Endgame Questions and Issues

Endgame Questions and Issues

Katherine Miller

Photo by Shirly Niv Marton on Unsplash

The endgame can be one of the most challenging parts of the mediation process and preparations for the endgame should begin early on during the initial contracting process, as parties, attorneys and the mediator establish how they are going to work together.  Good contracting sets up the end game among other things and provides parties with a structure to proceed when the going gets tough.

The endgame is challenging because it is where the rubber meets the road in the negotiation.  We will have spent considerable time and energy exploring what is important to both parties (interests), understanding each party and assisting them to understand each other better and understanding the situation they face together including the differing perspectives of both parties in the early and middle game.  Now, in the end game, we turn our attention to results and it is easy for the parties to slip right back into the conflict dynamic and positions they had at the outset.  They key to a successful outcome, is to hold the established interests and their meaning while discussing the options and negotiating to a solution.

It is helpful to consider the “V” diagram  as parties in conflict move from their initial positions to solutions.  Oftentimes people come into a negotiation—and mediation is a form of negotiation—thinking that moving across the top of the “V” using coercion or compromise seems to be the fastest pathway to a solution. This belief is false.  Attempting to move across the top of the V—directly to solution from positions—creates a superficial process that overlooks critical discoveries and considerations that can be uncovered while descending under  positions, along the “Why Trail,” to understand interests, and even meaning, before ascending again toward solutions.

At the outset of mediation, following the “Why Trail” allows participants to go underneath the position and understand the why. “How does you position serve you?” “What is it that you are worried about?” “How do you see the problem?” “What is really important to you and why?” By posing a series of open ended and curious questions, participants are better primed to understand themselves, the situation they face and the party with whom they are more deeply in conflict.  In turn, this deeper understanding allows the parties to build more meaningful and even more practical solutions during the endgame.

It is important to start thinking early on about what the group is going to do when they hit a difficult moment. Often people refer to this dreaded difficult moment as an impasse.  Personally, I do not like the term “impasse” because it gives too much weight to a moment when the mediation feels stuck and therefore encourages the parties and even the mediator to give up when they feel stuck.  When the group comes to a place where they feel trapped, it is useful if the mediator has somewhere to guide the group. It is very helpful in these moments to have established guidelines at the outset. It also helps minimize the possibility of reaching an impasse if everybody involved has an agreed upon “how” of having these conversations, which can be really challenging at times.

Ascension of the endgame

The endgame happens on the right side of the “V”, as participants frame the interests and develop options as they work towards solutions. At this point, the mediator should have a good understanding of all parties, what is important to them and how they see not only their own reality, but the reality that they share together. The parties should have a good understanding of themselves, perhaps a better understanding of the perspective of the other party/ies and a enough of an understanding of the problem they face to be able to understand the impact of various options.  And now the time has come to develop a deal.

It can be dismaying for new mediators to discover that when parties start brainstorming options they first go to their original positions.  This is completely natural.  They have rehearsed those positions so many times and getting them out is a way for them to relax.  The key is to stay in brainstorming mode when this happens and not allow the parties or yourself to move into evaluation mode.  

The challenge to the endgame is to figure out a way to keep the parties, mediator, and attorneys, grounded in the interests and what is important to each person while discussing the options for potential resolution. One way to do this is to encourage the parties to think about options that create value – what are creative ways for the parties to view their situation that permit them to add value to the situation and ease the fear of a zero sum game, where if one person wins something, the other must necessarily lose.  Perhaps one of the parties has something else they can bring to the table, or another benefit. There can be overlooked resources or different ways of seeing the problem that allows more value to be created and creates more room inside the problem to look at it in different ways. When more value is created, it can be applied to the problem in a way that gives the possibility of a better resolution.

There are a couple of things to watch out for and some concepts that can be helpful in the end game:

BATNA and WATNA

If the parties in conflict are struggling to work out their problems in mediation or negotiation, sometimes it is helpful to consider the Best Alternatives to a Negotiated Agreement (BATNA) and the Worst Alternatives to a Negotiated Agreement (WATNA). What are the alternatives the parties have to resolving the conflict in mediation?  It can be helpful to get perspective on the issues by considering the other possibilities and creating a “real world” context.

 One person’s BATNA can be another person’s WATNA. For example, for a couple considering divorce, one person’s BATNA may be “do nothing,” stay married and muddle through.  For the other person, this is the WATNA. Considering the WATNA and BATNA is about understanding what the parties will do if they can’t work here. What are their options? What are their costs? Not just monetarily either, parties need to consider costs in terms of time, emotional expenditures, distraction disruption, costs to children, etc. 

The BATNA and WATNA are important in terms of the endgame because it helps people evaluate how good or bad their options are. It allows the parties to create perspective on the options that they are thinking about.   It is, however, important not to use the BATNA/WATNA to coerce parties into a resolution they do not embrace and for that reason we do not dwell on these concepts in the Understanding-Based model.

Red Herrings

When a red herring is brought up in mediation, it can create a distraction from what is really going on and keep people from talking about the real issues. During the endgame, a red herring can be an attempt to cover what is really going on underneath the surface that is stalling the process.

Red herrings are particularly common in divorces.  For example, about a decade ago, a friend requested a consult with her friend who was getting divorced.  This woman was going through a very difficult divorce with a challenging soon-to-be-ex-husband. The parties had almost completed their mediation agreement, when the husband suddenly insisted that he wanted some the pink towels that the wife had bought some years prior. The woman could not understand why her soon-to-be-ex was so obsessed with wanting the towels. This red herring ended up being about control. The woman was getting the house, the kids spent most of their time with her—the man felt like she was getting control over the life they had together. Once I laid out the explanation to her, it immediately clicked and she agreed to let him have the towels.

Red herrings can be tricky to deal with.  The mediator is well-served to approach it with curiosity—what is really going on for the party raising it—and not with judgment or frustration.

Second Thoughts and Waffling

The outcome of a mediation is not always going to be a resolution. That does not mean the entire process was a failure and it can become problematic if the mediator feels their success is based on whether or not a party reaches an agreement.

It can be coercive if mediators attempt to pull parties towards the resolution in the endgame—if anything, the parties should be pulling the mediator towards the resolution. Moreover, parties are more likely to have second thoughts and start waffling if they are feeling pulled. The mediator can best help parties evaluate the options if they are agnostic as to whether they reach a resolution or not.  With this neutrality, the mediator can help the parties evaluate their BATNA and WATNA and that can help create more certainty in the parties (or they can decide not to agree in this moment).

Conclusion

The endgame is not about mediator—or mediation—success. Even if the mediation does not result in an agreement, the parties are able to use those conversations and move to a different process to seek resolution. The conversations from the mediation will be useful ultimately to help people better understand the situation and themselves.

The results of the endgame can be strengthened throughout this entire process by going deep using the “V” method and working with the parties in conflict to create and claim value. Exploring BATNAs and WATNAs as well as cognizance of red herrings can help keep parties from getting stuck when difficult conversations arise.


Katherine Eisold Miller is a Collaborative Lawyer and mediator with a practice located in Westchester County NY and New York City. She serves as the President of the Center for Understanding in Conflict. Katherine is immediate past president of the New York Association of Collaborative Professionals. Katherine is author of the New Yorker’s Guide to Collaborative Divorce (2015) and co-Author of the #1 Amazon bestseller A Cup of Coffee with 10 of the Top Divorce Attorneys in the United States (2014).


Interested in learning more about this topic? Join our upcoming webinar with Katherine Miller and Gary Friedman:

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Coronavirus—What does it mean for us as conflict professionals?

Coronavirus—What does it mean for us as conflict professionals?

Gary Friedman

The coronavirus has invaded all of our lives.  We don’t have a choice about that. We do have a choice about how we deal with it as conflict professionals.   While we’re sheltering in place, we’re not able to use our strongest tools to make the in person human connection which is often the key to our helping people go through conflict together.  So we are left with possibilities of communicating by e-mail, telephone, or Zoom.

None of these alternatives can replace the feeling of humans together in the same room to reach the kind of understanding that comes not just from words and body language, but the kind of connection that comes from being able to see, hear, and feel each other.  While Zoom is a major improvement on telephonic connection because we can see each other,  its limitations are significant.  For example, we can’t see who is looking at whom, a key way to connect and read what is happening.

Thus, the coronavirus has created the isolation that makes us unable to be together physically.   It has also left us with a huge range of feelings that it has triggered.  Fear, anxiety, grief, pain, and anger have not been unfamiliar feelings to any of us, but the omnipresence of the virus and the isolation we are experiencing intensifies these feelings.  

What does this mean for us as conflict professionals?

First, the virus and the attendant feelings are impacting us—as well as the people we help—and we need to find a way of dealing with our own feelings if we are going to bring our full selves to working with the parties.  If we push those feelings away, we will be distancing ourselves from what is important to us and our clients even more than we need to.  We have been surprised by the sweet moments that have occurred during the chaotic up-and-down of the swirl of feelings that have engulfed us. 

Second, this crisis is an opportunity for us to get a much bigger and deeper perspective on our lives.  I have particularly appreciated more than ever the great privilege I have in the life I lead, and I think that must be true for many of you as well.  Racism continues to create suffering for all of us. Just this week, as the statistics in the United States of America are revealing the disproportionate concentration of death Black and Brown people are experiencing acutely demonstrates the plague of systemic and social injustice and inequality wrought by our privilege.  

Third, recognizing that we and are clients are all experiencing vulnerability helps us find the courage to see that vulnerability as a source of strength rather than a weakness. 

Fourth, as much as the world seems out of control right now, we need to recognize within the psyches of ourselves and our clients, that with every stimulus and response, there is a space in between where we can make choices. Viktor Frankl, who survived many years in the death camps during World War II, discovered that if we can recognize that and cultivate that space to make choices, we won’t feel so victimized by what is going on.

Fifth, the virus is raising havoc with all of our lives and has created uncertainty for us and our clients, so making decisions that don’t take that uncertainty into account is likely to be unwise.

Sixth, the devastation that we are all experiencing is a source of connection between all of us, to our clients and between them as well. We need to learn how to work with these feelings in ourselves and our clients skillfully.  The crisis that has been triggered is an opportunity to look more deeply at what our lives are about and what we care about.  This is true for all of us.

Seventh, the feelings that we can help our clients access do not point just to their responses to the virus, but to the deeper meaning of people’s lives which underlie decisions they make in mediation.

How do we do all of this? 

  1. Accept and be willing to explore all the difficult feelings we are experiencing so that we are emotionally present during our times working with our clients.
  2. Be especially attentive to self-care now, particularly recognizing whatever frustrations we experience with the technology and the challenge of connecting with our clients.  We have more time now than we have had that was formerly spent navigating back and forth.  Let’s use it to do some things that we haven’t felt we’ve had time to do that feed our souls.
  3. Normalize our clients’ upset, don’t try to help them get rid of it, but point them toward their deeper experience of what matters most to them now.
  4. Recognize that right now trying to be happy is going to make people more unhappy because they’ll be pushing away the feelings that they need to access to make realistic decisions.
  5. Most of all, focus on the power of understanding rather than coercion to help them negotiate stable solutions.
  6. Now, the world is changing everyday now in ways that none of us knew, and it is our job for ourselves and our clients to stay in the present,  knowing that the past is not going to be much of a guide and that no one, especially now can predict the future.

At the Center for Understanding in Conflict, we are trying to follow our own advice, taking our training online and working hard to see how we can find creative ways to connect with you in the same way you want to connect with your clients.  That means we have had to deal with the frustration of not being able to see you in person. We have been, and will be, conducting training programs to meet the challenge of being there for you and sustaining our commitment to support you. We are very much interested in hearing from you about what you need, as authentic interaction that is authentic is at the heart of what we most care about.


Gary J. Friedman has been practicing law as a mediator with Mediation Law Offices in Mill Valley, California since 1976, integrating mediative principles into the practice of law and the resolution of legal disputes. Co-founder of the Center for Understanding in Conflict (formerly the Center for Mediation in Law), he has been teaching mediation since 1980. Prior to his work as a mediator, he practiced law as a trial lawyer with Friedman and Friedman in Bridgeport, Connecticut. After several years as an advocate, he sought a new approach to resolving disputes through increasing the participation of the parties in the resolution of their differences. At that time, he and his colleague, Jack Himmelstein, began to develop the Understanding-based model that is now practiced extensively in the United States and Europe. As one of the first lawyer mediators and a primary force in the current mediation movement, he has used this model to complete over one thousand mediations in the last two decades He has mediated numerous two-party and multi-party disputes in the commercial and non-profit realms, in the area of intellectual property, real estate, corporate, personnel, partnership formations and dissolutions, and family law.

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Real Talk with Lacey Wilson

Real Talk with Lacey Wilson

Real Talk developed after the Center for Understanding in Conflict (CUC) spent over years in conversation together about how to create safe, effective spaces to have dialogue about race and build relationships in the process. Lacey Wilson, who helped launch Real Talk, sat down to talk about the initiative, her experiences, and why these conversations are vital for conflict resolution professionals.

What is Real Talk?

Real Talk is a workshop series that we started to give people in communities a space to talk about racial and cultural conflict. [About three years ago] we realized there was a gap in conversations happening around race and at the time, there weren’t many spaces where these conversations were happening on a community level. After a year-and-half, we decided to create a space for people to have those conversations.

Why is it so important that conflict resolution professionals engage in these conversations?

It would be silly to think that race is not something that comes up for people in conflict, no matter what kind of work you’re engaged in. 

It is important for people to understand that race impacts every aspect of every system that we are a part of in this country—and internationally. If people aren’t able to understand and see their own biases and the way that they interact with individuals, they can’t see [how] their bias impacts and influences their own decisions in forming relationships and dealing with conflict. There’s a huge gap in their understanding.

I think it is important for people to have difficult conversations around race and their own power of privilege to move past the superficial of being in a relationship with people, and be able to understand who people are on a different level. If you are an attorney representing clients from a different demographic, race, culture—just different from you and part of an oppressed group, the way that you represent them and speak with them is going to be very challenging if you don’t have an understanding of where they are coming from and how they are showing up in that space with you.

The power differential is going to be obvious and for some, it’s going to be a barrier. It can take people out of their own stories if there is not an understanding around race. It is incredibly important for people to know where they stand and how they deal with their own conflict.

Why the CUC?

How this came about for the CUC was when Natalia [Lopez-Whitaker] attended 40 hour mediation training and then I attended a month after. We both had similar experiences where we were the only people of color in the room—and for me, the youngest and the only gay person. We saw Gary [Friedman] at a conference two months later and told him about Natalia’s experience and about why it was difficult to be vulnerable and feel like [she] could do that safely and this is something [the CUC] needs to address.

He wasn’t even aware that was an issue and asked about my experience. I had a very similar experience and it was hard for me to show up fully in that space. Gary asked, “What do I do about it and would you be willing to be part of that conversation?”

The group came together in May of that year and worked together and unpacked a lot of the things that we get to hold space for other people around our own bias, blind spots when it comes to power and privilege, impression, how to talk about race and how to navigate that in a way that keeps our relationships intact and a whole workshop developed in that time.

We want to build it out, expand on it and make it accessible beyond an in-person training. But also to take it deeper for people to get more advanced training in that setting.

What has been one of your best memories of Real Talk?

Even before we had the first workshop, we did a panel discussion at the Mediation Society in San Francisco. It was an opportunity for the six to share the work we were doing with a group of very prestigious attorneys and judges in the area and the room was very white.

We had been in space with each other for over a year at this point and so we were very comfortable with each other and not shy. We had set up this whole talk and discussion with a role play.

[The role play] started with Gary saying something very privileged to me and engaged us all on other levels. I had on a sleeveless shirt [that showed] the tattoo on my right arm. Gary asked,  “Don’t you feel like you need to cover up your tattoo?” And he was like, “We’re in this room [of professionals].” I walked out and then Gary and Eric [Butler] had a conversation about his position of power and privilege and then Eric brought up race and race being a factor.

There was an incredible amount of discomfort as the scenario played out. The emcee was trying to calm people down because some people were getting really upset. A couple of people thought it was a joke and couldn’t figure out if it was real or not. People were visibly uncomfortable by what Gary had said.

I came back to the room and asked how it felt. A lot of people knew Gary, which was another reason it was so powerful. When we got feedback people were shocked and were confused if he really felt that way and the way that it played out. To take something—it was not directly me as a Black person, just a tattoo that I happen to have—but it is so connected in the ways in which we think about bias, it’s in the day-to-day lives of people, it’s all connected. It was very tense. 

The reactions we got across the room and the conversation that opened from that helped people understand why the work was important in that room, where people had been doing work as attorneys and judges for decades. Being able to talk about racial bias and addressing in front of this group was really powerful. 

Gary loves to role play [and] what helped was that we had been in conversation for so long—it was easy to find something and just really work with each other. I don’t think we over-dramatized it, it was just us having a conversation. It was kind of cool how seamless it was. And then to come back and have the same group witness us talk about these discussions and address some of the issues and dynamics between the six of us was really powerful. That is one of the most important pieces to building out Real Talk, is actually doing the work to address our own issues and the conflicts that come up.

What has been one of the biggest challenges?

How do we trust each other and how do we get past the logistics of planning a training and actually get to what matters and bring that forefront? How do we center the work that we are wanting to do within ourselves and the six of us so that it feels natural and authentic? And figuring out what trust looks like and how we build it between six people with different backgrounds. 

[We] took a step back from talking about logistics and just got to know each other. We would get together once a month and talk about what was going on for us and address the misunderstandings and understandings that came up. A lot was going on for me or Natalia or Eric, that Gary and the others had no idea. The group was divided initially between the White people and the Black and Biracial. 

I would say personally, I respected Gary and Catherine. I was so intimidated to be in the room with them. I felt very much out of place, not having any power and I thought “Why would they care about what I have to say?” Over time that completely shifted and that was only through getting to know each other and me understanding my own actual power and influence that I have as a person. [We discussed] why Gary asking [a particular] question is harmful when [it is] addressed from a privileged space, and that’s why it is harmful. 

A lot of the inner V type of work helped me get to that point, but also being able to speak up and talk about the things that were harmful and helpful that got us to a point of collective understanding. It was a lot of individual and collective work.

We talk about empathy and understanding in vague ways, but in this space they are at the forefront of how we’re going to get through these conversations. Taking the tools that CUC teaches and applying them in that room once a month between the six of us in a very deep way, It was not just about moving through the conflict, we were working together.

What were some ways you built trust?

It was a risk, initially what helped me unpack some of that was knowing that I wasn’t alone in the room. I knew that Eric had my back, it was unspoken. I did not know him at all, but there was a shared understanding that we came into the room with. I remember him saying in the first or second session, “I know that she has my back in this space without even knowing her.” And I knew that too. If anybody says anything that ends up offending him, I will defend him. 

And he said that out loud, so there was this space to take a risk because I knew that if I said something that he would back me up. And Natalia was the same way. Gary, Catherine [Conner], and Becca [Vershbow], they hadn’t really considered why that wasn’t necessary. We had to unpack that piece, there was an innate sense of distrust and not feeling safe when you’re in positions where you are a part of a group that is oppressed, coming into a space with people that have a ton of power and privilege.

Having people who are supportive of you and are going to go to bat for you—and who will do it in a way that you feel respected and can continue to build that trust—is important. There was some shared understanding in that room to help cultivate that space and it became easier to speak up. 

There is one scenario about Gary’s shoes. Gary had a hole in his shoe. He sat down and didn’t think about it, and Eric said something during the meeting. “You walked in here with holes in your shoes and didn’t think anything of it. You can walk around with a hole in your shirt.” And Gary laughed about it. 

Do you have any idea what that means? Something that felt so small—the amount of privilege that you have, you can walk around and look like that. If we walked around with a hole in our shoes, what are people going to think? They’ll have judgements about who he is or who I am, and the whole reason is because we’re Black. 

People are going to have very different ideas about who we are. We had to have that conversation—it’s a reference point for all of us. It’s shifted the way he’s shown up in trainings, just his perspective of what it means to be a White man with so much power and so much privilege in so many ways and to be able to recognize and how not being able to recognize that impacted his work for over 40 years. I remember that moment where he questioned his work—“What have been I doing? How have I been complicit? How have I done this to people and missed this huge piece? There’s a gap in this work I’ve been doing and I want to do what I can to bridge that gap.”

  Living in quarantine, what are some things that conflict resolution professionals should be doing to help ensure their understanding and scope is not limited to what is familiar and what they know?

Taking an honest look at how this pandemic is impacting the issues in the country systemically because it is literally infecting, impacting every system in this country—legal, education, medicine. Take a deeper look at that and how it’s disproportionately affecting Black and Brown communities.  When you are talking about mental health or financial things, really taking into account how they can either build out or expand the way that they do business.

If you’re going to incorporate conflict resolution into your work specifically around mediation, how can you get out of this little bubble of building business and recognize its impact on people in your industry in ways that it hasn’t before. There have always been issues with our systems but it is an opportunity for people to do business differently and consider how they can integrate a lot more into their work.

What issues can you bring up around policy that could help affected communities? Not just on a community level, but at a federal level. How can we change these systems? Conflict work goes into that. It’s a big task, but this pandemic has exposed every system in this country, even now as we move through it, we can think about how to make it better. How do we shift and show up differently on the other side of our work.

I know that the June workshop is likely to be delayed  but I thought it would be still good to talk about it. Could you share a little bit about the in-person session—how is the event facilitated? What are some key outcomes?

The workshop is broken up into two-days and the six of us facilitate different pieces. It feels really powerful and important to have our dynamic. At the beginning, it’s typically getting-to-know each other and getting people settled with different activities and jogging people’s understanding of race and racial bias. Then we go through different activities and conversations of helping people navigate their work and internally using inner V [self reflection work that the CUC teaches]. Then we role play different scenarios [so] people feel comfortable getting to know people in the room and to a place of feeling trust so they are more open and willing to bring their own experiences to the room. 

Typically, there are 15-20 people in that space but it’s really powerful and I look forward to training. I’m hoping people walk away with a better understanding of their own impact and influence on other people and move forward on a deeper knowledge and hope, and be more willing to have difficult conversations around race and conflict.


Lacey Wilson is a Development Manager at Oakland Promise. She worked for seven years as an educator then transitioned to the legal profession in legal support positions at Camille King Collaborative Law & Mediation and Disability Rights California, respectively. She believes at the core of change is solid relationship building and has a serious passion for restorative practices, particularly within marginalized communities, education, and law. Born and raised in the Austin, Texas area, Lacey made her way to the Bay in August 2015. She’s a published author and spends her free time working on creative writing and DIY projects or in the company of friends over coffee, boba tea, good food, or a hike in the redwoods! Lacey studied Special Education at Texas State University and received her mediation certifications at SEEDS and the Center for Understanding in Conflict in 2016. As a lifelong learner, she is continuously seeking out communities willing to have courageous conversations around cultural awareness and social change.

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Creating Inclusive Cultures around Gender Identity Through Understanding

Creating Inclusive Cultures around Gender Identity Through Understanding
unsplash-logoLeighann Blackwood

When Dean Rebecca Ivanoff of the University of Oregon School of Law invited me to train 120 first-year law students on creating more inclusive cultures around gender identity and expression, I recognized an exciting opportunity to integrate an inclusion discussion with training in developing understanding, as we think of it at the Center for Understanding in Conflict (CUC).

By Melanie Rowen

The intersection of understanding and inclusion comes up often in CUC trainings and in our community discussions. Lacey Wilson, Natalia Lopez Whitaker, Eric Butler, Becca Vershbow, Catherine Conner, and Gary Friedman have developed and offered Real Talk, a training on conversations about race, which sits at this intersection. At the University of Oregon, I was excited to bring CUC’s skills training approach to law students in the context of talking about gender identity and expression.

Dean Ivanoff and a second-year law student leader, Sarah Osborn, worked with me to make sure the class session would both fit in with the school’s’ professional development goals for students and make a positive contribution to school climate for LGBTQ students. It was also important to us that the students have a chance to practice the “inner work” of recognizing their own judgments and biases, and inwardly processing their own reactions in the moment in order to stay present and connected with the person they are listening to.

In a 75-minute class session, the students worked on listening to understand another person, using “looping” to discuss prompts about how their own multiple identities, including gender identity and expression as well as race, class, disability, and others, shape the perspective from which they approach their work. They also learned the basics of implicit bias, and explored how we can create environments that are gender-inclusive, avoid reinforcing gender stereotypes, and are welcoming to transgender and gender non-conforming people. Throughout, they were encouraged to practice attending to their own judgments and biases, and to notice their own reactions. 

“By learning to loop one another, and by practicing guided self-reflection at key moments throughout the class, the students had the opportunity to process their own ideas and assumptions around gender, and to benefit from their classmates’ understandings and insights, at a deeper level.”

One challenge we faced was time. This was a lot to fit into just over an hour! To make it possible, it was crucial to teach the skill of “looping” first. By learning to loop one another, and by practicing guided self-reflection at key moments throughout the class, the students had the opportunity to process their own ideas and assumptions around gender, and to benefit from their classmates’ understandings and insights, at a deeper level. They also had the opportunity, through looping discussions, to experience judgments in the moment and to practice noticing them.

We could have spent a day-long training (or more) on applying skills for developing understanding in the context of creating more gender-inclusive environments. Thanks to looping and to the students’ engagement and focus, we were able to accomplish quite a bit in one class period. It’s exciting to think about what else might be possible for trainings at the intersection of understanding and inclusion.


Melanie Rowen is a mediator and conflict coach who believes in the power of understanding-based conflict resolution to transform our world. She frequently trains individuals and groups on effective communication in conflict situations and on creating inclusive environments, particularly around gender, sexual orientation, and disability. Melanie previously litigated civil rights cases, including marriage equality, employment discrimination, issues involving transgender and gender non-conforming youth and their families, and issues facing LGBTQI elders, at the National Center for Lesbian Rights. Before that, she worked in business litigation at Latham & Watkins LLP.  Melanie serves on the Board of Directors of the Transgender Law Center and is the Associate Director for Public Interest Programs at UC Berkeley School of Law.

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Inside Out

Inside Out

From Conflict to Compassion

Photo courtesy of Joy Rosenthal. 

About halfway down Mexico’s Pacific coast, the small fishing village of Chacala sits tucked away along a small cove. Overlooking the ocean to the south is Mar de Jade, a tranquil retreat enveloped with lush vegetation. Since 2007, this spiritual oasis has served as the backdrop for the Center for Understanding in Conflict’s (CUC) biennial Inside Out: Self Reflection for Conflict Professionals Intensive (SCPI) retreat. 

While most mediator training revolves around external parties—what do you do when the people you are mediating behave a certain way—SCPI concentrates on the internal mechanisms of the mediator. The focus of the SCPI program is to teach conflict professionals to access their inner lives in ways that are constructive for professionals and productive for their clients. SCPI is facilitated by Gary Friedman, who literally wrote the book on this practice, and Zoketsu Norman Fsicher, a poet and Zen Buddhist priest from the Everyday Zen Foundation

Woven into SCPI practice is meditation, including sessions guided by Fischer, whose Zen teachings are deeply respected around the world and woven into the overall SCPI and CUC ethos. “The structure of the course, and the incorporation of meditation and Zen concepts, promote an awareness of one’s own feelings, emotions, and responses, improving one’s ability to connect with others,” comments Jennifer Sullivan, a Senior Assistant Dean at the University of Colorado Boulder Law School. 

Sullivan was one of the 18 individuals who participated in the SCPI program at Mar de Jade this past February. While the program has historically attracted law professionals, a diversity of professions were represented in this year’s cohort, including a gynecologist who deals with patients trying to navigate in a broken healthcare system and a doula who accompanies people at the end of life. “What we’re teaching goes far beyond law…it’s about humans trying to find a way to help other humans,” comments Friedman.  

Participants from the 2020 SCPI retreat at Mar de Jade. Photo courtesy of Catherine Peulvé.

“I have a better sense of calm and awareness that helps me embrace others’ fears or anxieties, often expressed as anger or belligerence,” notes Lisa Lewis, a gynecologist. “Looking back, I wonder how doctors succeed without these skills? More importantly, how could any patient succeed without their doctor expressing understanding and compassion?”

She was introduced to SCPI by her husband, Randy Lewis, a court appointed receiver and mediator, who has participated in several CUC trainings over the past 30 years and was also part of the 2020 SCPI cohort. He notes, “The Conflict and Compassion program created a unique opportunity for me to better understand my role in the conflicts imbedded in my work. The week allowed me to carefully separate my role and the roles of those around me. I am better able to own, use and understand what belongs to me without compromising my values or the value of my life experiences while making similar allowances for others who are also involved.”

The presence of couples was another unique addition to the 2020 retreat. Prior to SCPI, most participants attended CUC workshops on the Understanding-based model, which resonated not only with their work, but that of their partners. Several realized that the retreat could not only be a benefit in their partner’s professional endeavors, but within their own interpersonal communication as a couple. Friedman notes that part of the appeal for including partners was wanting an intimacy “that came from having their spouses have a window into their professional life in a way that could give them the ability to talk about it differently”. 

Wounded Healers

Concentrating on understanding their conflict and pain, participants learn to channel these emotions into compassion.  “It’s about using yourself as an instrument to understand what’s happening in you,” Friedman explains. This intimate understanding opens pathways of empathetic understanding for the conflicted parties participants mediate. It also helps those working in conflict to more intimately understand why they are compelled to this line of work. 

This concept brings Carl Jung’s wounded healer archetype to a modern context—we seek to help others through conflict because of our own experiences with conflict. According to Friedman, “the sores that we’re working out that come from our childhoods that are right there in the middle of our mediations, and if we can find a way to to help others, that actually starts to heal that pain that we experience [and] that we’ve been carrying around our whole lives. [This] actually turns out to fuel our desire to help other people.” 

For Carolann Mazza, a conflict resolution professional who recognizes that “we all have stuff,” what she had learned from SCPI has allowed her to be more effective in her work. “When I can connect with people in conflict, I am able to be with them more fully than when my own unresolved/ignored feelings get in the way. Through real, raw connection with my own stuff and others’ stuff, I have a better appreciation of the way my clients show up during their conflicts,” Mazza explains. 

The Buddy System

At the beginning of the retreat, participants are paired up with a person they do not know. Friedman explains that when “you’re on a plane, and you talk to somebody you don’t know, you put up your whole life story in a way it’s so different than you would if it was with your most intimate partner.” 

This buddy system is what Friedman considers to be “the heart of the program.” Through regular and intimate conversation and activities that adhere to guidelines set forth by the facilitators, participants can support each other. To help facilitate understanding, participants use looping skills in their conversations.  

The key caveat in the buddy system is that buddies cannot give each other advice, nor can they ask for it. This is deeply rooted in the Understanding-based model, which views mediation as a way to help people find the solution while never losing site that people know better what they ought to be doing with their own lives. 

“One of my ‘buddies’ pointed out to me we need negative forces to balance positive forces, like a battery,” notes Lisa Lewis. “InsideOut taught me to convert negative energy into a more productive and positive place.”

In a sun drenched room overlooking the ocean, buddies joined with another pair and dedicated late afternoons to deeper dives into their cases and situations. According to Friedman, “These are very important moments for people because they feel the support of the whole group to do this and they also learn the skills of how to help other people.” 

These groups of four stayed together through dinner, before breaking off with their buddies for the final activities. In one-on-one conversations with their buddies, participants concentrated on feeling what they have been learning and making the move from pain and conflict to compassion so that they can feel the love and understanding in their body. 

The supportive buddy partnership does not end with the retreat. Buddies continue supporting each other through continued dialog after the retreat, be it meeting up in person or video calls. 

Breaks allow participants to continue exploring themselves, and the surrounding area. Photo courtesy of Lauren Petkin.

Outcomes

While the work is intensive at an emotional and spiritual level, breaks from SCPI activities allowed participants to swim, hike, explore Chacala, and reflect in their own spaces.  Participants walked away from SCPI with a deeper commitment to their work and an enriched set of skills to assist in connecting to people more deeply and authentically. They also developed a deeper understanding of why they do this work. “We think it’s an antidote to burnout, to be able to access your motivations and understand your motivations and work from them,” Friedman posits. 

For Randy Lewis, “the week allowed me to carefully separate my role and the roles of those around me. I am better able to own, use and understand what belongs to me without compromising my values or the value of my life experiences while making similar allowances for others who are also involved.”

“This course is about mediation, but it’s also about how to be a better human,” Sullivan concludes. 

What comes next?

While the next Mar de Jade retreat is not until 2022, the CUC is planning some one-day programs to be held throughout the year. Additionally, the CUC with the Everyday Zen Foundation will be holding an intensive in Talloires, France this fall. 

Individuals interested in participating in a future SCPI program are highly encouraged to participate in one of the CUC’s introductory mediation and conflict resolution programs first. Friedman’s book, Inside Out: How Conflict Professional Can Use Self-Reflection to Help Their Clients also provides an intricate guide into this process. 

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Blame and Vulnerability on the Beach in Mexico — by Gary Friedman

Last week we completed our fifth SCPI program in Mar de Jade, Mexico, with the theme of blame and vulnerability.  With participants from Europe, Canada and the US, Norman Fischer and I explored the depth of our personal relationship to blame and vulnerability  as they  impact our work with clients.  Central to all of our SCPI programs is the recognition that our responsibility to our clients compels us to understand ourselves.  

We made some interesting discoveries.    We all easily recognize the problems that blame presents when it arises in conflict: blame cycling into escalation between parties, trapping them in defense and attack mode, disempowering the blamers by placing all of the responsibility on the other.  It also protects the blamer from not only outside attacks, but also from recognizing the layers of vulnerability underneath that can hold the key to opening the lines of communication between parties.   

What is more subtle is to recognize the positive qualities of blame particularly for those people who have felt powerless  to stand up for themselves rather than allow themselves to be doormats for someone wanting to overpower them.   Being able to distinguish between whether the use of blame is helpful to dealing with the conflict or problematic can be a significant challenge.

We also discovered that when, as conflict resolvers, we pretend to ourselves that we are not angry, upset or blaming of our clients, the cost is often loss of connection with our clients.  When we admit our own sense of blaming, at least to ourselves, we have the opportunity to investigate it to reconnect with the people we’re trying to help.

 So when we make blame wrong, or blame blame, we are reinforcing conflict professional tendencies that if recognized and worked with can open a door not only between us and the parties but between the parties as well.

While it is true that blame often protects us from seeing our vulnerabilities, it can also be true that blame and vulnerability can exist simultaneously.  Dramatic examples of this are occurring in the Me Too movement, particularly with the athletes in Michigan speaking up in court against their abuser with full expression of blame and vulnerability.  Particularly turning self-blame, as some did, into a more accurate pinpointing of the blame to the outside can be empowering.

With respect to vulnerability, we also explored how our fears of being weaker by showing our vulnerability are often not realized when we express it, which often is accompanied by feeling more, not less, powerful than when we keep it hidden.

Most of all, our universal experience in spending a week together exploring these themes in our cases and our lives create support that we will all be able to carry into our lives back home.

We’ll be working with this same theme in Talloires, France from August 28-31, 2018.  

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