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



Cartoon credits:Morten Ingemann

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.

Rights, responsibilities & justice … at night

I spend a fair bit of time pondering the relationship of rights to interests and interests to rights.  At present I’m thinking about how the cooperative process of mediation accommodates the often competitive claiming of individual rights.  So I tweeted, then thought some more.

I think of rights as positional, as prescribed; as often demanded and as often enforced.  In my experience when rights clash they compete then sometimes capitulate into compromise.  To me, rights belong in settlement conferences and courts.  Settlement conferences compromise; courts pronounce winners and losers.

In Australia we are fortunate that each of our individual rights is an entitlement.  I hear rights as being self-focussed  and immutable: “I have a right to …”  to me, are right without the responsibility to uphold others’ rights, often sounds aggressive.  Responsibilities, sometimes in the form of obligations, sometimes at our discretion bring perspective to the idea of rights.  Responsibilities are other-focussed and situational.  “I have a responsibility toward … ”  Whether or not I carry out my responsibilities, your rights remain your rights, a responsibility of the State if it comes to enforcement.

For example, I, like others, have the right to cultural expression.  When there are sufficient resources for all of our expressions of culture to take place, life is calm.  When people’s expressions of culture require scarce resources, as they realistically do, rights may clash. Then there becomes a need for a resolution.  If the resolution is that I accommodate the rights of someone else in a compromise, I experience a brittle relationship.

If, on the other hand, I explore what’s important to me about my rights and what’s important to them about their rights, instead of just accommodating someone else, I generally find there are some possibilities for each of us.

Here’s a more specific example.  It concerns the buying of a bed with a partner.  It’s my right to a good night’s sleep; it’s their right to a good nights sleep.  I like a soft mattress; they like a hard mattress.  We compromise and get a medium mattress.  Neither of us gets a good night’s sleep.  Tensions rise.  So then we get on to figuring out what is important to each of us (comfort, compatibility, knowing the other is comfortable etc etc) then exploring possibilities: separate beds, overlays, underlays, separate mattresses zipped together; separate mattresses with overlays … and so it goes on until we reach satisfactory arrangement.

Conflict, harmony & mediator evenhandedness

On a daily basis, coming up to 20 years’ practicing as a mediator, I continue to reflect on the essence of mediation.  I have a notion that  in each encapsulation of mediation there is a paradox or p’raps a conundrum.  Now that I write that it makes sense really.  In each person there are numerous paradoxes and each relationship has elements of conundrums/conundra?.  Over the last year, having become an amateur member of the twitterati, I’ve continued to explore the paradox notion, now in 140 characters or less.  I’ve found this shortened form to be challenging and valuable. It distills and records my thoughts and ideas – often occurring to me as I leave a session or prepare for one.

I tweet #mediation is and by implication, though rarely directly, #mediation is not.

From time to time I’ll muse on my tweets … tweet on my blog… blog on my tweets … tweet on my musings then later start all over again.

When I tweeted “a harmonious life is one in which conflict knows its place” I was reflecting on  the relationships between harmony and conflict.  Each can be described in terms of two factors: degree of alignment of perceptions and extent to which change is manageable.  I think of harmony as interludes when people have mostly common perceptions of what is important to them and when they regard change as occurring at a mostly manageable pace in a mostly predictable way.  I think of conflict as interludes when people have mostly differing perceptions of what is important to them and when they regard change as occurring at a mostly unmanageable pace and in a mostly unpredictable way.

I tried to imagine almost constant harmony: most people having such similar thoughts and correspondingly similar feelings that most people most of the time prefer to do what others are doing and prefer others to be doing what they are doing. Where would be my individuality? creativity? motivation? It occurs to me that it could be easy to become overwhelmed by uniform similarity.

Then I tried to imagine almost constant conflict: most people having such distinct thoughts and correspondingly distinct feelings that most people most of the time prefer to do things distinct from what others are doing and prefer others to be doing things distinct from what they are doing. Where is individuality? creativity? motivation?  It could be easy to become overwhelmed by ubiquitous distinctiveness for the sake of being distinctive.

So then I imagined the effects of harmony interwoven with conflict; conflict interwoven with harmony: most people most of the time listening to each other to know each other as individuals because they don’t know what to expect though they do know it will probably be interesting, considering what they have heard, explaining and clarifying perceptions. This is the sort of relationship building that I see all around; unique individuals connecting with other unique individuals.

I find conflict intriguing when I think of it as a manifestation of uniqueness. Expressions of uniqueness distinguish humanity from other species: each person is equally unique. I think of it as uniqueness both creating and explaining conflict. A harmonious life is one which conflict knows its place.  To me the role of conflict is as a lens through which uniqueness can be viewed and valued.  Through this lens, I can accept it and assist others to accept it and if appropriate resolved. The role of harmony is as another lens through which uniqueness can be viewed and valued and accepted and if appropriate maintained.

So in summary, to me harmony and conflict are each inevitable, interactive and often though definitely not always, complementary.

In my mediation practice I keep these perspectives of harmony and conflict uppermost in my mind. They are part of my even handedness mosaic.