Part I- Mindfulness and Dispute Resolution
Leonard Riskin is the C.A. Leedy Professor of Law and director of the Center for the Study of Dispute Resolution and the Initiative on “Mindfulness in Law and Dispute Resolution” at the University of Missouri-Columbia School of Law. Professor Riskin wrote “The Contemplative Lawyer: On the Potential Relevance of Mindfulness Meditation to Law Students, Lawyers, and their Clients,” which appeared in the Harvard Negotiation Law Review (May 2002) as the centerpiece of a symposium entitled Mindfulness in Law and Dispute Resolution. In June, 2005, Professor Riskin and others will provide training in mindfulness in law and dispute resolution at the Harvard Negotiation Insight Initiative, Harvard Law School and the Straus Institute for Dispute Resolution, Pepperdine University School of Law.
On January 20, 2005, Professor Riskin spoke with Linda Lazarus, the Spirituality Editor of Mediate.Com, about mindfulness, mediation, and mindfulness resources for mediators.
Linda Lazarus (LL): How do you define mindfulness?
Leonard Riskin (LR): One way to define mindfulness is that it is a way of paying attention moment to moment without judgment to whatever is going on in the mind and in the body — including thoughts, physical sensations and emotions. In other words, mindfulness means being aware without judgment. Let me add that one cultivates mindfulness, or the ability to be mindful, in meditation and then brings a mindful perspective or awareness into everyday life.
LL: What are the benefits of mindfulness?
LR: There are all kind of benefits that usually flow from the practice of meditation. People usually feel more calm and are able to develop an understanding of themselves and how their minds work. Meditation also helps people to understand other people. Also, people generally feel better both psychologically and physically from doing this practice. Meditation is a way to reduce the suffering in life by developing a different relationship to stress — you don’t necessarily get rid of stress but it doesn’t have as strong an impact. Meditation also helps people deal with some kinds of health problems and other kinds of difficult situations. People feel better because they have a different relationship to the suffering that is going on — they have a certain distance from their symptoms and hold them in a spacious way so that they don’t suffer from them as much.
LL: In your view how does a mediator help to resolve conflict?
LR: This is a very hard question. It seems to me that there are many ways in which mediators can help resolve conflict, and that we don’t all do it in the same way and probably none of us do it in the same way from session to session and mediation to mediation. One way that some mediators contribute to resolving conflict is by the quality of their presence. Daniel Bowling and David Hoffman have written about this. Sometimes the mediator has a certain peacefulness that can be contagious and affect other people’s consciousness and state of mind. Mindfulness can contribute to this peacefulness. Mediators can also help resolve conflict by giving people a chance to talk and to examine what is going on in themselves, and helping them to understand each other. Sometimes mediators help people resolve conflicts by telling them what to do, or telling them what courts would do, or indirectly pushing them or encouraging them to go in certain directions. Sometimes mediators help people to develop an understanding of each other’s situation and of the options, and when that happens, solutions sometimes simply come into people’s awareness.
LL: How can practicing mindfulness help a mediator to perform better?
LR: In a number of ways. One, it helps to avoid the problem of reacting out of habit. We can become aware of our habitual ways of conducting ourselves in a mediation so that before we act we can notice our impulse to act, and decide whether or not to carry through on the impulse. So, for example, if a client begins to raise his voice and the mediator begins to feel anxiety, the mediator’s normal reaction might be to insist that the client lower his voice. However, if you are really mindful, you can notice the anxiety come up and the impulse to quiet the client. Based on this awareness, you would be able to decide whether you want to carry through on the impulse to quiet the client or decide to release your own anxiety. In other words, if you are aware of the anxiety, sometimes that awareness without judgment is enough to cause the anxiety to dissipate and to have less power over you so that you are able to decide to let it be. Similarly, you could do the same thing with your impulse to react in a certain way.
So for a mediator I think it is really important to not react according to preestablished ideas about how a mediator ought to behave because the process is so dynamic and each mediation is so different and each moment in a mediation is so different from every other moment in the mediation. To do a good job, a mediator must be present from moment to moment.
Another problem is that it is very easy to be distracted by thoughts that have nothing to do with the mediation. For some of us, many of the distractions are thoughts about ourselves. For example, something from our personal or professional lives could come into our minds and make it hard to focus on what is going on in the room. It could be that we have an aversion to a particular party in a mediation that makes it difficult for us to pay attention. For example, I had a mediation in which I developed an aversion to one of the parties. Once I started to notice the aversion, I was able to let it go instead of getting caught up in how much I disliked the party. I was able to notice that I was having that reaction and just let it be there. I didn’t let my reaction to the man control what I was feeling. The other thing that happened in that mediation was that I began to hear a voice in my head saying “You don’t know what you are doing right now. These people think that you are an expert, but in fact you have no idea what to do next, and they are going to realize that soon.” While these thoughts were in my mind I was not paying attention to the parties, so that the self-centered thoughts became a self-fulfilling prophecy. I was mindful enough after a while to notice that this was going on and to bring my attention back to the parties. But it is easy to get mentally pulled away. And with mindfulness you have a better chance of catching it.
(In Part II of this article, Professor Riskin talks about mindfulness resources for mediators.)