Mediators: from tweeting to carolling

This is the third in an occasional series of how I conceptualise the roles of people who attend a mediation. The first in the series was ‘ Mediation: the skilful lawyer‘;  the second was ‘Mediation:participants are the raison d’être.’

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At @HalsmithDisRes I explore the essence of mediation. For example, five among 400+ characterisations of mediation include:

  • Mediation is a meeting of visionaries: those who envision global peace and those who envision local peace.
  • Mediation is effective because it asks ‘What is important?’ rather than ‘Who is entitled?’
  • Mediation is victorious when there are victories without victors.
  • Mediation is authentic and accountable procedural leadership of authentic and accountable thought leaders.
  • Mediation is the facilitated shift from self-interest to joint interests in order to meet self interest.

As I see it, in CDR (Complementary Dispute Resolution) all aspects of mediators’ roles integrate into role models of demonstrating acceptance of and reverence for the uniqueness of each participant. Practically speaking, it is the role of mediators to think of participants ‘You are each right; each equally right and you are stuck. I am here to assist you to find a practical way to move forward.’

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Mediators as proactive designers of a tailored mediation process

  •  listen respectfully to each participant to design the framework for cooperative decision making
  • think compassionately to analyse the conflict so that they can design an approach and interventions which assist participants to fully participate
  • speak optimistically to each participant regarding the mediation process so that the roles of all complement each other
  • facilitate diligently to provide participants with a demonstratively evenhanded process prepare participants’  expectations of the process so that mediation begins smoothly
  • conclude sincerely to have designed a plan for the mediation that is tailored to the participants and their circumstances and that can be adjusted fluently during the mediation

Mediators as evenhanded facilitators of a structured process

  •  listen respectfully to hear what is important to participants so that an interests based dialogue is established
  • think compassionately to implement an approach that is inclusive, participatory, future focused, people oriented and situational so that a continuing refinement of the design is undertaken
  • speak optimistically to explain the process in a way that conveys evenhandedness, informality and each participant’s self determination
  • facilitate diligently to maximise the opportunity of participants to listen generously, think productively and speak moderately so that the purposes of each phase of the mediation can be accomplished and participants can then decide wisely and conclude satisfactorily
  • conclude sincerely to continue to convey the compassion and evenhandedness which the mediation was conducted

Mediators as procedural leaders of progress

  •  listen respectfully to hear mutual interests so that interventions accentuate the creation of mutually satisfactory outcomes
  • think compassionately to indicate the uniqueness of the circumstances of the participants individually and collectively
  • speak optimistically to contribute to a mindset of the possibility of reaching agreement
  • facilitate diligently to provide participants with the opportunity to thoroughly explore all options so that they have choice
  • conclude sincerely to acknowledge the progress of participants and the validity of the outcomes

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Cartoon credits:Morten Ingemann

Mediation: the skilful lawyer

I find that dispute resolution is portrayed as either lawyer-lead or mediator-facilitated. Like most binary analyses, this one is simplistic and exacerbates the antipathy between the capitulating and the creative approaches. People are complex. Solutions for people involve complexity. I prefer to have the best of both approaches: Complementary Dispute Resolution. In CDR  lawyers fulfill three interdependent roles: trusted advisors, champions of the process and consultants to all. In each role they, like all others involved, complement the roles of participants, mediators and personal supporters.

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Lawyers as trusted advisors

  • listen assiduously to hear their clients’ evolving expression of what is of importance and of concern
  • think creatively to assist their clients to identify core issues and later to contribute options
  • speak tactfully to assist their clients to clarify issues and to consider possibilities that could address their concerns and responsibilities
  • advise credibly to enable their clients to consider the impacts of other courses of action and to assess the risks of each
  • conclude supportively to assist their clients to commit to practical steps to move forward

Lawyers as consultants to all

  • listen assiduously to assist their clients to hear what is of concern and of importance to each of the participants
  • think creatively to assist their clients to contribute substantive options that are of potential benefit to each of the participants
  • speak tactfully to assist their clients to provide considered responses to each of the participants and feedback to the mediator
  • advise credibly to assist their clients to develop responses and options that are potentially productive for each of the participants
  • conclude supportively  to assist their clients to commit to practical steps to move forward with agreements reached by all

Lawyers as champions of the mediation process

  • listen assiduously to contribute to the attentive tone of the mediation and by confining most comments to the private sessions
  • think creatively about the purpose of each stage to encourage their client to participate in a way that maximises the effectiveness of mediation for all
  • speak tactfully to provide their clients and mediations in general with encouragement by noting progress stage by stage
  • advise credibly according to the purpose of the stage of mediation and to validate the mediator’s management of participants’ expectations
  • conclude supportively to affirm their clients and all present by commenting on participants’ commitment to the process

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Choosing mediation

Each person is unique; each mediation is different from each other mediation.  Even so, I start every mediation by meeting with each person separately and at that meeting I explain the essence of mediation.

This is one of the diagrams that I use.

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The first line explains what mediation is and the second line explains what mediation is not.  What I raise is that + differs on every dimension from v and that resolving agreed issues is an experience incomparable with the experience of accepting a pronouncement on a set of issues described by the law.

Experiences of mediation and court

mediation and court

I created this diagram to show some of the differences between the experiences of mediation and court.

Mediation is an opportunity for all involved to think creatively outside the box on legal, social and interpersonal issues. Then, participants can decide personally and pragmatically inside the box on agreed issues.

Court is an opportunity for a judicial officer to think logically inside the box on legal issues and to decide inside the box, on behalf of parties, who will win and who will lose on the legal issues.

So the questions is, who will be making the decisions about what?

Mediation is not a settlement conference

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Mediation is often confused with settlement conferences.  There are some fundamental differences.  Settlement conferences involves competition resulting in compromise.  Mediation involves co-operation resulting in an agreement.  I developed the set of diagrams below to demonstrate these processes.

The parties’ positions on the diagram below represent the outcome they are aiming for.  The primary questions in a settlement conference are “What is your position?” and then “What is the least you are prepared to settle for?”.  Neither party can have all that they want.  They will each need to compromise to reach a settlement.

Referring to the diagram, the most efficient settlement will be a compromise found somewhere along the red line.  In a best case scenario, if there are ten units available, all ten will be shared.  However, in any case other than the most efficient negotiations some units will be lost in legal fees, other advisors’ fees, time, and emotions.  This loss may be considerable because the process is competitive.  In these cases, the settlement will be in the grey area and will involve less or much less than ten units.  A unit could represent anything tangible which each participant wants and is important to them.

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The diagram below represents the fundamental difference that mediation offers.

The participants’ placement on the graph represents all that is important to each.  The primary question in a mediation is “What is important to you?”.  Each participant can have all that is important to them.  They will each need to be creative to reach a mediated agreement.

Referring to the diagram below, the most satisfactory outcome will be an agreement found in the dark blue square.  In a best case scenario, if there are ten units available, all ten could be available to each participant.  Realistically, it is likely that some units will be lost in legal fees, other advisors’ fees, time, and emotions.  However, because the mediation process is co-operative this loss will be minimal.

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Referring to the diagram below, in a mediation it is likely that the agreement will be in the lighter blue areas.  Each participant has the potential to gain up to ten units of what is important to them.

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Margaret’s Mediation Maxim

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I developed this diagram after reflecting on the essence of what works in mediation.  I’ve found that in this case, what works for one works for all.  When participants, support people, lawyers and the mediator all listen generously they are all inclined to think creatively, speak moderately and decide wisely, leading to satisfactory conclusions.