As a mediator, I am always looking for how to find common ground between the parties that come to see me. Unfortunately, when someone comes to see me as a mediator, it is because they cannot agree or the matter has sufficiently escalated that they “cannot see the forest but for the trees.” Often, the very litigation they have initated has created a line in the sand for their positions, which makes it very difficult for them to adjust their position thus leaving them at a crossroads. How do parties mediate their dispute after they have engaged in a toxicity of exchanges in their pleadings and through their attorneys? How do parties move forrward when they are locked in certain mindsets of fault, expectations of others, and blame?
Unfortunately, the legal systm and attorneys have not contributed positively to finding the common ground between parties. The adversarial system places parties at odds with each other, often bringing out the worst rather than the best in people. The commencement of an action through the filing of a complaint perpetuates allegations and statements that make reconciliation and forgiveness and resolutions difficult.
More and more courts are looking to mediation as a way of helping parties resolve their disputes because they understand that when parties can reach their own resolution, the number of recidivist cases declines and the parties are more willing to explore different possibilities for outcomes.
Mediation is about seeing with new eyes and shifting the focus and telling a new story. When we see a situation with new eyes, we move beyond the current situation to another realm of possibility. We move beyond the blame, the fault, the expectation of others to new possibilities of what the present situation would be if I look at it in a different way? What would it be like if I leave behind all the old stuff I have been carrying: the anger, the guilt, the hurt, and reach a place where we move out of crises to a place of peace with sustainable solutions?
I often ask people what they want out of mediation and the responses are generally the same: “I want to tell them how much they hurt me.” “I want them to apologize.” “I want them to hear me.” “I want to be done with this and move on.” “I want to feel good.” These responses, while valid and important, do not always make it easy to achieve a resolution in mediation. It is important to apply these thoughts to the other party. They may feel hurt too. They may want you to apoogize. They may want to be heard by you. They may want to be done with this too and move on. They may want to feel good too.
How we listen to each other and how we shift our focus is key towards finding the common ground between us. Common ground is about looking at a situation with new eyes from a different perspective. This is not easy, as the people closest to us can be our greatest triggers. Yet, common ground is not about finding an absolute agreement. Common ground is about finding “what can I live with?”
An example of this is a divorcing couple seeing their divorce through the eyes of their children. The arguments, the fights, and the words exchanged look quite different when viewed from the perspective of children of divorce. Also looking to the future may be helpful: today’s fights and arguments may feel different to the parties five years later when they are in a different emotional state and have had time to reflect on their positions and their perspectives. Is that frying pan really worth fighting over?
As mediators, we encourage parties to work toward what can unite them rather than what is tearing them apart. We remind people what brought them together, what they were passionate about, and where they want to be. We ask people to listen and acknowledge each other, and, above all, not to take it “personally.” When we don’t take it personally, the negativity doesn’t resonate as deeply in our system. This does not mean that you have to endure a difficult situation or allow yourself to be placed in harm’s way. What it means is not engaging in the constant fight for control, dominance, and combative stances. If you keep fighting for something with closed fists and resisting, it will be hard to receive and be open to new possibilties.
Mediation can take many different forms. Not all mediation is facilitative or transformative. Some mediators practice peacekeeping practices through peacekeeping circles and others practice the healing practice of Ho’oponopono. Ho’oponopono is a Hawaiian ritual of healing whereby the pratice of compassion foregiveness, and gratitude are utilized. Not every kind of mediation is for everyone, and you need to explore the different kinds of mediation out there to determine which may work the best for you.
Picking a mediator that understands the complexity and diversity of people is quite important since the mediator must understand the people’s situations, their cultural backgrounds, and legal implications of their situations thoroughly in order to guide them to a successful outcome. A conflict between people does not always have to be an overwhelming and litigous struggle, and the right mediator will help to de-escalate their struggle and gudie the parties towardds common ground that will enable them to move forward.