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Your Brother’s Keeper:An Ethic Of Compassion For Mediators

by William Scott Harralson, J.D.
January 2005 William Scott Harralson, J.D.
Most individuals find themselves intrigued at some emotional or intellectual level by stories that offer insight about a particular aspect of the human condition. Perhaps it is our common humanity that enables us to respond with fascination to images that transcend the socio-political boundaries formed by class and culture, race and gender, space and time. Even the individual who is seen by others as the most hard-hearted person must, at some point, yield his or her devotion to self-interest when confronted by a message that touches a nerve ending at the core of their very existence.

There is a familiar tale of a man who, while traveling in a jet airplane at a very high altitude, experiences a violent gust of turbulence sending the plane and its passengers into a state of frenzy. He stares frantically at the man seated next to him, longing for some expression of hope. When no response is forthcoming, he acknowledges for the first time in his life that it matters not whether his neighbor has more or less education than he, a larger or smaller home, or more or less impressive professional credentials. In this moment of ultimate despair he realizes that he has no control over his fate and that death is imminent. He is confronted with the sobering fact that he and every other passenger on the plane possesses similar human frailties, emotions, and vulnerabilities; we are all essentially the same. This is an important lesson to be remembered by parties that are embroiled in a dispute. It is also instructive for mediators who strive to help facilitate the resolution of conflicts.

This brief essay considers the question of whether the mediator as practitioner has an inherent obligation to become actively engaged in the lives of the disputants. Is it absolutely essential that the mediator adopt an authentic, palpable “ethic of compassion” and concern for the best-interests of each party? Or, on the other hand, should the mediator serve the conflicted parties as a disinterested, detached intermediary? I am convinced that this question is typically ignored or trivialized at best by most disputants, their lawyers, and mediators. It is hoped that this essay will serve to stimulate further research, discussion, and reflection on this topic between individuals engaged in the mediation and legal professions.

To Be or Not to Be My Brother’s Keeper

In a frequently cited Judeo-Christian biblical narrative we catch a glimpse of the human condition in the context of domestic violence. [1] At its core it is a story about sibling rivalry characterized by jealousy, fear, and estrangement between two brothers. Cain murders his brother, Abel. After the crime is committed the perpetrator is queried by God concerning the whereabouts of the victim. Cain refuses to admit that he has taken his brother’s life. As a futile diversionary tactic, he struggles to justify himself by asking God whether it is proper that he should be held accountable for his brother’s whereabouts and well-being. He rather defiantly asks the question, “Am I my brother’s keeper?” In the contemporary field of conflict resolution we see the same issue presented:

Query: “Congratulations, today’s mediation session ended with a final settlement of the dispute. How did party “Party X” feel about the resolution of his grievances? Did he or she appear to be hopeful about the future of his personal / business relationship with “Party Y”? Mediator Response: “I can tell you this much, Party X certainly consented to all of the terms of the settlement. But I honestly don’t know how either party felt about it. Besides, is it my job to determine how the parties feel when the case is concluded? We had a good mediation and the case is now closed…isn’t that considered a success by any measure?”

Whether the facilitator practices his or her vocation under the label of mediator, advocate, psychologist, minister, social worker, or some variation thereof, the common denominator between these ‘helping’ professions is the fact that they are each peacemakers working in various capacities to help others resolve conflict. In times like these where there is warfare and violence in so many parts of the world; where the ill-effects of poverty, famine and disease are escalating, and economic inequities have marginalized the lives of so many individuals, the world needs more peacemakers, bridge-builders, and repairers of the breaches that lie in wait to disable modern society.

Most practitioners and laypersons alike would agree that an effective peacemaker must possess, among other attributes, a clear sense of fairness, impartiality, and justice. For centuries the dominant view of Western political, philosophical, and jurisprudential thought has been that the efficacious dispensation of justice demands that a “peacemaker” maintain a dispassionate, cool, and detached presence with respect to the lives of the conflicted parties. This remains the prevailing mindset within the American legal profession. Certainly justice should be “blind”, that is, without bias or predisposition towards any disputant. But in order to maintain an appearance of neutrality must justice also be distant, insensitive, or aloof? [2]

A Lesson Learned

Some years ago I worked as a Legal Assistant for a small, private law firm. I was assigned to conduct a follow-up interview with a client who was allegedly duped by an unscrupulous real estate broker. I met with the client and began by asking some preliminary questions about key dates, names, and so forth. But there were some inconsistencies in his account of the events that disturbed me. I began to get a sense that the client was not the innocent, passive victim that the attorney believed him to be. I probed further, taking pains to avoid being perceived as inquisitorial and instead trying to reassure the client that I wanted only to be clear about all that had occurred. Ultimately he confessed to me that he and the broker had conspired to inflate the property’s selling price in order to mitigate the client’s income tax liability. However, the broker double-crossed the client by failing to disclose the existence of several adverse liens which resulted in a significant devaluation of the property. In other words, we had a client with “unclean hands.”

I somewhat reluctantly asked the client why he had not disclosed this significant issue to the attorney. His response was…”I didn’t think the lawyer was concerned about details...he seemed to clearly understand my problem... I just didn’t bring it up. Besides, I thought that if I related all that had happened the attorney would not think well of me and would probably refuse to take my case.”

I learned an important lesson that has always remained with me. I believe that the main reason the client confided in me can be attributed to the fact that I did not objectify him. I was more concerned about the welfare of the individual rather than the legalistic nature of his problem. My assigned task was fact-finding, but my real mission was to provide aid and support at a time of crisis. I believe that I was able to convey a sincere expression of concern for the client’s best-interest and a commitment to walk with him through the litigation.

The Fear of Being Discovered

A noted psychologist and theologian once lamented that human beings are created for fellowship and for community. Yet, we must also come to terms with the fact that we are often alone. “We are often made aware of being alone in those moments when we feel misunderstood in spite of our best efforts to make ourselves understood.” [3]

For many of us there is a profound sense of alienation and loneliness associated with conflict. It is a paradox that many individuals who are confronted by some type of conflict truly desire to receive help, but at the same time, they resist accepting help. [4] One school of thought finds that our resistance stems from of a fear of being discovered—fear of actually revealing to someone our true feelings, thoughts, concerns, and so forth. That fear is rooted in our worry that if we are “found”, then others will exploit us. In effect, we are afraid that others will discover who and what we truly are. If they make this discovery then our greatest fear may be realized, i.e., the fear that we will not be loved. As a consequence, we mask our true selves behind the veil of a false persona in hopes of being insulated from the risk of “being found.”

When I sit with individuals engaged in conflict, whether minor disagreements or litigants preparing for trial, I arrive with an expectation that each party will emerge from our encounter with a sense that they have truly been heard and that their feelings and interests have been respected. I want them to leave with a sense that their life’s story has real meaning, and that they are not merely another conflict to be input in the system and then sent home with a boilerplate solution that worked for someone else but which lacks meaning for them.

I don’t know about how others may feel, but when I have a problem that requires the intervention of a third-party be it a psychologist, clergy, or a mediator-- education, training, and experience notwithstanding, I want an individual that is concerned about my best interests and who is interested in fostering a resolution that will help me on my journey in this life. I want to explore problem-solving with a facilitator that is sincerely interested in my need to have a more abundant life. That’s the kind of individual that I want to help me resolve conflict on my job, in my community, between my business associates, and so forth. I don’t need someone with significant subject-matter expertise, but lacks empathy and compassion for each of the individuals seated with them at the mediation table. People in trouble don’t need an automaton, they need someone that is willing to struggle with them through the particular challenge of the day.

Becoming Involved in the Lives of Others

In order to be an effective instrument for growth and positive change between conflicted parties, it is essential that the mediator display compassion for the disputants and thus become an active participant in the lives and conflicts of the parties. This is what is meant by the term “an ethic of compassion. “

“Compassion” can be defined as the deep feeling of sharing the suffering of another, together with the inclination to give aid or support or to show mercy. [5] Several important concepts must be emphasized here:

Deep-
Expressions of compassion offered by the mediator must not be perceived as shallow or superficial. Most of us intuitively sense when we are being patronized or simply tolerated by others. The level of compassion exhibited by the mediator must be profound. It must have a depth that can only be derived from a conscious effort to literally ‘stand in the shoes’ of each disputant in hopes of acquiring a sense of their anxiety, their pain, or their frustration before and during the mediation session.

Sharing-
Sharing necessarily involves interaction, exchange, dialogue, and a search for mutuality of interest between individuals or groups. The mediator must convey a sense that he or she is taking an active role in the struggle of each party and thus better equipped to relate to what each party is experiencing

Suffering-
Whenever conflict arises there is always a corresponding element of suffering experienced by each affected party. The magnitude of suffering may vary. Suffering may be emotional, economic, social, or it may manifest itself in some other form or combination of forms. The mediator must remain alert to the possibility that when parties come to mediation in hopes of resolving a dispute, monetary compensation or equitable remedies alone may not provide the restoration and sense of wholeness that they long for. They may also need emotional, psychological, or social healing to repair the brokenness that stems from the controversy at issue. Clearly it is beyond the expertise of most lay mediators to effectively deal with such issues. Nevertheless, a mediator must be sensitive to the fact that an individual’s need for healing, if it is not addressed, may be a significant factor militating against settlement of the dispute.

Inclination-
The mediator must have an attitude or predisposition that motivates him or her towards supporting each party through the mediation process. It is not enough to merely empathize with the disputants, the mediator must feel compelled to get involved. Compassion without “works”, i.e., some affirmative act, is dead.

Aid and Support-
Two or more parties find themselves in conflict. For a variety of reasons they have been unable to resolve the matter between themselves. They may have talked with family, friends, or professional advisers to no avail. The parties may have hired attorneys. The lawyers were unable to resolve the problems. Now the parties agree to enter into mediation. The mediator as a second, third, or maybe fourth responder to this conflict crisis must arrive on the scene with the determination of a paramedic bringing aid and support. The mediator must help to shoulder their burdens through and hopefully beyond the conflict. It is critical that the mediator see her central role as that of serving the disputants.

Mercy-
Mercy and forgiveness are opposite sides of the same coin. When most individuals find themselves embroiled in a dispute and someone or some event illuminates the weaknesses or defects in their position, the last words that they need to hear are remarks such as “I told you so”, or “You should have listened to me in the first place”, or “Next time you won’t let this happen.” Perhaps the individual was wrong on every point, or maybe they were just plain stubborn. But at mediation when emotions and feelings are often highly charged, the party doesn’t need a lecture—they require mercy. They don’t need to be judged—they need to be redeemed. The individual needs to know that despite yesterday’s errors of commission or omission, today’s new perspective towards the dispute and today’s decision to settle the matter is in their best interest.

The mediator must strive to adopt this “ethic of compassion” towards the parties. This necessarily presupposes that the mediator sees his or her primary role, even more fundamental than that of peacemaker, as that of servant. The mediator must take a seat at the negotiation table ready to serve; not ready be have his or her ego serviced by the disputants, and not seeking cerebral entertainment by the parties or their respective legal counsel. By the same token, the mediator cannot emotionally sit on the sidelines of the dispute as if he or she were a referee for a sporting event. The mediator must roll up her sleeves and “get into the game.” He or she must do more than be a passive intervenor. The mediator must be willing to literally sojourn or “go through” the struggle hand-in-hand with the parties.

But how does one become “involved” in the disputant’s struggle without running the risk of sacrificing objectivity and neutrality? While it is generally accepted that there is no bright-line rule that can be applied to every situation, yet there are number of factors that point the way towards success.

First, the mediator must arrive at the session with an expectation that the best result will emerge from the mediation session for each party relative to that party’s needs and interests. The mediator must also bring to the table a sense of hope that each party will grow and learn from the experience of working collaboratively rather than fighting through their differences. This hope is grounded in a view that ultimately truth, as perceived in the eyes of the disputants and the mediator, will rise to the surface after a candid examination of each party’s perception of the facts, issues, and their respective interests.

Next, the mediator must strive to work creatively with the parties and motivate them, if necessary, to consider the nature of the dispute from a new perspective. The parties must be challenged to think “outside the box” if you will. The mediator must sincerely believe that new insights will be gained and the horizon of each party broadened. It would be illogical to hope that each disputant will be victorious at the close of mediation. No two or more opposing parties can leave the mediation, arbitration, or courtroom and truthfully say that everyone came away with a complete victory. But on the other hand, it is not unrealistic or naive to hope that each party can leave mediation having achieved what is really in that party’s best interest and for his or her own good. In other words, they may not get what they want, but they can certainly hope to get what they need.

Finally, because the mediator genuinely wants what is best for each disputant, the mediator works in hope that each conflicted party will come to see that more can be gained through reconciling their differences rather than striving simply for short-term gains. The mediator’s job is not an easy one. This is not work for he faint of heart.

If in my role as a mediator I rely exclusively upon the virtues of formal academic scholarship or abstract philosophical arguments, then I can reasonably expect to bring little more to the negotiation table than the sound of a “noisy gong or a clanging cymbal.” [6] My life experience, parental and family influences, and religious training have cloaked me with a moral and spiritual obligation grounded not in Law but in Love. I must bring to the negotiation table a sincere concern for the personal welfare of each human being that is involved in the conflict at issue. Like the airplane passenger described at the opening of this essay, when all is said and done I am just like the disputants; i.e., struggling, imperfect, and in search of understanding.

Conclusion

The mediator, at his or her best, is a conflict facilitation counselor. The mediator counsels the parties, not in terms of providing legal advice, but in a broader more universal sense. Counseling in this context consists of the establishment and subsequent utilization of a relationship; the quality of which can be described as therapeutic (healing), maieutic (facilitating birth and growth), and reconciling (restoring alienated relationships). This is the psychological environment where effective problem-solving, healing, and growth, can best occur…All of us have known the empty, depersonalizing feelings resulting from conversing with a person who isn’t really present. The opposite of this experience is required to produce a healing, growthful relationship. 7

Some individuals may believe that asking mediators to adopt an “ethic of compassion” is unrealistic, naive, and unnecessary. I have heard many attorneys and non-attorneys alike scoff , “I didn’t sign on to provide hand-holding for the parties…If the disputants need therapy or counseling go get it somewhere else…. After you are emotionally ‘together’ then call me.” Those sentiments are widely held and certainly valid responses. Yet, those types of responses may in many instances be a pretext for one’s fear of getting personally involved. Far too many of my cohorts in the legal profession suffer from an overwhelming fear of getting involved, fear of becoming attached to the parties or their clients, and a fear of feeling something. Why are so many American lawyers, judges, arbitrators, and mediators afraid of feeling? It has been my experience that for many this fear emanates from a need to maintain their sense of real or perceived control over the parties and their dispute. There is also a fear that a situation will arise that formal education and training has not prepared them to meet. Finally, many practitioners fear that if they feel anything they might personally align themselves with the interests of one party to the detriment of the other party or parties.

But that is part of the risk, and reward, of living. Where there is no pain (the absence of potential for risk-taking and vulnerability) there can be prospect for deriving any gain. Lawyers and mediators must wake up and smell the coffee: We cannot exercise complete control over every mediation and we cannot exercise control over the will of the parties. But all is not lost. While mediators certainly cannot control the outcomes of mediation sessions, they certainly do have control over the methodology, temperament, and mindset that they choose to employ in helping others resolve conflict.

We began this essay by suggesting that perhaps it is our common humanity that provides us with great potential to respond positively to images that transcend the boundaries formed by class and culture, race and gender, space and time. Those real or perceived boundaries far too often work to constrain our thinking and limit the capacity of our imaginations to see life not simply as it is today, but to envision life as we hope it might become tomorrow. The mediator-disputant relationship, not unlike the attorney-client, physician-patient, or clergy-parishioner relationships, is predicated in part upon certain underlying assumptions and expectations at work in the mind of each participant. In order for the parties to achieve reconciliation, if that is their desire, mediators must bring to each mediation session elements of both judgment and forgiveness; truth and grace. Judgment, not in the form of condemnation, but in a sense of acknowledging what that person has been going through and where they are.

When these key ingredients work together the disputant implicitly says to the mediator “There you are.” Grace comes in the sense of the mediator responding by saying “I am here.” [8] This can happen when we dare to bring to the negotiation a spirit of caring, an ethic of respect for the needs, wants, and interests of the disputants. We can bring an attitude that hopes for and expects that the good in every individual will ultimately prevail. We must believe that optimism will defeat pessimism, and that hope will prevail over despair.

Am I my Brother and Sisters’ keeper? If the mediator dares to adopt an “ethic of compassion” then the answer must be “yes.”

End Notes

1 Genesis 4:1-9 (NKJV)

2 Daniel Bowling and David Hoffman, “Bringing Peace Into the Room: The Personal Qualities of the Mediator and Their Impact on the Mediation;” in Negotiation Journal (Plenum Publishing Corp)(January 2000); pp. 11-12. www.mediate.com/acrspirituality/pg3.cfm.

“Being ‘neutral’ or ‘impartial’ does not mean that conflict resolvers are separate from the conflict systems they are seeking to help resolve. Because mediators are inextricably involved in the conflicts they mediate, ‘impartial’ may not be as accurate a description of the mediator’s role as the term ‘omnipartial’…While reconceptualizing the process as one in which the mediator is personally involved—being influenced by the process as much as influencing it –the mediator must manage the tension between his or her own objectives and those of the parties. The mediator has a professional duty to the clients, whose interests and needs are of paramount importance. Yet at the same time, the mediator cannot fully serve the clients without being cognizant of: (a) the evolution of relationships between and among the participants in the mediation, including the mediator; and (b) the impact of the mediation process on the mediator himself or herself. ”

3 Archie Smith, Jr., PhD, “The Church’s Ministry in a Lonely World” in Feed My Sheep, ed. Gregory J. Johanson (New Jersey: Paulist Press, 1984) p. 70.

4 William B. Oglesby, Jr. Biblical Themes for Pastoral Care (Nashville: Abingdon Press, 1980) pp. 78-79.

5 The American Heritage Dictionary (Boston: Houghton Mifflin Company, 1985); p. 300.

6 I Corinthians 13:1 (NKJV)

7 Howard Clinebell; Basic Types of Pastoral Care and Counseling: Resources for the Ministry of Healing and Growth (TN: Abingdon Press, 1984) pp. 74-75.

8 Oglesby, Jr., id. at pp. 84-85.

Biography


William Scott Harralson, J.D.  is a trained mediator specializing in civil rights, employment, personal injury, and conflict involving clergy and religious congregations.   He has been particularly effective in mediating disputes where sensitive cross-cultural, ethnic, and racial issues adversely impact the relationship between the disputants.  Harralson volunteers with a number of public and private entities including the Equal Employment Opportunity Commission, Contra Costa County Attorney Fee Mediation Program, and Small Claims Division-Alameda County Superior Court.   His experience also includes more than 18 years of civil litigation as a legal assistant and independent advisor to California attorneys.

Mr. Harralson is a former adjunct professor with Pacific School of Religion and has lectured at the Graduate Theological Union, both in Berkeley, CA.   He taught courses on legal issues affecting clergy and Faith Communities, as well as organizing religious non-profit corporations.



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