Conflict

Reflections from Vienna via Florence on IBA-VIAC CDRC Competition 2018: “The Value of Active Listening in the Heat of the Moment. (When bringing a “taser” to a mediation can be a good idea.)

“How can I interject this question without interrupting?”

“This answer doesn’t satisfy me. How can I ask again without stalling the conversation?”

“I need to discuss privately with my client, but it is not appropriate to stop this joint session now.”

“Perhaps I would need something to… tase my client, so that he could remember to consider my opinion as well!”

female taser

During mediation a lot of questions come to your mind, but it is usually not easy to get an answer quickly and keep track of the conversation. When you attend negotiation courses or you study the theory of mediation at home, it is fairly common to overlook the practical implications of such questions, but trust us, they are very relevant.

However, let’s start with some brief introductions first: we, the two writers of this hopefully interesting article, are Elisa Menichini and Emanuele De Napoli, two law students from the University of Florence, Italy. Together with two other students (Francesco Lichen Wang and Marzia Montinari), we were part of the only italian negotiator team at the 4th IBA-VIAC CDRC Mediation and Negotiation Competition in Vienna this July. We were coached by the experienced Professor Paola Lucarelli.
Florence Team
The CDRC Competition was a very formative experience, a melting pot of creative law students from all over the world ready to compete and learn under the guidance of legal experts and professionals willing to share their expertise and ideas. Mediation is a rather recent Dispute Resolution method in Italy (2010) and we, as future legal practitioners, felt that this competition was the right opportunity to grow both personally and professionally.

During the many rounds, carefully and masterfully directed by Claudia Winkler and the CDRC Staff, 33 teams of negotiators and mediators proved their skills in mock disputes based on the 2018 Willem C. Vis International Commercial Arbitration Moot Problem.

There would be so much to describe and write about the competition itself, the wonderful staff and the friendships that were born this year in Vienna, but we will concentrate on a specific event that we truly believe captures one of the key aspects of mediation and conflict in general. Something that we all need to remember.

During one of the rounds we were facing the Istanbul ŞEHİR University, while the mediator was coming from Maharastra National Law University in Mumbay. The negotiation process was lively and dynamic since the beginning. Our team was divided as such: Elisa = Legal Counsel; Emanuele = Client. Bargaining techniques were followed by quick responses, numbers were soon flying across the table and the two opposing clients were dragged into the heat of the negotiation. The trusty legal counsel (Elisa) tried more than once to calm and reassure her competitive client (Emanuele), but he was too focused on his business goal to be “stopped” by his lawyer.

The agitated legal counsel even tried touching her client, but he would just uncounsciously move away. Even trying to hit his legs wouldn’t work, since he was conveniently keeping them under the other side of the table. The now fuming lawyer wrote down on her papers in capital letters “NO”, as a concise but effective way to express her disapproval of a certain proposal. Not even this last resort seemed to restabilish the connection between the two. The businessmen were at work and they didn’t want to be bothered!
Im-not-Listening
Eventually a break was called and we were able to breath, relax and get back into our two combative characters after having shared briefly our ideas and views. The rest of the session went smoothly.

Once the round was finished and the feedbacks by the expert assessors had already been given, we had the opportunity to receive further insights from the judges. When we told this “comic” situation to Thomas P. Valenti, one of the experts who offered us precious suggestions and tips, he recommended (as an obvious but very clever joke) an innovative technique to force active listening and to calm down for a while an overachieving client: using a taser. When caresses, stares and kicks in the legs fail, go harder and use a taser.

Even if it was only meant as a joke, it truly made us think of the value of mediation, active listening and teamwork. During this competition as well as during similar events that we took part in, we noticed how conflict can be like a tornado, drawing the parties into the fight and making them lose sight of their true interests, even if they’re well-prepared. The legal counsels might feel that they need to manage their clients and sometimes thwart their emotions. But the role of the legal expert is changing and a lawyer should be able to understand and compensate for his clients’s whim as well.

That’s exactly why you need mediation, why you need a third party that can redirect you to the right path. The legal counsel should be the “trusty companion” that can grant a proper reality check when necessary and the needed aid when in doubt.

In conclusion, mediation can be considered a “metaphorical taser”: a ground-breaking method among the dispute resolution procedures. It shakes the way we perceive conflict in nowaday society, it changes the rules. The CDRC Vienna Competition was the perfect context to see how effective mediation can be.

We, as young students and future professional, are active witnesses of an epochal change in the way people face conflict: an opportunity instead of a danger to be avoided at all costs.

And if sometimes we’ll need to be “tased” to achieve this results, so be it.

By Emanuele De Napoli and Elisa Menichini,
University of Florence (School of Law),
Italy.

“Till The Last Page” – a story of young Shazia’s migration to Beirut from Syria ~ guest post by Prachi Jain

Till The Last Page

The caterwaul and commotion around disturbs her sleep, she opens her dreary eyes, and lies wistfully in her makeshift bed.

Shazia fled Syria in 2012, and arrived at Shatila camp in search of refuge. Two years back, her life was totally different from what it was now. She lived with her family right outside small peaceful village Hama. Her family comprised of her parents and two younger brothers. Though they were poor, life was happy and full of hope for them. She attended government school in the neighborhood, her father had a small shop selling general household item. One of the brightest kid in school, Shazia never though she would have to live life of orphaned refugee one day.

Hama

– Village of Hama, Syria

Syria was under attack for almost a year by then, when one day her village came under attack of regime. She fled along with her family towards Southern Beirut to save their lives. She lost her mother before reaching camp, and soon after her father passed away due to fever and unavailability of proper medical care. Shazia still wonders was it really fever that took her father’s life, or was it pain of being uprooted from his homeland and loss of his life partner. By the time she reached refugee camp, all that was left in this world for her was her two little brothers, Alif and Rizwan aged ten and six. Responsibility of these two kids directly came up on their thirteen-year-old elder sister.

map-syria-300She steps out of her bed, folds it and places it in corner so that room can have more space during daytime. She shares one room with another family of 7 members. They were Palestinian refugee, living in this camp from past ten years. When she arrived at camp, all rooms were already brimming with people from Syria. Every month thousands of refugees were reaching camp in search of safe shelter from war affected country. In this dreadful time, that family had been kind enough to share their apartment with three orphaned children.

Life was tough in crowded dingy camp. Open electric wires spread like spider webs across the streets, running from building to building throughout alleyways. Power cuts and electrocution was common in this area. It was last week only, when a young boy got tangled in those wires while running here and there playfully. He tripped and lost his life. And this was the story of camp! Problems were many, earning was scanty, and the thing that was of least worth was LIFE.

“If you don’t try to write a memorable story, it will never be one! Be hero in your story, and make sure that it is the one that world remembers, one that inspires others.”

After living at camp for past two years, Shazia was no more a little girl. Responsibilities had turned her mature beyond her age. She along with her brothers used to pick bricks for construction, and carry them to site. They earned near about 4 dollars each and that was bare minimum for daily needs, let alone schooling, health care and other amenities.

Today was her birthday! In camp, every day was same, and thus apart from her nobody remembered it! While she was at work, carrying bricks on her head, memories of her last birthday with her parents came gushing to her.

She was hoping around in verandah wearing her pistachio green colored embroidered frock. Her mom was occupied in kitchen preparing her favorite dishes for the special day. Her father had gifted her doctor kit, a symbolic gift for his little princess who wished to become a Doctor on growing up. “Abba! I’ll study at a big university and then we will move to city, and then when I start working, you can stop working. You and ammi can spend all the time roaming here and there in city having fun, and I’ll earn a lot for five of us!” chimed Shazia.

“Will you move little faster?”, shouted contractor on site. Shazia came back to bitter reality. After finishing work, she took some time off, and sat alone at park’s bench.

Maybe because it was her birthday, or may be just a coincidence, but she was missing her past more profoundly today. Random memory came floating to her mind. She remembered a happy sunny day; her family had gone to nearby park with picnic basket for a day out. Her brothers were taking their turn on slide, and her mother was standing beside them making sure they didn’t get hurt. Shazia was sitting with her father on lush green grass. Her father said, “Shazia! You know our life is a story that is being written till our last living day. Once, we die, story ends. Some stories create an impact, some are dull and without any remarkable incident. But every life has a story”. Unable to understand the depth of her father’s thought, Shazia asked, “Papa! Who is author of our story? Is God writing it?” Her father laughs at this innocent question, cuddles his daughter in his arms and says “No my love! God just initiates this story by giving us life. But we ourselves are author of our story! Always remember! If you don’t try to write a memorable story, it will never be one! Be hero in your story, and make sure that it is the one that world remembers, one that inspires others.”

sabra-shatilla

-Shatilla Camp

The flashback ends and Shazia leans back on bench. What has she become? Is she even the same Shazia who was full of hope and aspirations once! If Ammi and Abbu would see her today, would they even recognize her as their Shazia? Sadness of years that had passed away, frustration of situations in present and depression of having uneventful future takes toll on her. She bursts in to tears. Why doesn’t it feel like her story! Sobbing alone on a park bench she shouts into oblivion, “This is not my story! It wasn’t supposed to proceed this way! I would have never narrated it this way”.

Who was telling the story? And whose story was it anyway?

The words fluttered and flew in the wind.

After the outburst, she sat bundled over there for some time and kept crying because of all the resentment that had piled up inside her.

How else will the sun rise if it won’t set? Darkness is inevitable, but so is sun rise. The break down that Shazia had on her fifteenth birthday, turned into a resolution. She decided to change track of her story. Her life is a blessing given to her by her parents. She cannot let it pass so indecisively. She makes up her mind to resume her education, and quit her daily wage job. Also she needs to find better source of income for three of them.

UNRWA operated a primary health care centre, one day school and one night school at camp. She enrolled herself and her brothers at night school. While her brothers continued their daily wage job, she requested Doctor Ahmad Shiabi at health care centre to take her up as an assistant. Doctor Shiabi had previously diagnosed Shazia when she was sick, and knew that she was mature and intelligent girl. He agreed to hire her at a monthly salary of 52 $. Soon she started learning nitty-gritty’s of health care and hygiene. In a camp hoisting such large number of people, patients were numerous and thus work was also never ending. But this was her childhood’s dream, and thus she enjoyed her job. Work for welfare gave satisfaction to her disrupted soul and mind.

When one finds inner peace, things start to align in a better way. Shazia now started saving some part of collective income that she and her brothers managed to earn. In a year, they saved enough to start a stall for selling yoghurt and tomatoes. Alif and Rizwan manned this stall, so that they can study better and continue earning a living without doing laborious work.

One day Doctor Shiabi at camp asked Shazia if she could take a session about basic first aid for women at camp, as he had some emergency and couldn’t take session today, and as the event had been priory announced, it couldn’t be postponed as well. Shazia was unsure, but she agreed to it.

Session went well, and everyone appreciated her. This gave her confidence regarding her knowledge sharing skills. She told Doctor Shiabi how she enjoyed this session, and is ready to take such sessions in future. Being always occupied in too many chores, this was a delight to him also in past one year Shazia had created a positive impression on him with her hard work and dedication. He wanted her to have a bright future, and thus he readily agreed.

One day after Shazia had winded up taking a session, a young woman in mid twenties came to her, and she introduced herself “Hi Shazia! Great session it was! I am Cathie; I am a volunteer for UNRWA.”

Shazia said, “Hi Cathie! It’s a pleasure to meet you.”

“Shazia I am here in collaboration with a NGO, which is trying to identify twenty bright young women, for whom they will fund higher education. I am really impressed by your awareness and knowledge for health care. Can you share your educational background with me?”

Elated to know about this initiative, Shazia said, “I am attending night school at camp. But I would love to get this opportunity. I have great deal of interest in medicine and science, and wish to study them. It has been my dream since I was a little girl!” She was so excited, but was trying to be calm and failing at it miserably just by shear possibility of having an opportunity to fulfill her and her father’s dream.

Within a month and half formalities for educational program were completed, and her formal education began. She was also getting a generous student stipend. By adding up their savings, she was able to afford better education for her brothers.

It’s been two years now, Shazia is studying at medical school. Alif will be completing his schooling by next year; he plans to take up a scholarship funded course at an American University in Social Welfare. Rizwan is still in school, he has interest in sports more than studies. He recently got selected for School’s football team.

 

Tentschools

Shazia remembers her father’s words “If you don’t try to write a memorable story, it will never be one! Be hero in your story, and make sure that it is the one that world remembers, one that inspires others.”

Once again, Shazia is sitting alone at a park bench. But this time she is not the depressed girl she once was due to circumstances. Hope has taken place of sadness, and action has taken place of complains. She has learnt that it is just not us who write our story. Situation and other people do play part in creating its plot. But the climax is always in our hand. One can surrender to destiny, and like a dead fish go with the flow, have no control over story of their life and thus end up with a tale not worth remembering. Or one can fight back, and take charge, write it the way they want it to be, and turn their tale into a saga.

Her saga is not complete yet, and it won’t be till the last day, but she will keep improvising it till her last day and till the last page. She won’t let her story be the one that is easily forgettable. She will make this story remarkable page after page.

~ Prachi

 

Prachi Jain is a young Indian writer. She has one simple philosophy for life, “At the end, we all will just have bagful of stories to sum up the life we lead, make sure to collect the most memorable ones.”

Using Political Dialogue to Create and Inspire Change

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Criticizing people for expressing sympathy by using the term “thoughts and prayers” has become a trend. Using the term as a first response is quite acceptable.  Many of us use it on a regular basis.

 

This popular criticism does not produce any result other than making the speaker feel engaged in the “discussion” but does nothing to create a discussion.

 

The criticism that can and should be placed is what happens with those “thoughts” in the days after the expression of “thoughts and prayers.”

 

The same criticism can and should be placed against those who find reason to criticize those who use “thoughts and prayers.”

 

This criticism is not much better than using the term in the first place.

 

Expressing “thoughts and prayers” and criticizing saying it are equally unproductive, if we do nothing to engage in critical thinking and have a discussion about our “thoughts” and the “thoughts” of others with whom we may disagree about the issue at hand.

 

Just because two parties disagree doesn’t mean anyone has to be wrong. Two opposing views can exist at the same time.

The more we act like our misguided leaders, the more our system of government stays the same.

The sooner we behave in a way that also listens to others in a respectful way, the sooner we will have the chance of creating the kind of government we respect and, consequently, one in which we wish to participate

Book Review: STRUCTURED NEGOTIATION, A Winning Alternative to Lawsuits, Lainey Feingold, 2016

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Early in her legal career, Lainey Feingold was fired from a law firm. The day before she was scheduled to become a partner, the head of the firm told her she would never become a partner at the firm, stating “You lack grace and equanimity.” Feingold went from hearing those words turn her desired destiny upside down to letting them lead her to towards a career of practicing law with those and many other collaborative practices, detailed in Chapter 16. Her work has formed the basis of a methodology she and her practice colleagues coined “Structured Negotiation.”

In her book, Feingold introduces us to this alternative dispute resolution methodology, defined by one big firm lawyer as mediation without a mediator. The book is neatly organized into Seven Stages, from Stage One: Preparing a Structured Negotiation Case to Stage Seven: Post-Settlement Strategies, over 16 Chapters. It includes Templates and Sample documents, and details of several Stuctured Negotiations that Feingold and her practice colleagues ( primarily Linda Dardarian) handled over the past 20 years.

While many of the examples focus on Feingold’s advocacy for members of the blind community seeking access to ATMs, talking prescription labels, and baseball, the book has broad application to any practitioner who recognizes that certain types of claims, even very large ones, can provide opportunities for many disputants to be better served by the use of this process. While some claims need a Court system and the formal legal process, many do not. As Feingold puts it:

“But filing a complaint should not be the only option for claims resolution. The legal profession – and the public it serves- deserves alternatives that are less costly, less stressful, and more cooperative. Clients need a forum where thier stories matter and they can be ( and feel) heard.”

Whether you believe this or not, you should be aware of this alternative. Many think that those who represent big institutions are reluctant to participate in this out of court process. Yes, this is true. But Feingold has paved the way. She and her colleagues have spent years , patiently, working with many of the largest of these — Bank of America, Walgreens, Target, Safeway, TransUnion, Charles Schwab, others, and even Major League Baseball. And in her work, she provides information on all of these Structured Negotiations, so that you can use her success to contribute to yours.

If you take away nothing from this book, you will no doubt benefit from Chapter 16 which is invaluable. The legal profession is now undergoing a mindset change, where there is a real focus on “soft skills.” These are interpersonal skills, stress management, self confidence, mindfulness, optimism, the ability to convey empathy, and others.

Law students, lawyers young and old, law professors — read the book, but do not put it on the shelf until you have spent some time reading and self – reflecting on the collaborative tools that are discussed in Chapter 16.

You will be better at everything you do, if you can incorporate some of the Structured Negotiation collaborative practices into your life and your life’s work.

Buy the book on iBooks

Researching Reform For The Huffington Post: Child Refugees Are Fleeing A War We Created – We Owe Them A Place To Live — Researching Reform

Our article this month for The Huffington Post looks at some of the issues child refugees face as the first few children arrive in England this week. We discuss the topic of dental checks, the real reason why many of the children in the camp at Calais are young men and why we owe these […]

via Researching Reform For The Huffington Post: Child Refugees Are Fleeing A War We Created – We Owe Them A Place To Live — Researching Reform

Book Review Common Sense: Making Good Decisions in Real Estate Workouts Paperback – August 20, 2016

A useful book  for Bank workout officers, negotiators and mediators  dealing with real estate borrower/lender relationships

common-sense

I met Mark Weiss a few years back through a shared interest in Storytelling. With Mark you are never quite sure that you know everything that he does. I knew he had written a book or two  (this is his 8th I think), but I did not know about this book. I learned about it when Mark handed me a copy recently and said that he thought I might enjoy reading it. He was right. It is a quick read. The intended audience for the book is really for bank “workout” officers who will be charged with the responsibility of managing negotiations for properties that come into a bank’s portfolio as a result of a foreclosure or other circumstance. Mark has a wealth of experience in these kinds of situations. What makes this book interesting and worth a read is the wealth of knowledge contained in the book, but also the weaving in of his personal stories ( remember, he is an excellent storyteller as well) recounting tales where deals go bad, are rescued ( sometimes) and the lessons learned from both. So, while the book is truly a “handbook” or “desk-reference” for workout officers, it reads a bit like a documentary, and sometimes even as an action story! Another potential audience is anyone who, like me, mediates commercial disputes. Mark’s understanding of the workout process, is a roadmap for negotiators as well as mediators who are concerned with discovering BATNA/WATNA and the real needs and interests of both sides to these workouts.  I recommend this helpful,  quick and easy read.

Available at Amazon