Accepting the need to draw a line in the sand and move forward is a key component of mediation. Arthur Ashe, a great athlete and activist shared these thoughts.
Start where you are. Use what you have. Do what you can.
The last animal of the Chinese zodiac is the Pig. The Pig is regarded as being able to remain calm even when facing trouble.
With apologies to Rudyard Kipling:
If you can keep calm when everyone around you
Is stomping the ground and shouting at you,
If you can remain focused on interests and know which is true,
But understand that others may have interests too;
If you can listen and not shut down your understanding,
Or being challenged, not react with rage,
Or being accused, not give way to accusing,
And yet not forget to act your age:
Yours is resolution and the end of conflict,
And – which is more – you’ll be at peace.
And now for my favourite animal in real life and in the Chinese zodiac, the Dog. I have written previously about what dogs can teach us about conflict. Every day, my dogs teach me more life lessons, many of which involve the importance of access to treats and how to bark at wild boars.
In the Chinese zodiac, Dogs are well known for their loyalty. It is a defining feature. Loyalty may seem to be an unusual quality to look for in conflict, however, it has a role to play. In family mediation, trust and loyalty are gone. However, they still have a place if there are children. If there are children, then the former partners will continue to be co-parents.
This continuing co-parenting relationship demands connection at a time when many people wish the other person would disappear. As a family mediator in Hong Kong, I have an ethical duty to assist parents to focus on their children’s best interests. Research would tell us that ongoing conflict has the most negative impact on children.
As parties are dissolving their adult relationship, it is difficult to remember that the other person remains a co-parent and should remain a team-mate. Whilst your former partner may no longer deserve your loyalty as a partner, they may need to receive your loyalty as a co-parent, for the benefit of your children. I remember listening in a child inclusive mediation as a child consultant brought messages from their children. The children had specifically requested that their parents could be “a team”. Even though the children understood that their parents were separating, they still wanted to be parented by both of their parents. The children wanted to know that they had a team of adults looking after their needs and caring for them. Team-mates have loyalty for one another because they have a higher goal that they are seeking to achieve. Team-mates have loyalty for one another because they are focused on something other than their own feelings. Loyalty can have a place in conflict.
In the Chinese zodiac the Rooster is known for being confident.
In mediation, I often see parties who struggle with their confidence to find their voice. Being confident that you have a right to be heard and that you have the ability to represent yourself is important. One of the criticisms of modern mediation is that the process is based on being able to speak up for yourself. The criticism is that this is not easy or possible for everyone.
I can acknowledge the truth of this and think of parties who did struggle to speak confidently. However, I also think about how each of those people through the mediation process, grew in confidence.
Mediation is a very structured process. The mediator is there to enforce ground rules which require respectful communication. The mediation process itself is based on the idea that each party should have the opportunity to express themselves. This may be the first time that some parties have had this opportunity. In my experience, people do gain in confidence.
Confidence is an important strength in mediation.
Just returned to HK from the National Mediation Conference in Canberra. My first trip to the capital city was fabulous. The NMC was a wonderful opportunity to listen and share with other mediators about their professional work and also their experiences in the trenches. Many new ideas for me to consider how I can incorporate into my practice and many shared conversations about mediation work. Great to see old friends and meet new ones. I was able to present two papers on the impact of time perception on negotiation and also UNCITRAL's Singapore Convention.
Thank you Canberra for providing a superb backdrop to the NMC. Although I enjoyed everything about my Canberra experience I was unprepared for how moved I was by the Old Parliament building which now houses the Museum of Australian Democracy. From the rose gardens created for members to socialise in to the displays about the 1967 referendum I found being there profoundly moving. It also reinforced for me how important it is to stay focused and keep hopeful.
The Monkeys of the Chinese zodiac are known for being fast learners.
One of the goals in mediation is for the parties to learn more about how to manage their own conflicts in the future. Mediation is a proven process for resolving conflict. The lessons of mediation include:
It is possible for anyone in conflict to learn any of these lessons and to apply them in their current dispute and beyond. Being a fast learner can help anyone to manage and resolve conflicts more effectively.
The Goat is the creative animal in the Chinese zodiac.
Creativity can suffer in conflict. In order to be creative, we need to be vulnerable. When we are in conflict, we already feel vulnerable at least on some level. The thought of exposing ourselves even more to our adversary can prevent people from exploring creative options.
Conflict can lead people to feel that the world has narrowed and that there are only two options – my option or their option. In reality these options exist on a spectrum and there are many shades of grey between our preferred solution and the other person’s preferred solution. Exploring the spectrum requires creativity.
Mediation can provide the safe space for people to be creative and explore some of the options along the spectrum. In mediation, when parties are trying to come up with options there is no judgment and no commitment. Evaluation comes later in the process. As everyone has experienced, if you are trying to be creative and come up with ideas, the one thing that is sure to stop the flow of ideas is judgment.
If you are in conflict, then try and be like the creative Goat. There is more than one way to make a cake. Or end a post.
The next animal in the Chinese zodiac is the Horse. According to the Chinese zodiac, one of the strengths of the Horse is their sense of humour.
It can be hard to experience humour in conflict. Without doubt, many times in the mediation session, people are angry, frustrated, upset and perhaps even shocked about their dispute.
Humour is a powerful tool for communication. If, and it is a big “if”, people share a moment of levity then it can create a strong sense of connection. Even if this is momentary it can provide a reset for a negotiation which has become fraught and stuck.
Usually I do not get to see the humour of parties in mediation, however, I remember sitting in a mediation where both parties were exhausted. One party made a suggestion, which was intended to be funny and which luckily the other party responded to in kind. There was a moment of laughter. We went back to the agenda item, but both had renewed energy and I detected a little shift in each of their positions to be more collaborative. At the end they were able to reach settlement.
The lesson is that humour can be a powerful tool, and like all tools, it must be used at the right time. The right tool at the wrong time is the wrong tool.
The next animal in the Chinese zodiac is the Snake. The Snake is known for being goal focused.
In negotiation or mediation, it is easy to understand people’s positions. Positions are tangible, quantifiable and usually preceded by “I want…”. It is usually very easy for people to identify their positions. In 1981, Fisher and Ury wrote their seminal negotiation book, Getting to Yes, which set out to reveal a new way of negotiating. They urged people to understand their interests and those of the other side. Interests are the needs, fears and concerns which drive our positions.
I remember sitting in mediation where a party, Bill repeated his position and became increasingly voluble as he noted that this was a deal breaker. “I want X, or I’m walking”. The other party, Ben was confused as the asset, “X” represented a significant monthly cost and would present an ongoing burden to Bill. No matter how many times Ben tried to explain that this was a bad deal for Bill, Bill reiterated this was the deal breaker.
For Bill, the asset “X” was identified as a must-have and Bill’s sole focus became achieving this position. As this was a mediation and not a negotiation, we were able to have a discussion to try and understand the interests underlying Bill's position. As Bill spoke it became clear that “X” represented security, continuity and legacy for Bill. All of these interests could be met in other ways which were less burdensome to Bill. By using the mediation process, Bill began to focus on his interests rather than his position.
The lesson in this is to stay focused on your goals and not your positions. The first step in negotiation or mediation is to understand what your interests are. What is it you really need? What needs, fears and concerns need to be addressed? If you have capacity you can take the next step and think about what the other person's interests are. Without the initial reflective step of considering your interests, a party can become wed to a ‘deal-breaker’ position that doesn’t actually meet their needs.
The fifth animal of the Chinese zodiac is the Dragon. As well as fiery breath (at least in Western tradition), Dragons are known for their courage and willingness to take risks.
There is often a point in negotiations where a party needs to take a leap of faith. I don’t mean irresponsible risks, but for a party who has prepared their data, sought legal advice and reflected on their own contribution to the dispute, these are calculated risks. A party may need to have belief:
It is not easy to believe in any of these aspects, and yet every mediation, I see parties being willing to take this risk. Taking risks is not easy and yet in conflict parties often need to take this leap of faith in order to change the dynamics and reach resolution.