“Breath on a mirror. If it fogs over, you have conflict.”
This phrase signifies an undeniable fact of life: that conflict is inevitable and everywhere. How we manage our conflicts will have a tremendous impact on our personal and business success and satisfaction.
We constantly hear about the many challenges that we will face post Covid. I believe a significant increase in conflict and litigation will be among those challenges. Many lawyers already experience a surge in Covid related cases. The courts struggle to re-open and thousands of court applications are on hold, jamming up an already overloaded justice system.
The Nature of Conflict
Before we can deal with a challenge, we need to understand it. What I am about to share with you is an over simplification of what are often complex matters. 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 we enrol others in our saga of fault and blame we can find ourselves trapped in conflict. The damage escalates when we project our conflict stories into our 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 opponents. We become invested in our stories as the best and often the only way to get our interests and needs met.
Escaping from the Trap of Conflict
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 gain access to Rumi’s field it is first 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 work well, you open up 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 advisors but remember you want their objective insights not simply their buy in to your conflict story.
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. Unfortunately, courtesy of Covid the courthouse is mostly closed.
Mediation is a much-needed pit stop along the tracks 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
The role of a mediator is often misunderstood. Similarly, the roles of counsel, parties and other advisors 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.
Mediations are not all the same. One size does not fit all. It is critically important to select a mediator who understands how to design and conduct a mediation that is the right balance of facilitation and evaluation for your particular case.
What does a Mediator really do?
Firstly, 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 in identifying their key interests and needs. This process creates options for future resolution that address both parties underlying interests.
Second is the role of referee. 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 offsides 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.
Third is the role of evaluator. 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.
Mediation is a voluntary process. The power to intervene effectively in these roles is granted by the party’s express agreement. 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 see their conflict not as an unsurmountable task, but as mere hurdles to overcome. When these conflicts are managed effectively your life simply works better.
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David Gould (LLB, QC, C Med) has helped hundreds of lawyers and their clients – business and government organizations, and individuals – in conflict situations to co-create solutions for the future. For more information, contact: firstname.lastname@example.org or visit www.davidgouldmediation.com