A friend sent me this opinion and guest essay written by David Wolpe that was published in the New York Times on September 12, 2021. Wolpe's article resonated with me. Apology and forgiveness are powerful in mediation. Let me know if the essay speaks to you as well:
A friend of mine was publicly canceled. He deserved it and he knew it. He spent a year working with a rabbi and a therapist, during which time he tried to track down those he had hurt and apologize to them, often more than once. We can’t see inside one another’s hearts, but I believe in the sincerity of his change.
What I sometimes wonder — both in my role as a rabbi myself and as a denizen of our broader culture of accountability — is how my friend, or any one of us, can find a path back from shame to acceptance.
To answer the question, I turn to my religious tradition, which is predicated on the perhaps unfashionable belief that people can change. It’s a tenet that is especially on my mind as we approach Yom Kippur, the Day of Atonement, on which Jews fast, pray and ask forgiveness of one another and of God. Not everyone observes this holiday, of course. But in its practices, I believe there is wisdom that can help all of us navigate the sometimes unforgiving nature of our contemporary culture.
There will always be things we cannot fully forgive and people who do not deserve to be restored to good reputation. And forgiving someone does not necessarily mean readmitting that person to your life. In most cases, however, Jewish teachings insist that fair judgment does not require damnation. Judaism, like many other world religions, maintains that human beings are capable of transformation. For example, one of the figures of the Talmud, Resh Lakish, began as a bandit and became one of the greatest rabbis of the age. His conversion was fueled by the belief of another rabbi, Johanan, who saw potential in him. The more we believe in judging by potential, that what people do is not the sum of who they can be, the more likely we are to create a society that can help people move past shame.
Judaism offers a series of ideas and guidelines for how to cope with offense and foster forgiveness. On Yom Kippur, it’s traditional to wear white, not only because white shows the slightest stain, but to remind us of the shrouds in which we will one day be buried. We do not have forever; we must struggle to right our souls now.
If you have caused offense or harm, Yom Kippur does not magically buy you absolution. But the traditions surrounding the day do offer guidance for seeking forgiveness. First, you must apologize to those you’ve hurt, sincerely, as many as three times. The apology should not come weighed down with justification, but rather should acknowledge the other person’s hurt and express sincere regret.
Second, serious, sustained reflection is required to try to change who you are. The Hebrew word for repentance, teshuvah, also means return. To repent is to return to what once was, what became hidden through coarseness or impulse. It is also to return to God and to the community. But slow, careful restoration takes time. The one who is sorry today and expects to stride right back, unblemished, is naïve or conniving.
Third, you must change your ways. The sage Maimonides teaches that one who says to himself, “I’ll sin and then, repent” cannot be forgiven. Sorrow is not a strategy. It is a vulnerability and it is a promise.
And what if you are the one who has been hurt? Jewish tradition urges us to consider why it is so hard to forgive. There is a savage self-righteousness to public shaming. If I forgive you, truly forgive you, then I must restore moral parity; I am no better than you. Accepting that steals the satisfactions of resentment, but it is essential: Jewish law insists that once someone has been forgiven, you must never remind the person of that fact. To do so is to re-establish a hierarchy that true forgiveness disavows.
To forgive also forswears vengeance. When I have been hurt, I wish to see you hurt. There is both a personal and an abstract desire for justice: People who do bad things should be punished, and especially people who do bad things to me. We rarely admit to ourselves how often this desire to punish wrongdoing is a personal impulse in moralistic clothing.
It’s also worth noting that anger at others, even when merited, can be personally destructive. In the Bible, the words “You shall love your neighbor as yourself” (Lev. 19:18) are preceded by “you shall not bear a grudge.” As has been aptly said, to bear a grudge is to drink poison hoping the other person will die. It gnaws away at us, embittering the life of the hater. Forgiving your neighbors is one way of loving them, and learning to love yourself.
Public shame is a powerful and sometimes necessary punishment. In the case of my friend, it made him realize that the trigger for his anger was in him, not in the conduct of others. But it can also be brutal, and I believe that too often, lifetimes are remembered by their worst moments, and complex personalities reduced to their basest elements.
On Yom Kippur, as Jews all over the world confess our sins, we will beat our chests, a sort of spiritual defibrillator to get our hearts beating anew. The liturgy asks of the “court on high” permission to pray with those who sin.
And who among us is exempt from that group? I stand each year with a congregation of people who have hurt one another, families and friends and strangers and co-workers. Like my friend, all of us seek to be forgiven — for we are imperfect and striving and in need of love.
David Wolpe is the senior rabbi at Sinai Temple in Los Angeles and the author of “David: The Divided Heart.”
I am hoping that you would be willing to take a few minutes to vote for me in the Best of Arlington 2022 survey. Voting began on August 9th and closes on September 10th.
Arlington Magazine has included Mediator in its survey for Best of 2022. Thanks to your votes and your support, Little Falls Mediation won this category both times it was offered, in 2018 and 2020.
It is super important to me that I win for the third time, as winning Best Mediator greatly helps my small business to succeed and also helps prospective clients in need of mediation services to find me.
Anyone can vote as long as you give your name and email address, and vote in at least 5 categories. The survey is a write-in vote and not a check box.
Best of the Rest -- Mediator, Ellice Halpern, Little Falls Mediation
While I am not allowed to advise with regard to other businesses to vote for, I can provide the names of businesses in each category with which you might be familiar in the event you would like to support them:
Health -- Dermatologist, Courtney Herbert
Fitness and Beauty -- Yoga studio, Sun and Moon/Hair salon, Salon Sage
Home -- Real estate agent, Dawn Wilson
Shopping -- Gift shop, Trade Roots
Education and Family -- Tutoring service, Tutoring Club of McLean
Food and Drink -- Restaurant in Falls Church, Clare and Don's
Thank you so much for taking the time to vote for me. Your support over the years is greatly appreciated.
Click here to vote.
In negotiation, the two parties to the dispute are empowered: they have maximum control over the process and over the outcome.
Interest-Based Negotiation: William Ury and Roger Fisher talk about interest-based (also known as principled), or cooperative negotiation in their book Getting to Yes as a better way of reaching good agreements. This process can be used effectively on almost any type of conflict, whether the conflict is business or family related. The concept focuses on four points:
So interest-based negotiation involves trying to understand the other person’s viewpoint, actively listening to the other party, and thinking of each other as partners in negotiation rather than as adversaries. Explain your interests clearly and ask why the party holds the positions he or she does. Discuss these interests together looking forward to the desired solution rather than focusing on past events. Focus on shared interests. To invent options for mutual gain, brainstorm all possible solutions to the problem and then evaluate the ideas. Ask questions and reality test. And when interests are directly opposed, the parties should use objective criteria to resolve their differences.
Fisher and Ury also talk about having a BATNA at hand – the Best Alternative to a Negotiated Agreement. If negotiations fail, what do you do? The BATNA is the alternative course of action and the plan you are willing to execute if an agreement cannot be reached. Your BATNA gives you power while you are negotiating.
Positional Negotiation: Competitive or positional negotiation assumes that the purpose of bargaining is to obtain the best possible economic result, usually at the expense of the other side. The goal is to pay as little as possible if you are the defendant or to obtain as much as possible if you are the plaintiff. Negotiation is viewed as similar to litigation – someone must win and someone must lose.
The adversarial negotiation approach is a more aggressive competitive model. This approach may involve tactics such as: providing the other side with distorted facts that are beneficial to the competitor, asking for way more than you expect to get, using threats and ultimatums, applying time pressure, never saying yes to a first offer, flinching at proposals, withdrawing an offer, and using a decoy to draw attention away from the real issue. Theatrics are involved here.
What is wrong with positional negotiation? It does not tend to produce good results because the agreements reached tend to neglect the other party’s respective interests. Negotiators tend to focus on trying to “win” at the expense of generating better, long-lasting agreements and relationships.
Happy summer everyone! In the last six weeks four out of five of our kids graduated – two from college on May 1 and May 16, one from graduate school on May 6, and one from high school on June 15.
One graduation was virtual and we watched online, one was outside on a rainy and dreary day, one was inside and we wore masks, and one was held outside on a beautiful June evening. While our graduates were limited as to how many family members could attend graduation events, they were overjoyed to have graduations at all.
It is safe to say that all of our graduates are in a period of transition. Two are interviewing for jobs that are the right fit, one started working in northern Virginia at his first job out of college, and one is working two summer jobs while he prepares to enter college away from home. One child is moving to the Southwest and one child may be moving from a beautiful mountain state back East. We are going through our own changes as parents as well. I cannot imagine what life will look like in mid-August when our youngest packs up and moves into his dorm room – and then we drive away.
Feelings before and after graduation are complex. Students feel happiness and joy and a strong sense of accomplishment and pride. Yet they also feel anxious, fearful, grief, loss, sadness, and uncertainty. Graduations – and transitions -- are bittersweet.
To our Class of 2021 graduates: build resilience, stay positive, be empowered to live your life and, as John Legend told the Duke University Class of 2021, “Love should be your North Star. Let it guide you.”
I wanted to share the short piece that I contributed to the recent book created and edited by Michael Lang and Peter Nicholson. The name of the book is Family Conflict During A Pandemic: Stories of Struggle and Hope. It was published in May of 2021. The book is a follow up to the first book Michael and Peter created a year ago entitled Living Together, Separating, Divorcing: Surviving During A Pandemic. It has been wonderful to get to know Michael and Peter over the past year. Over 90 mediators and professionals from around the world contributed to the most recent book.
Courtney and Andrew met in college over two years ago. She is presently a senior at Colorado College and from Arlington, Virginia. He graduated from Colorado College in May of 2020 and is now living in Juneau, Alaska with his parents. They met when they were both studying abroad during college.
They started quarantining together during Courtney’s junior year in the Spring of 2020 when the pandemic first hit. Since only seniors can live off of campus, Courtney moved from her on campus dorm room into Andrew’s off campus house with his roommates and a girlfriend. Courtney says that Andrew has always had serious OCD issues, severe anxiety, and health concerns. The pandemic magnified these mental health concerns. Andrew also had no health insurance between January and June. Quarantining together was difficult, in part because Andrew was adamant that no one was to ever leave the house during that spring. He feared that going for a walk outside could result in death.
Andrew moved back home to Juneau after graduation in May of 2020. Courtney spent the summer in Arlington working two summer jobs. They kept in touch via texts, phone calls, and pre-arranged Face Time calls due to the four hour time difference. In October, Courtney went to visit Andrew and his parents after five months apart. She said that it was crippling to be apart from each other for so long. Courtney flew from Colorado Springs to Juneau and quarantined alone in the basement of the small family home for a week while trying to do online schoolwork with an unreliable wi-fi connection. She said that she could not even send emails or use Zoom due to internet issues.
Staying alone in the basement with no social interaction and no physical touch was brutal. Andrew and his parents stayed upstairs during the quarantine week. Courtney took three Covid tests at Andrew’s insistence. Juneau in the fall is cold and dark – the sun rises between 8:30 and 9:00 and sets around 4:00 p.m. After quarantine, Courtney and Andrew stayed in, cooked meals with his parents, took walks, went out for groceries, and slept at night in Andrew’s twin bed. Courtney longed for pre-pandemic normalcy where they could have gone skiing and hiking, spent time outdoors, had dinner with friends, socialized at coffee shops and bars, and spent time studying at the local library.
They spent the holidays apart. Courtney spent 20 hours flying from Arlington to Los Angeles to Seattle to Ketchikan to Juneau on January 27, 2021. She wore three masks on the plane and felt claustrophobic from the difficulty of breathing with all those masks in place. She says she has acne from the masks. She was afraid to remove her mask and eat on the plane, so she did not because others were snacking throughout the flights with their masks off. When she finally arrived late Wednesday night, Courtney felt awkward. She was desperate to touch Andrew but there was no hug, no kiss, no touch. Her expectations were set, though, from the October trip. She said it is pure torture to see Andrew in front of her but she can’t even see his face since it is covered by the mask.
Courtney went immediately down to the basement upon arrival into the house, and this time said she had to go crazy and yell at Andrew that he must come down to the basement with her for her quarantine week. He reluctantly relented and in turn, insisted that she wear a mask if his dog came down into the basement. His anxiety always goes through the roof right before she visits and when she first arrives due to his fear of getting Covid. It is hard for him to accept Courtney’s presence.
Andrew works for the state of Alaska, and Courtney has her thesis to complete. They will be working from home along with Andrew’s mom; Andrew’s dad is retired. Andrew’s parents are always in the house. Sunset is around 2:00 pm in January and the weather is cold and dark most days. Flooding is a concern in southeast Alaska and Andrew’s house has flooded several times.
Courtney says that pandemic life is hard wherever you are. She is an extrovert so the lack of social interaction is tough. She and Andrew have each other. The weather is too cold right now to spend time outdoors. She says that as hard as pandemic life is right now in Juneau, she made the journey because she is in a relationship with him and because he refuses to fly due to his severe pandemic anxiety. She says that she does love the beauty of Juneau. She plans on spending four to six weeks in Juneau and then will fly back to Colorado Springs to finish her senior year at the end of February.
Yesterday I taught my last Mediation class of the semester at George Mason University’s Scalia Law School. Karen Leichtnam joined us to discuss mediator ethics. Karen worked at Multi-Door Dispute Resolution in D.C. Courts for many years before retiring in 2020, and she held the positions of Civil ADR Branch Chief and Mediation Training Manager, among others. Karen hired me to be a mediator in D.C. Courts back in 2010. I’ve participated in many of Karen’s ethics training classes over the years at Multi-Door since mediators are required to be re-certified every two years by the Virginia Supreme Court – which includes completing ethics training every two years.
Karen reviewed key components of the Model Standards of Conduct for Mediators with my students:
1. Self-Determination: A mediator shall conduct a mediation based on the principle of party self-determination. Self-determination is the act of coming to a voluntary, uncoerced decision in which each party make free and informed choices as to process and outcome.
2. Impartiality: A mediator shall conduct a mediation in an impartial manner and avoid conduct that gives the appearance of partiality.
3. Conflicts of Interest: A mediator shall avoid a conflict of interest or the appearance of a conflict of interest during and after a mediation.
4. Competence: A mediator shall mediate only when the mediator has the necessary competence to satisfy the reasonable expectations of the parties.
5. Confidentiality: A mediator shall maintain the confidentiality of all information obtained by the mediator in mediation unless otherwise agreed to by the parties or required by applicable law.
6. Quality of the process: A mediator shall conduct a mediation in accordance with these standards and in a manner that promotes diligence, timeliness, safety, presence of the appropriate participants, party participation, procedural fairness, party competency, and mutual respect among all participants.
7. Advertising and Solicitation: A mediation shall be truthful and not misleading when advertising, soliciting, or otherwise communicating the mediator’s qualifications, experience, services, and fees.
8. Fees and Other Charges: A mediator shall provide each party or each party’s representative true and complete information about mediation fees, expenses, and any other actual or potential charges that may be incurred in connection with a mediation.
9. Advance of Mediation Practice: A mediator should act in a manner that advances the practice of mediation.
Ethical issues often arise in the mediation setting. What behaviors are right or wrong/proper or improper in mediation? Karen presented various ethical conflict scenarios to my students for discussion:
It's always sad to end the semester and to say goodbye to my students. "Every ending is a new beginning." -- Marianne Williamson
Zoom. Google Meet. Microsoft Teams. We used to work in offices or go to school for classes. Now many of us are working all day in little “Zoom boxes” where the line between work and rest gets blurrier everyday, along with our eyesight.
Experts say many who work remotely are experiencing the same side effect of quarantine: exhaustion borne from endless video meetings, known as Zoom fatigue. Students, attending hours of online class, five days a week, may experience the worst of it.
We’re all aware of the hypothetical solutions. More exercise! Avoid screens! Do something relaxing! However, all of these quick fixes are easier said than done. We think to ourselves: How can I exercise if I need to finish all my homework for today? How do I have fun when there’s a global pandemic going on?
In order to find out how we can become more energized throughout the day, we first need to understand how fatigue works — and why sitting in front of a computer, doing relatively little, is so exhausting. Luckily, scientists are actively studying the phenomenon.
In our brain, rewards can increase alertness, energy and motivation, which reduces fatigue. Even simple tasks, such as walking in the halls in between classes, can be rewarding for our brains and increase our energy. Our brains feel rewarded when we move or change environments or when we get social interaction. We may not realize it, but when we talk to someone in person, we are communicating through many non-verbal cues, such as our body posture and smile. On video calls, it’s more difficult to pick up on these cues, so we have to work harder in order to socialize, which results in us feeling more tired.
So is there anything we can do? Yes! Caring for our minds and bodies away from our screens can energize us, and that’s as important as making our digital interactions as rewarding as possible. Experts recommend:
Guest blogger John Barnes is a senior at H-B Woodlawn Secondary Program in Arlington, Virginia and a 2021 Health Video Fellow with PBS NewsHour’s Student Reporting Labs.
“We do not see things as they are. We see things as we are.” Anais Nin
Today in the Mediation class that I teach we discussed barriers to settlement in mediation, which include (1) cognitive barriers and the role of perceptions and (2) the impact of fairness. According to Dwight Golann and Jay Folberg in their book Mediation, The Roles of Advocate and Neutral, a key step in a mediator’s work is to identify the obstacles that are preventing parties from negotiating effectively. It is essential that a mediator develop skills to address the challenges of cognitive barriers and differing views of fairness in order to empower the parties to a dispute to reach settlement in mediation.
A solution to resolving conflict is to be aware that people often see the same situation very differently. Selective perception is at the core of our tendency to see the same events differently. The effect of selective perception is enhanced by confirmation bias – our tendency when perceiving conflicting data to give more weight to information that fits our pre-existing beliefs and wishes. (For example, a coffee lover may only read articles that discuss the benefits, and not the risks, of drinking 6 cups of coffee per day.) We tend to estimate the value of items by comparing them to benchmarks. The problem is that most people are anchored by the benchmark, not understanding how different their particular case may be from the comparison point. (Remember the MacDonald's case in 1992 where a woman who spilled hot coffee in her lap was initially awarded almost $3,000,000 for the burns she suffered?) We tend to be persistently overly optimistic about the outcome of legal cases. We are also overconfident about our ability to assess unknown facts.
Differing views of fairness are also at the center of many litigated conflicts and failed negotiations. Fairness can focus on the outcome as well as on the process. Both components shape parties’ willingness to negotiate and to accept settlements.
For example, in the Barry Bonds’ case in October of 2001, differing views of fairness played a large part in the parties’ failure to settle with each other. More than 40,000 fans were at the ballpark to see Barry Bonds add another home run to his record breaking total of 72. Bond’s 73rd home run ball landed in Alex Popov’s outstretched glove. Within seconds, Popov fell to the ground as a rush of people converged on him and the ball. Madness ensued. He dropped the ball. When Popov was pulled from the pile, the ball was no longer in his glove. At the same time, Patrick Hayashi was also knocked over by the crowd. While on the ground, the ball rolled toward him and he picked it up, claiming it as his own. Patrick Hayashi emerged with the ball in hand.
Both men claimed ownership of the ball and both thought it was worth over $1 million, based on the recent sale of Mark McGuire’s 70th home run ball for more than $3 million. Both men stated that principles of fairness entitled each of them to the ball. Several mediators suggested that the ball be sold and the proceeds split. Neither Popov nor Hayashi thought an even split was fair. Following 18 months of bitter litigation, the judge finally ordered that the ball be sold at auction and the proceeds split. The ball was sold for $450,000. Popov and Hayashi each received $225,000 minus auction expenses and attorneys’ fees exceeding $225,000.
What got in the way of Popov and Hayashi agreeing on decisions about Bonds’ home run ball? They were two strangers from different cultures with an all or nothing attitude about an object thought to be worth a million dollars that landed in their hands in an event on national television. There were no well established legal rules in this instance since both of them had taken possession of the ball lawfully. They both anchored the value of the ball with the sale of the McGuire ball. Selective perceptions and confirmation bias made each of them believers in the righteousness of the positions they held and in assessing what factors a judge would consider in deciding who had rights to the ball. They had differing definitions of fairness. Last, they were over optimistic about the value of the ball and judgmental overconfidence was at play with regard to how a judge would rule.
Source: Golan and Folberg, Mediation, The Roles of Advocate and Neutral, Third Edition, 2016
“An ounce of mediation is worth a pound of arbitration and a ton of litigation!” — Joseph Grynbaum
One of the most frequent questions I am asked when a prospective client calls for a consult is: what IS mediation exactly?
I respond by describing mediation and comparing and contrasting mediation to other methods of dispute resolution, such as retaining lawyers and litigating, hiring an arbitrator and using arbitration, or retaining lawyers and agreeing to use collaborative practice.
Here is how I describe mediation to new clients:
Happy Holidays everyone! This month we will have five kids heading home who range from age 18 through 26. We are looking forward to finding ways to enjoy family time while we are safeguarding our health.
ADR presentation -- I will be giving a speech to RLI Design Professionals as part of a training course on the 16th of the month on Alternative Dispute Resolution (ADR). I’ll be talking about dispute resolution through negotiation, mediation, collaborative law, arbitration, and litigation and giving case studies of how a business and a family resolved their conflicts.
Wrapping up the fall semester/Planning for spring -- I will also be grading final papers for the ADR class that I teach, closing out the semester, and planning for the Spring 2021 Mediation class at George Mason University’s Antonin Scalia law school.
Share your story -- You will recall that I contributed a short piece, Five Financial Tips When You Are Facing Divorce, to a book on pandemic relationships that was published in May of 2020. The book was pulled together very quickly by the wonderful Michael Lang and Peter Nicholson. They will be soliciting contributions in early 2021 for a new book. The idea is to present stories of how people have dealt with conflicts exacerbated by the stress produced by the pandemic. I would love to write about a story of resilience for my contribution that I will submit! I am happy to interview you and tell your story so please let me know if you have a story that you would like to share.
Reflective practice group -- I joined a reflective case consultation and study group headed by legendary mediators Woody Mosten and MIchael Lang. My first meeting was in early December with a small group of mediators from all over the country. Our mission is to learn from our colleagues and our facilitators. Our guiding principles are: (1) we are committed to learning from experiences through self-examination and (2) learning comes from self-exploration and self-discovery. And my goal in joining was to raise my conflict resolution strategies and skills and help my colleagues improve as well.
Goodbye 2020 -- 2020 has been a year like no other. I think we are all ready to say goodbye to 2020 and to welcome a New Year and a new beginning in 2021. I am finding inspiration from the following uplifting quotes: Abraham Lincoln said that “the best way to predict the future is to create it.” Helen Keller said to “resolve to keep happy, and your joy and you shall form an invincible host against difficulties.” Buddha said that “no matter how hard the past, you can always begin again.” Last, the Dalai Lama said to “be kind whenever possible; it is always possible.”
Happy New Year and can't wait to see you, 2021!
Ellice Halpern, J.D., is a Virginia Supreme Court certified general and family mediator.