Mediation can help individuals in conflict gain new perspective, bringing fresh insight and understanding of each other and the underlying conflict.

To enable disputants to see things differently, mediators utilize a technique called “reframing” to assist parties to redefine the way in which they understand or conceive of a problem. Bernie Mayer said it best: “The art of reframing is to maintain the conflict in all its richness but to help people look at it in a more open-minded and hopeful way.”

As it turns out, humans already possess a great capacity for seeing things in a more positive light. Those of you who are fascinated by the mysteries of human behavior will find much to ponder in two studies described in this article from the Wall Street Journal which xamined the human propensity to interpret negative outcomes in the most positive light possible.

Most of us would safely assume that we would recognize immediately when an outcome resulted which we did not intend, particularly when that outcome is not our desired one. But a study on decision-making, conducted by researchers at Lund University, challenged that assumption. Subjects were convinced that those less desirable outcomes were the ones they had actually intended, despite the evidence of their own senses.

In addition, research conducted by Professor David Gilbert of the Department of Psychology at Harvard University reveals that our brains “strive to provide the best view of things”. In tests performed using optical illusions in which an object can be perceived in any number of ways, when humans were rewarded for seeing one particular view of that object, they were no longer able to perceive the object’s other views. In other words, we are hard-wired to see things in the best and most rewarding light possible. For further details, read Professor Gilbert’s online article at Edge.org.

This ability to see the best view of events and objects obviously helps us as humans build resiliency and adapt to change, particularly when that change is difficult. It undoubtedly aids us when we are faced with conflict. Reframing comes naturally to us.

(This does raise some intriguing questions for mediation practice. Do we do good or harm when we assist parties in reframing their conflict? Should mediators be wary of exploiting the human susceptibility to see intention and choice in unintended outcomes, to see the positive in less than optimal results? Or does reframing innocuously and simply draw upon our natural propensity to seek the view that is most rewarding and ultimately lead people to optimal choices? And what do these studies suggest about choice and informed decision-making on the part of disputants at the table?)

Ethical questions for mediators aside, Professor Gilbert’s article on his studies includes a link to a brilliant animated version of Necker’s cube, a mind-boggling optical illusion, courtesy of Mark Newbold, which shows how many different ways there are of seeing something. While you’re on that page, be sure to follow the link to SandlotScience.com, a web site featuring one of the best collections of optical illusions I’ve ever seen.

(With thanks to Brad Spangler and his excellent article on reframing at BeyondIntractibility.org. For a different perspective on reframing, download David Hoffman’s article, “Mediation and the Meaning of Life” (alas, in PDF format only), originally published in the Summer 2005 edition of Dispute Resolution Magazine.)

Halloween is hands-down my favorite holiday. It lacks the stress of other annual celebrations. There’s no turkey to cook, no presents to wrap, no family arguments igniting at the supper table (resulting in what my son likes to describe as “dinner and a show”). Halloween is a guilt-free holiday devoted to fun. Besides, it’s an excuse to indulge my fondness for miniature Milky Ways.

Speaking of Halloween, probably one of the strangest questions I’ve ever fielded came from a psychic who phoned to find out if I’d be willing to conduct a mediation between an individual and a deceased family member. Since that’s a job for a medium, not a mediator, I had to decline. (Besides, even assuming that the logistical difficulties could be overcome, there’s always the issue of how to get the dearly departed to sign the Agreement to Mediate.)

The supernatural admittedly holds a certain fascination, particularly around this time of year. In keeping with the season, my local newspaper, the Boston Globe, ran an article the other day on “psychologically impacted houses”—houses which have been the scene of violent crimes or the site of purported paranormal activity.

Unsurprisingly, a house’s unsavory past or reputation for spookiness reduces significantly the marketability of a home, which means that psychologically impacted houses take 50% longer to sell and sell at a lower price than ordinary houses.

One question that often arises is what duty does a seller or landlord have to disclose to a prospective buyer or tenant information regarding a home’s dark past?

As it turns out, maybe none, depending upon what state you happen to live in.

Approximately half of all states in the U.S. have statutes addressing the circumstances under which a house is said to be “psychologically impacted”. In most of those states brokers and sellers alike are protected from liability for failure to disclose the psychological impact.

In my own state, Massachusetts, the law, Chapter 93, Section 114, defines “psychologically impacted” to mean

an impact being the result of facts or suspicions including, but not limited to, the following:
(a) that an occupant of real property is now or has been suspected to be infected with the Human Immunodeficiency Virus or with Acquired Immune Deficiency Syndrome or any other disease which reasonable medical evidence suggests to be highly unlikely to be transmitted through the occupying of a dwelling;
(b) that the real property was the site of a felony, suicide or homicide; and
(c) that the real property has been the site of an alleged parapsychological or supernatural phenomenon.

Although the law does not impose an affirmative duty on sellers and brokers to disclose information of this nature to buyers up front, if a prospective buyer asks if a house is haunted, the seller or broker is required to tell.

There is at least one case on the books that deals with a poltergeist haunting and a buyer’s efforts to rescind the deal. In Stambovsky v. Ackley, 572 N.Y.S.2d 672 (1991), a case from New York, a buyer sought to rescind the contract of sale and to recover his down payment following his discovery that the house he intended to buy was the site of poltergeist disturbances.

Although I would have assumed that the buyer didn’t have the ghost of a chance, the court sided with the buyer, holding that “as a matter of law, the house is haunted” and allowed rescission of the contract of sale and recovery by the buyer of his down payment.

Since we’re on the subject of lawsuits involving the supernatural, a prisoner in Romania has purportedly sued God for failing to save him from the Devil’s influence and for breaching the contract the prisoner’s baptism constituted. Court officials have apparently said that they would have to dismiss the action because of service of process issues.

Which brings to mind a case I remember from law school days, U. S. ex rel. Mayo v. Satan and his Staff, 54 F.R.D. 282 (W.D.Pa. 1971). The case, as reported, reads as follows:

Civil rights action against Satan and his servants who allegedly placed deliberate obstacles in plaintiff’s path and caused his downfall, wherein plaintiff prayed for leave to proceed in forma pauperis. The District Court, Weber, J., held that plaintiff would not be granted leave to proceed in forma pauperis who in view of questions of personal jurisdiction over defendant, propriety of class action, and plaintiff’s failure to include instructions for directions as to service of process. Prayer denied.

The devil, as they say, is in the details.

Happy Halloween, everybody.