(Mediation) "Is the intervention into a dispute or negotiation by an acceptable, impartial, and neutral third party who has no authoritative decision making process" 1 When Christopher Moore wrote his seminal book The Mediation Process, mediation was still in it's infancy with regard to its utilization with litigated cases. As litigation has become more expensive, as parties have become adverse to the high transactional costs of litigation, as attorneys become better trained in mediation and negotiation, as attorneys and parties become more interactive in a less adversarial and confrontive life style, as under-financed courts are overwhelmed with criminal, juvenile and domestic relations cases, the demand for mediation of commercial disputes has skyrocketed. In fact, courts in many states are demanding that litigants participate in a mediation before they can come to court for a resolution of their dispute. For many disputants there is a sense that mediation must provide more than the all or nothing of litigation, that it should touch underlying issues and concern that run deeper than overt legal results. Parties want respect, dignity and an opportunity to be heard as well as a sense that the judicial system has treated them fairly from a financial perspective. Unless today's mediators are willing to mediate dangerously and take more spiritual and emotional risks, they will fall short as mediators. 2
Mediators who merely and meekly trade numbers from room to room no longer fill the bill for modern mediators. Paradoxically, ancient Native American traditions and values provide a portal for modern mediators to satisfy today's demand for a more meaningful, transformative, complete and satisfying mediation process.
Native American wisdom focuses on healing wounds, and bringing peace through good feelings, not fear. 3 While mediations are focused principally on legal issues, Native American wisdom teaches us to be mindful of a person's emotional damage as well. Mediators should not only emphasize a need for a legal resolution, but also strive to heal broken relationships, and rebuild personal self-esteem and confidence. Addressing these non-monetary dimensions directly is what makes mediation a unique opportunity for both financial resolution and closure. A mediator can assist in addressing non monetary dimensions by using Native American wisdom.
This article will present twelve values inspired by Native American wisdom. Each value will be defined used traditional Native American quotes. We will then use actual stories and give examples and tips on how each value can effectively aid in a dispute resolution. The use of stories to explain basic concepts allows the reader to retreat from a linear thought pattern, thereby giving a context and life to ideas that may otherwise be glanced over and forgotten. 4 We invite you to open your minds to a more balanced approach to mediation and a new understanding of how Native American wisdom can help facilitate the mediation process.
"Blue Jay noticed that bear had not said a thing. Finally, Blue Jay asked bear why was she so silent and bear replied, 'I'm listening and learning. I don't need to talk; I already know what I know.'" 5
In our usual and everyday discourse, it is rare that we get to express a complete thought without being interrupted. Most people do not fully hear the person who is speaking, because they are concerned with their own opinions, and the need to express those opinions immediately. One way to promote deeper listening skills at mediations is to invoke a no pen and pad rule. This rule demands that the parties put down their pens and not take notes, but instead really listen and understand what the speaker is saying. Parties engaged in a mediation without the ability to write something down become very uncomfortable. You can see them squirming and making attempts to reach for their pens. However, if they let go, you can see some tension leave them; they become engaged with their opponents and become involved in the conversation. Their case and their points will come out naturally if they will just allow the conversation to flow and trust the mediator to facilitate a conversation that covers key issues of the case.
While one listens carefully to what is said, it is just as important to recall that "sometimes humans need to listen to what people are not saying rather than listening to their words." 6 What elements of damages has the Plaintiff's attorney omitted from his presentation, and what defenses has a Defendant failed to address regarding liability? The better mediators prepare in advance of a mediation, so they can focus on what is not being said during the mediation as well as what is being said. As a mediator, it is important to determine what elements are missing based on what a mediator expects the Plaintiff or Defendant to mention.
To summarize, "[t]he Great Spirit created us with two ears and one mouth." 7 the Great Spirit did this with purpose. It is for us to remember to listen carefully to not only what another says but to what she does not say.
"Respect for all forms of life, unfortunately, is not a common value in many cultures today. It is easier to respect someone stronger, faster, or richer. Likewise, it easy to respect someone who is much like us in every way possible. Respecting someone with different beliefs, different dress or different customs, or something entirely different from us is not easy." 8
As a mediator, I have learned to appreciate people and their differences. Part of this comes from my background of advocacy, a much enhanced ability to truly listen to what is said, how it is said and what is not said. Each client should be treated with utmost respect, or, in other words, treated as if he or she is a visitor in your home. The more mediators have the opportunity to visit with participants, the better our understanding of their beliefs, their customs, and their faith. I have found that taking the time to know the clients shows respect, which results in an open communicative mediation. For example, a compassionate and thoughtful mediator will visit a disabled person in their home in a pre-mediation caucus. Respect is an even tougher challenge for advocates trained to zealously represent their clients. The zealousness tends to create partisan perception and negative stereotyping. The trick then is for the advocate to be mindful of such tendencies and to challenge any tendency to partisan perception rather than an objective perception.
"Generosity is a good thing to have, for we are all travelers together on this Earth." 9
Unfortunately, the lore and custom in the American litigation practice of zealous representation often gets in the way of even the modest application of the "rule of generosity." My Father, a small businessman, would often tell me that when he struck a deal with someone he always felt that he should leave enough on the table so that both parties profited from the deal and that both felt good about the process of competing the deal. My Father knew intuitively what John Marshall said above, quoted from Lakota Way. The benefit of mediation is to allow both parties to leave the table profiting from the deal. The benefit received may not be as much or as little as anticipated, but the goal of any mediator is to help the parties do a risk analysis and to understand the importance of compromise within that relatively objective analysis. Mediators will strive to leave enough on the table so that all parties will benefit, it is ultimately up to each party to decide to leave the table with the final offer or leave the final offer on the table.
"Humor is one of the most powerful tools that the Creator has given human kind." 10
In many mediations, anger, despair, fear and dismay invade the atmosphere. Often it is up to the mediator to lighten the load. I often do so by poking fun at myself, teasing the attorneys and finding something to joke about with the parties. This allows the parties to realize the humanness in the mediation process, and allows me to get the parties to focus on their ability to make light of an otherwise serious matter. The humor cannot be forced; it has to come naturally and fit the situation and the parties. Humor, if used appropriately, may be the lubricant necessary for the years of justice to grind smoothly forward.
"Human beings cannot understand another's life until they have carried the weight of that person's burdens, listened to that person's words, felt that person's pain, observed that person's actions, and walked along that person's path, sharing the others greatest longings and aspirations. Understanding those things we must then be able to sleep at that person's fire, sharing every part of the other human being's dreams and nightmares." 11
How do the defense attorney and the insurance adjuster walk "along that person's path?" Perceptive attorneys and adjusters can do it by effectively listening to the victim. A brilliant woman, who published numerous books and conducted corporate training programs nationwide, and who now suffers from a traumatic brain injury and two adjusters were given a unique opportunity to communicate. Mediating dangerously and creatively, but with permission from both Plaintiff's attorney and defense attorney, I had the Plaintiff and the two adjusters caucus without any pads or pens or attorneys - just real people listening and learning. Ultimately, the case settled with each principal calling after the mediation to say that the uninhibited caucus had been incredibly productive. The Plaintiff felt truly listened to and heard, while the lead adjuster appreciated getting to know the Plaintiff without the filter of attorneys or me. The lead adjuster told me that without this unique opportunity, to "walk along the Plaintiff's path," he would not have been able to view and really understand this unique injury.
In summary, compassion requires that the mediator and opposing advocates be understanding, take the time and trouble to listen to another's problems and be willing to risk hearing something that might change or challenge the listener's perspective. 12
"Silence was meaningful with the Lakota, and his granting a space of silence before talking was done in the practice of true politeness and regard for the rule that 'thought comes before speech. ' " 13
How often have we seen advocates, and even parties, rudely interrupt when an opposing advocate or participant is stating a position, expressing an opinion, noting a feeling, or reflecting an experience? The person interrupting generally loses face and respect; the person interrupted often feels dishonored, frustrated and angry. One way to avoid this from occurring is for the mediator to announce a no interruption policy. Another way to enhance the values of listening, respect and silence is to use a "talking stick." 14 In Native American tradition, the person with the "talking stick" has the right to speak without interruption. Others without the stick have the obligation to listen in silence. Once the speaker finishes, the others may voice their opinions. It is up to the mediator to facilitate this "talking stick" process. At the end of this process, the speaker feels heard and the listener actually hears what the speaker has said, and takes the time to think before responding. An interesting Hebrew quote put it this way "[t]he beginning of wisdom is silence and [t]he second stage is listening. 15
"The wise individual looks and hears the unspoken signals that scream for the need to be recognized. The gentle and sensitive listener is adept at the art of creating safety and space for sharing that allows others to express their needs." 16
My approach to mediation involves provoking, noting and encouraging the expression of feelings and emotions. While the context of a message is important, emotions cannot be ignored. Nonverbal communication often conveys important emotional context and it is important for the listener to note the speakers' choice of words, the timbre of his voice, his cadence, his facial expression, posture and gestures. For example, in a recent insurance bad faith case both parties decided to bring their damage experts to mediation. As the dialogue went around the conference table, the defense expert projected non-verbal cues. He reflected his distress by frowning and even sighing. I read his nonverbal messages and decided it was necessary to give him the opportunity to verbalize the concerns and questions that accompanied his frowns and his sighs. I wanted him to be able to get what he needed to say out on the table. Effective mediators and effective negotiators must create a safe atmosphere that will make it possible for participants, such as this damage expert, to share their perspective and do it in such a way that allows the other side to hear their perspective. When I felt that the atmosphere was safe, I asked the damages expert to share their perspective and do it in such a way that allows the other side to hear their perspective. When I felt that the atmosphere was safe, I asked the damages experts about his nonverbal cues. Given the opportunity to do so, the Defendant's damage expert "vented" and put his hard to suppress feelings on the table where others around the mediation table could deal with them. Recognition of nonverbal communication is what it took to allow the damage expert to convey information. In this instance, both parties benefited from the verbalization of a non-verbal cue.
"The sincere desire to deal fairly with others, to admit our shortcomings and to make amends where needed is the mark of a person worthy of trust." 17
Why is it that some Defendants, adjusters and some defense attorneys find it difficult to admit responsibility and "to make amends?" The defense team that is prepared to sincerely offer its amends, apologize and acknowledge responsibility, where warranted, takes the first step towards resolving the case. Why is this first step the most important move toward resolution? It is because a sincere apology or acknowledgment reflects and affords dignity that establishes an initial level of trust and reliability that allows a case to move towards resolution.
Some mediators feel that there is a flip side to atonement. The flip side is "forgiveness." Forgiveness is something a victim may do, not so much for the opponent, but for the victim's own peace of mind. 18 Forgiveness allows the shedding of emotional pain, anger and shame. 19 It allows the victim to free himself from the past and focus on the future. Put another way, forgiveness nourishes the soul. 20
'The art of speaking harmoniously is a bit more difficult because people who are honest and direct tend to forget that brutal honesty is not always appreciated. If sensitivity is paired with intelligence, we are using our power of perception to notice where we can bring harmony in a potentially upsetting situation. Respecting the vulnerability of those who trust us to be honest and gentle is the key to the art of speaking the Truth in Harmony." 21
Assuredly, mediators must question and listen carefully. Rather than being passive purveyors of numbers, the truly engaged and effective mediators provide honest and direct feedback. Usually, positive feedback is never hard to share, but negative or disappointing information can only be effectively conveyed after the bridge or trust has been built. "Brutal honesty," as the above quote states, is not always appreciated. It is certainly not appreciated if it is delivered before the mediator develops some level of trust with the principals. Mediators who presume to be "brutally honest" without connecting with the participants are setting themselves up for failure. This is why thoughtful mediators prefer to meet with parties in advance of a general session. This "pre-mediation caucus" may take place several days in advance of the mediation or in a "staggered start" before the actual mediation begins. In my practice, a "staggered start" involves giving each party an opportunity to meet with me privately before we go into general session. The primary purpose in such sessions is to create a communication bridge based on mutual trust and rapport.
Not only must the mediator establish trust with the client, the effective mediator must have character and insight to tell the truth as he or she sees it and do so at just the right time. I have discovered through success and error that the right timing takes patience, based upon both intuition and experience. The mediator must learn to be comfortable with his or her intuition. Experience allows the mediator to know what gut reactions should be shared, how much to share at a time, and when to share the truth as you see it. The "truth" cannot be delivered before it is time to do so, just as a fine bottle of wine is not opened before its time. Like fine wines, fine opinions will not be fully savored until all are ready! Like the popping of the cork, the delivery of the mediator's opinion has to be done with pomp and ceremony or even "creative genius."
"Part of healing was the way she listened.....she always reacted with sympathy and compassion. So it isn't just the treatment that heals it's the hands on understanding and cooing that sometimes makes the mediation do its work. In truth, the caring and attention are part of the medicine." 22
So often during a mediation an innocent victim of negligence, of medical malpractice, or securities fraud will express the feeling of "why me?" With this feeling, it is often hard for the unwary, non-negligent victims to accept the fact that, "bad things happen to good people.23 It is my opinion that Defendants, defense attorneys and mediators can help with the healing process in the wide spectrum of cases. Empathy, sympathy and compassion sincerely and appropriately expressed, by all parties involved in the mediation, often move a mediation along the way to resolution.
I once mediated a case for a young man with a wife and young children. He had gone into the hospital for a relatively routine surgery. Disastrously, he left the surgical suite blind. Between the date of the surgery and the end of the mediation, this accident victim learned to work with a Seeing eye dog, go to school, and he and his wife had another child. At the close of the mediation (one of the most poignant mediations I had the privilege to facilitate), he thanked the adjuster and the defense attorneys for helping to provide for his family's future. This good man, this wise man, did not stay focused on his grief and his despair. Instead, this special man was some how able to look within his soul for the inner peace and faith that allowed him to move forward while others with much less severe injuries remain stuck in the past. It is cases like the above-mentioned, that force the question, what legal tools do advocates, adjusters and health care providers have to assist victims of accidents, racial discrimination, sexual harassment and fraud, to heal spirituality as well as economically?
In appropriate cases an advocate or a mediator may encourage the person who feels unjustly victimized to view the unfortunate occurrence as an opportunity. Victims must be encouraged to avoid the negative spiral of victimization. Victims who look at tragedy as a gift in disguise, as an opportunity for growth and for inner strength will be better for it, and so will their case. 24
"Being wise, having wisdom, is knowing what to do with what you know, when to do it, and how to do it. Or sometimes a person must know enough to do nothing." 25
Native American wisdom focuses on a more external format of healing wounds and bringing peace through good feelings. While many commercial mediators are focused principally on legal issues, Native American wisdom teaches us to be mindful of a person's emotional damages as well. Mediators should not only emphasize for a legal resolution, but also strive to heal broken relationships and to rebuild personal self-esteem and confidence. Addressing these non-monetary dimensions is what makes mediation a unique opportunity for both financial resolution and closure. A mediator can assist parties in addressing the non-monetary dimensions of mediation by utilizing Native American wisdom.
If a mediator has prepared properly, he can work taking few, if any, notes during the mediation. Effective mediators know the case walking into the mediation. Confident, experienced and prepared attorneys and adjusters generally come to mediations with little more than their laptops, their confidential settlement statement and key exhibits. The "ways of wisdom" is to listen and to learn, to hear something that you have not heard, which materially effects the beat and rhythm of the case. Wisdom, in the context of mediation, requires knowledge of the case and of the parties, acquired in advance of mediation. During mediation wisdom requires flexibility. It requires a willingness to have your pre-conceptions challenged. It requires nimble negotiators to respond to new information. This information may be acquired from the opposing party, the mediator or from a flash of insight. Too often, advocates cannot dance to the music of the case because they come in unprepared wearing earplugs or with an attitude that reflects a refusal an unfamiliar style of music. The very best advocates and adjusters are prepared and have an affinity for "hearing a new song" which allows them to listen to and appreciate unanticipated and unexpected rifts that occur during mediation. Perceptive listeners can often find "the ways of wisdom" or the key to closure from the words or the ringing silence of the participants. The only path to get to "the ways of wisdom" is to prepare the case in advance, so that during the mediation you may be able to recognize what the silence of the participant means and be open to hearing a new song.
"Á person who can take the ordinary and illuminate it, invoking deep feelings in others often is called a creative genius. The Ancestors call those who carry that talent The Gifted Ones." 26
The truly "Gifted Ones" and the effective "Peacemakers" are not merely passive paper pushers. They are not mere neutral number exchangers without passion and persuasive insight. The truly gifted mediators who walk with the "gift" and who have the "instinct" and the "might" to bring people along the path to closure, utilize the core values and virtues long extolled by our Native American brothers and sisters.
Mediators who will not take the risk of bringing "a deep dangerous level of honesty and empathy" to the dispute resolution process leave a void in the circle of justice. 27 The pale passionless process of too many mediators and the non-engagement of some advocates leave the clients, the true customers of mediation, wondering about the justice in our justice system. The gifted "Peacemaker" has the wisdom to listen silently.
Often the participants unknowingly supply the keys to closure. The gifted "Peacemaker" has the wisdom to dole out measured doses of honest feedback when the "patient" is ready for the medicine. It is an awesome responsibility to be a "Peacemaker" and an honor if one can come to be considered "Gifted One."
In conclusion, we have found that intertwining Native American values with basic practice and principals of mediation aids in facilitating effective transformative and spiritual dispute resolution. The gifted mediators listen patiently for the deepest meanings of what is said verbally and communicated non-verbally. The mediator is listening for both overt and convert messages. He listens with respect and compassion. He risks self revelation just as he asks it of the parties. It is not only a mediator's generosity, humor, and silence, but also his style and empathetic connection with the parties which allow the mediator to gain the necessary trust. As he asks for trust, he must earn it. Then having earned it, he may assist the parties with atonement, with respect, compassion, empathy, sympathy and forgiveness. A risk taking mediator may even attempt to assist the parties with transformation, and he affords opportunities for healing. A mediator with true wisdom knows how to set a foundation during a mediation, which allows participants to heal their wounds. Mediators who fail to address underlying issues and needs sell their clients short and cannot earn the title of the "Peacemaker" or the accolade of being considered a "Gifted One."
Modern mediators must be prepared to take risks to help the parties come to a complete closure and they must recognize that in some instances at least, this may require "risking" heartfelt and spiritual connection. By using these core values inspired by Native American wisdom in their practice, mediators may become "Peacemakers" and may be honored as a "Gifted One."
Darby Sais, recently graduated from The University of Denver Law School. Ms. Sais assisted in the preparation of this article while serving as an intern with Conflict Resolution Services, Inc. (CRS).
1 Christopher Moore, The Mediation Process, P. 14 (Josey-Bass 1986)
2See generally, Kenneth Cloke, Mediating Dangerously, P. 4-5, 25-45, 119-125 (Josey-Bass 2001)
3Diane Le Resche, Editors Notes, 10 Mediation Quartely 32, (1993)
4Michelle LeBaron & Jim Potts, Story and Legend: Powerful Tools for Conflict Resolution, 10 Mediation Quarterly 387, (1993)
5Jamie Sams, Earth Medicine, 28 (Harper San Francisco ) (1994)
7Kent Nerburn, The Wisdom of the Native American, 10 (New World Library) (1991)
8Joseph Marshall, Lakota Way 49 (Viking Compass) (2001)
9Id. at 189
10Jamie Sams, Earth Medicine, 157 (Harper San Francisco, 1994)
11Id. at 21
12Compare Robert Bolton, People Skills, 27 (1974) Citing Dr. Mayo with Kenneth Cloke, Mediating Dangerously, 4 (Josie-Bass Publishers, 2001)
13Kent Nerburn, The Wisdom of the Native American, 10 (New World Library, 1991)
14Rita Robinson, Exploring Native American Wisdom, 74 (Franklin Lakes, New Page Books, 2003)
15Kenneth Cloke, Mediating Dangerously, 46 (Josey-Bass Publishers, 2001)
16Jamie Sams, Earth Medicine, 32 (Harper San Francisco, 1994)
17Id. at 26
18Kenneth Cloke, Mediating Dangerously, 94 (Josey-Bass Publishers, 2001)
20Richard Carlson and Benjamin Shield, Handbook for the Soul Citing Sydney Banks, 77 (Little Brown and Company, 1991)
21Joseph Marshall, Lakota Way, 201 (Viking Compass, 2001)
22Rita Robinson, Exploring Native American Wisdom, 74 (Franklin Lakes, New Page Books, 2003)
23Richard Carlson and Benjamin Shield, Handbook for the Soul, 18 Citing Rabbi Harold Kushner (Little, Brown and Company 1991)
25Joseph Marshall, Lakota Way, 201 (Viking Compass, 2001)
26Jamie Sams, Earth Medicine, 197 (Harper San Francisco, 1994)
27Kenneth Cloke, Mediating Dangerously, Compare at 5 with 170 (Josey-Bass Publishers, 2001)