V. Sunday Morning: The Transformative Potential of Understanding-based Mediation

A. Greetings

On Sunday morning, we began with the singing of hymns and a prayer service led by Daisy and Tim Floyd, Clark Cunningham, and Doug Ammar, a spiritual way of constituting us that paralleled the brief Shabbat service led by David Lerman and John Spiegel when we had first encountered each other on Friday night. As we were all gathered at Marconi to share a high aspiration to fundamentally transform the world, these spiritual moments, born of the spirit of progressive renewal within the Jewish and Christian traditions, were significant. As lawyers and law teachers, we are so accustomed to the secular meeting format of social interaction that it is hard for us to walk our own walk as spirit/law/politics people by holding hands and singing and standing near each other and participating in the evocative and transcendent expressions of prayer.

Following Paul Lehto’s leadership that he (with Fania Davis) had also provided last summer's retreat at the Sleeping Lady conference center, we attempted to keep this sense of spiritual elevation alive throughout the retreat by maintaining an altar to which each of us made an offering—a poem, a photograph, a journal, a letter from a prisoner on death row—while telling the story of the offering and giving the group a sense of its meaning for us. Along with Cheryl Conner leading morning meditations at sunrise, these spiritual activities all served to deepen our connection to each other and enrich the meaning of our substantive discussions.

It is interesting that engaging in such openly spiritual activities is easy and a relief, even a source of joy, in spite of the fact that planning to do them is hard and even a source of dread for the organizers. What a mirror this paradox is of the paradox of alienation itself, in which we each ward off our longing to manifest our connection and by so doing ward off the manifestation of the connection. How thankful we should be to those of us who helped us through the door (it was Confucius who said, “The way out is through the door. Why is it that no one will use this method?”).

B. Understanding-based Mediation

Sunday morning’s discussions turned to the subject of Understanding- based Mediation, a session led by our guest, Gary Friedman, co-founder with Jack Himmelstein of the Center for Mediation in Law. We were all excited to have Gary with us at the retreat, not only because his approach to mediation is nationally known for its spiritual and moral seriousness, but also because of the quality of Gary’s presence as a human being with an obvious devotion to the principles that had brought us together. It was fitting that he invited his son Cassidy, a student at UC Santa Cruz, to join us—this small act linked the familial and the work-world in a nice way, and those of us who had the opportunity to talk with Cassidy came to appreciate him as we did his father.

Gary actually introduced the discussion of mediation with a story about his own father—about the relationship between the evolution of his own movement from sensitive but hard-nosed adversarial lawyer to connection- seeking mediator and the evolution of his relationship with his father, who had been a lawyer’s lawyer and until late in life had some skepticism about his son’s turn toward an approach to dispute resolution that might have been seen as a rejection of his father’s worldview. The story ended with a quite beautiful account of Gary’s father coming to one of Gary’s own mediation trainings at the age of 80 out of a desire to understand his son, and coming out of it deciding that he, too, was a mediator after all. Gary began the substantive discussion of mediation as a form of dispute resolution by distinguishing three main schools of thought on the role of law in mediation. The first he denominated the “Law is Irrelevant” school to describe those who seek out mediation solely based on a common desire for healing and greater connection and who intentionally treat the law as irrelevant, even contradictory to, their aim in seeking a mediative solution.

The second school Gary referred to as the “Law Determines the Result” school, which is in essence the use of mediation as a form of settlement conference. This second model is actually known as settlement mediation and is now in widespread use throughout the United States—indeed it is sadly what most people in the legal community mean by mediation when they use the word in conjunction with their practice. In settlement mediation, the activity of mediating takes place entirely in the shadow of the law, with the so-called mediator actually serving as a facile maneuverer shuttling between adverse parties often located in different rooms trying to achieve, through the use of the pressure of existing legal doctrines, an agreed-upon outcome. Here, the time and money of protracted litigation is saved; court calendars are lightened; and a humanistic gloss is given to the ultimate outcome in the sense that the parties reach agreement, albeit under pressure, rather than being subject to the direct coercion of the State.

The third school, which Gary identified with his own work, is called Understanding-based Mediation, in which the healing-centered motives of the first school are primary in defining the purpose of the mediation but existing law and legal doctrine is recognized openly as a true “elephant in the room.” Gary’s point here, which became the subject of a later, very interesting matter of debate, is that the presence of the binding power of law to resolve any conflict or dispute is a simple fact that mediation should not attempt to deny, and that the role of law and the fact of this possibility is something that must be openly addressed in the mediation process, with the participants themselves facing directly how they wish to deal with the fact of this legal shadow.

Although he didn’t use these words, Gary in a way seemed to want to confront immediately utopian fantasies about mediation as the healing-based panacea for all social wounds, at least to the extent that such a utopian vision involves a denial of the reality of law’s binding existence that inevitably is present in any authentic mediation. This is not to say that Gary does not share the hope that some day healing-centered solutions to conflict will supplant our existing adversarial rights-based models, but rather that we are more likely to move in this direction by realizing that even the most idealistic mediation must integrate and treat as an element of existing reality that the legal system as it currently exists is always in the background and remains an option for those seeking mediation.

To illustrate the significance of this point Gary showed a video segment (from "Saving the Last Dance," a mediation training videotape produced by the Center for Mediation in Law in cooperation with, and distributed by, the Harvard Law School Program on Negotiation) that set the stage for a group exercise in which a dancer/choreographer was fired from a dance company after she had virtually completed an artistic work that the company then used in a dance production. The dancer/choreographer wanted credit for her creation; she wanted to be paid for the remainder of her contract; and she wanted to be able to use the work herself for her own purposes, contrary to the wishes of the company. In the video, the dancer/choreographer and the company director had come to mediation with their respective attorneys, and we all witnessed an initial session in which the possibility of a mediated, humane resolution was being explored.

After watching the video, which set the stage for the beginning of the mediation process, Gary divided our group into mediators, dancer/choreographers, company representatives, and lawyers for each side. We then did an exercise in which our instructions were to discuss only the role that law and the lawyers would play in the conduct of the mediation. Meeting in some seven small groups of role-playing characters, we proceeded to discover in our respective ways at least two universal truths: one was the ambivalence felt by even the most well-intentioned persons operating in the present legal culture toward trusting the other. It is simply a fact that against a background of society shaped by self-interest and separation from the other, it is extraordinarily difficult to take one step toward the other without feeling the risk and danger of becoming a patsy. Gary’s point here was to bring out the paradox of trying to introduce the utopian hopes of understanding-based mediation into our existing “democracy of strangers” who relate in significant part through the prism of the competitive market. Against this background, even those who intentionally seek out a resolution of differences based on the possibility of healing and trust must feel the rubber-band-like pull of suspicion that becomes most visible precisely as one tentatively longs for/tries to become, or makes a gesture toward becoming, vulnerable.

The second truth brought out in each group by the exercise was the contradictory and annoying influence of the lawyers. In a way, a lawyer in this setting is almost inevitably an awkward and even comic presence—he or she is supposed to simultaneously protect his or her client by making sure the client doesn’t say or do anything to compromise the client’s “legal” interests, while at the same time supporting the client’s stated desire for a type of connection to the other that would actually involve letting go of those interests. Virtually everyone in the role of mediator—that is, the person in the role-play who was the embodiment of the highest ideals of the retreat—found themselves trying to figure out how to get around the lawyers while respecting the very ambivalence of the “clients” or participants in the mediation who had chosen to have the lawyers present.

In the twenty minutes that was allotted to us, we all learned a lot about how subtle the work of a mediator seeking mutual recognition and understanding and empathy and compassion is in a world where the “legally- binding” background conditions exert both pressure in just the opposite direction and, more implicitly, convey the message that this tilt toward mistrust is pre-sanctioned as The Legitimate Stance. Some tried to “reach” the clients by talking to them directly about the possibility of achieving understanding while politely ignoring the lawyers; others in the mediator role sought to achieve the same goal in the opposite fashion by over- respecting the lawyers in order to soften them up. But in either case, the exercise served its purpose in making Gary’s point that in the real world in which mediation is currently situated, the road to “I and Thou” requires that one pass through the presence of The Law and inevitably involves the mediator in subtle and contradictory work.

It was when we returned to the large group to discuss our respective small group experiences that the deeper debate emerged regarding “realism” about the inevitable presence of the law embedded in Gary’s model. Gary and his son had only arrived at the retreat late Saturday night after the group had elevated itself to quite a high level of idealism regarding possibilities for transforming legal culture, and, without knowing it, he was in a way serving as the voice of Reality on Sunday morning, bringing us the bad news that no matter how transcendent our hopes might be for mediation, this hope for transcendence exists in the shadow of the law.

The most idealistic mediator has to be aware that the parties can if they wish pull out of the mediator’s world and resort to the law as a kind of inevitable trump card. Some of us found this too discouraging an outlook to be consistent with our goal of really transforming legal culture (and “the world”) rather than simply making inroads within its shadow. Just as Restorative Justice points toward an entirely different and spiritually integrative conception of criminal and perhaps even international law, so we spiritlawpolitics transformers want to see mediation as a fundamental challenge to the existing adversarial rights-based system in general, one that points toward the achievement of mutual understanding in the resolution of all conflicts consistent with a society that can come to realize the desire for mutual recognition. If mediation is seen as just a hopeful option inevitably subordinate to the adversary system’s ultimate authority, it’s hard to conceive of it as a vehicle for a fundamental social transformation---it’s more like a haven in a heartless world.

In this spirit, Peter raised the point that Gary appeared to be treating The Law too much like a thing rather than as nothing more than the inherited weight of commonly held values. Peter’s point was that our group’s project starts precisely from the conviction that the law is not a thing, and that it is only the power of alienation, or “the circle of collective denial” of our longing for mutual recognition, that makes the law appear to be thing-like, encoding in its doctrines, in its detached, despiritualized mode of analysis, and in the adversary process itself values of individualism, mistrust, and materialism that only appear to be fixed as a result of the social repression of our spiritual interconnectedness. This collective denial and ensuing repression are precisely what must be challenged and overcome. Mustn’t the transformative mediator, Peter asked Gary, in some way make this clear in the conduct of meditation—make clear that while it is true that “the Law’s” alternative set of values exists and for the time being has the power of the State behind it, it is no more definitive or thing-like than the values of mutual understanding, trust, and healing that are the hope of mediation.

Peter’s point was sharpened (he thought) by the fact that Gary, in his initial presentation, had placed great emphasis on the importance of the neutrality of the mediator, opposing (as contrary to the alternative choice that he saw mediation offering) the notion that the mediator might either introduce his or her own moral judgment about the events leading up to the mediation, or about how the mediation itself was being conducted, or about whether the parties “should” mediate at all as opposed to resorting to the law. Gary had made it clear that in his view, if one or both of the parties want to abandon understanding-based aspiration in favor of a conventional legal resolution, that that is a legitimate choice to be made by the parties no matter how disappointing that choice may be to the mediator. He had indicated that this actually honors the integrity and fundamental authority of the mediating parties in a way that assures that change and healing, if it comes, comes from them.

But, Peter asked, even if Gary is right that the achievement of authentic community must emerge from the interactive dynamic of the parties themselves, mustn’t the mediator have a non-neutral attitude toward the values embedded in existing law and legal processes so as not to reinforce the idea that the Law is a value-neutral “thing” that the parties can use if they want to and not if they don’t? Peter’s point was that Gary’s insistence on mediator neutrality, coupled with his uncritical acceptance of the idea that existing law always remains an option that can authoritatively trump the possibility of mediation, was itself decidedly non-neutral -- that it actually served to collude with the idea that the law’s claim to be ultimately authoritative was legitimate, a “fact of life.” Peter argued that to achieve true neutrality, the mediator needed to create through the conduct of the mediation an atmosphere of the possibility of spiritual connection, so as to overcome the denial of this possibility that shapes the background conditions prevalent in the spiritually blocked legal culture we have today.

We only began to really discuss this point, but it was clear from what was said that this is an important area for future discussions about mediation. Several people raised the possibility of specifically creating a spiritual climate in the room where the mediation would take place—whether beginning with a prayer or with song or food or silence, or by other means. We talked about the effect that the presence of the altar holding our respective offerings had been having on the process of the retreat itself, softening and deepening the dialogue without any real conscious awareness of its presence in the center of our circle. Although Gary said he wasn’t personally drawn to overtly spiritual interventions (he shared a funny story of asking two Buddhists who had come to mediation whether they wanted to begin with meditation and their responding in chorus, “Why would we want to do that?”), Gary did say that he thought it was important for the mediator and the surrounding environment to be welcoming, noting that he usually begins by asking, “What brings you here?” in an opening-up and inviting way.

And he emphasized another point that is central to the dilemma of aspiring to a more complete transition to mediation—the role currently played by lawyers in protecting their clients from being taken advantage of by subtle manipulations of power in an informal process (domestic violence and divorce cases, as well as government-sponsored landlord-tenant mediation that exists in some cities, being examples where this danger currently exists). We agreed to take all of this up in one of our next gatherings, recognizing the dilemma while not backing down on our belief that this recognition doesn’t require keeping the current no-trust, anti-trust system.

The session closed with recognition by many in the group of the importance of the moral presence of the mediator him or herself, as exemplified by Gary himself both there with us at the retreat and in what several of us knew of his work (through direct experience or going through Gary’s trainings). In a moment of genuine warmth and appreciation, we agreed that Gary by his very directness, his honesty, and his remarkable capacity as a listener creates an atmosphere that is by no means “neutral” in a negative or empty sense -- in truth we acknowledged how closely he embodies the ideals in the quotation from William Stringfellow that had served as the cover-page of our pre-retreat readings:

“ Listening is a rare happening among human beings. You cannot listen to the word another is speaking if you are preoccupied with your appearance, or with impressing the other, or are trying to decide what you are going to say when the other stops talking, or are debating about whether what is being said is true or relevant or agreeable. Such matters have their place, but only after listening to the word as the word is being uttered. Listening is a primitive act of love in which a person gives himself to another’s word, making himself accessible and vulnerable to that word.”

C. Sunday Morning II: Tikkun Mediation Centers

Following Gary’s presentation, Dianna Stallone concluded our discussion of mediation by presenting a mission statement, drafted by herself and Stewart Levine, for a Tikkun Mediation Center, which she and Stewart envisioned as a model that might be developed in many cities and localities around the country. The reason for the use of “Tikkun” in the title was to explicitly link up our work with that of the Tikkun Community, a movement affiliated with Tikkun Magazine that had its founding conference in New York City in January of 2002. Since that time (i.e., between January and the September date of our retreat), a Tikkun Community lawyers’ group emerging from that conference has been meeting by conference call, and the vision of that group and that of our project are substantially identical in seeking to integrate spirituality, law, and politics.

Since the Tikkun Community is already a national effort, and since the same folks who have given birth to our project (i.e., Peter, Nanette, and others) are affiliated with Tikkun Magazine and/or the Tikkun Community, it seemed an exciting idea to explicitly tie us together. Thus, we agreed as a group that the title “Tikkun Mediation Centers” was positive and was a way of expressing our affiliation as the larger lawyer/law professor group that was seeking to embody the Tikkun Community’s ideal of transforming the professions in a spiritual/political direction.

Dianna and Stewart’s vision was of centers that would be located in various communities but reflect a vision of mediation founded on spiritual and moral values rather than upon the settlement model or other models currently prevalent. One thing that Dianna emphasized at the outset was how desirable it would be to have the mediators working at TMC’s trained by Gary since Gary’s Center for Mediation in Law has now had two decades of experience in developing healing-centered, understanding-based mediators. Using a flip chart, Dianna presented the core elements of a Tikkun Mediation Center model as one which:

1. regards mediation as successful if it maximizes the ability of each participant to connect as human beings in an authentic way;

2. is “needs-based,” meaning in this context that participating mediators begin from the assumption that all human beings have the same basic spiritual/relational needs;

3. maximizes each participant’s ability to rise through mediation to his or her highest self;

4. fosters the capacity of participants to achieve a state of giving from their highest sense of inner goodness rather than from subtle feelings of pressure or compulsion;

5. assumes that people are able to hear each other with compassion and fosters an atmosphere where this specified set of values and approaches is most likely to take place and succeed.

On the issue of the role of law, Dianna seemed to accept the notion that law is one aspect of mediation and that the TMCs would need to take people’s prior expectation of abiding by legal rules into account in determining what their needs would be in a mediation setting. However, it should be noted that Dianna had prepared her own presentation prior to the discussion we had had that morning about the Understanding-based mediation model, and that on reflection it seems central to recognize that for mediation to be truly transformative, the background role of the existing legal system and any prior reliance on legal rules in resolving disputes has to be conceived of as subject to “softening”.

The point here is that it would contradict the visionary aspect of the mediation centers if too much weight were placed on prior reliance on legal values that actually contradict the highest ideals of the mediation centers. Thus we agreed that this process of conversion of values through the work of the mediation itself needed to be something that was at the core of our training of the mediators who would participate in the centers. Dianna presented a variety of ways that the TMC model would challenge the conventional models of both litigation and mediation, among these emphasizing that, while in the traditional model the dispute resolution process is fragmented, in the new model the process must be holistic, with “ legal issues” being seen as part of a whole social-cultural setting in which the achievement of mutual recognition across a broad range of discreet issues must be conceived of as possible. Also, in opposition to the traditional model in which interaction among parties is minimized because of the risks that “admissions” could always be used against a participant in the event of litigation, and could in any case risk placing one of the participants in a psychologically “weaker” position in a potentially adversarial context, the new model must seek to maximize interaction among the parties and make vulnerability and disclosure safe and desirable.

Finally, Dianna contrasted the influence, in the traditional model, of destructive motives such as punishment, revenge, and retaliation in the conduct of the resolution process with the new model’s emphasis on healing and on explicitly transcending the paranoia and vindictiveness that is often fostered in the conventional adversarial context.

Dianna indicated that she fully intended to start the first Tikkun Mediation Center under her own leadership in Northampton, Massachusetts, where she lives and works. She acknowledged at the outset that we must work our way through a whole set of problems and challenges that inevitably will confront our radical venture. Among these are:

establishing the conditions for emotional safety;

focusing on what incremental steps are needed to nurture this kind of environment during the mediation;

learning methods for fostering reciprocal revealing and engagement, with participants coming to understand there is no risk-free option available during a process of mutual disclosure toward reconciliation, and that from a healing-centered standpoint, litigation is the most risky option of all;

and finally,

figuring out how to maintain the confidence that mediation is possible even in situations of domestic violence or pre-existing power imbalances between the parties, with trainings explicitly developing new and innovative methods for addressing these very serious psycho-spiritual obstacles to the achievement of mutual recognition.

Many of us found it quite encouraging that the Tikkun group (including Dianna and Stewart) had developed their TMC project contemporaneously with the preparation for the retreat. The session led by Gary Friedman and Dianna’s presentation converged in an encouraging way, and Dianna’s and Stewart’s own certainty that the TMC project was both possible and necessary was encouraging in leading us to believe that our vision could be translated into action relatively soon. Peter and Wendy took on the task of publicizing to the group as a whole the development of Dianna’s project as it unfolds in Northampton over the course of the coming year.