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February 2020
By: Adam Myron

 

I am going to ask you to do something counterintuitive: when you get to the end of this paragraph, stop reading and close your eyes.  Slowly take three deep breaths, inhaling fully and exhaling fully.  Then resume a normal breathing pattern and with each breath, count upward until you reach the number 10.  If you start thinking of work, or what you’re going to have for lunch, or something else, that’s fine; notice the thought for what it is, but try to return your focus to your breath and resume counting.  Once you have completed this exercise, return to this article.  Are you ready?  Get set.  Go.

Now take a moment to explore how you feel after engaging in that exercise (which is just one of many ways to engage in mindfulness meditation).  Studies show that regular practice can help reduce stress, regulate emotions, and increase awareness and self-control, and I suspect that you feel calmer and more focused than you felt a few moments ago.  I am convinced that the physical, psychological, and emotional benefits of mindfulness meditation can lead to better outcomes at mediation.

In mediation, there are typically four kinds of participants: parties to a dispute, legal advocates, insurance claim representatives, and mediators.  As human beings, they bring to mediation their own perspectives, biases, and emotions.  For the parties on each side, passion frequently runs high, compassion frequently runs low, and judgment is easily clouded by ego, perceived past slights, and the general stress associated with being in an adversarial proceeding.  Enter the mediator, whose job it is to impartially facilitate the conflict resolution process.

Under such circumstances, how can everyone increase the likelihood of finding common ground?  By trying to remove the impediments to clear thinking: ego, indignity, and stress.  And what is the easiest way to achieve that end?  By seeking the benefits of mindfulness: increased awareness and self-control, regulated emotions, and reduced stress.

To those who are unfamiliar with mindfulness, this may seem hard to believe.  But to regular practitioners, the correlation between mindful meditation and mindful mediation should be obvious because the primary effects of mindfulness – reflective thinking, controlled emotion, the engagement of higher thought processes, and consideration of outside perspectives – are essential to rational negotiation.

Indeed, few things are better for settling differences than understanding other people’s thoughts, feelings, and perspectives.  It has been suggested that a successful mediation occurs when each side walks away equally unhappy.  I do not subscribe to that theory.  Instead, I believe that mediation participants can take positive steps to repair broken relationships and find common ground.  I also believe that through mindful mediation, where the participants are calm and controlled and use common sense, subtle shifts in perspective can transform zero-sum game negotiations into opportunities for mutual gain.

As an illustration, imagine that two children are arguing over an orange.  The first child claims she should have the orange because she was the one who found it.  The second child argues that the orange should be his – after all, it was his idea to play outside, and if he hadn’t made that suggestion, the first child wouldn’t have found the orange.  The first child can’t believe that the second child isn’t familiar with the age-old principle of “finders keepers”; the second child can’t understand why the first is so self-righteous.

The children finally decide that the only fair way to resolve their differences is to split the orange in half between them.  Before they do, though, a mindful mediator intervenes.  The mediator asks the children to explain why they want the orange, thus seeking an understanding of each child’s values.  The first child says she is hungry.  The second child explains that he needs the orange to bake a cake.

By this point, the mindful mediator will have ratcheted down the tension and injected into the situation a sense of calmness and structure – necessary elements for rational thinking.  Understanding the children’s values, the mediator then asks if their goals could be achieved by peeling the orange, giving the first child the entire fruit to eat, and giving the second child the entire rind to use for the cake.  Seeing the opportunity for each of them to walk away with a better outcome than if they had split the orange in half, the children decide to settle on those terms.  Moreover, because each child does not feel that anything was sacrificed for the other’s gain, their long-term relationship does not suffer.

Though obviously less complex than some high stakes negotiations, this story teaches an important lesson for any negotiation: slowing down, keeping a cool head, and taking emotions out of high pressure situations can lead to better outcomes for the parties.  In that way, achieving the benefits of mindful meditation can lead to more mindful mediation.

 


Adam Myron is an attorney with the law firm of Day Pitney LLP, where he focuses on complex commercial and business litigation, trust and estate litigation, and professional liability litigation. Adam is also a Florida Supreme Court Certified Circuit Mediator and a Florida Qualified Arbitrator.  You can email him at amyron@daypitney.com

For additional ADR tips and resources go to https://www.palmbeachbar.org//adr-2.