forgiveness in legal disputes and other conflicts with ... · forgiveness is taking responsibility...

FORGIVENESS IN LEGAL DISPUTES AND

OTHER CONFLICTS

With

EILEEN BARKER

Heartland Mediators Association

April 26-27, 2018

@ Eileen Barker 2017, ForgivenessTrainingInstitute.com

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Day 1 – What Every Attorney and Mediator Should Know About Forgiveness 12:30 pm – 1:00 pm Registration 1:00 pm - 3:00 pm Eileen Barker Forgiveness 101 for Lawyers and Mediators Forgiveness is a powerful tool in resolving conflict that has been overlooked in in legal and mediation training. Research shows the importance of forgiveness in ameliorating the detrimental impacts of conflict, such as anger and resentment, and enabling parties to achieve peace and closure. Yet most attorneys and mediators know little about forgiveness and rarely consider it. This training, presented by attorney mediator Eileen Barker, will examine the research and outcomes of bringing forgiveness into conflict resolution, and provide guidelines and practical tips for attorneys and mediator to help their clients forgive.

What it is and is not The cost benefits analysis of forgiveness Two types of forgiveness and how each applies Exercise and Discussion

3:00 – 3:15 pm … Break 3:15 - 5:15pm…….Eileen Barker The Ethics of Forgiveness for Attorneys and Mediators

Forgiveness is highly relevant to a wide-range of legal disputes, yet it is given no consideration by most attorneys. We will explore forgiveness within the attorney/client relationship and specifically how forgiveness relates to an attorney’s ethical obligations, including the duty of zealous advocacy, the duty to serve the client’s best interests, the duty to avoid conflicts of interest and the duty to serve as a counselor of law.

Ethical Issues for Attorneys and Mediators Duty to assess whether forgiveness is in the client’s best interest Identifying potential conflicts of interest How forgiveness applies to different types of cases, and at different

stages Re-envisioning the Role of the Attorney


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Day 2 – Forgiveness in Mediation 8:30 am – 9:00 am ………Registration 9:00 to 10:30am …………Eileen Barker Forgiveness: Ultimate Tool for Conflict Resolution

4 Levels of Conflict Resolution

Transforming Conflict

Impact of Conflict on Clients

Why We Resist Forgiveness

Exercise & Discussion

10:30 am to 10:45 ………….. Break 10:45 am to 12:15 pm……. Eileen Barker Bilateral Forgiveness

Creating the Conditions for Apology and Forgiveness in Mediation

Eliciting Empathy

The Role of Nonviolent Communication (NVC)

Exercise & Discussion 12:15pm to 1:30pm Lunch … (HMA Annual Meeting) 1:30pm to 3:00pm …………. Eileen Barker Unilateral Forgiveness

Overview of the forgiveness process

Power of the Story

Eliciting and Deconstruction the

Exercise & Discussion 3:00 pm to 3:15 ……………. Break 3:15 pm to 4:35 ……………. Eileen Barker


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Putting Forgiveness Into Practice: How Attorneys and Mediators Can Help Their Clients Forgive

Incorporating Forgiveness into Practice

Putting Forgiveness on the Menu

Direct and Indirect Ways to Raise the Topic

Getting Started: Practical Ways to Begin


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Forgiveness: What is it?

Forgiveness is a decision not to pursue resentment or revenge.

Forgiveness is taking back your power.

Forgiveness is the peace you feel when you let go of unresolved grievances.

Forgiveness is taking responsibility for how you feel.

Forgiveness is about your healing and not about the people who hurt you.

Forgiveness is becoming a hero instead of a victim.

Forgiveness is a learnable skill.

Forgiveness is a choice.

Forgiveness is for the person forgiving and no one else.


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What is it Not?

Forgiveness is not condoning unkindness.

Forgiveness is not forgetting that something painful happened.

Forgiveness is not excusing poor behavior.

Forgiveness does not have to be a religious experience.

Forgiveness is not denying or minimizing the hurt.

Forgiveness does not necessarily mean reconciling with the other person.

Forgiveness does not mean giving up feelings.


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Cost/Benefit of Forgiveness

Anger and Resentment

Increase:

Heart Attacks

Cardiovascular

disease

High blood pressure

Muscle tension

Stress

Weight gain

Cancer

Increased negative emotions: Blame Depression Hopelessness

Acceptance and Forgiveness

Improves:

Cardiovascular system: Lower heart rate, Lower blood pressure

Nervous system

Immune system

Ability to think clearly and creatively

Less muscle tension

Positive emotions:

Hope Caring Trust Happiness Gratitude Faith


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Levels of Conflict Resolution

Intervention

Result

Degree of Resolution

1. Stop the fighting

Cease-Fire

De-Escalation

2. Settle the issues

Agreement

End of the Dispute/Lawsuit

3. Address feelings and needs

Needs Addressed

Parties able to move forward

4. Forgiveness

Closure

Parties at peace with the past

Derived from Kenneth Cloke, Crossroads of Conflict, Janis Publications 2006


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Two Types of Forgiveness

Bilateral Forgiveness

Forgiveness is exchanged on an apology or demonstration of remorse

Quid pro quo

Requires participation of both people

Forgiveness is only possible if the person who caused the harm satisfies the condition of apology/remorse

Primary benefit is restoration and healing between those involved, and it can serve as precursor to reconciliation

Primary drawback is the one who caused the harm has all the power, so it’s not always available

Unilateral Forgiveness

Forgiveness is undertaken by one party alone

Requires nothing of the other person

Forgiveness is unconditional

Person harmed has the power to forgive if they so choose

Primary benefit is that it is always available, profoundly healing for the one doing it and there are no drawbacks

Can serve as a precursor to bilateral forgiveness


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Reflection Questions - 1

1. What role has forgiveness played in your own life? 2. How have you benefited from forgiveness (if you have)? 3. What has been hardest for you about forgiveness? 4. Have you had clients in the past that you felt would have benefited from forgiveness? If so what types of cases and clients were they? Are there any common characteristics? 5. Do you currently have clients who you believe would benefit from forgiveness? If so, what types of cases and clients are they? Are there any common characteristics?


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Types of Case In Which Forgiveness Can Apply

When a significant personal relationship is at stake including those

involving spouses, siblings, parents, children, neighbors, colleagues, co-

workers, and business partners

When there is no future relationship but the parties want closure

When intense emotions are getting in the way of effective negotiation and

decision-making

When the desire for revenge or retaliation is preventing the consideration

of reasonable settlement offers

When there is an inordinate amount of suffering over something that

occurred a well into the past


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Potential Role of Forgiveness At Different Stages of Mediation

Prior to Mediation (Unilateral)

Helps parties resolve anger and blame

Enables them to participate effectively in mediation

During Mediation In Caucus (Unilateral)

Helps person manage anger and function more effective

Reduces unrealistic demands fueled by the desire for revenge

During Mediation (Bilateral)

If both parties are open to it, the exchange of apology and forgiveness can be supported

Enables repair of relationship and/or closure

Post-Mediation (Unilateral)

Forgiveness is always available

Enables person to make peace with whatever has occurred


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Assessing the Needs of the Client

What is at stake for this person, beyond the immediate legal issues?

Is the conflict impairing their physical health?

Is the conflict impairing their emotional well-being?

Does the person appear able to take matters in stride, or is the person

suffering inordinately? And if the latter, then for how long have they been

suffering?

Can this person participate in mediation, negotiation and/or litigation

effectively? Is their anger, resentment or hurt getting in the way?

How likely is it that the mediation (or litigation) will meet this person’s

needs, not just legally and financially, but emotionally as well?

How likely is it that the outcome of the mediation (or litigation) will bring

resolution and closure for this person?

Do you believe this person would benefit from forgiveness and making

peace with what has occurred?


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The Ethics of Forgiveness: Ten Tips for Lawyers

1. Think Different. Expand your thinking to include forgiveness as a

possibility in legal disputes.

2. Forgiveness is not inconsistent with zealous advocacy. Zealous advocacy does not require aggressive hardball litigation. The term zealous advocacy has been so distorted and misused, some states (e.g., New York and Ohio) have removed it from their codes of ethics for lawyers.

3. The true mandate of zealous advocacy is to act in the client’s best interest. The client’s best interests might well include things like peace, dignity and healing.

4. Learn about forgiveness so you can assess whether forgiveness is in a client’s best interest and counsel clients accordingly. This includes understanding (1) what forgiveness is and is not, (2) the different types of forgiveness and (3) the benefits of forgiveness.

5. Put forgiveness on the menu of available options. By introducing the idea, it gives clients permission to talk about forgiveness if and when they are ready. Be supportive of clients who express the wish to forgive.

6. Clients who are extremely angry, bitter or resentful often have the most to gain from forgiveness, as are clients who have become locked in a stance of victimization.

7. If you can’t talk about forgiveness directly, unbundle it. Talk about topics such as: healing anger, letting go of grudges, keeping things in perspective, having compassion for the other person, and accepting past events that cannot be changed. These are valuable steps for the client, whether or not the word “forgiveness” is used.

8. Forgiveness is not right for every case and every client. It is never

appropriate or helpful to impose a sense of obligation or pressure to forgive on another or on one’s self. Above all, forgiveness is a choice..

9. Even though we are told from childhood that we should forgive, rarely are we taught how to forgive. When appropriate, refer clients to a forgiveness class or qualified forgiveness coach.

10. Learn about forgiveness and practice forgiveness. It will benefit you

professionally and personally.


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Reflection Questions – 2

1. Think of a time when you were in a conflict with someone. How did being in conflict effect you? How difficult or easy was it for you? How stressful was it?

2. What have you observed about how conflict impacts your clients? Is it harder for some clients than others, and if so, which ones is it hardest for? Are there any common characteristics?


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Reasons for Not Forgiving

1. “They don’t deserve it.”

2. “If I forgive, they’ll do it again.”

3. “It’s too hard.”

4. “I don’t know how.”

5. “Why should I forgive when I’m right?”

6. “What happened is unforgivable.”

7. “If I forgive, it means what happened was ok.”

8. “By holding onto my anger, I can keep punishing them.”

9. “I’d rather have revenge.”

10. “Holding this over them give me power.”

11. “There are advantages to remaining a victim.”

12. “This way, I can keep blaming them.”

13. “If I stay angry, I don’t have to feel the pain underneath.”

14. “Forgiveness would make me look weak.”


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Reflection Questions – 3

1. Think of a time when you did not want to forgive someone. What were some of your reasons for not wanting to forgive?

2. Think of a time when you wanted to forgive someone. What were some of your reasons for wanting to forgive?

3. What do you anticipate would be some of the reasons your clients might not want to

forgive?

4. What do you anticipate would be some of the reasons your clients might want to forgive?


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Raising the Topic of Forgiveness

Have you considered forgiving the other person for what occurred?

Do you think it would benefit you to forgive?

Do you want to forgive? Would you if you knew how?

What would you need in order to forgive?

Is there anything you want to ask forgiveness for?

Is there anything you need to forgive yourself for?


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Raising the Topic - Indirectly

How has this situation affected you?

What has it cost you in terms of health, well-being and happiness?

What will it cost you if it continues?

Is it causing a strain in your life?

Do you think it benefit you to let go of some of this?

Would you want to do so if you knew how?


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Intake Form

1. What is your goal for our work together? 2. On a scale of 1-10 (1 being least possible and 10 being most possible), how well do you think you understand what is going on with the other person? _______ 3. On a scale of 1-10 (1 being least possible and 10 being most possible), how well do you think the other person understands you? _______ 4. What would you most like the other person to understand about you? 5. What would you most like to understand about them? 6. On a scale of 1-10 (1 being least possible and 10 being most possible), how

much do you experience each of the following in connection with this situation? Anger _____ Anxiety _____ Resentment _____ Confusion _____ Blame _____ Disappointment _____ Hurt _____ Frustration _____ Sadness _____ Mistrust _____ Grief _____ Betrayal _____ Fear _____


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7. What has this conflict cost you so far? How has it impacted your life, including

health, work, family, other relationships, finances and general well-being? 9. What will it cost you (not just financially, but also emotionally, physically and spiritually) if this conflict continues as it is, or gets worse? 11. How might this situation present a growth opportunity for you? 12. Is there anything for which you would like to apologize to the other person? 13. Would you like to receive an apology from the other person and if so, for what? 14. Have you considered forgiving the other person(s)? (Y/N) ___ Would you want to forgive them if you had the tools to do so? (Y/N) ___ Have you forgiven yourself for your own role in the conflict? (Y/N) ___ 15. What do you need in order forgive and achieve closure?


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Bilateral Forgiveness

Creating Conditions for Apology and Forgiveness

1. Assessment: Stepping in Mindfully

What are the needs/goals/intentions of clients?

Are clients motivated to repair their relationship?

To what extent are clients able to de-escalate the conflict and slow down?

To what extent are clients able to hear/understand each other?

2. Building a Safe Structure

Are you able to build rapport with each client? To what extent do the clients feel heard and understood by

you and by each other? Can clients agree on boundaries and ground-rules that

maintain safety, including “taking turns.” 3. Eliciting and Facilitating Vulnerability & Empathy

Invite undefended sharing in small doses (not elaborate stories) as well admission, accountability

Elicit empathetic response

Slow down to track what’s being evoked


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Facilitating Mutual Empathy in Mediation 1) Sharing Vulnerably. Invite first person to share about his or her feelings and needs (without blame) as openly as possible. Encourage them be specific including feelings of hurt, sadness, anger and underlying worries and fears. Help them name the emotional impact. 2) Giving Empathy. Encourage the other person to stay emotionally present, non-defensive and show that they care about the first person’s experience. Invite them to acknowledge that the first person’s feelings make sense and are understandable, and to demonstrate that they see and understand the significance of the first person’s hurt/pain, etc. 3) More Sharing. The first person shares more about the core of the hurt by expressing vulnerability instead of blaming or defining the other. Encourage them to move out from behind the protective wall and share their deeper feelings. When they see the other person is not defensive and is listening, it is safer to explore further and to go deeper. Have then take the elevator down now, and share more about the core of their hurt/pain etc. 4) More Empathy. The person who has contributed to the hurt needs to be empathetic. He or she needs to take some ownership and accept responsibility for how they contributed to the hurt. They need to demonstrate that they “get it.” The first person needs to see that the other person feels empathy and to hear the expression of sincere feelings of regret and remorse. In order to be non-defensive and feel and show empathy for each other, both people need to feel safe. 5) Expressing Needs . The hurt person is now invited to talk about what they needed from the other person then and what they need now. 6) Caring Response. The other person is invited to respond in a caring manner. This provides the antidote to the hurt by showing that they care, by being present and by showing that they are Accessible, Responsive ,and Emotionally Engaged. (e.g. I care, I am here for you now, your needs matter to me). When the first person feels heard and understood, repeat with the second person


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Feelings - When Our Needs Are Not Being Met

afraid

aggravated

agitation

alarm

aloof

angry

anguish

animosity

annoyance

anxious

apathetic

apprehensive

aroused

aversion

bad

beat

bitter

blah

blue

bored

breathless

brokenhearted

chagrined

cold

concerned

confused

dejected

depressed

detached

disappointed

discouraged

disgruntled

disgusted

disheartened

disinterested

dislike

displeased

distressed

disturbed

downcast

downhearted

dread

edgy

embarrassed

embittered

exasperated

exhausted

fatigued

fear/ful

frightened

frustrated

furious

gloomy

grief

guilty

hate

heavy

helpless

hesitant

horrified

horrible

hostile

hurt

impatient

indifferent

infuriated

inquisitive

insecure

insensitive

intense

irate

irked

irritated

jealous

jittery

lazy

let-down

lethargy

listless

lonely

mad

mean

melancholy

miserable

mopey

nervous

overwhelmed

passive

perplexed

pessimism/istic

provoked

puzzled

rancorous

reluctant/ance

repelled

resentful

sad

scared

sensitive

shaky

shocked

skeptical

sleepy

sorrowful

sorry

started

surprised

suspicion

terrified

thwarted

tired

troubled

uncomfortable

uneasy

unglued

unhappy

unsteady

upset

vex/ed/ation

weary

withdrawn

worried

wretched

©1995 Marshall B. Rosenberg, Ph.D.

Needs Inventory


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Autonomy

Choose one’s dreams/goals/values

choose one’s plan for fulfilling one’s

dreams/goals/values

Celebration

celebrate the creation of life

celebrate the loss of life

(mourning)

Integrity

authenticity

meaning

creativity

Interdependence

acceptance

closeness

consideration

contribute to the enrichment of

life (exercise one’s power by

giving that which contributes to life)

empathy

honesty

empowering honesty (that which

enables us to learn from our

limitations)

appreciation

love

reassurance

support

trust

warmth


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Physical

air

food

movement/exercise

protection from:

-- life-threatening forms of

life: viruses, bacteria, insects

-- predatory animals (especially

human beings)

rest

sexual expression

shelter

touch

water

Play

Spiritual communion

beauty

harmony

inspiration

order

peace

©1995 Marshall B. Rosenberg, Ph.D.


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Unilateral Forgiveness

Summary of Steps in Forgiveness Workbook

Choosing What to Work On

Telling the Story

Deconstructing the Story

Looking at the Impact of the Story

Working through the Emotional Layer

Discovering the Gifts and Learnings

Addressing Resistance

Finding the Positive Intention

Forgiving One’s Self

Rewriting the Story

Integrating the New Story

Completing


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Identifying The Story

1. Choose a relationship or situation in which you’d like to forgive.

2. Describe the situation. What happened?

3. Can you see that you have created a grievance story?

if so, continue to the next page ….


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Deconstructing The Story

1. In the story, in what way do you feel powerless?

2. In the story, who did you blame and for what?

3. Regarding what happened, how did you take it personally, i.e., what did

you make it mean about yourself?


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Developing Competence to Advise Clients on Forgiveness

Learn about forgiveness

Practice forgiveness: Experience the benefits first-hand

Put forgiveness on the menu of options for clients

Discuss the benefits and risks

Support clients who want to forgive

Make referrals to mediators, counselors and coaches who can help clients

forgive


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Getting Started: Practical Ways to Begin

Here are some of the ways lawyers and mediators are already doing

this:

1. Putting questions about “forgiveness” on the intake forms.

2. Recognizing the emotional “back story” in various cases and how

this plays out in resolution.

3. Helping plaintiffs to take power and end feeling like the “victim”.

4. Learning about forgiveness so they are prepared to give an

educated response if a client expresses a desire to forgive.

5. Doing their own forgiveness work so they know what may be

involved.

6. Putting forgiveness on the menu of options available to clients.

7. Talking with clients about the benefits of forgiveness in appropriate

cases.

8. Providing referrals to forgiveness coaches when needed.

9. Using the teachings of forgiveness to inform their work and help clients move forward, without necessarily even mentioning the word

“forgiveness.”

9. Enlisting the help of the mediator in recognizing the emotional component of the case and the role of forgiveness.


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Keys to Helping Clients Forgive

Be unattached. No agenda. No judgment.

The goal is to help the person make an informed CHOICE.

Timing is everything. Pay attention to where the person is relative to the

stages of loss.

When appropriate, present forgiveness as a possible option.

Speak from personal experience of when and how forgiveness has been

helpful (to you or other clients) in similar situations.

Develop mastery yourself: Learn about, embody and practice

forgiveness!

forgiveness in legal disputes and other conflicts with ... · forgiveness is taking responsibility...

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