As future and present mediators, we are always at a critical juncture. We have choices as to how to respond to conflict. We need to decide how to provide a safe, trusting space for people to work together; how to approach the issues being presented; and how to acknowledge the differences that may be apparent or hidden that act as additional obstacles to the parties coming together. We can focus on how we “get through” this “next” mediation or how we can see the “next” mediation as another opportunity to help people learn from the conflict and about themselves. We are also always balancing any stressors happening in our own lives, despite our desire to be professional and present. In the time of Covid-19 with the additional pressures of a global pandemic intensifying financial, racial, religious, and health issues, the internal and external pressures are intensified. Our work looked different, but the pressures remained.
With the use of virtual environments, mediators globally have moved sessions online. The new platform provides video and audio interaction to allow all participants an opportunity to connect, even when it is not possible in person. Numerous workshops and programs have been developed to help people become adept at using these technologies and many mediators quickly moved online. Clients have also had no choice but to adjust.
As mediations have continued, they required we slow down the process of “getting through the next mediation” and begin thinking more intentionally about the work we are doing. Kahneman (2011) calls the more intentional “slow thinking” a cognitive process that is more rational, deliberate, and effective. Kahneman believed we are more vulnerable to mistakes when we move quickly and overconfidently. Mediation during the time of Covid became a more intentional process.
Along with being more deliberate, our thoughts benefit from being more compassionate. Numerous authors in business, healthcare, leadership, and economics, have indicated that compassion is critical during this time. We know from Bloom’s (2016) work that empathy itself can cause us to lose perspective because we become enmeshed with the problems. Norton, Johnson, & Woods (2016) indicate that lawyers are uniquely vulnerable to fatigue due to compassion. The competitive nature of law, self-reliance, lack of self-awareness, isolation, and acceptance of the adversarial environment all were seen as contributing factors to increased stress-related illness and burnout among attorneys. Taking on the clients’ pain only adds to the pressure. Given that most mediators are also lawyers, stress becomes a factor in many mediations. A reflective process that would help individuals see the need for a different model has not been the norm for most law firms, court systems, or mediations.
Bloom (2016) suggests that if we show “radical compassion” instead of “empathy,” we can become sensitive, respective, and more helpful. Rather than producing burnout, radical compassion causes individuals to feel more energized, engaged, and willing to help more. Just as a physician can move from patient to patient, a mediator may avoid burnout and continue to attend to issues when dealing with multiple conflicting situations by using compassion, not empathy. Bloom (2016) continued that compassion enabled individuals to see the suffering, show concern, exhibit kindness, and help. The helping process became rewarding instead of being draining. Jackson (2020) echoes this thought, that compassion might emerge as a most important element in how we approach ourselves and our work, especially during the pandemic. It holds promise for lawyers, who are predisposed to stress and often taking on the issues of clients.
From neuroscience, Singer and Klimecki (2016) validated how stressful situations had different effects on us depending on how we approached the conflicts. Empathy was stressful in and of itself. It was associated with “self-related emotion, stress, poor health, burnout, withdrawal, and non-social behavior” (p. 875). Compassion did not produce the same outcome. Compassionate responses created “other-related emotion, positive feelings (e.g., love), good health, approach, and prosocial motivation” (Singer & Klimecki, 2016, p. 875). They summarized that the research had implications for individuals helping other people in stressful situations. It clearly had ramifications for those in mediation and law.
Lawyers have not been at the forefront of discussing how to integrate compassion into practice. During the covid-19 crisis, this has not changed. However, we know from Detrani (2020), that “there is a sense of interconnectedness that brings comfort to those of us who tend to overthink things (read: every lawyer ever). An acknowledgment that we are in this together –- whatever “this” turns out to be when it’s all said and done.” The demanding environment combined with individuals prone to stress makes compassion a necessity. The mediation setting is an excellent place for the less adversarial environment to happen. Helping the mediator to relinquish responsibility for the outcome, emotional ownership for the pain that has happened, the onus to find a quick remedy may provide a less stressful and more successful process. Especially during times of crisis and stress, it is important to respect, to listen, and to focus on what can be done together. It provides an environment that helps everyone.
We know that especially for mediators, a compassionate approach has value. Compassion has always been an important cornerstone for helping people change. The intersection between caring and understanding brought together the elements that also had the most influence on positive therapy outcomes (Bayne & Hays, 2017). Compassion also has a positive impact on conflict resolution. In a study of the impact compassion has on conflict, Klimecki (2019) cites “growing evidence that empathy and compassion are associated with more prosocial behavior in interpersonal relations. Furthermore, empathy and compassion have been associated with more favorable attitudes and higher readiness for reconciliation across a range of intergroup settings.” While mediators may not always see compassion as a powerful approach when entering into a conflicted situation, it is effective.
Compassion towards self also needs to be included. In a study by Yarnell and Neff (2011), they looked at how individuals balance their personal needs with the needs of other people when in conflict. “Across contexts, higher levels of self-compassion were related to a greater likelihood to compromise and lesser likelihood to self-subordinate needs, as well as greater authenticity, lower levels of emotional turmoil, and higher levels of relational well-being” (p. 146). The application of self-compassion has legitimacy and value, especially for mediators. Knowing that all conflict is layered and intensified, taking time to respect and honor the struggle in each other and ourselves is important.
Christian (2017) described “compassionate curiosity” to explain approaching conflict with respect and staying present with the conflict. It was an active approach to taking compassionate understanding into mediation. Compassion was not a static experience, but one that facilitated movement in mediation. At the heart of the process, what made a difference, was the mediator having an approach that respectfully embodied a caring attitude. Rosler, Cohen-Chen, and Halperin (2017) showed how compassion was important during the beginning of the conflict. Helping individuals show compassion was critical in the important phase of conflict when it is easy for the process to escalate. Their research studies also pointed out that hope was important as the conflict “deescalated” and the process became more conciliatory. The value of respecting, understanding, and honoring the discomfort and anger people were experiencing and understanding how it was part of a process culminating in peaceful resolution of differences was anchored in psychological research. It has also been shown to be beneficial in mediation.
We gained an integrated perspective of the importance of systemic compassion from Rothbart & Allen (2019) in their study looking to promote peace. Their review showed how inducing compassion through mediation training, individuals in conflict felt more connected and had deeper positive feelings toward the other person or group. Drawing from brain research, they validated that the positive changes in perception were evident at the neurological level. A compassionate approach to resolving conflicts impacts not only the resolution of the issues but creates a more positive, respectful environment. In the time of Covid-19, a compassionate approach may help conflicted parties not only find a resolution to their concerns but become more understanding of other people.
Integrating compassion into our lives and our work takes effort. In an environment that is competitive, ego-driven, and layered with complex contextual pressures, it is even more challenging. Despite compassion having many intrinsic and extrinsic benefits, it takes time to master. “As with many habits that are useful, developing compassion takes consciousness, effort, and practice. We each have an innate capacity for compassion but must develop it like any other skill” (Noll, 2005). It is important to remember that it is a process. Becoming compassionate may be intertwined with emotions that we feel about our own abilities and worth, just as we learn to honor the value of others.
Approaching mediations with compassion means we need to be open to seeing clients, others, and ourselves with more consideration. It means we need to focus on the courage our clients have shown in taking their issues to a third-party mediator, the vulnerability involved in a conflict, the stress we are all experiencing during the pandemic and economic challenges. It means as mediators, we do not need to make their pain our own when we want to be helpful. We need to listen beyond the words. It means we all remember that underneath the anger is hurt and embarrassment. The vulnerability seldom shows itself in mediation, but it is always there. If we want to be more effective, we need to become more open to listening beyond the harsh words and seek to show compassion and understanding of the broader interests as well as the common humanity uniting them…and all of us.
For mediators who are lawyers, the message is even more pressing. During a global pandemic that has unsettled every area of our lives and threatens our existence, we must be more aware of the important lessons compassion offers us. As Detrani (2020) indicates, “the silver lining might just be that the legal world is a little bit kinder, a shade less cut-throat, a better place to find your way not just as a professional but also a person — a team in which we all root for each other.” We all have much to gain by moving away from looking at “wins” and “losses” and the commonly practiced expedient approach in focusing on quickly resolving the “next” conflicted situation.
We are at another juncture. As mediators, we need to move beyond taking on the pain of those in conflict and allowing our schedules to push us into automatic responses to resolutions. We need to remember we are peacemakers. We need to see the potential inherent in realizing each conflict is an opportunity to help people see hope even when feeling hopeless, to see that the “other” persons in the conflict are more like them than different. We can be more compassionate and gentler with ourselves. We can begin realizing that we can take any conflict and see it as a way to be more intentional, to listen better and deeper, to heal relationships, and to bring people together. To be the most effective during this time, we can use this opportunity to call on our higher selves and help make peace.
Bayne, H., & Hays, D. (2017). Examining conditions for empathy in counseling: An exploratory model. Journal of Humanistic Counseling, 56, 32–52.
Bloom, P. (2016). Against Empathy: The Case for Rational Compassion. New York, New York: Harper Collins.
Christian, K. (2017). Finding confidence in conflict [Video file]. Retrieved from https:// americannegotiationinstitute.com/about/
Detrani, J. (April 2, 2020). Practicing Law-And Compassion-In a COVID-19 World. Above the Law. Retrieved from: https://abovethelaw.com/2020/04/practicing-law-and-compassion-in-a-covid-19-world/ .
Jackson, J. (May 20, 2020). Compassion in the Time of COVID-19. Forbes.
Kahneman, Daniel. (2011) Thinking, fast and slow. New York, New York: Farrar, Straus and Giroux,
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Norton, L., Johnson, J., Woods, G.. UMKC Law Review , (2016), 84 (4), p. 977-1002. Kansas City, Missouri: University of Missouri-Kansas City, School of Law.
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