Dignity: Its Essential Role in Resolving Conflict

Dignity: Its Essential Role in Resolving Conflict

Dignity: Its Essential Role in Resolving Conflict by Donna Hicks

Book Review by Debra Vey Voda-Hamilton

Dignity will be a welcome addition to the Center for Understanding in Conflict professionals’ library. 

Author Donna Hicks explores what dignity is, how we assimilate dignity both personally and with our clients, while bringing dignity practices into our meetings.  This book memorializes her experiences facilitating discussions between IRA prisoners and British law enforcement and their families in the documentary, Facing the Truth. Archbishop Desmond Tutu, Leslie Bilinda and Ms. Hicks were facilitators in this groundbreaking discussion.

Hicks created three models for understanding and applying dignity to the practice of conflict resolution. She lists 10 Essential Elements of Dignity, 10 Temptations to Violate Dignity and finally How to Heal Relationships with Dignity.

10 Essential Elements of Dignity are briefly as follows:

Assuming others have integrity

this helps us express our authentic self without the fear of negative judgements by or about others.

Inclusion

making sure you feel and others feel that they really belong.

Safety

participants are in a place where they feel physically and psychologically safe; no fear of bodily harm or humiliation.

Acknowledgement

giving others your full attention, “by listening, hearing validating and responding to their concerns, feelings and experiences.” Recognition- validate others for their talents, hard work, thoughtfulness and help. Generously praise, show appreciation and gratitude for contributions and ideas.

Fairness

treat people justly, in an even handed way according to agree upon laws and rules.

Benefit of the doubt

treat people as trustworthy. Start with the premise that others have good motives and are acting with integrity.

Understanding

believe that what others think matters. Give them the chance to explain and express their point of view while actively listen with no judgement.

Independence

encourage people to act on their own behalf so they feel in control of their lives and experiences, fostering a sense of hope and possibility.

Accountability

Take responsibility for your actions. If you have violated the dignity of another person, apologize and make a commitment to change your hurtful behaviors.

10 Temptations to Violate Dignity:

Taking the bait.

Don’t let the bad behavior of others determine your own.  Restraint is the better part of dignity, just don’t take the bait.

Save face-.

Don’t lie, cover up or deceive yourself. Tell the truth about what you’ve done,

Shirking responsibility

When you have violated the dignity of another, acknowledge it, admit you make a mistake and apologize.

Seeking false dignity

If we depend on others for validation of our worth, we are seeking false dignity. Authentic dignity resides within us.

Seeking false security

If we remain in a relationship in which our dignity is routinely violated, our desire for connection has outweighed our need to maintain our own dignity.

Avoiding conflict

when your dignity is violated take action. A violation is a signal that something in a relationship needs to change, stand up for yourself and don’t avoid confrontation.

Being a victim

don’t assume you are the innocent victim in a troubled relationship. Open yourself up to the idea that you might be contributing the problem.

Resisting feedback

We often don’t know what we don’t know. We all have blind spots. We need to overcome our self-protective instincts and accept constructive criticism. Feedback gives us an important opportunity to grow.

Blaming and shaming others to deflect your own guilt

Control the urge to defend yourself by making others look bad.

Engaging in false intimacy and demeaning gossip

beware of the tendency to connect by gossip about others in a demeaning way. Being critical and judgmental about others when they are not present is harmful and undignified. If you want to create intimacy with another speak the truth about yourself, about what is happening in your inner world and invite the other person to do the same.

Finally;

How to Heal Relationships with Dignity

Listen without interrupting or challenging.

Listen to seek understanding. We more commonly listen to our adversaries to one up them and attack.

Acknowledge and recognize what the other has been through.

As I say in my lectures, this does not mean you agree with their point of view.  It simply reflects your belief that their point of view is worthy of acknowledgement and recognition. Hicks believes, “Sharing our experiences with expression may help the person we’ve injured in the heat of a conflict feel less defensive or justified.”

Honor and acknowledge each other’s integrity,

thereby creating a mutual bond.

All participants must honor each other’s dignity and agree that sitting down together is worthy of your time and attention. Hick’s believes this is the step that makes all the difference.  She notes, “It is much more common to withdraw from those whom we have been in conflict with and refuse to talk to them.”

The process explained in this book reflects conditions that appear to contribute to positive outcomes when facing the truth is enabled and on point with the Center for Understandings teachings. I hope you’ll enjoy it.

Purchase the book >>

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Antoinette Delruelle

Antoinette has been a mediator since 2009 and an attorney since 1994. Before starting the Mediation Project in 2013, she was a senior attorney in NYLAG’s Matrimonial & Family Law Unit of which she also served as director from 2001 to 2004. She has taught mediation to legal services attorneys and court staff professionals and has participated as a teaching assistant at mediation trainings of the Center for Understanding in Conflict. She has been a mediator for the New York City Family Court Mediation Program since 2013, on the rosters of the Kings and New York County Supreme Court Pilot Mediation Programs their inception. She was the president of the Family and Divorce Mediation Council of Greater New York from 2014 to 2016 and is currently on the board of the Center for Understanding in Conflict. She is a member of the state-wide ADR Advisory Committee formed by Chief Judge DiFiore in April 2018 to give her recommendations on how to increase the use of ADR in the NYS court system.

Can you please share a little bit about your background? How did your experiences lead you to joining the CUC board?

I started answering this question a week ago and wrote that I find conflict fascinating. I represented victims of domestic violence for 18 years at the NY Legal Assistance Group, a free legal services organization for which I am still working and I am firmly convinced that they need the protection of the courts. For other couples, mediation is a much more satisfying and positive process which I practice with families who live free of violence. I truly became a mediator only after taking the intensive mediation training of the CUC, which changed my life. I am thrilled to be joining the board of such a terrific organization. A week later, after one more horrifying murder caused by racism ⁱ , I am now even more eager to work on listening deeply and on reflecting on what’s happening inside myself.

Can you share an experience using the Understanding-based model?

I use the Understanding based model every day so, the question is a bit like asking me to share how I breathe…

[Recently], I mediated with a couple who described feeling “stuck” in their disagreements because both of them always want to win. My co-mediator (I co-mediate all of my cases with volunteer mediators) and I looped both parties regarding how they co-parent their children. We asked them many “why” questions. At the end of the session, the husband, who was initially a little reluctant about mediation, said that we had “unstuck” them and managed to change their dynamic. The wife agreed.

What is one key piece of advice you’d like to share with other conflict resolution professionals?

I would say to try not to demonize or idealize any particular form of conflict resolution. I mediate without caucus but I have seen times where caucus was necessary. I have used the collaborative law model. I prefer mediating than litigating and most of the time, mediation is preferable but sometimes litigation is where justice is done. Finding the appropriate method is the tricky part. I am still working on it!

What are some important issues for today’s conflict resolution professionals to be connected with?

The issue of race relations, which the CUC has been working on with “Real Talk” is at the forefront of my mind. What can we do to change the “systems” such as the family courts that people with low income are forced to use to resolve their conflicts because they are the only ones that were free? And when courts are closed, how do we deal with the fact that mediation is no longer a voluntary process because people don’t have a choice?

What is something you enjoy doing with your free time?

I love making picture albums. I have always been the “archivist” in my family. I even have pictures taken in 1945 of American tanks liberating Liege (in Belgium), the city where I grew up!

This is in reference to George Floyd

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Dealing with External Forces

Dealing with External Forces

By Catherine Conner and Katherine Miller

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Often, the parties in conflict are not the sole stakeholders in the dispute. External forces—ranging from family and friends, consulting attorneys, accountants, therapists, among others—can insert themselves into the conflict resolution process, invited or not. These external forces can have a supportive and positive presence in the process;however, they can also be toxic and sabotaging inroads to resolution. For conflict resolution professionals, versatility in dealing with these external forces can be a crucial factor in the process.  Clarifying the roles of these participants during the contracting process encourages opportunities for constructive engagement of parties who may lack the necessary holistic context of the conflict.

Concerned that disagreements over their joint finances are threatening their marriage, newlyweds Fatima and Martina sought a mediator to support resolution of the conflict before their disagreement leads to divorce. While the couple have already structured the process with their mediator, external forces have started to enter into their dispute, and are causing turmoil in the early stages of the conflict resolution process.

Fatima’s older sister, Nour, has been staying with the couple since the onset of the COVID-19 pandemic. During her extended visit, Nour witnessed a particularly emotional dispute between Fatima and Martina. She is concerned about how Martina’s dominant personality results in constant criticism of Fatima’s spending despite her higher earnings. Like Fatima, Nour is also a high-income earner. Just prior to her visit, Nour had finalized a particularly painful divorce from a husband who was similar to Martina. She had never been particularly fond of Martina, and after witnessing the couple’s turmoil, is certain that Martina is taking advantage of Fatima. Since the last mediation session, Nour has been trying to convince Fatima to leave Martina and has been a combative presence in the household.

Exasperated with the constant attacks from her sister-in-law, Martina has confided in her father, Tomas, about her marital problems. Tomas is aware of his daughter’s parsimonious habits. He had worked hard to instill frugality in Martina in the wake of his wife and her mother’s terminal cancer that ultimately not only took her life, but also robbed them of financial security. While they had once been a strong middle-class family, Tomas now lives with significant medical debt that he will never be able to repay. While he loves Fatima deeply, Tomas thinks that his daughter-in-law has a penchant for frivolity. He has significant concern over the couple’s stability should they also face an unforeseen and life-altering financial burden, although he has tried to keep this opinion to himself. Tomas has been patiently trying to help Fatima understand that maintaining her lifestyle could lead to ruin, even if their finances are stable presently. While Fatima has appreciated his advice in the past, with Nour now in the picture, she has retreated and become less receptive to his guidance.

When Fatima and Martina arrive for their second mediation appointment, the mediator is surprised to find both Nour and Tomas in tow. Within moments of their arrival, Tomas begins to implore Fatima to reconsider her spending habits, which leads to Nour aggressively telling him that he has no place commenting on her sister’s affairs, which in turn results in Martina yelling at Nour. In the midst of the chaos, the mediator realizes that these external forces must be addressed, or Fatima and Martina will never find reconciliation.

Pain, embarrassment, and violations of dignity are often challenging components of conflict for all involved, including the mediator. Parties in conflict may not have the ego strength to feel like they can talk to their family members, such as Fatima, whose passive nature is perpetually overrun by her sister and her partner. While Nour is advocating for her sister, she is not the key to resolution. The same is true for Tomas, who also does not hold the key to resolution either even with his good intentions. Only Fatima and Martina know what will work best for themselves and each must arrive at a place of understanding with her partner.

Nour and Tomas represent the informal social systems helping the parties in conflict. This support system is not necessarily always family, it can include friends who have been through similar conflict or friends who have replaced the support system of family. There is also a professional support system, such as consulting lawyers, accountants or financial planners, and other consultants brought into the process by  the parties and conflict professional. Professionals can also intentionally or unintentionally interfere with the parties’ process.  An accountant engaged in the mediation process may want to share charts and graphs, thinking this is helpful, but in reality, it could  exacerbate the problem or distract from a deeper issue at hand.

Fatima and Martina’s situation demonstrates how these overlapping circles of people who are trying to have a conversation with the parties about their needs could further destabilize precarious—even volatile—environments. However, many people, like Nour and Tomas, are coming from a place of concern, wanting the best outcome for those that they love and they can be a source of support. They are also serving the needs of Fatima and Martina. Family and friends can sometimes be a countervailing force. They can give a person in conflict the courage to speak up and say that a proposed solution does not include something essential. They may also be a source of creative ideas when the parties themselves are too overwhelmed to conceive. 

The mediator can help manage these back-seat drivers to keep them in a constructive and supportive role and manage the intrusions. This role is particularly important when one or more of the parties in conflict are feeling stuck and they may not have the wherewithal to manage the external commentary themselves. 

Parties in conflict do not exist in a vacuum, and for the mediator, having a greater context of the outside forces serving—or not serving—the parties in conflict is a pivotal step in moving forward. Mediators should look at a party’s support network, their structure, the interwoven circles around them, and how they are helpful and unhelpful. Who is there? How are parties using their external support network and what role do those people play in the conflict? Is the “external team” helpful or not? How can the helpful elements be strengthened and transformed into effective support? How and when are the external forces brought in to create forward motion instead of creating doubt or suspicion? Asking these questions and contracting about the role and place of external forces can increase the likelihood of a positive impact throughout the mediation process.

It is also worth noting that doubt is not necessarily a bad thing. Fatima has been a pushover her whole life and although Nour may be dominating, she is doing so on behalf of her sister. When Martina proposes a potential solution to Fatima, Fatima may not have the confidence to say no. By exploring and understanding how the external force is useful, the mediator can help the parties determine the best way to engage them in the process by exploring and understanding how the external force is useful. Engaging Nour as an advocate for her sister in an agreed upon process may provide a window for Fatima to speak up against proposals that she does not feel will suit her. When these situations arise in mediation, creating the protection in a supportive, rather than destructive way, can yield positive results.

The external forces for Fatima and Martina appeared early enough in the process that they could be incorporated into the initial contracting process but without proactive exploration, mediators may not find out about personal external forces until later in the process. Asking early on about external forces to identify and explore the context allows the mediator to bring catalyzing players to the forefront at a stage when they can be engaged to more effectively support the conflict resolution process. There is often a long history leading up to the presenting dispute and without this early exploration of the impact of external forces, what may start as an individual conflict can grow into a group conflict, as shown when Nour, Tomas, and Martina began arguing with one another during the second mediation meeting.

Professional external forces also need to be addressed. Sometimes, the other professionals involved in the mediation process are known and actively engaged. The scope and manner of their participation should be part of the contracting process and the mediator can assist in clarifying how they will be most useful to the parties. Sometimes, however, the professionals are influencing from outside the room and the parties often do not understand that they—the parties—have the  power to tell the professional what they need. It is not uncommon to see cases go off track when the party does not have the tools to talk through an issue with their professional team.  The mediator can coach parties to ask for what they need from their consulting professionals.

Ultimately, mediators are well served when they have  a wider context of who is involved and the dynamics of that involvement, in and outside the mediation room. The key takeaway is that conflict resolution professionals can support their clients in establishing spaces to help their allies support them more effectively, instead of dominating the process. The earlier that these forces are identified, the better the chances that they will not upend the conflict resolution process but rather be a positive force.

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Book Review >> Mindful Of Race

Book Review >> Mindful Of Race

Transforming Racism from the Inside Out

Written by Ruth King

Book review by Laurie Phuong Ertley

“Racism is a heart disease—and it’s curable.” As an educator with more than 20 years of experience, King offers her readers practical tools to cure one’s own internalized racism in her book Mindful of Race (2018).  King identifies as Black Queer grandmother with more than enough compassion and wisdom to offer anyone willing to address the inherent and uninvited pain that comes from living in a racialized society.   Her background in clinical psychology, organizational development, diversity consulting, and meditation informs her writing.

King recognizes that systems of oppression affect every member of society, regardless of their race.   Thus, the book is divided into chapters addressing White people and People of Color separately.  While she acknowledges that there are many nuances in terms of identity in both groups, particularly within the POC umbrella, she offers these discrete chapters in order to address the unique challenges that each group faces.  As a reader, I read every chapter because I found it worthwhile to learn about all the perspectives, and I came away with a greater appreciation of everyone’s point of view.  I particularly found the real-life case presentations helpful, because they illuminated the steps towards a sense of reclaimed humanity and wholeness.  The individual stories in this book gave me social proof that not only can people heal from the pain of racial injuries, they can grow to be more loving people because they have faced these injuries. 

For those not willing to read a whole book, the steps in a nutshell are:  1) Develop a mindfulness practice.  This helps you exercise the muscle of non-reactivity; 2) Cultivate an attitude of kindness and curiosity towards your experience; 3) Feelings occur in your body, so drop your attention down from your head into your body; 4) Be open to discovering something new.  After reading the book, I invited trusted members of my community to form a Racial Affinity Group.  This is one of King’s solutions for us: do this work within our own racial group.  The work of racial healing is akin to heart surgery, and you only want to do it with people you have faith in and who believe in you.

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We Need to Talk About Race

We Need to Talk About Race

The Real Talk team, who facilitates training on conversing about race at the Center for Understanding in Conflict, recently convened to reflect upon how this moment in history has catalyzed powerful conversations and why it is important for conflict resolution professionals to engage in conversations about race.

Demonstrators gather in opposition to systemic racism
Photo by Julian Wan on Unsplash

Real Talk Team

As Black Lives Matter and anti-racism movements demand action and change, the realities of racial disparities are finally coming to the forefront of conversation at an unprecedented level in the United States of America. Racism and White supremacy are deeply ingrained in institutions and society, but an open discussion of racism has been tiptoed around, and the pervasiveness of racism has long been one of American society’s tabooed truths. This moment offers conflict resolution professionals an opportunity to reflect upon their own experiences, biases, and discover their blindspots as part of a collective and sustained movement to dismantle the mechanisms of inequity that impact conflict resolution and the spaces we hold for it. 

The seed for the Real Talk program was planted back in 2016, when Natalia Lopez-Whitaker and Lacey Wilson exchanged their experiences when they were the only people of color in mediation trainings offered by the Center for Understanding in Conflict (CUC). They approached Gary Friedman, the organization’s founder, and shared their insights. This challenging moment became a much-needed catalyst for the CUC to examine organizational practices and overall work. Eric Butler, Catherine Conner, and Becca Vershbow joined the conversations surrounding power and privilege, bias, and blindspots, laying the framework to build bridges to help link gaps in understanding. 

As the Real Talk team exchanged their recent experiences in the wake of the protests, they agreed that people want to do this challenging work and for different reasons. For marginalized voices, these conversations can provide opportunities to be heard, to share their feelings, and to engage with others in a space that does not center whiteness in the conversation. By building relationships through this conversational process, allies can learn how they are complicit, recognize their white fragility, what they can do to effect change, and take sustained actions to dismantle the systems they privilege from. 

In order to heal, we need to be in a space of growing and learning, where we can be conscious of our biases and privilege. One key role of participating in the group is the ability to help each other identify blind spots coming out of their own biases, particularly when engaging with others whose life and experiences vary from our own. Then clarity can come from self reflection and knowing ourselves, including our faults. Self reflection can help us deal with our strong emotions, diving deeper into our experiences that shape our perception of ourselves and others. This process can become a vehicle for understanding and empathy.

A lot of conflict resolution training works focuses on impartiality, championing ideals such as mediator neutrality, yet experiences and studies have demonstrated that bias is a pervasive reality whose subconscious manifestations undermine the impartiality of human beings. According to a 2006 article, Implicit Bias: Scientific Foundations by Anthony Greenwald and Linda Krieger, implicit and explicit bias varies and individuals demonstrate strong preference towards their own social groups, or those with similar perceived values. Yet Greenwald and Krieger’s research also highlights that it is possible to change implicit cognitions. 

During an April interview, one of our team members, Lacey Wilson, shared how a demonstration of implicit bias ultimately became a pathway to trust for our team:

Gary [Friedman] had a hole in his shoe. He sat down and didn’t think about it, and Eric [Butler] 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.

Conflict resolution practitioners are disproportionately White and their experiences and voices overwhelmingly occupy the field, shaping conflict resolution theories and practices partial to a static White context. Carol Izumi, a Clinical Professor of Law at UC Hastings Law notes in Implicit Bias and Prejudice in Mediation that while “the use of mediation has proliferated…little has changed in terms of mediator training, the practice of mediation, and the lack of diversity within mediator ranks.” Although the Real Talk team has been together for several years, we are constantly going back to the table and reexamining topics of race and race relationships in the USA.

In our Real Talk programs, participants take the time to do anti-racism work in a deeper way through examining their own biases, explicitly and implicit, while having open conversations about race. It is an opportunity to slow down and be in whatever discomfort one is feeling. 

In these conversations, we dive into White supremacy, anti-racism, and anti-Blackness while providing a space of clarity where people can learn skills for listening, hear stories, and live their lives more aware. It is our hope that these conversations help curtail implicit biases and provide a pathway for participants to incorporate these conversations into their communities and networks. It is not our goal that participants feel something specific at the end of our Real Talk trainings. What each participant takes away and carries forward with them is dependent on their own experiences, contexts, motivations and desires. 

Unless those working within this system are dedicated to sustained anti-bias and anti-racism work, inequities will continue to plague the profession and society. Systemic change does not happen overnight, but if as individuals we commit to continually working on understanding and minimizing our bias and make an effort to engage in difficult conversations with our circles, collectively we can move the needle towards equity and justice for all.

Anti Racism Resources >>

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CUC Solidarity Statement

CUC Solidarity Statement

At the Center for Understanding in Conflict, we unequivocally support and are in solidarity with our Black communities and all communities of color—in the USA and around the world. We say the names of George Floyd, Breonna Taylor, Ahmaud Arbery, and Tony McDade, four of innumerable Black lives stolen due to police violence and systemic racism. 

In 2016, the CUC faced a hard truth—our White majority trainings made it difficult for people of color to fully participate and be vulnerable in a space meant to be inclusive and safe. Our leadership neglected this reality for years, and would have likely continued had it not been for the efforts and courageous honesty of Lacey Wilson and Natalia Lopez-Whitaker, who shared their insights and sentiments. 

In the following years, we convened a small group to create safe, effective spaces to dialogue about race and racism, and build relationships in the process. We call this Real Talk, and this is a program that we are continually deepening and expanding. 

White supremacy is woven into the very fabric of conflict resolution and mediation. Our June newsletter feature will be dedicated to racial bias in conflict resolution. We are also compiling resources for mediators and conflict resolution professionals who want to work towards becoming more conscious in their own practices and help turn the tide against systemic oppression. These tools are being linked under the resources section of our website, which you can access by clicking here. If you have any resources you would like to share—please, send them to Kayla Hellal

We will be holding a four-hour online training, Real Talk: Intentional Conversations Between the Races, June 12 and 19. Accessibility is important for us and if you want to participate in our Real Talk program next week, but cannot afford the registration fee, or have any other access needs, please contact Kayla and we will work with you. 

With humble regards,
The Center for Understanding in Conflict

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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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