Music to my ears 3: Address by Wayne Martin AC, Chief Justice Supreme Court of Western Australia, Perth 6 March 2018

Mediation and court: diagrammatically distinct… experientially …?

This post is the third in a series of three:  ‘Music to my ears 1- 3’. It was prompted by a paper presented by  the Chief Justice of the Supreme Court of Western Australia, Hon Wayne Martin AC,  in March 2018.

Music to my ears 1‘ raises the possibility that there are some similarities in both the scope and the constraints of court procedure and mediation processes .

Music to my ears 2 explores the possibility of some similarities by transposing ‘court’ to ‘mediation’ to establish the extent to which the statements originally referring to court procedure can be read as broadly describing mediation processes.

This post, ‘Music to my ears 3’, builds on apparent similarities of the scope and constraints of court procedure and mediation processes by translating the comments of the Chief Justice into the concepts and then into the language of mediation to begin to explore the notion that it may be the language of each of the processes that contributes to them being perceived by many to be antithetical.

If that can be done meaningfully then I suggest that from participants’ perspectives, perhaps it is in part the language used by each that distinguishes one from the other. This possibility raises thoughts of participants receiving explanations of the two processes in terms of what they have in common and how they are distinct rather than the current situation of one process being seen to be the antithesis of the other; one process and its proponents being seen to be undermining the process and proponents of the other.

  • Chief Justice re Court

It is important to remember that the issues of fact resolved by a court are only those which the parties choose to present, and that they must be resolved on the basis of the evidence presented by the parties. p. 8 under the heading ‘The Constraints upon Adjudicated Outcomes’

Chief Justice re Court transposed to Mediation concepts and language

At mediation it is significant that the information is provided by participants and is the information that participants individually and collectively choose to present. Typically it is presented throughout the stages of the ‘top triangle’, where in the exploration stage everything that may become relevant to reaching resolution is aired in an environment of ‘all information is valid… maybe differently valid’. It is that information that is referred to when, during the stages of the second triangle, the mediator facilitates participants’ creation of options, followed by reality testing, filtering and then reaching agreement, as appropriate.

  • Chief Justice re Court

In the adversarial system there is no practical capacity for a court to conduct its own investigations to establish the truth, nor is there any obligation upon the court to arrive at some notion of absolute or independent truth.

Chief Justice re Court transposed to Mediation concepts and language

At mediation the notion of truth is often conceptualised by participants as significantly similar recollections which can cause and can result from ‘workable truths’, that is, participants’ perceptions of reciprocated authenticity underpinned by acceptance (and possible disagreement) of  others’ perspectives.  These ‘workable truths’ appears to be present in a tenuous way throughout mediation for many participants.

‘Workable truths’ are person and therefore mediation specific. Mediation is future focused: the question of truth in mediation is a question of ‘workable truths’ projected to unknown and dynamic circumstances. In mediation, truth often refers to a commitment to future honesty, predicated on privacy.

  • Chief Justice re Court

Australian courts are not commissions of enquiry and can only view the facts through a prism of the evidence presented by the parties, which may or may not give a true view.

Chief Justice re Court transposed to Mediation concepts and language

Mediations are private and consider only participants’ and constituents’ future focused interests, all of which, because they are developed from the past and are dynamic in the present, have a significant hypothetical element to them.

  • Chief Justice re Court

Similarly, courts are generally constrained to adjudicate only upon the legal issues presented by the parties and have very little capacity to take the law in a direction not proposed by at least one party.

Chief Justice re Court transposed to Mediation concepts and language

At mediation the issues are those identified by the mediator and agreed by the participants. Typically the agreed issues form an agenda, each item of which is future focused, neutral and mutual. Agenda items can relate to any and all domains of participants’ decision-making: legal, moral, interpersonal, practical etc

  • Chief Justice re Court

The constraints imposed upon a court by the way in which the parties choose to present their case somewhat diminish the normative value of public adjudication.

Chief Justice re Court transposed to Mediation concepts and language

The outcomes of most mediations almost always remain private outcomes which results in little or no data being available for reporting or analysis. With no comprehensive sociological and statistical data available, participants often describe their mediation experience in a way that I shall summarise as ‘pioneering’. Any learning from other pioneers is due to word-of-mouth. Society remains unaware.

  • Chief Justice re Court

We should remember that the incentive of each party is to win, not to establish the truth or to develop legal principles.

Chief Justice re Court transposed to Mediation concepts and language

Mediation participants are initially motivated by a constellation of motives. During the mediation their motives coalesce into reaching a durable, practical, private agreement and  in many situations, also to restoring and maintaining at least cordial relationships. Principles are far from the focus and ‘the truth’ (much of it inconvenient) has been relegated to the periphery.

  • Points for further pondering

Ho: From an objective conceptualisation of participants’ perspectives of their experiences, described in both the terminology of the court and the terminology of mediation, the procedures of the court and the processes of mediation are significantly similar.

H1: From an objective conceptualisation of participants’ perspectives of their experiences, described in both the terminology of the court and the terminology of mediation, the procedures of the court and the processes of mediation are significantly distinct.

It would be interesting to be able to measure, with validity and reliability, the experience of court and of mediation and of other forms of dispute resolution from the perspective of participants, constituents and society.

 

 

Music to my ears 2: Address by Wayne Martin AC, Chief Justice Supreme Court of Western Australia, Perth 6 March 2018

This post continues ‘Music to my ears 1‘ in which I pondered whether I could transpose an excerpt from the paper by the Chief Justice of the Supreme Court of Western Australia, The Hon. Wayne Martin AC, from a description of the scope and the constraints of court practices to a description of the scope and the constraints mediation practices.

Below I put my ponderings to the test, changing the legal terminology to mediation terminology and as little of that as possible.

You be the judge!

I like to think that if the Court versions are written in the key of C major then the Mediation version below is written in the key of A major. The F# minor version will follow in ‘Music to my ears 3‘.

  • Chief Justice re Court

It is important to remember that the issues of fact resolved by a court are only those which the parties choose to present, and that they must be resolved on the basis of the evidence presented by the parties.

Chief Justice re Court transposed to Mediation

It is important to remember that the issues that can be resolved by a mediation are only those which the parties choose to present, and that they are resolved on the basis of the interests presented by the parties.

  • Chief Justice re Court

In the adversarial system there is no practical capacity for a court to conduct its own investigations to establish the truth, nor is there any obligation upon the court to arrive at some notion of absolute or independent truth.

Chief Justice re Court transposed to Mediation

In the mediation approach there is no practical capacity for the mediation to conduct its own investigations to establish the truth, nor is there any obligation for the mediation to arrive at some notion of absolute or independent truth.

  • Chief Justice re Court

Australian courts are not commissions of enquiry and can only view the facts through a prism of the evidence presented by the parties, which may or may not give a true view.

Chief Justice re Court transposed to Mediation

Mediations are not commissions of inquiry and can only view the circumstances through a prism of information presented by the parties, which may or may not give a true view.

  • Chief Justice re Court

Similarly, courts are generally constrained to adjudicate only upon the legal issues presented by the parties and have very little capacity to take the law in a direction not proposed by at least one party.

Chief Justice re Court transposed to Mediation

Similarly, mediations are generally constrained to facilitate to assist parties to reach agreement only upon issues presented by the parties, and, contractually have no capacity to take the outcome in any direction.

  • Chief Justice re Court

The constraints imposed upon a court by the way in which the parties choose to present their case somewhat diminish the normative value of public adjudication.

Chief Justice re Court transposed to Mediation

The contractual constraints imposed upon a mediation significantly diminish the normative value of mediation.

  • Chief Justice re Court

We should remember that the incentive of each party is to win, not to establish the truth or to develop legal principles.

Chief Justice re Court transposed to Mediation

We should remember that the incentive of each party is to reach a satisfactory agreement, not to establish the truth or to develop societal principles.

  • Points for my further pondering

Based on this excerpt and to the extent that you can live with this transposition, to what extent are court and mediation processes related?

Could CDR be an abbreviation of Consanguineous Dispute Resolution?

  • Next post

Another approach, to put to the test, the CDR test, could be with regard to the currency (the unit of exchange) of the process and therefore of the people involved. In a court, the currencies are rights and authority; in a mediation the currencies are interests and authority.  Maybe that will underpin ‘Music to my ears 3‘.

The mediation process

 

 

Music to my ears 1: Address by Wayne Martin AC, Chief Justice Supreme Court of Western Australia, Perth 6 March 2018

Australian Disputes Centre ADR Address 2018 Alternative Dispute Resolution – A Misnomer?

Dispute Resolution in C maj.

The following excerpt from this highly quotable paper, at page 8, is one example among many, of the compelling reading presented by the Chief Justice. It describes the scope and the constraints of the court. For me it raised and started answering questions about the relationship of two approaches to dispute resolution: the courts and mediation.

“It is important to remember that the issues of fact resolved by a court are only those which the parties choose to present, and that they must be resolved on the basis of the evidence presented by the parties. In the adversarial system there is no practical capacity for a court to conduct its own investigations to establish the truth, nor is there any obligation upon the court to arrive at some notion of absolute or independent truth. Australian courts are not commissions of inquiry and can only view the facts through a prism of the evidence presented by the parties, which may or may not give a true view. Similarly, courts are generally constrained to adjudicate only upon the legal issues presented by the parties and have very little capacity to take the law in a direction not proposed by at least one party. The constraints imposed upon a court by the way in which the parties choose to present their case somewhat diminish the normative value of public adjudication. We should remember that the incentive of each party is to win, not to establish the truth or to develop legal principles.”

As I read it, the excerpt pertains to authority; authority of the people involved, that is, of  parties, judicial officers and of the process: substantive and procedural authority.

The excerpt is music to my ears because while it describes aspects of the scope and the constraints of the court; it could, I hypothesise, be transposed to describe parallel aspects of the scope and the constraints of mediation and, for that matter,  other processes in the suite of CDR, ‘Complementary Dispute Resolution’.

My ‘Music to my ears 2‘ post will put my hypothesis to your test. I will aim to transpose the excerpt from court (C maj.) to ADR (A maj.), specifically, mediation.

Court room

Constructive Confidentiality in Mediation I

It is generally accepted that confidentiality is integral to the theory and to the practice of mediation. Why? Because…

When discussions are confidential the effect can be emancipating. Free of the risk of judgement by people peripheral to the mediation, confidentiality provisions can contribute to participants’ self-assurance which can be a catalyst for broad, thorough and frank exploration of issues ‘without fear or favour’. Confidentiality can provide a ‘cocoon of safety’.

At the same time, when discussions are confidential the effect can be constraining. Isolated from people who are affected by the issues being mediated and who can affect the durability of the outcome of mediation, confidentiality can contribute to participants’ uncertainty which can delay the progress of mediation and reduce the efficacy of outcomes. Confidentiality can produce a ‘desert island’ effect.

What is confidentiality? Confidentiality is the behaviour associated with maintaining a ‘cone of silence’ regarding ‘something/s’, which in practicality means to repeat the ‘something/s’ only to oneself. Perhaps to keep a confidence involves rumination? Certainly to not keep a confidence could involve ruination…

What is mediation? Mediation is the even-handed facilitation of a structured process during which the mediator is responsible for the process and the participants are responsible for the content of discussions and outcomes. Perhaps to mediate a mediator practices cordiality? It is not mediation if it involves loss of partiality.

Who are mediation participants? Mediation participants are the people who have decided that to get together privately to resolve persistent issues meets more of their interests than to remain apart and maintain issues or to get together publicly to resolve them. Perhaps participation in mediation is to have the foresight of cooperation. It is not participation if it involves advocates and litigation.

Conceptually, all aspects of mediation are swaddled in confidentiality. That is perhaps a reasonable expectation of mediators. To expect of participants what is expected of a mediator is to imply that the experience and consequences of a mediation are similar for each. They are not.

From beginning to end of one mediation to the next, mediators’ experience of a mediation is of mediation and their consequences of mediating are (all being well) more mediations.  Each mediation belongs to the participants. it is fleetingly a joint venture.

From the beginning of their one mediation to its end, participants’ experiences of mediation are likely to range from stressful upheaval to relieved satisfaction, inclusive. Participants’ consequences of mediating involve change and the changes range from outcomes they can ‘live with’ (that then ripple further afield) to no change (that ripples further afield) inclusive. Each mediation ‘belongs’ to the participants: their past, their present, their future… and usually ripple into others’ pasts, others’ present, others’ futures.

Conceptually, confidentiality is absolute. In practice, it isn’t. ‘Exceptions’, as they say, ‘make the rule’. Like the concept of confidentiality, the exceptions, for a mediator, are typically clear and uniform. They are the statutory and/or ethical obligations to report concern regarding harm and impending harm. Exceptions for participants are probably clear and unique. They probably include personal and social responsibilities and ethical obligations to keep those in the ripple zone informed.

In my experience, the confidentiality spuriously required of mediation participants is only occasionally maintained during, and rarely beyond, mediation. (Admissibility, on the other hand, is, in my experience, generally adhered to.) Most of what I have learnt about mediation I’ve learnt from listening to participants. What I have learnt about confidentiality vis a vis participants, is that it is impractical, unreasonable and can be an unnecessary contributor to the tension of mediation.

The discrepancies, and the potential dissonance caused by the discrepancies, between the spurious ‘cone-of-silence’ confidentiality compliance by participants and the actual, open non-compliant behaviour of participants intrigue me.

The tacit acceptance of the discrepancies and the potential creation of procedural dissonance for participants by mediators’ conceptualising confidentiality as absolute concerns me. Participants choose to mediate in order to remove dissonance from their lives. Mediation is a structured process of facilitating consonance that is practical for each and for all.

I practice an approach to confidentiality that overtly integrates the various components of confidentiality with fundamental mediation principles.  This ‘constructive confidentiality’ is confidentiality that is compatible with the mediation principles of participant self-determination ie instrumentality; participant-focused practice ie reality; and participant-constituent inclusivity ie practicality.

For the avoidance of duality and in the interests of finality, ‘constructive confidentiality’ includes (and is not limited to) participants’ reality, which translates (for them) to practicality and (above all) maintains their instrumentality.

My next post on constructive confidentiality will expand on how the construct acknowledges participants’ individuality; affirms participants’ instrumentality and accommodates participant-constituent plurality. In summary, my next post is concerned with how constructive confidentiality is grounded in participants’ reality and how it acknowledges participants’ need for practicality of confidentiality.


[i] http://en.wikipedia.org/wiki/Communitarianism [ii] http://debate.uvm.edu/handbookfile/pubpriv/046.html [iii] My brackets: ‘only’ is too strong for my understanding of communitarianism

Excellence and the importance of excellence in mediation

Romanian Mediation Excellence Gala 2016

Blog_excellence_5

Dear Adi, Anca and all attendees of the Romanian Mediation Excellence Gala 2016

Thank you for including me in your request for messages regarding the importance of excellence in mediation. I endorse both the concept of aspiring to excellence and the holding of a Gala to give voice to it. Excellence is a notion that energises my passion for mediation. I am honoured to have been asked to contribute some thoughts. I look forward to reading/hearing others’ contributions.

Kind regards

Margaret Halsmith

Blog_excellence_3

Introduction in which I distinguish ‘excellence’ from ‘exemplary’ and from ‘excellent’.

Excellence in mediation has many dimensions. I have chosen to focus on excellence in the practice of mediation, as distinct from excellence in the theory of mediation or excellence in the study of mediation or excellence in the evaluation of mediation among many examples.

I will take a moment to consider the noun ‘excellence’ and the adjective ‘exemplary’. ‘Excellence’ is a term that, to me, when applied to mediation practice, describes the perceived experiences of participants rather than the performance of mediators. In my opinion, while the observed and assessed performance of mediators can be exemplary in behavioural terms, it is for a participant to decide on excellence because it comes from the voices of the participants and exemplariness comes from the voice of the observer. It is when the principles, protocols, process and practices of mediation integrate in such a way as to maximize the benefits of the experience of mediation for each and for all participants, that I regard excellence as likely to be experienced.

I will take another moment to consider the noun ‘excellence’ and the adjective ‘excellent’. ‘Excellent’ can describe a moment of a participant’s mediation experience. The moment is likely to occur when a suite of mediator interventions functions to balance affiliation and acknowledgement and to balance acceptance and adaptation in a way that delivers a fleeting, cautiously optimistic harmony of purpose for participants. An excellent moment may open the possibility of excellence… it may, however, float into the ether.

‘Excellence’, on the other hand, describes sustained episodes of participants’ mediation experiences meeting their individual and collective procedural and personal interests. Sustained episodes include many simultaneous and consecutive excellent periods which together motivate participants’ coordinated, continuous striving and re-striving for the accomplishment of the goals of the mediation.

Consideration of distinct concepts in which I refer to ‘excellence’ separately from ‘the importance of excellence’

I have been asked to comment upon the importance of excellence in mediation. I shall first identify ten criteria of excellence in participants’ experiences of the practice of mediation then move on to the importance of excellence in mediation. Each is an interdependent part of the whole of excellence, which itself is both contemporaneous and retrospective.

Identification of excellence in practice in which I list criteria for intended to maximise the likelihood of each participant individually, and possibly collectively, being able to assess the extent to which a mediation is excellent.

Participants are likely to report excellence in mediation practice when each participant consistently individually and collectively experiences the mediation as

  • being conducted professionally
  • being overtly evenhanded
  • positively motivating
  • demonstrably epitomising the principles of mediation
  • transparently contributing procedural safety, facilitating substantive information gathering and clarification and conveying personal compassion
  • tentatively providing the opportunity for respectful restoring, possible maintaining, possible development of relationships among all or providing the opportunity for respectful concluding of relationships
  • clearly providing clarity regarding the purposes of each stage of mediation and, as requested, each intervention within the mediation
  • progressively accomplishing the distinct purposes of each stage of the mediation
  • overtly describing and displaying the criteria of excellence
  • welcoming formative and evaluative feedback and, when appropriate, refining practice accordingly
  • having an 11th criterion: the X factor

Exposition on the importance of excellence in which the  interconnectedness of acknowledgement and recognition of uniqueness is summarized

The importance of excellence in mediation practice is the contribution that the experience of excellence can make toward participants’ conceptualization of peaceful coexistence

The importance of peaceful coexistence on a local scale is the contribution can make toward the principled practice of peaceful coexistence on a global scale.

The importance of the principled[1] practice of peaceful coexistence on a global scale is the contribution it can make toward the valuing of the uniqueness of individuals, groups and cultures.

The importance of valuing the uniqueness of individuals, groups and cultures is the contribution it can make toward the experience of excellence in conflict resolution.

Application of excellence and its importance in mediation practice in which suggestions are offered

Mediation participants are more likely to experience excellence if they can recognise it. Essential components of the role of the mediator are

  • to provide information and to educate potential participants regarding exemplary practice and possible indicators of excellence in experience prior to mediation
  • to prime participants throughout the mediation to enhance their awareness and expectations of excellence

[1] There are various taxonomies of principles of dispute resolution. Rather than identify a particular taxonomy, I leave it to the reader to choose.

Mediation & apologies

Heard in mediation

In over 20,000 hours of mediation over 20 years, I have found each mediation to be memorably distinct. Frequently, however, each participant tells me that

‘If only the other participant/s would change the way they behave, there would be no need for this mediation.’

When I respond ‘I hear this quite often.’ there can be a heavily laden pause.

Almost as often, participants tell me

‘If only the other participant/s would apologise I would be able to look to the future with goodwill.’

I make a similar response; there is a similar pause.

Blame and vulnerability

What I hear above are two expressions of the same sentiment: the first includes blame; the second vulnerability; thoughts of blame and feelings of vulnerability. Generally, people blame others who they think of as having more influence on them than they themselves do. Generally, people feel vulnerable when they believe they are at risk of having/continuing to have low efficacy.

The person who blames another often thinks they have been provoked and coerced by the person they blame. The person who feels vulnerable often feels at risk of being provoked and coerced. Blame is self-protective: ‘I didn’t cause my misery; someone else did’. Vulnerability can also be seen to be self-protective: ‘I’m so hurt I shall keep myself safe from any risks at all.’

Does one person typically blame and the other typically feel vulnerable? In my experience, each blames the other and each feels vulnerable. It is the behaviour of each to assuage thoughts and feelings that differs.

Apologies

This post considers some dynamics of apologising in mediation. I will be drawing on a conglomerate of a mediated apologies across a broad range of settings[1].

Scholars write thoroughly and length on apology[2]. I shall write briefly. I regard an apology is an offer of vulnerability in return for having caused or contributed to vulnerability. One person, having perceived their actions, and/or knowing that their actions have been perceived, to have contributed to exposing another’s vulnerability, creates their own vulnerability by  acknowledging and expressing remorse to the other. To become vulnerable is to have a diminished sense of self; reduced sense of efficacy.

Each participant is feeling vulnerable: one due to experiencing harm and humiliation; the other due to the shame of causing harm and humiliation.

Mimi & Eunice is written and drawn by Nina Paley

Mimi & Eunice is written and drawn by Nina Paley

 

 

 

 

 

Mediation overview

How can mediation provide the setting for person 1 and person 2 to address the wrong doing and move on with dignity? Whatever model of apology one uses, the action taken will include communication of affect, affiliation and affirmation.

Choosing the timing, the place and the circumstances of being vulnerable is to exercise influence.

People consider mediation when the personal costs and consequences of conflict they are experiencing are greater than the personal costs and consequences of attending mediation. During the initial separate session which I hold with all potential mediation participants, I listen for, among many things, the descriptions by each potential participant of how current and past disputes have been negotiated. And this is where another of those distinguishing commonalities arises: invariably participants have been involved in a power struggle entangled with a clash of rights. Over time, apparent progress has been achieved by capitulation due to exhaustion, hope, entreaty and threats. With sufficient capitulation compromise has been reached.

Compromises collapse

For a number of reasons, compromises are often brittle. People who reach a compromise are often more aware of what it is of their preferred outcome that they have not achieved than of what it is they have achieved. To add insult to injury, the same people are often more aware of what it is that the other person did achieve of their preferred outcome, than of what it is that they did not achieve. In addition, compromises often rely on an unstable balancing act due to being conditional on factors beyond participants’ influence. Compromises are therefore prone to collapse so disputes, re-energised by disappointment and often by fear, emerge as vitriolic as ever.

Power struggles; rights clash

Wielding authority invites another to wield authority and so a power-struggle ensues. Claiming entitlement invites a reciprocal claim of entitlement and so a clash of rights occurs.

When the currencies of conflict are power and rights, an apology risks being lost in the ether: a waste of current vulnerability and a risk to future vulnerability.

Interests meld

Mediators work in the currency of interests. A mediator asks open questions to assist participants to identify their interests. What are the interests of the person giving and the person receiving the apology?

The interests of a person making an apology, that is, their motivation, often include to restore equilibrium, to restore the reliability of expectations of fairness, conclusion, reputation, responsibility, to show contrition and to know that they have been heard sufficiently well to have connected with the other.

The motivations of the person receiving an apology can overlap with those of a person making an apology.  To return to equanimity from feeling vulnerable can include the need for the harm to be acknowledged; for the person making the apology to openly recognise their part in causing the harm and to undertake to behave differently in the future. The authenticity of both the speaker/writer and listener are fundamental to the process. That is from the perspective of the person receiving the apology puts their ‘self’ on the line in the interests of the ‘other’ restoring some of their efficacy. The person making the apology puts their ‘self’ on the line in the interests of an acceptance from the ‘other’ restoring their integrity.

Mediation mindset & apology

Mediation is a structured process of even-handed facilitation of identification of participants’ joint interests.

The process of mediation can be highly suited to the process of making and receiving an apology because each participant is ‘on the same page’; each becomes aware of their own and the other’s interests.

Mediation is an evenhanded facilitation of resolution of a dispute through joint interests so that participants can move on in their own interests. Mediation is facilitated listening that creates the alchemy that transforms the isolation of positions into the connection of interests. Intrinsically mediation suited to apology because mediation is interests based and apology is concerned with meeting the needs of the person who receives and the person who gives the apology/apologies.

My next post will consider managing apologies in Mediator’s Opening Comments.

[1] hdr.net.au

[2] Allen and Carroll for example

Constructive confidentiality is multifaceted

Please note that this series is being rewritten during 2017. It will be named and numbered Constructive Confidentiality I – IV etc.

In my initial post on confidentiality I concluded that confidentiality in mediation is many things to many people  and that confidentiality implemented in a way that makes a constructive contribution to mediation is likely to be multifaceted, multidimensional and dynamic. That is, a  tailored approach to participant confidentiality shifts confidentiality from being an imposition on mediation to a contributor to mediation.

‘Cone-of-silence’, uniform confidentiality provisions in mediation assume that each person ‘is an island, sufficient unto himself’ and/or that each person has the same needs and obligations regarding the process and outcome of the  mediation. Further it assumes that a durable robust agreement can be reached independently of constituents’ input.

I question both assumptions!

I assume that joint creativity which integrates the interests of each of the parties together with consideration of constituents’ interests results in satisfactory, practical agreements.

‘Cone-of-silence’ confidentiality provisions in mediation also assume that mediation takes place in the shadow of the legal system and that therefore pre-emptive protections are needed.

I question that assumption!

I assume that mediation, like all other interactions among humans, takes place in the shade of the legal system and that it is as appropriate to reference the legal system when mediating as it is to reference the legal system for any other human interactions.

I: THE PARTICIPANTS

This post follows the previous one, in terms of musings if not in terms of chronology! You may like to reacquaint yourself with Party Red, Party Pink and Party Brown. It has been so long since my first post in this series that I have had to reintroduce myself to them!

Party Pink will have unique concerns regarding confidentiality.

Party Pink will have unique concerns regarding confidentiality.

As indicated by a glance at Party Red, Party Pink and Party Brown and with a liberal dose of your imagination,  mediation is literally multifaceted:  participants are individuals… and their individuality is often heightened by their conflict. It follows then that it is likely that each will have a perception of how confidentiality can be constructive  that differs to a greater or lesser extent from others’ perceptions.

By way of recap, Party Pink is attending mediation accompanied by her lawyer and her accountant. Party Red is attending mediation accompanied by his friend, and is retaining a lawyer and an accountant. Party Brown is attending mediation accompanied by her lawyer and by her accountant. Her potential business partner is unable to attend and will be kept informed by Party Brown  and her advisers.

It is important to Party Pink that her family endorses any agreement she reaches. They have supported her and provided seed funding for the venture at the centre of the dispute. Party Red is keen to convey his business acumen during the mediation because he sees opportunities arising from an agreement and has expressed confidence to a number of colleagues regarding a favourable outcome. Party Brown has a threshold amount in mind in order to maintain her side of the bargain in a highly confidential potential franchise.

II: CONFIDENTIALITY

Party Red will have unique concerns regarding confidentiality.

Party Red will have unique concerns regarding confidentiality.

Confidentiality relates, although is not limited to, the content of mediation. It is axiomatic of mediation that participants are responsible for the content of a mediation,(the mediator being responsible for the process). It follows that participants would be responsible for the confidentiality guidelines.

All aspects of mediation, including confidentiality, are constructive when they meet the collective and individual needs of the participants and enhance the process. Just as each aspect of mediation can be interpreted in terms of participants’ interests while remaining true to mediation, the same can be said for confidentiality, though it rarely is.

Party Brown will have unique concerns regarding confidentiality.

Party Brown will have unique concerns regarding confidentiality.

I find that sometimes the notion of absolute confidentiality aligns with participants’ interests and is therefore constructive; sometimes the notion of confidentiality exists independently of participants interests’ and might therefore be neutral; sometimes the notion of confidentiality is contrary to participants’ interests.

III: CONSTRUCTIVE CONFIDENITIALITY

Constructive Confidentiality is multifaceted

  • standard mediator obligations for the overall mediation
  • standard mediator obligations for private sessions
  • tailored mediator obligations to the referrer
  • standard participant commitments for professional support people
  • unique participant commitments for personal support people and constitutents

IV: MEDIATOR’S OPENING STATEMENT: MEDIATOR CONFIDENTIALITY

Standard mediator obligations for the overall mediation

Near to the commencement of the mediation there are some general aspects regarding mediator confidentiality obligations that I recap, having explained them fully during initial, private separate sessions:

Mediation is confidential from my point of view. There are five aspects to mediator confidentiality.

I will maintain confidentiality regarding all identifying aspects of you mediation, within the limits of the law.  What this means is that if I am concerned about the well-being of anyone attending the mediation or anyone potentially affected by the mediation, I will report my concerns. If in the rare event that this situation did arise, I may or may not decide to inform you of action I am taking.

I participate in professional clinical supervision, during which I may refer to this mediation. I will however maintain confidentiality regarding identifying aspects of the mediation.

Another aspect to my maintaining confidentiality is that if you and I find ourselves at the same place whether social or business, I will not greet you nor expect you to greet me. This acknowledges that you may be with people to whom you would rather not explain that you have participated in mediation. If you do decide to greet me I shall return the greeting.

Standard mediator obligations for private sessions

In my Mediator’s Opening Statement and prior to each private session, I explain:

I have explained the wisdom of calling a break ‘just before you need one’. Anyone in the room can call a break. I will round off whatever is happening in the mediation they have a private session with each of you. Before you leave the joint room for your private rooms I will remind you that everything said in a private session remains confidential from my point of view and that it need not be confidential from your point of view. I will repeat this in the private session both at the beginning and the end. Upon returning to the joint mediation room I will remind you that of confidentiality of the sessions from my perspective and ask if there is anything you would like to say before recommencing.

Tailored mediator obligations to the referrer

Toward the end of my comments on confidentiality, I explain:

I have been hired by your organisation to mediate. I have explained to HR that I can provide a report only with the authority of each of you. That is something which I will refer to progressively through your mediation. At the conclusion of the mediation I will ask you for your thoughts on whether or not a report can be sent to HR and if so precisely what the report can include.

(NB:statements also need to be made regarding admissibility.)

V: MEDIATOR’S OPENING STATEMENT: PARTICIPANTS’ CONFIDENTIALITY

It is generally understood that mediation proceedings are confidential. And if in doubt, that is the approach to take. However there is scope for confidentiality provisions to be tailored for this mediation.

Standard  participant commitments for professional support people

Confidentiality provisions include your consultation with any professional person in relation to this mediation. So, for example, you can talk to your GP, your counsellor, your lawyer and accountant, it is appropriate that you remind them that the content of the mediation remains confidential.

Unique participant commitments for personal support people and constituents

However, the best decisions are those made when you are well informed and well supported. For that reason I will facilitate a confidentiality agreement specifically for this mediation. First I will explain the idea of the ‘circle of confidentiality’.

It seems to me that everyone benefits by way of a more robust agreement whenyou each have access to the resources that you need in order to reach agreements which will work for you and for others who will be affected by your decisions. For that reason, toward the end of today’s session, I will be asking you who you would like to be able to talk the issues over with. In the interests of transparency I will ask you each to name one or two people, who you are likely to talk. those people collectively form ‘the circle of confidentiality’. At the end of today’s session, I will facilitate a discussion on guidelines which will respect the privacy of each of you while enabling you to gather opinions that you value.

This exposition is appropriately kept short and succinct, following as it does on the mediator’s commitment to confidentiality and raising as it can do, anxiety among parties regarding what they might be expected to say during the mediation.

VI: MEDIATOR’S CLOSING STATEMENTS: CONSTRUCTIVE CONFIDENTIALITY

Fast forward to the last half hour of the mediation session.

Rather than having a hypothetical discussion at the beginning of mediation, a more detailed discussion of Constructive Confidentiality is suited to the end of the mediation session when participants have some real experience of mediation . I facilitate a discussion regarding three aspects of confidentiality:

  • the content
  • the process
  • each person’s experience of the mediation session

I refer to the unfinished and changeable nature of mediation and the information gathering and considering that will occur between this and the subsequent session(s). I facilitate a discussion that considers whose information is whose and whose experiences are whose. Typically, this short discussion also provides me and all participants with feedback on the progress of the session.

As I start to close this session I am wondering what you are each thinking would contribute to maintaining the momentum in your next session. Specifically, it would be helpful to hear

  • what you plan to be considering
  • what information you plan to be obtaining
  • what information you would like others to consider obtaining

Having heard from each of the participants, I suggest that in the interests of thoroughness, each participant considers each of the aspects that has been raised and obtains each of the types of information that has been referred to:

To obtain pertinent information and advise you may need to provide information from the mediation. As mentioned earlier, unless there is an agreement otherwise, all aspects of the mediation are confidential.

What might work for confidentiality guidelines that would respect the privacy of each and provide the scope to obtain the most appropriate information and advice?

A brief discussion follows. The content, the process and participants’ experiences are commented on by each. I summarise tentatively and an agreement is formed. Each constructive confidentiality agreement is different.

Party Brown's interests include financial interests.

Party Brown’s interests include financial interests.

In this situation, Party Pink, Party Brown and Party Red agree to maintain the confidentiality of the mediation as follows: all encourage each other to discuss the mediation with a range of professional advisors, focusing on the content, the process and on their own experiences and to explain to the professional advisers that the discussion is in confidence. All agree that the discussions with nominated support people will be limited to the content of the mediation; the process of the mediation and the personal experience of the speaker. That is, it is agreed that any quotes from mediation, will be only those of the speaker

Party Pink's interests include family endorsement.

Party Pink’s interests include family endorsement.

That is, all agree that Party Pink may discuss the mediation with her neighbour who has some experience with similar issues; that Party Brown may discuss the mediation with her potential new business partner and that Party Red will advise the mediator, who will advise the other parties, if there is anyone he would like included in the circle of Constructive Confidentiality.

This is the second very significant shift of the mediation: namely a shift from self-interest to collective interests. The first very significant shift of the mediation is from positions to interests, self-interests.

Party Red's interests include reputation as the astute businessperson.

Party Red’s interests include reputation as the astute businessperson.

The agreement of Parties Red, Brown and Pink is one among many configurations of constructive confidentiality. Other groups of participants agree to confidentiality that is absolute or conditional or partial or variable or contingent or limited.

I practice mediation expecting that each participant is likely to have unique concerns regarding confidentiality (multifaceted); that those concerns will emanate from a variety of sources (multidimensional) and that the relative significance of those concerns and sources is likely to evolve throughout the mediation (dynamic).

VII: NEXT IN THE OCCASIONAL SERIES

My next Constructive Confidentiality blog post will muse upon my thoughts and describe my practice of Constructive Confidentiality in terms of the multidimensional aspects of confidentiality.

Family Dispute Resolution: engaging the other participant

Recently I received an enquiry from a colleague:

“I was wondering what the guidelines are for the timeline for participant B when making an appointment for FDR? I use the 21 day timeline for a response, to engage in the process, however if they engage and don’t want to make the appointment for several months, where do I stand?”

 

red-man-people-icon-150x150

Participant A

My reply:

“I assess each situation on a case-by-case basis.I am guided by the principles of mediation and the obligations of FDR Practitioners, including and not limited to mediator even-handedness; mediator responsibility for the process; mediator confidentiality; mediator consideration of the individual circumstances;  participants’ self-determination; procedural inclusivethisness; procedural consideration of relationships.

Participant B

Participant B

“The principle from which all others flow, in my opinion, is participant self-determination. This is my opinion, even considering the obligation of potential participants to ‘make a genuine effort’ to reach agreement regarding the children’s arrangements in mediation before they can file in the Court. The obligation of potential participants to ‘make a genuine effort’ is triggered by a coinciding of their timing.

“It is a fundamental characteristic of mediation that it can go ahead only when the participants are at the table, whether in literally or virtually. If they are not, the choice of each is to

  • wait
  • go their own way
  • wait while going their own way

“Each of their choices involves considering their ATNAs (Alternatives To Negotiated Agreements). ATNAs are each of the processes that is available to potential mediation participant, that is not dependent on the voluntary involvement of the other participant. A self-determining participant has the scope to consider each of their ATNAs and to decide on their BATNA.

“Waiting is an ATNA that needs little explanation.

“Going their own way involves considering their other ATNAs.

“As a non-lawyer FDRP, you can provide information and not advice to assist participant A to develop a list of alternative processes and to consider each. (As an aside, it is my firm opinion that this guideline should apply to all FDRPs, independently of their primary qualifications.) How can you distinguish information from advice? Information is what you would say to anyone in a similar situation; advice is individualised.

“The  ATNAs of participant A include waiting until the other is ready; asking for a certificate and not filing in court; asking for a certificate and filing in court; commencing legal negotiation etc. Participant A’s ATNAs do not include private negotiations with participant B because this alternative is dependent on the voluntary involvement of the other participant, disqualifying it from being an alternative to a negotiated agreement.

“In my opinion, it is the role of the mediator to take participant B’s decision to postpone mediation, at face value. That is, you do not ask why they would prefer a delay because that would put you in the position of forming all being assumed to have formed an opinion and possibly being seen to compromise or compromising your evenhandedness. You might decide to ask participant B

  • “What is important to you about how you come to arrangements with participant A?”
  • “What is important to you about the timing of coming to arrangements?”
  • “What might you do if participant A decides against mediation?”

and in response to the answers to that question

  • “What are the strengths of each of those alternatives, for you and for the children?”

The same questions will assist participant A to clarify their thoughts.

The reason for asking these questions rather than ‘Where do I stand?’ is that the questions above address  the principle of interests focused decision-making and the principal of self-determination. The  question ‘Where do I stand?’ is premised on the principles of entitlement and mediator-determination. (It is true that once the mediation is underway, the mediator will make determinations about the process. At this stage, however, the mediation is not underway.)

“If participant A decides to wait for a fixed period and/or indefinitely, you might decide to wait for a fixed period and/or indefinitely. If participant A moves on to another of their ATNAs, you might decide to put their file on hold. After approximately 6 months, in my practice, either mediation is going ahead or I close the file.

“In summary and in very general terms, as I see it, a mediator follows the lead of the participants in establishing the mediation; leads the participants in the process of the mediation and follows the lead of the participants with regard to the content of the mediation.

mediation roles mediator cascade 140123

’twas the night before Christmas…

Image credit: Torsten Blackwood

Image credit: Torsten Blackwood

It was the night before Christmas and all through the house

not a creature was stirring, not even a mouse

The stockings were hung by the chimney with care

in the hope that St Nicholas soon would be there

In my office I made one final, last check

before I relinquished control, with ‘O heck’

Then out there in space there arose such a clatter

as molecules moved to make room for more matter

My IP address in one hand, I held it quite steady

my URL in the other, it was quite ready

The dark of the night giving way to the first light

providing the tone for this sight of all sights

And what to my wondering eyes did appear

but my homepage on my computer just near!

The excitement of seeing it live took hold

and I became momentarily, temporarily bold

Then came the questions ‘Is my message quite clear?’

‘Is this when I think ‘What’ve I been doing all year?’

‘Is my website really as unique as I’d said?’

‘Does it really contribute to people being well read?’

‘Will people who come to sort out their concerns

realise the importance of taking their turns?’

‘What more could I do; what more could I edit

so that this website would be of more credit?’

Then I realised time, polls and stats will tell

of the text and the images on which I did dwell

So I posted a post saying

‘hey you…’

‘have a look at HDR dot net dot

A U’