Recently, I have been s tudying Native American Law. It is an interesting mixture of tribal law and custom, United States law, and United States policy toward Native American. Reading about Native American Law made me curious about Native American Mediation. I found a wonderful 2005 article on Mediation.com entitled Native American Wisdom: Lessons Learned from Mediation by Joe Epstein at http://www.mediate.com/articles/epstein2.cfm#. He starts out in his introduction by saying:
“Medidation is the intervention into a dispute or negotiation by an acceptable, impartial, and neutral third party who has no authoritative decision making process” When Christopher Moore wrote his seminal book The Mediation Process, mediation was still in it’s infancy with regard to its utilization with litigated cases. As litigation has become more expensive, as parties have become adverse to the high transactional costs of litigation, as attorneys become better trained in mediation and negotiation, as attorneys and parties become more interactive in a less adversarial and confrontive life style, as under-financed courts are overwhelmed with criminal, juvenile and domestic relations cases, the demand for mediation of commercial disputes has skyrocketed. In fact, courts in many states are demanding that litigants participate in a mediation before they can come to court for a resolution of their dispute. For many disputants there is a sense that mediation must provide more than the all or nothing of litigation, that it should touch underlying issues and concern that run deeper than overt legal results. Parties want respect, dignity and an opportunity to be heard as well as a sense that the judicial system has treated them fairly from a financial perspective. Unless today’s mediators are willing to mediate dangerously and take more spiritual and emotional risks, they will fall short as mediators.
Mediators who merely and meekly trade numbers from room to room no longer fill the bill for modern mediators. Paradoxically, ancient Native American traditions and values provide a portal for modern mediators to satisfy today’s demand for a more meaningful, transformative, complete and satisfying mediation process.
Native American wisdom focuses on healing wounds, and bringing peace through good feelings, not fear. While mediations are focused principally on legal issues, Native American wisdom teaches us to be mindful of a person’s emotional damage as well. Mediators should not only emphasize a need for a legal resolution, but also strive to heal broken relationships, and rebuild personal self-esteem and confidence. Addressing these non-monetary dimensions directly is what makes mediation a unique opportunity for both financial resolution and closure. A mediator can assist in addressing non monetary dimensions by using Native American wisdom. “
He presents twelve values inspired by Native American wisdom. The values are familiar but worth repeating.
7. NONVERBAL COMMUNICATION
He concludes by saying,
“In conclusion, we have found that intertwining Native American values with basic practice and principals of mediation aids in facilitating effective transformative and spiritual dispute resolution. The gifted mediators listen patiently for the deepest meanings of what is said verbally and communicated non-verbally. The mediator is listening for both overt and convert messages. He listens with respect and compassion. He risks self revelation just as he asks it of the parties. It is not only a mediator’s generosity, humor, and silence, but also his style and empathetic connection with the parties which allow the mediator to gain the necessary trust. As he asks for trust, he must earn it. Then having earned it, he may assist the parties with atonement, with respect, compassion, empathy, sympathy and forgiveness. A risk taking mediator may even attempt to assist the parties with transformation, and he affords opportunities for healing. A mediator with true wisdom knows how to set a foundation during a mediation, which allows participants to heal their wounds. Mediators who fail to address underlying issues and needs sell their clients short and cannot earn the title of the “Peacemaker” or the accolade of being considered a “Gifted One.”
Modern mediators must be prepared to take risks to help the parties come to a complete closure and they must recognize that in some instances at least, this may require “risking” heartfelt and spiritual connection. By using these core values inspired by Native American wisdom in their practice, mediators may become “Peacemakers” and may be honored as a “Gifted One.””
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