Mediation, meditation—Let’s pause for more peaceful outcomes

John Sturrock, a prominent commercial mediator in Scotland—described in a Chambers Guide to the UK Legal Profession as “the foremost mediator in Scotland” - is quoted as saying: “We have laughed for years at jokes confusing mediation with meditation. But here’s the point. What mediation offers is a process in which parties who would (or have) otherwise reacted adversely to each other - and who have tended angrily to confront each other, or who fear passive capitulation or who avoid addressing issues altogether - are helped to engage, within a structure.”1 Sturrock identifies this structure as a “type of pause”—a moment very much like in meditation when people are able to stop, breathe a little, and work within a structured format to find resolution.

As we set about our work as conflict resolvers (be that in the role of attorney, mediator, Collaborative Law Professional) it is important to keep the “power of the pause” in mind and find ways to have our clients use that power in negotiations, whether those negotiations are with assistance of a mediator/neutral facilitator or not. Far too often in the litigation process (be it pre-trial conferences, depositions, hearings) there is little room left for “the pause.” When a lull in conversation comes in that venue it is typically instantly filled in by an opponent without acknowledging what the other person has just said. Even sometimes in court hearings the lawyers and judges are talking over one another and not pausing sufficiently to allow for adequate listening or reflection back so that deeper understandings might flourish.

In mediation there is an old saying which goes: “the mediator controls the process, not the outcome.” “Controlling” might be too strong a word though, as it denotes a process which is not voluntary. Even when mediation is mandated, as in child custody matters by the Illinois Supreme Court Rules, mediation is always voluntary. In mediation it is up to the parties, not the mediator, whether they emerge from the mediation process with an agreement or not. Unlike judging in the context of litigation, mediating allows the professional to let go of the solution and allows the parties to do their work without relying on a third party adjudicator to tell them what the resolution is or ought to be. Controlling the process allows the mediator to help the parties to take a pause, take the time to reflect back on what they are hearing, and to add clarification if what someone is reflecting back is imprecise, inadequate or incorrect. A good mediator therefore becomes the protector of “the pause” and is not intimidated by silence or filled with a need to end the silence instantly.

Learning how to meditate can help legal professionals (mediators, attorneys, judges) become more comfortable with silence (“the pause”) and not have to continually race against each other to be the first and last to speak. In meditation it is said we are working to quiet the “monkey mind” and focus on that one thing that connects all sentient beings—breathing. Purposeful breathing can slow the mind down which allows for better hearing and listening. If we are hearing better that most often leads to a more respectful interchange of information. That then leads to a giving up of “the need to being right all the time” (as thought lead and meditation advocate, Dr. Wayne Dyer would say). Giving up the need to be right can lead to better problem solving and more sustainable outcomes and resolutions of legal disputes in the long run.

Applying the practices of meditation with the problem solving in mediation, we then ask “how is that done”. There is a type of meditation known as “loving kindness meditation.” Dr. Barbara Fredrickson, the Kenan Distinguished Professor of Psychology and Award-winning Director of the PEP (Positive Emotions and Psychophysiology) Lab at the University of North Caroline offers a free guided “loving kindness meditation” sessions on her site Positivity Resonance: Love.2, <http://positivityresonance.com>. Doing one of Dr. Fredrickson’s guided sessions at the beginning of the day or before going into a negotiation, mediation or a court hearing can lead to a greater feeling of centeredness and focus. When centered and grounded, we are less in the reptilian/fight or flight” part of the brain and more in the part of the brain which allows higher order thinking. Thus mediation has not only a benefit of the person who mediates, it also has a benefit for all those who come into contact with that person. If that person is a mediator or any professional who helps move people out of conflict and into resolution, the benefits are three-fold. Anyone interested in exploring further the topics of mediation and/or meditation should feel free to contact the author at (312) 726-8766, who will be hosting Monday evening group meditation session starting in February 2015 at the offices of Sandra Crawford, The Chicago Temple Building, 77 West Washington, Chicago, IL. ■

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1. From http://www.mediation.com/. Sandra Crawford has been a mediator since 1994, a Fellow in the Collaborative Law Institute of Illinois since 2002. She mediates and meditates regularly at the offices at The Temple Building, 77 West Washington, Suite 1018, Chicago, IL, 60602.