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).