This article is the second in a series of discussions based upon books written by experts in the field of negotiation tactics and conflict resolution. These works are by authors who bring a unique perspective about the mediation and arbitration process. The essence of each publication and the focus of these writings are my observations about how each author's experiences can enhance and sharpen your own negotiating skills when mediating or arbitrating a case. In these writings, I will address how this and other publications have helped me hone my mediation skills.
The Book: High Conflict: Why We Get Trapped and How We Get Out
By Amanda Ripley (Simon & Schuster 2021)
“For some disputes, trials will be the only means, but for many, trials by the adversary contest must in time go the way of the ancient trial by battle and blood. Our system is too costly, too painful, too destructive, too inefficient for a truly civilized people. To rely on the adversary process as the principal means of resolving conflicting claims is a mistake that must be corrected.” – U.S. Supreme Court Chief Justice Warren Burger
These are not the self-serving words of a professional mediator. In her 2021 publication, High Conflict, Amanda Ripley takes note that they are from former U.S. Supreme Court Chief Justice Warren Burger in his prescient 1984 State of the Judiciary speech, discussing conflict resolution.
Like Justice Burger, Ms. Ripley believes that our adversarial Court system encourages conflict, rather than solving it, “The pursuit of mutually exclusive, selfish interests by groups working against one another. This is how the legal system works. Husband versus wife. Prosecution versus defense.”
Ms. Ripley further examines the escalation of healthy conflict into high conflict, both in our court system, and in our society. She examines the forces which can cause people to lose all rationality in political feuds, gang vendettas and of course, legal disputes.
According to the author, healthy conflict is a productive exchange of differing ideas, that pushes us to arrive at better solutions. In healthy conflict, our minds remain open with the recognition that none of us have all the answers when questions ultimately arise. We listen to each other, compromise, and craft solutions which, while imperfect, work for all concerned.
High conflict is another matter altogether. Healthy conflict morphs into high conflict when the disagreement devolves into a tribal, good-versus-evil, feud. High conflict is characterized by extreme us-versus-them binary thinking, whether it be in politics, labor strikes, or litigation. We become increasingly certain of our own superiority, demonize those we disagree with, and stop listening to contrary points of view.
Like a firestorm, which creates its own self-sustaining winds, high conflict takes on a life of its own, in which the original disagreement becomes secondary, and the conflict feeds on itself. Each side is convinced of its own righteousness. In politics, “Conflict Entrepreneurs” on both sides of the media, fan the flames of conflict for money and influence. What's more, people behave very similarly in all kinds of high conflict, from neighborhood feuds to divorce courts to labor strikes. A false sense of simplicity takes over, which does not allow for any contrary opinions.
Ms. Ripley posits that we are increasingly witnessing high conflict in our national politics on a daily basis, to the point where high conflict has become “the invisible hand of our time.”
She analyzes numerous situations of those who became mired in a world of high conflict – and provides examples that include a gang leader in Chicago, a female Colombian rebel fighting in the jungle, and a volatile Midwest us versus them political exchange. In each situation, Ms. Ripley examines how each found a way to successfully escape high conflict.
This is no less true in the arena of Alternative Dispute Resolution. When parties attend a mediation, high conflict is palpable. But through listening, developing trust and understanding what each side is looking for, the proceedings can typically de-escalate from high conflict to healthy conflict.
The Friedman mediation method
Of particular interest is the story of California attorney Gary Friedman, one of the founding fathers of mediation in the 1970s. A trial lawyer, Friedman came to realize that the law was excessively adversarial. When people are sorted into oppositional categories, high conflict becomes more likely by design. Mr. Friedman wanted to find a better way to practice law and resolve conflicts; one in which parties were not labeled, and which left his clients better off. He was one of the first attorneys to realize that he could be useful to both sides, by serving as a Mediator. At the time, the concept of an attorney working for both plaintiff and defendant was so radical, that Friedman was investigated by the local bar association.
As practiced by Mr. Friedman, disputes are not labeled into an us versus them conflict, in which one side wins, and the other side loses. In his mediations, there are no “breakout rooms.” The parties remain together throughout the mediation and listen to one another. Mr. Friedman assesses both parties' positions and goals, and asks questions designed to require both sides to consider each other's viewpoints.
Additionally, he meditates daily, as a way of becoming more focused when mediating between parties. Meditation provides him an introspective way of listening to himself first, so that he can then evaluate the case before him in an objective and productive manner. Friedman has taught his style of mediation at Harvard and Stanford law schools.
Success through mediation
Ms. Ripley believes the key to negotiation and conflict resolution is mindset. High conflict closes the mind, creating an echo chamber which distorts reality. Successful dispute resolution requires an openness, and recognition that both people and disputes are complicated. Rarely is either side entirely right or entirely wrong. Deep listening and respectful vocabulary foster an atmosphere where differences can be discussed. There is strength, not weakness in listening, and in seeking to understand the other side's position.
Practitioners can add to the mediation process by recognizing that mediation negotiation is not a zero-sum gain proposition. There is no winner, and no loser. Genuine curiosity is not only strategically smart, but helps an attorney learn the merits of the other side's case, and helps counsel and parties involved recognize and anticipate how to address the weaknesses in their case.
Personal takeaways from Amanda Ripley's book
Because it offers expeditious, cost-effective resolution, Alternative Dispute Resolution (ADR) has quickly become a parallel court system. This trend has accelerated with the COVID pandemic, since trials are still rare, and ADR is virtually the only way to resolve cases.
In my career, I have served as a prosecutor, defense attorney, plaintiff attorney, and Judge. Like Gary Friedman, I meditate each morning, which allows me to approach each mediation with a clear, open, non-judgmental mind that helps me to listen, think more creatively, and be more effective as a Mediator.
I also handle mediations a little differently than many hearing officers. I believe that establishing trust, combined with deep listening, is the key to fostering healthy conflict. My usual practice is to have a confidential conversation with each side in the first round of breakout room caucusing. In that initial conversation, I stress trust, and ask the attorney to give me an approximate idea of their settlement goal. Most attorneys are forthright, and appreciative. I then have the same conversation in private with the other side. This practice avoids stratospheric demands and lowball offers, which create an immediate adversarial atmosphere. It avoids the typical “ping pong mediation” in which both sides move in predictable, small increments, which can sometimes be counterproductive.
Most importantly, establishing trust moves away from being adversarial, and instead focuses on the goal, with each side seeing that I am working to get the case settled in a way that works for them.
I spoke with Amanda Ripley about effectively mediating cases. Ripley suggested asking each side “what do you want the other side to know, that they don't understand?” In our conversation, Ripley also stressed the importance of respectful vocabulary and dialogue. She recognizes that healthy conflict will, more often than not, achieve a mutually agreeable resolution, while high conflict will always be counterproductive and result in further conflict.
At its best, mediation allows the parties to be heard in a far less adversarial atmosphere, allowing for off-the-record candor. Importantly, mediation allows the parties to craft a settlement, rather than leaving their fate to the uncertainty of a jury verdict. For me, the most satisfying part of settling a case as a Mediator is that, not only is the conflict resolved, but both sides win.
High Conflict: Why We Get Trapped and How We Get Out is recommended reading, both for improving your mediation skills, and for better understanding our country's metastasizing polarization.
Check out the first article in my “Elevating Your ADR Game – Useful Insights and Perspectives” series, Never Split the Difference: Negotiating As if Your Life Depended on It.
Reprinted with permission from the March 15, 2021 issue of The New York Law Journal © 2022 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.