The Navajo Peacemaking Process

One of the first articles I read concerning Alternative Dispute Resolution was Robert Yazzie’s “Traditional Navajo Dispute Resolution in the Navajo Peacemaker Court.” In it, Yazzie explains the basic Navajo concepts of law and justice and outlines the process used in Navajo Peacemaker Courts.

Yazzie advocates for the Navajo Peacemaker Process (NPP) as a more effective model of justice than the United States judicial system. His advocacy is supported primarily by describing the more holistic and relationship-focused approach of the NPP.

This post summarizes the key concepts and NPP outline presented in Yazzie’s article, and it closes with a brief discussion of the merits of the peacemaker process as a means of both criminal justice and civil dispute resolution.

Prior to explaining the NPP, Yazzie explains several concepts related to the Navajo culture’s conception of justice.

  • Beehaz’aanii: Typically translated as “law,” the word beehaz’aanii has a deeper meaning than common English usage suggests. Yazzie explains that beehaz’aanii is the foundational, timeless, and absolute essence of life. Beyond rules for living, it is the fundamental, shared sense of the “right path.”
  • Hozho: Yazzie notes that hozho means “the perfect state,” and “that ‘there is a place for everything in reality, and there is hozho when everything is in its proper place, functioning well with everything else.’” This concept has a special focus on relationships expanding from family relationships to all things. The purpose of beehaz’aanii is to support hozho.
  • Nalyeeh: The Navajo word that seeks compensation for a transgression, and “it is also a demand to do things in the proper way.” The amount of compensation needed to make amends is “enough ‘so there will be no hard feelings.’” Material retribution is not the central aim of nalyeeh, rather, the aim is healing and preserving relationships.
  • The Scope of Conflict: If the scope of conflict in a legal dispute is measured by the number of parties and issues involved, then the scope of conflict in Navajo disputes is much broader than the scope of conflicts in the U.S. justice system. The NPP includes the disputant’s immediate and extended families and anyone else that is touched by the matter in dispute. This broad perspective also applies to the scope of the issues discussed, which can include the opinions, values, beliefs, and stories of all parties involved.
  • Naat’aanii: The naat’aanii is a wise, respected, and well-spoken man or woman who leads the peacemaker ceremony. The naat’aanii differs from an American judge in that the naat’aanii’s role is to guide and facilitate the resolution process rather than make decisions for the parties. The  naat’aanii is also expected to teach and provide guidance to the participants during the process, a role unfamiliar in the U.S. justice system.

These concepts point to the deep sense of community at the heart of the Navajo perspective, as well as the deep sense of the meaning of the law, the focus on relationships, and the broad scope of conflict all form the foundation of the NPP. The seven step peacemaker process follows:

  1. Opening Prayer: The process begins with a prayer, which is aimed at setting a constructive tone for the meeting and focusing the participants’ attitudes in a positive direction.
  2. Emotional Expression: Zazzie notes that “In Navajo ceremonial practice, you identify what is inside. You bring it out so you can deal with it; That is why we not only allow but encourage expressions of feelings – to bring them out.” This succinctly describes the second step in the peacemaking process in which all participants (not exclusively the parties in dispute) have an opportunity to discuss their perspective concerning the matter in conflict. This step is aimed at healing the wounded relationship between parties.
  3. Lecture: The third step in the process sees the Naat’aanii provide insight about how the dispute relates to Navajo values citing traditional Navajo prayers, folklore, and traditions. As Yazzie notes, “The lecture is information, wisdom, teaching. It gives the disputants the tools they need to go on to the next stage of the [process].”
  4. Discussion: During this step of the process participants work to objectify the problem and eliminate barriers to a solution like the primary participants’ attitudes, misunderstandings, denial, minimalization, and externalization. Yazzie points out that the presence of participants beyond the disputants – their families, neighbors, friends; etc. – helps to counteract some of these barriers. Acting in a spirit of solidarity, the participants, “come to agreement through discussion. They identify the problem and the solutions to it. They eliminate the problem by making certain that everyone is part of the solution.”
  5. Consensus: The result of the discussion phase of the process is consensus about how to proceed with the solution. It is important to note here that Yazzie does not mean consensus in terms of general agreement – he emphasizes that consensus in this context means everyone involved agrees with the solution. He notes that this is to ensure respect for the relationships existing amongst the participants.
  6. Reconciliation: The aim of the peacemaker process is not to distribute justice, but for individuals with interdependent relationships to be reconciled to one another and to the agreement they reached. Yazzie notes that commitments to agreement the disputants reached are general more reliable that judgements handed down to them.
  7. Closing Prayer: The process is concluded as it began with a prayer. The prayer acts as a “seal on the agreement,” which serves to remind and commit all participants to the agreement.

Yazzie closes his synopsis of the NPP by noting that peacemaking reconciles two often seeming opposed goals – the rights of individuals with the needs of the broader group they function within. This attitude of respect and balance, which is the spirit of the process offers insights into optimizing dispute resolution. A few thoughts on the merits of this concept follows:

  1. Emotional & Spiritual Dimensions of Conflict: I love that the Navajo Peacemaker process looks at conflict resolution with a more holistic view of the persons in dispute. The more aspects of the human being that are acknowledged and explored in the context of the conflict resolution process, the deeper the restorative and healing benefits will be. In the U.S. justice system, these dimensions of the human experience are not acknowledged, much less explored.  However, if they were brought into the criminal justice side of our system, they may go a long way in efforts to rehabilitate the offenders and heal the victims, as has been exemplified by restorative justice work.
  2. Conflict Stakeholders: Another aspect of the NPP is the focus on the network of relationships that are affected by a dispute, not just those who are directly involved in the dispute. This seems like such a wise acknowledgement of the consequence that conflicts have on families, workplaces, religious communities; etc. Our justice system is lacking when it comes to representing the needs of individuals affected by, but not directly involved in, the dispute. Though this certainly makes the administration of justice simpler, it does not respect the deep strain that conflict puts on the affected groups that are not involved in the justice process, which has the effect of minimizing the scope of the offense that led to the conflict. This is especially true for criminal matters in which the state assumes the role that should be held by the victim and the community.
  3. Relationship Focused: The NPP is deeply focused on preserving relationships, though not to the extent that the process has an accommodating bias. As discussed, it holds both the individual and community’s needs in balance. This focus is the foundation of a solid community. When we recognize and respect the deeply interdependent nature of our being, then making all attempts to preserve and strengthen the relational ties that bind us together and facilitate our effectiveness as a community is paramount. This is, of course, another point of contrast to the U.S. justice system, which has a strict transactional focus and generally does not recognize the importance of deep, well-maintained, cross-cutting ties within community.

Yazzie’s piece offers an insight into a process that has much to offer. The NPP’s focus on the holistic human experience of conflict, the broad base of conflict stakeholders, and the deep importance of relationships in conflict resolution and prevention provides a solid perspective for considering our own means of dealing with conflict.

 

Sources

Robert Yazzie, “Traditional Navajo Dispute Resolution in the Navajo Peacemaker Court,” NIDR Forum, Spring 1995.

Dovetailing TED Talks – Sally Taylor and William Ury

I recently attended Nashville’s TEDx where I had the opportunity to hear Sally Taylor’s recount her inspiration for and implementation of the Consenses project. Her talk was wonderful because it spoke to the deep, mysterious, and powerful nature of our perspectives. Taylor’s project brings physical manifestation to what makes life so interesting and challenging – there are 7.125 billion different human perspectives, experiences, and stories.

The Beautiful Dilemma of Our Separateness | Sally Taylor | TEDxNashville

 

Taylor’s talk dovetails nicely with William Ury’s latest talk in which he  discusses the power of listening. Our sometime vastly different perspectives on the same objects or events can only be bridged through the act of thorough listening. If I want to understand the depth of the beauty and tragedy of your perspective, I can only do so by deep listening. As Ury’s so gracefully points out, it is the act of listening that allows us to bridge the differences arising from our varying human perspectives.

The Power of Listening | William Ury | TEDxSanDiego

HALT, Conflict, and The Buddha

If you read this blog regularly, I know you must be thinking, “Not another acronym post!” Alas, this has been ‘The Year of the Acronym’ [1]. Thus far, we have reviewed RAIN, an acronym that can be used for mindfully responding to conflict, AIM, an acronym for preparing to communicate, and SCARF, an acronym for managing socio-neurological responses to conflict. This post will review the conflict resolution implications of a very well-known acronym. Of all the acronyms we have discussed, HALT is by far the most widely used and well-established in our cultural lexicon.

HALT stands for Hungry, Angry, Lonely (or Lost), and Tired. It is widely used in the recovery community as a basic self-awareness tool. Alcoholics and addicts are advised to “take time to HALT,” to be aware of the impact hunger, anger, loneliness, or being tired may have on their mental state. By remaining aware of these basic attributes of experience, addicts are much better positioned to avoid succumbing to negative mental states that can lead to relapse.

HALT fits especially well with the previously explored concept of RAIN because it offers a basic tool for investigation of an individual’s present-time experience (the ‘I’ in RAIN).

In the conflict resolution context, HALT can be used for introspection as well as extrospection, and it can be used in both literal and figurative ways. Introspectively, HALT serves as a self-care tool for the Conflict Manager [2], while extrospectively, the tool serves as a framework for being mindful of the current state of others involved in the conflict management process. This awareness, both within and without, is cultivated through asking questions both of ourselves and others about what is affecting our current state of mind. By asking questions to ensure everyone’s basic needs are being met, the practitioner is able to remain self-aware and balanced and to establish and maintain a healthy rapport with others, even when the conflict management process becomes tense.

HALT is typically prescribed in a literal sense, but the tool also has figurative value. Literally, we can pay attention to the sensations of hunger, anger, loneliness, and tiredness as real-time, physical and emotional realities. In this literal implementation of the tool, we can eat if we are hungry, we can pause and step away from the situation if we are angry, we can reach out to connect with a friend or loved one if we are lonely, and we can rest if we are tired. We can address those needs directly, and by doing so, cultivate a mental state that is open, relaxed, and more conducive to conflict resolution.

HALT also has figurative [3] value that yields deeper introspection of what is needed to rebalance and reconnect with our productive mental capacities. Turning to the Buddhist concept of the ‘Three Poisons’ can help to broaden the scope of HALT. The Three Poisons are the three unproductive mental states of Greed (attachment), Anger (aversion), and Delusion (misapprehension). When a person’s thinking is heavily influenced by the Three Poisons, it will be much more difficult to engage them in productively working through conflict. Aligning the Three Poisons with HALT provides a frame of reference for HALT’s figurative value.

Through this lens, we now see hunger as something not limited to the physical realm, but any “hunger” born from unhealthy attachment. We can HALT to ask ourselves what we think we need but are not getting – the fuel of an unproductive state of mind. Bringing this broader, figurative perspective to the experience of others in the conflict management process allows us to question if their behavior may be an indication that they are not getting what they think they need.

Figuratively, anger is transformed from solely looking at external causes of anger to our subtle, internal aversions that quietly drive imbalance in our experience. Paying close attention to our real-time experience or the experience of others, we can look for the subtle ways that aversion is manifesting as obstacles to effective conflict management. In facilitated discussions, I often see aversion as a look of misapprehension or dissonance displayed across a participant’s face. They are not angry; they are just resistant to what they are hearing. This more subtle aversion can cue the Conflict Manager to focus in on the participant’s resistance.

Loneliness or feeling lost is closely related to delusion. The concept of delusion implies that we are disconnected from the way things really are and isolated from the reality of the moment. We could express the same concept as being lost, which can give rise to loneliness. Checking in with ourselves or others regarding how our thoughts are in or out of accord with the present reality will minimize the sense of loneliness and being lost and make the search for common ground much easier. Typically, I notice delusion as a misunderstanding of facts, as a misunderstanding of others’ perceptions, or as the result of a miscommunication. Anything that prevents a shared reality amongst participants in the conflict management process is a delusion that fits in the loneliness category. Overcoming this obstacle varies in difficulty but can be achieved simply by bringing the participant’s attention to misunderstanding or miscommunication.

Tiredness does not directly align with the three poisons, but figuratively, it lends itself to an interpretation similar to aversion. In this sense, aversion is born of the tiredness or fatigue that accompanies dealing with a pattern of conditioned mental and emotional responses. For example, in frustration one co-worker comments about another, “I am tired of Samantha’s attitude.” Here the condition of attitude is causing a mental and/or emotional exhaustion. This figurative interpretation provides another avenue for awareness of how conditioned responses and leading to fatigue and aversion in ourselves and others.

Leveraging the power of HALT as an efficient checklist of conflict sustaining behaviors both for ourselves and others can prove to be a useful gauge of present-time experience. Extending the perspective of HALT from the literal to figurative domain allows us to further leverage the value of this tool.

 

Notes

  1. Yes, this is a shameless attempt to emulate Infinite Jest
  2. By this I mean Negotiator, Facilitator, Mediator, Ombudsperson; etc.
  3. I know you may be thinking that this is a stretch, and I would not dare to argue with you. If you will bear with me for one moment, I think there is value you to be found in this exploration

Using the SCARF Model to Navigate Psychological Landmines of Negotiation

The human brain is organized under a simple operating principle – maximize reward and minimize threat. Sometimes we express this basic principle as an attempt to avoid pain and engage pleasure or the willingness to approach versus attack.

Regardless of how we express this idea, it is at work when our five senses feed our brains raw data, which the brain then classifies as threatening or rewarding. As often noted, this response system is attributed to our species’ survival-centric past.

When the data received is classified as rewarding our brains signal to us that we are safe to engage. This state of being has been associated in studies with enhanced problem solving, insight, and collaboration.

When, on the other hand, our brains classify incoming data as threatening, our state of being is much different. Mental resources are diverted from the prefrontal cortex, the part of the brain responsible for abstract thinking, analysis, self-management, and the capacity to predict likely outcomes. The ability to perceive subtle or contextual signals needed for problem solving and collaboration is significantly decreased, and the individual under threat will tend to think in more generalized terms and be less willing to take risks.

Researchers now understand that the neurological networks that constitute this basic classification system of threatening or safe are largely the same for physical and social threats and rewards.

In “SCARF: A Brain-Based Model for Collaborating with and Influencing Others,” David Rock outlines the social circumstances that can trigger our brains’ reward and threat responses [1]. SCARF is an acronym for Status, Certainty, Autonomy, Relatedness, and Fairness [2].

If a negotiator remains mindful of these five domains when working with the other side, he or she can avoid triggering threat responses while simultaneously engaging the reward response of their counterpart. This is a scenario which makes for a much more effective and pleasant negotiation and is critical to collaborative problem solving.

Status is one’s sense of importance in relation to others. It is threatened when one’s perceived importance or rank is challenged or demoted, and it is rewarded when one is acknowledged and shown appreciation.

Within the context of a negotiation, status threats are easily triggered through positional bargaining. When one negotiator challenges another, a status threat is the likely result, which is one reason this this type of bargaining exercise can be ineffective.

If a negotiator would like to trigger the other side’s reward response, they can easily do so by listening, asking for the other side’s advice, and acknowledging the merit of the other side’s perspective. All three of these actions are inexpensive and effective concessions to offer your counterpart.

The Certainty domain is about our desire for security in future outcomes and is driven by our brains’ reliance on pattern recognition as a means to save processing capacity. When certainty decreases, our threat responses are triggered; when certainty increases, our reward responses are triggered.

Keeping in mind the other side’s desire for certainty at the negotiation table allows for more skillful communication within and execution of the negotiation process. By avoiding ambiguous and evasive communication, we avoid triggering a threat response. By explicitly discussing our perspective, we can give the other side certainty within the negotiation context.

If we want to engage the other side’s certainty reward response, we can propose process options like jointly mapping out both sides’ issues and interests to get a clearer sense of the full landscape of mutual and conflicting interests. When we are in the closing stage of the negotiation, we can also engage the reward response by being thorough, clear, and explicit in the agreement we reach.

Autonomy is the perception of exerting control over one’s environment; a sensation of having choices.” In a negotiation the threat and reward responses are engaged based on how much control or influence the negotiators perceive they have over the outcome of the discussion – more control equals more autonomy reward; less control equals more autonomy threat.

It may be too obvious to note, but the mere act of negotiating with another entails a dramatic reduction in one’s sense of autonomy. That is one reason that negotiating can seem so stressful – it is an exercise in being out of control.

Here it helps to signal to the other party that you are open to their influence and want to understand the options they find most desirable for agreement. These steps can reduce the risk of threat. Brainstorming, jointly selecting fair standards for settlement, and using techniques like ‘you split, I choose’ (i.e. if two siblings were trying to settle the inheritance of a single piece of property, one sibling could be given autonomy to divide the property while the other sibling is giving the autonomy to choose which piece of the property they want) help to activate the brain’s reward responses.

The Relatedness domain stems from our brains’ recognition of “In” and “Out” groups. Our reward system is trigger by being around those we perceive as being in our “In” group, and our threat system is triggered by being around those we consider in our “Out” group.

This is a very germane consideration for negotiation. Many times we have to negotiate with those who are perceived as outsiders. From international conflict resolution to intra-community disputes over gentrification, relatedness can pay a key role in reaching agreement.

Building rapport with the other side in a negotiation is the key means of diminishing threat responses and increasing the reward responses associated with this domain. For negotiators this means that both time and interest have to be invested in getting to know the other side as a human not a professional counterpart. This process may not be fast or natural, but the value of creating a sense of relatedness is the higher quality interactions in the subsequent negotiations.

The final domain of consideration is Fairness, which is “a lack of favoritism toward one side or another” [3]. We intuitively know how threatening it can be if someone is treated unfairly. It can trigger resistance and even anger in the person who perceives that are not be treated equally. However, when a person senses they are being treated fairly, it can engage the brain’s reward system and produce a sense of ease and satisfaction.

In negotiation, the concept of objective criteria or fair standards used as a means of settling conflict issues can serve both as a protection against threat and a catalyst for reward. When both parties find criteria which are independent of the subjective perception of either side, they will be satisfied knowing that they reached a fair means of settling their dispute. However, if one side tries to impose their desired settlement upon the other without persuading the other side of the fairness of their perspective, they will trigger the other side’s threat response, and agreement will be more difficult to achieve.

The SCARF Model provides the negotiator with a well-established map of the potential socio-neurological pitfalls to avoid when trying to find common ground with others. By keeping in mind the other side’s (and your own) need for status, certainty, autonomy, relatedness, and fairness, you will be in a much better position to easily avoid triggering the other side’s threat responses, which can damage or derail you effort at negotiating.

Sources

  1. David Rock, “SCARF: A Brain-Based Model for Collaborating with and Influencing Others,” NeuroLeadership Journal, 2008.
  2. Yes, this is very similar to Fisher and Shapiro’s theory in Beyond Reason.
  3. “Fairness,” Merriam-Webster.com, Accessed April 24, 2015, http://www.merriam-webster.com/thesaurus/fairness

AIMing for Effective Communication

Clear communication does not always prevent conflict, but unclear communication can certainly incite it. Beyond the implications for conflict prevention, communicating effectively can influence and inspire. It can help shape outcomes and produce results.

J.D. Schramm, the Class of 1978 Lecturer in Organizational Behavior at Stanford’s Graduate School of Business, recently provided three powerful communications insights in “How Leaders Communicate Effectively.” A brief synopsis of Professor Schramm’s advice is below.

The Framework

Schramm outlines a simple framework for preparing for communications of all kinds – emails, speeches, presentations, text message, telephone conversations; etc. The framework, known as AIM, poses three broad questions, “Who is my audience? What is my intent? And what is my message?”

This reflective exercise is a great way to pause and consider what you really want to say. By defining what you would like to accomplish across the domains of audience, intention, and message, you will be in a much better position for your communication to be understood as it was intended.

Understanding Your Audience

Many times we have the option to communicate with others face-to-face, but at other times we may be limited to a phone call or email. As we move further away from face-to-face communication, we lose two critical elements of the communication – body language and tone of voice – which constitute a much higher percentage of how communications are understood than the actual content of a message (i.e. the words).

This dilemma creates the need for us to understand our audience as fully as possible to craft a message that really connects with them and their interests. By understanding our audience more deeply, we can speak to them in a powerful, personal way in spite of an impersonal communication medium. As you prepare you message, answer questions like –

  • “What inspires them to action?”
  • “Where do they gather?”
  • “What resources do they rely on?”
  • “What sources of news do they read?”
  • “What are their peer groups of influence?”

Consider All Three Elements of Communication

As previously noted, there are three elements to communications – body language, tone of voice, and words. Schramm describes these elements as visual, vocal, and verbal, and emphasizes how important the visual or body language element is for effective communication.

All three of the aspects of communication can work in harmony or discord. The more synchronized the elements are in communicating the same thing, the more harmonious and effective you communicate. But if your body language conflicts with the words you are communicating (i.e. you a saying how interested you are but you have your arms crossed), you create dissonance in your listener’s experience.

The key is to be mindful of how well you are synchronizing the three elements of  communication to deliver a clear message. The higher the stakes of the communication, the more important this becomes.

Using the AIM framework, considering your audience, and synchronizing the elements of communication will go a long way to prevent unnecessary conflict that arises from ineffective communication and will also serve to make you a more powerful and persuasive communicator across a variety of communication mediums.

 

Source

J.D. Schramm, “J.D. Schramm: How to Communicate with Your Audience,” Insights by Stanford Business from Stanford Graduate School of Business, Posted January 6, 2015, http://www.gsb.stanford.edu/insights/jd-schramm-how-leaders-communicate-effectively

Best Practices for Facilitating Victim Offender Conferences

I absolutely love facilitating Victim Offender Conferences. This month, I wanted to honor that love by pulling together some of the best practices for engaging victims and offenders in forward looking dialogue. Though the the actual meeting between the victim and offender of a crime only takes place after a long and careful preparatory process, this post will focus on skills used in that face-to-face meeting. The quoted material is from two seminal works of the genre – Mark Umbreit’s “Mediation of Victim Offender Conflict” and Lorraine Stutzman Amstutz and Howard Zehr’s Victim Offender Conferencing in Pennsylvania’s Juvenile Justice System. I have organized the content into six categories: Notes on Process, Convening the Conference, Opening Remarks, Communicating, Negotiating, and Closing.

NOTES ON PROCESS

The Climate of the Conference. “There is bound to be tension. Some tension is good, but if it is too high, the participants’ ability to see each other objectively may be reduced. Try, therefore, to establish a relaxed but purposeful atmosphere. Don’t try to head off all conflict, though; feelings may need to be expressed and any hidden feelings or agenda need to be brought out. In fact, some argue that the more emotions that are expressed, the greater the likelihood of real reconciliation.” (Amstutz & Zehr)

The Tone of the Conference. “The tone that is set depends largely on the mediator’s style. As a rule of thumb, a mixture of formality and informality seems advisable; we don’t usually want highly formal meetings, but we do want a sense that this is a serious, purposeful meeting and that someone is in charge.” (Amstutz & Zehr)

Share Information Before Discussing Restitution. “Most often, the victims and offenders involved in mediation had no prior relationship. Rather than a primary emphasis upon restitution collection, many victim offender mediation and reconciliation programs first emphasize the importance of allowing enough time to address the frequent need for information about the offense and the related feelings of both parties. Restitution is an important additional goal, but for many programs, only primarily as a symbol of conflict resolution or ‘reconciliation.’” (Umbreit)

Share Facts Before Feelings. “It is often helpful to begin reviewing what happened. This does not need to be in great detail, but there needs to be a basic agreement on what happened during the offense, and both victim and offender need to know what happened to the other after that…From there, you can move to a discussion of feelings. Both offender and victim should be encouraged to recall his or her initial feelings at the time of the offense, as well as any feelings and frustrations since then. If he/she does not offer any, ask about them. This venting of feelings is critical.” (Amstutz and Zehr)

CONVENING THE CONFERENCE

Setup the Room with the Participants in Mind. “The seating arrangement should be such that the victim and offender have the opportunity to face one another unless that seems inappropriate…Sitting at a table is also appropriate because it helps to create safe boundaries…It is appropriate for the facilitator to assign seats as people arrive in order to create a safe environment for everyone.” (Amstutz & Zehr)

OPENING REMARKS

Set the Stage for a Productive Encounter with Strong Opening Remarks. “An explanation of the order and purpose of the meeting—e.g. ‘We are here to review what happened in the case and to give everyone a chance to ask tell his or her story, to ask questions and then to discuss options that will help to make things as right as possible.’ Ground rules are important. An example ‘Out of respect for one another it would be helpful if only one person speaks at a time.’ The facilitator can also mention that if either party has a question and it is not their turn to speak, they should feel free to jot the question on a piece of paper so that it is not forgotten. Be sure to secure agreement from all parties regarding ground rules…If your program utilizes volunteers, let parties know you are a volunteer representing a community group and, therefore, do not represent the probation department or the court. Your role is to facilitate the meeting, not to direct the outcome.” (Amstutz & Zehr)

Set an Agenda to Help Participants Understand How the Conference will Unfold. “The meeting begins with the mediator explaining his or her role, identifying the agenda, and stating any communication ground rules that may be necessary.” (Umbreit) It is important to have a plan and direction in mind. We recommend the following:

  • Introductory comments;
  • Allow each party to describe how they experienced the offense (both facts and feelings) and to acknowledge the injustice/violation that has occurred;
  • Work at restoring equity (restitution);
  • Discussion of future intentions;
  • Signing of contract; and
  • Closing comments, including the option of a final meeting once restitution is complete.” (Amstutz & Zehr)

COMMUNICATING

Let the Parties do the Talking. “Participants will know they need to speak to each other…At first it may be difficult for them to do this. They may be more comfortable looking at the facilitator. Facilitators can help them overcome their reluctance to look at one another by directing their own focus to the listener and away from the speaker.” (Amstutz & Zehr)

Intervene Only When Necessary. “Once the parties are speaking directly to each other within the context of the stated purpose of the mediation session, the mediator should only intervene to help clarify issues, make transitions, or prevent any abuse.” (Umbreit)

But Do Intervene to Stop the Participants from Arguing. “Arguing is unproductive and is usually a form of fact finding. Interrupt the process and reiterate the task at hand, e.g. to describe what happened and its impact. If arguing continues, summarize and suggest that to continue arguing is unproductive. Point out that they may need to agree to disagree. Encourage each of the participants to be open and proceed in a mutual problem-solving mode, using caucus if necessary. If arguing continues, end the conference, giving participants the option to try again at a later date.” (Amstutz & Zehr)

Practice the Difficult Art of Silence. “The mediator’s most effective skill is listening attentively. Participants often need space to collect their thoughts before speaking or responding to questions. Do not rush the process.” (Amstutz & Zehr) “In uncomfortable moments of silence when the mediator has an urge to comment, he or she should first count to ten and allow more space for the parties to think things through and initiate interaction with each other.” (Umbreit)

Encourage Questions that Build Understanding. “This will probably lead to a variety of questions: victims usually want to know why they or their property were singled out, how the offense was committed, etc. Such questions should be encouraged…One helpful question may be to ask the victim might be ‘Can you tell us what happened?’ and then follow up with ‘How did you feel at the time?’ A second and third question could be ‘How have you felt since the incident’ and ‘What has happened since that time?’” (Amstutz & Zehr)

Reframe Language that Attacks. “Neutral rephrasing of facts and/or issues helps to remove value-laden language and to balance intense emotions. The facilitator restates what one participant has said that may have angered another. The content of the message is repeated without the ‘attack.’ Reframing can help a speaker convey information without the listener getting defensive. Reframing the statement shifts the focus away from the position toward the underlying needs and interests of the speaker.” (Amstutz & Zehr)

Invoke the Ground Rules as a Standard of Conduct. “Give participants a chance when ground rules are broken by reminding them of what they verbally agreed to in the beginning of the conference (e.g. no name calling, no interrupting, being respectful). Let them know that if one or the other continues to interfere with the process that the conference will terminate.” (Amstutz & Zehr)

NEGOTIATION

There are Many Possible Ways to Restore Equity. “Keep in mind that restoring equity may take a number of forms; it may take the form of a money payment and/or might involve a service to either the victim or the community. In a few cases, contracts may involve certain specified behavior a juvenile offender may be asked to agree that he or she will not climb a tree, or will stay off certain property, and that is an acceptable contract. On occasion the victim may ask for no restitution at all. An apology may be an important part of this restoration process. In any case, make sure that the contract reflects what was agreed upon.” (Amstutz & Zehr)

Pivoting to Negotiation. “Discussing how to restore equity includes reviewing the actual damages, agreeing, if possible, on what was actually damaged, looking at any damage estimates that may be available and then discussing a fair settlement…Begin by suggesting that it is time to discuss what should be done to repair the harm, then perhaps ask the victim to explain the damages and to describe what might help to make things right. If the victim provides a figure or some other idea of a fair settlement, the mediator should then ask the offender how she or he feels about that. He or she may agree that it sounds fair.” (Amstutz & Zehr)

Allow the Participants to Negotiate Their Own Agreement. “The victim and offender should negotiate this contract themselves, with minimum input from the mediator. And if they can reach no agreement, it may be necessary to point out the consequences of non-agreement. It is important to remember that the victim and offender do not have to reach a settlement – some cases simply can’t be resolved in such a meeting. However, statistics show that once a case does come to a meeting an agreement is reached 98% of the time.” (Amstutz & Zehr)

Pause and Summarize if the Participants get Stuck. “A brief summary of what has been said, or simple repetition, can help participants think of other things they can say to get the discussion flowing. Don’t overdo summarizing.” (Amstutz & Zehr)

Offer to Help if the Participants get Stuck. “If they say yes, refrain from giving a specific solution. Instead, suggest they brainstorm, trade places (if I were you I’d want…I’d offer to…), or make a list of possibilities including pros and cons. If that doesn’t help them generate ideas you might ask if they’d like you to explain common options again: monetary restitution, community service, personal service, donation to charity, school grade improvement, other creative solutions.” (Amstutz & Zehr)

Closing the Negotiation. “Make sure that victim and offender are perfectly clear about what they are agreeing to. Restate the agreement, and then ask both victim and offender individually whether they are comfortable with this or whether this reflects their understanding. Make sure the agreement specifies clearly and exactly what the settlement is, and when and how it is to be repaid. Fill out a contract…specifying all of the terms as clearly as possible (including how and when payment is due) and then have each sign it. If they wish a copy of it, a copy can be sent to them or you can fill out another copy.” (Amstutz & Zehr)

Negotiations Ending without Agreement. “If no agreement is reached, have the victim and offender sign the contract form stating no agreement possible at this time…The mediator should inform the victim that he or she may wish to file in small claims court. If the case has been referred by the courts or the probation department, it should be noted that the case will go back to this referring agency, where restitution may be set.” (Amstutz & Zehr)

CLOSING

Have the Participants Discuss Future Intentions. “It is important for victims to feel a sense of security about their future…it is helpful for the offender and victim to bring the process to closure by talking about what happens next. In order to restore a sense of trust, both victim and offender are asked to acknowledge the importance of the contract and for the offender to assure the victim verbally and in writing that the offense will not re-occur.” (Amstutz & Zehr)

Closing the Conference. “Again, there is no right way to end. If agreement has been reached, it may be well to restate briefly what has been decided…The mediator may also want to congratulate them for the progress made, ask them how they feel about the meeting at this point or summarize any reconciliation that has occurred.” (Amstutz & Zehr)

 

Sources

  • Mark S. Umbreit, “Mediation of Victim Offender Conflict,” Journal of Dispute Resolution, 1988, http://goo.gl/mUZ1g1
  • Lorraine Stutzman Amstutz and Howard Zehr, Victim Offender Conferencing in Pennsylvania’s Juvenile Justice System, 1998, http://goo.gl/0ltb68

Allowing Mindfulness to Inform Our Responses to Conflict

Those of us who are familiar with conflict know that there means of responding to conflict that are more skillful than others. William Ury notes in Getting Past No: Negotiating With Difficult People that there are three common, reactive responses to conflict – avoiding, accommodating, and competing.1 Those of us who have had the experience of poorly reacting to conflict or being unsure of the best response to a confrontation can easily see the accuracy of Ury’s assessment.

The range of reactions varies from extreme conflict avoidance to high-frequency accommodation to raging competition, and these responses are often the result of a lifetime of conditioning. Most often, these reactions arise from an inability to effectively cope with the challenging thoughts and emotions that can accompany conflict.

In the right situation, any of the aforementioned responses can be appropriate, but it is our almost exclusive reliance on a primary response (i.e. we usually avoid conflict, if at all possible), that makes for ineffective conflict management. What is important to note about these responses to conflict is that, for many of us, our responses are instinctual in nature. Often times, we unconsciously respond to the unpleasant stimuli of conflict before considering whether or not our response is really the most effective approach for the situation.

Those of us who are avoiders frequently shy away from conflict because we are fearful of how we might handle the differences we experience with others. We are afraid we might lose our cool, concede too much, or offend our counterpart by advocating for our own interests. This apprehension leads us to avoid conflict altogether.

We who often respond to conflict by accommodating the needs of the other side frequently do so out of fear that we may damage our relationship with the other party. We are afraid that asserting our own needs in a situation may be seen as self-centered, too aggressive, or lacking concern for the needs of the other side.

Then there are those of us who are driven by competitive motives. We want to win, or sometimes to dominate, because we are afraid to cope with the internal difficulties we experience when we lose. Contrary to the accommodator and the avoider, the competitor’s drive often causes them to value the object of the negotiation over the negotiators.

These descriptions of the basic motivations underlying our instinctive responses to conflict are far from complete, as they are highly complex and vary from individual to individual and situation to situation. However, these illustrations hopefully make clear that our conditioned responses to conflict are generally driven by emotional concerns.

It becomes clear that we need a way to pause before letting our default response take over if we are to be more skillful at addressing conflict in a situationally-appropriate manner. One technique for doing this is a mindfulness practice known by the acronym RAIN – Recognize, Allow, Investigate, and Non-Identification.

RAIN is a practice developed by Michelle McDonald, a mindfulness teacher with over thirty years of experience teaching vipassana meditation and the co-founder of Vipassana Hawaii. The practice is intended to cultivate a spacious self-awareness and offer support for working with challenging thoughts and emotions.”2

As described by Tara Brach author of True Refuge: Finding Peace and Freedom in Your Own Awakened Heart, the RAIN practice involves recognizing what is happening, allowing life to be just as it is, investigating the inner experience with kindness, and realizing non-identification, which gives way to open awareness.3

Recognize.

The first step of the RAIN process involves pausing to recognize the sensations in the body, feelings, and thoughts that are present in your inner experience. It can be tempting to ignore unpleasant thoughts or feelings or to form judgements about those thoughts and feelings, but our aim in this step of the process is to observe without an internal or external reaction. One useful piece of advice for this step is to be friendly with yourself as you recognize what is happening within your mind and body.

Sometimes, asking ourselves a question can help initiate a clearer recognition of our present moment experience. Questions like, “What am I feeling right now?” or “What do I really think/feel about this situation?” or even “What is happening inside me right now?” help us to focus our energy towards a clear recognition of our inner experience.

Once we recognize our sensations, emotions, or thoughts, it is helpful to name them – “anger,” “sadness,” “tightness in the throat,” “worry about mother,” “loneliness,” etc. Naming what is happening within you allows for a clearer connection to the experience.

Allow.

According to Branch, the next step is to “allow life to be just as it is.” This entails letting the difficult experience exist without trying to change it. Often, our response to difficult thoughts and emotions is one of three forms of aversion – we ignore the unpleasantness, we resist the unpleasantness, or we grasp for something that will distract us from the unpleasantness. When practicing RAIN, we avoid these temptations and allow the experience to be.

A useful skill when practicing this step is to use a word or phrase to support your intention to allow the experience to be as it is. Branch notes that mentally saying “yes” to the experience is a way to express your consent to the sensations, feelings, or thoughts that have arisen within your awareness. This expression both reminds you of your intention in practicing this process and also plants a seed that you are not the experience – a  theme addressed in a later step.

Investigate.

The third step in the RAIN process may not always be necessary. You may have regained a sense of mental balance through simply recognizing a difficult experience and allowing it to be. Other times, the first two steps are not enough. This is especially true for recurring difficulties like marital problems or entrenched issues with your colleagues. In these cases, investigating your experience in greater depth is useful. You can ask yourself questions like:

  • What is the feeling tone of this experience (positive, negative, or neutral)?
  • What event triggered this difficult experience?
  • Why was that event triggering to me?
  • Have similar events triggered me before?
  • What story am I telling myself about these feelings?
  • What story are these feelings telling me?
  • What alternative stories exist for these difficult feelings?
  • How realistic is the story I am telling myself?
  • What bodily sensations are connected to this experience?

Non-identification.

The final step is not so much an actionable step as it is a result of the process. Non-identification means that through recognizing, allowing, and possibly investigating your experience, you became aware that you were not the sensation, emotion, or thought that was causing you difficulty. It means that you have ceased to identify yourself with your difficulty and instead are able to see the difficulty as a small, ephemeral part of the large mosaic of our present time experience. With non-identification, we have successfully shifted our perspective towards seeing the streaming, constantly changing (however subtly) nature of our experience.

RAIN is a method that, when consistently utilized, can free us from our conditioned, instinctive responses of avoiding, competing, or accommodating. By recognizing, allowing, investigating, and not identifying with the sensations, emotions, and thoughts that lead us towards our conditioned responses, we allow for awareness and wisdom to guide our engagement in conflict.

 

Sources

  1. William Ury, Getting Past No: Negotiating With Difficult People, (Bantam Books, 1991)
  2. Rick Hanson, “Let it RAIN,” Wildmind Buddhist Meditation, Last Modified September 4, 2012, http://goo.gl/Qvjxzv
  3. Tara Brach, “Working With Difficulties: The Blessings of RAIN,” Adapted from True Refuge (Bantam, 2013), Last Accessed December 13, 2014, http://goo.gl/Fdyxh4

Other Works Referenced

  • Therese Borchard, “4 Quick Mindfulness Techniques,” Psych Central, Last Accessed December 13, 2014, http://goo.gl/P2nNmX
  • “Using RAIN,” Last Accessed December 13, 2014, http://goo.gl/PIOGPc
  • Meg Selig, “Manage Emotional Pains with RAINS,” Psychology Today, Last Modified February 6, 2012, http://goo.gl/W6yejr