Where in the university does mediation belong?

The Kluwer Blog is one of the blogs I look forward to.  Recently two posts have created such interest that I have re-read them. I’d like to re-read all of them. I rarely make the time.

Deborah Masucci declared that it is ‘Time for another big bang in Alternative Dispute Resolution‘ and Constantin-Adi Gavrila similarly considered ‘What went wrong with mediation?‘.  There is a lot of good reading and rereading in these posts.  I’m making my very brief comments here after failing thrice on the Kluwer blog site to enter the number to identify myself as human.  I decided that either I am not human or the ‘ReCaptcha’  is human!

After reading Constantin-Adi’s post, and before I was stymied by ‘ReCaptcha’ I wrote:

Great article.  In my experience, including at a well attended Law Summer School yesterday, mediation has been reluctantly and perfunctorily accepted by the law profession, perhaps as a public relations exercise with both government and with  potential participants.  Under the wing of the legal profession, mediation suffers tokenism; controlled tokenism.  And ‘mediation’ is not mediation.  It is mostly settlement conferences: quiet and respectful banging heads together.

Expanding on the above comment, I’ve considered – what went wrong? As I see it, mediation has been sent to boarding school in the next suburb, instead of living with the family.  Mediation is a humanity. The skills of mediation are the skills of humanities.  The process of mediation is a process of humanities.  The substance of mediation is the substance of humanities, in the context of the law.  The interpersonal aspects of mediation are the subject of humanities.

Law schools have taken good care of mediation, for subject that is a ring in.  And that is all.  Mediation is not and never will be one of the priestly 11.  Mediation needs to go home  where it can be developed into an undergraduate degree.  As a humanity, it can be promoted to government, business and individuals in a way which is consonant with the philosophy  and principles of the humanities rather than in a way which is dissonant with the philosophy and principles of law.

Law schools can develop excellent courses in advocacy, representation and negotiation  for their students, the soon-to-be trusted advisors in mediation.

Mediators’ and trusted legal advisors’ roles are complementary.  Participants experience a holistic approach.

mediation roles mediator cascade 140123mediation roles professional support cascade 140123

Participants then have the best of both worlds,  worlds which are the antithesis of each other. Mediation is promoted well.  The mediation profession thrives as does the legal profession.  Importantly they thrive by cooperating in what I refer to as CDR (Complementary  Dispute Resolution).

What’s next after a session that each of the participants describes as difficult? How can email contribute?

I find that email can be useful to maintain, and in some situations, to re-establish momentum between mediation sessions, especially if the session has been particularly difficult for each participant.

Recently I mediated a session that each participant said they found particularly difficult. To set the scene, it may help to know that most of the mediation was conducted in the joint room; about a third was conducted in the private rooms. Each participant attended with neither professional nor personal support person. You’d possibly like to know the nature of the difficulties? In very general terms, I can summarise the difficulties as including participants’ irrepressible urge to revisit the past; a retreat to rights and entitlements even after considerable interest-based discussions and declining to participate in reality testing.

These are the de-identified emails I sent the day after the mediation.

email-icon_small

Confidential communication

Dear Mary

As discussed at mediation yesterday, I am writing to offer you and Fred another appointment as well as to provide my comments on your mediation and on moving forward.

Appointment

I have booked an appointment for you and for Fred for

appt_small

Mediation so far & moving forward

As I observed it, yesterday’s second mediation session was a difficult one. You had commented that your first joint session had been relatively smooth. It is quite usual to have a smooth first joint session of mediation, followed by a rough second joint session and to conclude with a smooth third joint session. A smooth third session is very likely to result in an agreement, when circumstances are such that an agreement is appropriate.

When you are reflecting on yesterday’s session, do consider that it is often in the second joint session that reality bites and optimism wavers.  This often brings up aspects of the past which, although each person knows cannot be changed, still present themselves loudly and clearly. As I see it that is part of what happened yesterday.

The other part part of what happened yesterday, from my perspective, as I explained to you, is that despite the difficulties, you and Fred stayed on task and continued to negotiate well, that is, to generate options and to be open to reality testing them and you each referred to the potential for reaching agreement in mediation. These are all reliable indicators for reaching agreement.

In my experience, to reach agreement you will each need to continue to

  • remain future focussed
  • refer only to assets and liabilities that are current
  • aim to settle within a range
  • aim to settle in a way that you will each regard as fair when you look back in two years’ time
  • realistically re-consider the risks of settling in mediation
  • realistically re-consider the risks of settling in court
  • realistically re-consider the advantages of settling in mediation
  • realistically re-consider the advantages of settling in court

Perhaps you could talk these points through with a trusted professional or personal advisor.

It is likely to be helpful if you also focus on

  • ‘walking a mile’ in the other’s shoes, considering current assets and debts of each option. You could make a 5 year financial plan for yourself and another plan for Fred for each option, based on a each person having a good 5 years and another based on a tough 5 years
  • negotiating using the tips I provided at your initial separate session which are attached [will be the topic of a future blog entry]

Please confirm your availability for the appointment.

I am sending an essentially identical email to Fred.

Yours sincerely

Margaret

________________________________________________________________________


email-icon_small

Confidential communication

Dear Fred

As discussed at mediation yesterday, I am writing to offer you and Mary another appointment as well as to provide my comments on your mediation and on moving forward.

Appointment

I have booked an appointment for you and for Mary for

appt_small

Mediation so far & moving forward

As I observed it, yesterday’s second mediation session was a difficult one. Your first joint session had been relatively smooth. It is quite usual to have a smooth first joint session of mediation, followed by a rough second joint session and to conclude with a smooth third joint session. A smooth third session is very likely to result in an agreement, when circumstances are such that an agreement is appropriate.

It is often in the second joint session that reality bites and optimism wavers, often bringing up aspects of the past which although each person knows cannot be changed, still present themselves loudly and clearly. As I see it that is part of what happened yesterday.

The other part of what happened yesterday, from my perspective, as I explained to you, is that despite the difficulties, you and Mary stayed on task and continued to negotiate well, that is, to generate options and to be open to reality testing them and you each referred to the potential for reaching agreement in mediation. These are all reliable indicators for reaching agreement.

In my experience, to reach agreement you will each need to continue to

  • remain future focussed
  • refer only to assets and liabilities that are current
  • aim to settle within a range
  • ‘walk a mile’ in the other’s shoes, considering current assets and debts of each option ie make a 5 year financial plan for yourself and for Steven based on a good 5 years and another based on a tough 5 years
  • aim to settle in a way that you will each regard as fair when you look back in two years’ time
  • realistically re-consider the risks of settling in mediation
  • realistically re-consider the risks of settling in court
  • realistically re-consider the advantages of settling in mediation
  • realistically re-consider the advantages of settling in court

Perhaps you could talk these points through with a trusted professional or personal advisor.

It is likely to be helpful if you also focus on

  •  ‘walking a mile’ in the other’s shoes, considering current assets and debts of each option. You could make a 5 year financial plan for yourself and another plan for Mary for each option, based on a each person having a good 5 years and another based on a tough 5 years
  • negotiating using the tips I provided at your initial separate session which are attached [will be the topic of a future blog]

Please confirm your availability for the appointment.

I am sending an essentially identical email to Mary.

Yours sincerely

Margaret

________________________________________________________________________

If you’re curious about the mediation rooms where this and most of the mediations I do take place you can see them at this video tour of my rooms.

Mediation: what do the people at the table say?

 

This is the second in an occasional series on my reflections about language as a medium of the mediation message.  Opening statements are my focus here.  I have listened to thousands of participants’ opening statements. Some time ago I’d have said I had listened to thousands of parties’ opening statements. In Mediation: who is at the table? I explain my rationale for discarding the term ‘parties’ in favour of ‘participants’.That was the beginning. So encultured had I become, it was only after ‘participants’ replaced ‘parties’ that I realised that there was still more change needed. I realised that by asking participants for an opening ‘statement‘ I have quite likely been unintentionally inflating participants’ expectations of having an opportunity to convince other participants of the merits of their case

Image

My thanks to Law Comix for drawing the apposite cartoon.

How do you see it?

  • Would you agree that participation in mediation is voluntary?
  • Would you agree that mediation is a peer-based approach?
  • Would you agree that mediation takes an integrative approach?
  • Would you agree that  mediation involves some uncertainty?
  • Would you agree that mediating involves reciprocity?
  • Do you make a Mediator’s Opening ‘Statement’ and ask participants to make Opening ‘Statements’?

My concern is that by asking for ‘statements’ I could be heard as requiring an enunciation of the facts and implying that these are the building blocks of the mediation. A ‘statement’ is generally  intended to be irrevocable. It places the person asking for the statement (me) and the speaker in  positions of authority relative to the listener(s). A ‘statement’ is tantamount to orders: it carries an implication of compliance, significantly limiting choice in the dispute to little more than capitulate or be ‘capitulated’.

I now ask participants to make opening ‘comments’ following my mediator’s opening ‘comments’. ‘Comments’ are personal observations which implicitly invite responses and discussion. As I see it, it’s that peer-related reciprocity that contributes to the essence of mediation.