When I start a new case, there is often a lot going on inside of me.  I may still have leftover thoughts, feelings and emotions from other matters I have been working on or something going on in my personal life.  I may have developed a conscious or unconscious bias about the case just from a small bit of information (they are from “that” part of the county or oh – another case with someone in “that” field or who has hired “that” professional.)   I may be wondering if I am the right person for this type of case or these clients.  I might be worried about whether someone is going to explode in the first five minutes.  And I may want to simply know whether they are going to like me and retain me.

All of this chatter going on inside of me can take me away from being fully present and attending to what is happening on the outside that could affect the future of the case.  If I am feeling a slight aversion based on my initial unconscious bias about a party involved in the case, I could end up interacting differently with that party or the other party.  Or if I am even momentarily distracted by thinking about another matter while listening to one party in a mediation, that party may observe my distraction and conclude that I am not as interested in their story as the other party’s.  This can then become the seed that grows within the party, who several sessions later tells me that I don’t listen to them as much as the other.  When a party has said this to me, I have sometimes been perplexed because it doesn’t seem to me in the moment that I have listened more to one or the other.  But it may very well have been that initial seed that grew inside the party as an impression of me or it may have developed into a pattern of how we interact with each other that I have not been aware of.

So what do I do about this?  First, I try to become as fully as present as possible when I start, turning down the volume of the inner chatter.  My office is on the opposite building from the reception area, so I try to take the 30 seconds it takes to walk to reception to take a few deep breaths, let go of any burning thoughts (“I have time later to think about what to do about the Smith case”), and open my heart to the people I am about to meet.

During a session, I similarly try to stay present, listen carefully, pay attention to what is happening with the parties and other professionals in the room, observe the system and patterns we may be developing, and be conscious about how and what I am saying verbally and non-verbally.  Which is a tall order given that it is hard to let go of my striving to be friendly, professional, warm, and likable.  So that is a lot to be doing at once!  But I keep trying.

Most importantly, I take very seriously any indication from someone in the room that something is awry, whether explicitly stated or because I have a sense that something is off.  We talk about what is happening and what can be changed to address the unproductive dynamic or pattern.  And give permission to accept reminders or additional input if further bumps occur.  And once again, try to stay as fully present as possible.

As long as space endures
As long as there are beings to be found
May I continue likewise to remain
To drive away the sorrows of the world

With this as the backdrop, we have noticed that with a significant number of parties, as a
mediation session draws to a close, one or the other or both become aware of an issue that needs to be
addressed even though there will not be adequate time to address it. Or one party has been waiting,
not necessarily intentionally, for the time to say something to the other which might be incendiary to
the other and there won’t be sufficient time for the mediator or other party to adequately address it.
Or a party raises an issue sometimes intentionally knowing there is insufficient time to fully address to
gain a strategic advantage over the other. Even with the effort on the part of the mediator to clarify and
reach agreement at the beginning of the meeting regarding all of the topics that will be addressed, this
dynamic may recur. So what to do?

First, we can see if this topic can be tabled to another session when there will be more time to
adequately discuss it. If not, our principle of proceeding by agreement would call for us to see if we can
reach an agreement with the parties to add another topic knowing that at best, there can only be a
partial discussion. Third, there could be an agreement to continue the dialogue beyond the session
either in writing or by telephone if there is such time urgency that it can’t wait for another session.

There is however, another dimension to it all and that is, that there is often a fear on the part of
a party to fully discuss a particularly difficult or sensitive issue and that is the reason why the issue is
only raised when the person knows there will not be adequate time to discuss it. This calls upon the
mediator to be sensitive to this possible dynamic and be able to have a conversation with the parties
where this dynamic is directly discussed. This is especially important if this pattern is recurring because
it could be an indication that there is a more fundamental dynamic that needs to be changed for the
parties to feel if they are working together effectively with the mediator.

The mediator often needs to include an observation on their own participation in the dynamic.
For example, it could be that the mediator chooses to run overtime with the parties and is not willing to
set clear boundaries for the parties. It could be that this dynamic takes the parties beyond the point of
being able to work productively with each other because they are so tired. And if it becomes a pattern,
it can mislead the parties into believing that there really is more time available than three minutes.

Often, when this dynamic occurs under the pressure of time, people can feel pushed into

making agreements that they will regret later, which creates the illusion of progress when the
agreement can easily become unraveled when the parties have the opportunity to really reflect on what
they have done. So again it is critical for the mediator not to judge the success of the mediation by
whether the parties are reaching agreements, but to see whether the agreements are solid, understood
by the parties, and makes sense to the mediator.

Norman Fischer, one of our teachers, has written a long poem about conflict, some of which was
actually written during sessions where he was participating as a teacher during our self reflection
programs. The book is extremely evocative and we recommend it as a way to appreciate the many
dimensions of conflict that are difficult or possible to express in ordinary discourse.

Marin County, California

Map and Directions | Register

Description:

The Mediation Intensive Training provides both experienced mediators and those new to the field with the perspective and skills necessary to work within the Center’s model of mediation. Participants learn what it takes to shift from a stance of advocacy to one of mediation – for professionals and parties alike. The program is open to attorneys as well as other professionals working to integrate the principles of mediation into their practice or work. Our prior participants have included ombudspeople, collaborative coaches, family business consultants, non-profit staff and other professionals who work with conflict.

PROGRAM HIGHLIGHTS:

• Reaching an agreement to mediate;
• Establishing parties’ responsibility for decisions;
• Working with attorneys and other professionals.
• Supporting each party’s autonomy while encouraging mutuality;
• Understanding fully each party’s point of view while remaining neutral;
• Dealing with conflict by enhancing understanding;
• Employing analytic skills in clarifying issues and goals;
• Integrating the law;
• Generating bases for decision other than law;
• Developing creative options that address differing needs and interests;

METHODS AND OUTCOMES:

The learning addresses the practical, theoretical and personal dimensions of integrating an understanding based perspective into your practice. Training at the Center combines presentations, teacher demonstrations, case simulations and discussions. Concise briefings introducing the five stage model and tools of the Understanding Based Approach alternate with demonstrations and role-plays designed to immerse the participants in the mediation process. Central to the learning are real to life simulations in which the participants work through mediations from beginning to end. Each participant has the opportunity to role-play, in turn, mediator and party. They have a chance to apply the concepts and skills introduced in the briefings, and to experience the emotional challenges faced by parties in dispute. Participants have described these different modes of learning and their interplay as enjoyable as they are engaging and rewarding.

Participant quote – “Exceeded my expectations 1,000 fold. Well organized. Clear teaching and facilitation. Clear materials. So much information for such a short period of time.”

WHO SHOULD ATTEND:

The program is open to attorneys as well as other professionals working to integrate the principles of mediation into their practice. For continuing legal education purposes, the Mediation Intensive Training is appropriate for both newly admitted and experienced attorneys.

CONTINUING EDUCATION CREDIT:

The Center for Understanding in Conflict, as the Center for Mediation in Law, has been certified as follows:

• In California, as a continuing legal education provider of Minimum Continuing Legal Education by the State Bar of California. The Mediation Intensive Training will qualify for MCLE credit in the amount of 40 hours (8 hours Legal Ethics; 1 hour Law Practice Management; and 1 hour Elimination of Bias).

FEES:

The program fee is $1,350, plus the facilities fee described below. An early bird discount of $100 applies if you register 30 days prior to a program.  There is an additional facilities fee described below, which varies depending upon the housing option chosen.

LOCATIONS:

The Mediation Intensive Training is conducted in Northern California at Green Gulch Farm, located in Marin County, a rustic and unique facility within walking distance of Muir Beach and the Pacific Ocean.. We recommend you stay at the facility to maximize your learning.

Facilities Fee:  If staying at the facility, housing costs (which include meals) are as follows: Private room-$650 or Shared room-$450. If commuting, the fee is $200. For more information, go to www.sfzc.org.

SCHEDULE:

The trainings begin on Wednesday afternoon at 2:30pm through 9:00pm. Thursday, Friday and Saturday the sessions run from 9am – 9pm (with ample breaks for meals and rest). The program wraps up on Sunday with a session from 9am – 12noon.

TO REGISTER:

Participants will be accepted in order of registration. We will confirm your reservation as soon as you are placed in the program. Class sizes are limited to facilitate individual learning. Due to the interdependent nature of learning, attendance at the entire program is necessary.

Either download and print the Mail-In Registration Form or fill out the form below to register online.

(Wait List)

Marin County, California

Map and Directions

Register

Bailey Farms

Map and Directions | Register

Description:

The Mediation Intensive Training provides both experienced mediators and those new to the field with the perspective and skills necessary to work within the Center’s model of mediation. Participants learn what it takes to shift from a stance of advocacy to one of mediation – for professionals and parties alike. The program is open to attorneys as well as other professionals working to integrate the principles of mediation into their practice or work. Our prior participants have included ombudspeople, collaborative coaches, family business consultants, non-profit staff and other professionals who work with conflict.

PROGRAM HIGHLIGHTS:

• Reaching an agreement to mediate;
• Establishing parties’ responsibility for decisions;
• Working with attorneys and other professionals.
• Supporting each party’s autonomy while encouraging mutuality;
• Understanding fully each party’s point of view while remaining neutral;
• Dealing with conflict by enhancing understanding;
• Employing analytic skills in clarifying issues and goals;
• Integrating the law;
• Generating bases for decision other than law;
• Developing creative options that address differing needs and interests;

METHODS AND OUTCOMES:

The learning addresses the practical, theoretical and personal dimensions of integrating an understanding based perspective into your practice. Training at the Center combines presentations, teacher demonstrations, case simulations and discussions. Concise briefings introducing the five stage model and tools of the Understanding Based Approach alternate with demonstrations and role-plays designed to immerse the participants in the mediation process. Central to the learning are real to life simulations in which the participants work through mediations from beginning to end. Each participant has the opportunity to role-play, in turn, mediator and party. They have a chance to apply the concepts and skills introduced in the briefings, and to experience the emotional challenges faced by parties in dispute. Participants have described these different modes of learning and their interplay as enjoyable as they are engaging and rewarding.

PARTICIPANT QUOTES:

“Exceeded my expectations 1,000 fold. Well organized. Clear teaching and facilitation. Clear materials. So much information for such a short period of time.”

“Very heartfelt as well as well-designed and amazing content. I can feel how much time, hope and love goes into preparing to teach this class.”

Please see below for additional quotes by participants.

WHO SHOULD ATTEND:

The program is open to attorneys as well as other professionals working to integrate the principles of mediation into their practice. For continuing legal education purposes, the Mediation Intensive Training is appropriate for both newly admitted and experienced attorneys.

CONTINUING EDUCATION CREDIT:

The Center for Understanding in Conflict, as the Center for Mediation in Law, has been certified as follows:

• In New York, as an Accredited Provider of Continuing Legal Education in the State of New York by the New York State Continuing Legal Education Board. The Mediation Intensive Training will fulfill 40 NY MCLE credit hours (6.5 Ethics credits; 19.5 Professional Practice credits; and 14 Skills credits).
• In California, as a continuing legal education provider of Minimum Continuing Legal Education by the State Bar of California. The Mediation Intensive Training will qualify for MCLE credit in the amount of 40 hours (8 hours Legal Ethics; 1 hour Law Practice Management; and 1 hour Elimination of Bias).

FEES:

The program fee is $1,350. An early bird discount of $100. applies if you register 30 days prior to a program. A deposit of $400.00 is necessary to secure your registration. Please note that your will be  billed separately for lodging and meals.

LOCATIONS:

The Mediation Intensive Trainings are conducted in Northern California and New York, at residential conference/retreat centers. We recommend you stay at the facility to maximize your learning.

New York site: Bailey Farms, 45 minutes north of New York City in Westchester County. Lodging and meals are an additional  $530 (shared  accommodations). The commuter fee (meals included) is  $300. Single rooms, if available, are $780. Room preferences are to be indicated in the process of registering for the program, as indicated below. For questions about the program and the registration process, please contact:  training.ny@understandinginconflict.org.  For  general information about the Bailey Farms retreat and conference center, please visit www.BaileyFarms.org.

SCHEDULE:

The trainings begin on Wednesday afternoon at 2:30pm through 9:00pm. Thursday, Friday and Saturday the sessions run from 9am – 9pm (with ample breaks for meals and rest). The program wraps up on Sunday with a session from 9am – 12noon.

TO REGISTER:

Either download and print the Mail-In Registration Form or fill out the form below to register online.

Participants will be accepted in order of registration. We will confirm your reservation as soon as you are placed in the program. Class sizes are limited to facilitate individual learning. Due to the interdependent nature of learning, attendance at the entire program is necessary.

PARTICIPANT QUOTES:

“Excellent, and it surpassed my expectations. The instructors, across-the-board, were masterful. Through their personalities and the depth of their knowledge, they made an intensive program flow smoothly and effectively. The use of the word ‘intensive’ was certainly appropriate. Yet I found it effective in assisting me in not only understanding, but also in internalizing the methodology.”

Andrew Zwerling, Senior Litigation Partner, Arbitrator, Mediator, Garfunkel Wild, P.C., Great Neck, New York

“I would go as far as to say that it was a life-changing experience. It was probably because of where I am in life, but more than that, it was the care and knowledge the trainers showed throughout the training that made this experience so transformative. Pedagogically, the training was excellent. In addition, the participants were some of the most engaged, passionate, and interesting people I have ever met.  The well-organized material was incredibly useful and the philosophy of mediation, extremely moving.  You have and everyone has given me an enormous gift.”
- Yuko Uchikawa, Mediator Brooklyn, NY

“I can’t say enough good things about this program.  Jack and Katherine led a program that I believe not only enhanced my ability to help parties through conflict, but also encouraged personal reflection and opened participants to the possibilities of transforming, bit by bit, our broken formal dispute resolution system.I thought the program was extremely well-considered and organized; the instructors were first rate, as were my fellow participants.”
Allen A. Drexel, Family Lawyer and Mediator, Drexel Grande LLC

“Having had well over 100 hours of previous training, I feared this program might cover too much familiar ground. Those fears vanished within the first 20 minutes and were replaced with the thrill of discovering a richer, deeper mode of mediating. While a great and challenging introduction to ‘understanding’ mediation, I recommend this course to even the most seasoned mediators. It will reinvigorate and inspire you. Fantastic. Well organized. Stimulating. Provocative.”
Steven M. Rabinowitz, Mediator/Lawyer Pryor Cashman LLP, NYC.

“This training helped me integrate knowledge, emotions and a spiritual dimension into my work as a collaborative lawyer and mediator.  I can now approach my work with greater authenticity and an open heart.”

Mariette Geldenhuys, Collaborative Attorney and Mediator, Ithaca, New York

Register

Our work in the Understanding-Based approach to mediation and collaborative practice gives direct attention to how people get trapped in their conflicts, recognizing the outer and inner dimensions of that trap, and how we can work effectively to support them in finding a way through and out of their conflicts.  We start that inquiry in this newsletter, and will continue it in the future.

Being against the other, Judgment and the Conflict Trap

Court cases in the U.S. (and likely in many other countries) are labeled Plaintiff Versus Defendant, which means, of course, one side “Against” the other, e.g. Jones vs. Jones, Sander, Inc. v. Mainline, Inc.,  State v. Foster, etc.  Many lawyers typically label their legal files (or correspondence) in the same manner.  When mediation cases started, mediators and lawyers had to decide how to label their files (or correspondence) since “Against” was not the spirit of mediation.  While there is no official nomenclature, most mediators use “Jones with Jones,” or “Sander, Inc. with Mainline, Inc.”

This simple difference has enormous implications.  While parties to a dispute differ, often strongly, they need not be seen or see each other as “against” one another.  Rather, they can see and be seen by each other as trying to work “with” one another.  The spirit and reality of that possibility can be vitally important in how people think and feel about and experience conflict. But the scope of that challenge in reaching for that difference can be hard to realize or even understand. Yet the promise is there. Since conflict is so rampant, and too often so destructive, the possibility of touching that promise in a meaningful way holds enormous potential for the development of mediation and collaborative practice and for so much more.

The challenge is great. Conflict is and will continue to be widespread.  It is the all too normal way relations (business, personal, social) develop, evolve, are sometimes clarified, and too often run askew.  But the destructive ways conflict is so often experienced and dealt with are not inevitable. And the differences in how we deal with conflict can contribute not only to whether mediation, collaborative practice and other alternative processes for conflict resolution are constructive and wise, but also to how we live with one another in the world.

-          Right and Wrong

In conflict, the general social perception (from inside the conflict or from outside) is one between right and wrong.  Each side experiences itself as right and the other wrong, and each readily believes and feels that it needs to prove itself right and the other wrong.  That is not only the model in court, but also on television, in the press, sports, schools, politics, in and between families, etc.  It has fueled ethnic, religious, international conflicts for centuries at enormous human cost.  Indeed, the right/wrong framework has stayed firmly with us since the day that Cain killed Able. Once caught in conflict’s

In short, “right and wrong” holds enormous power over individual psyches and our social psyches.  Advertisers know this, which is why so many TV programs are grounded in the struggle between right and wrong. “Who done it?” And “will they get what they deserve?”  “Right and wrong” touches us deeply.

The turn toward mediation, collaborative practice and other “alternatives” is a movement, as we see it, away from a rigid right/wrong perspective on differences to one that allows that each side has right, or, stated differently, that we need not see things strictly in terms of right and wrong.  But that other possibility is enormously hard to achieve, or often even to understand.

While it would likely be a mistake to see all differences as simply relative in a value neutral world where there is no right and no wrong, many, many conflicts involve and are sustained by strongly differing perspectives where the experience of the disputants is very much that they are right and the other wrong.  Or, at the very least, that their actions are justified given how they were wronged by the actions of the other. And much of the work of mediators is to help the parties see that there can be different perspectives on the same problem from different vantage points without there having to be one right and one wrong.  That for us is at the “heart” of mediation and can be liberating for parties in conflict and for the professionals who serve them.

We do not need to see those with whom we differ as wrong and ourselves as right.  The differences between us can be very real and very important and still be difference that we seek to address together, if we choose to.  They need not carry the extra enormous baggage of our having to see ourselves as right and the other as wrong and to prove ourselves as right and the other wrong.

-          Recognizing Differing Perspectives

Another way of saying this is that when parties are in conflict, they are readily convinced of the truth and rightness of their view and, correspondingly, the falseness and malevolence of the other’s.  Those of us on the one side experience ourselves as simply trying to protect our self, our family, our business or other assets.  The “other” in the conflict is correspondingly motivated, we can only assume, by the desire and intention to harm us.  Of course, from inside the world-view of the “the other,” the picture is likely reversed, but we do not see that or we discount its validity if we do.

A short way to capture the dimensions of this dynamic is that we tend to judge ourselves by our intentions while we judge others by the impact of their actions upon us.  Our own intentions seem justifiable, even well-meaning.  But if the impact of the other’s actions proves hurtful to us, their intentions must be malevolent.  When both parties are imputing the best to their own motives and the worst to the other’s, conflict can seem inevitable.

Once set in motion, this ricocheting and mutually reinforcing dynamic is hard to stop, and easily escalates. Caught in conflict’s grasp – what we call “the conflict trap” — there seems no escape.  Without a way out of the tight grip of this dynamic, the parties’ negative judgments of one another readily block any attempt at meaningfully dealing with one another, let alone working together toward a resolution of the conflict.

As we see it, one central way to help the parties out of the conflict’s trap is for the disputants to understand that people see things from different vantage points – they have different perspectives.  Differing perspectives can stand next to one another without the one having to cancel out the other.  Differing truths, each of which is felt as absolute and necessarily negating the other, cannot.  Much of what can and often does meaningfully go on in mediation and collaborative practice is educating the parties about seeing conflict as a question of differing perspectives rather than singular truths.  Once the parties to a conflict can begin to appreciate that, they may be willing to see their own view as their own view and recognize that the other from his or her perspective may have another.  In order to help the parties to begin to understand that they each have a different view of the truth and that their view does not have to cancel out that of the other, mediators and Collaborative professionals need be willing to accept, tolerate and encourage each person to express his or her truth and hear that of the other without having to argue or judge.

An old Yiddish tale captures the spirit of that challenge.

A young, and fairly new, Rabbi in an Easter European shtettel at the end of the nineteenth century was faced with a dilemma.  He was called upon to resolve a dispute between two families that had been going on for years.  He knew how important dealing meaningfully with that dispute could for those families and also for the whole community which was heatedly locked in the embrace of this conflict.   He found himself overcome with the challenge as it continued from week to week, month to month, year to year. And it was threatening to tear these families and the community apart. So he did the only thing he could do that might help.  He suggested that the families travel the considerable distance from the small shtettel to the larger town to where the Grand Rebbe, who had been his teacher, resided.  The families agreed, and with their horses and wagons, their extended families and friends, the two camps traveled the two days at their Rabbi’s advice to see the Grand Rebbe.

Upon arriving, the younger Rabbi approached his mentor, overcome with emotion, and after they embraced and greeted each other, he said to his teacher “Grand Rebbe, I have a challenge like none other I have faced in my years since I left this home of your wise teachings where I learned so much. Only you can help.” The Grand Rebbe spoke gently to his student.  “I am so happy that you have come. Please tell me and I will listen.”

The young Rabbi burst out the tale. “There is a dispute in my shtettel that has divided the community deeply and threatens to become only greater, with potentially tragic consequences for these families and for the entire community. And, thanks to the Almighty, the families have agreed to present the dispute to you for your judgment.”  And so the young Rabbi told his teacher the nature of the conflict, and the Grand Rabbi empathized with his former and present student and agreed to meet with the disputing families.

The next morning, the two camps assembled in the large meeting room where the Grand Rebbe invited them to the present their differences.  The spokespersons for the first family did so with vehemence, outrage and accusation, with supporting murmurs from that side of the hall.  After they had finished, the Grand Rebbe sat in silence for two or three minutes and then rose and said it a subdued tone, “I think you are right.”  That side burst forth with cries of delight, while those on the other side of the room looked despondent and bewildered. The young Rabbi looked on incredulously.

“And now I would like to hear from you,” said the Grand Rebbe, turning to the other family with their many supporters.  And that side put forth a very different view of the entire situation, with even greater vehemence and sense of outrage for what they had suffered at the hands of the others over so many years.

And when they were finished, the Grand Rebbe again pondered in silence, then said, “I think you are right.”  And this side of the room erupted in cheers while the others looked on in shock, disbelief and anger.  The young Rabbi, trying to take in what had happened, was overwhelmed with feelings of astonishment and bewilderment at what he thought he had just witnessed, and quietly and respectfully asked his beloved teacher for a moment in private.

“Grand Rebbe,” he said, “respectfully I must say that I simply cannot understand.  You are the greatest teacher, the one who has filled my life with knowledge and hope, and I came to you out of desperation. And today, the one family presented its side of the dispute, accusing the other to be the source of the entire conflict, and you said they were right.  And then the other family presented a totally opposite view and pointed to the others as wrongly and maliciously  causing all the trouble between them, and you said that they are right.  I am bewildered and simply cannot understand.  They both cannot be right.”

The Grand Rebbe was silent for what seemed to his student like an eternity, and then said, “I think you are right too.”

The Buddhist poet Rumi expressed the same in a simple and wonderful way  –

“There is a place beyond right and wrong.  I will meet you there.”

We will continue this inquiry in our next newsletter.  We welcome your joining us with your thoughts on our blog.

The Upside of Irrationality:

This is Dan Arielly’s follow up to Predictably Irrational. Both works centered around the author’s research into why people consistently fail to act in their own best interests. This is a fascinating topic for those of us who work in “interests-based” negotiations. Arielly’s work has deep implications for understanding what an “interest” is and how people do and don’t act in alignment with those interests. His research on the development of trust between people and the powerful seduction of revenge when that trust is broken is also intriguing and relevant.

Norman Fischer is a poet, author, Zen Buddhist priest and former abbot of the San Francisco Zen Center. Norman is founder of the Everyday Zen Foundation.