Mediation and Council, Kissing Cousins in Resolving Disputes
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June 2006 |
As mediators, we are constantly adding techniques to our tool box to assist us in helping parties reach a satisfactory resolution of their disputes. The purpose of this paper is to introduce an ancient technique that has many similarities to mediation and which may prove useful when a mediation has stalled or even as a beginning approach to certain types of disputes.
A. Origins of Council.
Among tribal societies, serious matters that required a decision of the group were discussed in a council setting. These councils bore little resemblance to the so-called “tribal council” of the popular “Survivor” series on television. Rather, they would take place in a tribal ceremonial house or a kiva. Ceremonial objects would be brought out by the elders. The participants would sit in a circle around a fire and pass a talking stick. Each would speak in turn with stories or points of view, with periods of silence. Out of the process, the participants would arrive at an answer to the issue being addressed.[3]
The early Greeks used a form of council to discuss military strategy, and one commentator has suggested that such councils formed the basis of democracy.[4]
B. Council in Modern Times.
The Council process has been used in more modern times in very different settings than a kiva or a tribal house. Nearly two dozen school districts and private schools use the process to facilitate communication and teach conflict resolution to students. A dozen non-profit and spiritual organizations and communities have also used Council to resolve issues of those organizations. Of even greater interest is the fact that a dozen business organizations, including several Fortune 500 companies have used Council to assist them in resolving a variety of issues.[5]
C. Intentions or
Principles of Council.
There are four intentions or principles that guide the Council process, which traditionally are summarized as: 1) speak from the heart, 2) listen from the heart, 3) speak spontaneously and 4) speak leanly. These will be discussed in detail infra, but would benefit from some explanation now.
What do we mean when we say “speak from the heart”? We mean speaking in the most honest, direct and heart-felt way possible, with no artifice and no holding back. Depending on the particular mediation and the participants, it might be better to express this principle as “speak in the most direct and honest way possible about your position.”
What do we mean by “listen from the heart”? We mean listening with an open mind, with empathy (not agreement) and with a genuine interest in hearing and understanding what the other person is saying. This is familiar to most mediators in asking parties to reframe what the other party stated to demonstrate that they really heard and understood the other’s position.[6]
“Speaking spontaneously” means not sitting and rehearsing what you are going to say while the other is talking, but rather speaking from the present moment whatever arises in your mind. This process has the greatest opportunity for genuine speech and opportunities for break-through.
“Speaking leanly” means keeping your speech to the minimum necessary to convey your thoughts. Because of the mechanics of Council, which will be discussed infra, the speaker cannot be interrupted. Therefore, it is important that oratory be limited so that true dialogue among the participants can take place.
D. Similarities between Council and Mediation.
It should be apparent, even from this short summary, that there are many similarities between Council and mediation as generally practiced. Of course, the Council process has a broader set of applications than just conflict resolution. Nonetheless, both approaches share many common elements:
1. Voluntary. Central to the mediation process is the fact that it is party-controlled. No one but the parties can dictate a result. Consequently, unlike arbitration and certain other alternative dispute resolution techniques, the process is completely voluntary. Even so-called court mandated mediations are voluntary in the sense that while a party must physically appear, he or she cannot be compelled to agree to anything. Likewise, participation in a Council process is voluntary in that it is perfectly acceptable for a participant to pass the talking piece without saying anything. Just as in court-ordered mediation, attendance in a Council circle may be required –as in a school setting- but silence is permissible. Experience has shown that once an attendee at a mediation or a Council has had the process explained and he or she has observed the mediator or the Council facilitator as non-coercive, then reasonable participation usually follows. This is not meant to imply that every mediation or every Council process is successful. But the essential element of voluntariness enhances the quality of participation and the results that occur.
2. Uninterrupted speech. One of the four basic intentions of Council is that only the person holding the talking piece is entitled to speak. All of the other participants are to be respectful, openhearted listeners, and outbursts or interruptions are not countenanced. So too, in mediation, one of the basic ground rules is that parties will be respectful and not interrupt each other. These rules work as long as the parties know that they will have ample opportunity for a similar uninterrupted period to respond.
3. Emotionally freeing. Another intention of Council is that speech should be spontaneous and from the heart. We’ve been deeply moved in many Councils when a speaker has spoken “their truth” in a genuine heart-felt way. This approach can be deeply cathartic for the speaker – and the listener. In a somewhat similar manner, in mediation it can be very useful for the mediator to permit a party to “vent” his or her frustrations. Often parties to a mediation have not spoken directly to each other for some time, if at all. If one of the parties is a large entity, the decision maker may have no idea why the other party is so upset. Sometimes, just having the opportunity to “speak their piece” is sufficient for a party to then come to agreement on outstanding issues.
4. Lean Speaking. A third principle of Council is that speech should be lean. This is a necessary corollary to the principle of uninterrupted speech. It violates the spirit of Council if one participant “hogs” the floor. So too, in mediation, if one party rambles on incessantly, it is difficult to develop the dialogue that can lead to settlement. It is important that the mediator assure the parties that they will have ample time to speak but that if too many points are discussed at one time, it is difficult to reach resolution on any of them.
5.
Confidentiality. Mediation is rooted in the necessity for
confidentiality. If the parties are to
talk candidly about the strengths and weaknesses of their positions and the
range of possible solutions they would be willing to accept, then they must
have the assurance that such candor will not come back to haunt them should the
mediation not conclude with a successful resolution of their dispute. The principle of confidentiality of
mediation proceedings has been embodied in the statutes relating to mediation
of many states in various ways.[7] This principle was recently reaffirmed in
case before the California Supreme Court[8],
and is embodied in the recently revised Uniform Mediation Act.[9] Similarly, discussions in Council are to
remain confidential among the participants.
Otherwise, a Council member might be inhibited from speaking candidly
and from the heart.
6.
Mediator as Witness. One role of a mediator is to mirror for the
parties what they have said. This
serves to show the parties that they have been heard, will help clarify any
ambiguities as to their positions and allows parties to hear from a third party
what the real issues in the dispute are.
The mediator also serves as a cheerleader for the mediation process and
will encourage the parties not to give up, even when it seems there are
irreconcilable differences. Often in
Council there is a space or role for a witness – someone who will speak for the
entity- rather than individuals- or for the so-called “third presence” in
Councils between couples. In each instance,
the mediator or witness serves as a voice urging the participants to look at
“the big picture” rather than at their navels as is often the case.
7.
Creative problem
solving. One of the many virtues of
mediation over other alternative dispute resolution techniques is that the
parties are free to think “outside the box” of legal remedies. It is often possible to for parties to come
up with very creative solutions to their dispute, and often there are global
settlements of multiple lawsuits or other disputes, which would not be possible
at a trial or arbitration. For example,
a manufacturer might offer some free merchandise or a discount over the next
two orders if a disgruntled buyer continues to order from it. This is not a remedy available under current
legal theory. In so-called “popcorn”
Councils, participants are freed of the talking piece constraint to respond
spontaneously where the Council has been called to solve a particular problem. This free flowing, unfettered approach can
lead to very creative solutions.
8.
Narrowing of Issues. Even if a mediation session does not lead to
a final settlement of the dispute between the parties, often the discussion
will narrow the real issues that concern them.
In that way, the subsequent trial or arbitration will be more focused,
saving time, energy and money for the parties.
Similarly, a Council may not resolve the problem facing the
participants, but the discussion can clarify the issues to be discussed at a subsequent
Council.
E. Use
of the Council Process in a
Mediation.[10]
How would you go about using the Council process in a mediation setting?
A great thinker once said, “You can’t solve the problem at the level of the problem.”[11] So if the issues originate at “A” (at the foothills of the mountain), we need to climb up and look from the top of the mountain, “B”, to have a large enough vision to solve the problem down below. If everyone walks into the mediation session raring to go to push forward his or her agenda, coming from personal long-time held ideas and prejudices, the session will be full of ideas, facts and figures to bolster up a preconceived plan. Hopefully, the mediator and parties can raise the level of consciousness, so what is discussed is new and fresh and could not have been conceived of without the synchronistic interweaving of the whole, including those positions a party agrees with and those positions the party doesn’t. Heightened perception is intensified using the four intentions of Council.
1. Preparing the Room.
Before further outlining and describing the process, it is important to focus on preparing the room and energetic space for the session:
a) Arrange the seating to allow everyone to see each other. It would be best if everyone were seated in a circle not around a table.
b) Arrange the center of the circle with objects that are meaningful to the persons involved in the mediation.
c) Lighting a candle evokes a sense of ceremony. This may or may not be appropriate, depending on the nature of the mediation.
d) Choose a talking piece that everyone involved in the mediation will feel comfortable with and inspired by. We have used heart-shaped rocks, rattles, Native American talking sticks and a gavel. In business settings, things meaningful to the business have been used, such as model automobiles in a used car dealership.
2. Preparing Yourself.
The mediator might want to meditate or take quiet time, walk, play or listen to music to heighten his or her own sensitivity and preparation to listen deeply and leave the ordinary ego at the door.
3. Preparing the Session with Ground rules.
Only the person holding the talking piece may speak. When the person speaking is finished, she or he must return the piece to the center of the circle and not pass it on to the next person. This allows time for people to stop and reflect and decide if this truly is the moment that they are moved to speak—allowing time for listening to the space between the notes.
4.
The Four Intentions of Council.
a.
Speaking From the Heart
This can be taken at first quite literally. Imagine words emerging from the mid-chest region rather than the mouth. When our words or silence come from the heart, there is a tangible feeling of expansion and a sense of greater connectedness to others in the circle. We are more likely to feel non-attached to personal positions, non-defensive, and committed to recognizing the truth of the circle as a whole. Speaking from the heart is not about “touchy-feely”, but means being as honest as one’s feeling of safety in the circle permits. Simplicity and passion support heartfelt expression. Personal revelation rather than philosophical musings; personal stories and expression rather than long rambling stories that are tangential to the parties.
b.
Listening From the Heart
Listening attentively can be rare. Often we get the gist of a speaker and then begin preparing our own response. Or we dismiss what the other is saying, become disinterested and then either listen intermittently or not at all, having turned off our hearing aid because we don’t like what the other is saying. The success of Council is largely determined by the quality of listening in the circle. When it is “devout” (as the Quakers would say), the speaker feels empowered and is more likely to rise to the occasion. Conversely, listening devoutly invariable helps the listener feel more connected to the speaker, even if there’s strong disagreement with what is being said. You might imagine the speaker’s words entering your mid-chest rather than your ears. Take a few deep breaths while holding the image of listening from the heart.
c. Being of Lean Expression
Be Brief—usually there is enough time for everyone to speak and get their fair share of attention. One can feel the restlessness of the parties or the interactive field to sense that a speaker is going on too long. One way to avoid unfocused stories and rambling statements that are not likely to serve the process is for the mediator to make the theme of the session “crystal-clear” at the outset. You might take up one question at a time or focus on two, but no more. If people seem to be rambling because they are uncomfortable with the process or want their point of view to hold sway, or whatever the reason, this can be addressed directly. Another person in the circle, when it gets to his or her turn, can reflect honestly about their feelings during the long rambling. You might leave an empty chair, the witness seat, for the spirit of the relationship between the parties, for a witness to assume and speak to the process itself or the ways in which the speaker might be leading the process astray.
d.
Spontaneity
Set the intention of not rehearsing what is to be said. Preparing an agenda while others are speaking limits the ability to listen attentively. Rehearsing may also limit the ability to speak from the heart. Freed from the need to prepare, the ordinary mind is more likely to step out of the way and let the more intuitive voice speak. Holding the talking piece silently for a short while and letting the presence of the circle and moment evoke what needs to be said, somehow dissolves habitual reactions and attachments to long-held positions. Everything that feels important at the time doesn’t have to be spoken. What we forget to say is either not essential or will be brought to the circle by someone else. Ultimately, we learn that each voice in the circle, including one’s own, is part of the larger “voice of the circle.” We speak personally and, as an aspect of this composite voice, simultaneously.
It might be helpful to direct people to “take a deep breath as the talking piece is being passed from one person to another and prepare as though this is the first voice in the circle.” You can also suggest: “When you pick up the talking piece, hold it for a moment, take a deep breath, clear your mind and ask one of these questions to yourself:
“Will speaking this serve me?”
“Will speaking this serve the circle?”
“Will speaking this serve the highest good of the mediation?”
In a mediation, the language we have used can be modified to meet the specific setting and indigenous nature of the parties. For example, it may be better to talk about “speaking honestly” rather than “speaking from the heart”.
5. Focusing the Group.Unlike meetings conducted in a hierarchical context where the facilitator calls on raised hands to speak, the process of Council has a way of refocusing or shifting a stated purpose by revealing hidden agendas. An effective mediator can pull the parties back to a preset direction if the circle gets too far afield, but sometimes the spontaneous “will of the circle” cannot, or need not, be denied. It is not so much that the mediator loses control but rather that the Council itself moves organically in a direction that is undeniably right. Indeed, part of the power of Council is to uncover the real agenda for the parties, even when no one in the circle was in touch with it at the outset.
You might begin with one of the following warm-up questions to allow everyone to feel part of the mediation session:
a) What are your expectations of our time together?
b) What experience, skill, or aspect of yourself do you bring to this session as a gift right now?
c) Is there anything about this session or its purpose that makes your feel uneasy?
d) What is your greatest fear right now?
6. Weather Reports
It is important to check in with how all participants are feeling, uncover possible hidden difficulties or, if it’s at the end of the mediation session where no agreement has been reached but the parties wish to continue the process, to set the focus and agenda for the next session.
“How’s your internal weather right now?”
F. When use of Council in Mediation Might be
Appropriate.
One of the beauties of the mediation process is its flexibility and the many approaches taken by experienced practitioners to assist parties reach resolution. Some mediators never go into separate caucus, others always do. Some like opening statements, others don’t. The variations in the process are endless. We are aware of mediators who already never sit around a table or who have used a talking piece.[12] So use of the Council process in mediation may not be as much of a stretch as it might appear at first. Nevertheless, we believe it would be an unusual mediation that should start out initially in a Council setting. We think a period of trust building with the mediator would be in order, so Council might best be used at a second session, if the first session does not bring resolution and the parties still wish to continue. The mediator could introduce the possibility of trying a slightly different process the next time the parties meet and get their agreement to try it. While the process could be used in any type of mediation, family mediation, employments disputes, partnership disputes and community issues where emotions run high would be excellent settings to use Council. Since the Council process has been used to assist businesses on issues of succession planning and strategic planning, it would also be appropriate for certain commercial or construction mediations.
As the old commercial used to exhort: “Try it, you’ll like it!”
[1] Full time neutral arbitrator and mediator with over twenty-five years of experience; adjunct professor of business planning and business of the practice of law, Golden Gate University School of Law; director and treasurer of the California Dispute Resolution Council, co-chair, Arbitration Section of the Bar Association of San Francisco. Further information available at http//:www.adrresolutions.com.
[2] Director of the Elderfire Institute. Life coach and psychotherapist for over twenty-five years; she and Maurice provide relationship trainings for committed couples.
[3] For a detailed account of one such council see Zimmerman and Coyle, The Way of Council (Bramble Books 1996) 1-4
[4] Cahill, Sailing the Wine-Dark Sea, Why the Greeks Matter (Nan A. Talese 2003)47-48, 55, citing Homer’s The Illiad. See also Zimmerman and Coyle 5.
[5] Information provided by the Ojai Foundation, available at http://www.ojaifoundation.org
[6] One well-known expert has suggested that in understanding a conflict, the most illuminating point of view is standing in the shoes of the person whose mind we are trying to change. Fisher, Kopelman and Schneider, Beyond Machiavelli (Penguin Books 1996) 32-33.
[7] See E.g. Cal. Evid. Code §§1119, 1121 (West 1997); Mass. Gen. Laws c233 §23(c) (1985); Tex. Civ. Prac. & Rem. Code §154.053(c) (1999).
[8] Foxgate Homeowners Association v. Bramalea California, Inc. 26 Cal 4th 1 (2001)
[9] Uniform Mediation Act §4,available at http://www.law.upenn.edu/bll/ulc/mediat/2003finaldraft.htm (last accessed May 7, 2006)
[10] Significant portions of this section have been adapted from Zimmerman and Coyle. For another discussion of the Council process see Baldwin, Calling The Circle (Bantam New Age Books 1998) 65-83.
[11] Attributed to Einstein. See The Expanded Quotable Einstein (ed. Calaprice) (Princeton Univ. Press 2000) 317
[12] Information derived from personal communications between author and participants at meetings of the Mediation Section of the Bar Association of San Francisco and the Mediation Society of San Francisco.
Biography
Barbara Zilber is a life coach and Director of the Elderfire Institute. She was a practicing psychotherapist in Boston for 25 years. Both she and Maurice completed training in the Council process for use with committed couples at the Ojai Foundation and have utilized the process in work with couples as well as a non-profit organization in Berkeley, California. The Zilbers offer training in the Council Process. Contact Barbara Zilber at bgzee@earthlink.net or Maurice Zilber at mlzee@earthlink.net
Maurice Zilber has been a commercial arbitrator for over 25 years and a mediator for 10 years. He has been a business lawyer for over 40 years and served as managing partner for his firm in Boston where he first honed his mediation skills. He is an adjunct professor at Golden Gate Law School in San Francisco. He is Chair of the Arbitration Committee of the Bar Association of San Francisco, a member of the Mediation Society of San Francisco, a Fellow of the College of Commercial Arbitrators and a Director and Treasurer of the California Dispute Resolution Council.
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