Constructive Confidentiality in Mediation I

It is generally accepted that confidentiality is integral to the theory and to the practice of mediation. Why? Because…

When discussions are confidential the effect can be emancipating. Free of the risk of judgement by people peripheral to the mediation, confidentiality provisions can contribute to participants’ self-assurance which can be a catalyst for broad, thorough and frank exploration of issues ‘without fear or favour’. Confidentiality can provide a ‘cocoon of safety’.

At the same time, when discussions are confidential the effect can be constraining. Isolated from people who are affected by the issues being mediated and who can affect the durability of the outcome of mediation, confidentiality can contribute to participants’ uncertainty which can delay the progress of mediation and reduce the efficacy of outcomes. Confidentiality can produce a ‘desert island’ effect.

What is confidentiality? Confidentiality is the behaviour associated with maintaining a ‘cone of silence’ regarding ‘something/s’, which in practicality means to repeat the ‘something/s’ only to oneself. Perhaps to keep a confidence involves rumination? Certainly to not keep a confidence could involve ruination…

What is mediation? Mediation is the even-handed facilitation of a structured process during which the mediator is responsible for the process and the participants are responsible for the content of discussions and outcomes. Perhaps to mediate a mediator practices cordiality? It is not mediation if it involves loss of partiality.

Who are mediation participants? Mediation participants are the people who have decided that to get together privately to resolve persistent issues meets more of their interests than to remain apart and maintain issues or to get together publicly to resolve them. Perhaps participation in mediation is to have the foresight of cooperation. It is not participation if it involves advocates and litigation.

Conceptually, all aspects of mediation are swaddled in confidentiality. That is perhaps a reasonable expectation of mediators. To expect of participants what is expected of a mediator is to imply that the experience and consequences of a mediation are similar for each. They are not.

From beginning to end of one mediation to the next, mediators’ experience of a mediation is of mediation and their consequences of mediating are (all being well) more mediations.  Each mediation belongs to the participants. it is fleetingly a joint venture.

From the beginning of their one mediation to its end, participants’ experiences of mediation are likely to range from stressful upheaval to relieved satisfaction, inclusive. Participants’ consequences of mediating involve change and the changes range from outcomes they can ‘live with’ (that then ripple further afield) to no change (that ripples further afield) inclusive. Each mediation ‘belongs’ to the participants: their past, their present, their future… and usually ripple into others’ pasts, others’ present, others’ futures.

Conceptually, confidentiality is absolute. In practice, it isn’t. ‘Exceptions’, as they say, ‘make the rule’. Like the concept of confidentiality, the exceptions, for a mediator, are typically clear and uniform. They are the statutory and/or ethical obligations to report concern regarding harm and impending harm. Exceptions for participants are probably clear and unique. They probably include personal and social responsibilities and ethical obligations to keep those in the ripple zone informed.

In my experience, the confidentiality spuriously required of mediation participants is only occasionally maintained during, and rarely beyond, mediation. (Admissibility, on the other hand, is, in my experience, generally adhered to.) Most of what I have learnt about mediation I’ve learnt from listening to participants. What I have learnt about confidentiality vis a vis participants, is that it is impractical, unreasonable and can be an unnecessary contributor to the tension of mediation.

The discrepancies, and the potential dissonance caused by the discrepancies, between the spurious ‘cone-of-silence’ confidentiality compliance by participants and the actual, open non-compliant behaviour of participants intrigue me.

The tacit acceptance of the discrepancies and the potential creation of procedural dissonance for participants by mediators’ conceptualising confidentiality as absolute concerns me. Participants choose to mediate in order to remove dissonance from their lives. Mediation is a structured process of facilitating consonance that is practical for each and for all.

I practice an approach to confidentiality that overtly integrates the various components of confidentiality with fundamental mediation principles.  This ‘constructive confidentiality’ is confidentiality that is compatible with the mediation principles of participant self-determination ie instrumentality; participant-focused practice ie reality; and participant-constituent inclusivity ie practicality.

For the avoidance of duality and in the interests of finality, ‘constructive confidentiality’ includes (and is not limited to) participants’ reality, which translates (for them) to practicality and (above all) maintains their instrumentality.

My next post on constructive confidentiality will expand on how the construct acknowledges participants’ individuality; affirms participants’ instrumentality and accommodates participant-constituent plurality. In summary, my next post is concerned with how constructive confidentiality is grounded in participants’ reality and how it acknowledges participants’ need for practicality of confidentiality.


[i] http://en.wikipedia.org/wiki/Communitarianism [ii] http://debate.uvm.edu/handbookfile/pubpriv/046.html [iii] My brackets: ‘only’ is too strong for my understanding of communitarianism

DR Conferences in 2017

Thank you Kate for getting this thread started. Perhaps 2018 ADR conferences could be added.

The Australian Dispute Resolution Research Network

A number of conferences and workshops with a dispute resolution focus or dispute resolution stream will be held in 2017.

Depending where you are (or whether you can travel), your interests (check the websites for program details, the streams and themes) and when they are being held, you may like to attend and/or look to present at:

  • The American Bar Association Dispute Resolution 19th Annual Spring Conference
    19-22 April 2017
    Hyatt Regency, San Francisco, USA
    Website:  ABA 19th Annual Spring Conference
  • International Meeting on Law and Society
    20-23 June 2017
    Sheraton Maria Isabel Hotel and Towers, Mexico City, Mexico
    Website: LSA 2017
  • Socio-Legal Studies Association Annual Conference
    5-7 April 2017
    Newcastle University, Newcastle upon Tyne
    Website: SLSA 2017
    NOTE: Call for papers closes on 16 January 2017
  • The ADR Research Network Workshop
    6-8 December 2017
    The University of the Sunshine Coast, Sunshine Coast, Australia
    See our earlier post for some initial details Beyond…

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Moving rooms: back stage

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The chrysanthemums are the harbinger of change: watch this space. The other items are whatever you make of them.

Individually and collectively maybe they will facilitate tranquility and convey to participants whatever it might be that will assist each to listen, to think , to speak, to decide and to conclude.

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This post is part 2 of my move to online and mixed mode mediation. Part 1 involved kittens.

Moving rooms: kittens to a good home

Today I sold the furniture.

This evening I wandered through yesterday’s rooms… Yesterday’s rooms: empty of the mementos of mediation; redolent with recollections; full of the detritus of diligence; absent of anticipation.

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Today I arranged tomorrow’s rooms.

Tomorrow’s rooms: a mediation milieu contained in a backdrop. I’m online.  I started with an illustration by Felicia Sala that is my signature illustration; then a spathyphilum, yes, it’s colloquially known as the peace lily, in a blue pot; next a bird that is of the same hue and linking the arrangement, a white bowl that is generous, together on a filing cabinet that is jarrah. I’m told by participants that my rooms were calming; most recently, it was only yesterday, the real estate agent commented on the quietude. That was before I’d sold the furniture. Halsmith-blue, as it has come to be known by the family, was the connector; subtle, I hope.

I’m aiming for tomorrow’s rooms to be tranquil.

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This evening, to accommodate online mode,  as well as setting up tomorrow’s rooms, I’ve reviewed my Letter of Engagement and my introductory email; I’ve developed a participant help sheet for Zoom; I’ve commenced an inventory of essential amendments to be made somewhat urgently to my website; I’ve refined my  initial separate session checklist to include showing participants around tomorrow’s rooms. And, in what felt a significant step, I removed ‘HDR Rooms’ from my signature block.

The evolution from today’s to tomorrow’s rooms seems somewhat like a time lapse of amoeba to homo erectus.

Years ago I started attending International Mediation Institute meetings through GoToMeeting: incredulous at first then swapping control of the whiteboard as if it were a hot potato.

Next, I taught university mediation units using Adobe Connect, a sophisticated version of Zoom.

Months ago I subscribed to Zoom video conferencing and experimented by Zooming family in the next room and as far away as upstairs! Board meetings of Resolution Institute followed.

Weeks ago I started delivering Professional Development online. Participants tell me it’s working well: ‘lively learning from the warmth of your own home’.

Zoom, like each product, has its idiosyncracies. Intuition has been a reliable guide.

Today I sold the furniture: I’m comforted that it went to a good home.

 

Excellence and the importance of excellence in mediation

Romanian Mediation Excellence Gala 2016

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Dear Adi, Anca and all attendees of the Romanian Mediation Excellence Gala 2016

Thank you for including me in your request for messages regarding the importance of excellence in mediation. I endorse both the concept of aspiring to excellence and the holding of a Gala to give voice to it. Excellence is a notion that energises my passion for mediation. I am honoured to have been asked to contribute some thoughts. I look forward to reading/hearing others’ contributions.

Kind regards

Margaret Halsmith

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Introduction in which I distinguish ‘excellence’ from ‘exemplary’ and from ‘excellent’.

Excellence in mediation has many dimensions. I have chosen to focus on excellence in the practice of mediation, as distinct from excellence in the theory of mediation or excellence in the study of mediation or excellence in the evaluation of mediation among many examples.

I will take a moment to consider the noun ‘excellence’ and the adjective ‘exemplary’. ‘Excellence’ is a term that, to me, when applied to mediation practice, describes the perceived experiences of participants rather than the performance of mediators. In my opinion, while the observed and assessed performance of mediators can be exemplary in behavioural terms, it is for a participant to decide on excellence because it comes from the voices of the participants and exemplariness comes from the voice of the observer. It is when the principles, protocols, process and practices of mediation integrate in such a way as to maximize the benefits of the experience of mediation for each and for all participants, that I regard excellence as likely to be experienced.

I will take another moment to consider the noun ‘excellence’ and the adjective ‘excellent’. ‘Excellent’ can describe a moment of a participant’s mediation experience. The moment is likely to occur when a suite of mediator interventions functions to balance affiliation and acknowledgement and to balance acceptance and adaptation in a way that delivers a fleeting, cautiously optimistic harmony of purpose for participants. An excellent moment may open the possibility of excellence… it may, however, float into the ether.

‘Excellence’, on the other hand, describes sustained episodes of participants’ mediation experiences meeting their individual and collective procedural and personal interests. Sustained episodes include many simultaneous and consecutive excellent periods which together motivate participants’ coordinated, continuous striving and re-striving for the accomplishment of the goals of the mediation.

Consideration of distinct concepts in which I refer to ‘excellence’ separately from ‘the importance of excellence’

I have been asked to comment upon the importance of excellence in mediation. I shall first identify ten criteria of excellence in participants’ experiences of the practice of mediation then move on to the importance of excellence in mediation. Each is an interdependent part of the whole of excellence, which itself is both contemporaneous and retrospective.

Identification of excellence in practice in which I list criteria for intended to maximise the likelihood of each participant individually, and possibly collectively, being able to assess the extent to which a mediation is excellent.

Participants are likely to report excellence in mediation practice when each participant consistently individually and collectively experiences the mediation as

  • being conducted professionally
  • being overtly evenhanded
  • positively motivating
  • demonstrably epitomising the principles of mediation
  • transparently contributing procedural safety, facilitating substantive information gathering and clarification and conveying personal compassion
  • tentatively providing the opportunity for respectful restoring, possible maintaining, possible development of relationships among all or providing the opportunity for respectful concluding of relationships
  • clearly providing clarity regarding the purposes of each stage of mediation and, as requested, each intervention within the mediation
  • progressively accomplishing the distinct purposes of each stage of the mediation
  • overtly describing and displaying the criteria of excellence
  • welcoming formative and evaluative feedback and, when appropriate, refining practice accordingly
  • having an 11th criterion: the X factor

Exposition on the importance of excellence in which the  interconnectedness of acknowledgement and recognition of uniqueness is summarized

The importance of excellence in mediation practice is the contribution that the experience of excellence can make toward participants’ conceptualization of peaceful coexistence

The importance of peaceful coexistence on a local scale is the contribution can make toward the principled practice of peaceful coexistence on a global scale.

The importance of the principled[1] practice of peaceful coexistence on a global scale is the contribution it can make toward the valuing of the uniqueness of individuals, groups and cultures.

The importance of valuing the uniqueness of individuals, groups and cultures is the contribution it can make toward the experience of excellence in conflict resolution.

Application of excellence and its importance in mediation practice in which suggestions are offered

Mediation participants are more likely to experience excellence if they can recognise it. Essential components of the role of the mediator are

  • to provide information and to educate potential participants regarding exemplary practice and possible indicators of excellence in experience prior to mediation
  • to prime participants throughout the mediation to enhance their awareness and expectations of excellence

[1] There are various taxonomies of principles of dispute resolution. Rather than identify a particular taxonomy, I leave it to the reader to choose.

Power: about a Mouse and a Lion.

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Do mediators have an obligation to correct power imbalances between parties? No and for many reasons by Robert Angyal SC

I enjoyed this article because it raises core issues re conflict resolution. I’ll comment on one of them.

The article commences with two questions

Q1: ‘Where the parties to the mediation have unequal power, should the mediator exercise his or her power to affect the substantive outcome of the mediation?’

A1: Q1 is both unaskable and unanswerable first because mediators are not omnipotent and additionally because of the nature and the seat of interpersonal power.

The article goes on to

Q2: ‘In other words, should mediators use their power to attempt to correct imbalances of power between parties?’

A2: See A1 ie the ethical dimension has no anchor

Q3: Who does know that ‘parties to the mediation have unequal power?’

A3: The parties… each believes that ‘parties to the mediation have unequal power’ and furthermore that the other party has more power.

Q4: So what is power?

A4: Adam Curle says ‘power is anything that makes the other party think twice’.

Q5: So what is a concrete analogy for power?

A5: The slime that children play with mimics power: as soon as you grasp it it slip through your fingers; it changes shape by the moment; it has as many dimensions as it has moments.

Q6: So how does the mediator work with power?

A6: The mediator works with power by working with interests throughout the mediation. Parties work with power when the mediator conducts an interest-based reality testing session after a multitude of options has been generated

Q7: What happens if there is a settlement conference in which the transactions are premised in power?

A7: An orchestrated positional power struggle takes place along the line of capitulation or beneath it. A brittle compromise is reached at the weakest point.

eg 1 see ‘Mediation mindset: not tonight…’ series in which you and your friend get positional (a heady mix of power and rights) and then get interests-focused, summarised in ‘What mediation is…’

eg 2 see Aesop’s fable ‘The Lion and the Mouse’

Once when a Lion was asleep a little Mouse began running up and down upon him; this soon wakened the Lion, who placed his huge paw upon him, and opened his big jaws to swallow him. “Pardon, O King,” cried the little Mouse: “forgive me this time, I shall never forget it: who knows but what I may be able to do you a turn some of these days?” The Lion was so tickled at the idea of the Mouse being able to help him, that he lifted up his paw and let him go. Some time after the Lion was caught in a trap, and the hunters who desired to carry him alive to the King, tied him to a tree while they went in search of a waggon to carry him on. Just then the little Mouse happened to pass by, and seeing the sad plight in which the Lion was, went up to him and soon gnawed away the ropes that bound the King of the Beasts. “Was I not right?” said the little Mouse.

pic above from the Write Sisters

Mediation & apologies

Heard in mediation

In over 20,000 hours of mediation over 20 years, I have found each mediation to be memorably distinct. Frequently, however, each participant tells me that

‘If only the other participant/s would change the way they behave, there would be no need for this mediation.’

When I respond ‘I hear this quite often.’ there can be a heavily laden pause.

Almost as often, participants tell me

‘If only the other participant/s would apologise I would be able to look to the future with goodwill.’

I make a similar response; there is a similar pause.

Blame and vulnerability

What I hear above are two expressions of the same sentiment: the first includes blame; the second vulnerability; thoughts of blame and feelings of vulnerability. Generally, people blame others who they think of as having more influence on them than they themselves do. Generally, people feel vulnerable when they believe they are at risk of having/continuing to have low efficacy.

The person who blames another often thinks they have been provoked and coerced by the person they blame. The person who feels vulnerable often feels at risk of being provoked and coerced. Blame is self-protective: ‘I didn’t cause my misery; someone else did’. Vulnerability can also be seen to be self-protective: ‘I’m so hurt I shall keep myself safe from any risks at all.’

Does one person typically blame and the other typically feel vulnerable? In my experience, each blames the other and each feels vulnerable. It is the behaviour of each to assuage thoughts and feelings that differs.

Apologies

This post considers some dynamics of apologising in mediation. I will be drawing on a conglomerate of a mediated apologies across a broad range of settings[1].

Scholars write thoroughly and length on apology[2]. I shall write briefly. I regard an apology is an offer of vulnerability in return for having caused or contributed to vulnerability. One person, having perceived their actions, and/or knowing that their actions have been perceived, to have contributed to exposing another’s vulnerability, creates their own vulnerability by  acknowledging and expressing remorse to the other. To become vulnerable is to have a diminished sense of self; reduced sense of efficacy.

Each participant is feeling vulnerable: one due to experiencing harm and humiliation; the other due to the shame of causing harm and humiliation.

Mimi & Eunice is written and drawn by Nina Paley

Mimi & Eunice is written and drawn by Nina Paley

 

 

 

 

 

Mediation overview

How can mediation provide the setting for person 1 and person 2 to address the wrong doing and move on with dignity? Whatever model of apology one uses, the action taken will include communication of affect, affiliation and affirmation.

Choosing the timing, the place and the circumstances of being vulnerable is to exercise influence.

People consider mediation when the personal costs and consequences of conflict they are experiencing are greater than the personal costs and consequences of attending mediation. During the initial separate session which I hold with all potential mediation participants, I listen for, among many things, the descriptions by each potential participant of how current and past disputes have been negotiated. And this is where another of those distinguishing commonalities arises: invariably participants have been involved in a power struggle entangled with a clash of rights. Over time, apparent progress has been achieved by capitulation due to exhaustion, hope, entreaty and threats. With sufficient capitulation compromise has been reached.

Compromises collapse

For a number of reasons, compromises are often brittle. People who reach a compromise are often more aware of what it is of their preferred outcome that they have not achieved than of what it is they have achieved. To add insult to injury, the same people are often more aware of what it is that the other person did achieve of their preferred outcome, than of what it is that they did not achieve. In addition, compromises often rely on an unstable balancing act due to being conditional on factors beyond participants’ influence. Compromises are therefore prone to collapse so disputes, re-energised by disappointment and often by fear, emerge as vitriolic as ever.

Power struggles; rights clash

Wielding authority invites another to wield authority and so a power-struggle ensues. Claiming entitlement invites a reciprocal claim of entitlement and so a clash of rights occurs.

When the currencies of conflict are power and rights, an apology risks being lost in the ether: a waste of current vulnerability and a risk to future vulnerability.

Interests meld

Mediators work in the currency of interests. A mediator asks open questions to assist participants to identify their interests. What are the interests of the person giving and the person receiving the apology?

The interests of a person making an apology, that is, their motivation, often include to restore equilibrium, to restore the reliability of expectations of fairness, conclusion, reputation, responsibility, to show contrition and to know that they have been heard sufficiently well to have connected with the other.

The motivations of the person receiving an apology can overlap with those of a person making an apology.  To return to equanimity from feeling vulnerable can include the need for the harm to be acknowledged; for the person making the apology to openly recognise their part in causing the harm and to undertake to behave differently in the future. The authenticity of both the speaker/writer and listener are fundamental to the process. That is from the perspective of the person receiving the apology puts their ‘self’ on the line in the interests of the ‘other’ restoring some of their efficacy. The person making the apology puts their ‘self’ on the line in the interests of an acceptance from the ‘other’ restoring their integrity.

Mediation mindset & apology

Mediation is a structured process of even-handed facilitation of identification of participants’ joint interests.

The process of mediation can be highly suited to the process of making and receiving an apology because each participant is ‘on the same page’; each becomes aware of their own and the other’s interests.

Mediation is an evenhanded facilitation of resolution of a dispute through joint interests so that participants can move on in their own interests. Mediation is facilitated listening that creates the alchemy that transforms the isolation of positions into the connection of interests. Intrinsically mediation suited to apology because mediation is interests based and apology is concerned with meeting the needs of the person who receives and the person who gives the apology/apologies.

My next post will consider managing apologies in Mediator’s Opening Comments.

[1] hdr.net.au

[2] Allen and Carroll for example