Welcome!

Welcome to our blog!  In these blogs, we explore topics that may facilitate self-reflection, contemplation, mediation, or reconsideration of the way to connect with others when in conflict. The topics we address reflect the core elements of the mediation process. In mediation training, individuals always tell us that “these topics help us to become better people as well as better mediators.” We agree. Developing the ability to self-reflect gives us a better understanding of how we and others relate to each other. We learn how to better listen, respect, and understand each other.  The concepts of being present, understanding our issues, making peace with conflict, and becoming comfortable with silence, as well as many others, are critical if we want to be peacemakers. We have learned that we need to be at peace with ourselves if we are ever going to be able to help others find peace in their relationships.   These topics can help us begin to develop skills that are useful in business, education, law, government, our communities, and our homes.  

With over 50 years of combined experience in mediation, we realize that the process of conflict resolution is not discrete or stepwise, but a dynamic that reflects how we understand ourselves and our relationships. In working nationally and internationally with individuals wanting to be more effective in mediation, we have learned that the first part of this endeavor starts with ourselves.  We look forward to exploring these thoughts with you as we travel together toward finding a more peaceful way of being with each other. 

Mary Lou and Ken Frank

Anger is a Precious Gift

We all have a contentious history with anger. It is something we realize is inevitable, but it also arises when we are most unprepared for it. Sometimes, we are overwhelmed by it because it signals warning. With our amygdala raging, we circumvent any higher order, logical thought that the prefrontal cortex is begging us to engage.  Our emotional experience of anger overtakes our perceptions. It can happen to us as mediators, to those in conflict, and to anyone engaged in the human experience.

The Buddha indicated that greed, delusion, and anger are the three negative cognitive qualities. Even the Buddha doesn’t describe anger as a positive trait. We know that anger may happen because we are emotionally wounded, or we are caught off guard and feel threatened. Whatever its origin, once we are angry, we lose the ability to see clearly because we are stuck in a cycle of blame and hurt.

For most of us, we work out of our rendezvous with anger because someone listens to us and we feel heard. Sometimes, we develop insight on our own and begin to think rationally about what has happened. Maybe we grow weary of the emotions elicited by anger, and it fades away. Regardless, we move on, but we are more vigilant thinking it might return.

If we were to see anger differently in mediation and in our lives, we wonder if it would be less threatening to us and to other people. What if we held our anger, like a precious newborn child, with wonder and respect. If we were to see through anger to its emotional components a gift of deeper insight and compassion, would it be something we feared? Can anger teach us something if we are more careful with its gifts? In mediation, could we see it as the answer to the conflict instead of anger being something to avoid? We wonder if we could change our history with anger. While we realize the potential danger in it, we might see that anger also holds deeper understanding.

A Contest or a Journey?

When we as mediators enter the mediation room, we bring our personalities, our preferences, and our motivations with us. The more we are aware of ourselves, the more we know exactly what these mean for the mediation and how they will impact the process. Many times, when we move into the “next” mediation on “autopilot,” we may forget and that lack of awareness will be a part of the conflict. 

 We became mediators for several reasons.  Whatever the initial motivation, we may find ourselves with a schedule full of meetings, trainings, and mediations. The motivations to work through the conflicts are manifest in how we approach the mediations themselves.

 Some mediators we have known post in their emails the number of successful mediations they have accomplished. They also include all the awards they have been given reflecting how good they are at brokering settlements. While these accolades are admirable, for them, they see mediation as a “win” or “lose” experience. If they get a settlement, they can chalk up another “win.” If they can’t, it breaks their streak and it is a loss. Mediation becomes a contest and ability to prove their prowess. This is no different than what these individuals felt in the courtroom. They advocated for their client and either “won” or “lost” depending on their abilities in trial or in their negotiation skills with the other side.

 After years of practicing meditation, we have noticed another type of personality and motivation. Other mediators never tout their “wins,” but rather humbly indicate they have helped people work together and maneuver their conflicts. They see the process as a journey and are not pressured by schedules or other external issues. Instead of a competition, they create a safe space where people can process the emotions embedded in the conflict. Their goals are wisdom, understanding, and healing. If there is a “win” it is brokered by the parties and the mediator doesn’t take the credit.

 Despite how difficult it may be to carve out time to give a mediation the time needed to create a more collaborative process, it is possible. The trap of schedules, financial pressures, and ego-driven needs can each be mitigated. But it requires an active choice and insight into looking deeper in ourselves to recognize our deeper values. Taking time to allow the parties to work through an issue, means the mediation won’t be controlled.  The process will be filled with detours through topics that weren’t on the table. It will seem to be imperfect in that there isn’t a quick “win” or resolution. However, this approach will bring about a longer lasting resolution to the conflict and the parties will be more satisfied with the process.  

 We need to realize our motivations take mediations in different directions. In previous blogs, we have discussed the research that shows what clients and individuals in mediation prefer. It is our motivations that will cause us to listen to the people in mediation. Alternatively, we can continue to make mediation another adversarial process within ourselves, shaping a process that results in a self-made contest to feed our egos.  

 It is important to remember that mediation is a journey of discovery, healing, and understanding. For some, it will remain an ego-driven experience to register another “win.” As always, the choice is ours.

Clarity

Mediation by its nature is a journey of seeking clarity. For the parties, it is important that each side begin to understand what the other side has experienced and needs. However, these elements are essential for the mediators as well. 

The mediators need awareness and clarity about themselves. For most mediators, it begins by clearing and cleansing ourselves to be open to be with this new conflict. It means letting go of previous mediations, it means releasing any unfinished business that still needs to be done at work or home. A positive, negative, or neutral stance may negatively impact the mediation. If violence has been a part of the part of the relationship that is being mediated, a totally neutral stance will not take into account the trauma and will unfairly benefit that abuser. Sometimes getting clarity takes minutes, other times it takes days or longer.

Clarity is also about boundaries. It means being aware of our mission in mediation. Not only do we respect the professional boundaries in the mediation relationship, but we also respect the parties to self-determine the outcome. We know that if we want to provide what people are seeking, we will be present to help empower the parties to resolve their issues. That respects their ability to determine the outcome. It means we as mediators don’t make suggestions, provide solutions, or add our interpretation to their conflict. We help facilitate their discussion but any decision they reach will be more likely to be satisfying and successful if they developed it themselves.

Carl Jung indicated that our awareness was based on making the ‘unconscious conscious.’ We can do this in mediation through self-understanding as well as a spirit of respect, curiosity (not judgement), compassion, and kindness.  Clarity is necessary for us but also for people in conflict. It allows us to help others find peace.

The Heart of a Peacemaker

Three years ago, the following poem was written as I was thinking of what is in my mind as a mediator. Because of the intense divisions in the world today, I have rewritten it thinking about the perspective of what is in my heart. We live at a time when peace is in short supply in many parts of our world, our communities, and our lives. We need more people to help bridge the divides we have created separating us. We need courageous people who can listen without judgment and be willing to give people ways to see what can be gained by letting go of hate long enough to encounter another person. We have that potential, whether it is on the world stage, at work, or in our neighborhoods. If only we choose to take the risk.

The Heart of a Peacemaker

Mary Lou Frank, Ph.D., October 18, 2023

Holding the promise of peace

In a sea of anger, fear, and confusion.

I walk into the “war room.”

Each time,

It is always new, but the anger smells the same.

Both sides are “Right,” often dead right.

The opportunity rests in listening.

And always, I learn.

When those in the conflict let go and see the other side,

Sometimes they forgive.

Other times, they recognize the common humanity they share.

Still, they may not be ready to disconnect from the dance,

Their egos, too fragile to admit fallibility,

Their positions are too entrenched.

If they concede, they feel they admit defeat.

They never realize that by not working together, they have already lost.

Whenever I leave the table though, I am humbled

That they would trust me with their pain, their vulnerability.

Whatever the outcome,

I hope they felt heard and know they could forge a path out of the struggle.

They could understand the other’s side.

They could stop the pain.

If only they take a risk on peace.

As I hope I do, each day.

©All rights reserved. No part of this work may be reproduced or copied in any form or by any means or translated without the prior written consent of the author.

Entering the Mediation Space

How do we enter the mediation space? Do we grab the file(s), a legal pad, a notebook and rush into the room? Do we make certain we look at any notes that might be available for the mediation? The mediation starts when we first see the people involved in the conflict. That is their first impression of us and of what they experience as the mediator and mediation. With most of our focus on the conflict, what needs to be resolved, the numbers or dollars involved, many times we don’t consider that the mediation has already started, and we may have lost the opportunity we have as a mediator to resolve the conflict.

With many mediators never bringing the parties together, this joint meeting may never happen. However, when the parties come together, we need to remember the importance in the process. As a psychologist, before each session I would take a few minutes, breathe, let go of whatever I was doing and get ready to meet the next client. I would set aside my notebook or legal pad because I needed to be ready to listen. When I was writing notes, it took away from listening.  It also made the client wonder what I was writing. I do the same when mediating. I stay focused on being present, ready, and open to learn.

Many writers have discussed creating a space for this time of preparation as a “liminal space.” It is a place “Where we are betwixt and between the familiar and the completely unknown.” (Rohr, 2020). It is a place where transitions happen.  Some people feel, this space allows us to be open to transformation or change. Moving from one mediation or workspace to another mediation, benefits from a pause, a chance to gather and be ready for what is going to happen next. We can prepare and set our minds on how we can bring our full attention to the conflict that has caused people pain and struggle. It allows us to be our best selves.

Without that opportunity, we never clear our minds from the business we just finished. We have the potential to go on “autopilot” and become a dispassionate technician rather than an engaged, involved mediator. Artificial intelligence could easily replace this objectified and distanced approach. We have a choice and what we choose can make a difference in the outcome of the mediation as well as our success as a mediator. Thinking we don’t have the time is a rationalization for not making the time.

Being a mediator is an opportunity that goes beyond helping them navigate the conflict presented in mediation. It begins a process for those in the mediation to learn from the process of conflict resolution. By listening and seeking to understand, they learn to work through conflicts themselves in other venues. Mediation can itself help people to see others and conflict differently. For something so important, we need to be ready and bring our best selves.

Duhumanizing the Other Person

It has been done for years. Individuals who are angry at another person or who want to put another group down for whatever reason, call them an animal or inanimate object’s name to describe the focus of their anger. Even writing these words makes it sound like something children would do to each other. It comes across as a silly, immature activity.  However, it is not. In fact, it is a dangerous practice.

 When someone uses a name of an animal or object for someone, they take away their humanity.  The process has a neurological component. We experience stronger “neural mirroring” which leads to empathy when people are seen as human (Simon & Gutsell, 2021). Their study also found that when we do not see the “other” person as “fully human” we have less empathy and less willingness to work together. They are not like “us” and aren’t afforded the same respect. We aren’t even aware it is happening, but it is easier to dislike, disrespect, and even engage in violence against someone who isn’t human “like us.” They are different and don’t deserve the same treatment as other humans.

 Dehumanizing others has moved beyond the elementary school playground. It has moved into our conflicts at work, our treatment of others in communities, the way we see other countries and our politics. It is easy to see why people get “stirred up” when they think another person or group is not “like us” and is not worthy of being treated as another human. The process of dehumanizing others is robust.  It detaches us from respect, empathy, compassion, and fair treatment.

 In mediation, our goal is to help “re-humanize” the parties involved. We help the parties listen to each other, understand the other person’s position and interests, and even respect that they have a point of view.  Once the “rehumanizing” occurs, empathy and compassion follow. People often say, “I didn’t know I was hurting you or how you felt.” “I didn’t realize you felt just like I did.” “We were both hurting each other.”  It takes some time, but the transformation is dramatic.  The energy shifts in the room and now there are two people working together to solve a problem who respect, even if they don’t agree, with each other.

 Each of us lives in a world where we see dehumanization happening. What is important is that we recognize it and don’t fall prey to its trap.  Labeling it means this dehumanization attempt can’t engage our “mirror neurons” to shut down. We realize that we may have differences, but we are all human and can work together. 

 On the playground, calling someone an animal name could cause a child to feel labeled and shamed. It causes pain and embarrassment. Often it requires an adult to intercede. However, we are the adults now. We need to intervene in mediation and in life to help heal both the person who has been injured and the person who has forgotten their common humanity. Sometimes, it is both sides who have forgotten who they are. Mediators are uniquely suited to the task.

Chat-GPT: The Value of “Words” in Mediation

Chat-GPT, an artificial intelligence program generates text that can be used in business, social media, classrooms, and publishing. Its potential is still to be explored, but it has garnered emotional reactions from many who worry about its misuse and some who see its potential. Academics are concerned that students will use Chat-GPT or any other program of its type to generate essays and exam answers rather than learn to write and think on their own. Professional writers worry this technology could be used to replace their efforts. The latest advent in technology has created a firestorm of controversy. 

Probably most interesting is the response from the mediation community. While there is not one unified reaction, many mediators seem to be anxious. Mediators and trainers are concerned that AI could be used to replace the mediator in a session, developing opening statements, strategies for negotiations, and responses to bring people to a settlement. Initial trials have shown that in mediations where the emphasis is solely on directing and then fixing the presenting “problem” facing the parties, AI has the potential to take parties to a practical “solution.” For the prescriptive, detached, directive, shuttle negotiation-focused, mediators of today, Chat-GPT is a threat, and maybe a good one.  

Chat-GPT provides an interesting challenge for a field that most recently has shown a diminishing desire to bring parties together to talk with each other and even less interest in responding to the emotional issues inherent in most mediations (Galton, Love, & Weiss, 2021). Mediators prefer using “caucuses” to never bring the parties together and then engage in shuttle negotiations to ensure emotions and true conversations are kept to a minimum if they are allowed at all. Healing the relationship has been seen as time-consuming. When time is money, the approach requiring more effort and skill was not seen as valuable. Despite research showing participant dissatisfaction with this model (ABA, 2017, Maryland Judiciary, 2016), many mediators have not changed and continue to defend the style of mediation that keeps parties apart and focuses only on “getting the deal done.” 

Perhaps the advent of Chat-GPT will prompt us as mediators to re-examine our purpose. If we are only focused on the “quick fix,” we can accomplish that using AI without the need of a live mediator. We know participants in mediation don’t like this model (ABA, 2017; Maryland. Judiciary, 2016), but it has remained a model embraced by many mediators because of its expediency. If, however, we ascribe to a higher calling in mediation, one that seeks to bring people together to heal their differences, to listen, to learn from each other, to work through the conflict together, then a human-centered model may sustain what mediation was developed to do years ago.  

American Bar Association (2017). Report on the task force on mediator techniques. Retrieved from https://www.americanbar.org/content/dam/aba/administrative/dispute_resolution/materials/2019-mediation-research-task-force-report.pdf  

Galton, E. Love, L. & Weiss, J. (2021). The decline of dialogue: The rise of caucus-only mediation and the disappearance of the joint session. Alternatives to the High Cost of Litigation, 39(6). Retrieved from: https://www2.mediate.com/mediationinc/The%20Decline%20of%20Dialogue%20--%20Galton-Love-Weiss.pdf 

Maryland Judiciary and State Justice Institute (2016). What works in district court day of trial mediation: Effectiveness of various mediation strategies on short- and long-term outcomes. Retrieved from https://mdcourts.gov/sites/default/files/import/courtoperations/pdfs/districtcourtstrategiesfullreport.pdf

Making Peace with Hate

Unfortunately, hate is a common thread throughout all our experiences in the world today. It fills the news, our world, our communities, and even our lives. Sometimes, we willingly participate in it. Even as mediators, it is easy to get caught up in everyday conflicts that move us to anger and hatred of the “other,” be it a person, a group, or an idea. Many times, we are not able to separate our hate of the position a person holds or a behavior they exhibit from our feelings about that person.

So, why do we hate?  Abrams (2017) indicates that the research shows it is complex and can come from several areas.  It may be a neurological response.  Sapolsky (2017) found that hate arose from an automatic reaction in our amygdala to someone or something that is different and therefore may represent a threat (real or perceived).   We see that “they” aren’t like “us” and may be dangerous.  Proceeding any cognitive process, our automatic reaction to someone that is “different” is fear.

Abrams (2017) went on to indicate that hatred may come from fear of ourselves. Building on the Freudian concept of projection, what looked like hatred of another person was actually self-hatred. Further, Kowalchyk, Palmieri, Conte, & Wallisch (2021) have gone on to validate that individuals who appear to be full of themselves and narcissistic did not have a self-inflated view of themselves, but instead harbored deep personal insecurity.  Although hate may be a reflection of hate for ourselves, it doesn’t diminish the impact it has on other people or groups.  Animosity carries with it the threat of violence and escalation. However, the process driving hatred  is more about “them” than about “us.”

Hate can further allow us to connect with other people who are also struggling with “helplessness, powerlessness, injustice, inadequacy and shame” (Golden, in Abrams 2017).  Collective hate becomes a way people who are insecure to connect and allows for negative group behavior to be condoned by those most needing help. Culturally condoned biases and a history of violence toward marginalized groups become integrated into this mix. Hurting other people, becomes a vehicle to temporarily alleviate personal and collective pain. Because the core issues of insecurity and shame are not addressed, the pain never diminishes, and the hate continues.

Self-understanding and awareness are important if we are to move beyond hating ourselves, each other, and any group that may be different. Learning to be compassionate with ourselves is critical.  For some, this is a lengthy process.  Regardless of the time required, it may be important to finally heal the shame that has bound us to a life of insecurity and self-depreciation. Whether low self-esteem is a result of personal trauma or groups feeling they are mutually not “good enough,” it is important to heal these wounds to move beyond the destructive behaviors that hate can generate.

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Stevens and Taber (2021) found that developing empathy for others could help in this process.  By caring for other people, we might learn to care about ourselves. Abramson’s research (2021) added that to develop empathy we needed to be willing to grow, we needed to expose ourselves to different ideas and people, and be willing to connect. In so doing, we might find common ground and recognize our common humanity.   However, the key is our willingness to be open to learn.

When we meet people filled with hate, we need to remember that it is a manifestation of their own issues, insecurities, and fears. It is challenging when that hate is directed toward us or institutions we respect. Still, by knowing that the hate is a really a reflection of their fear and self-doubt, it allows us to understand them better. Meeting their hate with more hate only feeds their fear and escalates it, despite the fact it is compelling to do so. It is important to remember that when we are secure in who we are and self-aware, our need will be to understand the other person, not to engage in hating. 

Making peace with hate is complex. Abrams (2017) outlined some important elements in understanding hate.  Other researchers have expanded on what is needed to help heal it. Still, the universality of the experience during these times, underscores the importance of a deeper commitment. Uniting to fight a common enemy after 9/11 helped the States come together for a short time (Hartig, H. & Doherty, C. 2021). However, the hate we are experiencing today is deeper and has only become more universal. Working through issues of personal and collective hate need to be unmasked. The real issue is fear. By recognizing our fears, we can develop a deeper understanding and compassion for others who are afraid. Seeing fear in others is a call for understanding and compassion. We need to be moved to realize hatred is not actually derived from the object, but a destructive process built on personal insecurity and low self-worth. Only by stepping back to understand the person and not engaging in the spiral of meeting hate with hate, can we ever begin to make peace with it. 

Abrams, A. (2017). The psychology of hate: Why do we hate? Psychology Today, https://www.psychologytoday.com/us/blog/nurturing-self-compassion/201703/the-psychology-hate

Abramson, A. (Nov. 1, 2021). Cultivating empathy: Psychologists’ research offers insight into why it’s so important to practice the “right” kind of empathy, and how to grow these skills. Monitor on Psychology 52(8), 44-48.  (CHECK)

Hartig, H. & Doherty, C> (September 2, 2021). Two decades later, the enduring legacy of 9/11. Pew Research Center. https://www.pewresearch.org/politics/2021/09/02/two-decades-later-the-enduring-legacy-of-9-11/

Kowalchyk, Palmieri, Conte, & Wallisch (2021), Narcissim through hthe lens of performative self-elevation, Personality and Individual Differences, v. 177, https://doi.org/10.1016/j.paid.2021.110780.

Sapolsky, R. (2017), Why your brain hates other people. Nautilus. https://nautil.us/why-your-brain-hates-other-people-236659/

Stevens, F. & Taber, K. (2021). The neuroscience of Empathy and compassion in pro-social behavior. Neuropsychologia, 159, https://doi.org/10.1016/j.neuropsychologia.2021.107925.

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The Power of Self-Awareness

Compassion and other-directed empathy have long been keys to enabling mediators to connect and bridge relationships between people in conflict. It has been believed that to be more compassionate in conflict, we just needed to listen deeper, be more sensitive, and focus attention on the pain of the other person. In training and in practice, I have also been one of those advancing this approach in mediation.  The model was supported by most mediation training programs and was encouraged so that mediators could better connect and know the other person, to better comprehend their position, and to understand their pain. At a most basic level, the goal for most of us was that by better understanding their unique position, we would promote deeper respect. By focusing on the experiences of the individuals in conflict, not only could the mediator but also the participants could understand each other better and then develop compassion for each other’s position. In many situations, it seemed to provide a reasonable way to facilitate connection and bridge understanding.

Current research has shown that may not always be the case. To develop empathy, Abramson (2021) indicated that mediators needed to be willing to grow, expose themselves to differences, develop behaviors like making eye contact, learn to identify common ground, be better at asking questions, understand their blocks to empathy, and question their assumptions and automatic reactions (p. 48-52). Only by developing that insight, could empathy hold the potential to decrease bias, increase helping behaviors, improve relationships, and facilitate healing in mediation. A compassionate approach to mediation could be developed in anyone who was open to learning about themselves.

The change in focus from the other person to concentrating on ourselves is significant. To be more compassionate or empathic, we need to be more open, willing to connect, and more aware. The key is in us not in them. The struggle is that it is easier to look at the other person who is in pain and exposed than it is to work on ourselves and examine our own vulnerabilities.

From my training as a psychologist, I learned that I needed to better understand myself in order that I might be able to understand other people. Along with training to be a scientist, for me to become a clinician, I had to look at my own issues personally and in relationships. It took training to learn how to ask questions, what questions to ask, how to be present, my own biases and weaknesses, and ways to be most effective in responding or in reflecting. Learning to help others was ultimately a journey of self-awareness.

To be an effective mediator, Abramson (2021) indicated it would seem to be a similar journey. Focusing on our own process, allows us to be more compassionate and better able to navigate conflict and bring people together. It is not just learning what it is like to walk in another person’s shoes. It is important to first learn how we walk in our own shoes.  Only then we can better bring our best selves to a mediation process and be effective at helping to heal a conflict.

Abramson, A. (2021, November/December). Cultivating empathy. Monitor on Psychology, 52(8), 44-52.

The Allostatic Load in Mediation

In understanding our health, the allostatic load is basically, the “wear and tear on the body” when we have been exposed to chronic stress. During the pandemic, we have experienced this concept when people have experienced environmental, physical, social, and emotional stressors for a prolonged period. It can be seen in chronic stress, decreased immune response, increase risk of cardiovascular and other diseases, insomnia, exhaustion, inability to concentrate, and the list goes on. Each of us could probably add additional items to that list.

The allostatic load exists in those seeking mediation as well. People in conflict are often stressed out by the continued tension and the financial, emotional, and social toll it has taken on their lives. The experience of this continued pattern of stress is evident in the intractability of the conflict. Asking the parties to tell their stories, generally brings out anger/rage, hurt/embarrassment, frustration/exhaustion. When conflict has continued without any resolution, the pain only intensifies. As mediators, we need to anticipate the fact they have reached “overload” and instead of avoiding it, help them through it. Feelings amplified by stress are still feelings and need to be worked through together.

Likewise, those of us who are mediators can also be fatigued by our allostatic load. Whether it is pressure from being immersed in conflict every day for months/years or the fact that some of the emotions being expressed by those in mediation continue to remind us of our own issues with conflict or loss.  We can get exhausted too. We become burdened by our allostatic load. It can lead to overload and burnout, neither of which facilitate our work in mediation.

Finding a space for our own mindful practice, having a good friend/counselor to process our emotional reactions, or having an outlet that allows us to decompress, are necessary. We need to engage in self-care if we are going to encourage the same for those we serve. We can help others through these stressful situations while we too don’t fall prey to them. First, we need to be aware of the impact long-term stress has on those coming to mediation and on us.  Then, we can begin finding ways to develop ways to respond to and work through it.  Like with so many things, it requires us to not only look at how to help others in mediation, but also the importance of looking at ourselves.

Honoring Research

Most mediators seldom engage in scientific study. It is not the focus of legal education or mediation training nor is it part of regular practice. Recently, though I have had mediators challenge research findings because “they know what works best.” It made us think, can we as individuals, without the benefit of candid feedback, really know what is best?

State, national, and international findings (Galton, Love, & Weiss, 2021) report that people in mediation prefer to work together with the other side to solve their conflict and that they prefer for the mediator/attorney to help address their emotions. To be candid, this wasn’t totally unexpected. Mediation was developed to bring parties together to address conflict and emotions. However, recently much of mediation has become “shuttle negotiation” with the two parties to the conflict never meeting together, no less working together to resolve the issue.  Keeping people apart also solves the problem of them becoming “emotional.” Emotionality should, as we have heard by some, be curtailed.

Unfortunately, multiple research studies tell us something different. Parties in mediation who do not meet together (even via zoom) and do not get to resolve their emotional issues, are not satisfied with mediation and take their cases to court. Regardless, of what mediators believe, clients prefer the process of mediation as it was developed, a way for people to come together, to be heard and to hear each other, and to work through their conflict. Resolving emotional issues is critical to the process and is not to be feared no less avoided.

The caucus was developed to allow intractable conflicts a space where individuals could, with the help of the mediator, re-focus on interests not just positions. What it has become is a way for some mediators to expedite the process by avoiding true “mediation” altogether. Galton, Love, & Weiss (2021) believe that law firms are “pressuring” their attorneys into this model because it allows for quicker resolution of cases. That is probably true in that speedy resolution of cases means more productivity and ultimately, more compensation.

However, we can’t help but wonder if the opportunity to avoid conflict and emotions is what draws some mediators to this “caucus-only” model. After all, dealing with conflict means we must learn to “be” with people when they are angry and upset. It means we need to develop skills in listening to their anger and helping them work through it and work together. This takes time, emotional energy, and abilities to facilitate discussions. In a world where time is precious, it may not seem “worth the effort.”

What the research points to, is that if we don’t allow people the space to come together and work through their emotions, the conflict is never really resolved. What seems like the most egregious act, is that people become dissatisfied with mediation itself, when they never experienced true mediation. All they experienced was a protracted caucus.

If we, as mediators, can’t at least be open to the fact that people are becoming increasingly dissatisfied, we will destroy the tool that allows us to help people come together. We have the potential to help people learn to peacefully resolve conflict. If we need more training to learn how to do that effectively, it is available. It is fine to practice “caucus-only negotiation” but don’t call it mediation. By definition, it isn’t mediation.

In a world where conflict is becoming the norm and is dividing every aspect of our lives, we need a model that allows us to learn how to resolve differences, not just avoid them. Avoiding the feedback provided in multiple levels of research, will only limit our effectiveness in the present and diminish mediation’s role in the future.

Galton, E., Love, L., & Weiss, J. (2021). The decline of dialogue; The rise of caucus-only mediation and the disappearance of the joint session. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3892338

Being Vulnerable in Mediation

Over the past few years, following the essential urge of Dr. Brené Brown, the topic of vulnerability came into the public consciousness. It had been there all along. People who were “natural” leaders, compassionate therapists and healers, inspiring teachers, and “good” friends were already adept at vulnerability. They knew that pretending to be “perfect” was a ruse and it only served to separate us. By being open with our own faults and fallibilities, other people could relate to us because they know they too are imperfect.

The latest works by Dr. Brown show the value of having good boundaries when we are vulnerable. That was always my concern when I first heard of the encouragement to be vulnerable. Vulnerability without boundaries is painful for everyone.  All of us have known someone who shared too much, cried too easily, and sometimes even used their being “vulnerable” to persuade. Vulnerability without boundaries also leaves the person without the protections necessary to survive emotionally.

In mediation, vulnerability can also, like most good things, be helpful when it is characterized by healthy boundaries. For a mediator, knowing when sharing a personal experience can be valuable.  Knowing when to not take away from the process is equally important. It can bring the parties in conflict together and reflect the common flawed experience of being human. Being vulnerable can even give rise to understanding and forgiveness.  However, sharing our own struggles for the sake of putting the focus back on us, only detracts from our goal of allowing the parties to own the mediation. It is the parties’ process after all and when we are at our best as mediators, we help facilitate them listening, understanding, and coming together.

The historic derivation of “vulnerable” is “capable of being wounded” or “having the power to wound.” Both of those meanings have relevance to mediation. Our openness to acknowledging we do not know everything is honest and vulnerable. In being open, we can be wounded, but we also become open to connection that being invulnerable does not permit. The second meaning, “having the power to wound” also has meaning to mediators. We have the power to cause harm if we do not have good boundaries in mediation. Interestingly, this duality is true for those in conflict as well. Showing our humanity with boundaries can allow us to connect even though we may be seen as imperfect.  Likewise, sharing too much can not only leave us defenseless and without boundaries, it may also become something that can hurt ourselves or create a situation that is ripe for influence.

Like many of you, the longer I have mediated or even trained mediators, I realize that what makes for healthy relationships also makes for a healthy mediation environment. None of us know everything and not one of us has a 100% satisfaction rating as a mediator.  All of us have made missteps, escalated a conflict, been unintentionally insensitive, and missed key issues that would have allowed a mediation to be resolved. We also have learned a lot about what does work, the value of transparency, how to help the parties own the process, how to see the gift in conflict, and how to own our mistakes. With that experience, we can also help parties be vulnerable in ways that enable connection, but do not harm themselves or the prohibit the process of healing.

Transparency

Just as the lotus flowers in the photo are not real and are actually floating glass sculptures, we need to be transparent with what mediation will mean for practitioners and clients. As mediation becomes a more important part of the dispute resolution landscape with courts in various countries and states implementing mandatory mediation provisions, we as practitioners need to be transparent with what mediation means for those who have been requested to use the process. However, even mediation practitioners cannot agree on what constitutes mediation with some practitioners using problem solving mediation, evaluative mediation, transformative mediation or other variations of mediation practice. Even more difficult is to convey to the users of a mediation process what they will be encountering.

Some of our colleagues, Daniel Rainey and Ana Maria Maia Goncalves have been working to develop something they have labelled a Universal Disclosure Protocol for Mediation (UDPM). The purpose of this effort is to be sure that everyone in a mediation has agreed to the same process. Further, the enforcement provisions of the Singapore Convention mean that a court could be enforcing a settlement agreement reached through mediation, and if the parties to the mediation did not realize all of the potential outcomes before agreeing to mediation, there is the risk of a coercive outcome.  Not only should the different mediation standards and concepts across international boundaries be considered, so should cultural differences within a multi-cultural society be considered. In short, the effort of the UDPM is not to try to standardize mediation, but to be sure that everyone involved in a mediation is aware of the mediation process and potential outcomes that could come from agreeing to mediation.

Disclosure discussions among the parties which will be involved in the mediation would ensure that everyone is working with the same set of assumptions, and would ensure the transparency of the mediation process. If there is total transparency at the beginning of the mediation, the parties will be much less likely to find themselves in a situation where a coercive outcome is possible without their understanding. Self-determination is still one of the most important values that guides mediation, and transparency will help to ensure that that value is honored.

Kuuki Yomenai (KY)

A Japanese word meaning that a person cannot “read the air,” Kuuki Yomenai” or “KY” for short, means that the person cannot tell what is happening in a social situation. Have we all been in that position? We think we can tell the context of a given gathering and we do not pick up on the subtle clues that are critical to navigating the meeting. It happens when we walk into a room where an event occurred and instead of taking time to “read” the air, we walk in with no sensitivity and no awareness, no “KY.” It happens at work, at home, and even in mediations.

We all know the importance of being sensitive, aware, and mindful in social situations. However, it is easy to miss important clues when we are distracted, self-focused, or on “autopilot.” When this happens at work, the stakes can be high. As a mediator, when you do not pick up the mood and emotions in a room, you are working blindfolded. Backing the process up and acknowledging your omission can provide you another opportunity to respond to the dynamics. However, we all have seen people who won’t admit their error in judgment, their vulnerability, and will continue the path they have set for the meeting regardless of its consequences.

Not being aware of the parties’ emotions, not being sensitive and willing to discuss the diversity that is present, and continuing to push people into caucuses when they ask to “meet together,” can all make the mediator seem that they are “out of touch” and “can’t read the air.”  Most times, the parties in the mediation are polite and possibly only out of their silence can the mediator intuit that something is missing. Other times, parties will leave or end the mediation. The mediator may even attribute their leaving to the fact that “they just weren’t ready to mediate” instead of recognizing their own “KY.”

As mediators, we need to be aware that we need to center ourselves and take a few minutes to breathe before we engage in mediation. We need to stay centered throughout the mediation so that we are present and aware during the session. This is true if we have been mediating for six months or six years. Regardless of the familiarity with the process, all of us need to remember the importance of responding to the social environment in mediation and the impact that “KY” can have on mediation and on us as mediators. If we do, we may learn that it was a lack of “KY” that caused the conflict in the first place!

Bodhicitta

In Buddhism, “bodhicitta” refers to the person whose goal is to show more empathy and compassion for the benefit of all beings; the individual is seeking an “awakened mind.” As mediators, at our best, we also are always seeking to show more compassion in our role of helping individuals through conflict. In that way, we can stay “awakened” to what is going on in the lives of those who come to us when they are most vulnerable.

 Again, this is not an easy task nor is it something that is actively sought out as important for the field. Neither mediators nor attorneys are required to have continuing education to help them be more compassionate. While it may be an aspirational goal for some, the “awakened mind” is not at the forefront of mediation training.

The field of mediation is not set up to “screen” mediators for their ability to show empathy in part because of the different ways individuals approach mediation. Some still see mediation as an extension of the adversarial process, it is another chance for attorneys to “battle it out” albeit outside of the judicial system. Others see mediators as a place where caucuses replace face-to-face encounters with the parties. Mediators use caucuses to engage in shuttle diplomacy and expeditiously solve the “problem” by bringing people into mediation.  This popular model affords the mediator a quicker resolution to the issue and a speedier financial resolution to the case. While many individuals do not consider this model real “mediation,” there are no rules that regulate what defines mediation. 

 Across countries and borders, mediation takes on the culture and customs of the people who shape it. Although there are some similarities in mediation, the process of bringing people together who are in conflict, varies depending on the individuals, the culture, the norms, and the expectations.  Likewise, how people view compassion also varies from individual to individual.  Research suggests (Galton, Love, & Weiss, 2021) that more individuals are looking to expedite the mediation process with caucuses because it takes less time than helping individuals work out their conflicts together. However, Galton, Love, & Weiss (2021) cite several studies showing that the individuals participating in mediation are not satisfied with the caucus model. Individuals in conflict want to be heard, want to hear each other, and want someone to facilitate the process. The caucus-only model does not help either side get the process they are seeking but merely focuses on a quick resolution to the legal issue that was presented. Individuals in conflict still have not been able to listen and hear the other side, work through issues, understand another person’s perspective, or come together so that not only the issue is resolved, but so is their ability to work together. Interestingly, it is just those elements that are missing most in our culture and our world.  “The trajectory of mediation may be mirroring a fractured, polarized society where the conversation is perceived as awkward, if not dangerous” (Galton, Love, & Weiss, 2021, p. 97).

 What might be most important is for mediators to realize we have options. We can be guided by a spirit of “bodhicitta,” seeking to be more empathic and compassionate to really help those in conflict, not just expedite a process for monetary gain. When we elevate our process, we may find a way through conflict that provides more satisfaction for all parties and even help individuals heal through a compassionate approach. In so doing, we may make an even more significant impact in our own lives, our communities as well as our world.

References

Galton, E., Love, L. & Weiss, J. (2021). The decline of dialogue: The rise of caucus-only mediation and the disappearance of the joint session. Alternatives to the High Cost of Litigation, 39 (6), pp.96-100.

Hineni: A Concept with Meaning for Mediators

The Hebrew word “Hineni” (הנני) is a simple and yet biblically powerful and complex term. At its core, it communicates, “Here I am.” It expresses a “physical, mental, and emotional presence” and willingness to serve.”  With only six letters, it relays a desire to listen, to be available, and to help. When we as mediators offer ourselves to intercede in conflict situations, we are communicating our willingness to be present in this space of vulnerability.

If we take mediation seriously, we are opening ourselves to do more than just hear the conflict, but to enter the conflicted space with the parties. It is our pronouncement that we realize the value of being present with another person. If done well, the mediation space exposes the pain and hurt that came from the conflict and can bring up similar issues for whoever joins them to help them through it.    

Not everyone approaches mediation in these terms. For some mediators, the process is prescriptive, and the underlying emotions of the conflict are intentionally ignored or reframed without process. The goal is to get a resolution and ultimately, get paid. There is no pretense to allow vulnerability to enter the room and if it does, it is quickly diminished or individuals are taken into a caucus to separate the feelings from the process.

After mediating for over twenty years, I have seen all varieties of mediators and talked with people who have experienced the process as a business arrangement (either being directed or manipulated) or as a transformative event. As a mediator, you will need to decide where you are on the continuum. Your work or culture may make you feel pressured to move people through the mediations to maximize profits. You may feel it is more difficult to be present than to be distant. Ultimately, you will decide what kind of person you would like to be with you when you are in a challenging conflict and may choose to be that sort of person for others.

Despite the hazards, being present and helping individuals find a way through conflict has intrinsic value as well as being more valuable to the people in the conflict. A comprehensive study done by the University of Maryland validates the importance of listening not directing and seeking to understand instead of telling them what will work best. If given a choice, the value of “Hineni” can create long-lasting healing and change. It takes courage and openness to say, “I am here and am willing to help” and then be present for the journey. However, it can be worth the risk.

Optimism

Optimism is a trait that pervades successful conflict resolution processes, especially mediation. In training classes of students in the basics of mediation, it is clear those who approach mediation with optimism have better results than those who approach it with fear or pessimism. If a mediator approaches mediation with a genuine sense of optimism and persistence, the fears and doubts of those who are in conflict are reduced. Sonia Sotomayor, Supreme Court Justice, United States Supreme Court, said, “I have never had to face anything that could overwhelm the native optimism and stubborn perseverance I was blessed with.”

If the mediator believes the mediation process will be successful, that sense of optimism will affect the entire mood of the process. Further, an optimistic belief in the success of mediation informs the persons in conflict that the mediator believes there will be an end to the conflict, and it will be successful. A sense of optimism is also a key factor in building relationships within the mediation environment—not only between the mediator and the parties in conflict, but between the parties themselves. The sense of optimism needs to be a deep seated and genuine belief as the parties will see through a mere façade of optimism. Moreover, optimism needs to be conveyed from the very beginning of the mediation process. To set a hopeful tone for the mediation, there should be an explicit statement by the mediator of a strong sense of optimism in the mediation process and the inherent abilities of the parties to reach a successful outcome to their dispute. That statement may be the first time that the persons in dispute have ever considered that the resolution of the issues dividing them is within their own power to resolve. The strong sense of optimism about mediation will make the sense of dread surrounding the courtroom something the parties definitely want to avoid.

An optimistic approach to mediation is not toxic positivity. In a blindly optimistic approach, a person disregards the pain and reality that the conflict is and has been difficult. The fear, anger, and frustration the parties experience is discounted if not ignored. However, believing in the process as one that can ultimately bring people together is vital to the potential for mediation to be successful. The mediator who is able to build improved relationships between the parties in dispute and empower the parties to shape the outcome is truly capable of transformational mediation. Quite simply, transformational mediation cannot be accomplished without a strong sense of optimism in the conflict resolution process as well as an optimistic view of the potential for the parties in dispute to be able to resolve the issues that divide them.

Humility

Currently, many of us do not live in societies that promote humility. Actually, in the western culture, it is quite the opposite. People are taught to promote themselves, to “speak up,” and to be assertive if they want to be heard. Individuals who are humble are often seen as weak, not capable, and not destined for leadership. It is not that way everywhere. In some cultures, we see humility playing a more important role.  However, in all environments, humility can be valuable for relationships, for leaders, and most definitely for resolving conflict.

In an online discussion on the topic of humility, Kenneth Cloke pointed to two perspectives. Mary P. Follet’s definition is that “Humility …is merely never claiming any more than belongs to me in any way whatever; it rests on the ability to see clearly what does belong to me. Thus, do we maintain our integrity.” How simple, yet how difficult. Cloke also reflected that C.S. Lewis had another perspective. C.S. Lewis said that “Humility is not thinking less of yourself but thinking of yourself less.” Unfortunately, it seems easy to dwell on our own needs and wants and maybe even confuse what is ours and what is not.  Yet, this process lies at the heart of conflict resolution.

Learning how to recognize what is ours and respecting the integrity of others to have a perspective, facilitates deep discussions. Conflict is a natural result of fear, anxiety, or anger getting manifest in relationships. Humility, which combines a respect for personal and professional boundaries and respect for the other person, can help us provide an amicable resolution. With humility, we show our strength in being able to set aside our egos to work together.

Inclusion

Inclusion

Gandhi once stated that “No culture can live if it attempts to be exclusive.” The artificial boundary of “us versus them” is one of the ways one group attempts to place itself in a superior position to other groups. We have seen the use of exclusion in many arenas in the course of human history. The exclusion is usually based on some criteria out of control by the excluded—gender, race, age and so forth. It was not that many years ago in the United States that women were excluded from voting, from serving on juries and from participating in certain professions. The absurd nature of that exclusion is that women, who comprise the majority of citizens, were excluded from fully participating as citizens.

Exclusion seems to be a major force in many of our institutions and the fight against exclusion appears to be a battle which has no end. LGBTQ persons are being excluded from certain church denominations in the U.S. and that battle is splitting these churches. The lack of women and persons of color from the CEO positions of Fortune 500 companies is another example of exclusion. The attempts to limit women’s education are another form of exclusion. Gated communities are popular in certain areas of the country because such gates keep out persons who are not deemed to belong. At our borders, persons in search of a better life and even asylum seekers fleeing persecution in their homelands are excluded from entry into the country.  Potential parents are excluded from adopting children because of sexual orientation. Even in the mediation profession, groups with certain educational backgrounds want to prohibit persons who lack those backgrounds from holding the credentials of a mediator. And as anyone who has studied dispute resolution knows, historically, the most successful peacemakers in our world did not come from a single profession or educational background.

The irony is that exclusion does not provide the safety that seems to be one of the strongest arguments advanced for exclusion. The reality is that the most dangerous people for any group, community or culture are those who have been excluded and marginalized. This time of COVID 19 has exposed and increased some of the fault lines in our societies, in areas such as access to health care, access to food, access to vaccines and access to education. The disparity between the “haves” and the “have nots” has expanded during this time. The safest and most humane response to all these disparities is to open the access to everyone. Inclusion should be the goal, rather than exclusion. Those of us that view ourselves as peacemakers need to do our part to be sure that there is inclusiveness in the policies around these issues and we need to use our particular skill set to encourage inclusion and access. Anthropologist and author Pearl S. Buck noted that “Exclusion is always dangerous. Inclusion is the only safety if we are to have a peaceful world.”