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John S. Blackman 23

Meditations of a Mediator: Applying R. Panikkar's Insights to Dispute Resolution

John S. Blackman Attorney/Mediator, San Francisco

Abstract

As a trial lawyer and professional mediator I have seen the wisdom of Raimon Panikkar come to life in many ways in the everyday world. This paper explores three major realizations that have unfolded from my studies of Panikkar. The first is an awareness of the multivalent nature of Reality: No one person can tell the 'Whole Story.' Second, we are all mediators-mediators and co-creators of the Real-and all disputes can be understood by analyzing the mistaken assumptions and dashed expectations of the parties involved in the dispute. Third, as Panikkar has famously said, "Peace can never be imposed; it can only be received. " The resolution of conflict is always more authentic-more powerfal and longer lasting-if it comes willingly from within rather than being imposed from without.

Introduction

Reading and reveling in the philosophical works of Raimon Panikkar is an utter delight. Bringing his intuitions into play in everyday life is even more exciting.

I studied under Dr. Panikkar at the University of California at Santa Barbara for four years in the early 1970's, and stayed in touch with him until his passing in 2010. One of my closest friends throughout these years was Scott Eastham, whom we all knew and loved not only as Panikkar's right­hand man in the English language, but also as a formidable scholar in his own right. Scott's untimely passing in 2013 has left a void that cannot be filled. I dedicate this paper to him, and offer it as a prayer that others might take up where Scott left off, and that Panikkar's work may be carried forward on strong shoulders. ·

After taking some time off to enjoy the world, following my graduation from UCSB, I became a trial attorney, then later a mediator as well. I have mediated all manner of civil disputes, from small interpersonal disputes to commercial disputes involving millions of dollars. As a dispute resolver-a modem day shaman of the tribe, if I dare say-I have used many insights in my mediation practice that I gained from Panikkar during my years at Santa Barbara and beyond.

Today I speak of three of those insights.

When Scott and I were living in Santa Barbara in the 1970's, I remember mentioning to him how potent Panikkar's insights were, and how difficult it was for the 'man on the street' to read his works and benefit from

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his incredible insights. It was almost as if reading Panikkar was like touching the Ark of the Covenant, giving unsuspecting seekers a shock that would throw them clear across the room.

But Scott was so adept at understanding what Panikkar was saying it sometimes took my breath away. He was the only person I have ever known who could go toe-to-toe with Panikkar. Scott's sharp but graceful editorial hand is evident in much of Panikkar's greatest work, most notably The Cosmotheandric Experience 1 and The Rhythm of Being.2 He had a way of explaining Panikkar's insights to us mere mortals that was uncanny, and I told him more than once that I saw his role of 'translating' Panikkar for the masses as acting as a sort of 'human capacitor.' (In electronics, capacitors are devices that among other things are used in order to 'step down' the energy from a more potent source, so that energy can be channeled into safer, more easily usable forms.)

If each of us who has read and internalized the insights and intuitions of Panikkar could take this energy, save it, reconfigure it, and in effect 'translate' it into our daily lives, then somehow we might honor the intent of his life's work, which always favored actual practice and concrete action over theories and abstractions.

It is important 'that we carry on this work of 'translating' the insights and intuitions of Panikkar into the 'real world,' as it were, and to continue to act as human capacitors (and mediators!) of the magnificent insights he laid before us. In this spirit, I offer these comments, as my small contribution to actually living the "new mythos"3 to which Panikkar dedicated his life.

Reality is multivalent; no one person can tell the 'Whole Story.'

In nearly every mediation I have conducted the participants are convinced that their interpretation of the events leading up to the dispute is unassailably correct, while the other side's perception of what happened is at minimum horribly flawed, if not a downright confabulation.

But this is nothing new. Human history is littered with examples of people attacking those whose perceptions differ. What did surprise me, at least at first, however, was how difficult it can be to get each side to step outside their own limited perspective and appreciate the fact that not only

1 R. Panikkar, The Cosmotheandric Experience: Emerging Religious Consciousness, edited with introduction by Scott Eastham (Maryknoll, NY: Orbis Books, 1993). 2 R. Panikkar, The Rhythm of Being, (Maryknoll, NY: Orbis Books, 2010). 3 "The new mythos will certainly contain elements from all the strata of humanity, but it will need a glue, so to speak, a leading thread, a dynamic force that will meld old and new into something we cannot yet properly foresee. I believe that the cosmotheandric insight may have sufficient traditional elements, and just enough of a revolutionary character, to serve as that catalyst for hope." R. Panikkar, The Rhythm of Being, op. cit., 404.

John S. Blackman 25

might their own story not be the only one, but that other and even rather . different versions or interpretations of events might have some merit, too.

This paper is not the place to catalog the ways in which Panikkar has addressed the problem of the Other, or the dilemmas inherent in human attempts to apprehend Reality. 4 We are familiar with the saying, "There are many different paths up the same mountain," and similar aphorisms. We know that we can never see the light side and dark side of the moon at the same time. We know Heisenberg's indeterminacy principle, and that fundamental saw of hermeneutics, that 'things' do not exist in a vacuum that the perceiver affects and thus alters the very thing perceived, and so on. 5

We all know that not everyone's version or account of any one event is completely accurate.

But what I am talking about is something more than that.

What I am talking about is that feeling when I hear the first party· tell their side of the story, and it is not only credible but convincing-but then, upon hearing what the other side has to say, the equities are altered, and now all of a sudden it seems the second party makes a good point, and perhaps they would be the one more likely to prevail if the case went to trial.

How can that be? How can it be that one side to a dispute can offer perceptions that conflict with the other side's perceptions, yet upon close examination perceptions of both sides are legitimate, authentic, and meaningful?

It is because of the multivalent nature of reality.

Life is full of contradictions. We all intuitively know the truth of the saying, "The early bird gets the worm," which extols the virtues of acting quickly and aggressively-yet we all know just as well the truth behind the expression, "All things come to the one who waits," which extols the virtues of patience and receptivity. Although .they send diametrically opposed messages, is one necessarily wrong, and the other right? Of course not. They are each right (or wrong, potentially)-at different times, in different contexts.

How can seemingly contradictory realities co-exist?

Because reality is multivalent. Human interaction just refuses to be contained or explained in easy, black-and-white, right-and-wrong, two­dimensional terms.

4 For example, "No single individual can claim to embrace the Whole." R. Panikkar, The Rhythm of Being, op. cit., 212. 5 As Panikkar was fond of saying concerning the attempt to 'know' one's 'self': "One can never know the knower, because once you know the knower, the knower becomes the known." See R. Panikkar, The Cosmotheandric Experience, op. cit., 50-51.

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When we try to resolve disputes, there is always a desire to find out 'what really happened.' In litigation, it is the judge or jury who is trying to determine 'what really happened,' while the lawyers and litigants try to tell the most compelling story, in order to be the winner, and not the loser.

'What really happened,' however, invariably happened over time, to a number of individuals, who each have their own set of assumptions, expectations, and perceptions as to 'what really happened.' Sometimes it is easy to distinguish between 'true' and 'false' stories, or to see who has the better of the argument; but just as often, it is not.

No one person can tell the 'Whole Story.' No one person's account of a dispute is ever the purely 'correct' or 'incorrect' one.

This involves one of Panikkar' s favorite topics: the importance of sorting out text within context-and being sensitive not just to text and context, but to texture as well. 6

When I can get people to step outside their points of view a little, and question their own assumptions-when I can get them to re-situate themselves and their problems in a different context-sometimes I can get them to loosen up, and often that is the first step toward opening the heart to compromise and resolution of the dispute.

We are all mediators - mediators and co-creators of reality-and all disputes can be understood by analyzing the mistaken assumptions and dashed expectations of the parties.

I am a trained professional mediator. But you are ·a mediator, too. In fact, we are all 'mediators,' even in a fairly strict sense of the word. Every mother, father, brother or sister knows what it is like to 'mediate' a family dispute. At one time or another we have all . found ourselves acting as a dispute resolver, whether between or among friends, children, family, co­workers, or others.

'Mediation' does not only take place when there is a dispute to be resolved; in a very real way every act of human communication is a mediation. To decide "what is," we must weigh and balance the evidence our senses and minds bring to our attention. By our perceptions and what we do, we 'mediate' reality. We are, it has been said, what we pay attention to. In addition to the social sense in which we are all mediators, in a cosmotheandric sense-if I may borrow that phrase from Panikkar for a moment-we humans are all mediators of reality as well. We stand both literally and figuratively between the earth below and the· sky above, mediating between nature and the divine, between the seen and the unseen, trying our best to make sense of it all-constantly seeking to bring some balance to the wild pendulum swings of life.

6 See Scott Eastham' s Introduction to The Cosmotheandric Experience, op. cit.

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As Panikkar taught us, we are, quite literally, co-creators of reality. We literally constitute each other, and ourselves, by what we say, do, and think about each other and ourselves. You are you, regardless of what I think, and you are completely responsible for yourself; but you are also, to some degree, what I think about you, and say about you, and do to you. I too am no one but myself, but I am also undeniably in part what you say and think about me, and do to me. In a very real way, we are each other.

And this, Panikkar would often say, is why it is so important that we always lift each other up, and never cut each other down.

As a trial attorney specializing in the defense of professional liability cases, representing lawyers, doctors, engineers, brokers, and accountants for over 30 years, I have become especially attuned to the principles and dynamics of causation. When something goes wrong, and a dispute arises over what should have happened, naturally one tries to figure out what caused things to go wrong.

As a mediator I have listened to thousands of disputants and their lawyers over the years. In each case I have tried to figure out what went wrong, who should be responsible, and how the parties can be led toward resolution. In that process I have seen some broad patterns emerge.

One of those broad patterns involves the role of "mistaken assumptions" and "dashed expectations" in the underlying cause · of ariy dispute. (And by 'cause of the dispute,' I mean both the apparent causes on the surface, as well as more indirect often hidden causes.)

I have found that to some extent, in one way or another every dispute involves assumptions, particularly mistaken assumptions, and that the 'heat' that arises from disputes (primarily emotional upset), is largely generated from dashed expectations that arise from, or are in some way connected to, those assumptions.

The next time you have an unpleasant experience-any unpleasant experience, whether it's a run-in with the hotel clerk,7 or a phone call from your teenage son calling you again from college asking for more money8

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7 You assumed you were going to have a room with a view, and your expectations were dashed when you found out you would be looking at the HV AC unit on the roof of the building next door. Whose 'fault' is it that certain assumptions turned out to be wrong here, and was your anger at the situation (arising from your dashed expectation) righteous, or uncalled for? Or, as is most often the case, somewhere in between? 8 You assumed you had given your son enough money to last until the end of the month. Whatever the cause of the shortfall, whether it was your miscalculation or his profligacy, your assumption was incorrect, your expectations were dashed, and a dispute followed. If you want to understand why you or he got upset, or how the situation got off the rails in the first place, take a look at the parties' mistaken assumptions and dashed expectations, and

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whatever it may be-just sit back and objectively analyze what assumptions you or others made going into the situation, what expectations were generated, and what expectations were dashed, and you will see the 'architecture of the dispute' as if you were wearing x-ray glasses.

This analytical framework can be applied to any dispute, large or small, simple or complex-everything from two toddlers fighting over a toy to the most difficult of international political disputes.

The 'mistaken' assumptions I speak of may have been rightly or wrongly made, well-taken or not (or, as is so painfully often the case, they may have been ambiguous )-but that is not the aim of the analysis. The expectations that were dashed also may have been rightly or wrongly generated, or reasonable or unreasonable as well, but that is not the point of the analysis either. The point is that whether right or wrong, well-taken or not, an analysis of mistaken assumptions and dashed expectations in any dispute can help unwind the cause of the dispute, and can also give clues and information about the 'flavor' and 'temperature' of the dispute, which a mediator can use to help those involved see their way through to resolution.9

While I am generally not fond of acronyms, nonetheless I have at times used the acronym "MADE" (Mistaken Assumptions and Dashed Expectations) in order to help remember this very useful tool for analyzing the anatomy of any dispute.

Peace can never be imposed; it can only be received.

Throughout history the most common form of dispute resolution has been war, or battle. Traditionally, if someone had a problem with someone else, more often than not they would fight over it.

Over time (and with much struggle) the rule of law has gained prominence as the preferred dispute resolution mechanism, for the most part supplanting brute force as the primary guarantor of justice and order. We have laws and a legal system that will enforce our rights without need to resort to actual battle. In the United States we take pride that we are a 'government oflaws, and not ofmen.110

Not surprisingly, though, in almost every particular our legal system

you will see not only the genesis of the dispute and the unpleasantness that followed, but also ways to heal the situation as well. 9 Anticipating and analyzing the assumptions and expectations that are likely to arise before an event occurs can also help one prevent disputes from arising in the first place. And, as any good negotiator knows, setting the expectations of the other side before the negotiations even begin is often essential for a successful negotiation. 10 John Adams, Massachusetts Constitution, Bill of Rights, article 30 (1780); The Works of John Adams, Second President of The United States, (New York: Cambridge University Press, 2011), vol. 4, 230.

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emulates the structural dynamic of battle and war. That there will be a winner and a loser-a victor, and a vanquished-is preordained simply from the very structure of litigation. Each side desperately wants to win, not lose, because the stakes are high. In order to win, the parties will go to great expense gathering their weaponry-or, in the case of litigation, their lawyers, evidence, expert witnesses, etc.-so as to overwhelm and eventually defeat their opp~nent.

Most of the disputing parties I see in mediation come to me first asserting their positions. They have dug their trenches, built their battlements, lined up their guns at the other side-i.e., they have amassed their evidence and arguments concerning the positions they are taking in the dispute. The briefs usually recite a litany of reasons why the party has superior rights, better evidence and stronger positions-and therefore why they should either receive a lot of money or pay next to nothing, depending on which side of the dispute they are on.

With litigation's requirement of a winner and loser, the positions of the parties take on paramount importance, because the person with the strongest positions usually wins, and no one wants to lose. And the history of human warfare tells us that the side with more soldiers, better weapons and access to more resources is more often than not the 'winner.'

It's the same in litigation.

Mediation, however, is a dispute resolution process quite different from litigation.

In mediation, the focus is not on the positions the disputing parties are taking, but rather on their interests. Parties' positions are very important if you have to determine a winner and a loser, but where the structure of the dispute resolution mechanism is not looking to declare a winner and loser, the focus can shift to achieving a resolution based on what the parties need, or what is in their respective interests.

In mediation, the parties work together, using the mediator as a go­between to reach a mutually consensual agreement, instead of having an arbitrary result imposed upon them.

The classic story illustrating the genius of mediation is that of the parent and her two children who are fighting over an orange. One child says he should have it, because he is the oldest, while the other says she should have it because she found it first. The wise parent, instead of focusing on the positions her children are taking and making the mistake of trying to determine whose positions are 'right' or 'wrong,' or 'better' than the other, instead asks each of her children why they want the orange. She has changed the focus of the discussion from their positions to their interests.

The oldest child tells his mother he is thirsty, and he wants to cut the orange in half and squeeze the juice out of it. The youngest says she needs to

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grate the rind of the orange for a cake she wants to bake. Thus the dispute is settled, without having to declare. a winner or loser. By focusing on understanding and accommodating the parties' interests, · a 'win-win' solution is achieved.

While this example is obviously overly simplistic (see the section on the multivalent nature of reality above), it nonetheless makes the point.

Another cardinal virtue of mediation is that when parties work together to create their own resolution, the agreements they reach tend to be more self-enforcing than a resolution imposed from without.

For example, a resolution of a land-use dispute between neighbors achieved through mediation is almost always more lasting and more effective than a judgment rendered after an expensive, contentious trial, because in mediation both parties have a hand in crafting the terms of the settlement, and they can pay heed to what works for them. When that happens, the parties tend to perform the terms of the settlement because they want to, and because it makes sense, not because someone has arbitrarily told them they have to; and when people· do things because they want to, their behavior is more likely to be genuine, longer lasting, and self­enforcing.

In his seminal essay, Epistula de pace, also sometimes referred to as his "Nine Sutras on Peace," Panikkar gave the following as his Third Sutra on peace:

Peace is neither conquered for oneself nor imposed on others. Peace is received, as well as discovered, and created. It is a gift (of the Spirit).11

Panikkar took pains to remind us that 'peace' is not something that just happens to us at some point, a situation or state of affairs which, after years of arduous work and perhaps the intervention of some divine beneficence, we suddenly someday 'attain.' Rather, it is something in which we must participate, something which we must create (and create every day, not just once or twice). As Panikkar reminded us so many times, achieving peace is never a return to a previously-existing place nor state of affairs; it is always the creation of a new reality. Panikkar also insisted that peace could never come about through force. An 'enforced' peace would only be a type of pax romana, which is really no peace at all. As Panikkar so aptly put it, "Victory leads to victory, not to peace."12

11 R. Panikkar, "Epistula de pace - Response to Philosophia pacis: Homenaje a Raimon Panikkar," (Madrid: Simbolo Editorial, 1989), 9. Also see Panikkar, Cultural Disarmament, (Louisville, KY: Westminster John Knox Press, 1995), 15-23. 12 Ibid., 10. In an interview by Jane Clark and Alison Yiangou published in Beshara Magazine in 1990, Panikkar expanded on this theme: "Everybody wants peace. Not everyone wants to receive peace. We fight for peace; we want to impose our own 'peace' on

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I have discussed Panikkar's intuitions about peace many times in my mediations and have helped many people lay down their swords, and let go of the past. The way I quote his sutra to them is somewhat simplified. I tell my disputants that a very wise man I once knew told me, "Peace can never be imposed; it can only be received."

That always begins a lively discussion, and once again Panikkar's wodd-altering insights and intuitions enlighten a few more souls, and then a few more, and gradually the flames become a fire.

* * * My blessings and my thanks to Raimon Panikkar and to Scott

Eastham, for sharing their lives with us, for being such magnificent windows onto the Real, and for always lifting us up to greater and greater heights.

May we carry their greatness in our hearts as we live in the world, and may we share our light with others as they have shared theirs with us.

others, according to our own perceptions of what it is. But the Christian understanding of peace is that we must be able to receive it, we must be able to be 'made peaceful,' and then we can pass it on to others. Otherwise, I am the peacemaker through conquest and it will never come about, whether it is in the home, the family, the city or the world."

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CIRPIT REVIEW n. 5 -2014

Proceedings

Symposium on the Dialogical Dialogue and Raimon Panikkar Balt_imore, November 2013

Under the auspices of The Society for Asian and Comparative Philosophy (SACP)

In conjunction with the Annual Meeting of The American Academy of Religion (AAR)

Edited by Michiko Yusa, Young-Chan Ro

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CIRPIT REVIEW Intercultural Centre dedicated to Raimon Panikkar

http://www.cimit.raimonpanikkar.it

Autorizzazione Tribunale di Milano n. 105 - 03 aprile 2013

© 2014--: MJMESIS EDIZIONI (Milano - Udine) www.mimesisedizioni.it

Via Risorgimento, 33 - 20099 Sesto San Giovanni (MI) Telefono e fax: +39 02 89403935

E-mail: mimesis@mimesisedizioni.it

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Board of Directors

M. Roberta Cappellini (Cirpit President) Giuseppe Cognetti (Cirpit Vice-President- Siena Univ.) Anna Natalini (Cirpit General Secretary)

Academic Board

Giuseppe Cognetti (Siena Univ.) Scott Eastham (Massey Univ. New Zeland.) Young-Chan Ro (George Mason Univ. Washington, D.C.) Errol D'Lima (Jnana-Deepa Vidyapeeth, Pune) Marcello Ghilardi (Padova Univ.) Jacob Parappally (Tejas Vidya Peetha Institute, Bangalore) Victorino Perez Prieto (Univ. de Santiago de Compostela) Prabhu Joseph (Philosophy and Religion - California State Univ. LA) Giorgio Taffon (Roma Tre Univ.) Luciano Mazzoni Benoni (Dir. Uni-versum) Achille Rossi (l'altrapagina) M. Roberta Cappellini (Cirpit President)

Editorial Director Aurelia Delfino

Editorial Office Patrizia Morganti

The published articles are submitted to peer review procedure

~MIMESIS

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Index

Index

7 Michiko Yusa, Young-Chan Ro Editorial

9 Gerald James Larson Foreword

Articles

13 Milena Carrara Pavan, Opera Omnia: The Philosophical-Spiritual Pilgrimage ofRaimon Panikkar in Dialogue with Other Cultures and Religions

23 John Blackman Meditations of a Mediator

33 Bret Davis lntertraditional Dialogue: From Gadamer's Diachronic to Panikkar's Diatopical Hermeneutics

47 M. Roberta Cappellini Panikkar's lntra-inter-dialogical Philosophy: lmparative vs.Comparative?

57 Purushottama Bilimoria Sruti-pramfu).ya (scriptural testimony) and the 'lmparative Philosophy' in Raimon Panikkar's Thinking

69 Abraham Velez de Cea Panikkar's Cross-cultural Hermeneutics

79 Joseph Prabhu Panikkar's Trinitarianism and'His Critique of (Mono) Theism

89 Francis Clooney How Then Is Raimon Panikkar Different from Charles Taylor?

95 Fred Dallmayr ·Response to Fr. Clooney

97 Young-Chan Ro An Epistemological Foundation ofRaimon Panikkar: A Mystical Approach

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Index

113 Michiko Yusa Gender, the Feminine and Cultural Disarmament in the Thought of Raimon Panikkar

125 Fred Dallmayr Holism and Particularism: Panikkar on Human Rights

135 Catherine Cornille Raimon Panikkar: Between Comparative Theology and Imparative Philosophy

143 Francis Clooney Four Ways to Think About Raimon Panikkar's Legacy: A Response to the Panikkar Panel

In Loving Memory of Scott Eastham

149 Gerard Hall Scott Eastham RIP (b. 10th June 1949 - d. 4th October 2013)

153 M. Roberta Cappellini My memory of Scott Eastham

155 John Blackman To Scott Eastham, a Paean and Eulogium

161 Yakshi Vadeboncoeur, Following After You

163 Joseph Prabhu A Remembrance of Scott Thomas Eastham

167 Young-Chan Ro Remembering Scott Thomas Eastham (1949-2013)

169 Charlotte Sunde In memory of Dr. Scott Eastham: academic supervisor, mentor, and friend.

173 Scott Thomas Eastham Leaf- Catching, poem

175 CIRPIT activities