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A few months into the pandemic we were already speculating how society would be different post-covid. After 2 years lock-downs and restrictions the world appears as though it will never look the same, and we face new challenges every day. Despite the rapid changes we’ve seen over this time one thing has persisted: conflict.
From what I’ve witnessed during this time, an increase in conflict and litigation will be amongst the greatest of challenges. The courts are back logged and access to justice is beyond the reach of many.
Alternative forms of dispute resolution can be effective and efficient solution to this issue. Mediation could serve to alleviate the courtroom-backlog and relieve pressure from an overloaded legal system. Most importantly, it could help to increase access to justice for many.
The Cause of Conflict
Before we deal with a challenge, we need to understand it. All conflict exists in our stories of the past about what happened to us and what we made it mean.
When we bring that story—with its emotionally charged meanings into the present moment and enroll others in our saga of fault and blame we become trapped in conflict. The damage escalates when we project our conflict stories into the future and live into them. Communications breakdown and become accusatory. Long standing relationships become toxic. Hopelessness looms and “war” feels inevitable.
These beliefs about right and wrong are closely tied to our identity and values. When we feel that those are threatened, we enroll allies and eventually lawyers to validate our position and weaken our opponent’s. We become invested in our stories, viewing them as the best and often the only way to get our interests and needs met.
Escaping from the Trap
The 12th century Sufi mystic, Jalal al-din Muhammad Rumi, provided some wisdom about how to break free of this trap. He wrote: “Out beyond ideas of wrong doing and right doing there is a field. I’ll meet you there.”
In order to find Rumi’s field, it is necessary to step back from your own story and separate what actually happened, the facts, from what you made those facts mean, your judgements, interpretations, and assumptions. You can also make your best guess as to how the other party sees the facts and what they made them mean. When you do this well, you will create a whole new range of possible options for resolution. You will likely find that much of the conflict is in the meanings.
You can get help from family, friends and professional advisers but remember you want their objective insights not simply for them to buy into your story.
Why Mediate?
Simply stated mediation is Rumi’s field in action. A mediator is a neutral 3rd party empowered by an agreement among the parties to facilitate communication and intervene appropriately to assist the parties in their negotiations.
I often get asked by lawyers or their clients, “Why should we mediate when negotiations have stalled, and we already know what the other side is going to say? This is the trap of conflict and it is a runaway train with few ways off short of the courthouse steps.
Mediation is a much-needed pit stop that gives all those involved a chance to pause and re-focus on options for resolution. It can accommodate creative solutions that are outside the litigation box and often not available to judges. It allows the clients themselves to retain the final say over their outcomes. When it is properly designed and well managed it engages the parties in their own unique and confidential collaboration.
Designing a Mediation that Works
Mediations are not all the same. One size does not fit all. The role of a mediator is often misunderstood. Similarly, the roles of counsel, parties, and other advisers may be unclear. Too often mediation is viewed as something that is being done to the parties rather than with them. This can result in fuzzy or muddled expectations, and ultimately a failed process. It follows that something this important to the immediate well-being of the parties deserves to be carefully designed and properly understood.
The mediator acts as a facilitator of conversations between parties that empowers them to share their stories of what happened and what they made it mean. The goal of these conversations is to reach a shared understanding not a debate about fault and blame. Based on this shared understanding the mediator assists the parties to identify their key interests and needs and then with the other parties generate options for a future resolution that addresses all the parties underlying interests and needs.
The mediator observes the play of emotions in the negotiations and steers the conversation away from fault and blame. Like a hockey referee they blow down the offside and help the parties manage the emotions that so often accompany a conflict. They take breaks and help the parties to re-focus and return to effective negotiations.
At the appropriate time and in the right circumstances a mediator may act as an evaluator of the positions that parties or their lawyers take in the negotiation. They may provide a reality check about the legal and practical attachments to the past that are the roadblocks and barriers to a resolution.
A mediation will be successful when the right parties armed with the right information are well prepared and committed to a custom-designed mediation process.
Mediators help the parties find Rumi’s field. Once there they will view their conflict not as an insurmountable task, but as a mere hurdle to overcome. When we manage our conflicts effectively life simply works better.
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