By Rabbi Menachem Rosenfeld
I have written on the topic of mediation for several years. Mediation, simply stated, is when a neutral party tries to help parties locked in a dispute, reach a positive resolution. It has been said that mediation is an art and not a science. Different mediators will turn to different methods. It is certainly true that “one size does not fit all”. However, there are certain strategies that are frequently used by mediators in an attempt to attain dispute resolution.
A dispute will usually end when the parties receive much, but not all, of what they have hoped to gain. I will briefly outline several mediation strategies that aim to achieve peaceful resolutions. It is my hope that even if you are not a mediator, you may find insight and wisdom in some of these techniques. Certainly, for those who serve to mediate disputes, such as Dayanim, Rabbonim, educators, etc., it is a worthy effort to try to utilize techniques that have been shown to work. This is specifically true where we find a need to try to resolve disputes in monetary matters, communal disputes, divorce negotiations, etc.
- Overcoming an “Us V. Them” attitude- Divorcing couples often ask me if they are unique in how they are dealing with the issues that divide them. I always reassure them that there is a universality of human behavior. People who are happy tend to act a certain way. So too for people who are sad. Finally, people in a state of anxiety or who are facing formidable challenges act a certain way. We need to bring people in dispute to a point where they can try to become sensitive to the other party’s fears, concerns, etc. Once we get to that point, it becomes possible to separate the people from the problem at hand. Parties in a dispute are often surprised to hear that the “other side” is just as disappointed, fearful, angry, etc. as they are. It is said that a mediator needs to be “soft on the people and hard on the issues”.
It is told that when Rav Chaim Soloveitchik sought to give his community mussar, he would begin his comments in this way: “I am going to give mussar, but it is to myself. The mussar is given Chaim to Chaim. But I will state the issues aloud, so anybody who may feel this applies to them too can learn from my comments.” This is how one breaks down the “Red State-Blue State” mentality that can undergird a dispute. It is a classic example of being “soft on the people and hard on the issues.”
- Focus on interests and not positions-A person may repeat their position so often that they truly lose sight of their interests. A situation that illustrates this came up in a divorce mediation I conducted. The wife kept saying she wanted to limit the hours her husband spent with the children post-divorce. I asked the wife if she did not trust her father’s parenting abilities. After all, this was a reasonable explanation for her stated position. She said that this was not a concern at all. However, she believed her husband was not sufficiently careful about the kashrus of the places he intended to frequent while spending time with the children. This was the true interest she had; maintaining a proper Kashruth standard. Once that was “put on the table”, it became possible within minutes to get an agreement on the Rav who would provide a list of approved eateries in their locale. What helped in the resolution was the ability of the wife to take her stated position and then “translate” it into her true interests. In many disputes, the confusion between positions and interests is often at the center of the impasse.
- Reality Testing-When parties fail to agree on an issue, it is quite helpful to ask what the alternative to a resolution could be. In divorce and civil matters, mediations run a fraction of the cost of litigated cases. Does it really make sense to spend a tidy sum for litigation, give up one’s privacy, and sacrifice the option to have an impact on the ultimate decision? Where is the gain in protracted litigation? The words of Pirke Avos seem most apt- “Vehave Mechashev Schar Mitzvah Keneged Hefsedah”. It is helpful when a party can objectively evaluate the possible harm of their conduct during a dispute. Often, the person most greatly harmed is the actor himself.
- Building a Golden Bridge-The Rambam in Hilchos Melachim (6:7) states that in battle, Am Yisroel could only attack its enemy from three sides. The fourth side was open for the possible retreat of the enemy! Even your enemy deserves to have a way out of the problem. A classic example of the “Golden Bridge” was utilized during the Cuban Missile Crisis of 1962. Russia could not simply withdraw its missiles from Cuba if it received nothing in return. Eventually, the US agreed to dismantle (obsolete) missiles from Turkey. In this way, Russia could save face in explaining to its countrymen why it withdrew from Cuba. By asking a person what they need or desire, andtrying meet their need, where feasible, interpersonal crises too can be resolved.
- Go to the Balcony- Parties in a dispute have many conflicting and dynamic feelings. Sometimes, they fail to see the overall picture. Getting parties to “go to the balcony” includes the need to get them to see how their dispute may endanger friendships, family members, and mental health. The old advice of dealing with anger is “count till 10”. Disputants need to take a step back and take a long look before proceeding with their enmities. Suffice it to say that the story of Kamtza and Bar Kamtza is a perfect example of a situation where “going to the balcony” would have been a valuable step to take, early on, in the tragic narrative.
Rabbi Dr. Abraham Twerski analyzes anger and contentiousness, by citing Rav Yisroel Salanter: “People are frequently provoked to anger by items of relatively little importance, but which at that precise moment appear to be very significant.” This presents a good description of why a third-party neutral needs to know when it is time to have the parties “go to the balcony.” Look at the long picture.
- Listen in order to learn-Most people involved in a dispute have a need to talk and express their view. But you learn more from listening than from talking. By listening to another side of the story, you can learn much about the opposing party’s needs and their desires. More importantly, productive conversation can lead to the brainstorming that can lead to solutions. Oftentimes, by careful listening, the parties can arrive at solutions that offer mutual gain. This is what is known in mediation theory as Win-Win.
Mediation is an optimistic undertaking as it shows how people of (some) good-will can create solutions to problems that they may have once thought were intractable. The process has a belief in the basic goodness and creativity of human beings.
There is a story about the kindly President, Abraham Lincoln, who was asked at the end of the Civil War, if Southern soldiers would be welcomed back as U.S. citizens. President Lincoln answered in the affirmative. An indignant woman in the audience asked why the President was not keeping his promise to “destroy the enemy”. This was the president’s reply: “My dear lady, there is no greater way to destroy your enemy then to turn him into a friend.”
Mediation may not convert enemies to friends. It does however allow opponents to try to work together to find solutions for disputed matters. Once that comes about, and enmity has dissolved, all becomes possible for the future .
Rabbi Menachem Rosenfeld is a mediator and attorney in Fair Lawn, NJ. He can be contacted at Rosenfeld@Juno.Com.