I am following my feeling that not many potential users have an opportunity to quickly grasp what kind of the mental change is required in order to embrace mediation. Primarily, and I am here recalling my own experience, the whole thing clicked when I understood that as a lawyer I was trained in “embodying” the alleged facts into the fortified legal positions. It took me a couple of years and several mediation trainings to understand that such legal positioning often ends up not only removed from the entire set of the facts pertinent to a dispute, but that it actually further distorts the “realities” which parties have experienced leading to their misunderstandings. This path apparently often results with the disputants being owned by their dispute. In overcoming those consequences, or might I call them handicaps, of legal education some of the most successful tools appeared to be those that are pointing to the limits of our perceptions setup.
One exercise is nothing but a drawing of a body which appears to the viewer to be a video depicting a female turning on the tip of her toes clockwise. Or is it counter-clockwise? Well, there is no right answer as the perception of the direction of the movement is fully created by our own brains. Not only that there is actually no movement (it is not a video, it is just a drawing), but different persons will see the body turning clockwise and the others counter-clockwise, all depending on the dominant half of their brain (right vs. left brain). Moreover, not only that different persons will have a dominant half of their brain setting the direction of their turns, but a single person might experience seeing different directions of turning, depending on how dominant each half of their brain is at different moments.
The other exercise is somewhat more time demanding as the participants have to read a short write-up that is stylistically appearing to be a brief newspaper report. This is followed by a set of questions that offer “true”, “false” or “I don’t know” answers. During the mediation training I participated in I have witnessed some two dozen lawyers confidently selecting “true” or “false” answers, while all of the questions had to be answered by the “I don’t know” answer. The facts required to answer the questions are actually not contained in the text. This exercise is intended to demonstrate how our brain tricks us into making up reality. This is a consequence of our tendencies to fill up the perceptive voids with our own experiences and as a consequence, construct the reality which in fact did not happen. The discussion that ensued the completion of the questionnaire showed to the participants that they were actually prepared to discuss and defend position which they have constructed, regardless of the fact that the positions were based on the facts that were not really available. This was an incredible experience which demonstrated to the participants that mediation, unlike the legal process, takes into account such traits when it deconstructs the positions while trying to identify and affirm the parties’ true interests.