Response to Rick Weiler 5 April 2018 on Kluwer Mediation Blog: Whither (Wither) Mediation?

Thank you for your post Rick. It makes provocative reading. Both your analysis of trends of significant concern and your approaches to address the trends resonate with me. Worryingly, (worrying me) the overall effect of the nine + trends is greater than the sum of its parts. There is hope however, because the five approaches to improvement that you identify, taken together, will have an exponential effect on redirecting the trends from withering to thriving.

It is your introduction that captivates me because it contains the key to redirecting the trends from withering to thriving.

“… trends in commercial mediation in Ontario are unsupported by any reliable data – because no one keeps track.

No one records. It’s all anecdotal.”

Why is this?

I suggest that it is because mediators, individually and collectively, have grown dependent upon one aspect of their practice and that this aspect asserts a disproportionate influence on maintaining mediation as a precarious practice. I think of this aspect as a villain, a wolf in sheep’s clothing.

You say ‘No one records. It’s all anecdotal.’ I hear ‘There is no data.’ Without data we condemn ourselves to being seen to belong among the fads on the fringe; to the alternative sector; a sector that could just as accurately be named ‘unsubstantiated’. How many of us are willing to say that we practice UDR, let alone keep a substantiated record our practice of UDR?

Data alone, however, is/are not the answer. It is data that are valid and reliable that are the passport to mediation becoming a practice of substance and a profession of credibility with a promise of sustainability.

Valid mediation data that is reliable are yet to be identified and agreed. And why is that? There are many, many reasons: some structural, some practical and some mythical. The mythical lead me to my conspiracy theory. IMHO the data-denying villain is a double agent. It has a uni-dimensional personality, characterised by a construct that is revered by mediators across the world; heralded as pivotal to mediation. It is a creature that thrives in the warm, dark, damp caves of mediation practice. As a result, the process and the promotion of mediation, and therefore the practitioners of mediation have become dependent upon it.

Who is the villain?

The villain, in my opinion is confidentiality. Together with its siblings, privacy and inadmissibility, they wield their power, thrive and deprive mediation of oxygen. They keep the would-be data hidden at best, and at worst, they cause it to be released in the form of information, which without validity and reliability, is misinformation.

Step 1 in the revival and the thriving of mediation is to develop a much more sophisticated approach to confidentiality which gives it the status of other constructs of mediation including future focus, peer interactions and inclusivity. Perhaps a sophisticated approach could start with a constellation of confidentiality that is dynamic and incomplete, rather than maintaining  linear, binary, static views of confidentiality, privacy and admissibility.

One among many starting points in the shift from withering to thriving, is to consult a professional statistician.

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