In this latest post on applying Talmudic principles in mediation, we discuss two vital mediation techniques — encouraging empathy and exhibiting curiosity — that emerge from a Talmudic legend concerning Alexander the Great (the Talmud being an ancient Jewish legal text compiled around 500 C.E. that is a primary source of Jewish law and philosophy).
Chronologically, Alexander the Great conquered the Land of Israel shortly after the construction of the Second Jewish Temple. The sages who authored the Talmud lived several centuries later. One of the legends they passed down was about a visit Alexander purportedly paid to a distant province in his empire to observe how its king dispensed justice.
Two subjects appeared before the king to resolve a dispute. The plaintiff claimed, “I purchased a field from the defendant and in it I discovered a treasure. I wish to return the treasure to him since I purchased a field, not a treasure. But the defendant refuses to take it back!” The defendant responded, “I sold you a field and everything in it. Therefore, the treasure belongs to you.”
The king turned to the plaintiff and asked, “Do you have a son?” “Yes,” he answered. The king then turned to the defendant, “Have you a daughter?” When he answered in the affirmative, the king declared, “Let your children marry, and the treasure will be theirs!”
When the king noticed Alexander’s shock at the whole proceeding, he inquired, “Did I not judge well? How would such a case be judged in your land?” Alexander responded, “In our realm, we would kill both the buyer and the seller, and confiscate the treasure for the king.” Taken aback, the king cryptically warned Alexander that societies where the law of the jungle prevails cannot endure. Instead, the societies that prosper are those where both litigants and the judicial system respect the rule of law.
Whether the legend is apocryphal or not is unimportant. Instead, the story’s value is in the two key mediation techniques that it teaches: encouraging empathy and exhibiting curiosity.
In my experience, the first thing about the story above that strikes readers is that the litigants have taken counterintuitive positions. That is, one would have expected the buyer of the field to vigorously argue that the treasure belongs to him (and not the seller) on the ground that he purchased the field and everything in it. And one would have expected the seller to claim that the treasure belongs to him (and not the buyer) because he did not realize the field contained a treasure and therefore could not have intended to include the treasure in the sale. See, e.g., Grande v. Jennings, 278 P.3d 1287 (Arizona Ct. App. 2012) (litigation over $500,000 in cash found by a contractor in concealed ammo cans after purchasers began renovating the home they had purchased from an estate).
Later rabbinic commentaries explain that the king in the story had cultivated such a high degree of honesty and integrity in his society that citizens actually resisted taking possession of items to which they were not clearly legally entitled. Instead, they evaluated their legal rights through the lens of their adversaries.
In mediation circles this mindset is referred to as empathy, which mediators can encourage by asking parties to see the dispute through the eyes of the other side. For example, mediator Julie Denny writes that she puts empathy into practice by literally asking parties to “switch seats,” and articulate the interests and feelings of the other party. This is precisely what happened in the story above — each party advanced the argument that would more intuitively have been made by the other side.
To be sure, it is unrealistic (and in fact, unnecessary) to expect that parties will abandon meritorious positions they strongly believe in. But to the extent a party can appreciate (and ideally articulate) their adversary’s interests — without necessarily agreeing with the adversary’s positions — it becomes easier to make progress towards resolution.
Another salient element of the story is that the king did not actually decide the dispute; that is, there wasn’t a winner and a loser. Instead, the king resolved the dispute by “expanding the pie;” namely, he identified a common interest shared by the litigants — the marriage and financial support of their children — that allowed them to both emerge from the dispute as winners.
Resolving a lawsuit through marriage may sound cliché. But far from being simplistic, the king’s resolution highlights a vital personal quality that mediators need to foster to increase their effectiveness: curiosity.
In Beyond Winning: Negotiating to Create Value in Deals and Disputes, Robert Mnookin (and his co-authors Scott Peppet and Andrew Tulumello) share strategies for transforming negotiations by shifting the focus from distributing to creating value. That is, instead of fighting over a limited pie, parties involved in negotiations or dispute resolution should expand the pie so there is more to divide.
Developing value-creating trades in negotiation, however, requires parties to share information about their broader interests. The problem, Mnookin observes, is that parties involved in face-to-face negotiations are often reluctant to share information about their interests because they fear their candor will not be reciprocated, but instead exploited by the other side. As Mnookin writes, “without sharing information it is difficult to create value, but when disclosure is one-sided, the disclosing party risks being taken advantage of.”
This is where a mediator can be particularly effective. Each side can share information about their needs and interests with the mediator in confidence knowing that the mediator will not disclose this information to their adversary without their consent. Armed with this information from both sides, the mediator can propose exchanges of value that create win-win solutions for the parties.
It would be unrealistic, however, for a mediator to assume that parties will immediately open up to him or her about their needs and interests. When a mediation starts, the parties are often focused narrowly on the dispute at hand and their legal positions. So how does a mediator persuade parties to disclose the additional information the mediator needs to develop value-creating trades?
Mnookin writes that creating value starts with curiosity: “What is the other side’s story, anyway?” And this is exactly how a mediator should proceed: by being curious and asking plenty of questions. As Denny stresses (quoting Douglas Stone, Bruce Patton, and Sheila Heen), “certainty locks us out of their story; curiosity lets us in.”
Psychologist Todd Kashdan, author of Curious, elaborates on the importance of curiosity in resolving conflicts, characterizing the willingness to display curiosity about an opposing point of view as the key to diplomacy.
Kashdan advises parties to a conflict to exhibit curiosity by asking clarifying questions about the other side’s point of view. Doing so, he maintains, offers the following benefits:
[W]hat happens when we are genuinely curious about someone that holds a point-of-view that diverges from our own? By merely asking for a single bit of information, the other person views us as more open-minded and warm (“I appreciate you taking the time to actually hear me out”). They view us as different from the typical person with a belief system that differs from their own (“You know, it’s refreshing to hear someone who is an atheist listen to what someone with faith actually has to say”). The other person feels as if we are paying attention and they don’t just feel good, they view us as a good person. That curiosity, that open-mindedness, ends up being contagious. When you show curiosity in what they care about, they show a greater willingness to gather additional information from you. In the end, they are more willing to negotiate and come to a compromise that benefits everyone.
The application of Kashdan’s insights to mediation is plain. When a mediator displays curiosity about a party’s interests, needs, and concerns, that party feels like they are being heard. That the mediator genuinely wants to understand their perspective and help them reach a satisfactory resolution. The resulting dialogue builds trust and rapport, which facilitates further disclosure, and ultimately enables the mediator to gather the information necessary to develop value-creating trades.
To return to the story, this is the technique the king employed. Rather than decide the dispute, he expressed curiosity about the personal lives of his subjects — their dreams, hopes and aspirations. So do you have children? Are you looking to marry them off? How will they support themselves? This curiosity elicited disclosures that led to an obvious solution. Had the king not been curious — had he not asked questions — he would have had no choice but to render a judgment with a winner and a loser.
So there you have it – find greater success mediating disputes by encouraging empathy and by being curious.