PBCBA BAR BULLETINS PBCBA Bulletin - February 2020 | 页面 5

ADR CORNER
Calm, Control, and Common Sense: How Mindful
Meditation Can Lead to Mindful Mediation
ADAM MYRON
I am going to ask you to do something
counterintuitive: when you get to the end
of this paragraph, stop reading and close
your eyes. Slowly take three deep breaths,
inhaling fully and exhaling fully. Then
resume a normal breathing pattern and
with each breath, count upward until you
reach the number 10. If you start thinking
of work, or what you’re going to have for
lunch, or something else, that’s fine; notice
the thought for what it is, but try to return
your focus to your breath and resume
counting. Once you have completed this
exercise, return to this article. Are you
ready? Get set. Go.
…
Now take a moment to explore how you
feel after engaging in that exercise (which
is just one of many ways to engage in
mindfulness meditation). Studies show
that regular practice can help reduce stress,
regulate emotions, and increase awareness
and self-control, and I suspect that you
feel calmer and more focused than you felt
a few moments ago. I am convinced that
the physical, psychological, and emotional
benefits of mindfulness meditation can
lead to better outcomes at mediation .
In mediation, there are typically four kinds
of participants: parties to a dispute, legal
advocates, insurance claim representatives,
and mediators. As human beings, they bring
to mediation their own perspectives, biases,
and emotions. For the parties on each side,
passion frequently runs high, compassion
frequently runs low, and judgment is easily
clouded by ego, perceived past slights, and
the general stress associated with being
in an adversarial proceeding. Enter the
mediator, whose job it is to impartially
facilitate the conflict resolution process.
Under such circumstances, how can
everyone increase the likelihood of finding
common ground? By trying to remove
the impediments to clear thinking: ego,
indignity, and stress. And what is the
easiest way to achieve that end? By seeking
the benefits of mindfulness: increased
awareness and self-control, regulated
emotions, and reduced stress.
To
those
who
are
unfamiliar
with
mindfulness, this may seem hard to believe.
But to regular practitioners, the correlation
between mindful meditation and mindful
mediation should be obvious because
the primary effects of mindfulness –
reflective thinking, controlled emotion, the
engagement of higher thought processes,
and consideration of outside perspectives
– are essential to rational negotiation.
Indeed, few things are better for
settling differences than understanding
other people’s thoughts, feelings, and
perspectives. It has been suggested that
a successful mediation occurs when each
side walks away equally unhappy. I do not
subscribe to that theory. Instead, I believe
that mediation participants can take
positive steps to repair broken relationships
and find common ground. I also believe
that through mindful mediation, where
the participants are calm and controlled
and use common sense, subtle shifts in
perspective can transform zero-sum game
negotiations into opportunities for mutual
gain.
As an illustration, imagine that two children
are arguing over an orange. The first child
claims she should have the orange because
she was the one who found it. The second
child argues that the orange should be his
– after all, it was his idea to play outside,
and if he hadn’t made that suggestion,
the first child wouldn’t have found the
orange. The first child can’t believe that the
second child isn’t familiar with the age-old
principle of “finders keepers”; the second
child can’t understand why the first is so
self-righteous.
thinking. Understanding the children’s
values, the mediator then asks if their goals
could be achieved by peeling the orange,
giving the first child the entire fruit to eat,
and giving the second child the entire rind
to use for the cake. Seeing the opportunity
for each of them to walk away with a better
outcome than if they had split the orange in
half, the children decide to settle on those
terms. Moreover, because each child does
not feel that anything was sacrificed for the
other’s gain, their long-term relationship
does not suffer.
Though obviously less complex than some
high stakes negotiations, this story teaches
an important lesson for any negotiation:
slowing down, keeping a cool head, and
taking emotions out of high pressure
situations can lead to better outcomes
for the parties. In that way, achieving the
benefits of mindful meditation can lead to
more mindful mediation.
Adam Myron is an attorney with the law
firm of Day Pitney LLP, where he focuses
on complex commercial and business
litigation, trust and estate litigation, and
professional liability litigation. Adam is
also a Florida Supreme Court Certified
Circuit Mediator and a Florida Qualified
Arbitrator. You can email him at amyron@
daypitney.com.
For additional ADR tips and resources go to
http://www.palmbeachbar.org//adr-2.
The children finally decide that the only
fair way to resolve their differences is to
split the orange in half between them.
Before they do, though, a mindful mediator
intervenes. The mediator asks the children
to explain why they want the orange, thus
seeking an understanding of each child’s
values. The first child says she is hungry.
The second child explains that he needs
the orange to bake a cake.
By this point, the mindful mediator will have
ratcheted down the tension and injected
into the situation a sense of calmness and
structure – necessary elements for rational
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