Mediating with Families by Mieke Brandon and Linda Fisher 2ed: a Review

This review was first published in the ADR Bulletin in 2009

Family Dispute Resolution in Australia has evolved and been transformed by the Family Law Act 1975 and its subsequent amendments. Recently, over 2000 registered FDR (Family Dispute Resolution) practitioners have decided whether to upgrade their qualifications to post graduate equivalent or to remove FDR from their practice portfolio. To date, approximately 1200 have completed the registration requirements. To do so practitioners have necessarily been reflecting on all aspects of their practice. The publication of the second edition of ‘Mediating with Families’, written by Linda Fisher and Mieke Brandon, when for the first time in Australia FDRPs have been obliged to explicitly examine their knowledge and practice, is timely indeed. MwF is a book which provides renewed breadth and depth of insight and clinical practice for the FDR profession. Other professionals whose clients are affected by separation and family conflict will also find much to stimulate, challenge and inform them in ‘MwF’.

In the preface the authors liken this second edition to a home renovation of their first. The contents pages indicate just one aspect of what is in store. Readers have more to look forward to. Subtle accretion of mediator meta functions develop the ambience and are implicit throughout. Various reader-author conversations suggest themselves. Resources abound.

Talking the talk

The contents pages indicate an open plan style book structured to culminate in two constructs: the culture and the language of families. Following three initial scene-setting chapters, which analyze family dynamics, describe approaches to mediation, then emphasize the influence of the mediator, there are three chapters describing and exploring FDR.

The next two chapters extend the principles and philosophy of FDR beyond the concerns of separating couples to issues which can arise among extended family members. Having developed, applied and honed the knowledge, skills and aptitudes relevant to FDR, the authors refine and adapt them to these family circumstances.  Practitioners who have and/or would like to broaden the scope of their practice beyond FDR, will find Chapters 6 to 8 of MwF describe family situations in which family mediation theory and practice is effectively applied: inter family issues, adoption, parent-adolescent disputes. Those who question whether such transferability is possible or appropriate may find it salutary to recall that ‘the mediator manages the process; the parties manage the content’.

The first two of the final four chapters, Chapters 9 and 10, make overt the implicit messages of the first eight: namely the essential elements of and variations on, the process of mediation and the responsibilities of family mediators. As I read it, the breadth and depth of Chapters 1 – 8 assumes that the reader is beyond the apprenticeship stage of practice. I recommend newly qualified practitioners consider starting with Chapters 9 and 10 entitled ‘Practice Considerations’. Here they will learn sufficient of the scaffolding of mediation practice by way of endorsements (for example of co-mediation p. 232), explanations (for example of power p. 217) and exhortations (for example referring parties p.226) to inspire some of the momentum and confidence necessary to commence professional practice.

The final two chapters provide an analysis of the significance of language and culture. The crux of each is presented as being rigorous cultivation and demonstration of respect for mediation participants’ uniqueness. Reaching these chapters, which simultaneously provide the foundation and the apex of this second edition renovation, can be likened to the satisfaction of coming home. The preceding ten chapters of exposition and exploration of substance and meta themes through conversations with the authors reaches a natural resolution.

Walking the walk

“I hear and I forget; I see and I remember; I do and I understand.” is reputedly a Chinese proverb, challenging all educators to deliver beyond ‘talking the talk’.   Throughout ‘M w F’ Fisher and Brandon offer the reader a variety of opportunities to consolidate their understanding of mediating with families through doing. Exercises and diagrams which transform the words of the text from information through understanding to reflective practice cater well for the reader-educator, whether educating oneself and/or others. For example, genograms pp. 57 – 59 and pp. 316 – 317 convey an appreciation of the complexity of families in the way that pictures paint a thousand words.

Case studies and examples complement the text, providing an opportunity for the reader to experiment with applying new insights. Each questions to consider segment, invites the reader to make the chapter their own by integrating the substance and the process into their own mediation schema.

Completing the text are twenty appendices, nineteen of which provide sufficient materials to set up an FDR practice or to produce much of the portfolio of ‘evidence’ required to comply with FDR registration criteria. The twentieth appendix needs to be read to be appreciated.

Talking and walking

As I read MwF, the conglomeration of the substantive content and the interactive opportunities provided by the resources evolved into heightened awareness of three particular mediator meta functions which having engaged me maintained my curiosity throughout. Other readers will no doubt find various different synergies to pursue.

Mediators facilitate participants’ well-being

The first meta function that surfaced together with its corollary is that the mediator can significantly influence the health of family relationships, and that family relationships are a sound predictor of personal well-being. Cummins[1] identified eight variables in the personal well-being index. ‘Relationships’ is one of them. Like the authors of ‘Mediating with Families’, Cummins conceptualises families in systems theory, commenting all homeostatic systems have a limited capacity to absorb challenge and when aversive experiences are both strong and sustained, homeostasis fails. If this occurs, people lose their normal positive view of themselves and become depressed. Qu and Weston[2] of AIFS concur:

Our sense of wellbeing is closely linked with how happy we are with our relationships with other people, especially those that are most important to us. Of these, relationships within families loom large, affecting all members, the family as a whole, and the community. If relationships in the family are supportive and enjoyable, then the challenges we face both within and outside the family can seem less daunting than otherwise. The souring of family relationships, on the other hand, can be a devastating experience in which our “refuge” can become a “minefield”.

Fisher and Brandon synthesize research regarding a variety of aspects of well-being in Chapter 4 which in analyzing the shift from a loss of a positive view of self through to well being “focuses on the development and breakdown of relationships, with particular emphasis on issues affecting couples who separate”. It outlines “how mediators can assist couples to find ways to manage their emotional journey and resolve their separation conflict through mediation.”

Mediators demonstrate respect for ‘help seekers’

The second strand to pique and sustain my interest was the authors’ respect for those who seek the help of the profession.  Careful choices of language including subheadings, for example, in Chapter 7, Challenges in the family (p. 144) set and maintain the respectful tone, which extends to conveying the importance of parties’ dignity in the frequent case studies.

In their study of ‘help seeking behaviour’ Lixia Qu and Ruth Weston, referring to FDR practitioners as “counsellors or similar professionals” found that

“counsellors or similar professionals” represented the most “popular” source for advice or information for parents who were separating, followed by lawyers/legal services, then general health professionals.

If ‘help seekers’ include mediators among those to whom they go first for information, it is all the more important that respect for the dignity of clientele and excellence of practice are values commonly held and explicitly practiced. In both what they say and how they say it, Fisher and Brandon continue to make a significant contribution to identifying these as fundamental to the role of the mediator and in enhancing practitioners’ skills. Paragraphs built around sentences such as on p. 170 “Family members usually wish to be respected, valued and wanted, and members of blended families are no different.” are prevalent.

Mediators display compassion for vulnerable participants

The third thread is developed early and remains prominent throughout. It is the importance of mediators displaying skilled compassion for the vulnerability of adult participants who, with their children, may be at their most vulnerable.

As Dorothy Scott[3] points out:

One of the major challenges in protecting children from abuse and neglect is to build the capacity of adult-focussed services… so that they can see, hear and respond to the needs of vulnerable children in the families they serve.… with the emphasis being on the transfer of principles rather than programs.

Mediation as described by Fisher and Brandon, builds adult capacity to respond to children’s needs. Techniques for compassionate interventions include

Sensitivity, Open-mindedness and non-judgmental attitude, Inclusiveness p. 100

and in sections such as understanding the issues p. 175. case studies exemplify these concepts.

As I read it, M w F provides the opportunity, through the breadth of its structure and the depth of its substance, for family mediators to reflect on the potential of the infinite combinations of their knowledge, skills and values to interact with the individuality of parties in ways which maximize the well being of vulnerable participants. The authors convey, and in return expect, compassion of family mediators and in doing so raise the bar well beyond the mechanics of mediation practice in such a way that they develop the professional together with the pragmatic aspects of family mediation.

These are only three among many of the mediator meta functions readers will discover in Mw F that will maintain their inquisitiveness and hold their attention as they reflect on their practice.

Conversations

As well as the breadth of its structure and themes, the authors provide considerable depth of clinical substance. M with F invites the reader to form a relationship with the authors perhaps as mentees, perhaps as colleagues.

Mentor-mentee conversation

For those who would like to get to know each of the authors as mentors, I recommend ‘listening’ to the clear messages, particularly in chapters 1 – 3 and 9 and 11. Linda’s and Mieke’s experienced and thoughtful voices can be heard clearly as they identify and explore aspects of the family, family mediation and the self-as-the-mediator.

As I read I ‘listened’ to the tone of these chapters. Well before I reached page 274 on which there is a list adjectives that describe the tone of ‘mediatorspeak’, my list describing the tone of MwF included ‘compassionate’, ‘experienced’, ‘accepting’, ‘caring’, ‘interested’, ‘tentative’, ‘empathetic’, ‘sensitive’, ‘convincing’. These are among the qualities of the tone that contribute to the depth of this book.

Collegial conversation

These two veteran mediators write with confidence in a way that invites a conversation, ‘biblio-supervision’, with reader-practitioners. As would be expected, readers’ perceptions, understandings and hypotheses will differ from those of the authors’ providing the reader the opportunity to challenge, explore and clarify their perceptions and points of view, prompting reflection and growth. For example, I paused for thought when reading the section on intake and suitability for mediation (p. 198) “Two important elements of intake are to assess the safety of the parties should they come to mediation, and whether they have the necessary negotiation skills and motivation.” It occurred to me that I see it just a little differently and might have written “Two important elements of intake are to assess how to maximize the safety of the parties if they come to mediation, and how to design the process to maximize the likelihood of parties being able to be assertive with assistance.” These may seem small and insignificant changes to some. What is significant is that the degree of detail in MwF offers myriads of opportunities to become aware of and to develop insight into one’s family mediation practice and its underpinning rationale.

MwF in context

Some texts imply that theirs is the last word on the topic. Fisher and Brandon have written a text that understates its place in the world of mediating with families and is likely to be all the more accessible and therefore influential for it. As well as the scope and detail of the book, the Additional Resources at the end of each chapter convey to the reader a reminder that there is much more to consider and much more that has been considered. To have identified and included the Classics in these sections acknowledges and affirms the foundations on MwF and many contemporary texts are built. Footnotes provide another source for those wanting to excavate the archives.

Ideas for the 3rd edition

It is clear that this book is an asset to those who do or would mediate with families. Now follows the reviewer’s obligatory ‘white ant inspection’.

In the 3rd edition I will look forward to an even more consistent selection of language for mediators to emulate. Having set the language bar high, and while it would be a mistake to think of words only in their literal sense, the choice of language sometimes disappoints. For example, I prefer to think of family structures ‘changing’ rather than ‘breaking down’ as on p. 5 and p. 9. On  p. 20 I found it jarring to read ‘the mediator reality tested… for them’. I think of participants accomplishing the reality testing, assisted by the mediator.   On p. 27 I found ‘not completely neutral’ to be a red herring which could set a reader new to mediation back a decade. Continuing, for a moment, with other expressions which disturbed my flow, p. 13 could be read as implying that ‘good faith’ and ‘genuine effort’ are interchangeable. On page 156, I’d like to have read that a mediator’s role is to be evenhanded rather than that ‘the mediator is not on their side nor that of their child’. In a book in which generally the choice of language is inclusive, interest based, peer oriented, I found periodic misdemeanors all the more glaring.

Any cracks in the plaster regarding use of language are more than redeemed by the transformative title ‘Mediating with Families’. ‘with’ is the perfect preposition for mediation, accentuating as it does,  the philosophy of parties’ self determination and mediator’s dispassionate involvement. The same book, entitled inappropriately ‘Mediating for Families’, or exchanging the audacious ‘for’ for the insipid: ‘in’, ‘about’, ‘between’ or even ‘regarding’ could have been justifiably judged by its cover.

My other concern is that in this ‘renovation’ as the authors describe it [p. xvii] would have been all the stronger for a firm foundation and a house plan showing the relationship among the ‘rooms’. An opportunity exists here. Although sections often commence with ‘as mentioned previously’ each of the sections of each of the chapters is self contained. Just as mediation is not alone in being described as ‘a practice in search of a theory’, MwF is not alone among the mediation literature as ‘a book in search of a blueprint’.  Sound and explicit theory engenders and liberates practitioner creativity in a way that is experienced as congruent, providing security for participants. Lack of theory creates dependence on the ideas of others and eclecticism both of which can fragment participants’ experience. Mediation theory is not easy to come by. I look forward to a third edition of MwF which retains the excellence of the second edition and incorporates an explicit rationale, a readily available reference point, providing simultaneous stability and freedom to enable me to wonder, to develop hunches, to wrestle with the relationship among concepts, to hypothesise, to test hypotheses; to extend what I read beyond the examples presented, to enrich, challenge and make me confront my subliminal theorizing, otherwise known as assumption-making.

In the meanwhile, with MwF at their side, FDR practitioners and family mediators can continue to incorporate the wisdom, experience and generosity of Meike Brandon and Linda Fisher into their practice and learning. It is the families of Australasia who will benefit from their dedication, leadership and insights. If I were writing the blurb for Thomson Reuters I’d have submitted “M w F, written by two highly regarded, contemporary, versatile practitioners will be welcomed by the competent and diverse group of professional family mediators who, with this book in their library, can continue to aspire to delivering best practice in ways which support an progressively more informed 21st century mediation clientele.”

References

[1] 13 March 2008
Subjective wellbeing and families: Issues of measurement and data interpretation
Professor Robert A. Cummins, Professor of Psychology, Editor-in-Chief, Journal of Happiness Studies, Deakin University

http://www.aifs.gov.au/institute/seminars/2008/cummins.pdf  accessed 11 April 2009

[2] Snapshots of family relationships

Australian Institute of Family Studies, May 2008.http://www.aifs.gov.au/institute/pubs/snapshots/ssreport08/ssreport08.html

[3]Dorothy Scott (2008) Think Child, Think Family, Think Community: Building the capacity of adult services to respond to the needs of vulnerable children; AIFS Seminar Series    DS is Director, Australian Centre for Child Protectionhttp://www.aifs.gov.au/institute/seminars/2008/scott.pdf  Accessed April 11, 2009

 

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