working through differences such as these is essential for the successful design of a process.

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NY-Support and Development Groups for Mediators and Collaborative Practitioners

Support and Development Groups will be occurring on an ongoing basis. For more information please contact:  [email protected].

Support and Development Groups
The Center offers Support and Development groups for those professionals seeking to further pursue the ideals and skills learned during their participation in one of our Mediation Intensive Trainings.  These advanced trainings in mediation and collaborative practice bring together small groups of persons who are seeking to integrate the Understanding-Based approach to working with conflict into their ongoing professional practices – whether in mediation, collaborative practice, traditional law practice, or other professional expressions of this work in both commercial and family disputes.
Each group will meet one evening per month from September through January (with limited space available).  These advanced trainings will be facilitated by Jack Himmelstein and/or Katherine Miller.  There will be three Support and Development groups in Manhattan and possibly a fourth that will take place in Westchester.

Focus and Format: The focus of the groups is on integrating the Understanding-Based model into participants’ work or intended work with conflict resolution in a manner that is authentic to the individual professionals. In particular, we seek to understand how we can work effectively with the subjective inner dynamic that underlies, and often fuels, conflict at an objective level. This subjective dimension includes emotions and attitudes as well as motivations and aspirations that the parties have about themselves and each other, their particular conflict, conflict itself and its resolution. This inner dimension is also at work in each of us as professionals and between us and the parties.

At each session, one participant (or possibly pair of participants in the collaborative law setting) presents a case or possibly other aspect of their work, including the challenges of beginning and developing one’s practice. This format has worked extremely well with the presenter(s) sending out a written summary in advance and the specific issue/concern that s/he wants to discuss.  We examine not only what is of significance for that participant but also what issues are raised for the others of us as well.  CLE credit is provided.

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The Loop of Understanding

Developing understanding systematically, authentically, and compassionately is core to our approach to mediation and the loop of understanding is central to that effort.  Looping is a technique that helps focus the dialogue and develop understanding throughout the mediation.  Although the approach is similar to and borrows much from what others refer to as active or reflective listening, looping captures a fuller sense of the challenge.  There are four steps to the mediator’s loop:

1.  Understand each party

2.  Express that understanding

3.  Seek confirmation from the parties that they feel understood by the mediator

4.  Receive that confirmation.

This last step is crucial.  Confirmation completes the loop.

The Loop of Understanding is more fully described in our trainings and in Challenging Conflict:  Mediation Through Understanding

In the next five newsletters, we will be providing short tips for looping.

Tip #1 (When to Loop)

Many people in our program wonder whether or not they should loop everything a party says, as it would be extremely arduous and even patronizing for the mediator to loop everything.

We think that looping is most essential when it is apparent that there is either a lack of understanding or a misunderstanding that needs to be cleared up, as well as when the mediator senses a party needs the kind of affirmation that comes from the demonstration of understanding.  It is particularly important when people disagree to be sure that there is understanding of the difference between the parties’ views and looping is a very effective way to clarify the disagreement.  In addition, when someone repeats something several times, particularly if it’s with feeling, it can be very important to fully loop what that person is saying as well as the feeling that accompanies it.

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Video: Self-Reflection for Conflict Professionals (SCPI)

We have a new video describing one of our advanced programs in Self Reflection for Conflict Professionals (SCPI), which is emblematic of our approach in all of our programs which have a strong self-reflection component for our work as conflict professionals. The Mediation Intensive Training is a prerequisite for the SCPI program and other Self-reflection in Action advanced programs on the East Coast, West Coast and in Mexico.

See upcoming Mediation Intensive Trainings

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Mar de Jade Self-reflection for Professionals Intensive Event- Video

Our most recent Self-reflection for Professionals Intensive Event was incredibly successful. Held at Mar de Jade, Mexico, there were sixteen participants from East Coast, West Coast, Germany and Italy. A deep sense of community was established among the group. Here are a few of their comments.

“I thought that it exceeded the boundaries of a work related educational experience and was life altering.”

“It was wonderful. I learned a great deal.  I experienced a lot. I can’t put into words just how terrific it was.  It has already positively impacted my and life and I’ve only been home 18 hours.”

“The Understanding-Based approach offers something larger than simply improving our skills as mediator technicians (always a good thing). For some this may resonate with the ‘why’ and the ‘how’ we recall from a time when we first began our mediating wanderings. Mediators interested in these aspects of the journey might investigate whether the Center for Understanding offers them a different paradigm with deep personal relevance. I certainly am grateful that I bumped into it.”

Here is a link to what attendee, T.W. Arnold, found useful about our Mar de Jade advanced mediation training.

And enjoy this video created by another of the participants, Lulu Wong.

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Going Under the Conflict

Einstein is credited with saying that “you cannot resolve a conflict at its own level.” The point for us in Einstein’s words is that when it comes to dealing with conflict, we need not only breadth of understanding but depth as well. That means recognizing that conflict has an inner life and being open to that dimension. Repeatedly, we find that the basis for resolving conflict comes from examining with the parties, as best as we are all willing and able what underlies their dispute.

With this fourth principle, our focus returns to understanding but at a deeper level. A deeper level of understanding can make all the difference and therefore merits a special place in our core principles. The inquiry into what lies beneath takes place in each aspect of the conflict.

First, we work with the parties to understand what underlies the substance of the conflict. As we noted earlier, we help both sides identify what is truly important to each in the dispute—not only what they want but why they want it. In more traditional approaches, understanding is directed more to the surface of the problem—most frequently, how much money one side wants and how much the other is willing to give—as the professionals apply pressure on the parties to move to a compromise solution.

As we seek to deepen the parties’ understanding of what lies under the surface of their conflict in terms of the substance of their conflict, the goal is for the parties to ultimately be able to take each other’s views into account along with their own as the foundation for a solution that is individually suited to all parties. When the pressure is lifted and understanding is expanded and deepened, many mediations result in creative ideas that neither party had considered before the mediation began and that are ultimately more satisfying to each of the participants.

That is so because while conflict can be multi-layered and complex, certain restrictive patterns of behavior and ways in which people experience conflict play out frequently, but their source is usually hidden from view. Just as the roots of a tree hidden below the earth are the powerful life force to what we see above, what lies under the conflict is what gives it shape and force. Conflict is rarely just about money, or who did what to whom. It also has a subjective dimension—the emotions, beliefs, and assumptions of the individuals caught within the conflict. This subjective dimension includes feelings, such as anger and fear, the need to assign blame, and the desire for self-justification. It is also grounded in certain assumptions about the nature of conflict that support the conflict and keep it going, such as the reliance on right and wrong. These are conflict’s terms, and we join together with the parties in challenging those terms.

Beliefs about how conflict should be resolved need to be addressed if people are to move beyond the places where they have become stuck. Typically, these include the belief that the other person, or the other’s position, must change, the need to protect oneself against risk, or the belief that an authority must make the final decision.

What often leaves both sides stuck in the conflict is that the subjective assumptions, attitudes, and feelings on one side are usually matched by similar ones on the other. Anger engenders anger, blame is answered by blame; efforts at self-protection on one side compel a similar reaction by the other in what often becomes ricocheting and escalating reactivity. The subjective dimension underlying conflict is not only at work for the parties, but is also very much present for the mediator and other professionals involved. Appreciating what is going on within us as conflict professionals—our judgments about one or both parties, identification with one or the other, anger or fear, or compassion and empathy—can hold the key to our work with the parties. Our view is that an inescapable and critical relationship between the objective and subjective dimensions of conflict needs to be understood to effectively deal with most conflicts. Many approaches to conflict focus on one to the exclusion of the other, leaving out this essential inter-relationship. We believe the challenge is to understand both and their relationship. Put simply, to resolve conflict, it helps to understand it.

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Trainings in Germany and Italy in November featuring Jack Himmelstein and Gary Friedman

Gary Friedman and Jack Himmelstein will be presenting a series of lectures, trainings and supervisions in Italy and Germany in November, 2010.

Including:

In Florence, Italy  —  November 16-19.

How to Deal with Conflict through Understanding rather than through Power–November 16;

Challenges and Possibilities for Collaborative Practice on November 17th, 2010–November 17; and

Un Nuovo Modello Di Mediazione (A New Model of Mediation: “Understanding-Based Mediation”) on November 19, 2010 at Florence State University, in Florence, Italy.

In Germany —  November 11-14

Gary Friedman will be presenting a Supervision for Judge Mediators in Celle, November 11.

Gary Friedman will be presenting a Supervision for Practicing Mediators with Lis Ripke in Heidelberg, Germany, on November 13, 2010.

Jack Himmelstein will be doing an Advanced Seminar with Freya Entringer in Erkner (near Berlin) Germany from November 12-14, 2010.

Jack Himmelstein will be presenting an advanced Training for Practicing Judge Mediators in Berlin, November 15.

Please send us an email at [email protected] if you wish more information.

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Working Together

We believe that the best way for mediators to support parties in resolving their dispute is for the parties to work together and make decisions together. We appreciate that for many professionals, this is one of the most striking and questionable aspects of our approach. Most mediators regularly meet separately with the different parties (“caucusing”). Our goal is to work together with the parties directly and simultaneously. We will address at length in this book why we work in this way and how we do so. Here we highlight a few of the bases on which this core principle rests. We work in this way because it creates better solutions for the parties. We do it also because we believe it best honors the parties while also contributing to what we view as a critical need in society for developing better ways for people to go through conflict.

We do not believe that our approach to mediation with its emphasis on the parties working together, or any particular approach to mediation, is the answer to all conflicts. We do think that for those people who are motivated and capable of working together, there are many benefits.

It is clear that the mediator working together with all the parties is quite different from someone from the outside making decisions for them, whether that someone is a judge, lawyer, or mediator. But we don’t believe that a laissez-faire approach that might countenance one party yielding their decision-making authority to go along with the other makes sense either. As will be clear in the cases we explore in detail in this book, we work hard to make sure that when the parties work together and make decisions together, they are each able to act responsibly and are sufficiently informed to exercise independent judgment. While we seek to honor the parties’ relationship by working with them together, we do not wish them to yield their autonomy.

Indeed, underlying our entire approach to mediation is a view about individual autonomy and relationships. In the mediation world, we find ourselves in a position between those who see the goal of mediation as only supporting the parties as separate beings who need to stand their own ground and those who believe mediation is really only about the relationship between the parties. We believe that a positive tension exists in recognizing the importance of both the individuality of the parties and their relationship. Both are essential and we need not be forced to choose between the two.

Ultimately, we are both separate and interconnected. Autonomy finds its fullest expression in the context of connection and connection finds more power and richness to the extent it embraces autonomy. The stories in this book illuminate how this approach can make a difference in people’s lives.

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Party Responsibility – Let the Parties Own Their Conflict

“Let the parties own their conflict” means it is important to remember and honor that it is the parties’ conflict. They hold the key to reaching a resolution that best serves them both. And they have the power and responsibility, if they are willing, to work together toward that resolution. For us, that does not mean simply that the parties must ultimately agree to any final settlement of their dispute. Party responsibility means the parties understand what is substantively at stake for both and craft a resolution best for all. It also means the parties actively participate in shaping the mediation process by making ongoing choices, along with the mediator, as to the course it will take.

Thus, the parties exercise responsibility not only in determining the substantive result—the what of the problem, but they also participate actively in deciding the how—the way the mediation proceeds. For us, the what and the how are inextricably related; and the parties’ active involvement in shaping the how is more likely to lead to their creating a better result on the what. This does not mean that the mediator plays a passive role, yielding to the parties in determining the course of the mediation. Rather, as you will see throughout this book, we view the mediator’s role as both active and interactive with the parties. This stands in contrast to the assumption within the traditional approach to conflict that it is the professional who needs to assume active responsibility for the resolution of the controversy. Within this traditional framework, clients (or parties) are seen to properly yield a great deal of control and responsibility to the authority whether in the person of their lawyers, a judge, or even a mediator. In our approach, the parties are responsible and active, as will be evident in the cases that unfold in this book. The mediator, too, is responsible. The mediator’s responsibility is directed to supporting the parties in their ability to make choices together based on their growing understanding. Understanding ensures that those choices will be informed.

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The Power of Understanding

In the traditional approach to resolving conflict, the coin of the realm is the power of coercion. When parties disagree, the exertion of control through the use of threat, persuasion, manipulation, or the imposition of an external authority is considered inevitable, necessary, and proper. That is true not only in the traditional adversarial model of resolving disputes but also in many of the seemingly differing models of alternative dispute resolution that have evolved. While we do not pretend to be able to totally eliminate coercion in our approach, we try to bring the power of understanding to bear wherever possible as the gateway to resolution.

Understanding proves central along several dimensions of helping parties to deal with their conflict. One, of course, is the  substance of the conflict. We support each party in gaining as full  an understanding as possible of what is important to him or her  in the dispute, as well as what is important to the other party.  Understanding is also critical in creating a working relationship  between the parties and the mediator that makes sense to all.  And understanding can prove crucial in helping the parties to rec ognize the nature of the conflict in which they are enmeshed and  how they might free themselves from its grasp.

We want everything to be understood that may be important  to the parties in resolving their differences, from how we will  work together, to the true nature of the conflict in which the par ties are enmeshed, where it came from, how it grew, and how  they might free themselves from it. We believe the parties should  understand the legal implications of their case, but that the law  should not usurp or direct our mediation. We put as much weight  on the personal-, practical-, or business-related aspects of any  conflict as on the legal aspect. In finding a resolution, we want  all parties to recognize what is important to them in the dispute  and to understand what is important to the others. We strive for  a resolution to satisfy each.

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The Understanding-Based Approach to Mediation

One of the keys to the power of the Understanding-based model of mediation is that it is a real alternative. Parties have a variety of choices to resolve their dispute, in particular, proceeding through the adversary system either by having their lawyers negotiate for them or, ultimately, having a judge decide the matter. The Understanding-based approach poses a very different possibility and opportunity, one that we believe deeply respects and honors parties and leads to better solutions.

Understanding-based mediation offers people in conflict a way to work together to make decisions that resolve their dispute. This non-traditional approach to conflict is based on a simple premise: The people ultimately in the best position to determine the wisest solution to a dispute are those who created and are living the problem. They may well need support, and we seek to provide them support in helping them find a productive and constructive way to work together, to understand their conflict and the possibilities for resolving it, and to reach resolution.

This book is about deepening and expanding that understanding, and working together to create enduring solutions to conflict. To pursue this path, we work from a base of four interrelated core principles.

  • First, we rely heavily 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 working together and making decisions together.
  • Fourth, conflicts are best resolved by uncovering what lies under the level at which the parties experience the problem.

These core ideas are radically different from the traditional way in which most people think about dealing with conflict. They call and build upon the motivations of both mediator and parties to work in an alternative way, and we have found that for many that motivation is there once they see the possibility. These ideas in action challenge conflict

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The Conflict Trap

Allowing conflict to victimize us and others leaves us trapped in its grasp and diminished by it. Challenging Conflict itself has provided us with tools for understanding it and for opening doors for ourselves, our clients, colleagues, and students that likely would not have occurred were it not for the power of that stance. What we have come to understand is that, if unexamined, conflict has a way of readily enveloping us and taking over our lives. When conflict takes over, it creates its own reality. It dictates the terms on which we experience a conflict as well as those on which we try to deal with it. And it often does so in insidious, unseen ways that make us and others hardly recognizable to ourselves, never mind to each other.

Within conflict’s grasp, it seems the only way out is to win through pressure, persuasion, or manipulation. Or dig in your heels and wait the other side out until they come around. And if you become enmeshed in a prolonged stalemate, you can at least feel the satisfaction of righteous victimization. If that doesn’t work, well 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.

These are the terms that conflict presents. We don’t accept those terms, not because they don’t capture so much of the reality that we experience, but because they lead to a dead-end or lack of resolution and because they are woefully incomplete. If we accept them as the reality, we are trapped in conflict. We challenge those terms. It doesn’t have to be that way.

You might conclude from this that we mean to eliminate conflict because of the harm that it does. Not at all. That is neither possible nor advised. We believe that the problem is not conflict itself, but the willingness of people to accept conflict’s terms and succumb to its downward spiral. Conflict offers an opportunity  for people to enhance their lives and deepen their understanding of themselves, each other, and the reality that they experience. As you will see, that is an essential part of our definition of mediation for the parties to gain understanding of their conflict and use it to enhance their lives. Not that we recommend choosing conflict. It simply means when conflict enters our lives that we face it and try to find a way to move through it with understanding.

We seek to do that  by making the participants to a dispute aware of how they, both parties and professionals, can become ensnared in what we refer to as a conflict trap. With that awareness, we can use the conflict to bring out the best in ourselves, rather than spiral down to our worst. Seen in this way, conflict can become an invitation to accept the reality of our automatic response to it and move beyond the confines of that response, to rise to the challenge of finding within us the understanding and compassion that liberates us from conflict’s hold.

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Excerpts From Challenging Conflict: Mediation Through Understanding

This revolutionary book shows how through mediation parties can escape the trap of conflict rather than remain ensnared within its grasp at enormous cost to themselves and others. The authors demonstrate how mediators, and lawyers, can support parties to work together effectively in ways that deeply respect their humanity. Through the telling of ten riveting stories of actual commercial mediations, the principles and methodologies of the understanding-based approach come alive. In so “challenging conflict,” the authors also challenge the conflict resolution field to reach for more.

The Conflict Trap

The Understanding-Based Approach to Mediation

The Power of Understanding

Party Responsibility – Let the Parties Own Their Conflict

Working Together

Going Under the Conflict

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Choosing a Conflict Professional

If you are interested in trying mediation, it is important that you choose the mediator with care. In most states, there are no legal restrictions preventing anyone from acting as mediator, nor is any license required. Mediation is too new and ill-defined to conform to an objective standard, and you may encounter “mediators” whose ideas of the enterprise differ sharply from your expectations.

Don’t expect to have a one-on-one conversation with the mediator. Any mediator who values impartiality knows how crucial the first contact can be, and will either remain inaccessible unless you and the other parties are simultaneously part of the contact, or try to minimize contact with you so as not to create a relationship with one party that could result in misunderstandings later on. A query to the office assistant should be sufficient to determine whether the mediator is taking on cases, what the fees are, a rough estimate of the number of sessions typically necessary to reach an agreement (four to six, on average), and whether the mediator will draft the agreement that results from the mediation and help prepare any necessary court papers.

Because there are many approaches to mediation, you and the other parties should have a clear idea about what you need from a mediator. Here are some questions that might help form that idea.

1. Why did you become a mediator? What do you see as your goal for a mediation?

The mediator’s personal and philosophical orientation can help you measure your own goals against the mediator’s.

2. What kind of commitment do you require from the parties to agree to mediate?

A mediator who demands a commitment to the process may indicate inexperience or a tendency to overly control the process. No mediator should compel you to stay in the mediation against your will.

3. Will you want to meet separately with us? If so, why? And if so, would you hold secrets?

Mediators who insist upon separating the parties are usually not able to handle the conflict when the parties are together. And if they hold secrets on top of meeting separately with each of you, they are likely to assume a role closer to arbitrator than mediator.

4. What is your view of the role of law in mediation? Are you familiar with the law? Will you tell us how you think a court would decide our case?

The role of the law in mediation is critical to the success of the process. What you should be looking for is a mediator who is well informed about the law or can work effectively with your lawyers to include the relevant legal information, and at the same time does not want the law to dictate the outcome.

5. How familiar are you with the substantive areas relevant to the context of our dispute?

Here, you and the other party(ies) will need to decide whether it is preferable that a mediator has a background relevant to the substance of your dispute (which can prove very useful in understanding the dimensions of the conflict) or lacks such knowledge (which can help avoid biases that can come from a substantive background in the field).

6. How do you feel about our using consultants, including consulting lawyers? Would you talk directly with our lawyers?

Choose a mediator who will let you consult with lawyers or other technical experts. You might otherwise ignore the realities that must be faced. If, on the contrary, the mediator wants to be the one who is in contact with your lawyers, you run the danger of having the lawyers and the mediator control the outcome.

7. How do you see our role in our communication with each other? What is the place of your feelings in this process?

This will weed out mediators who are exclusively result-oriented and don’t understand the importance of the parties dealing with each other and what is really at stake in the conflict. The parties must be able to communicate directly with each other. The answer to the second question will indicate the mediator’s comfort with the subjective as well as the objective dimensions of your situation.

8. How do you feel about our talking to each other about our conflicts outside the mediation office?

You are looking for a mediator who is going to give you a balanced view that respects your primacy as decision makers, and who warns you of the dangers that can arise from your dealing with each other without someone else present.

9. How would you deal with stalemates?

Beware of mediators who try to coerce you into an agreement. You want to make sure that the mediator will give the parties enough room to explore their disagreements thoroughly so you don’t settle for a short-cut solution that might not last or be as mutually satisfying to the parties as other possibilities.

10. How much mediating experience do you have?

It is important that the mediator have enough experience that you do not feel like guinea pigs. But a mediator who claims to have seen it all might peg you or the dispute as this or that type. Most mediators come from the background of law or psychology, but those who have fully embraced mediation know that both the psychological and legal dimensions of the issues are important to the process of mediated conflict resolution.

In deciding on a mediator, by far the most important criterion is whether or not you and the other party(ies) feel the candidate can understand you and your issues. Any discrepancy on this question — a “yes” from you, a “no” from the other party(ies), or vice versa — does not bode well.

You’ll also get a sense, during that first session, of what it’s like for the parties to be in the same room discussing the particulars of the conflict. Are all parties ready to do the work to make the necessary decisions? Do you feel that the presence of lawyers would be helpful or necessary? If you’re troubled by these questions, don’t be afraid to ask the mediator for an opinion.

Consider the candidate’s particular style. Is the person:

* at the “muscle” end of the spectrum (taking on the decision-making role)
* at the laissez-faire end (too committed to the parties’ right to decide to intervene in any way)
* or somewhere in between?

The danger of picking a mediator at the “muscle” end is that you are actually choosing a process much closer to arbitration than mediation and will run the risk of being dissatisfied with a result chosen by an outsider. The risk of the laissez-faire mediator is that the stronger or more manipulative of the parties might be able to maneuver the other into an unfair agreement without the mediator blowing the whistle. The questions above will help elicit the candidate’s mediation style, but ultimately it will be up to each of you to agree on the kind of mediator you are comfortable with.

Adapted from: A Guide to Divorce Mediation, Gary J. Friedman, New York, NY: Workman Publishing, 1993; pp 61-64.
Gary Friedman is the co-Founder and co-Director of the Center for Mediation in Law.

If you need a recommendation of a mediator, please contact us and we will try to be helpful. For information about mediators abroad, please contact see our Related Organizations.

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Book Review by Joe Epstein

International Academy of Mediators Newsletter (September 2008)

BOOK REVIEW:

Gary Friedman and Jack Himmelstein, Challenging Conflict: Mediation Through Understanding

(American Bar Association 2008)

Book review by Joe Epstein (Conflict Resolution Services, Inc., [email protected])

As the regular book reviewer for the International Academy of Mediators, I have the opportunity to read many fine books. From some I have gained insights and understanding that I hope have found their way into my mediation practice, and others have provided re-enforcement and clear rationale for practices and techniques I had instinctively adopted. Gary Friedman and Jack Himmelstein’s book, Challenging Conflict: Mediation Through Understanding, is quite simply profound.

The authors focus on an “understanding-based” approach to mediation and provide partners in conflict a way to work together to make decisions that resolve their dispute (p. xxvii). The authors offer four interrelated core principles to their approach (p. xxix):
  • Reliance on the “power of understanding rather than the power of coercion”
  • The parties have the “primary responsibility” for determining whether and how the dispute needs to be resolved
  • The parties are “best served by working together”
  • “[C]onflicts are best resolved by uncovering what lies under the level at which the parties experience the problem”
In looking at what “underlies the substance of the conflict” the authors have a goal of enabling parties to take each other’s views into account (p. xxxiii). While the authors have counsel educate the parties about the law and possible outcomes, they also support the parties’ freedom to fashion creative solutions (p. xxxvi).

The authors work through a series of ten case studies that range from a multimillion dollar business dispute to a public interest dispute involving a non-profit environmental group, and from a labor dispute at the San Francisco Symphony to a single family construction defect case involving insurance. Relationships and emotional issues are a core component in each of the conflicts. Money is also an important factor in a number of the disputes, but insurance is a factor in only two. This is relevant because the authors propound a non-caucusing mediation process. I wonder how their approach would work with products liability, catastrophic injury, and personal injury cases where emotional factors are frequently an important factor on at least one side of the table, but where relationship factors are not predominant. Nor do the authors offer examples of medical malpractice or employment cases where relationship issues and emotions may well be very significant, but where insurance carriers frequently exercise significant control over the defense side of the mediation process. Nevertheless, I believe this is a powerful book with profound insights. Clearly, there are many conflicts where the authors’ non-caucusing approach can be fully utilized and other instances where elements of their technique can profitably be used.

Other important points raised by the authors include discussion of conflict traps as a “set of mutually reinforcing responses to conflict that keeps the parties locked in battle” (p. 11). The authors repeatedly refer to their concept of two conversations, one of which focuses on legal reality and the other on the business and personal reality (p. 22). Parties need to be “meaningfully educated about the law without being limited by the law” (p. 25). The authors have a different definition of mediation that summarizes their perspective (p. 31):   “Mediation is a voluntary process in which the parties make decisions together based on their understanding of their own views, each other’s, and the reality they face.”
Interestingly, the authors also address the importance of autonomy in connection with their concept of “working together” (p. 94).

In addressing neutrality, the authors speak of “positive neutrality” and pointedly state that (p.199; see also p. 204):  “Rather than seeking to be equally distant from each party, we strive to be equally close.”

They emphasize that part of the power of having the parties work together is that anger is allowed to be expressed (vented), understood, and appreciated (see pp. 210-11). Significantly, the authors do not accept confidential mediation statements; rather, they insist that mediation statements be shared between the parties (pp. 245-46).

In reviewing this book, I willingly read it three times – highlighting the first time, underscoring the second, and finally starring the most important items. By the time I finished, I felt I would enjoy and profit from a training program with the authors. Clearly, I highly recommend this fine book.

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Book Review by Adam Berne

Challenging Conflict, Mediation Through Understanding

By Gary Friedman and Jack Himmelstein
2008, American Bar Association
Reviewed by Adam J. Berner, Esq., M.A., A.P.M.
December 26, 2008

Even for the most avid of readers, there is just so much written out there that it is overwhelming to zero in on those must-read books. This is especially true as our field of mediation expands, causing our professional book list to similarly expand at a rate impossible to keep up with. So, in case the accolades from leaders in our mediation field, including Professors Carrie Menkel-Meadow, Bernie Mayer and Robert Mnookin, did not suffice, let me say that Challenging Conflict, Mediation Through Understanding, published in cooperation with the Harvard Program on Negotiation, is a must-read for any mediator serious about deepening his or her mediation skills and seeking greater opportunities to help parties in conflict.

For purposes of transparency and as a disclaimer, the model espoused in this book, being the Understanding Based Model of Mediation, is one with which I find myself personally and professionally aligned. In fact, over fifteen years ago, after already sitting through over a hundred hours of mediation training and with a decent amount of mediation experience under my belt, a colleague told me about yet another mediation training, one offered by Jack and Gary (authors of this book), which I responded to with suspicion and doubt, wondering “what else can I learn?” I ended up attending that training, and never looked back. Similarly, whether you are the uninitiated, a beginner, or even (and maybe especially) an advanced practitioner, this is a work that needs to be read and will go a long way toward deepening the understanding of the magic of mediation and the dynamics of conflict within a context of profound respect for the humanity of the parties who seek our help.

Similar to the authors’ previous book, A Guide To Divorce Mediation1 Challenging Conflict is structured with a brief introduction to the mediation process and the authors’ particular approach to mediation, followed by 13 chapters, each with a different case presentation and subsequent commentary. However, whereas the authors’ first book dealt with only divorce mediation cases, this book has a wide range of commercial, workplace and neighborhood / environmental disputes. Through the fascinating line by line dialogue of annotated mediations, the reader gets an inside glimpse into a master mediator in action, watching the disputing parties come alive and seeing the understanding-based model work its magic.

Simultaneous with each chapter’s substantive case study presentation, there is an underlying process focus for each of these conflicts, so that by the end of the book, the reader has gone through a mini-mediation training. This “training” provides a lesson on each stage and/or skill of the mediation process and the uniqueness and richness of the understanding based model. Some of these topics or skills include:

  • Pre-mediation considerations including how the parties are engaged in their conflict and who should be responsible to resolve it;
  • Ground rules or ground “Agreements”;
  • Looping (a.k.a. active listening skills) to generate understanding;
  • Establishing the motivation to work together in mediation;
  • Deepening the discussion and awareness;
  • The role of the law and lawyers;
  • Understanding each side without judgment; and
  • Developing and evaluating options for agreements.

So impressed with the structural logic of this book for purposes of teaching mediation am I that I have added this book as a required reading for my own mediation training class.

Much more profound than a simple “how to” mediation training manual, this book skillfully articulates a very thought-out model of mediation, developed and refined over the past three decades by the authors, and fundamentally guided by basic core values, which are outlined in the introduction of this book. They are:

  • Relying primarily on the power of understanding rather than the power of coercion to drive the process
  • The parties are to be primarily responsible in determining whether and how the conflict will be resolved
  • The parties are best served working together in reaching a resolution (in contrast to caucusing separately)
  • Conflicts are best resolved by uncovering what lies under the level at which the parties experience the conflict – both on a substantive level as well as on the inter-relational level.

While glossing over these four core values, a mediator would not readily note any newsworthy discovery. However, I believe that the authors’ view of how we can help people in conflict offers a radically alternative approach not just from the traditional attorney model, but from the way many mediators practice as well. It would obviously take the length of a book to share all of the ideas of this book, but what follows are some highlights from my reading of this important work.

At the outset, the authors call attention to the dynamics that parties typically find themselves stuck in, what the authors refer to as the “conflict trap,” defined as “a set of mutually reinforcing responses to a conflict that keep the parties locked in battle even when the moves and countermoves are seemingly designed to end the struggle.” (p.11) Instead of enabling the parties to continue to engage in this same way of interaction, the Understanding Based Model (as per core value #4 above) seeks to make the parties not only more aware of the underlying needs and interests on a substantive level but more aware of the conflict dynamic between them and how this dynamic is interfering with resolution of the dispute. The focus on this awareness, on what is underlying the dispute process, illustrates what this model aspires to reach: not just mere settlements, but deeper opportunities for resolutions and relationships.

This model of mediation is not looking to minimize conflict, nor to evade or go around it, but as the title of this book suggests –  to go through it, to challenge it head on. In other words, there is value in having the tension of the conflict in the room, even while (and especially while) all sides are in the room together. This is certainly a radical departure from most lawyers (and mediators) who upon any glimpse of tension are quick to send both sides to their respective rooms. Not so for these non-caucus mediators, who define mediation as a “process in which the parties make decisions together based on their understanding of their own views, each other’s, and the reality they face.” The opportunities for deeper understanding of one’s self and others are at the greatest potential when all sides are part of the same conversation. As the authors explain, it is then the role of the mediator to create a safe place for that authentic conversation to happen.

Another striking element of this book is its discussion of the role of emotions in mediation. The authors write: “The idea that allowing expression of feeling is something to provide space for “venting” suggests that emotions are a contaminant in the process, rather than a valid aspect of the parties’ experience. Emotions, authentically experienced and expressed, are often part of the inquiry and may prove key to gaining a fuller understanding.” Throughout this book, we are provided glimpses as to how a master mediator responds to such emotions, creating a safe place and a level of authenticity that allows the humanness of the situation, each party, and the reader to be touched and moved by such understanding.

“It is not a question of simply giving the anger room for expression… It is a question of the mediator authentically seeking to understand that the parties are angry and the parties’ feeling that that is understood. And it doesn’t stop there. Once the fact of each party’s anger is understood, the challenge is to go beneath….  These feelings that are often unexpressed and unappreciated, hidden at times even from the party who holds them…. Addressing these feelings with the parties may begin to loosen the hold of the attack/defense mode that keeps their conflict intact.” (p. 211)

While this more personal, value-based, and interpersonal focused mediation might be more readily accepted in the family arena, one of the most important contributions of this book is its demonstration how this orientation should be  similarly valued in the business arena. No doubt such a notion would be met with much opposition and suspicion, especially from those attorneys or insurance adjusters who ordinarily claim “it is all about money.” Such suspicions, tensions and dialogues are in fact presented in many of the case studies of this book, making it not only a profound contribution to our field, but a realistic one.An example of such realism is how this model deals with the role of the law and lawyers, the focus of at least a number of chapters in this work. The cases in these chapters are based on real situations and real professionals, which is evident as the tension unfolds in these chapters between the paradigm of the mediator on the one hand and the paradigm of the traditional professional on the other. Going beyond the distinction made between helping clients in mediation make decisions informed by the law, as opposed to decisions being controlled by the law, these master mediators guide us through various illustrations of line-by-line conversations with the mediator and participants and supporting commentary by the authors, as to how, when and why to have the conversation not only about the substantive law, but also on the impact of the law and the legal process. In my own experience, I have come to expect attorneys to be resistant to these kinds of conversations, worrying that it will risk their client or their strategic arguments at trial. These chapters provide us an articulate and thoughtful response to such concerns.

With all of the values underlying this work, it is done in a modest humble way that does not declare that this model is right for every conflict and does not presume to take parties to a place or into a relationship that the parties don’t want to go. As the authors explain, “what we seek and hope for is to provide the parties the opportunity to resolve their conflict at the fullest level they wish.” In thinking back to my own recent cases, I can’t help but wonder where there might have been greater opportunities for resolutions in light of the richness offered by this model. I found this book extremely worthwhile by taking me out of the moment of my mediation caseload and reminding me how much more there is to learn and grow if we want to continue doing this work in a meaningful, human and authentic way. Jack Himmelstein and Gary Friedman have eloquently and profoundly articulated this very rich and rewarding mediation process. Challenging Conflict, indeed a fitting title, was worth the wait and even more worth the time to read and re-read.
Postscript: Subsequent to the completion of this book review, Challenging Conflict was honored as the recipient of the highly prestigious award, CPR Book of the Year Award for 2008. This is quite noteworthy in that the CPR (International Institute for Conflict Prevention and Resolution) is a leading international practice and teaching dispute resolution institute and is a proponent of the caucus model of commercial mediation, which is challenged in this book by its non-caucus practitioner authors).

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