Many thanks to Gail Silverstein, Clinical Professor of Law at the UC Hastings College of the
Law, for this guest post about the ABA Section of Dispute Resolution’s recent conference. Gail co-directs and co-teaches an Individual Representation Clinic and a Mediation Clinic at UC Hastings.

 

The 19th Annual Spring Conference of the ABA Section of Dispute Resolution took place in my hometown of San Francisco, California, on April 19-22, 2017. While participants in the March for Science gathered nationally, conference attendees on Saturday morning learned about facilitating dialogue across difference from the team at the Harvard Negotiation and Mediation Clinical Program at Harvard Law School in a session entitled “Dialogue through Difference: Expanding the Legal Skill Set.”

Harvard’s political-dialogue initiative came out of observing both a national need for dialogues across political differences since the 2012 election and a need at the law-school level as students seemed unable to engage politically in the classroom beyond one standard “liberalish” viewpoint. The three goals of the initiative include:

1. Educating students to skillfully facilitate and participate in dialogues across difference
2. Serving the community by providing facilitation services
3. Creating and sharing pedagogy in this area to build the field

The session described how the initiative is faring thus far and also introduced a new educational video, available soon, entitled “Police-Community Dialogue: A Facilitated Conversation Featuring Commentary with Harvard Law School Professor Robert C. Bordone.” (See trailer for this video here.)

Session speakers described how the skillset needed for facilitating dialogue across difference contrasts with those of the traditional lawyer. Three of these skills include building connection, unlearning control, and creating comfort with discomfort. Despite the contrasts with the traditional lawyer archetype, all of these named skills relate to listening as both a skill and value that is essential for today’s lawyers.

Building connection

In these dialogues, there is often not a particularized set outcome. Rather, facilitators need to help people connect to one another and their different perspectives and to try to understand where people are coming from in their viewpoints. For Tobias Berkman, who facilitated the police-community dialogue featured in the video, the most important questions used in this sensitive dialogue were ones that engaged the participants personally—for instance “How have these issues impacted you personally?” and “What to do you bring to this?”

Even more important than asking the right questions, listening is the key way we help to build connection with others. The kind of listening that these difficult facilitations require is likely the same type of listening that is helpful to lawyers in early client interviews or during emotionally laden conversation with clients: an open-ended, compassionate listening. I often refer to the work of Peter Elbow on “methodological belief” when I teach my students this type of connection-building listening.  To Elbow, methodological belief is the discipline of listening with the intention to believe what the speaker is saying.  This type of listening, Elbow advances and my experience confirms, allows the listener to feel the power of the other person and his or her ideas, which creates the connection and understanding to which we aspire.

Unlearning control

Second, political-dialogue facilitators need to unlearn that they need to control the process to have a smooth external appearance. Tobias Berkman shared that what looks and feels like a safe place to some participants is actually a “delusion” that privileges a certain kind of engagement. While some appreciate calm and rational conduct, anger and hostility are important for others to express, in order to command respect and power. To maintain a composed exterior on the dialogue does not indicate success for a facilitator as it may be clamping down on important emotions and modalities of expression.

Again, listening is a core component of unlearning control as it is the manner by which we allow the outside world to affect us. In comparison to speaking, which is one of the primary tools by which we impose ourselves on the world, when we listen we allow ourselves to be affected by others. As such, listening is a type of ceding control over ideas, emotions, and narratives to others. All lawyers need to find a good balance between speaking and listening to be effective.

Creating Comfort with Discomfort

Third, political-dialogue facilitators need to build their own comfort with discomfort as they work to move toward the disagreements, instead of shying away from conflict and the multiplicity of emotions. Berkman, along with his co-facilitator Danielle Bart, emphasized that being able to maintain and sustain vulnerability while facilitating can be incredibly powerful and can function as a model for participants. At the same time, it can be demanding for a facilitator to show up authentically as a whole person, particularly in high stakes situations. Rachel Viscomi who teaches Harvard’s “Lawyer as Facilitator” class to law students finds instructive Brené Brown’s vulnerability motto in helping others learning to be genuinely present in these situations:

“Don’t shrink. Don’t puff up. Stand your sacred ground.”

One barrier to effective listening can be our discomfort with our own internal emotions or those that others are expressing to us. Instead of being able to focus on the other person, we become distracted internally or shut down. This lesson of leaning in to the discomfort, which I learned in my mediation training years ago, is a key piece in the internal work necessary to be an effective and skillful listener.

To conclude, in this increasingly polarized world, augmenting lawyers’ skillset to both lead and participate in political dialogue is an incredibly important effort. It harkens to Professor Anthony’s Kronman’s “lawyer-statesman ideal”—that he believed to be failing—where the lawyer possesses qualities such a great practical wisdom, sympathy for others, and a devotion to the public good.

Kudos to the Harvard Negotiation and Mediation Clinic for responding to society’s needs and keeping this ideal alive.

Additional resources:

Anthony Kronman, The Lost Lawyer: Failing Ideals of the Legal Profession (Harvard University Press, 1995).

Peter Elbow, “Methodological Doubting and Believing: Contraries in Inquiry,” in Embracing Contraries: Explorations in Learning and Teaching (Oxford: Oxford University Press, 1986).

Harvard Negotiation & Mediation Clinical Program’s Blog

Access to Harvard Law School’s Police-Community Dialogue Case Study (fee based)