These are common feelings of people in difficult
conflicts. The trauma of the dispute has activated the fear response
system of the brain. Consequently, the mere presence of the adverse party
triggers an immediate hostile response. For this reason, many mediators
will keep the parties separate in a process known as caucusing. By
keeping the parties apart, emotional volatility can be controlled.
Recently, however, I learned again the importance of the need of adversaries
to face each other.
This conflict was particularly intractable.
The parties had attempted and broken off settlement discussions four
times, and they had attempted two mediations with a retired judge, both
of which had failed. To make matters worse, they were represented
by lawyers who did not get along which each other professionally.
The process started with separate caucuses.
First, I would work with one party, then the next in sequential meetings.
This went on for two days, with the length of the days usually stretching
into the late evening. On the morning of the third day, I decided
that the parties had to meet face to face without their lawyers being present.
These people were highly sophisticated business professionals with substantial
financial resources behind them. I therefore was not worried that
one might overpower the other. Surprisingly, the lawyers did not
object to my suggestion, and the parties seemed to welcome it.
When we met, I established my usual ground rules
and proposed an interest-based process. I explained that I wanted
to take some time to explore and uncover each side’s interests, then develop
options to satisfy those interests, then discuss possible strategies that
could lead to an acceptable agreement. Each side was represented by
two people. After some questions to clarify what I intended, they
agreed.
That morning was spent identifying specific interests
that had to be satisfied in order for the conflict to be resolved.
As the parties began to understand how the process worked, the intense
hostility and anger of the previous two days began to dissipate.
I was amazed to witness how in a few hours these business interests that
had been so polarized were actually beginning to collaborate on trying
understand each other. By the end of the day, the parties saw that
the conflict could be settled in a way that they could not have conceived
of 24 hours earlier. Five more days of intense discussions were necessary
before all the details of this complex problem were worked out, but a remarkable
settlement to a bitter 20 year dispute was reached.
The key to facing one’s adversary seems to be
safety and security. In an unstructured meeting, parties tend not
to listen, react quickly to perceived assaults on positions, and filter
out valuable information. The peacemaker’s presence changes this
interaction. First, the peacemaker, by establishing ground rules
and a defined process, provides a space where people can talk without
fear of attack. The peacemaker diligently protects the space so that
no one feels threatened. Second, the peacemaker slows down the communication
process by requiring one person to speak at a time and by asking mindful
questions to draw out nuances the parties might otherwise miss. You
have probably noticed how fast arguments seem to go. If people are
forced to be deliberate and are forced to listen without immediately responding,
they can more easily override their anger. Third, the peacemaker focuses
the discussion on interests, not positions or people. By containing
the discussion to specific boundaries, the peacemaker does not allow people
to leave the task at hand and drift into positional bargaining or personal
attack. In addition, frustration at not being able to make progress
is reduced or eliminated. Finally, the peacemaker constantly monitors
the emotional temperature of the meeting. Short breaks can be taken
or some humor can be interjected into the process to lighten things up a
little. All of these techniques create a safe and secure place for adversaries
to face each other, listen to each other, and learn.
When bitter adversaries are actually able to face
each other and begin to listen, they start to learn about their commonality.
Somehow, they transform their thinking from a competitive adversarial
process to a cooperative collaborative process. This transformation
may occur in an hour or it may take days. However long it takes,
having the adversaries talking directly to each other is often the only
way a difficult conflict can be ended.
I too would have failed these parties had I not
brought them together. I am often tempted to take the easy path
and keep angry parties apart, but I know that bringing them together is
my job. And when I do my job, adversaries make peace with each other.
Douglas E. Noll, Esq. is a lawyer specializing in peacemaking and mediation
of difficult and intractable conflicts throughout California. His firm,
Douglas E. Noll and Associates is based in Central California. He may
be reached through his website
and email at doug@nollassociates.com