ADR SPOTLIGHT: The blame-shame game in mediation

By Laura A. Athens "Those who blame others have a long way to go on their journey. Those who blame themselves are halfway there. Those who blame no one have arrived." -Chinese Proverb (with gender neutral language) Our legal system, which focuses on determining fault, liability and culpability, encourages parties to make accusations and to blame one another. Anyone who has participated in mediation knows the blame game is common and can sabotage a successful outcome. To effectively manage blame, the mediator must help participants to recognize and address the shame that underlies it. Legal counsel can help manage the blame-shame dynamic by letting the mediator know, in advance, that this issue may exist in their case or by using some of the tools described in this article to work with their clients prior to mediation to increase the likelihood of a favorable outcome. What is Shame? You may wonder what is shame? What does it have to do with blame? And how is it distinguishable from guilt? Dr. Brené Brown, professor, researcher, author, speaker and preeminent expert on shame and vulnerability, describes shame as the painful emotion of feeling flawed, inadequate, and unworthy of love and belonging. According to Dr. Brown, shame is universal and the less we talk about it, the more control it has over our lives. She distinguishes shame from guilt: shame means "I am bad;" whereas, guilt means "I did something bad." Shame is humiliating, demoralizing and has a negative impact on our identity and sense of self-worth. It can lead people to believe they have an immutable, fundamental character flaw that cannot change. In contrast, guilt is about behavior and feeling bad about something said or done. Guilt involves empathy and requires us to put ourselves in the position of the person we harmed. Guilt can be a powerful and constructive tool for change because it may motivate a person to express regret, apologize, or make amends. Guilt may also lead to meaningful, positive, long-term behavioral change. Shame, on the other hand, often leads to destructive, or harmful behaviors, such as abuse, addiction, aggression, or depression. Common Reactions to Shame Shame and blame are two sides of the same coin. Shame can lead to four basic responses: blaming others, blaming yourself, avoidance, or withdrawal. None of these responses are conducive to conflict resolution. When shame becomes unbearable, there is a natural tendency to blame others as a defense mechanism. Someone who feels ashamed may externalize the blame by lashing out verbally or physically and projecting blame onto others to relieve the pain of shame, make themselves feel better or to escape responsibility. Those who blame others lose the opportunity to learn from mistakes and improve their interactions because they falsely believe they do not have any faults and fail to take responsibility for their role in a conflict. In mediation, blamers may insist they are right, attempt to control, manipulate, intimidate, criticize, or insult others. They also may engage in "gas lighting," or lying to purposely create confusion in the other party causing them to question reality. Blaming others is easy; it is much more difficult to look beneath the surface to address subconscious feelings. Attacking others is likely to lead to defensiveness and undermine resolution of the dispute. Those who respond to shame by blaming themselves and internalizing the pain may feel defective or unworthy. In mediation, they may express self-pity, feelings of failure, be overly critical of themselves, or dwell on the past. Some may be prone to perfectionism and may focus on pleasing others and gaining their approval. They may capitulate or easily compromise their own interests. Holding on to the victim role perpetuates helplessness and may result in the loss of an opportunity for positive change. Others may respond to shame by trying to avoid or deny it. They may engage in addictive behaviors to numb the pain of shame. In mediation, they may resist talking about shame, may try to divert attention, change the subject, or create a distraction. This approach to shame permits avoidance and may be more comfortable than dealing with the shame but does not promote resolution of a conflict. Finally, some may withdraw, shut down, or isolate themselves to escape from the pain of shame. During mediation, they may appear distant, detached, and disconnected. They may sit apart from the group, fail to make eye contact, or assume a defensive posture with arms, and legs crossed. They may seem indifferent to praise or criticism or show little emotion. This approach to shame is also ineffective because emotions are intensified when they are hidden or repressed. These four behavioral responses to shame typically occur on a continuum, from mild to severe; they also may manifest with some people, but not with others. For example, a person may blame those who are close to them, such as a spouse or children, yet may not demonstrate blaming behaviors with friends or co-workers. Blame may occur at different times, under different situations, or in response to certain triggers. None of these four responses to blame will fix the situation or resolve the conflict. Strategies to Address Shame When time and effort are devoted to addressing and working through shame and blame, mediation can be transformative for the parties. -Demonstrating Empathy and Compassion Empathy is a powerful strategy to counteract shame. According to Dr. Brown, empathy is the antidote to shame. Empathy is distinguishable from sympathy. Empathy involves feeling with someone, whereas, sympathy involves feeling for another. Empathy has two basic components: emotional and cognitive. Emotional empathy is vicariously experiencing another's feelings. Cognitive empathy is experiencing the thoughts and perspective of another. Professor Theresa Wiseman has identified four attributes of empathy: the ability to view a situation from another person's perspective, be nonjudgmental, understand another's feelings, and communicate your understanding of those feelings. A skilled mediator facilitates the parties' efforts to work through the pain of shame and move beyond blame. The mediator demonstrates empathy and compassion by listening to understand, rather than judge; by asking open ended questions to learn more about the parties' concerns; and by acknowledging their pain. A useful strategy is to identify the emotions underlying a party's words. Naming the emotion is constructive because it tends to diffuse the emotion and serve as a bridge between feelings and thoughts. Research has demonstrated that verbally labeling an emotion decreases activity in the amygdala, the region of the brain associated with emotions, and increases engagement of the prefrontal cortex, the reasoning portion of the brain. This, in turn, creates an opportunity to reflect, consider options and select a response. Clinical Psychiatry Professor and author Daniel Siegel refers to this phenomenon as "name it to tame it." Acknowledging or validating a party's painful emotions can be helpful. Validation is different from affirmation and does not require agreement or approval. Instead, validation conveys to others that their emotions and beliefs are heard and understood. Shame can be normalized and intense emotions can be neutralized by pointing out to the parties that they are not alone and others have dealt with similar struggles. -Exploring Underlying Emotions Mediation offers a safe space for parties to vent anger, fear, sadness, shame, frustration, disappointment, and other uncomfortable emotions. By maintaining a calm, authentic, and consistent presence, the mediator and the parties' legal counsel can provide support for the expression of emotions that if left unsaid could interfere with resolving the conflict. Demonstrating respect and expressing appreciation for the parties' sharing of painful emotions can lead to a better understanding of their needs. According to the Fundamental Interpersonal Relations Orientation (FIRO) theory of interpersonal behavior, everyone has three basic needs: the need to feel significant, competent, and likable. Underlying these needs are three corresponding fears of being ignored, humiliated, or rejected. These fears, in turn, lead individuals to seek inclusion, control, and affection, or connection. Those who tend to blame others may have a need to feel competent, may fear humiliation and seek to control others. Conversely, those who tend to blame themselves may crave approval, fear rejection, and seek affection. Identifying which feelings and fears the parties are grappling with can lead to an understanding of what they need. Dr. Susan David, Harvard Medical School psychologist and author of the book "Emotional Agility: Get Unstuck, Embrace Change, and Thrive in Work and Life," believes that accurately identifying and labeling emotions helps individuals to determine the precise cause of their emotions. Once they understand the cause of the emotions, they are in a better position to choose actions that align with their values. Dr. David defines emotional agility as the ability to experience feelings with curiosity, compassion, and courage. To raise the parties' awareness of when they are experiencing shame or projecting blame, the mediator should encourage them to express their underlying emotions and take responsibility for their feelings and actions. At times, it may require some reality-testing to help them realize they may be over-reacting to the situation. Word choice can influence the experience, urging them to say: "I feel sad, angry, frustrated, alone," rather than stating: "I am sad, angry, frustrated, alone" helps them to separate their feeling from their identity and to understand the condition is not permanent. Choosing to say: "I feel ___ about or when" is preferable to "I feel ___ because." It reinforces the reality that a person is responsible for their own emotions, no one else causes them. The other party or their representative may trigger certain emotions, but they do not cause the specific emotional or behavioral response because each of us has the power to choose our reaction. Describing the feelings triggered by the other person's conduct, talking about how they felt, and what could be done differently, or what could improve the situation is more productive than blame. -Facilitating Perspective Taking The mediator can stimulate perspective taking by shifting the dialogue from a hyper-focus on disputed facts and fault to a discussion of the thoughts and feelings the parties experienced when the incident occurred. It may be productive to ask the parties and their legal counsel: what is their understanding of the other party's perspective; what assumptions are they making; are they omitting any relevant facts or circumstances; and do they consider their statement to be the only accurate version of the events that transpired. Helping them to understand there is no absolute truth and people often have diverse, yet equally valid, perspectives will ease the transition from blaming to problem solving. Separating the people from the problem is also useful in promoting joint problem solving. There is a difference between who a person is and the action she or he engages in. It is also essential to recognize that an individual's age, race, religion, culture, sexual orientation, gender identity, and personal history will have a significant impact on their perspective and behavior. -Encouraging Responsibility and Accountability When each party takes responsibility for their own part in the conflict, they can move forward. This means taking responsibility for their choices, in terms of actions and inaction, and being accountable for the consequences of their actions, including intended as well as unforeseen results. Although their intent may have been honorable, or at least not pernicious, the impact can be harmful. To promote responsibility and accountability, the mediator may ask the parties and their legal counsel whether they have faced a similar challenge and how they overcame it, what they would have done differently if they could go back in time, and what they plan to do in the future under similar circumstances. For those who are feeling powerless or stuck in the past, it may be helpful to emphasize that although we cannot control our circumstances, we can control our reaction to those circumstances because, as Dr. Viktor Frankl, psychiatrist and Holocaust survivor, eloquently stated: "Between stimulus and response, there is a space. In that space is our power to choose our response. In our response lies our growth and our freedom." Some individuals espouse a mistaken belief that it is too late to apologize, but it is never too late to ask for forgiveness and make amends. Apologizing addresses the harm, fosters repair and may restore or strengthen the relationship. Working through shame can lead to courage. Those who are harmed face a choice to share their story, work through the pain, release the past and forgive to reach a place of inner peace or remain stuck in the past, harboring resentment, and being filled with regret. Forgiving heals the pain and releases anger and resentment. Forgiving is different from condoning or excusing the hurtful behavior. Instead, it is a choice that sets the harmed individual free and permits reconciliation and closure. -Focusing on the Future An effective mediator will remind the parties they have choices. Part of the mediator's job is to teach the parties to replace blame with curiosity and adopt a mindset of learning from their mistakes, rather than blaming themselves or others or hiding from shame. Blame and shame are deeply rooted in the past. The mediator can help the parties shift the focus from the past to the future, move toward a new, more positive narrative and have faith in the promise of tomorrow. Hope and optimism are contagious. Capitalizing on strengths and mutual interests is empowering and gives the parties hope. Encouraging the parties to accept the past, which cannot be changed, and to anticipate and envision positive change, rather than dreading a disastrous outcome, becomes a self-fulfilling prophecy that has a beneficial impact on the ultimate outcome of the mediation. A mutually satisfactory resolution can be accomplished by asking the parties, with guidance from their legal counsel, to clearly convey what they want in positive and specific terms, rather than expressing what they do not like or do not want. Once the parties have an opportunity to convey their wishes, it may help to take a break to allow time to reflect on the options, to consult with legal counsel and choose the path they wish to pursue. Conclusion Addressing shame and exploring the emotions that underlie shame and blame helps the parties to gain perspective about each other's needs and interests. Once they have deepened their understanding of one another's point of view and experience of the controversy, they are better able to acknowledge responsibility for their part in the conflict and focus on the future. Honest communication and a desire to learn will uncover viable options for resolution of the dispute. Creating choices promotes a sense of control over the outcome. Focusing on finding a mutually agreeable solution, instead of focusing on who is to blame, is likely to lead to sustainable results more easily and much sooner. -------- Laura A. Athens is an attorney, mediator, facilitator and arbitrator who has over 30 years of combined litigation and alternative dispute resolution (ADR) experience. Athens is an associate of Professional Resolution Experts of Michigan, LLC (PREMi, http://premiadr.com) and is on the roster of the American Arbitration Association (AAA) Consumer Panel; DeMars & Associates, CAP Ford Motor, Porsche, RV and Home Construction Warranty Programs; and National Center for Dispute Settlement Automotive Arbitrators. She has served on the State Bar of Michigan Alternative Dispute Resolution Council and as a former chair of the Oakland County Bar Association ADR Committee. As an adjunct professor at Wayne State University Law School, Athens taught education law, health law and bioethics. She also taught Legal Research and Writing at Washington University School of Law as a visiting assistant professor. ----- In memory of William Louis Weber Jr., December 9, 1934 - October 17, 2021 William Louis Weber Jr., of Kenmore, Washington (formerly from Beverly Hills, Michigan) passed away peacefully surrounded by his beloved wife, Bridget and five devoted children William III and his wife Sherry, Clinton and his wife Sue, Kurt and his wife Anna, Vincent, and Claire. He is also survived by his five cherished granddaughters Charlotte, Sandra, Olivia, Stella, and Frances, and two dear grandsons William IV and Zane. Bill was founder and executive director of the Professional Resolution Experts of Michigan LLC (PREMi), an invitation-only association of Michigan's top mediators and arbitrators. In the formation and development of the PREMi organization, he was a pioneer and visionary leader. He assembled a group of highly talented, passionate and collaborative ADR providers devoted to excellence in the ADR field. Under his capable leadership and with his energy, optimism and enthusiasm, the organization grew and thrived. Bill's legacy of dedication to ADR will have a positive impact for many years to come. He served as a mentor and role model to newer members of the Bar and the ADR profession and always treated everyone with dignity and respect. Interim Executive Director Martin Weisman stated: "Bill was a recipient of the State Bar of Michigan Alternative Dispute Resolution Section's Distinguished Service Award in 2013. The Distinguished Service Award is given in recognition of significant contributions to the field of dispute resolution. Bill frequently appeared before the Michigan legislature, tirelessly lobbying on behalf of new laws and reforms intended to promote more widespread use of ADR including the passage of the Michigan Uniform Arbitration Act. Under Bill's leadership, the ADR Section Automatic Mediation Task Force promoted mediation throughout the state of Michigan, but most of all, he was a dear friend as well as the kind of person everyone aspires to be." Bill had a rich background of litigation, commercial, and governmental relations experience that complemented his arbitration and mediation practice. He received his B.S. from Marquette University in Milwaukee where he was a member of its ROTC program. After graduation, he served as an officer in the U.S. Navy. After his Navy service, he attended the University of Cincinnati College of Law. After receiving his J.D., he joined the Navy Reserve and served for 20 years in Naval Intelligence. He later accepted a position with the Federal Trade Commission Antitrust Department in Washington, D.C. In 1968, Bill accepted a position with the Automobile Manufacturing Association. He subsequently joined the General Motors' legal department where he worked in environmental law and product safety. After retiring from GM in 1997, Bill continued his career at the law firm of Daniels and Kaplan. His practice then included tort reform, arbitration, and mediation. He was also a former adjunct professor of law, teaching alternative dispute resolution at Thomas M. Cooley Law School. Bill was one-of-a-kind; a dynamic, remarkable man of many talents. An avid golfer competitive, accomplished squash player, colorful storyteller and seeker of the tastiest bourbons Kentucky ever made along with a fine cigar. A wonderfully kind and compassionate human being who never hesitated to provide help and guidance to others and was always grateful to others. He will be fondly remembered and deeply missed by family, friends, and colleagues. Published: Tue, Nov 23, 2021