Mediation

The Importance of Mindfulness Exercises in Holistic Law Practice

The mind seems to incessantly scan the environment for problems to solve.  This active intellectual engagement with our environment likely served to ensure our survival as a species over millions of years as immediate physical dangers routinely confronted us in more primitive times.

The mind seeks problems to solve largely within the parameters of cause and effect.  Problems arise, however, when the mind latches onto a situation over which the individual lacks causal influence.  When facing such situations, one can and usually will become quickly frustrated insofar as he or she is attempting to solve a problem that is largely insoluble in an intellectual, analytical mode.

At times such as this, including times of interpersonal conflict commonly present in legal disputes, a real need arises to move beyond analytical thought and towards a wisdom arising not out of intellectual analysis, but out of a felt connection with all of life in the present moment.

Mindfulness exercises, often including meditation practice, cultivate and strengthen one’s ability to access this wisdom beyond analytical thought.

This is why holistic law practice incorporates mindfulness exercises as a necessary component of successful conflict resolution.  Insofar as parties remain locked into an analytical, thought-driven orientation to conflict, they will work – consciously or unconsciously – to reframe the issues in a way that is “intellectually manageable” and solvable largely through the exercise of personal influence.

Often, this is like trying to fit a square peg in a round hole.  The frustration resulting from this type of activity over a prolonged time period, in no small part, explains why tension between parties in traditional adversarial litigation tends to escalate over time.

Clients with no prior experience with mindfulness practice or meditation often understand, in theory, the value of a more holistic approach to legal conflict, but wonder how to cultivate a more grounded and less thought-driven approach.  Mindfulness exercises incorporated in holistic law practice often begin with guided attention to the breath, body, or other somatic experience.  Within a few sessions, and with some daily practice, clients report the arising of a sense of connection to present-moment experience fundamentally different from their previously narrow thought-driven orientation toward experience.  It is this constrained orientation that has left them feeling frustrated and perhaps helpless.  With some sustained practiceS, clients begin to identify potential solutions to conflict that transcend their constrained self-interest.  At this point optimal, transformative solutions to conflict become possible.

To learn more about incorporating mindfulness in law practice, contact Holistic Lawyer and Mediator Michael Lubofsky by visiting http://www.Holistic-Lawyer.com or by calling (415) 508-6263.

Medi[T]ation: The Importance of Mindfulness in Law Practice and Mediation

On a surface level, most disputes revolve around some discreet event in the past that an individual has come to view as having violated his or her standards of “right” or “wrong,” or some more nebulous concept of “justice.”  But when the sense of violation arising from the event rises to a level at which an individual has made the deliberate choice to invoke the legal process, the likelihood is that the event, events, or situations at issue have triggered more deeply help beliefs as to how the world should operate.  These more deeply held notions are likely tied to engrained learned conditioning that far preceded the situation at the center of the dispute.

The problem is that this learned conditioning, and the ideas the we have held for so long about how the world “should” operate, lie beneath ordinary consciousness.  These ideas are so deeply engrained that they have come to operate more habitually, usually clouding direct present-moment experience and serving as an unidentified barrier to optimal solutions to conflict.

This is why the integration of meditation and mindfulness are so important to effective dispute resolution.  It is only through quieting of the mind that individuals begin to more clearly identify this learned conditioning and the habitual reactions that have come to cloud their perception of, and response to, the conflict being addressed.  For example, instead of indiscriminate, reactionary blaming of an adverse party for a challenging life situation, a party can come to more clearly appreciate the role of conditioning that has prompted his or her reactions, and thus come to lessen his or her adversarial posture towards an “opposing” party.  The softening of this posture is essential in fostering an open environment in which all parties feel a necessary degree of safety in articulating his or her emotional linkage to the dispute, and a willingness to accept an appropriate degree of responsibility not only for the arising of the situation, but for its resolution.

For these reasons, the integration of meditation and mindfulness in law practice, mediation, and other approaches to dispute resolution is at the foundation of holistic law practice.  To learn more about the integration of mindfulness and law practice, contact Holistic Lawyer Mike Lubofsky by calling (415) 508-6263, or by visiting http://www.Holistic-Lawyer.com.

Litigation: The Outmoded Premise

In the context of civil dispute resolution, statutes, common law, and procedural rules are predicated on a dualistic notion of “justice.”  By this is meant that the entire system is built largely on the premise that one party is “right” and the other is “wrong.” It assumes that through vigorous advancements of divergent positions, “truth” will ultimately emerge enabling the trier of fact to fit this version of past events within laws and rules that legislators and courts have deemed minimally necessary for the successful functioning of society.

In recent decades, however, a far more expansive notion of “truth” has begun to permeate American culture.  This notion is largely based on a felt appreciation that we are not islands unto ourselves; that everything we do has impact on others in our lives, social institutions, the physical environment, etc.

When “truth” is considered in this more expansive fashion, one begins to appreciate how limiting the truth within our current adversarial model clearly misses the mark.  Disputes “resolved” based upon this fallacious premise and narrow concepts of “right” and “wrong” may provide some fleeting sense of victory to one or more litigants, but most often does little to successfully address the multitude of competing interests that usually come to bear on any civil dispute.

The new holistic mediation model springs from a premise that individual parties, largely as the result of past conditioning, most often approach disputes with quite myopic ideas about an optimal solution to the conflict before them. While one party may have acted outside the bounds of propriety, or failed to conform his or her behavior to a requisite baseline of due care, thus causing another party to be “wronged,” the expansive view of truth recognizes that, in most cases, hurtful behavior springs from internal suffering in the life of the actor.  Being branded as “wrong” at the conclusion of a litigation proceeding is only likely to exacerbate the suffering of the actor or actors, thus leading to further undesirable behavior in the future.  In this way, the traditional adversarial model largely fails to address the underlying issues with compassion, and in ways instilling the true, felt sense that “we are all in this together.”

When this notion of interconnectedness becomes the foundational premise of our dispute resolution model, we will have moved beyond our current adversarial system and toward the resolution of disputes in a way offering far more optimal and sustainable solutions.

To learn more about holistic mediation, contact Holistic Lawyer and Mediator Michael Lubofsky at (415) 508-6263, or visit http://www.holistic-lawyer.com.

Mediation: Often Not Just the Best Solution, the Only Solution

Defensive and aggressive reactions to conflict most often arise because of an inability to be heard and understood. At the heart of most conflict lies some core issue that, if recognized, acknowledged, and explored, would provide the seed for peaceful, optimal resolution, truly in the best interests of the parties and more broad societal context in which they live. Often, the failure to identify and explore these core issues will keep the parties locked into a dualistic, adversarial posture that will serve to escalate the conflict.

Whether a conflict involves one spouse not taking out the trash, a neighbor making too much noise, or a violent attack by a religious faction, one party to these activities feels on some level that they are not being heard – that core beliefs or concerns that they harbor are not being sufficiently acknowledged.

Our predominant adversarial model of “justice” overwhelmingly operates in a way that allows no exploration of underlying precipitants of conflict. Attorneys are specifically trained to elicit “facts” from clients that they will then apply to the law in crafting a litigation strategy. Unfortunately, a client’s recitation of “facts” in reality often constitutes a “story,” and excludes subconscious motivations of one’s behavior.

In order to begin exploring these less salient motivations of one’s behavior, an environment must be created that fosters an air of openness, respect, and trust so that individuals can become willing to explore and articulate underlying thoughts and emotions that may have led to, or exacerbated, the conflict. The structure of a courtroom, and the nature of civil procedure and rules of evidence, are antithetical to the creation of an open environment in which litigants might otherwise feel safe in exploring more sensitive thoughts and emotions.

By contrast, among the benefits of mediation are ground rules specifically laid to establish an environment of respect. Sharply honed listening skills and ability to empathize will help an experienced mediator quickly begin to create an environment conducive to the exploration of more vulnerable thoughts and feelings of the parties. Not bound by rules of procedure and evidence, the parties can begin to articulate what is truly important to them. Often what comes to the surface are thoughts and feelings of which the parties themselves were consciously unaware. The seeds are then sewn for the crafting of a solution that can truly address the core needs of all involved.

One might say that any solution falling short of this process is really no solution at all.

To learn more about the benefits of holistic mediation, contact Holistic Lawyer and Mediator Michael Lubofsky at (415) 508-6263, or visit http://www.Holistic-Lawyer.com.

Mediation Versus Litigation: Addressing a Larger Societal Problem

Within a wide swath of civil litigation can be found a common denominator: The tendency of people in contemporary American society to sidestep responsibility for their own happiness and well-being, instead looking toward external factors to blame for undesirable outcomes or consequences.

Almost by definition, our predominant adversarial model of civil litigation encourages, cultivates, and solidifies blame.  For example, in filing an initial complaint to initiate a lawsuit, a plaintiff is basically required by procedural rules to allege facts that establish on their face what a defendant or defendants did wrong.  The plaintiff is then required to set forth a request for relief stating how these alleged improper or wrongful acts caused harm or loss.  Nowhere at this initial pleading stage would a plaintiff acknowledge any affirmative role that may have contributed to the harm of which he or she is complaining.

It is only at a more advanced stage of pleading that an adverse party may file a “Request for Admissions,” which would prompt a party to acknowledge that his/her/its actions or inactions may have contributed to the problem at hand.

So it often seems in a more broad societal context.  We seem conditioned to focus on external factors to explain our problems (and much of our happiness).  Many would maintain, however, that such thought-driven notions that attribute happiness or lack thereof to external factors are largely delusional.  Such a misguided orientation may go far in explaining why litigation “victories” resulting from the adversarial process seldom produce an enduring sense that the conflict has been resolved in any sort of optimal fashion.

In contrast, holistic law and mediation works to help dissolve defensiveness and entrenched conditioning to the point at which participants become better able to see through their misguided preconceptions.  They are then better able to objectively assess their acts or omissions that may have contributed to the current conflict.  At the same time, the cultivation of an empathic environment by the holistic lawyer or mediator facilitates this process as participants feel more understood and less judged for “mistakes” or “misunderstandings” that my have contributed to the conflict.

To learn  more about how holistic law and mediation can facilitate optimal, sustainable conflict resolution, contact Holistic Lawyer and Mediator Michael Lubofsky at (415) 508-6263, or visit http://www.Holistic-Lawyer.com.

The Transformational Potential of Mediation

In conducting more than two dozen mediation sessions in Alameda County Superior Court, what is most glaringly apparent is the extent to which mediation participants enter mediation with all-defined, hardened positions.  Moreover, these individuals almost always are convinced that their interpretations of some event or events that have taken place in the past are the “correct” or “right” interpretation, and that the opposing party is simply “wrong.”

Through extensive mediation training and experience, a professional mediator becomes increasingly able to identify when a participant appears “locked into” a position, and then employ sensitive listening and empathic skills that may soon begin to loosen the grip of tightly-held, heavily egoic, positions.  It is the dissolving of these firmly held positions that begins to shift a mediation focus from positions to interests.

Freed from the grip of ego, one can begin to entertain an increasingly expansive notion of “interest” to transcend one’s “self interest” which may have predominated at the outset of the mediation.  “Interest” can then begin to more fully encompass a spouse, a family, a community, or even all of life.  In this way, mediation can serve a transformational function as a springboard for previously untapped solutions that transcend self-interest and serve to move the participants, as well as society at large, forward in more sustainable ways.

To learn more about how mediation might work for you, contact Meditator and Holistic Lawyer Michael Lubofsky by calling (415) 508-6263, or by visiting http://www.mindfulaw.com.

Mediation versus Litigation: The Answer Becomes Clear

Where holistic law practice has at its core wisdom borne from a grounded sense of being, it is only within the mediation forum that individuals are afforded the freedom and flexibility to access this wisdom and have this wisdom guide participants toward optimal dispute resolution.

In contrast, formal litigation imposes strict rules (e.g., rules of evidence) that ultimately ensure that disputes are settled based largely on objectively verifiable events.  By definition, admissible evidence excludes intuitive knowledge and other phenomenon arguably behind the realm of human thought, including compassion and empathy, as salient factors to be considered by the parties when attempting to fashion a remedy to a dispute.

While litigating parties may, individually, evoke and consult with unverifiable sources of knowledge such as intuition, compassion, etc., in determining his or her individual litigation strategy, the litigation process itself is designed to eliminate discussion and consideration of such factors when both parties are together before the tribunal.  The parties are thus denied the opportunity to reevaluate their respective positions in light of inner wisdom accessed and articulated by other parties with what litigation would deem “adversarial interests.”

From an evolutionary standpoint, it is understandable that interpersonal dispute resolution grew into a system that basically extracted emotion and unverifiable feelings from the equation.  It is not difficult to imagine that in a lesser evolved form, such emotion and visceral sense was likely to lead to chaos and physical violence.

It is also conceivable, however, that as a species we have evolved to a point at which we are beginning to recognize truth as lying beyond thought and objectively verifiable facts.  Holistic law practice, by helping clients disidentify from learned conditioning and habitual reactions, can facilitate heightened access to this inner wisdom.  A properly orchestrated mediation forum can ensure that the inner wisdom of all interested parties is elicited and properly considered in sculpting optimal dispute resolution.

To learn more about holistic law practice and its applicability in the mediation context, contact Attorney Michael Lubofsky at (415) 508-6263 or visit http://www.mindfulaw.com.

 

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