Late in 2019, when it became apparent that the Covid-19 restrictions would remain in place, I decided that beginning a meditation/mindfulness practice might come in handy. After all, this was the time where inner peace could only be a benefit.

The teacher on the app began with the saying unattributed (but I found it), “You can't stop the waves, but you can learn to surf” –  Jon Kabat-Zinn. As intended, it got me thinking. So the practice of meditation can bring something of use to mediation. That should be no surprise because even in the basic mediation courses I took in 1995, the emotional state of the participating parties was something that needed to be considered. Calming parties, increasing their comfort, reassuring them, asking them to be mindful (even if not practicing mindfulness) encourages resolution. Getting the parties to understand that trying to swim against the current (or waves) is difficult and often counterproductive. Exhausting too! If we as mediators can teach the parties to take control for themselves and manage their thoughts and the possible outcomes, essentially teaching them to surf, we are more likely than not to achieve a resolution.

Enough of that analogy. I am reminded of the mediator at a continuing education programme who thought that we ought to consider burning incense in the break out rooms in order to encourage calm. Well, you won't find me doing that in any mediation I hold, and that practice is more or less irrelevant in the Zoom environment, but it does raise an interesting issue. How to encourage the parties to be mindful, in the moment and focused during the process is a critical part of the mediation.  Limiting distractions (an ever growing problem when using Zoom), maintaining focus and banishing outside thoughts is hard to achieve in the midst of a mediation, particularly with home or office Zoom interference. It is even difficult when practicing meditation.

Does this sound too “touchy-feely” for a legal environment? Is it possible counsel will reject the notion that they must learn to surf? Maybe, but in the meantime, mediators already bring these concepts to mediation. You may not even know they are doing it. The better ones are, I suspect, better at it.

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