Empathy in Mediation


Empathy is an essential tool in mediation, both for the mediator and  hopefully a quality the participants develop as well. Mediators  recognize, unless we want to act purely as evaluators (and even then the  capacity for empathy is still important), that we need to try to  empathize with the needs and feelings of both sides in every case, to  build trust and encourage understanding.  But sometimes the actions of  parties to a dispute seem so foreign or even repugnant to our own values  that we find it difficult to empathize. And when we can’t empathize, we  tend to distance ourselves and condemn. Are there limits to the  capacity to empathize? Are there actions so beyond the pale of  acceptable human behavior that it would be almost immoral to empathize?  According to a remarkable documentary I saw this past weekend, the  answer to those questions would appear to be “no.”

The Act of Killing takes  as its subject the gangsters and paramilitary organizations used by the  Indonesian government to kill perhaps a million supposed opponents of  the regime after the country’s military coup in 1965. There has been  some democratization in Indonesia since that time, but the people who  carried out these actions are still protected by the government, and can  brag about these actions with impunity. The government’s continued  protection of these killers makes it difficult to achieve the kind of  reconciliation that can sometimes be obtained by war crimes tribunals or  memorials or compensation to victims. Because the government still  supports the bad guys, the families of the victims of the purge still  live in fear. So much fear that the filmmakers discovered they could not  use the victims’ families in their film at all. Therefore they made the  decision to make a different kind of film, told from the point of view  of the killers. They were somewhat surprised to find that these  gangsters and leaders of paramilitary organizations involved in the 1965  killings were quite willing to cooperate.

One thing that makes the documentary unique is that its “stars,” in  addition to talking about their actions, were asked to re-enact them for  the camera, as if they were making a movie depicting their methods of  killing and torture. There was no trickery involved. No hidden cameras.  The actors fully understood that they were being filmed for a  documentary in which they were pretending to make a movie showing what  they had done more than 40 years ago. They dyed their hair to look  younger; they dressed up in gangster clothes; they took the filmmakers  to some of the places where they had engaged in torture and killings;  they demonstrated how they used wires to slit their victims’ throats;  they enlisted villagers to demonstrate how they dragged women and  children from their homes. Some of these scenes are almost comical;  others are harrowing. For the most part, the perpetrators  are not  embarrassed to give matter-of-fact descriptions of torture and killing  they committed.

What makes the film even more unique is that it does not allow the  audience the easy escape of simply condemning the killers as evil.  Instead it treats them with genuine empathy. The film’s point of view  forces us to recognize the essential humanity even of people who carried  out despicable and horrible crimes. We need to understand that these  crimes were committed by people, not by some sort of demons.

The film focuses in particular on one character, a gangster named Anwar  Congo. Like others, Congo at first expresses no remorse for his actions.  Since the killings were sanctioned by the government, and no one is  being punished for them, he can make the argument that he has done  nothing wrong. As the movie goes on, however, it becomes clear that at a  deeper level, he realizes that what he has done is wrong. At one point  Congo agrees to play a victim of torture being performed by others, and  says after doing the scene that he understands how his own victims must  have felt. The filmmakers do not let him off that easily, reminding him  that he was only pretending to be tortured, while for his victims the  torture was real. By the end of the movie, Congo is actually retching,  physically sickened by his appreciation of the horror of his own  actions.

Taking the point of view of people who committed horrific crimes in no  way justifies these actions. Allowing these criminals to tell their own  story instead causes at least some of them to condemn themselves, and  may help victims’ families viewing the film to achieve a degree of  peace. We see how important re-enactment, a tool that is used in court  proceedings and in mediation, is to achieving resolution of conflict.  The film also proves that there are no limits to the type of behavior  that can be treated with empathy. And how effective empathy is as a  technique to bring about understanding and potentially reconciliation.

by Joe Markowitz



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Joe Markowitz
Joe Markowitz has practiced commercial litigation for more than 30 years, both in New York City and Los Angeles, and has served as a mediator for more than fifteen years. He is a member of the Mediation Panels in both the District Court and Bankruptcy Court in the Central District of California. He is currently the president-elect of the Southern California Mediation Association.

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