History is a great teacher. However, to learn what it teaches us demands effort and wisdom to apply the lessons learned. Too often wisdom is lacking as lessons are re-learned and not applied time and again. So, because I’ve had a need to conduct research for several programs in video let me share a historical scenario and let’s see what Hawai’i and it’s experience with epidemics, focusing on leprosy, offers as a lesson in the public policy arena if and when we are called to be intercessors as mediators or facilitators.

Like smallpox, syphilis, cholera – leprosy was unknown to native Hawaiian’s until it made its appearance around 1850. It spread quickly. By 1865 the monarchy and legislature passed an Act to segregate those with, as well as those suspected of having, leprosy. A perfectly logical act – no? After all the disease had reached epidemic proportions, there was no effective treatment, and leprosy was a death warrant. The Act was called “Act to Prevent the Spread of Leprosy of the Nation of Hawaii” and it was strictly enforced – eventually other pieces of legislation were added that made it a crime to help anyone infected evade being segregated to a jut of land on Molokai island surrounded on 3 sides by ocean while the fourth faced imposing and hard to climb cliffs.

The segregated lepers, it was assumed, would be able to make a subsistence living through herding, agriculture, and fishing. Certainly they would build shelter or themselves and be self policing and governing in Hawaiian fashion – eminently humane however that’s not quite the way it turned out until the arrival of Father Damian and after him other religious and medical professionals came to support the sick and dying.

So what went wrong? What goes wrong time and again?  Well let’s start with a global perspective followed by reflection on the period in Hawaii’s history. The 1800’s were a period of colonialism for the so called Western Nations who appeared to be destined to rule the world. There was racism coupled with  a feeling of superiority by the colonial nations over native populations. Slavery was still practiced in America. Consequently there was a strongly held view that racial inferiority by natives was aptly demonstrated by their lack of immunity to diseases.

As for Hawaii - at the time Hawaii was an independent nation governed by a monarchy, which to some degree was trying to emulate Western monarchies, trying to find its way with  foreigners gaining increasing influence (and would eventually overthrow the monarchy at the end of the century). In the area of health they were the experts since they brought forth their knowledge of medicine. So it is little surprise that by the time leprosy had grown into an epidemic the Hawaii Health board was dominated by Westerners who shared the global view - inferiority of the native population and little regard for native culture, practices, and lifestyle. So they pushed the monarchy into adopting a segregation policy and aimed at ensuring enforcement was focused on native victims. They exhibited disregard to the native populations ties to their land, ancestry, and family. So in addition to the harm the disease was calling to physical health - being segregation had a significant and negative cultural and psychological impact on Hawaiians.

It is interesting to note, from the literature, that Hawaiians did not look at leprosy the same way that foreigners did. One example cited is in regards to the disfigurement which progresses with the disease. Hawaiians did not feel the revulsion typical of foreigners in the presence of lepers. They did not have the same fear of contagion from contact with lepers and family ties were not to be disturbed. Yet it happened, was forced upon them, and along with it came further confusion about culture, protest, and contributed to loss of identity.

So Father Damian, now a saint to Catholics,  already present on the islands doing missionary work is offered an opportunity to work with lepers for a limited amount of time and instead decides the colony is where he belongs and remains there until his death. Arriving at the colony with his Bishop – conditions could not be worse – people are acting and living like wild animals with no shelters to speak of and debauching themselves through opium, sexual promiscuity, gambling, you name it  and why not we are the living dead aren’t we. Along with this behavior there is no governance only despair.

Father Damian decides to make a difference and acts. He physically intercedes to stop debauchery ( never fully successfully) and takes steps to energize dignity. He uses physical acts – like his own skills and labor – and religion to act as catalysts towards a new beginning. And, does he write letters? – he is prolific and perseverant. Before too long his story becomes internationally known and contributions start pouring in. He is a catalyst, including his own physical acts at providing houses, a water system, a place for worship, and a true cemetery for the deceased. He is not without controversy. One cleric writes a destructive portrait of Damien which they write is itself destroyed by none other than author Robert Louis Stevenson. Damian pays a heavy price by contracting and dying from the ravages of leprosy. His compassionate approach comes to the notice of the monarchy which grants him its highest award. Today the area used for segregation is called Kalapapa and it still has a few patients cured of leprosy and is sacred ground – however – all of Hawaii is sacred to natives.

So what’s the lesson in the pubic policy arena to me if and when I am asked to intercede?

1.       Racism in any form must not be used as a means of dealing with epidemics because judgment is not only impaired it becomes a bias not founded on scientific but rather emotional grounds and as emotions go up judgment goes down.

2.       Alternatives  must take into account “culture” in a very broad sense because the impact of every decision can expand beyond the epidemic itself and into the general population.

3.       Alternatives identified need to include objective consideration by representatives of the culture who must have a say in the decision.

4.       Decision makers must include consideration of steps to be taken to ensure that the number of assumptions made are minimized – as an example in Molokai’s case what support was needed on site instead of assuming lepers would make their own accommodation towards subsistence living.

5.       Strong leadership is required from the beginning (including on site) which is built into decisions and bought into by the victims and supporters needed to deal with the situation.

Interestingly I have not found any “what if” studies which would indicate what would have happened if segregation had not been the means by which this epidemic was dealt with. Would the number of cases continued to grow if Hawaiian families had been allowed to care for their own sick? What I have found is that there were foreigners who became lepers who somehow managed to escape Molokai but not the disease itself. The only leper exiled to the colony I read about was about a “black” man who was suspected of being infected, sent to Molokai, became a pest, evaluated as not being infected and ejected from the colony despite his protestations to the contrary.

Hopefully these observations have some validity based on the research I have done – not cited here and mostly internet and discussion based – in this public policy arena. Beyond this the issue of what happened and is happening  to native Hawaiians and ‘locals’ is many – many – faceted and will hopefully include re-learning lessons from the 1800’s followed by application to present day and future scenarios.

In mediating divorce cases mediators take on tremendous responsibility – we’re dealing with people in a highly emotional state and as is well known as emotion goes up judgment goes down – further one person is ready for divorce while the other is either not ready or hoping for counseling – and often it gets worse. There are children involved and other relatives who are significantly impacted and/or influencing the proceedings. Behavior may not be indicative of what’s going on in a persons mind nor their emotions and emotions can change in a flash. Mediators may feel like they are walking on eggs and they are – one wrong move and it’s over – impasse and of they go to battle it out in court.

I only deal in coming up with parenting plans. In Hawaii, the moniker used by family court is “best interest of child or children”. As a former family court judge recently observed people coming before the court and, likewise in mediation, are in need of real, workable, practical “solutions”. But there is another associated issue  that prompted this blog entry (which repeats much of what I’ve written on this subject before) and that is another comment made by the former judge – ‘it’s easier to mold kids than it is to fix broken adults’. That statement really hit home because when I think about it in conducting parenting mediations, I’m involved in setting the stage for that molding of the children in a very difficult situation which adds to the sense of responsibility in mediating parenting agreements.

The third challenge in parenting planning is that the concept of family has changed dramatically and into some forms towards which there is flimsy experience on how such a “modern family unit” functions in the situation it finds itself in this divorce action when it comes to the “kids”.

So, what’s it to mediators in mediating parenting issues as to concepts like “best interest of kids”, family unit, molding kids is easier than fixing broken adults? - I’m just an intercessor responsible for helping clients reach agreement of their making – besides I have to be able to build walls between myself and clients.

Well, as a mediator, somewhere, and not too deeply submerged, there’s a set of principles underlying our mediation process and personal ethics. I haven’t had a case yet in which a parent will say – “I don’t care about the kids” – but - enough cases in which kids are used as cannon fodder to accomplish other objectives in divorcing couples squabbles over distribution of assets and to drive up or inflict emotional pain on a spouse.

I think that keeping in mind the former family court judges wisdom and applying it to parenting planning can help mold the practical and real solutions needed to serve clients and society in general.

What do Former President Clinton, birthers, and global warming opponents have in common? Arguably and based on evidence – denial. What kind of denial – of fact – of impact – or responsibility – denial of denial? We all do it – as kids, with a few tragic exceptions - we were caught in a variety of situations where we denied some infraction of home or school rules – “it wasn’t me, it was my sister Dora”. Unfortunately as we age the issues to which denials are applied get more serious – take the example of sexual predators – they are experts in serial denial. Two colleagues – Craig Robinson and Louis Chang – gave two presentations in 2011 in which denial was discussed. I am currently editing the presentations for public tv. Let me give you an example of denial – now again keep in mind there are always two sides to each story and this is no exception – and no judgments are made in this blog entry.

Let’s assume that in our case study we are dealing with an international organization with chapters and chapter leadership, employees and members. One chapters employee visits another chapter and is accused of a crime by a member of the other chapter. The employee is arrested, jailed, rushed before a grand jury, then a judge orders bail pending trial. The time between indictment and trial is almost exactly six months, the legal limit before charges could be dropped because of a lack of prosecution. Upon hearing of the employees arrest the accused employer puts the employee on administrative chapter while the accusers chapter throws the employee under the bus and distances itself from the chapters members maintaining contact and offering services to accuser. As the time for trial approaches and through discovery, cracks appear in accusers case to the point, as the Terminator – Guvernator – now terminated would say – “you could drive a Humvee through the cracks” – but the accuser and Prosecutor persist and the charade continues into trial with a quick decision – not guilty.

The accused employees chapter reinstates the employee and several months pass when the members of the accusers chapter members learn – after the fact -that the accuser is still able to influence their own chapters leadership to the point that the accuser is granted permission to take something that has been with the Chapter for many years under a questionable claim of a right to the item.

The above is a framework for discussion and is not meant to convey all of the circumstances or make any judgment – however- as laid out – hopefully - it creates scenarios of “denial” followed by possible types of denial in play in several of its forms.

Based on the lectures by Craig and Louis and my own drivers of avoiding, preventing, and resolving conflict the context of denial is based around avoidance of conflict and blame and denial help people deal with fearful circumstances and dire consequences (in this case – scandal). Let’s see if we can apply this approach to denial as it evidences itself in the above case.

1.       At the accusation stage. The accuser had on  their face - convincing credibility and so the claim was taken as a given by all except those defending the accused – everyone else was in denial that accuser could be making up the charges because there didn’t appear to be any other explanation than  - accused did it. Let’s look at what form denial took place by the accuser chapters leadership – disavowal of the accused – accused is at my remote location without our permission to perform chapter services. This form of denial might be a denial of responsibility – the shifting of blame away from themselves – and/or  – denial of impact – enabling the avoidance of a sense of guilt – and/or denial of awareness – we’re in a different state of awareness – however – due to what?  Usually associated with a claim of being drunk or on drugs – probably not applicable here – we hope.

The Prosecutor– well that’s a whole other situation – they sat in the best position – a “credible” accuser and a police investigation with an accepting grand jury – indictment – what else do we need – accused from out of town – Flight risk? – answer – high bail – and who is going to defend the accused anyway – public defender – we beat up on those attorneys every day – worst we can do is a plea deal –same as a conviction. Defenders were on the opposite side of the scale – we just don’t accept accused is guilty – were they deniers of facts? They find a great attorney – no denying that.

2.       During discovery. As discovery proceeds defenders start to accumulate evidence – of contradiction in testimony by the accused, additional witnesses are discovered, physical evidence doesn’t add up, previous findings do not hold up. Prosecutions response – deny impact? – this case is creating harm but that’s good isn’t it? – are we pursuing justice or pursuing getting a conviction? A conviction! – reducing or eliminating a sense of pain or harm from poor decisions – incomplete police investigation – failure to pursue discovery. Denial of cycle? – we made a poor decision to begin with – overcharged – felony – probably can’t get a conviction but let’s just go for it? Failure to change the focus from the accused to the accuser? Accusers chapters leadership – denial of denial? Even though the “evidence” is starting to mount lets just continue with self-delusion. Member of the accusers Chapter – participation in discovery brings questions about accusers motives – recollection of additional people who were there at the time of the incident and questions which start to change perceptions about time line of incidents – however – denial (no name for it) – we can’t do or say anything about this because we are potential witnesses and can’t talk to each other and we can’t defend accused.

3.       At trial – Prosecution still doesn’t get it  - we’ve got this case in the bag – we thwarted the defenses attempts to get this case dismissed – all we need is the accusers testimony – denial of facts? – There are so many contradictory facts and these charges require proof beyond a reasonable doubt – all jurors must agree – did we prepare our witnesses? – No let’s change prosecutors from the time of charge to the time of trial – hey that’s a good way to deny responsibility – blame can be shifted. Accuser Chapter’s leadership – still don’t get it – just stay out of it – provide support to accused and everything will be alright – it’s not our problem. Members – we have to tell it like it is – so like it or not answer the questions posed by the defense and the prosecution and let the jury decide. It’s time to close at trial – Prosecution – we know we didn’t prove our case let’s deny responsibility and blame the witnesses – accused chapters members conspired – where’s the proof? – none offered – none there – jury doesn’t buy it. Not guilty.

4.       Ok – now the denying will stop won’t it? Of course not – the press “jumps” in – of course when the accusations and arrest surfaced they were all over it – this international organization allows the accused to come here and do what accused has been accused of doing – another crime by this evil international organization we’re not going to let you get away with that. Afterwards – a mere blurb - this was simply a case of accuser says versus accused says – missing the whole point – there are issues here worth exploring – how did this case get to where it did? Oh, and by the way let’s show the accused’s picture in prison garb from Crime Stoppers. Oh I’m sure we really tried to get a picture of accused in his organizational uniform! How can you possibly think that way – deny being overzealous initially – we’re just an entertainment medium and who remembers anyway.

5.       Afterwards – Accuser Chapters leadership months later – Ok we need to divide the assets from the accusers Chapter that way we’ll all forget this ever happened – who want’s it? – or - accuser petitions Chapter leadership and claims ownership of a chapter asset. Sure - denial of awareness – we believe accuser even though discredited at trial – accusers claim doesn’t need President Regan’s axiom – “trust but verify” – and of course we’re still in contact with accuser  even though we are disestablishing the Chapter and even though we haven’t notified other members of the (former) Chapter – what could they know – denial of cycle? – bad decision by accusers Chapter leadership from the get go – so let’s continue the cycle – we only have to deal with the pain of accuser and not members – this will end the accusers pain and screw the membership.  Too harsh? Sorry about that.

I hope the above framework and one interpretation provided above provides a good example – true or not – about denial and the potential harm of denial - keeping in mind that many other factors come into play in complex situations like the one exemplified above. These kinds of situations can’t happen! Or can they and if they do – do they happen based on denial? I deny any similarities between any real case and the above example! Maybe we should consult the experts on denial, former presidents for example, and maybe they can put a different spin on things and claim denial is a myth. So what do you do in response to denial? – that’s for a later blog entry – I’ve got to figure that one out. If you know chime in we could all use the help.

Since 2012 is creating much interest in Maya civilization it may be noteworthy to say a few things about the Mayas in the context of avoiding, preventing, and resolving conflict. Why? Because it is fairly clear from what I learned in a recent trip to the Yucatan that their failure to collaborate may have been a major reason why their empire collapsed – so take heed - history repeats itself and lessons learned are relearned and not applied.

What we know about Maya culture is that which was passed down to us by the conquistadores who in their wisdom destroyed the Maya written texts or codex’s, from oral history and traditions found in today’s Maya’s, and from archaeological work studying Maya ruins. There was a period of time in which the Maya’s just disappeared. Their “empire” was located in the Yucatan, Belize, Honduras, and Guatemala. Their Empire has been divided into the pre-classical, classical, and post classical period. Their civilization was a combination of politics, religion, and science – numbers, astronomy, architecture. They combined the three sciences to create a ritualistic and class based system. At least in the Yucatan – where there are no above ground rivers they were dependent on rainwater collected into cisterns and underground wells which were fed by underground rivers. Their agriculture and food source was based around corn. They further combined these factors to form a ritualistic religious system requiring human sacrifice to keep themselves going – blood renewed the earth and themselves. They needed human sacrifice and it appears they fed on blood lust as a means by which to keep the population in tune with their growth. This need for human sacrifice led to continuous warfare – we need to capture others to sacrifice or else we have to sacrifice ourselves. At the outset they grouped themselves into city states and towards the end they were only able to consolidate to about 4 or 5 city states and by that time they had been severely encroached upon by such other civilizations as the Toltecs and later Aztecs. At the same time they were constantly having to deal with an unforgiving and relentless jungle and nature – drought.

The Maya’s were fantastic and creative observers – came up with calendar systems based on the sun and the moon – linked these cycles to mathematically position their pyramids in precise manner with regards to the suns solstices and equinoxes which is a source of wonder even today. They were able to extend their knowledge of geometry to guild pyramids of great height – requiring what we today would call spherical trigonometry. At today s ruins thousands come to watch the suns shadow descend down a pyramids side creating wings onto a balustrade built in the shape of a mystical serpent. There are many other wonders about what they were able to do.

Yet today their descendants live in poverty - their ancient architectural and cultural accomplishments lie in ruins and one has to wonder what would have been had they been able to collaborate with each other and problem solve the real world problems they faced instead of relying on ritual, a class system, a murderous combination of religion and politics which -  as long as it worked - kept their society together. As soon as ritual and sacrifice stopped working – they ran out of water – the nobility fled and the people deserted the cities to live in small villages scattered throughout the jungles where they continue to live today doing subsistence farming.

Had they realized their interdependence and utilized their observational excellence and ability to convert what they saw into science and applied it to issues like water they might not have suffered the sad fate which befell them. That’s a lesson learned and a question which has to be raised is how is it different today in many parts of the world? – as an example of the need for collaboration – water management requires collaboration amongst states. Unfortunately if history repeats itself we’re going to relearn this lesson instead of applying it. Looking to ritual, blood lust, and murderous combinations of religion and politics is something we just can’t seem to get over despite all of the science and bodies of knowledge we continue to develop - just one example of the human condition? Empires come and go but a question which continues to be unanswered is what happens to the Descendants – are they prepared to carry on? If you are interested we created a video on this subject which is available on my Facebook page. In the meantime Happy 2012!

We all make mistakes. Mediators are no exceptions. Mediator mistakes can adversely impact outcomes in mediations so it is important to understand the kinds of mistakes which can occur and how to avoid, prevent, and yes resolve them – if not in this mediation then in subsequent ones.

Process is critical as process is what mediators can and should control. Failure to have a well defined, flexible, adaptable, practiced process which is understood by clients and utilized by mediators leads to poor results. As mediators come from many differing backgrounds with differing abilities each has to define and practice a process which matches their “style”. Organizations like community centers have a one process fits all approach, a model, train volunteers in this process, and on average succeed in their mission. However, even there experienced mediators adapt a center’s processes to fit their own style and/or fit client needs. Mistakes also arise in not properly communicating process to clients and so a balance has to be struck between explanation and execution time. There are still huge numbers of people who have never participated in mediation or have mistaken ideas, expectations, or, yes,  confuse it with meditation.

Even though mediation is flexible and adaptable, boundaries are critical to be understood and respected by clients and mediator. Failure to establish boundaries, communicate them, and utilize them in mediation leads to chaos and mediation failure. Issues like behavior – respect, dignity, good faith negotiation- are critical to mutuality – a cornerstone of mediation processes.

Judgment includes formation of an opinion after consideration. In mediation mediators are constantly being tested as to their judgment and at times in rapid fire fashion so this next category is a smorgasbord of potential errors or mistakes in judgment. They include:

Human behavior has a variety of components and in one model they include thinking, emotions, and behavior. A psychologist colleague has suggested the three are hopelessly interlinked however in mediation clients can be negotiating on different levels – one approaching issues with pure logic while another totally emotional. Most mediators are not psychologists however they have to recognize and may have to intercede when a client is approaching issues emotionally to the point their judgment is impaired – why?  Well for one reason some clients are experts of arousing their opponents emotions to the point of being manipulative or creating a power imbalance – an issue which is by itself of critical concern to mediation execution.

Power imbalances come in many other forms – superior knowledge, negotiating skills, aggressiveness, intimidation – and levels – so recognizing power imbalances and when they get to unacceptable levels require mediator judgment and skill in reaction. Some power imbalances can be addressed, dealt with and mediation execution can continue. Others cannot. Mediators can sometimes get drawn into a power imbalance where they take on a banner which destroys neutrality – offering advice, making judgments about right or wrong – becoming advocates of positions – while on the other hand mistakes are also made when power imbalances have reached unacceptable levels and mediator does not intercede – even stop mediation. Some are really tough calls. Take for example where one side is represented by zealous advocacy by a skilled attorney while the other is not – the attorney articulates his clients case in such a manner as to obviously confuse his opponent. Is this a power imbalance? What should mediator do in this circumstance? Responses will differ amongst mediators – some will say this is the client’s problem while others may see it as requiring an offer of a mediator ‘suggestion’, for example, “maybe you should get an attorney”.

Mediators often struggle with joint versus private sessions with their clients in conflict. Some will not entertain separate sessions while others will overuse them and then there are the issues of client preferences or in some cases insistence by a client to do one or the other. There are those who claim that separate sessions allow advocates or clients to use them to manipulate a mediator by feeding them information meant to confuse or influence mediator to their benefit. On the other hand there are those who see client insistence on joint session only as a means by which to, for example, maintain an intimidating presence during mediation and limit their opponents from serving their own interests – it s judgment call.

For mediators, “there are always two sides to every story”, has to be a basic principle along with everything that is offered is a perception of a client – there are very few absolutes which govern negotiations on an issue. Mediators are not privy to everything which is present in a case and one or both parties may decide they want to limit what is offered at mediation and yet present ‘facts’ as if “that’s all there is to it”. It is not up to facilitative mediators to judge -  rather -  give clients opportunities to communicate, negotiate, and problem solve and correspondingly when they communicate they have to watch even the way they present communications from one side to the other so as not to become a seeming advocate for a particular position based on ‘facts’. You have to know - it’s tough because some cases seem so open and shut that as a mediator it seems almost impossible to understand why the other side is trying to resist until you make this mistake of assumption and learn there are other factors which have an impact on a case which overturn the obvious.  Lawyers, as advocates, get paid to carefully craft their arguments very selectively and do so in mediation just like they do in court – and do it so effectively they will convince even experienced mediators this case and position is open and shut.

There are times when mediators are presented with information which they perceive or discover is patently false, misleading, or mischaracterizes a situation while the other side does not - should a mediator intercede and, if so, in what manner? In trying to think of a simple example I think about a situation in which there is a police report and only one side brings a copy – the other does not think it is important – and so client makes a claim about the incident which is contradicted by the police report – mediator reads the report and becomes aware of this discrepancy – what should mediator do? – point out the discrepancy to claimant – offer or insist that opponent read the report or even inform this client of discrepancy – determine just how relevant the discrepancy is to a negotiation – or just leave it alone because it is opponents responsibility to choose whether or not to accept something as true, have a copy of the police report themselves, or ask to read it if he notices the other side brought a copy? – a judgment call – maybe the answer is, mediator should not read documents during mediation unless specifically asked to do so. Judgment call or potential problem? Should discrepancy be discovered at a later date and a mediation agreement is challenged in subsequent litigation because agreement was reached based on lies or fraud?  I won’t offer an opinion on this matter and just leave it for your consideration – after all nobody stretches the truth in mediations – right!! Honesty is the best policy – or I’ll say what I want in mediation and unless you catch me it doesn’t matter

If it’s any consolation I just completed post production work for the Hawai’i State Judiciary on Appeals Court Practice and found out that even judges make mistakes (errors) during trials and their decisions are subject to and go up on Appeal. Make sure mistakes are lessons learned and applied – which is the final mistake mediators just like most other professions and organizations make – lessons are relearned and not applied!  

To be honest I’ve been struggling in accepting deserved criticism I received for failings in a recent training session I organized so what better way to vent then to write about critcism as a means of purging the demons which come with being found at fault.

Criticism can be defined as finding fault in or about some action of another. Criticism can be productive or destructive – valid or invalid - effective or purely emotional – criticism can create pain, inflict harm, lead to impasse, create humorous situations – disrupt processes – open new opportunities – be heard, ignored, generate significant defensive behavior – quite a panoply of effects, unfortunately from my description mostly negative. In mediation sessions mediators themselves can be sources of criticism and are sometimes the subject of criticism. So, learning to deal with and modeling ones behavior in dealing with criticism is a skill mediators must develop and utilize.

Criticism can take a number of forms or be a combination of forms. Criticism can be delivered verbally, with body language, in joint or caucus sessions. When it is in joint session mediators have to be able to recognize and react in a timely fashion because if unchecked or ignored criticism can result in a further breakdown in communications and problem solving. At times mediators can misread not only what the criticism is, but not being in possession of all the facts or circumstances, can make disastrous assumptions – e.g. an act so odious that if true warrants condemnation to a reasonable person – mediator gives the receiver of the criticism a look which is perceived as – “how could you have done such a bad thing!” – and loses the confidence of the receiver of the criticism – or it could be worse when the same is actually done verbally. Criticism too often puts the receiver on the defensive not only with the critic but also with mediators – which is not all that compatible with problem solving.

When criticism is put forward in caucus sessions it can assume a more sinister nature – for example the critic can actively engage mediators in seeking their agreement – what the other guy did is bad – “don’t you agree?” or mediators can be asked to be mere message takers to the receiver of the criticism as a means of destroying the rapport mediator has with the other side. Becoming the messenger of criticism can make a receiver a believer – this mediator is taking sides. So thinking carefully about how to convey or question a receiver about criticism from the giver of criticism is an essential skill. On the other end of the scale it would be a mistake to say “I don’t believe you did this odious thing, but I have to ask the question.”

Mediators are often privy to extremely sensitive information from their clients, and when in caucus, must ask a client whether anything they have said is to be kept confidential from the other side – and they are obligated to do so – with few exceptions. On the other hand mediators are not obligated to utilize all of the “information” they are provided in the conduct of problem solving and are well advised not to become mere messengers of their client – rather they should be weighing how what they are told folds into the problem solving and issue resolution process. Most clients, except, perhaps, the manipulative ones, understand and accept, even if reluctantly, this will be the case. So when a critic says “ask her about what she does at these shows where she models” mediators should question the relevance, value, and potential impact on problem solving in posing this question to the receiver of criticism – where feasible avoiding and preventing rapport destroying actions.

On the other hand  - criticism – even the very negative – can be turned into a mediation process asset. Receivers can adopt a positive attitude towards being criticized – agree with what is said – effectively parry criticism- assertively respond to criticism. Criticism can reveal a whole lot about central or key issues involved. For example in a divorce case one can say to the other, “all of our time together you weren’t much of a parent to the kids and now you want joint custody!” Strong criticism isn’t it? However what mediators do with such criticism may need to take into account the timing and the context of the criticism – if it said after considerable negotiation  versus when it is put forward in the opening or before anything else is considered – may very well call for different approaches. Why? Well in the former it may simply be a statement of frustration over the lack of progress while in the latter it may be a strongly held “position” which needs to be explored before moving to other issues unless mediator wants to spend time which will go wasting unless there is a shift from positional bargaining to earnest problem sovling. Turning such statements into positives can take the form of self-deprecation by mediators – “your discussion triggers something I need to do – it’s a question my wife and I should discuss periodically.” Although this statement may be perceived as criticism I would take the chance parties may find it as a simple acknowledgment of the importance of an issue which has been raised and giving the chance to voice their respective perspectives.

On the part of a receiver, some would call them the target of criticism, mediators have to be aware that almost anything said or done in mediation might be perceived as criticism leading to mediation destructive response and/or behavior. So, for example, receiver starts frowning, evidencing anger, rising emotions – what is a mediator to do? Ask the receiver to stop making a fuss – tell the receiver he’ll get his chance to respond – stop the critic – ask for a pause in the mediation – let it go as long as the criticism lasts or the receiver stands up and walks out or has an outburst? 

In mediation the giver of criticism is talking to the receiver through the mediator – this gives mediator leeway and potential flexibility in dealing with a potentially destructive situation. So, a direction mediators can take is to address the giver of the criticism in a way which allows for some cooling off to occur. What might that be? As an example let’s say the criticism has already lasted many minutes without abatement – mediator might set a time limit as a practical consideration – easy right? – and adhere to the time limit. On the other hand let’s say giver is scathing in his criticism – almost but not quite accusatory – not a moment is to be lost because receiver is about to jump in and respond with equal venom – there’s the “let’s take a pause” followed by caucus session – what else? – at those times where criticism is being doled out as distinct points as for example “number 1 they haven’t met deadlines, number 2 they have been charging us for the extra time, number 3 …” and then the process issue is whether to allow the litany to conclude until the end, or for mediators to intercede with “you are raising a number of issues and it might be worthwhile to tackle these points one at a time” and look for responses from the participants – if nothing else it provides an opportunity for a cooling off period.

Originally this blog wasn’t meant to be this long or take as many twists and turns as it has during development nor get into specific examples. But be it as it may the examples may stimulate some thoughts about scenarios you have experienced when faced with criticism. Additionally, criticism, as fault finding of or about an action by an opponent can and does play a significant role in one on one negotiations and mediation processes. Criticism has unique characteristics which require negotiators and mediators to develop response and intercession skills meant to keep negotiations and mediations focused towards problem solving rather than in allowing criticism to create destructive forces moving disputants towards impasse.

Can silence be difficult behavior? You bet it can. It’s also a cultural thing. When I worked in Japan I had to learn to adapt to silence with my hosts. In America it’s like we need to hear something all of the time – and if we don’t - it makes us uncomfortable. How many of you have done the “silence” routine with your spouses or had it done on you? What was the, or your reaction, to the silent treatment? – frustration, anger, verbal assaults.

Last month I gave a training presentation and got the silent treatment – I knew I was in trouble and the feedback after the session reflected it – there were other reasons as well – so now I’m working on the presentation I wish I had given – oh well – off the point – silence does have a means of conveying a message – one that you can’t hear so you have to feel – and likewise calls for respones in a thoughtful and appropriate way.

What doesn’t work very well is – “fine be that way – I won’t talk to you either” – then going off and sulking or planning revenge. How many of you do that – plan revenge – how to pay back the silent one? And, to what degree of payback? I’ll bet it’s much more than what is warranted?  There must be something in the brain that creates such a disproportionate thought process!

Then Walla (hopefully) something happens – spouse apologizes – or – we muster enough thoughtfulness to apologize – kind of – and a different set of feelings arise – satisfaction, remorse – or we place it for future resolution somewhere in our brains – usually doesn’t happen so the behavior is repeated and escalates – so the earlier one works on problem solving and resolution the better – and it may take more than one or two times before the matter is finally resolved. There needs to be a transition from silence to some other state – hopefully a productive one and someone has to initiate breaking the silence. How good are you at such transitions? As a mediator I have to carefully read the meaning of the silence and assist opposing parties find a way to break the silence – but productively and in tune with progress.

Silence can be a blessing – particularly if it has a clear purpose that is communicated to the other person – and with sincerity – not feigned. Silence may allow us to leave multitasking – trying to answer while at the same time trying to figure something out – and mentally focus on the issue which is being addressed.

Silence may also have benefits for the other person -  who has been talking away and lost their train of thought – and when this happens – perhaps we should not just recognize but respect their need for silence – some of us do talk (or write) with verbosity. So let’s leave this subject there and go silent – until the next blog. I hope the upcoming silence in writing to this blog doesn’t make anyone uneasy – please respect my need for silence – ok silence already.

Can you “win” an argument with an argumentative person? I’m sure some of you feel you can – however, what do you mean by winning? – having them “shut up”? For those of us who want to avoid, prevent, resolve conflict “shutting our opponent down” just doesn’t do it. The opposite result is sought – we want our clients to open up, turn to problem solving, and collaborate.

There are people who are inherently argumentative – my favorite - a person who upon hearing something – doesn’t matter what – immediately expresses the opposite viewpoint. They just can’t help themselves. Typically my first reaction was to take such expression at face value – disagreement – when reality may be totally different – it is one part of their initial mental processing. They firmly believe in identifying the pluses and minuses before they begin considering alternatives. Have you run into such people? What do you do? Ignore what they say – press your point – get frustrated, even angry – use trigger words - “why do you always take the opposite point of view”?

Patience is a virtue – it’s just we don’t have time for it – so we don’t leverage patience to allow the processing in an argumentative persons mind. It’s not to say that there are a multitude of other reasons why people appear to be repetitively and consistently argumentative – they may simply disagree with us. When I worked in Holland – the Netherlands – I remember being told (in English) –“I want to argue with you about that” – very direct and to the point – at least I thought I knew that’s what we were going to do – however, it must be said that this could have been a mistranslation – it’s not the way it is meant in Dutch nor the way they take as when we hear it in English translation. In Japan direct argumentation may be avoided at significant cost yet disagreement may indeed exist and will be expressed in a different way than through visible anger. In other words the emotion of anger is not surfaced – so how do you know it’s there? That’s a discussion only someone more knowledgeable than me can undertake. The point being - there is a cultural component to anger and its expression as behavior.

So, trying to respond to what appears to be or may actually be argumentative behavior present’s significant challenges in any situation. When used in negotiations it is a whole other thing - is it real?  or a tactical ploy to create an environment which causes an opponent to assume a defensive posture ? – react with frustration – raise emotions – reduce judgment – and gain tactical advantage? One cardinal rule I try an practice  is  -- it‘s probably wisest not to take the bait and react in anger.

On the other hand is it wise to provoke anger in the belief that as emotions go up judgment goes down?  It’s done - and regrettably at times it succeeds in accomplishing such a goal. However, as with anything overdone – done repeatedly - the other side realizes they are being manipulated and the results may be other than expected. They may retaliate in unpredictable ways – they may not take the bait and turn the tables on an issue by coming across as more reasonable and convincing then the provoker.

Anger has its place in the human condition – it cannot be ignored or misjudged – it must be understood. After doing so - it needs to be responded to with good judgment taking precedence over ones own emotions – remember some of the biggest mistakes in history have been made in anger with bad outcomes.  As third parties, mediators need to develop the skills to assist their clients in appreciating anger – its role in problem solving - and - in coping and/or dealing with anger amongst ones clients.

Lessons learned from the Maya’s. Having spent 7 wonderful days in the Yucatan based around Chichen Itza it seems appropriate to make some observations about potential lessons learned from their culture. Most of us know about the Maya’s because of their calendar and astronomy. There’s a photo of an astronomical observatory which is iconic. They were fascinated by numbers and they devised a written language around complex hieroglyphics. This ancient Mseoamerican civilization left us their ruins and their descendants too often live in poverty and are slowly recovering their cultural knowledge as citizens of Mexico. In our experience, of course as tourists, Mayas are wonderful people despite the obstacles they face. They live in a jungle environment and modern development is slow. Whoever runs the show in the Yucatan is spending a lot of time leveraging the pride and capabilities of these people to know certain aspects of their antecedents accomplishments as well as thoughts on why their advanced civilization ended rather abruptly – and – this is the topic of my speculation on the subject along with lessons learned.

As far as I have been able to learn they were divided into a nobility, priestly, warriors, mathematicians, astronomers, (obviously) architects, and I guess the rest. Thanks to the “encomienda” (Conquistadors) we don’t know much more because they destroyed the written history contained in “codecs”  in a “let’s burn them all” bon fire. It seems that they were organized into city states which in the late stages were consolidated from some 40 to about 4. Their civilization went from pre-classical, classical, and post classical periods and they were influenced and or more or less subjugated or paid tribute to other Mesoamerican cultures (e.g. Aztecs). They believed in 13 stages of existence above the earth and 9 below. Corn or maize undoubtedly played a critical role in their lives. For whatever reason a “serpent” also played a critical role in their belief system. They believed in a need to keep themselves going  by practicing human sacrifice, and at least on the basis of one of our guides of their best people – best ball player, best prince, priest, etc. At least that’s one way to make room at the top! As I understand it sacrifices were necessary because once sacrificed the person proceeds to a better place, level, etc.

The Mayas of that era were warriors – collaboration does not seem to have been high as a priority. The constant struggle with their environment – there are no rivers in the Yucatan – their primary water sources were from “cenotes” and collecting water in cisterns – poor soils – diseases – and each other.

Their system was a deadly (literally) mix of politics, religion, and class systems. Their cities were able to grow to population exceeding 50,000 and 100,000. As their pyramids grew in height, they built temples, and palaces, sacrificial platforms, and their culture was ritualized and ceremonial. They never really unified and seemingly failed to take into account that a key to their survival was not warfare but collaboration. When they won over another city they either destroyed or built on top of what had been conquered. As smart (even genius) as they were about astronomy, mathematics, and probably a lot more they failed to recognize their environmental, geographical, and flawed politics and most importantly the common people. How could they do this? The more important issues is – having seen the result – destruction of a civilization – why are we repeating the lessons learned?

Think about it as society we are polarizing ourselves by creating (economic if not social) classes. We’re trying to solve problems through positional bargaining and confrontation. Today’s rituals are those of parading out “stars’ and VIP’s on red carpets. Worst yet we’re trying to solve problems through a warrior class (too many of our warriors have been at it unceasingly for ten years). We’re having trouble facing up to our environment (which is changing – if not caused by us- what are we doing to prepare to live with the changes?). And, worst of all we’re still not working hard enough on defining how to collaborate and problem solve rather than compete on what is an increasingly smaller pie while our population is exploding.

So, if you want to learn about an astounding civilization study the Maya’s but more importantly take seriously the lesson of this and other like civilizations which rose, ascended, and fell. The same patterns repeat themselves and we ought to think more earnestly about harnessing the power of intellects our kind possesses in collaborating in reversing the cycle empires have followed until now.

Our thanks to the wonderful people of the Yucatan for an unparalleled learning experience!   

People come to third parties as intercessors because they are in conflict and cannot make progress by themselves in problem solving to attain resolution.  The discussion below addresses one of the factors we consider but perhaps do not pay sufficient attention to – setting in the context of body language.

Having just flown to both east and west coasts, Texas and Maya areas of Mexico I gained first hand experience about sitting in economy class which supplemented my use of an exercise on dealing with difficult behaviors by having participants simulating sitting in economy class and contrasting that with sitting in a conference room as an example of the broader issue of boy language.

There are numerous points which can be made. Here are a few.

We allow ourselves to be seated next to total strangers in airplanes and somehow we find a way to allocate very limited space, which often times is physically uncomfortable, but nonetheless does not raise issues with regards to invasion of personal space (unless, for example, the party next to us is oversize for the seat) and we adapt our body language accordingly. Put ourselves around a conference table, often with people we know and work with, and boundaries on personal space are redefined – in fact we’ll often create space by moving apart. Yes there’s a physical component but it’s accompanied by our need for personal space and I suspect our body language changes - it’s probably more demonstrative (or revealing).

On the other hand in an airplane we may greet unknown people in the same aisle, but after that our practices vary – sometimes we get gregarious and have a nice conversation and sometimes not- we ignore each other. Sometimes we won’t even greet each other and avoid looking at our aisle sharers. In one of our flights, my wife and I were flying together, we ignored the guy in the window seat and likewise he did the same. Two hours into a three hour flight our window seat flyer noticed someone he knows walking down the aisle and greeted him when my wife, sitting in the middle seat, looked at our aisle sharer and turned to say to me, “do you know who that is?” – I looked over and it was a friend who we haven’ seen in a number of months. Needless to say all three of us were amazed by this chance meeting and the circumstances – sitting in the same row on the same plane – and not recognizing each other! After a long spell of laughter we talked away the final hour of our flight.

At the training session I led, I asked participants to take seats in the same setting and asked them to greet and talk to each other – they did – and after a short period I asked them to stop – and one said “wait we haven’t finished talking to each other”. After the meeting one young woman said to me – “that’s what I came to this meeting for – to talk to others and to see what others were doing”. Isn’t that the response we want to get from clients dealing with conflict? It is!!

Ok, still don’t get it – how does this relate to difficult behaviors? Well think about it – how much attention do we pay to setting and body language when assisting our clients in dealing with difficult behavior.

 One issue this helps understand is setting – in an airplane we are forced by the airline and our own economic means to accept proximity as part of our physical (uncomfortable) and mental  (it’s ok) environment. Perhaps  in mediation we should pay more attention to setting.

Another lesson learned is that having set an environment -  we make choices as to whether to exploit it or not – failure to do so may result in our flight, a missed opportunity to spend an additional two hours chatting with our friend. Perhaps when we are dealing with difficult behavior and the setting is right – take advantage of it – again it’s setting.

Finally I think our flight experience demonstrates the broader issue of body language – from pointing, staring, appearing to hover over, or beneath a person with whom we’re dealing – all of these are part of body language.

It was a great trip and perhaps I’m writing this blog entry as a way of justifying the discomfort that comes from about 25 hours of flying time in economy class – however – I’ll stop short ofthanking  the airlines for giving me this experience.