Cassandra Voices

Author: Fergus Armstrong

  • A Voice from the Cocoon

     

    Here’s Mr Pip, aged parent”, said Wemmick, and I wish you could hear his name. Nod away at him Mr Pip, that’s what he likes.
    Charles Dickens, Great Expectations

     

     

    Dickens’s Aged Parent, or ‘the AP’, looks contented as he pokes his fire. Most of us locked-down septuagenarians, I suspect, are restless to escape to some kind of normality, albeit a ‘new normal’, that is largely unknown. Meantime we amuse ourselves with the supports of modernity, media, reading and the infinite offerings of the world wide web, as well as absorption in whatever tasks are necessary and permissible, gardening if we’re lucky. The bottle banks may also have a tale to tell.

    Few are free from undercurrents of anxiety, more or less severe. How long will this go on? What will the reckoning be? Mass unemployment, social unrest, collapse in asset values, savings emasculated?

    There are other fears. If this can happen, then what else?  The same or different? Fresh outbreaks of the virus? If world financial systems can somehow be made to cope with this emergency, suppose there’s another around the corner.?

    We can have a gnawing sense that our civilisation got things wrong, that it is being, somehow, punished. A year ago I heard a retreat-giver say that we had lost the ability to read the signs of the times.

    We had belonged, or thought we belonged, on a planet that although under threat, and although subject to disaster more or less randomly distributed, was broadly on a path of progress, of improvement, even for under-developed regions. Nature mostly provided balance and harmony.

    Modern science reinforces this optimism at the cosmic level. We now know that the total universe that includes our Milky Way as one of nearly a hundred million galaxies has been expanding since the Big Bang. But if the rate of its expansion had been even a millionth of a percent slower, the whole thing would have collapsed, imploded in upon itself. There was fine tuning.

    Now trust is at issue with a particularly severe jolt for the Western world.

    It could be said that most of our strategies of coping are in the nature of distraction. To the extent this is so, the underlying unease remains. Call it dis-ease in fact.

    Foreshortened Horizons

    Speaking personally, the experience of being herded into seclusion as a 70-plus, brings home as never before, the sense of foreshortened horizons. Are we to lose a whole summer, that we can ill afford to forego, before illness strikes or the grim reaper shows up? At times the lockdown can feel like a dress rehearsal for the real thing. Heretofore, our unconscious aim may have been, as I heard the poet David Whyte express it, to get out of life alive. Yet he also warned: “Reality can be terrible when there’s no time left to say goodbye”.

    Is there an alternative, some place where an AP can go, while staying put?

    Let nobody mention God in this largely post-religious society! The theology of the Deus Absconditus might be a fit?

    Willigis Jaeger, Benedictine friar and Zen master, died on 20th March 2020 in the midst of the Covid-19 crisis, at the age of 95. This is perhaps a suitable moment to invoke his wisdom.

    Jaeger was regarded as a mystic, and got into trouble with the Vatican authorities in the time of Cardinal Ratzinger, when it was said that he was subordinating dogmatic teaching to the mystical path.

    Jaeger’s declared aim was to unite the wisdom of East and West, incorporating recent scientific findings.

    In his book Timeless Eternal Wisdom[i], he wrote:

    A completely new religious sensibility is awakening in society today. We can only hope that the rigidity ingrained in many religions can be overcome, so that oneness, interdependence, inter-relatedness and love can be experienced … Love is the founding force of the universe. The individual can attain to this realisation by retreating to a place of peace and rest from time to time and, dare I say, by engaging in the practice of the spiritual way.

    In Buddhism the pathway is Zen, in Hinduism it is Yoga, in Islam it is the way of the Sufis, in Judaism it is the Kabala and in Christianity it is the way of the mystic.

    ‘Mysticism’ was defined by Jaeger as a state of ‘empty oneness’.

    Mindfulness Revolution

    This writer will not make the mistake of attempting to teach that which he has not yet learned. What might be called a ‘mindfulness revolution’ is well under way. Fundamental to all such practice is meditation and there are a variety of teachers on and off line who propose particular methodologies.

    As is well known, the invitation is to work towards a personal stillness, the development of a capacity to be present in the moment. It is perhaps fair to say that a core element of the practice is to still the workings of the intellect or rational mind, which is usually in alliance with the ego. In fact it might be said that in the Western world, the human being has tended to become a thinking machine, powered continuously by media in its various forms.

    Since our thinking capacity is virtually unstoppable, recourse is had to a device, a support – a focus on breathing, or repetition of a word (mantra) or, simply, inhalation and exhalation of the breath.

    So many people, when discussing the value of meditation, will say, I could never be still, my mind is too active. As one who has persevered with this for twenty years, I can only say that the same is true for me. What one realises in time, however, is that each time the subject becomes conscious of a new distraction, and returns to the support, something useful has happened. We have rehearsed what it takes to be less identified with our thoughts, more open to whatever it is that is more.  The goal, if there is one, is detachment.

    Detachment

    Detachment, it might seem runs counter to another stated aim, that of cultivating the capacity to be present, in the Now, as it is said. But in truth what is called for is a presence to self, to body, feelings and mind, and that is not possible save from a place of some detachment.

    Concerning the difficulties of attaining a level of detachment – or disidentification – Joan O’Donovan, O.P. has written encouragingly:

    We may not be able to disidentify, but we can become aware of how we are identified. That is to say that at the level of our everyday personal self we can begin to be aware of how identified we are with achieving, with seeking for affirmation, with self-justifying. We can practice becoming aware of all this in a non-judgemental way, without even trying to change or improve ourselves. We are simply aware. This simple act of awareness can be an amazing catalyst, because once we become aware of being identified, we are no longer identified.

    She stresses however that this kind of self-awareness is not something we acquire by our efforts, because it is already in us.

    It is an inner knowing that we can allow to emerge, a latent power of mind, a heart knowing of ourselves, a subjective knowing in which we uncover our own compassion, a compassion that goes from self to others. [ii]

    Inducements

    The direction that is being taken here does not promise any of the satisfactions of the world-ego.

    Yet Jaegar does express what might be thought of as inducements!

    We need to enter into a new dimension, a dimension of the unknown emptiness which is beyond all ego-activity.  Anyone who breaks through to a deeper all-embracing level of consciousness will find new answers and develop a new understanding of life. Only in this dimension, beyond all rational understanding, will we find real meaning and purpose in our lives. Only when we experience who and what we really are – a timeless being at one with the essence of all beings – will we find answers to the questions of life and death.

    The person who can enter this deep stillness will undergo a transformation. In this peaceful resting stillness something happens. The quietude changes us. This quiet is the place from which intuition arises. Decisive ideas are born here. They are not the product of discursive thought.

    Although emphasising the value of spiritual practice, Jaeger was in some ways dismissive of religion. He was much influenced by the teachings of Meister Eckhart who was both a mystic and a theologian (and, like Jaeger encountered condemnation from Rome).

    Jaeger defined spirituality as “a path to a trans-personal, trans-rational, trans confessional level of experience, where true reality is found”. But he considered that the true meaning of religion lies in the experience of this primary reality, a reality that has nothing to do with rational personal consciousness and lies deeper than all images and concepts.

    He saw rituals and ceremonies as important, insisting that religion finds full expression in our daily life and that the experience of the essence of our true being permeates all life. He saw the value of maintaining linkage with mainstream religious traditions as a protection against our going off the rails.

    He believed, however that a new language is urgently needed in the religious sphere. ‘I come across numerous people who can no longer understand the traditional language used in Christianity. The conventional images no longer speak to them or touch their hearts.’

    The Truth

    Part of the problem, perhaps, is that spirituality is a difficult subject to address: Mike Boxhall, a unique spiritual teacher who died in 2019 wrote: ‘Anything you can say about it is really not worth saying as what is said will be words about something, not the experience itself, and will therefore be a concept. A concept is about a truth and is not, and never can be, the Truth.’ [iii]

    A spell in the cocoon, perhaps – especially if fed with periods of silence – may afford us a sense of having made some little progress on the path, and perhaps initiate a practice that would serve us well in our residual time. We may have the possibility to discover a self that is more than our everyday self, and in so doing, to exchange New Life for Old. [iv]

    A Great Expectation for an AP, or any OAP?

    Kerina yin (wikicommons).

    [i] ISBN-13: 978 – 3466368877 706 4

    [ii] Unpublished paper:  The Way of Meister Eckhart

    [iii] The Empty Chair 2012,  ISBN 978 1 84624 706 4

    [iv] This is the title of a compact book on this whole subject by Vincent MacNamara, a great influence on my life. ISBN 978 1 78218 019 7

  • A Poor Relation’s Rich Associations

    A poor relation is the most irrelevant thing in nature, a piece of impertinent correspondence, an odious approximation, a haunting conscience, a preposterous shadow, lengthening in the noon-tide of our prosperity. He is known by his knock.
    Charles Lamb

    In 1954, when I was aged nine, my youthful uncle, aged twenty-five, returned to Ireland from what was then East Pakistan, now Bangladesh. To a child growing up near Sligo town this was a dramatic arrival. The KLM baggage labels read, ‘B K Fitzsimons, passenger from Dacca to Dublin.’

    A retired British army major had fixed Bryan up with a three-year position as personal assistant to the managing director of an English company in the jute trade. Born in Liverpool, of Irish immigrant parents, his father had died young and his mother had returned to her native Sligo during World War II. A period of schooling as a boarder at St. Nathy’s College in Ballaghadereen had not yielded pointers to a suitable career for a student who had not shone academically, but had shown a keen interest in the good things in life, especially the company of friends.

    The regimen at St Nathy’s had not suited Bryan’s tastes or his appetite, requiring his doting mother to send weekly food parcels to supplement the standard fare. Eventually this drew a postal edict from the headmaster banning the practice. Whereupon Bryan wrote to his mother, ‘if you don’t send me food you can send John Gallagher.’ The latter person was Sligo’s foremost undertaker.

    My mother, I believe, had hoped that Bryan’s overseas posting might place a family embarrassment at a safe and permanent remove. The daughter of an impoverished widow, she had made what was seen as a socially significant marriage to a successful solicitor in the town. But BKF was back.

    Bryan lived with our family, off and on, for years. I had two fathers. He took an interest in my education and brought me on many expeditions in my father’s car. Schooling me in the manners of the remnants of the British Raj, he paid particular attention to elocution. He openly announced the hope his protégé would manifest ‘the brains of his father, and the personality of his uncle.’ A caution occasionally uttered, courtesy of Oscar Wilde, was the possibility of the reverse occurring.

    At various points in the 1950s, Bryan went on the high seas. His superior social skills and affinity for the good life helped him find a position with P&O Liners, serving as a waiter in the first class dining compartment. He seems to have been popular with crew at all levels, including the captain and upper echelon. In the course of duties, however, subservience did not come easily to him. Passengers whose dismissive demeanour implied he belonged to the lower orders met with brusque treatment. A drawling American woman who put the question, ‘What’s black pudding waiter?’, received a curt reply not designed to enhance her appetite: ‘pigs intestines madame.’ Other diners deemed ‘trouble’ by virtue of excessive demands could be pitilessly dealt with. One such had a dollop of Silver Dip added to her soup, confining her to cabin for several days, or at least that is how he recalled the episode to his amused nephews and nieces.

    Bryan returned to Sligo after such voyages with a little money in his pocket, which was quickly dispensed in socialising. Staff at the Great Southern Hotel would not have guessed this high society figure in their dining room, entertaining in grand style, was one of their own. Always at ease in company, he was, indeed, the life and soul of any party, and a considerable raconteur. His signature apparel was definitely ‘Çountry’: extrovert plaid sports jacket and cavalry twill trousers.

    After the seafaring interlude my father found clerical work for Bryan at his solicitors’ firm, dealing with insurance claims and the like. His disposition towards hilarity contrasted with the rather sombre atmosphere that had previously prevailed, and an easy telephone manner was increasingly called upon; he would develop a taste for the bustle and excitement around sittings of the District and Circuit courts.

    Along the way he decided to read for the Bar. Undeterred by a lack of savings – it was always his practice immediately to spend any money that came his way – he talked the manager of the Provincial Bank into granting him a substantial loan. I assume my father augmented that regularly over the years that followed – and there were many of those years. Bryan found it difficult to settle into a life of study, and several exams had to be repeated. Yet he had also managed to woo a doctor’s daughter – one of the most admired young women in the town – and needed to do justice to that relationship.

    After five years at boarding school myself, I caught up with Bryan in the realms of third level education in Dublin. It felt a little odd to have an uncle as a fellow law student. However, he entertained my friends enormously, always the last to leave a party and a dogmatic adherent of the ‘rounds’ system of ordering drinks.

    I even shared a flat with him at one point, which became rather a drain on my own modest student allowance. One weekend, when I too was broke, he raided the landlady’s telephone call-box, which delivered a cascade of noisy copper pennies that he transported to a pub in Ranelagh, laying fistfuls on the counter in exchange for his nightly quota of Smithwicks. In due course, I began to see a situation where I might complete my legal education leaving my familial senior behind. I therefore put the skids under him to get him to apply himself to his final exam for the Bar. My sister and I reined him in, virtually standing guard over him by night, with no drink allowed unless several hours of study had been completed.

    On the day of the exam I arrived early in the morning at his digs. To my relief he was awake and looking chipper. After a hearty breakfast I escorted him out the door whereupon we met glorious morning sunshine. He paused. I said, ‘let’s get going Bryan.’ To which he responded by throwing back his head and laughing, before sauntering down the street, in the wrong direction.

    But ‘the uncle’ was not without resources. During a later attempt at his finals, he deployed the full possibilities of emerging short-wave technology. ‘I’m wired for sound’, he confided in the run-up to his repeats, opening his coat to reveal an array of the latest electronic equipment. These would enable him to communicate with a loyal friend on the outside, who could supply answers to the questions submitted sotto voce in the cavernous dining hall of the King’s Inns.

    Indeed, he had been previously implicated in a plot designed to get an entire class of his aspiring barrister friends through oral tests for the ‘Junior Victoria Examination.’ These were administered by the fearsome Professor Fanny Moran, who charged her students with being, ‘ferociously accurate and ruthlessly precise.’ For her oral exam, students were herded into a room from which there was no means of exit, save through another room where the redoubtable Fanny lay in wait as examiner. Only after the interview were they released, one by one.

    In the interests of fairness, each student was asked the same question, which was the reason for the incarceration. Bryan, however, had by this time formed a friendship with a wireless engineer, who lent him the latest in walkie talkie sets. The scheme ensured a level playing field for all candidates, except for the first to be examined. There had to be one martyr, who was tasked with carrying news of the question to a car waiting outside the King’s Inns, from whence the message would be radioed back to the rest of the students, who could consult their textbooks for the correct answer.

    Unfortunately the first candidate misunderstood the question, which was, nonetheless, dutifully relayed to those remaining in the room. By the fourth interview Fanny Moran burst forth: ‘I don’t know why it is, but all of you seem to give the same wrong answer.’ When this frightful intelligence reached the control vehicle feverish attempts were made to regain radio contact with the rest of the candidates, who had by this stage switched the equipment off. In the course of the failed operation a barrister-tutor, later a judge of the Superior Courts, chanced to pass down Henrietta Street. Glancing at the car and its occupants, he immediately surmised the situation. ‘Lads’, he said, ‘ye have gone a long way since we used to slip five shillings to the porter to get hold of the question.’

    By fair means or foul, Bryan did receive a call to the Bar. Money, however had run out and there were debts undischarged. He went to London from time to time to replenish his coffers, returning at intervals. In the course of a visit home, my father having passed away, Bryan was called upon to give away my eldest sister. By this stage he was drinking heavily. The family exerted all manner of pressure to ensure he would be ‘in form’ to discharge this role with style and dignity.

    In spite of solemn undertakings, Bryan visited Sligo town on the morning of the wedding and returned the worse for wear. Shortly before the bridal car departed for the church he was seen grasping, not a glass of gin and tonic, but a jug. As bride and uncle linked arms in the traditional passage up the aisle one onlooker was heard to say it was unclear who was supporting who.

    In the late 1970s Bryan again took the boat to England, and effectively disappeared for some years. The family attempted to trace him, but without success. By this time I was established in corporate law practice and had occasion to visit London on business. On receiving a tip-off of an address where he might be located I managed to make contact, and arranged to meet him at my hotel.

    After consuming as many drinks as were compatible with my work assignments for the following day, I invited Bryan to share my twin-bedded room at the hotel. I had learned that he was living in cheap accommodation and had taken up casual employment as a waiter for banquets and the like. The suit and shoes he wore were the only outer garments in his possession. The following morning he asked if I would meet him again that evening, saying, ‘there’s a friend of mine I’d like you to meet.’

    Joining up, we set off towards a smart address in Chelsea, arriving at one of those elegant bijou dwellings where curtains are left undrawn, allowing passers-by to peer enviously into elegantly furnished rooms. A tall, handsome woman opened the door, and I was introduced to ‘Jane’ as ‘a friend from Ireland’; I was just glad to be wearing my business suit in this rarefied environment. Chit-chatting over a glass of Sherry in the drawing room, Bryan mentioned a connection with the politician Garrett FitzGerald, who was known to the lady. He then asked her in jest, ‘where are you taking me now?’ Jane expressed a desire to go out for dinner, so we made our way to ‘The Gay Hussar’ restaurant in Soho.

    Settled at a comfortable table, the ordering complete, Bryan looked at our guest (mine really – it was obvious who was going to foot the bill), and in a most sympathetic tone said, ‘my dear, you look tired.’ ‘Well I am’, she replied, ‘I have been in the house all day.’ I had a momentary vision of her bent for hours over domestic tasks. Then it twigged, as I recalled an invitation card addressed to one ‘Jane Ewart-Biggs’ lying on her mantelpiece. ‘The House’’ I realized, was the House of Lords, and this was the wife of the former British Ambassador, Christopher Ewart-Biggs, assassinated by the IRA in Dublin in 1976.

    Bryan confided to me afterwards that he had written a letter to the grieving widow to express his abject shame at what his countrymen had done. He further added that that if she was ever in need of company of an evening he would be glad to give what comfort he could offer, to which she had responded.

    Having been run to ground in this way, the family resolved to repatriate him and provide some level of support. A little house was purchased on the edge of Sligo town. My then circumstances enabled me to pay him a modest stipend to provide for his basic needs. Banking systems had advanced sufficiently to allow an account to be programmed so that a maximum amount could be withdrawn every week, thereby avoiding splurges when the monthly transfer arrived in the account.

    From this base Bryan attempted to develop a legal practice. A number of solicitors in the town were willing to pass undemanding District or Circuit Court cases his way, and he was said to be impressive on his feet. Where a case demanded a greater level of legal knowledge, he would post the papers to me in Dublin and I would endeavour, with the help of my office library, to ghost the sort of reply that I hoped would meet the satisfaction of his clients. Bryan ‘got by’ for a number of years pursuant to these arrangements. He also struck up a relationship with a good and loving woman, whom he had known in his youth.

    During this period, while visiting a renowned tailor from Sligo, Martin & Son, with a base on Fitzwilliam Square in Dublin, I asked whether it ever happened that a client, for example one from the U.S. – this tailor visited California regularly to take orders – failed, for whatever reason, to take delivery of a suit. I was thinking of Bryan, I explained, who was well known to the Sligo native. ‘Leave it to me’, he said.

    I heard nothing more until another family wedding came around. This time the family were taking no chances. I was to give away the bride. Bryan was, in fact, well behaved on the day. He took his place in a pew looking the proverbial million dollars in an impeccable dark suit and pink tie. I caught up with him in the bustle of the reception at the family home, and asked how he had come by such a fine suit. ‘The suit?’, he responded, ‘I thought you knew all about that!’ ‘Tell me more’, I said.

    ‘Well’, he answered, ‘I was walking down Wine Street and a head peeped out from the tailoring emporium. ‘Bryan’, a welcoming voice said, ‘there’s to be a suit for you.’ I thought to myself – this is the chance of a lifetime. I asked them to bring out the finest quality English and Italian materials available in the shop, but I didn’t like any of them so I asked for the sample books and chose another to be ordered in.’

    As I listened, my jovial mood ebbed away somewhat. Some weeks later, I called into the tailor, and it became obvious a serious breakdown in communication had occurred. We agreed a settlement satisfactory to neither of us.

    A short time after these events, Bryan, perhaps under the influence of his good woman friend, abstained from alcohol throughout the Lenten period. We had high hopes. But Easter Sunday arrived with a vengeance. After a course of pre-prandials at Austie Gillen’s pub in Rosses Point he weaved an unsteady course down the driveway to the family home. As he approached, my mother was heard to rasp, ‘here comes trouble.’ Some days later Bryan breathed his last. It was speculated that the transition from Lenten abstinence to Easter inebriation was more than his system could tolerate.

    I was in Dublin and dissolved on hearing the news. As the arrangements for the funeral proceeded, I received a call from my solicitor brother. He said the tradition had been for burial in a funerary habit, but that this was beginning to change in favour of contemporary dress. ‘He does have a fine suit’, he said, ‘but it’s barely worn.’ ‘Bury him in the suit’, I gasped.

    Footage (at about 4:40) of Bryan in that suit, with gin and tonic in hand, can be seen in this family movie shot by my fourteen-year-old nephew Ed Rice.

  • Containing Strife – Professional Ideals in Law and Mediation

    Perhaps we can agree on this much: conflict is intrinsic to the human condition. We are desiring creatures. Our needs and wants rub up against those of others. Add in an event of intensification: a road accident, a perceived act of negligence, breach of commitment or betrayal of trust. Then there arises anger and its close relative, blame.

    Many such situations can be framed in legal terms. We have codes to regulate how people ought to behave. A breach gives rise to the possibility of redress. Often, however, we may observe what looks like a complex legal dispute, but that is not at the heart of the matter.

    As a lawyer I worked for months on the blowout of a large and successful business partnership that engaged several large law firms, and various court proceedings. Yet it was never clear why the parties had fallen out. I heard it suggested that the root of the trouble was the slighting by one partner of another’s wife. There is also the phenomenon of ‘grief to grievance’. People in heightened emotional states are more prone to disagreement and finding fault.

    Because we are generally disabled by our conflicts, it can suit us to delegate their resolution to people trained for that purpose. ‘You will be hearing from my solicitors!’ Those are the experts who know what remedies are obtainable, or how far our interests can be pushed.

    II

    The work of lawyers is considered that of a profession. To call an occupation a profession suggests a difference from other ways of scratching a living. There is, in origin at least, the suggestion of  calling or vocation.

    That said, professions have their own associated pathologies. George Bernard Shaw fashioned the line that ‘every profession is a conspiracy against the laity’. Adam Smith famously wrote in The Wealth of Nations that ‘People of the same trade seldom meet together, even for merriment and diversion, but the conversation ends in a conspiracy against the public, or in some contrivance to raise prices.’

    I want to focus for a moment on the nature of professional legal work in litigation and dispute resolution before considering the emerging profession of a mediator.

    The question arises now, whether there is a useful distinction that can still be drawn between a profession and a business. One hears a complaint in recent years that the law has become just one more business. Indeed promotional advertising addressed to the business community often makes a virtue of this development, suggesting that legal firms have a better understanding of the needs of business as a result of being, so to speak, in the same boat: ‘We are [firm XY], where law means business…’.

    What are the distinguishing features of a profession? Generally, one finds an insistence on codes of practice which its members must adhere to. Since lawyers hold a monopoly on the workings of the justice system, their conduct is heavily regulated. By contrast, persons working, say, in the IT sector will have to comply with relevant law applicable to that activity, but will not be subject personally to regulation as to how they conduct their business.

    Another aspect is that professional work seems to involve a higher degree of responsibility for the welfare of the person to whom services are supplied. It should not be a case of profit maximization, of caveat emptor. The expression ‘client’ rather than ‘customer’ indicates a different standard.

    Admittedly, much legal work performed in modern conditions, such as that associated with purchase and sale of property, or construction or corporate mergers or acquisitions might be considered as, simply, one more business. On the other hand, work in handling civil disputes can more readily be seen to have a more significant professional element, especially if promotion of a more peaceful, less strife-ridden society is to be seen as a public good.

    The idea of a profession would also suggest some level of restraint as regards charges, as opposed to ‘what the market will bear’. The historic appendage of a cloth purse till attached to a barrister’s gown, into which a couple of guineas could be slipped unbeknownst to the noble advocate may attract derision, but there is some kind of echo there, however faint.

    Within a law firm, it is hard to justify the use of fee targets for practitioners in dispute work if the social aim is to encourage expeditious settlement. Any scheme to base remuneration or bonuses on such targets would surely be suggestive of a Faustian bargain.

    One would also expect a measure of restraint as regards marketing of professional services which would not be applicable to pure business. This is a difficult area because lawyers have to take account of what competitors are doing. Yet a young solicitor observed to me rather sadly: ‘I was brought up to believe the fee follows the work, but now it seems the work follows the fee’.

    III

    A distinguishing feature of professional work is that it attracts the expression ‘practice’ as a description. There is a whole field of philosophical commentary as to the nature of ‘practices’ and their contribution to society. The philosopher Joseph Dunne has illuminated this subject. His words can offer an inspirational ideal for professional practice.

    A practice is a coherent and invariably quite complex set of activities and tasks that has evolved cooperatively and cumulatively over time. It is alive in the community who are its insiders (that is to say its genuine practitioners) and it stays alive only so long as they sustain a commitment to creatively develop and sustain it – sometimes by shifts which at the time may seem dramatic and even subversive. Central to any such practice are standards of excellence, themselves subject to development and redefinition, which demand responsiveness from those who are, or are trying to become, practitioners.

    Engagement in the characteristic tasks of a practice, which embody standards that challenge one in so far as they are beyond one, leads, when it goes well, to the development not only of competencies specific to that practice but also of moral qualities that transcend it – that characterize one not just as a practitioner in that domain but as a person in life. 

    He adds that a thing worth noticing about what may be called the economy of a practice is that it is not based on scarcity. Thus if one person excels it need not be at the cost of the other people’s chances to develop their talents. He concludes that ‘Every achievement of excellence enriches all those who participate in or care about a practice; it can be an occasion for admiration or even celebration as well as sometimes, of course, for attempts at emulation.’

    What is spoken of here, of course, is practice at its very best, but to express the ideal is to provide some yardstick by which particular work settings can be judged.

    IV

    What then of the newly emerging profession of mediator, an activity recently given status in Ireland as a result of the Mediation Act 2017? This Act, which envisages the establishment of codes of conduct for mediators, had a lengthy gestation, starting with a consultation undertaken by the Law Reform Commission nearly a decade ago.

    The main impetus has been dissatisfaction with the standard model of litigation, built as it is on adversarial confrontation, and correspondingly high costs. There is increasing resistance to what is labeled as ‘binary’ thinking, and promotion of what is termed a ‘non-dual consciousness’. The mediation model asks parties to recognize that they have a shared problem.

    Patterns of practice in mediation are still emerging. Those who have engaged in this work for many years can be heard to complain that lawyers are wanting to take over the field, and to run mediations as if conducted on a practice ground so as to play out what a courtroom outcome would look like.

    The kind of intellectual activity associated with intensive legal work – what a neuroscientist might classify as left-brain-activity, may be necessary to provide an understanding of a case that has proceeded along the litigation path, but the actual work of mediation calls for capacities more associated with the right hemisphere of the brain, and recourse to intuition.

    It is notable that the Mediation Act requires solicitors to give advice on the mediation option before legal proceeding can be commenced. The essential innovation introduced by the mediation alternative is not the arrival of the mediator on the scene, but a decision by parties in conflict to face each other to discuss their differences. This opens the possibility for value added in the engagement of a third party to facilitate the process.

    I suggest that mediation reaches its full potential when the mediator is able to bring to the table a certain capacity that may be called a ‘presence,’ a personal stillness that is evident even in a highly charged setting. This attribute will be hospitable to the parties. It will also support what may be considered the particular ‘magic’ of mediation, a feature unmatched in the adversarial legal system. This is the right of a mediator to have confidential discussions with each party to the conflict. To the degree that the mediator’s energy is sufficiently receptive, a party will be encouraged to be frank in such meetings, to look at both sides of the case, and to recognize their own share in creating the conflict.

    The kind of energies called for in mediation are exactly opposite to the driven, ‘weaponised’ environment associated with legal processes. The quality of presence that I have referred to is not beyond anyone working in dispute resolution, but it needs to be cultivated. For some this may mean consistent Zen meditation or yoga or like practices (the body is always present), or long walks with the dog. A certain spaciousness is called for.

    To imagine that what is called for in mediation is a mere brokering role, or knocking heads together, is to misconceive the potential. And mediators need to remember that reference to what it might cost to have a legal case run through the courts’ system is a poor yardstick with which to measure the value of the service.

    ********

    A younger colleague who worked with me, who was generally considered to have ‘got’ mediation observed that she had come to realize that ‘mediation is mostly about doing nothing’.

    But then, as we know, a certain kind of non-doing can be very powerful.

    And as to selling the mediator’s expertise, there is a wisdom in the story of the famed Rabbi who consoled a young colleague disappointed at how few people were seeking his advice: ‘They come to me’, the great man said, ‘because I am astonished that they come, and they do not come to you, because you are astonished that they do not come’.

    Fergus Armstrong is a mediator and former lawyer: www.oneresolve.ie

    Feature Image: Maggie Armstrong