Mediation and Council, Kissing Cousins in Resolving Disputes

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!”

End Notes

[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
Counci
l (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.

                        author

Barbara Zilber

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… MORE >

                        author

Maurice Zilber

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… MORE >

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