The third animal of the Chinese zodiac is the Tiger. Tigers are regarded as having strength of character which helps them to handle adversity.
It is not difficult to see why being like a Tiger could assist parties in conflict. Parties can readily identify the costs in time and money which are consumed by being in conflict. However, parties rarely identify the other costs of the conflict: emotional and psychological burden; inability to focus on their business; negative impact on health; negative impact on family; etc.
Parties need to find ways to help them cope with being in conflict. I have seen parties use many means of handling the stress:
All of these are ways to help handle adversity and can provide parties with the boost they need to be able to manage their dispute. At the end of the day, whatever helps a party to stay focused and clear-headed is beneficial. The ability to handle adversity sometimes means knowing when to ask for help and being brave enough to ask.
The fourth animal of the Chinese zodiac is the Rabbit. The Rabbit is viewed as patient and not easily discouraged.
Both of these are excellent qualities for a person in conflict, however, I would like to focus on patience. I can think back to many discussions with parties where they felt extreme frustration at the pace of mediation. In particular, the frustration is often directed at the other party.
One challenge faced by mediators is matching the time perspectives of each party in the mediation. In family mediation, separation leads to a grieving process as a person processes the end of the relationship, the loss of identity, the evaporation of a planned future, and the inevitable disruption of the pattern of life. For some parties this grieving process may be abbreviated and may start during the relationship. This can mean that by the time they arrive at mediation, they have grieved for the losses and are ready to move on with their new life. For the other party, they may have only begun their grieving process. This leads to a mismatch in their time perception.
For the party who has finished their grieving process, the mediation may feel slow and ponderous. For the party who is still engaged in the grieving process, the mediation may feel hasty and rushed. As a mediator, I need to work with both parties and ensure a process that is respectful yet has forward momentum. If this seems to be the dynamic at work then I often explain this to the parties to help them understand what they may be experiencing. Often this conversation helps both parties to understand a little more about themselves and the other party. A little understanding can lead to increased patience with the process and with the other party. Injecting patience into a mediation, is a little like adding more oxygen to the room.
The second animal of the Chinese zodiac is the Ox. In the Chinese zodiac, the Ox is known as hard-working. Hard work can be a hard sell.
One aspect of mediation which is obvious but rarely considered is how much work it is for the parties. Modern mediation is based on a philosophy of party empowerment. Parties cannot be empowered if third parties are making decisions for them or coming up with all the answers. It would be lovely if everyone could come to mediation and be highly negotiable, primed in interest-based bargaining and seek win-win outcomes. However, I have yet to experience that mediation session.
In reality, parties often need to prepare information and seek data, and put together their mediation homework. Homework is just the beginning. Parties may have to seek further information or specific legal advice in order to inform discussions. This work is critically important as parties need information/data to make informed decisions.
During mediation, parties often need to work hard to create options and to consider proposals. I have been in mediations where both parties turn to me and say “what should we do?”. People can feel stuck and exhausted. As a mediator, I can help by calling a break, moving to another issue or reframing the question. I cannot make the necessity for hard work go away.
In intakes (pre-mediation sessions) I often warn people that mediation will be hard work and that they will need to dig deep. The reward for that hard work is a resolution to the dispute, moving on with life and not remaining mired in conflict. On that basis, I think the hard work is a good investment.
In the Chinese zodiac, each animal has been blessed with specific strengths and skills. What does each animal have to teach about how to manage conflict? This week the Rat. Rats are quick-witted and curious.
The first casualty in war may be the truth, but in conflict, one of the first casualties is curiosity. This may occur long before raised voices or awkward silences. At some point we cease being curious about why the other person says or does something. We begin to feel that we “know” the motivations and intentions driving other people's behaviour. Suddenly, the meaning and intention behind another person’s word, tone, or look is revealed to us. We cease to be curious about what the other person’s intentions or beliefs may be, as we feel that we already know.
I remember being in a commercial mediation where the business partners had started working together in a positive and productive manner. A few years in, one of the partners moved away from Hong Kong and communication which had been in-person became limited to emails. As a result of time-zones and distance, communication became increasingly difficult.
Over time, each partner began to interpret emails in a negative manner and miscommunication became the norm. By the time I met the partners, each person told me that the behaviour of the 'other' was deeply suspicious and was prompted by bad intentions. Rather than be curious about what interests might underlie behaviour, each party “knew” exactly what was going on in the other person’s mind.
During the mediation, each partner was able to describe from their perspective what had prompted some of the more controversial emails. It became increasingly clear to each partner that they had made incorrect assumptions about the motivations and intentions of the other person. As they were able to communicate directly with each other during the mediation, they began to become more curious. They started to ask questions rather than make assumptions. They became curious.
The business relationship was over; however, they were able to work together to end their relationship amicably and discreetly. By re-igniting their curiosity each party was able to put to one side their pre-conceived judgments and be curious. Their curiosity allowed the parties to ask questions, learn new information and work collaboratively to resolve their issues.
2018 has been a fascinating year. I would like to thank everyone I have worked with for their humour, patience and wisdom.
I am looking forward to continuing to learn more in 2019 and seeing more people embrace their own abilities to solve problems and resolve conflict.
Wishing everyone a warm, happy, 'puppy of a year' ahead.
With thanks to Ginger for the rein-dog modelling.
In life we can be faced with what seems like an impossible task, however, our brains reveal that we do such impossible things as a matter of course. When in conflict, people can feel that working with “the other side” in future is an impossibility. “How can I forget ‘X’?” However, we have evolved to hold two contradictory ideas in our head at the same time.
When we see an optical illusion our visual processing behaves as it is designed to and believes the trick (the Müller-Lyer Illusion). Our eyes tell us that the parallel lines are of different lengths.
When the basis of the illusion is explained to us, our conscious, rational mind can comprehend the underlying reason for our eyes being deceived. We interpret the visual information on the basis of our previous experience. With the rational understanding that the lines are of equal length we can look again at the illusion.
However, when we return to the illusion, we experience the dissonance of experiencing the illusion again and at the same time we know that we are being tricked. We are able to hold the contradiction between the illusion and the reality in our mind simultaneously.
In the same way, parties locked in a dispute may struggle with their ability to:
The truth is our brains are equipped to hold such contradictory ideas in place at the same time. Doing so enables us to move forward with people even when we feel this should be impossible. Whether this requires us to try and co-parent or run a business together, the challenge is real, however, the feeling of impossibility is an illusion.
The International Survey of Family Law 2018 is about to launch. I was honoured to contribute the Hong Kong chapter. The Hong Kong chapter looks at challenges for families and practitioners arising from the lack of innovation in our legislation. This has necessitated invention by judges, lawyers and mediators.
The Survey is the annual review of the International Society of Family Law. This year's survey contains chapters covering topical issues ranging from legislation to customary law to reproductive technology.
Copies are available for purchase from Intersentia.
I am delighted to have been appointed as a member to the newly launched HKIAC's Panel of Arbitrators for Financial Services Disputes. The creation of the Panel is a clear indicator of the importance of financial services in Hong Kong and the increasing use of ADR to resolve financial services disputes.
With increased attention on ADR mechanisms following the GFC, financial firms who are unable to resolve disputes through negotiation have been able to consider other options, including PRIME Finance or for consumer disputes the FDRC in Hong Kong. Consideration of ADR for derivatives has been greatly assisted by ISDA's 2013 Arbitration Guide which highlighted the particular benefits of arbitration for financial services disputes which are often cross-border and can be assisted by subject matter expertise.