As I start to write this, I think about the title of a book by Rabbi Harold S. Kushner, When Bad Things Happen to Good People.
Why? Because life happens to people in unexpected ways, sometimes good, sometimes not so good.
Lawsuits are all about such complications, i.e., when things actually go wrong or are perceived to have gone wrong.
Sometimes, regardless of the underlying dispute, lawsuits themselves are the bad things that happen to good people.
Lawsuits themselves may exacerbate the underlying problem.
Lawsuits are expensive, unpredictable, people feel out of control, and the litigation as it progresses perpetuates the problem, fuels the fire and reinforces the human components of conflict, including anger and defensiveness.
When people come to mediation, they bring their anger and defensiveness with them, and they feel they must justify themselves.
Thus, the Plaintiff feels compelled to show that something happened that should not have happened, or, something did not happen that should have.
By comparison, the Defendant feels compelled to highlight that what is alleged to have occurred did not occur at all, or at least not in the way the other alleges, or it occurred because it was the fault of someone else, including the Plaintiff’s, or nobody’s fault.
Thus, Plaintiff and Defendant are locked in the tug of war of justification, which makes the litigation persist.
On the other hand, when Plaintiff and Defendant come to mediation, generally they also say they hope to settle the case.
They just don’t know how.
Yet these parties themselves hold the keys to resolution: it is just a question of unlocking their misunderstandings or the mis-communications that usually started it all, and then finding common ground.
And they need to be heard for this to happen.
Here is where compassionate understanding comes in on the part of the mediator.
Compassion is a deep awareness of the suffering of another coupled with the wish to relieve it, according to The Free Dictionary online. See, http://www.thefreedictionary.com/compassion
Because of my background, I think of the Yiddish word that comes closest to compassion, which is rachmones, variously transliterated into English as rachmunes, rakhmones, rachmonis, rachmanut. See, http://www.jewish-languages.org/jewish-english-lexicon/words/451
I try to bring rachmones or compassion to the mediation session by listening, carefully and without judgment, to what each person says … and also by listening to the silence between the words.
I reflect back to people what I believe I heard them say and what I think they meant, to show my understanding both of what they believe and how they feel about it. If I get it right, people feel understood. If I get it wrong, I get corrected, and more clarity results in the process for all.
Through this effort, I also ask questions which help them understand more about themselves, and one another, and about their predicament.
People like to be heard and understood. A mediator can facilitate this understanding, with rachmones, and thus help them to the next stage – hope for resolution, peace, reconciliation and so forth based on a new clarity about their situation.
Sometimes I perceive the “aha” moment, or the tipping point, when the light of understanding goes on and when people move away from their past problems to their hopeful aspirations for the end of conflict.
I cannot explain the magic of that moment, but I believe it comes from the care and compassion people feel in the session from the mediator’s tone, demeanor, attention, open heart, and non-judgmental acceptance.
David I. Karp is a full time mediator in Southern California of real estate and business disputes, primarily, and other conflicts upon request. His website is at http://karpmediation.com . He apologizes for any ads affixed to this post by wordpress.com; they are not his.