What is Mindfulness?

Mindfulness refers to paying attention in a particular way: on purpose, in the present moment, nonjudgmentally, with the sole intention of seeing clearly just what is so.

How does one develop the ability to be mindful?

Mindfulness is developed through practice. The most basic practice is meditation. As a traditional Yoga practitioner and teacher, mediation has been part of my Yoga practice since 2000. I practice every day. It is “the gift that keeps on giving”.

As an athlete does strength and skills training, the goal of meditation is to train awareness – so that you can see how your mind is working in the present moment and actively choose both what you pay attention to and the manner in which you respond (rather than react). This practice produces equanimity. Equanimity produces an understanding of and compassion for others.

How is mindfulness used in mediation?

The primary mindfulness tool for mediation is “deep listening”. Mindfulness is used to overcome barriers to attentive listening such as distracting thoughts and emotions, personal agendas, bias and prejudice based on the speaker’s appearance, ethnicity, gender, speech or manner.

Though deep listening, I am able to:

  • Naturally develop a connection with the people in the room. People can sense when one is simply and sincerely listening to them, with full attention, compassion and without judging.
  • Get the parties to relax and be more involved in the process.
  • See more of what underlies and is driving the dispute.
  • See avenues for information development and exchange not mentioned in the briefs.
  • Help the parties understand their needs – which are often not the same as what they think they want.
  • Develop settlement options that both make sense to and serve the needs of the parties.

Does using Mindfulness in mediation produce different results?

The current, prevalent mediation style is a version of “evaluative”, whereby the dispute is reduced to its legal aspects and the mediator discusses the pros and cons of each side’s legal case, including how the case will play out in court. The discussion is mainly between the lawyers and the mediator. Lawyers expect that the mediator will point out the “problems” each side has and use this as a way to drive the parties toward a compromise. The mediator’s mantra for this style tends to be: “If each of you leave here equally unhappy, I’ve done my job.”

There are two distinct drawbacks to this version of the evaluative style: the non-lawyer clients do not inherently understand the legal case discussion; no one knows how a case actually will play out in court. It follows that the clients are often unhappy with mediated settlements obtained through this style, holding their noses as they sign off on the deal.

In contrast, mindfulness based mediation directly engages the clients in the discussions, delving into how they see the dispute and working with them to understand that there are other ways to see the dispute. This produces clarity.

While the legal aspects of the case are often a part of the discussions, it is more meaningful to the clients when the legal aspects are tied to things the clients understand and are actively discussing. The clients thereby tend to be more invested in the process and ownership of the result. The result tends to be more satisfying and durable as compared to a settlement obtained by simply finding ways to beat the parties down to a compromise. This greatly reduces the incidence of “buyer’s/seller’s remorse”.

This applies equally to clients with and without legal familiarity. For example, insurance adjusters, corporate officers and business owners are still people – and have perception issues driving the dispute just like a layperson.

I believe that this use of mindfulness is why most of my cases settle with “overlap” (plaintiff would have taken less to settle; defendant would have paid more to settle) and the clients and lawyers on each side feeling like they made a deal that makes sense.