After 50 years of practicing law, conflict resolution remains a powerful alternative to the court system
Barry Berkman, a matrimonial lawyer, has been mediating since the 1980s. He is the founding partner of Berkman Bottger Newman & Schein LLP, with offices in New York and New Jersey.
After graduating from law school, Berkman joined a small firm that assigned him to matrimonial cases, an area of law avoided by attorneys pursuing more lucrative work.
“In those days, nobody wanted to do matrimonial work; it was considered low-brow.” Berkman said. “As the lowest person on the totem pole at the firm, I was the one who ended up with it.”
As it turned out, Berkman liked matrimonial work. He enjoyed working with people in the middle of real crises, and the work became a large part of his life. After litigating for about fifteen years, he realized no client had ever really ‘won’ a case.
“In a sense, it was hard to say that any of the clients were better off having gone through litigation,” Berkman said. “The court system wasn’t working. The collateral costs were way too steep. Much of it had to do with the money – expenses were ludicrous. You had to ask a couple who had worked all their lives to build the marital estate what percentage of all they had struggled for should go to the lawyers so that they could go on with their own lives. It was absurd.”
On top of that, both parties had lasting emotional scars, win or lose, and the impact on the children was often traumatic.
“I found myself thinking about my law school ideals wherein I was looking for a career that would allow me to make a positive difference in people’s lives,” Berkman said. “This was not it.”
Berkman began to hear about matrimonial mediation, which sounded like a good alternative, so he tried the new practice with some early success.
“I started to mediate, and it worked!” Berkman said. “I thought I was pretty good at it. Then, a friend and mentor who had been through divorce mediation training recommended I go through a program, and I said, ‘What for?’ I already know how to mediate.”
When Berkman first began to mediate, there was enormous resentment from the matrimonial bar toward the practice.
“It was heavy,” Berkman said. “Mediation was thought to be a place to avoid discovery, where the object was to seduce the mediator onto your side and to avoid having to pay spousal support.”
GOING BENEATH THE SURFACE
At the insistence of his friend, who assured him there was much more to learn, Berkman looked for a mediation course and found an option through his alma mater, Stanford University.
“I called them up and thought it would be a lot of fun to return to Stanford,” Berkman said. “Unfortunately, when I called, I learned the course was full.”
After talking with the representative at Stanford, Berkman learned that the teachers of the course – Gary J. Friedman and Jack Himmelstein – conducted trainings of their own through the Center for Understanding in Conflict with programs in Marin County, California.
“I took the 40-hour course and was caught up in it from the beginning,” Berkman said. “I loved the teaching style, and by the end, I thought it was the best course I had ever taken. I found so much value in it – not just learning about mediation and how much I didn’t know – but, without pressing it, the course takes you into yourself.”
Berkman found friendship and mentorship with the trainers and kept returning for advanced courses, suggesting that the Center bring the training to New York.
“I helped them get organized in the beginning,” Berkman said. “I knew all the people working in the field then and called them up, urging them to take this terrific course. Even if they litigated, it could be valuable.”
The Center began holding programs in New York, bringing mediation training to learn alternatives to litigation through the understanding-based model.
Berkman then became immersed in conflict resolution and liked it so much that he would take every mediation-type seminar he could find, exposing himself to many different models and leaders in the field.
“I took several courses, and there was value in all of them,” Berkman said. “Even so, the quality and content of the Center’s training was superb. There was a meta-aspect to it for me. Of all the techniques I had learned – which were pretty good – what resonated with me was the sense of what it meant to be a good mediator. Before that, I often felt stuck in mediation and asked myself what Gandhi or Abraham Lincoln would do – both enormously gifted mediators of their times. After training with the Center, I began to ask myself what Jack or Gary would do in these situations.”
As Berkman found, through his training with the Center, the invariable answer was to listen closely and apply the looping practices that he had learned.
“Persuasion didn’t work,” Berkman said. “Most mediators had this automatic reflex to say to parties in conflict, ‘let’s be reasonable,’ and it didn’t work. Learning not to push was also a big part of the Center’s teaching.”
Even after decades of mediating conflict with thousands of parties, Berkman finds each interaction new.
“It’s fresh every time,” Berkman said. “I love conflict. I find it absolutely fascinating and am still trying to figure it out. Every case is a new challenge. And there is a connection there. Mediations can become very intense, and there are moments when the human connection goes beyond the role of the lawyer, party, mediator, financial advisor, or therapist – well beyond the particular roles and results. You are human beings gathered there for a common purpose, and a powerful and lasting connection exists.”
ADVICE FOR NEW PRACTITIONERS
Berkman explained that being a mediator can be difficult if you don’t go into the field for the right reasons.
“You have to love it,” Berkman said.
Berkman shared the story of Carl Rogers, a successful psychologist whose followers could duplicate his methods but not his results, as an excellent example of the essential qualities of good mediation.
“The real difference was that Carl Rogers had nothing but total respect for every single one of his patients – for where they were coming from, what they were going through, and for who they were,” Berkman said. “Rogers’ approach was entirely judgment-free. Developing that kind of respect for each mediation client is key. This approach was implicit throughout the Center’s trainings and resonated deeply.”
To aspiring mediators, Berkman recommends that individuals ask themselves why they want to enter the conflict resolution field while talking to people who have been through the process and those who have conducted mediations.
“Learn what the process is about,” Berkman said. “One aspect that changed tremendously for me was that I came to mediation to get away from a litigation system that didn’t work, was broken, and was bad for the parties. Mediation drew me away from something else, and as I became immersed in the mediative process, it became a value in itself. Rather than getting away from something negative, I was going toward something that could be tremendously positive.”
Looking back on his career and the impact that the understanding-based model has had on his life, Berkman reflected that his life was changed for the better as a result.
“It goes past mediation,” Berkman said. “It has been a very invaluable and personal part of my life. Those moments of understanding can be divine.”