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Interview with Ken Cloke: Mindfulness And Commercial Litigation

In the Spring of 2005, long-time commercial litigator and new mediator, Victoria Pynchon, engaged in a series of conversations with mediator and author Kenneth Cloke, (whose new book, Into the Heart of Conflict, will be published in May of 2006), about the application of mindfulness to the mediation of complex commercial litigation.

“Mindfulness,” according to Cloke, is

“simply a means cultivating a capacity for being present and aware of what is happening inside you, while at the same time developing awareness of what is happening inside others. It includes the experience of relationships as malleable and subject to transformation at any moment. A commercial mediator exercising mindfulness practices a type of concentration that gives rise to insight and creative intervention techniques. Whenever we allow ourselves to hear at a deep level what the other person is saying, credit it, discover its meaning, and give ourselves permission to present that meaning in the form of a question to the parties, we are using mindfulness to inform the mediation process.”

K Thanks for inviting me to this interview. I think of commercial litigation as one of the least fruitful areas for mindfulness, because the focus of counsel is usually on the financial aspects of the litigation. That encourages them to engage in ordinary distributive bargaining. That doesn’t mean we can’t learn something important by exercising mindfulness, or that mindfulness can’t be a source of useful insights and technique.

V I understand that viewpoint. I can tell you, however, that my colleagues and I have been frustrated for years with mediators whose only trick seems to be cutting the baby in half (or quarters or eighths). While most of us did not think in terms of “distributive” or “integrative” bargaining, we knew we weren’t getting the value we were looking for from mediation.

Most of the commercial cases I litigated in the last decade of my practice were “bet the company” cases – cases all the parties could afford to litigate for five, ten, sometimes even fifteen years. Although we were, of course, preparing these cases for trial, I think we all knew they would settle. Because most of these cases do settle, I wonder whether we should be preparing them to settle and whether that preparation is fundamentally different from preparing them to try. And if we can be bold enough to imagine re-inventing the system, I wonder whether we could halve the cost by “working the cases up” or “discovering the cases” or even “litigating” the cases collaboratively instead of adversarially.

K So let’s back the whole problem up and ask ourselves: What is the best way of resolving commercial disputes? And then let’s back the problem up even further, and ask a more basic question: What does mediation contribute to resolving disputes in general? First, we have to understand that mediation is fundamentally a law-designing process, in which the parties are empowered to craft their own set of rules and figure out how they want to implement them.

There is a whole series of problems with the entire project of commercial litigation that stands in the way of that law-designing process. In the first place, the law only looks backward, to facts and precedent. It is not intended to creatively imagine or design the future. Second, the law is not very good at informal problem solving, teamwork, or consensus building. Third, there are only two sides in a dispute, which are polarized, and between them, only one can win. Fourth, the law can’t acknowledge, explore, or work effectively with emotions. Fifth, the legal decision makers are always somewhat removed from the problem and know less about it than those who directly experience it. These are just a few of the limitations the law places on mediation as the preferred dispute resolution mechanism. The law ultimately ends up making it far more, rather than less, able to settle a dispute creatively.

V Are there options we have not yet considered?

K Absolutely. The first option is creating a form of mediation that permits results that are significantly different than those that litigation can deliver. The most well known form is the settlement conference. Settlement is, of course, often better than trial because it encourages compromise and puts control of the result back into the hands of the parties.

V But in these complex commercial cases, settlement conferences generally don’t take place until you’ve driven your litigation-Humvee to Iraq and back again.

K Exactly right. With settlement, there are only two dimensions with which the parties can solve the dispute. These dimensions define a plane or surface on which all problem solving conversations take place. That plane consists of each side’s positions and all the places where those positions can intersect. Because there are only two fundamental determining factors, we can speak of settlement as a two-dimensional process, which can only result in a victory for one side and loss for the other, or in a compromise. Any location on this two dimensional surface must consist either of my position, or yours, or someplace in between.

As soon as we add a third dimension, we provide depth to the problem solving conversation. What is meant by a third dimension in conflict resolution? In my mind, it consists either of the parties’ interests, or their emotions, or some mixture of the two. Gaining access to this third dimension allows us to move the parties’ conversations in a significantly new direction. It gives us an additional degree of freedom. And this extra degree of freedom allows us to reach beyond settlement based on compromise to resolution based on satisfaction of interests, or acknowledgement of emotions.

Mindful mediation addresses the underlying reasons for the dispute that resulted in people taking the factual and legal positions that are subject of the lawsuit. Its focus is on what is happening to the human beings involved in the dispute — to the people who hold the positions. These people have unresolved emotions, unmet needs and desires that often prevent them from talking freely about creative means of resolving their conflicts. Mindfulness of this fact can help anyone – including high-stakes commercial litigators- representing corporate interests resolve their disputes and create a deeper level of participant satisfaction.

V In complex commercial litigation, the people with positions – and emotions – are often the litigators. The institutional clients may have positions but their emotions are rarely in play – or at least not entirely visible to their attorneys. Very quickly, litigation involving tens or hundreds of millions of dollars becomes the psychological property of the litigators. They nurse it. They develop it. They direct it. They identify with it. They show it off. In a way, they come to love it. They are also constantly translating the litigation back to the client in the kind of terms a parent translates their child back to the teacher – putting a positive spin on the lawsuit-child’s ability to prevail against all comers.

K One dimensionally.

V Perhaps. Many mediators say their job is to transmit bad news to the client that the litigator can’t deliver. That news is generally that the lawsuit-child’s potential isn’t all it was cracked up to be in the first place. In the course of its life, the lawsuit-child has grown and changed. Sometimes it falls off its bicycle and is injured. Other people are given the opportunity to influence it or damage it. In its pre-trial adolescence, it is rarely the same litigation it was when it was newly delivered into the world.

K This suggests another problem. The parties might be able to negotiate a solution to the dispute and resolve their emotional issues, but their attorneys can’t. The attorneys cannot resolve their emotional issues because there is no place for them to authentically engage with one another. Rather, attorneys are trained to avoid authentic engagement, because that might entail weakness or surrender. So they think they need a judge to decide, or a mediator to come in and twist arms to get them out of their predicament.

V My colleagues do not want mediators twisting their arms. Now that I’ve been mediating for awhile, I think of mediators as training wheels for lawyers learning to practice collaborative law. In the perfect distant future, mediators won’t be needed because the attorneys will collaborate without training wheels. Collaborative problem solving will ultimately be seen to be in everyone’s best interests.

K That type of problem solving is also in the interests of justice. Justice and law are contradictory systems. You can’t have justice without recognizing people’s underlying interests. Artistotle, for example, defined justice as “someone else’s interests,” though I believe justice occurs when one party’s interests combined with the other party’s interests are satisfied.

V Other mediators tell me you can’t resolve those emotional components in litigation because the attorneys need to keep the case open long enough to wring some value out of it for themselves. I think that’s a cynical, and disrespecting point of view and it’s not my experience as a litigator.

K Let me suggest, however, that attorneys sometimes derail non-monetary solutions because they need to justify the cost of litigation itself or to maximize the monetary value of the case because they are working on a contingency fee

V That may be true, but I don’t think this is strictly the problem of counsel. By the time the parties get to mediation, everyone has expended either money or its equivalent – particularly time, energy and emotional capital. In a small business case I recently mediated, for instance, no settlement could take place until the businessman whose goods were stolen from the defendant’s warehouse could finally set aside his unrealistic expectation that the law would make his loss “whole.”

K What happened in that case?

V Counsel did ask me to be the bearer of bad news, sending me in to speak to his client about a settlement figure he thought was reasonable but that he couldn’t convince his client to accept. Toward the end of our conversation, after we had discussed the unfortunate fact that some losses have no remedy, the plaintiff had tears in his eyes. It was only later that I realized he was experiencing the loss of his goods (and the business opportunity in which he had invested his time, money and energy) for the first time. Before that moment, he still believed he could “win” the litigation and recover everything he’d lost. He was still, however, not ready to settle because he had not yet had the opportunity to mourn that loss. I asked defense counsel to leave their offer on the table because I believed the Plaintiff would be ready to accept it within a week or two. And sure enough, he did.

K But here’s the real point of your story. How did you reach that part of the conversation where the businessman came close to tears?

V Talking about loss. He kept saying, over and over again, that he should be able to recover his out of pocket losses, at a minimum even if he could not recover the profit lost or his attorney fees.

K So let me tell you how I think you reached the heart of the conflict. First, your businessman repeated the same grievance several times. That meant it was important to him. Second, you probably heard a tone of voice indicating strong emotional content, which meant that the impasse in the negotiation was embedded at that spot. That was where it was buried. You realized, consciously or not, that if you dug a little deeper, you might discover something that was actually important. Third, I suspect you exercised empathy about his loss, meaning that you felt for the answer within yourself. And finally, you took a risk by communicating honestly with the client about the lawsuit being unable to restore his loss. How did you get to a place where you were able to do those things?

I think that mindfulness increased your ability to entrain yourself with the party so that he would open up and tell you the truth about what the dispute really meant to him. The point is that you got there, and how you got there is connected with mindfulness, which has a lot of other components to it.

V. But we’re still dealing with people, not the corporate clients who made up my litigation practice. Let me give you an example of protracted litigation in which the attorneys didn’t even broach the subject of settlement for more than five years. When we had the first settlement conference, the Plaintiff’s counsel came to our office, as did the other defendants, to discuss settlement. It was a very short meeting. In response to the Plaintiff’s first offer, my partner smiled and said, “and that would be in lira?” He didn’t mean to offend the Plaintiff – not really. He’s just the kind of guy who’s quick on his feet. Funny. But the Plaintiff didn’t find it funny. Plaintiff’s representatives got up and left. And they refused to discuss settlement again until two months before trial – more than five years later. A single remark caused the parties to move to the highest level of conflict escalation – what my social psychology professor calls “autistic hostility.”

K Their walking out was probably based on their perception that the remark was intended to be insulting, and it may be that your friend really did feel insulted by their offer and meant to communicate that idea to them, or that they knew their offer was too low. In Jokes and the Unconscious, Freud identifies the “stiletto” that is concealed in such humor. Later, he might have apologized for the remark and reopened discussions. Or, a mediator might have deepened the discussion by asking them before leaving to say how they felt, and stick around to find out if that was in fact what he had intended.

In mediation, we need to start small, and begin by working with people wherever they are at. Yet we also need to create a perspective that the process is capable of going so far beyond the parties’ expectations that they can’t conceivably imagine it, but will intuitively recognize the truth of it when it happens. And they’ll begin to move in that direction because we have carved out something that is both beautiful and coherent – a vision of what this process can really be.

V I like that. It’s like the principle in diplomacy where you create a vision of the future and then go back and say what would have to be in place in order to get there.

K Exactly. You can use ordinary strategic planning principles to do this, as I‘ve done with lots of groups. Here is another illustration. It is well known in psychology that money is not just money. It is also a deeply psychological metaphor for almost anything you can think of. In any commercial litigation, money is obviously important, but it is not necessarily the cash, but what it is able to do for the person who receives it that counts. So the question is . . . what is the meaning of the money to each person? Simply introducing the idea that money has meaning and that different people attribute different meanings to it opens a doorway to a new dimension of conversation. Money for some people means filthy lucre, for example. For others, it equals respect, or honor, or security, or self-esteem, or a life together, or a recognition of how much they have suffered.

V Isn’t money about attainment? Isn’t it the prize?

K Sometimes. It can also represent a recognition by the judge or jury that one party was not the one who was wrong; or that something was too painful for anyone to tolerate without a public and formal acknowledgement that he suffered. It can have all of these potential meanings and more, because money is equal to everything that can be bought. In order to find out what money actually means, you need to listen closely to people, as you did in the mediation you described. You can also find out by listening empathetically within yourself, and recognizing what it might mean to you. At the highest level of skill, this includes following up by asking a somewhat risky question that incorporates this information and invites the other person to reveal what lies beneath the surface of the dispute and engage in a deeper conversation.

Once you have moved away from the idea that money is only money, you have also moved away from the zero sum game. It’s no longer a pie we’re discussing: it’s also a piece of cake and a bowl of fruit and a series of other things, so we can begin to ask questions that provide flexibility and offer options that didn’t exist before. That’s one part. There’s another part. This is a little more difficult because in most of the commercial cases you’ve described to me, there is an institutional or organizational client that doesn’t actually exist, and whose metaphors do not have any precise personal meaning. It’s a little like the emperor having no clothes.

V A little bit. There is a person who represents the corporate client. And those people do have their own personal stake in the litigation. They are embedded in the organizational structure of the corporate client, which is a whole civilization with its own structure, governance, rules, and folkways.

K Yes, but the corporation itself doesn’t actually exist. There is no General Motors. It’s a legal fiction. It’s a group of people who are interacting with one another under the name of General Motors. But the General Motors of today is totally different from the General Motors of ten years ago. And, at the same time it appears to be identical. So, one of the problems that emerges from the nature of the corporation is that it is simultaneously being defined as a legal entity, or a legal “person,” while lacking any true attributes of a real person.

V Everyone behaves as if it exists as a single unitary entity. But each person within the corporation has a different mental representation of it; a different emotional resonance with the thing that doesn’t exist and they’re all different. Each of those individuals also has something to lose – a different something – if the case does not go well. Can’t we use mindfulness in reaching the interests of those people – the ones whose livelihood depends upon their continued success in managing the business or supervising the litigation.

K Yes. I think you can. But we need to talk about the entire project of helping people come to grips with their conflicts and learning how to resolve, transform and transcend them more deeply and skillfully.

V And we start from a system that is highly formalized, very procedural, based in the past, not terrifically good for problem solving, doesn’t recognize emotional responses and we want to take that system and the people who operate it or who are operated by it and give them a vision of a means of doing the same thing in a way that is both unimaginable to them and irresistible to them at the same time.

K There are two possibilities. One is that the entire legal profession will “morph” into a higher, more evolved level of problem solving and functioning. The second is that there will be a branching, and that there will be a continued need for what people in the legal profession do, which is to apply coercion to resolve conflicts that should not be resolved by force and cannot be resolved by consensus. In mediation terminology, force corresponds to power, the legal process corresponds to rights, and mediation is based on interests and requires consensus, meaning that the object is to reach a point where people can successfully resolve their disputes without being forced or coerced into doing so.

V By being …[??]

K By discovering the hidden nature of the dispute. And by hidden nature, I mean two things. The first is what their conflict actually means to them – which requires a consideration of their interests and emotions. The second happens at an even deeper level, which is this: every conflict we experience in our lives occurs at the intersection, or crossroads, between problems we now need to solve in order to grow, and skills we do not yet possess. So, for example, there are no two year olds who experience conflicts over romantic love, because romance is not yet on their agenda, and there are no ninety year olds who have conflicts over who gets to play with the blocks. With each level of growth and development, we experience fresh conflicts and at the same time transcend old conflicts that we not only successfully resolve, but develop the skills to move beyond. Helping people experience transcendence and evolve to higher levels of conflict and resolution is what I mean by the capacity of this field to do something really miraculous, something that is beautiful, but has an underpinning of logic and rigor.

V It can work in a system as well as between two individuals.

K Right.

V And yet we’re so far away in reaching that with two individuals. It’s hard to imagine we’ll ever get there.

K We’re closer than we imagine. Here’s a question I like to ask in mediation trainings: How far apart are people in conflict? There are three correct answers.

V Impossibly far apart, just about to resolve it, and resolved?

K Very close. The first answer is an infinite distance apart because they can’t communicate at all. The second is that they are no distance apart because they are inseparable and can’t let their conflict go. And the third answer is that they are exactly one step apart, meaning that if they take one step in the right direction the conflict will be completely resolved. And we are far away from having developed the understanding, skills and ability to systematically deliver that level of dispute resolution. But it is something that happens often enough to a large enough group of mediators to suggest that it is more than an accident, and when we experience those transformational moments we want more of them.

V Recently, I co-mediated a sexual molestation case between a young woman and her Free Clinic physician. Talking to each party in separate caucus, it quickly became apparent to both of us, that there had been a massive misunderstanding about the physical examination. The patient genuinely experienced the exam as a sexual assault and the physician genuinely conducted the exam within the standard of care – albeit ungracefully. The insurance carrier was determined to take the case to trial – offering to settle only for a waiver of the substantial costs incurred. The carrier threatened to take and pursue collection of a judgment against the plaintiff (a working class single mother of two) if the case went to trial. It was apparent that whatever the outcome a terrible injustice would result from trial.

K So in this case, there were undeniable losses on both sides – emotional losses for the parties; financial loss by the insurance carrier; and, potential financial loss by the plaintiff. There is also, of course, the plaintiff’s attorney’s expectation of recovering his fee for work performed – also a loss. There are multiple ways of addressing losses in society. One of these is for everyone to get together and restore the loss for the person who suffered it.

V Which is what insurance is supposed to do.

K That’s what it was originally supposed to do, but it has become something completely different. The insurance company is actually in two businesses at the same time. The first is to earn money, to make a profit for its owners and shareholders; the second business is insurance, meaning paying on claims of loss. But these two businesses are in conflict with each other. There is a conflict of interests because the company will earn greater profits by not paying claims. This is a fact, but it is one we haven’t yet addressed or resolved, that creates a stimulus to different kinds of conflict. This is what conflict resolution systems design can help us analyze and rectify, once we expand its applications. Systems design can be used not merely by going into an organization or workplace and showing how to provide mediation or arbitration options to resolve employee conflicts. More deeply, systems design principles can be used to identify the systemic sources of conflict, then look for solutions to those problems in any system. It allows us to think of conflicts not as single events, but as a stream of disputes generated by the dysfunctionality of the system itself.

V When we first talked, my sense was that you weren’t really excited to talk about improving the legal system.

K I am in favor of improving it to the extent that it can be improved.

V You were not optimistic.

K I think there are some clear limits to the kinds of changes we can make to the legal system because – at its core, as a system, it is inevitably focused on events that have already transpired, and on avoiding the expression of intense emotions, because part of its purpose is to reduce or eliminate the violence that often accompanies private problem solving. But mediation is a newer, more collaborative form of private problem solving that is able to leap-frog over these limitations. So I’m all in favor of the law becoming more collaborative

I don’t think we should shackle mediation with limitations and assumptions that grew out of an entirely different process that was designed to perform an entirely different function. The original purpose of the law was to oppose tyranny and oppression, and it did so by opposing private recourse to power, and by using public power and rights as a means to resolve disputes. That is what it was primarily meant to do. As I’ve written in a chapter in Mediating Dangerously called “What’s better than the Rule of Law,” the law can’t plan ahead, respond to intense emotions. It can’t sing or dance or be playful or curious. It has an agenda, and what works best in mediation is to have no other agenda than what flows from the interest of the parties.

V Which is something that the law prevents.

K Or is simply not set up to handle. What actually happens in mediation is that people create their own laws.

V Well that’s what I want to do because I still want to get to something beautiful and coherent. I’m not leaving today without beautiful and coherent.

K O.K. Let’s talk about your sexual assault case. Here are the problems standing the way of an elegant solution. One is that the defendant’s insurance carrier — legal fictions aside — is not a person. In fact, corporations were historically designed to transcend legal responsibility and immunize against personal responsibility. So, it’s difficult to reach the empathy of the parties to your lawsuit because, at a corporate level, the ultimate payor – the corporate insurance carrier — does not exist. And can’t.

V But they do exist. Through the people who inhabit them.

K But only the people, not the corporation.

V But the corporation can only act through human beings.

K Exactly. But when those human beings respond as human beings, are they acting in their corporate capacity?

V They can do both in determining their best alternative to a negotiated agreement. The alternative – a jury trial – requires them to present their story to a jury – indisputably comprised of people who are going to decide who should prevail based upon their very human reactions.

K Correct, and in that area. . .

V You can justify being human. . .

K You can not only justify it; you can elicit and magnify it, you can take portions of the Plaintiff’s story, accentuate them and present them as compelling, because it is a human story that has the power to touch any human being within reach. And you can tell that story to opposing counsel and hope that the human being wins out over the financial interests of the fictional being – the corporation.

V So what’s the solution?

K Fortunately or not, the solution requires not just minor personal changes, but massive social change.

V Okay, well give me massive social change.

K It used to be, on the American frontier, where the law had not yet reached and insurance companies were unformed or unavailable, that neighbors would get together and help rebuild the homes of neighbors that had been destroyed by fire. A beautiful and coherent solution would be that all her neighbors would get together and rebuild her house. The more neighbors, the lower per capita cost of rebuilding it. That would be an elegant and beautiful solution, but to get there a number of social changes would have to take place.

V In an urban atomized society the neighbors don’t get together.

K All means of compensating people (or corporations) for injury are designed to spread the loss more evenly throughout society. We do this mainly through insurance. Insurance companies socialize one person’s loss by spreading it around to other people who have purchased insurance who haven’t suffered a loss. This is a privatized method of spreading the loss that allows the company to make a profit by selling more insurance than it is required to pay out.

V What about the legal system’s focus on affixing blame to a unitary cause.

K I think a central purpose of all legal systems is to assign blame, but in doing so they generally assign blame to only one of the parties.

V That’s why we end up in a distributive bargain.

K Right. It’s not as good as identifying both parties as being to blame, or better yet, that no one is to blame and moving beyond blame altogether.

V What I’m hearing you say to me is we need to stop assigning blame. That it’s not so much about accountability. It’s about how society should take care of its members who are harmed. But then we’re off the planet. We no longer care that we have our feet on the ground.

K It’s important to have our feet on the ground. But we need to make sure it is real ground, and real ground, I think, is defined partly by values. One of the values that flows from mediation is that blaming people is counter-productive. It doesn’t help, often gets in the way, and makes us defensive. It encourages us to blame someone else for our problems. So, mediators are trained in methods of sidestepping the blame game. Every judge – and I’ve been a Judge so I have a personal sense of this — is asked to make decisions according to legal principles, and what lawyers try to do is influence the judge emotionally by characterizing the other side as at fault and themselves as blameless. But, fundamentally, the argument is “this person did something wrong and therefore should be punished.” Or “my client did nothing wrong and therefore should not be punished.”

This is an area in which the law is able to be true to the principle that decisions should be made rationally, without resort to whether anyone is at fault. In principle, we ought to be able to make an abstract determination whether a particular kind of harm is of the variety that justifies compensation or not, without regard to the personal innocence of the one who did it, or is claiming it.

V Right, but Judges are people and we’re incapable of doing that.

K Exactly right. In doing so, the law asks judges to suppress their emotional intelligence.

V So, now I’m feeling hopeless again.

K Oh, I don’t think it’s hopeless at all.

V But I’m trying to stay in the system.

K That’s a perfectly legitimate and valuable thing to do. And my view is that there will probably always be some role for legal adjudication. But there is no reason to “legalize” the mediation process or make it “safe” for litigation. By doing that, we strip mediation of a significant part of its power.

V Ok

K That’s what I mean by the beauty and the coherence of the mediation process. When I speak about beauty I’m actually thinking about symmetry. And there is symmetry in conflict. Hidden symmetry. It is quite extraordinary. On the simplest basis, there is polar symmetry, meaning that opposites are connected along the line of their opposition. So on the one hand there is opposition and on the other hand there is connection. Hot and cold are connected along a line of temperature. Large and small are connected along a line of size. And everyone in conflict is connected along a line of meaning. That’s a physical symmetry.

V Ok

K In addition to physical symmetry, we can identify an emotional symmetry in the meaning of important issues to the parties. For example, money may mean one thing to one person and something completely different to another person. Yet when we open a conversation about what money means to you; we discover that there is a possible connection between them based on meaning.

V So what is the next step?

K The next step beyond is one in which people create their own laws; in which we meet to discuss our interests and negotiate a settlement of their disputes without resort to a judge or arbitrator imposing a decision on them. Where it isn’t possible, then of course you need to have litigation and rights based processes as a backup. As Bill Ury, Steve Goldberg and Jeanne Brett pointed out in their book, Getting Disputes Resolved, the point of conflict resolution systems design is to arrange alternatives from interests to rights to power and from low to high cost, so the first thing that happens isn’t even mediation, it is informal problem solving and conversation. Then it becomes collaborative negotiation and when that fails you have a third party come in. So mediation is not really the best solution, but the next-best solution.

V That seems intuitive to me. Unfortunately, in cases like my sexual assault case, lawyers are trained to – and do – open the conversation by making a demand and threatening suit, which elicits a refusal and challenge to file. Litigation follows and the battle is joined before the parties have a chance to talk it out. The talking – the collaborative problem solving – now comes last instead of first. So we’re doing it backwards, right?

K Well actually we started with fisticuffs. That’s really where it began. So, in the beginning someone would have just taken something that belonged to someone else. And in order to prevent that from happening, the people who owned the things that were taken developed institutions based on power and rights to insist that their property be returned. They then created a neutral system to determine who it really belonged to based on a set of ethical and philosophical principles that were theoretically governed not by personalities or emotions or who had the most money. But, of course, because rights are limitations on the exercise of power, they only exist to the extent those asserting them have power. So there is always going to be a battle between those who want to roll back rights and those who want to extend them. We’re now in a period, as a result of September 11th, in which the Patriot Act has rolled back rights we previously had. And there is a debate over whether that is the right thing to do. But the point is that you only have rights you are capable of enforcing.

V But aren’t these systems always going to exist simultaneously?

K Probably.

V So you are talking about moving a greater part of the innumerable disputes between people and people, and people and institutions, and institutions back towards harmonious discussion first and then assisted discussion.

K Let me say it this way. We have developed mechanisms for resolving disputes by accretion rather than by design. We tried something and used that and then built on it and evolved it and then corrected it and then added on something extra. That is one approach, and it’s the historical approach that we have taken. But it is also possible to take a slightly different approach from the perspective of social design, and ask what would be the best way of resolving, for example, disputes involving rights to intellectual property such as music or films or the design of popsicles.

V Well, let me tell you what happened in the sexual assault case. After three hours of negotiation, my co-mediator and I talked directly to the physician in the presence of the carrier representative and defense counsel. We told him that if he prevailed at trial, his insurer intended to pursue and execute on a cost judgment against Plaintiff that she couldn’t possibly pay. It intended to then garnish her wages, ruin her credit and engage in every other activity necessary to collect the judgment from this single working mother of two children. The physician was very public spirited – had been working in a free clinic as you’ll recall – and spent a great deal of his energy working to improve the lives of low income people. We told him that we believed he was about to take part in a trial that would inevitably result in a terrible injustice, causing incalculable emotional harm to either him or his former patient for no good reason. The physician then turned to my co-mediator and asked whether the plaintiff was “sincere” in her description of the harm she felt she suffered to which he replied in the affirmative.

K And what happened?

V That was the end of the conference and though we invited the parties back, we did not expect to see them again.

K Did you see them again?

V Yes. The physician apparently left galvanized by our conversation and dedicated to doing something about the impending trial. It was clear that he was awakened to the fact that no one could “win” or have any satisfaction by going to trial. It’s like you always say – at some point they realized that drilling a hole in the other side’s half of the boat would sink them all. I don’t frankly know what they did or said to the insurance carrier, but the carrier came back with the parties and defense counsel with an offer to pay the Plaintiff money – an offer we were told was against advice of counsel and against the advice of the insurance carrier. The case settled and everyone – the plaintiff; defense counsel, the insurance company representative and the physician seemed pleased.

K –Wonderful. Isn’t it extraordinary that mediation – even when it appears to be dealing with an inevitable pre-determined bureaucratic decision by an insurance company – has an innate capacity to remove the blindness and boundaries conflicts generate and reveal our essential humanity and interconnectedness? This happened in your example not merely because you exposed the economic links that joined the parties and were creating painful consequences for each of them, but because you touched them emotionally, as human beings, because you made them more mindful of what they were doing to each other, and because you showed them how they might end their conflict without causing each other’s defeat. This is profound, but to me it is only the beginning of what we might do by bringing the power of mindfulness and “heart” into the practice of mediation and using them as sources of technique. This is the great promise of our work.


Victoria Pynchon

Attorney-mediator Victoria Pynchon is a panelist with ADR Services, Inc. Ms. Pynchon was awarded her LL.M Degree in Dispute Resolution from the Straus Institute in May of 2006, after 25 years of complex commercial litigation practice, with sub-specialties in intellectual property, securities fraud, antitrust, insurance coverage, consumer class actions and all… MORE >

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