One of a mediator’s most challenging tasks is managing emotional, high conflict parties. How do you calm them down? Enforce limits on their conduct? Is there value to letting them vent? There are many opinions on the subject. In a previous post, I promised to draw insights from the Talmud relevant to mediation. On the subject of dealing with outbursts, there’s a Talmudic principle that validates the approach we take at MMG when encountering strong expressions of emotion during a mediation, which is to view unpleasant outbursts as potential goldmines that may hold the key to resolution of the dispute.
The relevant Talmudic principle is referred to as “its ruin is its remedy” (in Hebrew, kilkulo zehu tikuno). Let’s walk through an example of its application in Jewish law before applying it to the mediation context.
In Talmudic times, lime was used as a building material. In the aftermath of the destruction of the Jewish Temple in Jerusalem by the Romans, the Sages legislated certain national mourning customs. One of these was to diminish the aesthetic appeal of building materials such as lime by mixing it with sand (which darkened its color and made it look more drab). In debating the scope of this custom (Tractate Shabbos 80b), certain Sages observed that the same attributes of sand that reduce lime’s aesthetic appeal simultaneously add value by strengthening the plaster mixture that results. As the Talmud puts it, “its ruin is its remedy.”
More broadly, the principle of “its ruin is its remedy” stands for the proposition that hidden within every setback are the seeds for a turnaround. It sounds similar to the adage that every cloud has a silver lining, but is not quite the same. When someone looks for the silver lining in a cloud, they are conceding that the overall situation remains bleak, but there may be a positive element that provides some consolation. “Its ruin is its remedy,” on the other hand, asserts that what you perceive as a negative is actually a positive if you evaluate it carefully and creatively enough (“from lemons make lemonade” may thus be a better parallel).
A recent success story from the business world illustrates the idea (and then we’ll apply the concept to mediation). Jacob Goldenthal, a trained chef, was liquidating the appliances from a failed restaurant venture, and managed to unload every piece of equipment except for a popcorn machine. The machine remained in the living room of his home for nearly a year, which did not make his wife very happy. He promised to get rid of it, but his daughter was having a birthday party and he decided to treat her friends to popcorn. In a moment of inspiration, he drizzled chocolate and caramel on the popcorn. The kids loved it, the word spread, and the rest, as they say, is history. Named PopInsanity, Goldenthal’s company began selling artisanal popcorn hand-drizzled with caramel, chocolate and other flavors to caterers and then retail stores. The company got its big break when Oprah Winfrey added PopInsanity’s gourmet popcorn to her favorite things list for 2018. Sales skyrocketed 400%, according to Goldenthal’s partner, Aaron Zutler.
What’s the takeaway? The popcorn machine sitting in Goldenthal’s living room seemed like nothing more than an eyesore; a depressing memento of a failed business venture. But with a little creativity it turned out to be the seed of the runaway success that has become PopInsanity. “Its ruin was its remedy.”
So how do we apply the principle to mediation? As my colleague David Albalah writes in his article entitled For Business Dispute Solutions, Process Matters published in The Benjamin Cardozo School of Law’s Journal of Conflict Resolution:
Mediators often attempt to comfort angry parties and view their emotional outbursts as a necessary evil to “get out of their system” before they can progress to level-headed discussion. On the contrary, the mediator should interpret an emotional outburst as the end of a rainbow, signaling a sensitive underlying interest that has been buried by a party and is the key to reaching a superior solution . . . [Tirades are] not a mere unpleasantry that should be ignored, nor is it an emotional outburst that should be massaged until the party fully vents. This information is a goldmine. It is a large red flag, signaling that the issue at hand hit such a nerve that it is likely both the source of, and the solution to, the conflict. View expressions of emotion as sources of information about hidden underlying interests that can be interpreted and used to gain momentum, rather than derail or delay discussions.
In other words, rather than perceiving angry outbursts solely as negatives to be managed, view them as windfalls that potentially reveal the core issues driving a party’s position. “Its ruin is its remedy.”
The key to turning outbursts into opportunities is to listen — don’t take the anger personally, but instead focus on the underlying interests being expressed: “He disrespected me!” “She lied to me!” “You deceived me!” Then find ways to address those interests. It’s not a question of being intimidated into accepting irrational demands, but genuinely trying to determine what past hurts are motivating a party that, if resolved, will end the conflict.
To be sure, after a certain point, rants become counterproductive and must be reined in so they don’t derail productive discussions. Efforts to intimidate or bully are completely unacceptable in the collaborative atmosphere of a mediation. But that doesn’t mean parties won’t or shouldn’t get emotional. And when outbursts occur, the mediator should be prepared to capitalize on them as a critical source of information