The elegant camel and the resilient horse

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Federal workplace conflict management desk reference: a compilation of Alternative Dispute Resolution (ADR) Processes, Partners and Resources October 2013

Interagency Working Group, Conflict Management Section

This is ADR gold, particularly in the months following the discouraging closure of NADRAC. Before your hopes canter, I will point out that the term ‘Federal’ in the title refers to the Federated States of the United States of America. It could however refer to any federation, real or fictitious. The authors have produced a Desk Reference that epitomises the principles of ADR. It is inclusive, person centred, peer oriented and much more. It is intended to ‘give people working in this area a common understanding of the variety of [ADR] processes and approaches… and to ‘broaden the context within which they [ADR] are used.

There are four sections. Section I describes 17 distinct ADR processes under headings which cover who, what, when, where, how, why and much more including possible concerns about each approach. The information in Section I is universal, highly accessible and down-to-earth. Section II considers partnering opportunities which complement the aims and objectives of ADR processes and agencies. It is conspicuously USA oriented. The focus of this section on the USA provides scope for the Australasian imagination to consider what may be possible. In the literal sense of the word, Section III returns to the universal: using technology in dispute resolution. Section IV provides a short list of resources the breadth and depth of which again convey the theme of universality. There are resources on topics as far ranging climate assessment, communities of practice and appreciative enquiry. Section V is just one page that demonstrates the suitability for and the versatility of the processes described in Section I.

What is often said about committees and writing refers to a metaphor of camels and horses. This desk reference has been written by a committee that could have designed a camel if they’d set out to or a horse if that had been their aim. We in the ADR field are fortunate that they set out to write the Federal workplace conflict management desk reference: a compilation of Alternative Dispute Solution (ADR) Processes, Partners and Resources. They have written a document that has seamlessly integrated the strengths of each of the contributors to produce an elegant camel and a resilient horse.

I intend this to be the first in a series of quick comments on the items in my blogroll.

 

Mediation: an approach for using ‘Tips for reaching agreement’

This is typical of agreements reached in mediation with one proviso: each agreement is unique; none is typical.

This is typical of agreements reached in mediation with one proviso: each agreement is unique; none is typical.

I’ve previously mentioned that I commence each mediation by meeting with each participant separately. I encourage participants to be accompanied by a support person, whether a professional support person or a personal support person. Toward the end of the initial session I provide a sheet of Tips for reaching agreement, commenting  along these lines:

MH: “This is a sheet that I provide to each person who may be participating in a mediation.

“Whether it is a relationship matter, a commercial matter, a workplace matter or a family matter, I provide the same sheet of tips.

“I’ll give you a few minutes now to glance through them to see if any leap out at you. They may take a bit of studying after this session.

“I will be/will have given the same sheet to each of the other people involved in your mediation.

“The idea is that quite likely by now, you each have heard or you each feel as if you have heard, everything the other participants have to say… and you are possibly concerned that the mediation will be just more of the same… ‘same old…same old’?

“To give it the best chance and to be future focused, your mediation needs at least some elements of a fresh start. There are a number of things you can do and that I can do to create a fresh start.

“One of those things that I find works well is to put some of these tips into practice.

“What I will ask you to do, is to choose two or three of these tips. You know yourself better than anyone does and you know the other participants (whom I name) much better than I do. You are well placed to make a wise selection of tips that can really influence the outcome of this mediation.

“I have two criteria for you to use to make your selection. You may have others.

“The first is to choose two or three tips which are things you normally wouldn’t do.

“The second is to choose two or three tips which are likely to encourage the other participants(named)  to listen to you.

“When you’ve chosen the tips, it can be helpful if you can practice them a bit in day to day life leading up to the mediation.

“I will ask you which tips you are going to use in your mediation, privately, before your joint sessions commence. I’ll also check in with you in private sessions during your mediation about how the tips are working for you… and other aspects of the mediation as I mentioned earlier.

“It is my role to assist you to into practice the tips that you each choose and to assist you to put some of the others into practice too.

“I’ll give you an example of a recent mediation when one of the tips was particularly influential… (I provide a real, de-identified example)

Tip 23: Be generous at the end:  Whose generosity?

Observations

It is my observation that the ‘Tips’ sheet works in a variety of ways. Participants are pleased to have some precise steps to take; pleased to be able to have an expectation of constructive dialogue; pleased to have an expectation of reaching agreement; pleased to know that other participants will be approaching the issues according to the tips; pleased that other participants’ understanding of their changed approach is likely to be perceived as a commitment to agreement; pleased that providing the sheet is a routine part of my practice; pleased that the tips that are chosen remain private.

Mediation: cartoons that contribute to communication



Assessment for suitability for mediation: initial private sessions

I commence each mediation by meeting with each participant separately. In these initial, private separate sessions, when I ask potential mediation participants what they would like from mediation, most people are quite clear on the outcome they would like. When I ask what outcome they expect,they are also clear on the outcome they expect. After some discussion, particularly in response to “What outcome do you think each of the other participants would like/expect from mediation?” participants are usually less clear on the outcomes they would like and also less clear on the outcome they expect. This respectful creation of doubt creates possibilities for later settlement.

My next question is along the lines of “What would you like from the process of mediation?” While there is an enormous range of responses, a significant proportion  condense to “I would like to be heard. I would like to know I’ve been heard.” and in response to its corollary “What do you think each of the other participants would like from the process of mediation?” I hear a range of responses, including “They would probably like to be heard too.” “They would probably like to know they’ve been heard.”

Mediation: ongoing private sessions

One of the most commented on, among many of the techniques that I use to provide opportunities for participants to be heard and to know that they have been heard, is my use of the book It’s not always black and white: a colourful book on life’s grey areas by Kate Knapp. Among the reading material in each of the breakout rooms, there is a copy of the book, with two removable stickers on the back cover.

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Early on in the mediation, I encourage people to become familiar with the book while I am spending time with other participants in their breakout rooms. Later on in the mediation, in a private session, I ask participants to select two of the cartoons to explain to me, in a breakout session, an aspect of their experience of the mediation. Later again, I ask participants to select two cartoons to explain to the other participant(s) an aspect of their experience of the mediation. The aspects are s varied as the participants. For example, I sometimes ask participants to select two cartoons which highlight their hopes for the mediation. Other times, I ask participants to select cartoons which convey their concerns about the mediation. After a brief rehearsal of the aspect in question, participants plus It’s not always black and white return to the joint room.

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Joint sessions

MH “There are four steps in the use of your cartoons. I will start by explaining the first two steps.”

“First I am going to ask you each to explain, in three or four sentences, to the other participant(s) one of the cartoons that highlights … your hopes for the mediation.

“Next, you will each be welcome to ask clarifying questions that relate directly to the explanation you were given with each cartoon.”

“So, Mary, please explain to Fred, in three or four sentences, one of the cartoons that you have selected that highlights … your hopes for the mediation.”

“Thank you Mary.”

“Fred, please explain to Mary, in three or four sentences, one of the cartoons that you have selected that highlights … your hopes for the mediation.”

“Thank you Fred.”

“Now, for step 3, I will ask you each to explain what one of the cartoons that was presented to you would have meant to you, in terms of … your hopes for the mediation… if you had been  explaining it.”

“Fred, please explain to Mary, in three or four sentences, what the cartoon that was presented to you by Mary would have meant to you in terms of … your hopes for the mediation… if you had been explaining it.”

“Thank you Fred.”

“Mary, please explain to Fred, in three or four sentences, what the cartoon that was presented to you by Fred would have meant to you in terms of … your hopes for the mediation… if you had been explaining it.”

“Thank you Mary.”

“Finally, I will ask you each to identify, privately, one aspect of …  your hopes for the mediation, that you will reflect on with a view to it initiating a change, small or large, to an aspect of your mediation.”

“Moving on to … [stage of the process]  keep that thought present.

Observations

By my observation, what is likely to be happening for Fred and for Mary during the sequence above, is that each is likely to be recognising something in themselves; acknowledging something in the other; connecting to some extent with the other; and in connecting, sensing that conclusion can be reached. Each holds considerable promise for improved communication.

Mediation: uses and abuses I

Musings on Mediation: appropriate and inappropriate uses The Law Society of Western Australia held its Law Summer School in late February at the University of Western Australia. I attended the lively session entitled ‘Mediation: uses & abuses’. I came away stimulated by the high level of interest and the variety of angles of the questions and comments from the audience and from the panel. To me the scope and the significance of the topic extend well beyond one session and raise questions regarding the appropriateness of the use of mediation  that lead to many more questions.

Questions range from those as fundamental as ‘What is mediation?’ to ‘What are the criteria of appropriateness of use of mediation?’ and ‘Who are the arbiters of appropriateness?’; ‘What are the purposes of identifying appropriateness?’; ‘What are the risks of inappropriate mediation?’ and ‘For whom is inappropriate mediation a risk?’ to those as superfluous as ‘Is mediation appropriate when a participant is unwell?’ Can mediation deal with issues in the past?’ That is, most open questions regarding appropriateness of mediation are fundamental questions; almost all closed questions regarding appropriateness are superfluous. I digress… My interest for this post is in ‘uses and abuses’, which I’ve reframed as ‘appropriate and inappropriate uses’ of mediation.

Uses and abuses of what?

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Thanks to Kate Knapp ‘It’s not always black or white’

To consider mediation and its uses and abuses, here’s how I think of mediation: an earlier post distinguishes mediation from settlement conferences. Another describes mediation as I work with it. For me, mediation is a specific professional and principled mindset applied to the practice of a particular process.

Uses and abuses from whose point of view? People think, talk and write about, practise and participate in mediation.

  • The people who think and talk about appropriate and inappropriate use of mediation are often the academics, the bureaucrats, the practitioners and the professional support people including lawyers.

Academics draw on evolving theories from numerous disciplines to argue appropriate and inappropriate uses of mediation.

Administrators and Bureaucrats draw on the vagaries of policies and budgets to decide on appropriate and inappropriate uses of mediation.

Mediators make initial and ongoing assessments of appropriateness on the basis of whether they are able to fulfill their role in relation to participants generally.

Professional support people (lawyers, accountants, psychologists) do the same, on the basis of whether they are able to fulfil their role in relation to clients generally.

  • The people who practice appropriate and inappropriate use of mediation are the practitioners.

Mediators make ongoing assessments of appropriateness on the basis of whether they are able to implement the mediation model according to the principles of mediation that they practice, from a professional and perhaps from a personal perspective.

  • The people who participate in appropriate and inappropriate use of mediation are the consumers: the participants, their professional and personal support people and their constituents.

Participants make initial, ongoing and retrospective assessments of appropriateness on the basis of their expectations including perceived procedural fairness, personal experience and anticipated distributive fairness.

Professional support people do the same client by client.

Personal support people do the same.

Constituents make retrospective assessments of appropriateness on the basis of the outcomes of mediation.

So the uses and abuses of mediation can be considered from many points of view which can be summarised into conceptual (thinking & talking) and experiential (practising & participating) points of view. Mediation is a process for participants, individually and collectively. Appropriateness is therefore largely the realm of participants and their advocates. As I see it, it is participants’ interpretation of their experience that is pivotal to appropriateness. Experience is apersonal synthesis of professionalism, principles, process and practice. From an experiential and practical point of view these conceptual frameworks integrate in the form of participants’ interests.

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 Thanks to Kate Knapp ‘It’s not always black or white’

On this basis, I’ve decided that mediation is appropriate when from participants’ points of view

  • The process is demonstrably mediation by an externally agreed description

and

  • The process addresses the procedural and personal interests of each participant while addressing the procedural and personal interests of each other participant or at least while having a brief, temporary neutral effect on the procedural and personal interests of each other participant.

And therefore I’ve decided that ‘mediation’ is inappropriate when

  • The process is not demonstrably mediation by an externally agreed description

or

  • The process frustrates, undermines or ignores the procedural and personal interests of any participant while addressing, frustrating, undermining or ignoring the procedural and personal interests of each other participant or while having a sustained neutral effect on the procedural and personal interests of each other participant

I have referred here to procedural interests (‘What is important to you about the process?) and personal interests (‘What is important to you about your experience of mediation?’) of participants. Whether the substantive interests of participants (‘What is important to you about the outcome?’), including certainty, reputation and establishing a precedent, among others, are met is tangential to the notion of appropriateness of mediation because mediation is a process in which participants maintain their participation voluntarily and have responsibility for the substantive outcome.

So mediation is appropriate when, according to a current threshold (which will vary) of each participant, their procedural interests (‘What is important to you about the process?’), which could include fairness, justice, completion, respect, time-efficiency and cost-efficiency, among others, are being met while the procedural and personal interests of other participants are also being met or at least being very temporarily compromised. and when according to a current threshold (variable) of each participant, their personal interests which could include respect, recognition, acknowledgement, vindication, status, peace among others are being met while the procedural or personal interests of other participants are also being met or at least not being compromised. Summing up, for me, the use of mediation can be distinguished from the abuse of mediation by the extent to which the agreed mediation process can meet and maintain all participants’ and each participant’s personal and procedural interests.

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Thanks to Kate Knapp ‘It’s not always black or white’

Summary

  • Uses and abuses of mediation reframe to
  • Appropriateness and inappropriateness of mediation
  • Appropriateness can be considered from a conceptual and an experiential point of view.
  • Participants experience mediation.
  • Experience has procedural and personal dimensions.
  • Procedural and personal appropriateness are the decision of each participant
  • Extent to which procedural interests and personal interests are met by mediation contribute significantly to indicating the degree of appropriateness of mediation
  • Mediation is appropriate when in the opinion of each participant, each support person and the mediator (and their clinical supervisor) natural justice is being practised within an explicit model of mediation and all professional obligations and codes are being met.