Negotiating Reconciliation, Amends And Forgiveness in Burundi

June 12th, 2009

Whenever I (Victoria Pynchon) read about restorative justice (my paper on the topic here) I am somewhat ashamed that I cannot put aside my own grievances when others resolve harms of such major magnitudes such as the murder of children and genocide.  I am reminded of this today because of Paul and Rebecca Mosley’s blog on the work they are doing in Burundi.
What relevance does this bear to my attempt to settle “pure money” litigation you ask.  First, I must say that there is no such thing as “pure money” litigation (see my paper on this topic here starting on page 60).  Second, the conflict of litigation is nothing compared to the matters resolved in a restorative justice session — matters such as the murder of one’s child and rape by one’s own brother at knife-point (in the tragically mesmerizing Beyond Conviction). And in the unfortunately common outbreak of genocide such as that occurred in Rwanda.

There is something for all of us to learn about the power of reconciliation of these matters of far greater import than the value of a breach of contract or even the infringement of a patent, trade mark, trade name or copyright.  In my own personal life I am forced to ask myself, in light of the courage displayed by these people, who I am not to forgive.

So today I bring you a recent post from Paul and Rebecca Mosley’s blog Holy Week and Transitional Justice about their work in Barundi with the Mennonite Central Committee. These are the modest international heroes of the modern peace movement.  I will let them explain their work in their own words below.

I was invited to represent MCC at a meeting of Peace Church organizations working in Burundi. Representatives from The American Friends Service Committee, Quaker Peace Network, as well as others were in attendance. When asked what the AFSC saw as ‘flashpoints’ of conflict—anticipating and trying to prevent potential conflict flashpoints is an important part of peace work— they identified several problems. First, there is the continued problem of repatriated refugees coming back to land they had abandoned that is now occupied. There have been many ongoing land disputes that have often turned violent and even murderous. Secondly, there are the upcoming 2010 elections. There will be many political parties, including some fairly radical ones formed by recently demobilized rebel groups. Peaceful transfer of power is historically almost non-existent in sub-Saharan African nations and there is considerable anxiety about what will happen in the next 12 months. However, the biggest concern identified by AFSC was ‘transitional justice’. This is really a serious problem here and speaks to the greater problem of trying to bring to ‘justice’ those who have been guilty of past war crimes.

Here’s the problem: how do you persuade a government to pursue justice for those who are guilty of committing crimes in the past 14 years of civil war, when many perpetrators are now occupying seats of power in the government itself? Also, there is the ongoing undercurrent of ethnic conflict. Any attempt by one ethnic group to pursue ‘justice’ against another looks like retribution and not impartial arbitration. Add the complication of a highly politicized election, and this becomes a real conflict tinderbox. Doing nothing (letting sleeping dogs lie), however, is not an option as it fuels growing resentment in the population, as they see many known war criminals ‘getting away with murder.’

At the local level, MCC partners—particularly MiPAREC—have set up ‘peace committees’ in communities all over the country to try to introduce concepts of ‘restorative justice’ to resolve conflicts. This involves providing a forum for grievances to be aired, victims’ stories to be heard, and an opportunity for perpetrators to ask for forgiveness and make amends. They have had a great deal of success at the local level, but whether this type of reconciliation can be accomplished at the national level is an open question.

As I said, the problem is that there is no impartial arbitrator. Everyone is on some side, and many who would need to implement justice have blood on their own hands.

I am learning that justice is not a simple matter of getting the facts and making a ruling. Those in power can decide which facts are relevant and can largely determine who is tried and the outcome of any legal process.

What human beings are capable of—even at their best—is only a shadow of what I believe divine justice will look like. I am considering in a new way that passage in 2 Corinthians (5:17-21) that says we have been given “the ministry of reconciliation.” – which is the gospel! We may never be divine judges, but we have, in Jesus, the capacity for divine forgiveness. I pray this capacity will be shared in Burundi by those who follow him.

From Settle It Now Negotiation Blog

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Facilitative? Evaluative? The Struggle To Define The Practice Of Mediation

June 12th, 2009

Recently I (Diane J. Levin ) criticized a call by Stephen Erickson of the Association for Conflict Resolution to establish a certification system for mediators.  (Lively discussion ensued, and people have continued to weigh in, so please feel free to contribute.)

According to Erickson, facilitative mediation is “good” and evaluative mediation, by inference, is bad, since evaluative mediation undermines self-determination, a core principle of mediation practice.

I responded by insisting that we owe it to our profession to bring greater nuance to our debate about mediation practice and credentialing, and not privilege one style of practice over another, reducing the debate to little more than facilitative-good/evaluative-bad.

But my main point was that we mediators need to do a much better job educating the public about what we do and how we practice so that parties can make informed decisions about choosing the approach – facilitative, transformative, evaluative, narrative, understanding-based, or a hybrid of approaches  — that best fits their dispute.

However, just because we strive to be inclusive in discussing these issues does not mean that we check our critical faculties at the door.  Evaluative mediation certainly has its uses, but it does have its shortcomings, too, as Len Riskin and Nancy Welsh described recently in their article, “Is that All There is? The ‘Problem’ in Court-Oriented Mediation“, since that approach allows the preferences of lawyers and insurance adjusters to dominate and  narrows discussion to legal and economic interests, while disregarding a whole range of other concerns — emotional, interpersonal, behavioral, community — that are no less integral.

Similarly, in “Moving Mediation Back Toward its Historic Roots – Suggested Changes” (in PDF), Joseph P. McMahon, Jr., criticizes the law-centered, “low functioning” approach to mediation that increasingly the legal community has come to accept, characterized by separation of parties with no opportunity for direct dialogue, a focus on monetizing the dispute, while legal issues take precedence over the parties’ own narratives and personal experience as the mediator-expert directs the parties toward settlement. McMahon advocates revolution, overthrowing one model in favor of another.  McMahon proposes a solution that restores face-to-face dialogue to its rightful place and returns power to the parties by engaging them in designing a process and an outcome that will best serve their needs.

Unfortunately, public perception remains otherwise.  In the popular imagination, the all-powerful mediator shuttles back and forth between separate rooms, controlling the flow of information between parties, and withholding food and drink (and maybe even bathroom breaks) while cajoling or pressuring the parties into accepting a deal.  This became amply clear to me over the weekend when Boston Globe Magazine profiled a local mediator.  Here’s the picture of mediation the Globe painted for its readers:

Here’s how mediation works: In a civil dispute, going to trial is always risky. Verdicts can either force defendants to pay astronomical amounts or leave plaintiffs without a penny. And so people often decide they’d rather settle — if they can agree on a price. The parties then choose a mediator — both sides must agree on the person — and the process begins, behind closed doors, with both sides stating their cases and demands. Then the mediator separates the two sides into different rooms and begins shuttling back and forth between them. If mediation fails, the parties can agree on another mediator, or the case goes to trial….In mediations, lawyers need someone with a sharp legal mind who’s not afraid to nudge, push, and just plain tell people when they’re wrong…

It’s all there – the shuttle diplomacy behind closed doors, the focus on price, and a process conducted within the long shadow of the courthouse as lawyers wheel and deal. Go read it for yourself. Plainly this tough-headed, hard-working mediator has earned the title “closer”, brokering deals and producing settlements of the economic and legal issues (if not, perhaps, the less tangible ones). All well and good if that’s what lawyers and their clients truly want – after knowing all the options.  But how can we be sure that the public appreciates the difference, when even journalists – trained, professional observers – miss it?

And so I must also ask – can we really call this “mediation”?

Written by: Diane J. Levin From Mediation Channel

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Mediation is key to saving thousands

June 7th, 2009

Lord Justice Jackson says mediation is the key to curbing a potential explosion of construction litigation relating to the issue of costly legal fee. It has been dubbed the “cost of costs” – the extravagant amounts of cash being splashed on legal fees in recent UK court battles.

Some cases, such as the famed Wembley trial, end up really becoming a fight over principles rather than cash, with soaring costs nearing, or surpassing, the figures actually involved in the fight.

Now Lord Justice Jackson, the man who headed that very trial, has been charged with doing something about it.

In compiling a preliminary review of civil litigation costs, the former head of the Technology and Construction Court has called for reforms to curb the “explosion” of litigation about costs issues.

And the use of mediation to settle cases was a key feature in his overview of construction disputes.

He said a new study from the Centre of Construction Law and Dispute Resolution at King’s College, London, provided “a valuable insight” to how and when cases settle, and the significant part mediation can play in saving contractors big bucks.

The survey – of cases at the London, Birmingham and Bristol TCC’s between the summers of 2006 and 2008 – is the first ever to attempt to assess the effectiveness and cost savings associated with mediations in the construction industry.

It found 12 per cent of cases settled through mediation claimed to have saved between £200,000 and £300,000. A further 15 per cent said their savings came somewhere between £150,000 and £200,000 and 9 per cent said that figure climbed above £300,000.

Lord Justice Jackson said: “Mediation promotes earlier settlements and in a small number of cases (which may be regarded as on the cusp) actually precipitates settlements which would not otherwise be achieved.

“Mediation is a valuable and cost saving mechanism, when properly used.”

His other suggestions in reducing the costs of litigation – soon to become formal recommendations to the Master of the Rolls – include the introduction of fixed recoverable costs and also introducing cost sanctions on witness statements and pleadings.

“One of the banes of  TCC  litigation is duplication of documents,” he said.

Lord Justice Jackson was particularly scathing about the £1 million-plus photocopying bill and hundreds of bundles produced during that bitter Wembley battle.

Source:http://www.cnplus.co.uk/hot-topics/legal/mediation-is-key-to-saving-thousands/5202505.article

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13 Tools for Resolving Conflict in the Workplace, with Customers and in Life

May 18th, 2009

Recently I studied this article on a website which I think will be very helpful for mediators in resolving the conflicts at workplace:

“Conflict happens. It is inevitable. It is going to happen whenever you have people with different expectations. This makes conflict management critical, whether avoiding arguments, disputes, lasting conflict or ultimately, litigation. Conflict can be avoided if steps are taken early in a discussion to diffuse anger and facilitate communication, and it can be resolved by applying a series of thoughtfully applied steps.

As a full-time mediator and trainer in the fields of negotiation and conflict resolution, I see conflict in its final stages – full blown litigation or on the verge of it in pre-litigation mode. What I have learned in seeing these disputes for 10 years is that most of them could have been resolved in the earliest stages if the people involved applied some of the skills that mediators use to resolve conflict. And wouldn’t it be great if companies could resolve these disputes before each side spent hundreds of thousands in litigation costs, before the employee was terminated or before the customer or working relationship was gone forever?

Here are some tools for avoiding and resolving disputes in the early stages, before they become full-blown conflicts:

1. Stay Calm. Thomas Jefferson said, “Nothing gives one so much advantage over another as to remain always cool and unruffled under all circumstances.” The thing that leads to conflict is escalation. What starts people escalating is their anger. Most of us stop listening to understand as we get angry. Instead, we start listening in order to argue back. Remaining calm is essential for performing these tools. To remain calm, it helps to look at the big picture. If you think about it, most every dispute gets resolved eventually. So when conflict inevitably happens, it is helpful to stop and think that, chances are, it is going to be resolved eventually. As such, why not begin problem solving now?

Finally, it is a fact that in our busy lives with rush hour traffic, cell phones, PDAs, overfilled e-mail boxes, too many clients and not enough support, that we are all a little more stressed than we would like to be. When a conflict arises, one of the most beneficial things you can do is to ask yourself, “What might I be bringing to the dispute?” We can usually look at another person and figure that maybe he/she had a conflict at home or that he/she has been under tremendous pressure. However, we are not usually self-aware enough to ask ourselves what we might have going on. It is important in avoiding later embarrassment by checking in with our own personal boiling point before responding.

2. Listen to Understand. Now, picture a dispute in which you were recently involved. Maybe it was this morning leaving the house, with a co-worker or client or even with a family member. As you replay that experience, ask yourself how much listening was going on. My bet is that any listening was only being done to formulate an argument back to prove your point. When most of us get into a dispute, the first thing we do is stop listening.

The only way to settle a dispute or solve any kind of a problem is to listen carefully to what the other person is saying. Perhaps they will surprise you with reason, or their point is actually true. In the mediations that I do, I often learn what people’s underlying interests are by letting them go on and on telling their perspective of an issue until they give me the one thing that is standing in the way of them resolving it. They may start out by degrading the product and personalizing it by saying those of us who delivered it are all incompetent, but I find that this is little more than their anger speaking. What they really want is their product fixed, not to insult us personally.

Psychologists tell us that anger is a secondary emotion and that it is usually triggered as a defense mechanism to cover up hurt or fear. When someone is angry, there is usually some hurt or fear that he/she is embarrassed about, or perhaps even unaware of because the anger is so all consuming. In order to diffuse people’s anger, you must listen to them. Hear them out. Let them go until they have run out of gas. Let them vent as long as they can until they begin to calm down. You then will see a person start to slow down some, and begin to feel safe enough to finally tell you that what frustrated him or her so much was that the salesperson never returned any phone calls, and/or the customer service person kept trying to place blame elsewhere, rather than taking responsibility and apologizing for the product being unacceptable.

The best thing you can do to get people to the point where they are willing to show some vulnerability and trust you with some of the real reasons why they are upset is to engage in “Active Listening.” Active listening means giving them active physical and verbal signs that you are with them and understand what they are saying. Simple things like nodding and saying, “Uh huh” or “OK, go on” can make the speaker feel as if his/her story is welcomed by you and that you want to continue. On the phone, people hear dead silence and cannot read your reaction to their complaints and thoughts. Given that we all sometimes fear the worst, people tend to shut down and stop feeling it is safe to continue telling their story.

My friend and colleague Jim Melamed, a divorce mediator and trainer based in Eugene, Ore., said: “You cannot effectively move toward conflict resolution until each participant experiences him/herself to be fully heard with regard to their perspective – what they want and why.” That means, if someone says that the product he/she bought from you is unacceptable, and they are interrupted and asked what would be acceptable before they have finished telling all about the problem, that person gets the message that all you want to do is fix the problem. The impression is that you do not care about them or the problem you had with your product, and that can feel a little like being swept under the carpet. A good customer service person in a situation like this would let the client finish before asking if there were any other problems. This may seem counter-intuitive because it might bring on even more of the same, but this is what you want. People build trust as they are listened to. If they had another problem with the delivery timing or any other facet of the transaction, this is when you need to hear it – at the outset, not later once you feel as if you have met all of their original concerns. The only way to solve a problem is to get all of the broken pieces on the table at once before you begin trying to “glue it back together.”

The most useful phrases in this part of the process (what mediators call the “Opening Statement”) are questions such as, “Can I ask you – what about that bothered you so much?” or “What about that was so important to you?” These invite people to go deeper into the problem and tell you what the “real” problem is. Usually, this is where you hear that their boss is upset and they are afraid for their job or some underlying concern. This is a problem that might be handled with something as simple as a letter of apology, from you, the salesman or the president of your company, addressed to them with a copy to their boss, taking full responsibility and apologizing for the problem. Then, you will have a customer you might be able to keep.

3. Accentuate the Positive. It is important to find some commonalities, or create them, between you and the person on the other end. It is helpful and empathetic to say, “Oh boy, I know what you are going through. I’ve had a similar situation just recently. Let me see what I can do about this.” This serves to normalize the situation. It tells someone that he/she is not the only one who has gone through this and that his or her reaction to it is normal. That calms people right away.

4. State Your Case Tactfully. The key here is to help people understand your perspective on things without making them defensive. To the extent you can disarm them, they will be more able to hear what you are really saying. A couple of tips are to own what is yours – apologize for what you or your team did wrong and do it first. This enables them to hear what you have to say next. Also, try not to state issues of difference as fact. Leave a little benefit of the doubt. Rather than insisting something arrived on schedule, it is better to acknowledge any room for doubt by acknowledging, “My information shows them arriving on schedule. I’ll have to take a closer look into this.” While you may still be right, clearly you have to gather more information to convince them of that, and if you are not right, then you do not have to apologize for misstating things.

It also is helpful to state your position along with your interests. What that means is that instead of maintaining that there is nothing wrong with your product, which is purely argumentative and does not offer any support for your position, it is better to offer something helpful, such as providing another perspective by sending someone over to inspect the product in person. That way, the customer can show and describe exactly why the product is not working as necessary. Your position is the bottom line of what you are willing to do. Your interests are the reasons behind that decision. For example, it might be your position that you cannot take any product back or rescind the contract. However, your reason for that – your interest – may be that your bonus is tied directly to your returns, and that you have every incentive in the world to solve this problem another way. You may also offer what some of those things are, so that you are not just taking away something from them or denying their request, but offering positive alternatives in its place.

One way to do this is to use “I Messages.” An “I” message sounds like, “When you didn’t come home last night, your father and I got really worried. What we would like you to do next time is call if you’re going to be late, so that we know you’re OK because we love you and care about you.” That is how most of our parents were when we were teenagers, right? Seriously, can you imagine how we would have reacted if they had put it this way instead of the scenario we remember of being grounded for life while stomping off to bed? “I” messages are important because they describe the experience through the speaker’s eyes, rather than simply the position (in this case the punishment). That disarms the person you are speaking to, and it takes the fight out of their next statement back to you.

5. Attack the Problem, Not the Person. Your points will be heard more clearly if you can depersonalize your comments and point only at the issue. Rather than accusing people of “always messing things up,” it is better to say, “We’ll have to take a closer look at why this keeps happening.” In most statements that we make in a dispute, we are fighting with our own anger and are tempted to put a zinger into the point we are trying to get across. You will be heard better and improve your chances of resolving the issue the way you want if you can catch yourself and take the zinger out. Obviously, this is easier with e-mail and requires great concentration when in a face-to-face disagreement.

6. Avoid the Blame Game. Assigning blame is only helpful in one instance in problem solving – if you assign it to yourself. Generally speaking, figuring out whose fault something is does not do any good if the goal is to fix a problem. It is a diversion and sometimes a costly one because if a person feels blamed, he/she often checks out of a conversation. The trick to resolving clashes is to focus on problem solving, rather than pointing fingers. Focus on what you and the others can do to solve a problem and make it better, and it will be behind you before you know it.

7. Focus on the Future, Not the Past. In the past tense, we have the purchase order, the contract, the agreement and the deal as it was understood by all involved. The present and future tenses are where the solution ends. Rather than focusing on what went wrong or who should have done what, the secret to dispute resolution is to treat it like problem solving and focus on what can be done to resolve the problem. Once that is done, companies can look to the past tense to analyze what went wrong and how to improve quality control and efficiency. However, when there is a problem that has an angry customer or a disgruntled employee, the solution is all that anyone is interested in.

8. Ask the Right Kind of Questions. Questions such as “Why is that?” or “What did you think it would be?” make a person who you are talking to defensive. They inherently question the person’s judgment or opinion, as well as coming off as curt. More often that not, people ask these short, direct questions, the type that can sound like a police officer’s interrogation or a lawyer’s cross-examination. These questions are designed to get just what you want from someone, rather than to permit them to tell you what they want you to know about something.If you want someone to answer you with real information, rather than just arguing back, it is best to give them a little information first. For example, “Since I don’t have a copy of the P.O. in front of me, it would help me to investigate this if you could tell me more about how the colors on your order are described.” Telling them why you are asking, puts your intent first, so they don’t have to guess it. This questioning style tells a person that you are trying to do your job and to figure out some facts to get to reach a solution. By delivering your request in a poised and attentive tone, , it makes the person you are asking less defensive and gets you more of what you want.

The other type of question that is especially helpful when you are trying to gather information is an open-ended question. These are the opposite of directive questions, and they invite the other person to tell you what he or she thinks is important about the situation. “Can you tell me what happened from the beginning?” or “Sounds as if this was really frustrating for you” can give you information that you might later use to problem solve.

9. Pick Your Battles. It is also important when asking questions to remember to Pick Your Battles. Human nature makes us want to be right, even to the point of being defensive or arguing points that do not matter in the big picture. It is even fair game to ask the other person, “On a scale of one-to-10, how important is this issue to you?” If an issue is a five to you and a nine to the person you are talking to, it is best to give that point up and use the same scale when an item is really important to you. After all, business relations are, like my brother’s future father-in-law once told him about marriage, a “60-60 proposition.” Most people think it is supposed to be 50-50, but the truth is, when adjusted for each person’s perspective on how much they givevs. how much they receive, it really is a 60-60 proposition. Another marital proposition is also helpful here, do you want to be right, or do you want to be happy?

10. Link Offers. Car salesmen do this all the time. They ask you what you want your monthly payment to be and then set the price of the car and the interest rate on the loan or lease so that they can match your monthly payment. Essentially, it’s a way of saying, “I can either do this or that, which would be better for you?” It really is just sales skills – giving people the choice between two positives, so that they feel as if you are trying to help.

11. Be Creative. Brainstorm. Remember that everything is negotiable. Feel free to think outside of the box in order to expand the pie. Make it so that no idea is too far fetched. Being creative with resolutions takes longer, but can yield a true win-win solution. The best solution to a dispute is to get more business out of it. As such, one common problem-solving technique is to propose that instead of a cash refund, giving clients a deep discount on future orders in order to show what a good job you are capable of doing for them. Many of the lawsuits I settle come away with win-win solutions, where instead of just compromising, we actually collaborate to reach a solution that benefits everyone. This requires listening when asking the open-ended questions and gathering morsels of good information that you will later use to formulate proposals that meet their interests. For example, you might learn about particulars that affected an order. From here, you can propose creative solutions that replace things such as broken items, or instead of using the money to re-do the entire order, you can use less money to ship a few dozen shirts with their logo on them so that your counterpart can look like a hero in front of the boss. These kinds of fixes make clients look good and keep them loyal to you, even after an initial dispute.

12. Be Confident. You can do this! Many people are afraid of confrontation and shy away from it. I have taught everyone, from housewives and high school grads to named senior partners in law firms and CEOs, how to do these simple steps. The process works. All you have to do is follow the steps.

Furthermore, you must do this. Now that you have these tools, it is imperative that you do something about it. You owe it to your customers and your co-workers.

13. Celebrate Agreement! This kind of negotiation is a hard process. It requires two people to remain in an uncomfortable, potentially confrontational position for a long time to rebuild trust and be creative while trying to figure out the best, rather than the fastest, solution. Once it is accomplished, both you and the person you are talking to deserve a good pat on the back. There is nothing wrong with going to lunch or dinner to celebrate the resolution of a dispute that could have been destructive, but that ended with a win-win solution where everyone was satisfied. This is an important process for avoiding more serious disputes such as lawsuits and losing hard-earned customers. Congratulate yourself and your partner in this solution.

After all, nothing is more important than your company and its survival. Nothing is better for your company’s survival than learning to make peace and resolve the inevitable disputes that will arise. Learn to cultivate peace with customers, suppliers, employees, labor and management.

Utilizing these tools takes patience and generally requires changing old behaviors. However, if people on the front lines, in human resources, customer service and client relations, use simple tools such as these, they would resolve most disputes at that level, keeping them out of the legal department and out of the mediator’s office.”

Published in Brilliant Results Magazine
By Lee Jay Berman Source    http://www.americaninstituteofmediation.com/pg69.cfm

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The Neuropsychology of Forgiveness

May 18th, 2009

I ran into a former student the other day. She said, “You heard that Tom abandoned me in the practice, didn’t you?”

“No,” I replied. “I hadn’t heard a word. What happened?”

“He just decided to leave. I am so mad at him I could kill him. I’ll never forgive him!”

Clearly, my student was not in a forgiving mood, which is a common condition when people are in conflict. The conversation got me thinking about forgiveness in the context of neuropsychology.

The perception of injury to our self, which is injustice, has several parts:

(1) a sense of self;

(2) an ability to evaluate the behavior of others as being injurious or beneficial; and

(3) memory of the event to link that injury to the offending person.

Our sense of self originates in the abstractive cognitive operator located in the inferior parietal lobule of the brain. The inferior parietal lobule is richly connected to the limbic system. The limbic system is the part of the brain primarily involved in creating, expressing, and controlling emotion.

We tend to perceive ourselves in a grander manner than we perceive others because, out of self-protection, we must perceive, analyze, and evaluate all experiences regarding self. Thus, we are highly sensitive to others’ perceptions and our own perceptions about our self. From an evolutionary perspective, without this sensitivity, we would be less interested in protecting our self and thus not as likely to survive in difficult, challenging environments.

The second part of injustice is the notion of conspecific congruence. Basically, we expect to be treated fairly and equally by those who we perceive as our equals (our conspecifics). Along with hierarchical ordering, conspecific congruence is one of the more powerful psychosocial forces creating the structure, relationships, and roles within social groups. Hierarchical ordering is vertical, while conspecific congruence is horizontal. Both always seem to be present to some degree in all stable human social groups.

Conspecific congruence probably developed out of the structures in the brain that underlie the ability to form classes of groups with perceived similarities. This would be a combination of the reductionistic, quantifying, and binary cognitive operators.

Conspecific congruence is asserted when all members behave to maintain social balance within a group. In other words, we are always monitoring the group environment to be sure we are being treated and are treating others fairly and respectfully. We also utilize conspecific congruence to evaluate the behaviors of others. A positive change in conspecific congruence occurs with kindness or a favor, with the consequent obligation to return it to balance the incongruence. A negative change in congruence is perceived as an attack on self. A desire for revenge is generated to restore the congruence.

Revenge is related to self-preservation. It requires a sense of self and the internal drive to equalize incongruence between others. Thus, when a person is hurt, he or she experiences a strong impulse to return the hurt and bring the incongruence into balance. Revenge behavior also requires long-term memory. One has to be able to hold an offense in memory to carry out a future action to balance the incongruence.

The revenge-complex is based on a number of brain structures related to each other in complex neural networks. For example, the evolution of long-term memory arose from the development of the hippocampal-amygdalar memory system. Revenge behavior is poorly controlled by the brain because it originates in ancient subcortical structures not controlled by rational thinking. Thus, revenge can easily lapse into an excessive mutual retaliation owing to an excessive evaluation of self, with the consequent miscalculation of what is needed to restore equilibrium.

Serious and intractable conflicts arise when, out of an exalted sense of self injury, the victim seeks excessive revenge. The offender, whose exalted sense of self feels attacked, retaliates with even more zeal. Such a neuropsychological system, if unchecked, could lead to social chaos. Forgiveness therefore evolved as a means of checking uncontrolled escalation by eliminating bellicosity in one’s opponent. In addition, forgiveness has the unique effect of generating warm feelings for the victim from observers not involved in the conflict. This can have remarkably profound social consequences. To the extent that observers sincerely support the victim’s forgiveness, attachment mechanisms in the victim’s brain are activated to reduce the desire for revenge.

In peacemaking, finding appropriate justice can be challenging. However, more often than not, when given the opportunity, people demonstrate an amazing capacity for compassion and forgiveness. In these moments, the beauty of the human spirit is revealed to all.


by Douglas Noll Source www.mediate.com

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Who says you’re a mediator

May 16th, 2009

“The first part of the workshop on mediator accreditation at 7th National Mediation Conference, Darwin 2 July 2004 involved a facilitated discussion on the question of

‘who says you’re a mediator?’ Matters to arise out of the discussion included:

· There are many accrediting authorities and panels;

· The parties say who is a mediator, as the mediator keeps getting work;

· A training course does not make a person a mediator;

· It is hard to say at what point one ‘becomes a mediator’, but it is possibly after

· hundreds of hours of experience;

· Sometimes practitioners feel like ‘mediators’, other times not; and yet people

continue to see themselves as lawyers, psychologists, etc;

· A good mediator may well be ‘invisible’ as the parties own the outcome.

What are you doing when you mediate?

Client outcomes

· Assist clients achieve their stated aims;

· Assist people to work together with respect;

· In practice, try and help people find their own answers and keep them out of court,

if possible;

· Help people communicate better;

· Make a happy and healthy person;

· Help people talk and, more importantly, listen

· Assisting couples to [reach] agreement around family issues;

· Clients achieve outcomes they can live with and feel they own and can implement.

Orientation to the parties

· Support;

· Stay non-judgemental;

· Be humble and keep a sense of humour;

· Meet the clients where they are at;

· Be reflective and responsive to clients’ needs;

· Be respectful;

· Help people;

· Remain impartial;

· We hang in there;

· Enjoy talking to people, enjoyment of rich tapestry.

How do you know you have done it well?

Feedback from clients – informal/immediate

· Direct and indirect client feedback at stages of the mediation;

· When the clients tell me I’ve done it well;

· [or say] ‘it was so calming’;

· Strong, positive client feedback;

· Post-mediation party said, ‘Boy, you’re good’;

· A kiss on the cheek;

· A bag of avocados;

· Thank you from client.

Feedback from clients– formal/follow up

· Client satisfaction;

· Parties feel positive, three months on;

· Feedback evaluation sheets;

· Client feedback forms;

· Testimonials;

· Client surveys (including online);

· Ask/elicit clients for feedback [and] use feedback received for training and

· improving processes;

Abstracts from “Who says you’re a mediator? Report on NADRAC workshop on mediator accreditation at 7th National Mediation Conference, Darwin 2 July 2004”

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Need for Strength Alternate Dispute Resolution in India

February 19th, 2009

Concept of mediation and Arbitration courts for access to justice is becoming a common way even in developing countries. Recently India has set  around 3,000 courts which will start functioning a month, to take the justice system to the door steps of people in remote villages across the country. This will strengthen the justice system of India as well as a revolutionary step for justice to poor people who are unable to pay higher fees of solicitors / lawyers and courts.

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Is murder lawful if it is forgiven..?

February 10th, 2009

The other day I was watching a Pakistani TV channel where I heard in news that a senior solicitor / advocate has argued in Supreme Court in Nawaz Shareef case that If “forgiven is awarded against any act in any case then that act does not remain unlawful”. In other words that act become lawful.
I am not a solicitor but simply will say if there is murder case and punishment is awarded and then on settlement by parties, forgiven is settled then it does not mean murder is lawful. It is unlawful and will remain unlawful and cruel action in each society and country.
Was that senior solicitor wrong or right, can you comment on his arguments.

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The Wall Street Journal has an article on mediation

February 8th, 2009

The Wall Street Journal has a piece on mediation. “Trading Dispute? Try Mediation.”

Interesting analyis highlighting that in this case mediation is much quicker than arbitration.

“An investor with a gripe against her broker may, typically with the help of a lawyer, file an arbitration claim against the broker and/or the firm. But at any point in arbitration, either party can suggest mediation without interrupting the arbitration process.

If the parties agree to try it, they choose a mediator — either someone from a Finra-provided list or another mediator they both trust. Selecting a date for a mediation session tends to go much faster than in arbitration, where the parties, three hearing panelists and expert witnesses all must find an acceptable date.

Indeed, mediation is much faster overall: So far this year, it took an average of almost 14 months for an arbitration claim to make its way through the system, Finra reports. Finra mediation cases during that period closed in an average of just over four months.”

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Do barristers help or hinder the mediation process?

February 8th, 2009

An interesting piece in this week’s Law Society Gazette:

“Only six out of the 21 FTSE-100 companies surveyed said their in-house lawyers had attended mediations as lead advocates without external lawyers, and even then on ‘larger, more complex disputes’ they would usually attend with external lawyers. Mediation was overwhelmingly reported as the ADR method of choice by respondents.

Barristers did not get such a positive response. A ‘significant number’ of respondents said having barristers present at the mediation ‘was more likely to lead to confrontational opening sessions and further polarisation of positions’.

But it is those law firms that have a proactive approach to ADR that get higher marks for client satisfaction with the process, according to the report. Many companies waited for their law firms to tell them whether they should turn to ADR or not, but judged their satisfaction on whether it had been suggested.”

It is the discussion about barristers which has my attention.

It is always dangerous to generalise but whilst I have seen some barristers conduct themselves excellently as mediation advocates, too many in my view are over aggressive and frankly hostile to the mediation process.

They are too confrontational, too in your face, too willing to slam the other side, too prone to scupper the mediation and let it fall apart.

It is not necessarily what their solicitors and certainly their parties should want. Wake up!

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