Consent in Mediation

The last family meditation I did got me thinking more specifically and carefully about the principle of ‘consent’ in mediation. In this context it had to do with the option of parties to bring supporters or other individuals concerned and/or involved in the issues at hand to the mediation and that the decision to do so must be ‘by mutual consent of all parties’. Mutual consent is a fundamental principle in mediation to assure that the process remains as fair and unbiased as possible. In the case at hand, during pre-mediation intake, one party had requested a friend join her at the mediation. It was explained to her that her request would have to be consented to by the other party to the mediation.

On the morning of the mediation the party making the request arrived with her friend. We explained again that the other party would have to grant consent. As it turned out the second party nixed the idea immediately.

The initial response of my co-mediator was then that was that – the friend could not join the mediation. This stance of course dovetails with the basic principle of consent – that all parties must agree if anyone else is to participate in the process.

Somehow I wasn’t comfortable leaving it at that. My concern was that this response tipped the balance of power, however subtly, towards one party, the one saying ‘no’. At the same time, the principle of consent needed to be honored. The challenge formulating in my mind was how to honor both parties position all the while maintaining impartiality.

After some discussion we agreed that rather than simply informing the parties that no one else would attend the mediation, we would identify the request as the first issue in the mediation. The goal being to understand, and for each to hear, the underlying reasons for the request and the subsequent denial. Our goal as mediators would be to uncover the interests and needs motiving their oppositional stance. This would give each party a chance to explain themselves and share concerns and feelings underlying their opposing positions; it also communicated to the parties that we took both positions seriously and wanted to understand them. We explained the basic mediation principal that both parties could ask for a pause at any time to consult with their attorney or others supporting them. In this instance the final decision was that the friend would not join the mediation but wait outside with the option for the party to consult.

Reflecting on it later, I believe that by acknowledging the issue and encouraging the parties to discuss it we built rapport with each of them as well as confidence in the mediation process, a process neither had ever experienced and that both initially seemed skeptical, unsure and even fearful about.

In spite of the initial animosity between the parties and their difficulty communicating during the process, evaluations at the close of the mediation were positive.

‘The Apologist – how to turn a monster into an apologist, by Eve Ensler

I first heard this interview on ‘Reckonings’, a weekly radio program broadcast on Oaklands WGPC. Follow this link for more information on the broadcasts, their mission and programs: http://www.reckonings.show/episodes/24

In this episode, author and playwright Eve Ensler, discusses her recent book, The Apology’. In it, she imagines the apology her father never gave her for the abuse he inflicted on her as a child. In doing so she says ‘… I moved him from monster to apologist…and in doing that, he lost power over me.’ It is a story of terrible abuse perpetuated for years. As a Restorative Practitioner her account resonated deeply.

Some of my colleagues have responded with concern to Ensler’s approach, fearing that survivors could be re-harmed, worried that the burden be on survivors to ‘rescue’ and transform those who have so seriously and deliberately hurt them. Elements described in the podcast are indeed harrowing and I can understand how what Ensler describes as her way of dealing with her trauma could be confusing and disturbing to many.

I also understand why the process Ensler describes fulfilled her goal of regaining her freedom from the spectre of her father that had dominated her life for so long. As a writer and playwright, Ensler used her creativity to devise a process that she instinctively felt would help her confront the years of abuse and the consequences this had on her life. By the time she was ready to confront the abuse directly her father was dead. There was no opportunity to explore a face to face meeting with him or some other form of communication. What is striking about her choice of process is the abuse she experienced is described, by way of her imagination, through her father’s eyes and heart which, for her, amounts to him taking responsibility. As we know, this taking of responsibly by the perpetrator (if that is possible) is one of the keys to repair for a great many survivors – Eve couldn’t get that from her father since he was dead, so she creates it for herself. This creative act frees her. It gives her back her agency and helps free her from him and his power over her. This painful ‘excavation’ leads her to step back, to contemplate the root cause of his actions, however horrific, which results in a growing kind of empathy for him. This deep ‘excavation’ includes her mother as well, as she too was not only deeply harmed by the father’s abuse but complicit in that she did nothing to address it.

Not everyone who has been traumatized would choose this process. Each survivor is unique in what they need and each has unique capacities to figure out what these needs are and how best to address them. This is where the RJ practitioner has a key role. The role is essentially to understand what the survivor has experienced, how they’ve been affected, and explore with them what process would help them reach their goals. I have worked with survivors who knew the perpetrator would NOT apologize but nevertheless wanted to communicate with them, in some cases face to face. These interventions invariably left the survivor, by their account, freer, more liberated and able to engage in life on their terms.

Engaging with the survivor reveals what the survivor needs, what is possible and what kinds of actions would help them in order to regain their power. All survivors want accountability whether in the form of apology or not. Some survivors choose to write a letter to the person who harmed/abused them; some request a letter from the harmer addressing specific questions and concerns. Some are not ready to do anything. All these options are valid and depend on the needs of the survivor and the external circumstances – is the perpetrator alive? Do they have an awareness of the trauma/harm caused by their actions? Are they remorseful? Are they willing to address the harm they caused? If not, then what? All these factors influence the nature of the RJ intervention and careful preparation (of both the survivor and the harmer and others affected) is critical to determining the what, when, and how of the process.

One of the most common wish/need of people harmed is that what they suffered will not happen again to another. A restorative process is humanizing for both for the perpetrator and the survivor. In any effective RJ intervention where the harmer has expressed a desire to not re-harm, elements are put into place to support them to make good on that pledge. As Ensler says ‘if the perpetrator has gone through a deep enough journey of accountability they couldn’t imagine doing what they did to someone else’.

Aspects of the RJ process are mysterious; one can never tell if or when shifts and changes will occur – in perceptions, perspectives, connections and understanding – all the elements that make the restorative process so powerful and sometimes life changing.
By giving people choices and supporting them to be as honest, authentic and courageous as they can be, unexpected and transformative things can happen.

Restorative Practice – Where Mediation and Restorative Justice Meet

Emphasis

As a workplace, family, and community mediator and a restorative justice practitioner, I think of all the work I do as ‘restorative’. Mediation and Restorative Justice share fundamental principles and values. The major differences between them lie in emphasis. Restorative Justice (RJ) focuses on harm, the nature of the harm, and responsibility for that harm. In Mediation there is a conflict to settle and an expectation of resolution. In RJ, settlement and resolution are secondary and defined differently.

Resolution, Responsibility, Harm

In an RJ process, the emphasis is on the harm experienced by everyone involved in the incident or situation. One person or group is usually responsible for the harm (in some cases, particularly in educational settings, or between friends and within families, responsibility for harm is more ambiguous or shared). By exploring and acknowledging the harm caused (whether intended or accidental), RJ brings a certain kind of resolution to the situation and relief for both the harmed and the person(s) responsible for the harm. Problem solving takes place at a later stage in the process to determine what is needed for ‘justice’ to be done and to identify elements that will decrease the likelihood the act that caused the harm is not repeated.

Addressing harm in mediation

In mediation parties are looking for resolution due to conflict arising from a range of differences in perspectives, values and preferences. Anger, humiliation, fear, vengeance, and physical symptoms such as sleeplessness, depression and anxiety are common. Although parties have some awareness of their contribution to the situation, they often see the other as the root cause of the conflict and hold them responsible for their distress. In this regard, despite a focus on settlement, each is experiencing harm. Encouraging problem solving and resolution too soon, before understanding what led to the conflict, the emotional impact it has had, and what each can do to assure the situation doesn’t repeat itself, will result in a tenuous agreement.

Mediation Case Study

This conflict developed between two men, friends since elementary school and both volunteer fireman at the local fire station. They owned homes adjacent to each other and their wives were close friends.

A minor dispute over the sale of a motorcycle had escalated to the point where not only were the men’s lives turned upside down but the conflict between them began to significantly affect the station team. Inadvertently making matters worse, senior management’s message to the two men was for them to ignore each other, change their shifts, and instructing other members of the team not to take sides, Needless to say the situation deteriorated. The conflict became so bad that one of the men sold his house and the wives’ friendship ended. This unresolved conflict had caused untold distress for the two men, their families, friends, and colleagues, spilling over to the station and the team. Management requested Mediation.

In initial individual preparation meetings both men exhibited strong emotion. One was tearful, the other extremely angry. But both desperately wanted resolution as unlikely as that seemed. Additional preparation meetings were held. Finally, a joint session was agreed.

At the beginning of the joint session, the angry party could not look the other in the eye. He sat scribbling intensely on a piece of paper. He asked if he could move away from the table as he was having difficulty being in close proximity to his old friend and colleague. He took his chair and moved it across the room. This seemed to provide him with some safety and he engaged more with the dialogue. The mediation continued for some time with the two men physically far apart from one another. But the conversation was making progress – they were listening, acknowledging, questioning, challenging, clarifying, apologizing, and expanding on their understanding of the situation, their feelings about it and the impact it had had on their lives. I was listening, reframing, paraphrasing, reflecting commonalities and generally working hard to see if there was a way through this complicated and painful situation.

By the end of the 4-hour session, they were at the same table, had identified what external forces had contributed to the escalation of the conflict and had come up with some ideas for how to resolve it. Much of the mediation dealt with the strong emotion both had experienced and the distress the situation had caused. This needed to be aired and acknowledged before they could realistically focus on a workable agreement. They left the mediation together and were going for a drink. A date had been agreed for another joint session.

The elements in this mediation mirror reactions of a victim of harm in a restorative justice process. In RJ, the harm is the focus. In workplace mediation if significant emotions are present and the relationship is ongoing, the harm caused by the conflict must be dealt with before exploring options for agreement.

Not all workplace mediations are so fraught, the emotions so raw. But the norm, in my experience, is that by the time people engage in mediation they have suffered emotionally, and psychologically. This is in part because of how the conflict, which may seem minor to outsiders or to management, is handled. Managers are usually not experienced conflict resolvers so consequently the conflict festers, feelings escalate, and within months there is a full-blown conflict where people are off sick and/or on anti-depressants.

RJ Case Study

Peter is a man in his early 50s with family, children, and a successful business. Peter had been in habit of using recreational drugs regularly. Over time he fell into heavier drug use which spiralled out of control to the point where his whole focus was on getting money for drugs. Over a period of years, he lost his family, his home, his business. His children stopped speaking to him.
He began to shoplift to support his addiction, resorting to theft and robbery.

Angela was in late middle age, a retired accountant, and widowed, very involved in her local community, and a volunteer at local hospice where her husband had resided. One evening she stopped to draw cash at an ATM machine. To her shock she was accosted from behind and the cash she had withdrawn was snatched away. She shouted and people come to her aid and pursued the robber. The police were called, and Peter was apprehended, charged, and pleaded guilty.

Peter received a suspended sentence. RJ was suggested by Probation and Peter and Angela agreed to engage with the process. After individual preparation meetings, Angela choose the option to meet face to face with Peter. Peter’s daughter accompanied him, and Angela brought a close friend. Peter’s Probation officer also attended. At the meeting, Peter began by taking responsibility for his actions and the harm he caused. Angela talked about the effect the robbery has had on her and her family, the emotions she felt then and now. Peter expressed his emotions and remorse. Their supporters shared the harm the incident has had on them.

By the end of the meeting they reach an agreement outlining what actions Peter committed to to help him stay clean and not resort to robbery to feed his habit. Included in is a schedule of repayments to Angela, acknowledgement of the harm caused, and apologies offered and accepted.

As illustrated in these two cases, both RJ and Mediation address harm, responsibility and resolution. Both processes seek a restorative outcome. The differences lie in the balance of these elements and how ‘restorative ‘is defined.

(Both these cases took place in the UK. Names have been changed and situations altered slightly to protect privacy.)

Antigone in Ferguson

Greek Tragedy in Our Times: Antigone in Ferguson

Last month I travelled to NYC to see the classic Greek tragedy, Antigone, distilled and adapted by director Bryan Doerries, to grapple with the death in 2014 of a young black man, Michael Brown, by a white police officer in Ferguson, Missouri. The deaths of mostly black men by mostly white police officers over the past years has caused anguish, fury and despair. Much of the anguish stems from the impunity with which this crime continues to happen – no police officer, until recently, has been held accountable and young men have continued to die.

In Antigone, two brothers have fought on opposite sides of a civil war and end up killing each other. One has been given a dutiful burial. Polyneices, having fought on the ‘wrong’ side, is seen as an enemy of the state by Creon, the current ruler. Central to the plot is the duty and loyalty Antigone feels for her dead, unburied, brother and her determination to honor him by burying his body. This value of hers – that everyone is due the respect of burial no matter what their actions – is perceived by Creon as disloyalty to the nation state and a direct challenge to his authority. The dramatic tension in the play is the conflict of values and beliefs between Antigone and Creon and the tension this represents between individual and state authority.

Unfortunately, the key protagonists in the Antigone story, and other close associates involved in the conflict, die for their values and the choices they make. But their deaths do not, in the end, bring justice or assuage their anguish. On the contrary, grief and despair spreads to the community and the cycle of violence is set to continue.

Tragic events invariably stir strong emotions of anger, outrage, pain and grief. What can be done in situations where survivors are calling for justice, for acknowledgement of severe violation, for retribution? What process could possibly bring some sense of restitution, of solace, of knowledge that the tragedy is recognized and did not happened in vain?

Is there a way that a restorative approach to such a tragedy could help the suffering players in this story? What would happen if, in the name of breaking the cycle of violence, the key protagonists could step back for a moment and try to understand where each were coming from?

Antigone would have to try to recognize Creon’s need that his role of Governor be respected and his concern for uniting a city torn about by civil war. The Governor would have to set aside his anger at Polyneices and try to understand Antigone’s deep desire to honor her brother by giving him a proper burial, no matter the choices he had made in life. Both protagonists hold beliefs at the extremes – it is their unwillingness to entertain any understanding of each other or meet anywhere between those two extremes to explore solutions that might satisfy each of them, that leads to tragedy and perpetuates the cycle of violence and retribution.

Creon and Antigone are the main protagonists. But there are many others that are deeply affected by the conflict between the two. They hold beliefs somewhere in between the two extremes, are torn by the dilemma, plead for reason and compromise, and express their fear for the future if both main protagonists maintain their extreme positions.

The Chorus represents the Community. In this production the Chorus was performed by a choir of activists, police officers, youth, and concerned citizens from Ferguson, Missouri and New York City. Throughout the play the Chorus reflects the communities’ struggle as it grapples with the moral dilemma represented by the two main protagonists and the anguish they feel as they watch the tragedy unfold.

Key to the production, and to director Bryan Doerries purpose in presenting classic tragedies to a modern audience, is the facilitated collective discussion that takes place at the close of the performance. The play is a catalyst for discussion on race, justice, trauma, oppression, and survival after trauma. The audience discussion provides a forum to explore alternatives to the choices made in the play. Speaking their truth, audience members wrestle with the anguish of their immediate reality and their deeply felt need for positive change, change that could offer some restoration, solace, understanding, recognition and connection. The audience discussion is arguably as important as the performance in that it brings alive universal moral dilemmas and allows for a collective sharing as to how to address them.

 

Notes

Bryan Doerries Outside the Wire – Artistic Director

Theatre of War, What Ancient Tragedies Can Teach Us Today

Sophocles – Antigone, 441BC approximately

https://www.nytimes.com/2018/09/14/theater/antigone-in-ferguson-michael-brown.html

 

 

 

 

 

 

 

 

 

On Forgiveness

Re-reading a book at a different time in one’s life is always a new experience. A couple of weeks ago I picked up Tolstoy’s Anna Karenina again and quickly became engrossed in the story and the characters.  As a novel, I had wanted to re-read it for lots of personal reasons but I didn’t think of it as having any relation to my work. Re-reading it however I was struck by a powerful depiction of the human capacity for forgiveness.

Alexis, Anna’s betrayed and humiliated husband, is making his way home to St Petersburg from Moscow, summoned by Anna who is in labour with her lover’s child. Vronsky, her lover is attending the birth. During the journey Alexis feels hatred for his wife and finds himself wishing her death. Once in the presence of the lovers however, and witnessing their despair, he is suddenly overwhelmed by emotion and is flooded with forgiveness for them both.

Human forgiveness, where it comes from, and what makes it possible, is something of a mystery – it cannot be forced and isn’t ruled by logic or rationality. My experience tells me it comes from the deepest internal place and at essence is paradoxical – where vengeance and blame would be perfectly understandable, forgiveness suddenly wells up and along with it the release of compassion and something akin to joy.  As close as it gets to miraculous.

I have occasions to witness this first hand in the restorative justice and mediation work I do and it never ceases to move me.  It is one of the privileges and rewards of working in this field.

And finally, reading this remarkable book again I am reminded why fiction has always been so central to my life, and of the quote by Ralph Waldo Emerson: “fiction reveals truth that reality obscures “. Yes, we read fiction to understand life.

 

 

 

 

Global Unity and Healing, Building Communities with a Restorative Approach

I recently returned from a 3-day International Restorative Justice Conference held at Vermont Law School in Burlington. There was a wide range of topics and lively keynote speakers, including Robert Sand, director of the Center for Justice Reform, Judge Robert Yazzie from the Navaho Nation and Donna Hicks whose theme was Dignity and the research she has done around its critical role as both a driver in human conflict and a key element in its resolution.

I became aware during one of the plenary sessions that sitting a few rows from me was a middle-aged man who had been deeply wronged by the state. The workshop dealing with his case is one I will never forget. Due to prosecutors, detectives, and police’ unethical and incompetent practice, this man was sentenced to death for a crime he did not commit. The consequence of this enormous injustice was that he spent almost 25 years behind bars, much of it in solitary confinement. He was finally released due to the efforts of the North Carolina Capital RJ Program. To add injustice upon injustice, because of recent changes to the law, it is almost impossible for the wrongfully incarcerated to claim compensation. Both attorneys working in this program have experienced PTSD over the years defending capital cases.

Other workshops dealt with organizational and systemic aspects of integrating restorative practices into specific settings (Education, Healthcare, Public Safety, Environmental Disputes, Youth Justice Services, Child Protection). Several researchers from the UK shared their experiences of implementing restorative approaches into the City of Hull as it strives to become a fully restorative city.

Some dealt with irreversible harm and how a restorative process can help survivors reclaim their lives and heal from the trauma caused by harm. This workshop examined racial attacks fuelled by social media at two California High Schools that resulted in very different outcomes. The presenters shared the learning from the intervention that did not go well and was halted early on, and from the intervention where the result was positive. It was fascinating to contemplate and analyse the range of complexities involved in preparing and running interventions where so much harm, fear and confusion had been experienced by students and staff.

The decision to use a restorative approach to address the historical racial and sexual abuse at The Home for Colored Children in Nova Scotia was emotionally cathartic for those who had been harmed. The survivors, now middle aged, described their gratitude and deep satisfaction with the process and how it had helped to heal childhood traumas that had remained buried for decades. An acknowledgement by state and government officials of the longstanding institutional racism that had perpetuated the harm, and their commitment to address it across state agencies contributed to the positive result for the survivors.

In another case in Nova Scotia, a grieving father whose son had died in police custody found peaceful resolution. Until the restorative circle with police officers the father and his family had found no peace and no justice. Their satisfaction with the process was deep.

Two additional things about the conference stand out for me.

Firstly, there is overwhelming dissatisfaction with the current legal system by all those affected by harm, and there is consensus that the traditional legal process is broken. It is built on blame and punishment and does next to nothing to address the root causes of crime and help those most affected heal and reintegrate. Hence the willingness of a range of agencies and institutions to engage in a restorative approach, a process that they have little experience with, but are willing to try with the proper support and guidance (The Nova Scotia cases were supported by Jennifer Lewellyn, Professor of Law at Schulich School of Law at Dalhousie University, a committed and passionate advocate for restorative approaches).

Secondly, I was moved by the tribute paid to Native American Peoples by some of the keynote speakers. Several began their address by acknowledging they were standing on land originally home to indigenous people and their tribes. This is fitting given that restorative processes were practiced for millennia by indigenous peoples, and long before they were adopted by the modern world. There is a growing societal recognition of the efficacy and healing potential of these ancient restorative approaches for all affected by an offence. One can only hope that more restorative approaches for all levels of offending and wrongdoing will be integrated into a wider range of public and private policies and become the norm for addressing harm and wrongdoing, particularly when the harm is relational. A restorative approach can run alongside a criminal-legal system and create processes that deliver justice and along with that, healing and re-integration.

Resources/Links

Dignity: Its Essential Role in Resolving Conflict by Donna Hicks, 2011, Yale University Press

Public Inquiry: Restorative Approaches in Nova Scotia

https://www.vermontlaw.edu/directory/person/llewellyn-jennifer

Nova Scotia Home for Colored Children:

https://globalnews.ca/video/3962670/inquiry-into-abuses-at-former-home-for-colored-children-to-release-second-report

https://globalnews.ca/video/3816906/report-tabled-on-nova-scotia-home-for-colored-children-inquiry

https://www.youtube.com/watch?v=LXXTe98Ro-M

https://globalnews.ca/news/1370703/province-reaches-29m-settlement-in-n-s-home-for-colored-children-case/

Human Rights Inquiry

http://rightswatch.ca/2012/01/09/nova-scotia-human-rights-commission-adopts-a-restorative-justice-approach-to-human-rights-disputes/

http://thechronicleherald.ca/novascotia/136996-restorative-justice-part-of-human-rights

https://novascotia.ca/news/release/?id=20120914009

Death in Custody

https://www.theglobeandmail.com/canada/article-family-of-nova-scotia-man-who-died-in-prison-says-restorative-justice/

https://www.cbc.ca/news/canada/nova-scotia/cape-breton-correctional-centre-ernie-leblanc-jason-leblanc-death-1.4601567

Films

Dawnland (Truth and Reconciliation in Maine: child welfare authorities and Native communities) Directors: Adam Mazo and Ben Pendler- Cudlip

Producer N. Bruce Duthu

Coming Home – Circles of Support and Accountability (COSA) program for returning offenders. Produced and directed by Bess O’Brien

Afternoons in Moscow

Recently in Moscow, Russia, for a family visit (my daughter has lived and worked there for 10 years), I spent most afternoons in neighborhood parks with my 4-year-old grandson. Picking him up after nursery school, it being May and warm and sunny, and given his fascination with moving water, he would invariably ask to go to the ‘waterfall’ – two of the large parks in the area had small locks where the water rushed forcefully down an incline. Watching the flowing water and throwing various natural found objects into the water kept him busy for ages. This gave me time to observe and reflect on my surroundings with uncommon leisure.
My thoughts drifted to the current state of the relationship between the US and Russia, to the discord and mutual recriminations surrounding the US 2016 election, and the resulting economic and diplomatic retaliations (it now takes 300 days for a Russian to get a visa appointment at the US Consulate due to staff being cut to bare bones). The cold war is revived. And along with this polarization comes the predictable deterioration in trust and communication, along with direct attempts to cause mutual harm. This deteriorated relationship ripples out and affects in various ways the citizens of each of these bumbling and blustering countries.
I felt a sadness in reflecting on this international conflict. Russians, even in Moscow, are not used to hearing English so we stood out and people were curious but never in an unfriendly way. Some, mostly young people, would initiate a conversation and welcomed the chance to engage with the foreign and the new.
Looking around at the people in the park, I felt a commonality and connection in our shared needs and pleasures – enjoying the warmth of the sun after a long winter, adults and children playing and relaxing in pairs and groups, teenagers and some brave adults swimming in the still cold water, bikes, scooters, roller skates, volley ball, sunbathers, ice cream and picnics, laughter, lively conversations. And expressions of concern, language barriers aside, when my 4-year-old tumbles off his scooter.
The contrast between the international and local dynamics struck me. The leading elites battling it out in distinctively unconstructive ways with predictably destructive consequences to relationship. On the ground, my grandson and I were enjoying and sharing a variety of simple pleasures alongside strangers despite our vastly different languages, histories and cultures.
The roots of these conflict dynamics plaguing Russia and the US these days are multiple and go back a long time. What saddens me is that it doesn’t have to be this way, there are ways to manage differences, however great and whether they are between nations or within families or the workplace, that lead to constructive and healthy outcomes. Not always easy, but possible. What is needed is the will, the patience, and the skills to make it happen.

Our Communities

Everyone aspires to live in a safe community. Every parent wants to know their children are safe. Sadly today, in the US, when it comes to schools there are many parents, children, and community members who feel increasingly anxious and unsafe. We (and likely many from other parts of the world) have been grief stricken over the latest school murders in Florida.  I wish I could write that we have been shocked but unfortunately these horrific events have become such a regular fact of our national life that the shock element is missing. Instead we experience disbelief (not again!), deep grief, despair (will this ever end?) fear and insecurity (how do we stop this? Why do we allow this to continue?) anger (why are our national leaders not doing something about this?).

The students from Marjory Stoneman Douglas High School in Florida are providing national leadership.  Their determination, courage, and intelligence are inspirational. As a country we have let them down, we have let all our children down. We can take responsibility for our failure by acknowledging it and by showing we will do everything we can to support them, and all the students around the country, as they push for change.

Our students are demanding a national reflection on basic values and responsibility. They recognize the desperate need to clarify and agree what needs to change around gun rights. The tragic element in all of this is that these deaths were not inevitable – we have brought this on ourselves, somehow willing to sacrifice our children rather than challenging the thinking, the fears and anxieties, and motivations underpinning the status quo.  The overwhelming evidence is that access to lethal weapons is the main reason these mass murders continue unabated. For example, after a mass shooting in the UK in 1987 in which 16 people were killed, the UK Parliament banned the ownership of semi-automatic fire arms and following a 1996 massacre in a Dunblane Primary School it outlawed the possession of handguns.  There has not been one school shooting in the UK since the passing of these laws. This evidence needs to be publicized and reinforced so the national debate on gun rights is based on solid fact and not wishful thinking. The students know this and are doing so.

The Board of Education in my community recently met (as they have all around the nation) to address school and community security and to give members of the public a chance to voice their concerns and their views.

I was impressed that our School Superintendent stressed the importance of getting to the cause and not just dealing with the symptoms of these tragic events. I was also heartened by his focus on building strong relationships as a key component to ensuring safety and security within the school community.

As a practitioner of restorative approaches, I have witnessed first-hand the positive results when schools adopt this approach. Building strong relationships by taking responsibility, expressing emotions in a safe environment, and putting things right is at the heart of a restorative approach. This has high potential to de-escalate painful and potentially dangerous emotions like anger, hurt, and revenge. Taking responsibility for one’s actions and considering how these have affected others is fundamental, as is exploring what can be done to make amends. This increases trust and instils mutual respect, which in turn builds a strong sense of community. The potential for learning, about oneself and about others is significant. Research data and anecdotal evidence concludes that strong and inclusive communities are overwhelmingly safer and their members happier. In these kinds of communities trust is high and people feel respected and are treated fairly and with care. Schools that adopt a restorative disciplinary approach in dealing with everyday wrongdoing or conflicts report a significant drop in suspensions and exclusions. These components are the foundation of safe and flourishing communities where violence is not used to settle grievances.

The basic message is: you are part of our community, we want you here, but your actions are not acceptable. What can you do to modify your behaviour and how can we, your community, support you?

Practical security measures are important to consider but these won’t provide the critical elements of communal respect and trust that is the basis of real security. Resource Officers can play a vital role in building close relationships with students and help keep a pulse on interpersonal and intergroup school dynamics.

As communities across the nation grieve at these recurring tragedies and determine how to support the student leadership’s quest for change, it is my sincere hope that the national response from educators will be to strengthen relationships and build inclusive and restorative communities where all the members are committed to supporting each other and keeping each other safe.

Links

http://worldhappiness.report/ed/2017/

https://www.ed.ac.uk/education/election-briefings/restorative-approaches

https://everytownresearch.org/gun-violence-by-the-numbers/

http://www.latimes.com/opinion/op-ed/la-oe-hughes-bryant-gun-violence-research-20180226-story.html

 

 

Thoughts on Empathy

Reading the article, ‘In an age where the heart rules the head, here’s a case against empathy’, what Ms. Hinsliff characterizes as ‘empathy’ is actually ‘sympathy’. When we sympathize, we identify with the feelings of another because we have experienced similar feelings. It is easy to sympathize. She describes empathy as ‘gooey emoting’. It is the farthest thing from that. Empathy is a sophisticated emotional process requiring one to put oneself into another person’s shoes and sometimes very uncomfortable shoes at that. It requires effort and emotional intelligence engaging both the cognitive and emotional centers of the brain. It is closer to what psychologist Paul Bloom describes as ‘social intelligence’ or ‘rational compassion’ where one ‘attempts to understand (what) other people feel… even when the feeling is completely alien to you’. Empathy requires much more effort than sympathy because it requires we leave the comfort zone of our feelings and perspectives to understand (not necessarily agree with) those of others.

This is what is missing from our public discourse today – we are talking to ourselves (and others like us). We often don’t do make the effort to empathize or understand those whose experiences and feelings are very different from ours. As Hinsliff says, ‘feelings are fickle’. That is why we need to think and analyze our feelings if we want to better understand ourselves and others. Perhaps if we did this more often we could begin to bridge some of the social and political rifts that continue to divide us.

 

Gaby Hinsliff, the Guardian UK, 18 February 2017

Paul Bloom:  Against Empathy: The Case for Rational Compassion

 

https://www.theguardian.com/commentisfree/2017/feb/18/politics-age-of-empathy-reason-paul-nuttall

Holding up the Mirror

The Role of Emotion in Achieving Success in Mediation

 Success

I have grappled with many things in my years of mediation practice, but the question of success is one that is ever present for me as a practitioner and a trainer of mediators. What is success in mediation? What is the interplay between success and resolution?  What maximizes the likelihood of achieving success?

Role of Emotion

In this article I will be looking at the role of emotion in conflict and how it is used, or not, in helping to reach resolution.   Workplace, community, and family mediation are my point of reference because of the interpersonal relationships at the center of these disputes. However, even in commercial disputes where resolution revolves in large part around financial agreements, emotions are present and will influence the quality and nature of negotiations.

Resolution

In Western style mediation (with its focus on identifying and meeting individual interests and needs in a verbal exchange), resolution and success are intimately linked. This would be fine except for the narrowness with which resolution is usually defined, with the resulting limitations this imposes on the process, and I would argue, with the chances of mediation being successful in the long term.

The problem as I see it is twofold.  Firstly, mediation and resolution, one a process, the other an outcome, have become almost synonymous.  Secondly and more importantly, resolution is more often than not narrowly defined as an agreement on practical issues with sometimes, if you’re lucky, an acknowledgment of an improvement in relationship. The difficult emotions, perceptions and assumptions associated with the conflict are not explored. This leads to a resolution that is half-hearted at best and unsustainable in the long term.

The reason resolution, and by extension, success is defined so narrowly, likely has to do in part with the history of mediation and how it evolved out of the legal field. That we are part of a “time is money”, “fix- it”, “leave emotions at the door” culture is part of it too. It is fueled (with no ill will intended) by those who commission mediation because have identified a problem and want it resolved as quickly and economically as possible. Parties too, when they think of mediation think of “resolution” i.e. agreement, because mediation as it is understood presently, is pretty much synonymous with these concepts.  On the other hand, in a strange twist, potential parties sometimes struggle to consider mediation because the idea of resolving anything with the other person is so inconceivable (or perhaps threatening) that they reject it out of hand.

What concerns me about this narrow definition of resolution, and by implication of success, is its diminished potential to address the deep-seated interpersonal issues and opportunities for understanding and repairing relationships and the expansion of options that this makes possible.

Definitions

A broad definition of mediation itself is helpful particularly because of its close relation to resolution.

Mediation: a process whereby parties achieve a clearer and deeper understanding of the situation, themselves, and the other and which consequently clarifies and reveals a wider range of options and choices. These choices will form the foundation for concrete agreement(s).

Resolution: an outcome where parties, empowered by their new understanding of themselves, the other, and the situation, achieve a heightened awareness of their strengths and internal resources from which they can make decisions.

This definition of resolution is one I’m comfortable with for measuring what constitutes a successful outcome.  If the parties are willing to engage at this level an agreement on the practical issues will follow.  The work of the mediator is in getting the parties to this point.

Holding up the mirror – the emotional landscape

 In most conflicts, whether in the workplace, family, or community, the parties are often deeply entrenched in their views and have suffered considerable turmoil and emotional and physical distress.

As mediators we are constantly making choices about where and what to focus our attention on.  We need to understand some of the facts and the context of the situation; the emotional effect it’s had on the parties; to identify and explore unmet interests and needs; to identify (and challenge) perceptions and assumptions; and finally, perhaps, understand hopes and dreams for the future.

As you have probably gleaned by now, I emphasize the resolution of issues less and less, particularly in the first stages of mediation. Or, to put it another way, I use the issues to explore what is getting in the way of resolution. I encourage parties to share the web of emotions, perceptions, understandings, and assumptions that have built up as the conflict has unfolded. Through this process walls begin to crumble, and people begin to see their image reflected in the other. As one party expressed with wonderment and some disbelief to the other after a heartfelt exchange “we are like a mirror of each other”.

Choosing to go to these difficult places has become a deliberate choice in my practice. By helping the parties access the intangible, more nebulous and messy area of emotions, and encouraging them to explore their own projections and shadows, a deeper more authentic dialogue can take place.

Surfacing difficult emotions (hatred, fear, confusion, disdain, sadness, despair) present in these complex cases and exploring the deeply held perceptions and assumptions that each have of the other creates a space where mutual recognition and understanding are possible. This has a diffusing effect and releases new, and positive energy. This energy can then be used for identifying options and problem-solving the practical and relational issues. My experience is that once the misunderstandings and assumptions are cleared up the practical issues are resolved relatively quickly. The hardest part of my work is done.

In choosing to focus on the emotional aspects of a conflict I am regularly asked by new mediators about the boundary between mediation and counseling or therapy. My answer is clear: mediation is not therapy or counseling; one does not “dig” into a person’s history in order to understand deep seated motivation or find triggers for behavior or emotional states, nor does one create dependence on the mediator for emotional well-being. However, when strong emotion is present in mediation and relates to the conflict at hand, it presents an invaluable opportunity for furthering the primary propose of the mediation, namely achieving clarity and understanding of the impact of the conflict on a person’s life and what can be done to change things for the better.

 Qualities

Courage

Going to these difficult emotional places can be scary both for the mediator and the parties.  It requires courage, faith in the process, and a willingness to take risks.  The mediator needs the parties’ implicit and sometimes explicit permission to go to these places. Mediators must tread carefully and allow the parties to guide us.

Patience and persistence

Patience and persistence are required to support the parties through this emotional process. Perceptions and assumptions are not easily abandoned; it is not easy to acknowledge that one’s version of the conflict story is partial at best and perhaps downright faulty.  Even more difficult is coming to terms with one’s own contribution in creating and keeping the conflict alive.

Perspective taking

Because mediators are seeing and engaging with the conflict from the ‘outside’, we are able to enlarge the lens through which the parties see the conflict. This external perspective lets in much that was hidden and allows for a third understanding (or story) to be created by the parties together. They can then begin to let go of blaming each other and focus instead on understanding how the situation developed, choices that were made (or not), and how each contributed to the resulting escalation and polarization.

Building Trust

Obviously for the parties to feel safe enough to engage at this level trust in the mediator and the mediation process is essential. By meeting the parties where they are, building empathy and not rushing the process, a foundation of trust is built whereby parties are willing to explore the messy landscape of negative emotions, assumptions and unexpressed or unidentified needs.

Transformation or Problem Solving?

This approach can be described as “transformative”, where empowerment and recognition between the parties are given priority. In contrast, “problem solving” focuses on identifying issues, building an agenda and generating options etc.  Although I hold transformation as a high value I do not think it is helpful to categorize oneself too narrowly, as a narrowly defined approach cannot possibly do justice to a complex process.  Applying a range of approaches, depending on the context and needs of the parties, will enhance the chances of success.

The narrative, “Jane, can you tell us what has happened over the past few months and how you see the situation”; the facilitative, “Jane, how do you respond to what you’ve just heard?” and the transformational, “Jane, what have you learned from this last exchange?” all have a place in the process.

The narrative focus asks the parties to share their “story” about the conflict, how they see it, experience it, and explain it.  The mediator listens for opportunities for potential transformative dialogue where hidden, or not so hidden, assumptions and misconceptions of the other can be explored.  Embedded within both approaches is the facilitative where the mediator uses enhanced listening skills to encourage dialogue and a full exploration of the issues and the impact of the conflict on both parties.  This approach guides the parties to a clear and deeper recognition of each other (transformation). As the parties begin to see each other differently and create a different story/rationale of the conflict, a positive energy is released that empowers the parties to problem solve with creativity and enthusiasm.

Training Implications

In many mediation training models (even those purporting to take a ‘transformational’ approach) new mediators are more often than not encouraged to take a problem-solving approach with lip service paid to encouraging recognition and empowerment.  This approach is driven by the unspoken goal of fulfilling the new mediator’s need to feel “successful” in what is a complex and challenging craft and, because from a training perspective, a problem-solving approach is easier to teach!

Over the years I have accepted the complex, unpredictable and layered nature of mediation.  When teaching new mediators, I prepare them for the interpersonal juggling act they are about to embark on by asking them to loosen their need for control, neatness and certainty, and to embrace a commitment to being in the moment.  They will need to develop their comfort level with emotion and particularly with difficult emotions.  By staying “with” the parties and trusting their skills and the process, they will find a way through.  Indeed, they will guide the parties through to a resolution that will be truer and more likely to last.

Related Readings

Cloke, K. Resolving Personal and Organizational Conflict: Stories of Transformation and Forgiveness – Jossey-Bass 2000

Folger, J and Bush, R. The Promise of Mediation: Responding to Conflict Through Empowerment and Recognition – Jossey-Bass 1995

Goleman, D. Emotional Intelligence – Bloomsbury Publishing 1996

A version of this article was published by Mediate.com in 2014