Mediation: participants are the raison d’être

There are very few aspects about my mediation practice that can be generalised. The a few things are: almost every participant I meet has been having a really difficult time in the weeks, months and years leading up to the mediation; almost every participant I meet has been through a period of blaming themselves and others and almost every participant I meet, because they are ready to consider doing things differently.

As I see it, in CDR (Complementary Dispute Resolution) participants’ roles can almost always be generalised as three interdependent roles: to express themselves assertively, to demonstrably cooperate with others and to actively contribute to each stage of the mediation proceeding smoothly. In each role, participants like all others involved, complement the roles of the mediator(s), the personal supporters and the legal advisers.

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Participants as assertive contributors of content

  • listen generously to be well informed so that they can refine their own points of view
  • think productively to clarify their concerns so they know when the mediation is working satisfactorily
  • speak moderately to express themselves so that they can keep their options open
  • decide wisely to consider advice from personal and professional trusted advisors
  • conclude satisfactorily to focus on the future so that they can move on with their lives

Participants as cooperative contributors to progress 

  • listen generously to hear how others’ concerns are connected to theirs so that joint, creative possibilities can be considered
  • think productively to include the concerns of all  so that proactive discussions can be held
  • speak moderately to respond to what they hear so that each comment is easily heard by other participants
  • decide wisely to persevere through short difficult phases so that all involved benefit from the progress being made
  • conclude satisfactorily to show good faith so that resolution brings benefits for all involved

Participants as partners in the process

  • listen generously to contribute to the mediation accomplishing the purposes of each stage of the mediation
  • think productively to demonstrate curiosity so that they contribute to the inclusive nature of mediation
  • speak moderately to keep the focus on the future so that they contribute to practical outcomes being reached
  • decide wisely to call breaks for thinking time so that the issues receive suitable consideration
  • conclude satisfactorily to acknowledge recognition of having accomplished sufficient of what is important to all

mediation roles participant circles 140123

‘How do I get started in mediation?’

On average, about once a fortnight, I receive a request for an appointment from someone who has been captivated by the potential of mediation and would like to become a mediator.

Often the question is

‘What did you do to become a mediator?’

My responses to that question may be of historical interest, belonging as they do in the last century.

A contemporary question that may be more pertinent is

‘What do you recommend I consider doing to become a mediator?’

My response is to suggest an iterative process of reading, qualifying, participating and promoting which is developed below.

I    Reading

  • Books
  • Online resources
  • University reading lists
  • Membership Organisations
  • Industry bodies

II    Qualifying

  • Mediator Standards Board
  • Resolution Institute Training
  • FDR P (Family Dispute Resolution Practitioner) Training
  • CPD (Continuing Professional Development)

III  Participating 

  • Resolution Institute
  • SCRAM
  • Mentor

IV  Promoting

V   Preparing

Reading


There are numerous excellent books on the theory and practice of mediation. I am limiting myself to recommending two hard copy books and a small selection of online books.

Books

  • Charlton, R. & Dewdney, M. (2014) The Mediator’s Handbook

This is a book about ‘how’ which pairs well with the following book about ‘why’.

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The blurb of The Mediator’s Handbook describes it as follows:

The Mediator’s Handbook Third Edition is an established and highly respected work which assists both experienced and newly qualified mediators who wish to expand their range of skills in this ever-evolving field.

The mediation process is explained in simple steps applicable to all forms of dispute and clearly outlines the required skills, techniques and strategies, especially communication skills. Importantly, variations to the mediation process are explained as are the roles of advisers, support persons and interpreters.

In this Third Edition, there has been significant revision to reflect new developments in mediation since the previous edition published in 2004.

  •  Boulle, L. (2011) Mediation: Principles, Process and Practice

This is a book about ‘why,’ which pairs well with the previous book about ‘how’.

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The blurb of Mediation: Principles, Process and Practice describes it as follows:

Laurence Boulle brings to the book 20 years’ experience in mediation and alternative dispute resolution. This book has been written for teachers and students of mediation, for those who practice in the field, and for judges, lawyers and other law officials who are involved in considering the many legal facets of mediation practice.

The three parts of the book deal with: the historical foundations and the theories and values that underlie the modern application of mediation; the process of mediation and the roles of those involved in the process; the modern practice of mediation in Australia and internationally, and the laws that regulate aspects of the process. Attention is given to the important issues of quality, standards and accountability in mediation and to the empirical knowledge of its operation and effectiveness.

  • Fisher, R., Ury, W. & Patton, B. (2011) Getting to Yes: how to negotiate agreement without giving in (online)

This is the seminal introductory read.

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The blurb of Getting to Yes describes it as follows:

Getting to Yes is a straight forward, universally applicable method for negotiating personal and professional disputes without getting taken — and without getting angry.
It offers a concise, step-by-step, proven strategy for coming to mutually acceptable agreements in every sort of conflict — whether it involves parents and children, neighbours, bosses and employees, customers or corporations, tenants or diplomats.

Online resources

Read everything you can by R J Rummel. Persevere. An encyclopedia lies behind each link.

Use the left-hand menu to select from publications A-Z and publications by date. Read about integrity in ADR and about the National Principles for Resolving Disputes.

  • Online platforms

Mediation, like almost every other endeavour, has joined the digital age. Mediation takes place on online video platforms like Zoom and Skype and many others can be used. MODRON it is a mediation platform that is a practice management tool as well as a mediation platform.

University reading lists

Search ADR Unit Outlines. Choose from among the recommended reading.

Membership organisations

  • Resolution Institute

Resolution Institute ‘Pulse’ lets you know each month what is going on in Dispute Resolution in Australasia and beyond. There are other RMABs (Recognised Mediator Accreditation Bodies) listed on the MSB (Mediator Standards Board) website below. I am the Chair of Resolution Institute (2007 – present) so you would expect to hear from me that Resolution Institute is where I suggest you start… and where I expect you are likely to land when you are looking for a membership organisation.

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  • IMI (International Mediation Institute)

You will find that IMI is a font of excellent reading. I am a Vice Chair of the IMI Independent Standards Commission.

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Industry publications

In the right-hand menu on the home page of this blog, under ‘Mediation Explained’ you will find Australian and international gems.  I recommend that you read each one.

Qualifying


Read the MSB website from top to toe, starting with the Approval Standards and the Practice Standards. They speak directly to you.

Remain qualified

Like all professions, there is a CPD (Continuing Professional Development) requirement of nationally accredited mediators. You will find it explained in the Standards on the MSB website.

Participating


  • Resolution Institute
    • Volunteer for Resolution Institute role-play for others’ accreditation assessment
    • Attend Resolution Institute networking meetings.
    • Enrol for Professional Development in the form of webinars and much more.
  • SCRAM (Schools Conflict Resolution and Mediation) Program
    • Volunteer for SCRAM
    • Introduce SCRAM into a High School where you are well known
    • SCRAM is an interactive role play competition for Western Australian Years 9 and 10 high school students.
    • It facilitates the development of peaceful dispute resolution awareness and skills in secondary school communities. Students mediate simulated disputes which relate to their everyday lives.
    • SCRAM is an initiative of the Western Australian Dispute Resolution Association (WADRA).

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  • Mentor

Approach experienced mediators. Invite them, one at a time, for coffee. Offer to do some clerical work for a mediator with whom you find some reciprocated affinity.

Promoting


  • Create your opportunities
    • Participate in all activities with the mindset of an mediator – you will be noticed
    • Identify highly competent mediators so that you can refer work to them – you will benefit by association
    • Tweet and selectively retweet on aspects of mediation
    • Develop your mediation profile for distribution to people who know you to be reliable, calm and diligent
    • Offer to present to groups of people who know you to be well informed, clear and considered
    • Volunteer at community mediation programs
    • Volunteer at mediation training sessions
    • Write a blog then convert it to a short article for a suitable audience
    • Seek feedback during and following participation and thank all who provide feedback

Preparing


  • Read ‘From scholar to dollar’ by Anna Harrison

From Scholar ro Dollar
By following the 15 simple steps outlined in this book,you can arm yourself with the auxiliary skills needed to
make your transition from scholar to dollar both seamless and successful.

  • Seek out support for your small business including from Small Business Development Corporations
  • Develop your draft business plan
  • Prepare your mediation correspondence templates then edit, edit edit… according to current conventions. Err on the side of formality.
  • Review all aspects of your (potential) practice as if through the eyes of a disgruntled client who has ‘gone public’ with your actions and/or your correspondence
  • Prepare your marketing plan
  • Identify panels of mediators – develop your application to each so that you know what you know and can do and what you’ve yet to learn

Good luck!

Mediating with Families by Linda Fisher & Mieke Brandon 3ed: a Review

 

Introduction

Review wMwFritten in 2014

The family mediation profession is fortunate  that Linda Fisher and Mieke Brandon decided to write the third edition (2012) of Mediating with Families.  The first two editions (2002, 2008) were very well received in Australasia and beyond, and the third edition is following suit.  Family Dispute Resolution Practitioners, mediators, academics and trusted advisors all have much to gain from engaging with this expanded and updated edition.

Spanning as they do, ten years of significant change, the three editions have recorded some of the history of mediating with families in Australia. In the years since the first edition of Mediating with Families, the most significant of the changes for families has perhaps been the advent of compulsory family dispute resolution from July 1, 2007.  For mediators, the development of clear qualification pathways for both Family Dispute Resolution Practitioners and for mediators has been similarly significant.

During the ten year period of the growth of mediation theory and practice, the concept of family has also undergone significant social change. Perhaps each in their own way, both mediation and families have transformed in the way that a child, born in 2002 has developed over the same time.   As with the child, a synergistic mix of nature (evolution) and nurture (largely policies and the legal system) has brought family mediation into the second decade of the century.

Signature attributes

Mieke Brandon and Linda Fisher have ensured that this third edition of Mediating with Families carries its signature style and content while being thoroughly up-to-date.

Welcoming

Review_3The style that permeates the book is welcoming, generous, understated and highly accessible. The text is approachable in a way that invites certain reciprocity. Linda and Mieke offer their insights for the consideration of the reader, rather than as immutable truths. They have written a text that understates its place in the world of family mediation and is all the more accessible and therefore influential for it. Some texts imply that theirs is the first and the last word on the topic. This one speaks with a confident voice, welcoming other confident voices.

The authors’ accessible, conversational writing and is complemented by easy-to-navigate organisation. The reader can engage in the style of conversation that they choose: a collegial conversation, a mentor-mentee conversation, a knowledge gathering conversation. I find that I hear the text as I am reading it.

Insightful

In this edition the authors are as generous as ever in sharing their collective wisdom and experience which go well beyond transmitting plain knowledge. Grounded in sound theory, the authors provide their insights in a way which is both engaging and motivating. This edition broadcasts the pivotal message of previous editions: at all times think about yourself as a mediator and the effect you and your interventions are likely to be having on participants. I read the message as ‘keep in mind that the mediator is there for the participants’. This message extends to two related insights: the importance of professionalism and of self-care foremost. Typical of the positive frame of this book is that these insights are delivered through a lens of affirmation of practitioners.

Content

The content of the book is considerably updated to account, in particular, for the changes to Family Dispute Resolution in Australia, and for a broadening of the concept of ‘family’. New Zealand FDRPs will welcome Mediating with Families, following their recent introduction of Family Dispute Resolution.

Due to the welcoming tone and the accessible approach, just as with the first two editions, the reader can be thought of as accepting any one of multiple invitations from the authors. I will consider the two most likely: one could be to read with a family focus and the other to read with a mediation focus. Others include a cultural focus, a skills approach and a parenting focus. Each of these themes is anchored in particular chapters and developed throughout the book.

Families focus

In the big picture, for readers with families in front of mind, there is a variety of invitations including, for example, to appreciate families and their place in society and to consider the society that forms and is formed by families. There are more for the looking.  The reader whose primary focus is families and whose secondary focus is mediation, might start with Chapter 1 ‘Setting the context: the family’ then take that framework with them to Chapter 4, ‘Issues for separating couples’, Chapter 5, ‘Issues for couples: established and new relationships’ and Chapter 7, ‘Issues for parents and children’, in particular, the section entitled ‘The Family’s Sense of Self’ and Chapter 9 ‘Practice considerations’.

From the micro perspective, in one among many examples of family dynamics, Chapter 1, at 1.130, introduces ‘power and control’; chapters 4, 5, 6, 7 and 9 develop, analyse and exemplify the concepts that provide context for issues of power and control.

From a specialised perspective, Mediating with Families can be thought of as being oriented toward families whose degree of complexity is within approximately one standard deviation of the norm. The versatility of this book is such, however, that family complexity beyond that range is addressed in a number of ways. Every family is a complex family and some are more complex than others[i].  As Kaspiew et al (2014)[ii] have shown, complexity creates a need for holistic interdisciplinary approaches. Mediating with Families addresses complexity by taking a systems approach, that is, a holistic, interdisciplinary approach, summarised in figure 1.1 and in the two chapters on language and culture. The authors address many of the components of complexity including vulnerability, violence, safety, and abuse. Third, they identify a variety of family constellations including adoptive families, stepfamilies, families involved with surrogacy, single parent families, same-sex families and nuclear families. While the focus is as the title suggests, readers could choose to follow a pathway through Mediating with Families to add to their knowledge of families with complex needs, with respect to conflict and mediation.

Mediation focus

In the big picture, for readers focusing on mediation there is an invitation to consider mediation processes in all their permutations and another to develop and/or to review skills. To read as a mediator is to be invited to reflect both on mediation practice and on the self-as-a-mediator.

The reader who accepts the invitation to focus on the mediation process in the family context could start their pathway at Chapter 2 and follow on to Chapters 3, 6, 8, 9 and 10. Chapter 2 has been very usefully updated to consider four approaches to family mediation, a comment on diversity in approach, mediation frameworks, and philosophy, practice and process. I find the mediation frameworks especially helpful for reflecting on my own practice.

From a mediation practice micro skills perspective, one among many mediation skills that is developed throughout Mediating with Families is the use of agendas. Agendas and their vagaries are  considered in a variety of contexts across five of the chapters. Agendas can be tricky. Chapter 11 describes communication patterns to reach the phrasing of a robust agenda which in turn becomes the scaffolding for agreements.

From a specialised perspective, Chapter 6 includes mediation of wills and estates, Chapter 7, parent-adolescent mediation and Chapter 8, some aspects of elder mediation.

Mediation Participants

In 2008 when I reviewed second edition of Mediating with Families I was intrigued by what I read as the developing dialogue between the authors and the reader of the role of the mediator. developed throughout the book. This third edition deserves the same praise as the second, for this thread. On reading this edition I found myself also intrigued by the authors’ portrayal of the participants in mediation. For each main assertion of the authors, there is a practice application in the form of either a case study, followed by self-paced learning questions or a series of examples or a relevant Appendix. The authors are in touch with reality and ensure that the reader is too. Consistent throughout the case studies, the questions, the analysis and the examples, the empathy, compassion and respect of the authors for families in conflict, shines through.

Organisation

Finding your way around

The reader who is wondering how to investigate their choice of theme, will be pleased to know that the authors have identified the starting point, a descriptive contents pages and from there, each step of the way can be mapped in the comprehensive index. Think of the topic, decide the approach, start with the contents pages then shift to the index to find the topics and more. The advantage of being able to take this approach is that the constructs are in their setting. Everything you read raises awareness of the issues and your self-awareness as a mediator or trusted advisor.

For many of the authors’ assertions, there is a practical application in the form of either a case study, followed by self-paced learning questions or a series of examples or a relevant Appendix. The authors are in touch with reality and ensure that the reader is too. Consistent throughout the case studies, the questions, the analysis and the examples, the empathy, compassion and respect of the authors for families in conflict, shines through.

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 which Mediating with Families and many contemporary texts are built. Footnotes provide another source for those wanting to excavate the archives. The inclusion of Booklets in the resources section is particularly family friendly.

Approach

Characterising the approach to each of these applications of models and theory are themes of inclusivity, consensus, relationship orientation, cooperation and self-determination.

Hub

From my perspective the hub of this book is introduced in Chapter 3, ‘What mediators bring to practice’. That is, this book assumes that improved practice is dependent on greater self-awareness. In each topic, the movement from unconscious unknowing to conscious unknowing to conscious knowing follows the pathways of mediator and mediation as it develops the role of the mediator.

Principles

Characterising the approach throughout the book are principles of inclusivity, consensus, relationship orientation, cooperation and self-determination; themes that recognise and acknowledge participants.

One of the techniques that integrates the subject matter is the way in which the authors exemplify the principles of mediation both in what they say and what they do. The book is an avatar of mediation. The practice of mediation is an inclusive one; it is the role of the mediator to be inclusive; Mediating with Families is inclusive. One among many of the indicators of inclusivity is the breadth of the list of excerpts used throughout the book.

Another of the fundamental principles of mediation is its focus on party participation. Mediating with Families provides ample opportunity for the reader to participate well beyond consolidating the concepts under discussion to internalising them in the practice setting. As a point of comparison, legal negotiation and litigation are premised on professional participation.

A mediator is tentative regarding content (facts) and assertive regarding process; as is Mediating with Families.

In the same way that mediation involves a peer-like relationship among mediator and parties, each with their different fields of expertise, the tone of Mediating with Families is one in which authors and reader are peers in a partnership, each with their different fields of expertise. The authors convey their expertise in an informal way which affirms the reader as expert in themselves and in their application of the authors’ expertise to their practice.

The authors ask the reader to look at the family situation as unique and to adapt the practice of mediation to suit the family circumstances. This is another of the fundamental principles of mediation: that it is situational and individualised.

A book entitled Litigating with Families could be expected to exhibit the principles of exclusivity of content, professional participation, hierarchical relationships, emphasis on precedent.

By absorbing the content in the way that it has been presented, the reader gains knowledge of the family and family disputes, self-development as a mediator and experience of the distinctive approach of mediation.

The content is provided from the general to the specific; from theory to practice concluding with language and culture, which is the underpinnings of all that has been before.

Over Coffee

Review_4In writing this review I have conducted my own dialogue with the authors, unbeknown to them! The welcoming and open style invites discussion. One of the comments by Mieke and Linda that I look forward to discussing comes from Chapter 2, on the topic of ‘Diversity in Approach’ in which they comment

Many mediators, however, do not maintain such distinctions in their practice and prefer an eclectic approach. These mediators approach the diverse situations that come to family mediation using interventions from a range of approaches that seem to meet the parties’ needs.

I read this as an endorsement of an eclectic approach. I have concerns about an eclectic approach from an integrity and internal consistency point of view both in terms of professionalism and in terms of cohesion of experience from participants’ point of view… to be explored over coffee.

Conclusion

Mediating with Families comes highly recommended. Its subject matter could be summarised as being concerned with access to justice for families. Its approach is one that resonates with the approach described by Hayes and Higgins[iii]: it advocates, albeit gently, for collective awareness, common narratives and coordinated approaches to promoting resilience, in this case through mediation for decision-making and dispute resolution.

Linda Fisher and Mieke Brandon are to be congratulated again. It is the families of Australasia who will benefit from their dedication, leadership and insights.

[i] Apologies to George Orwell

[ii] Kaspiew, R., De Maio, J., Deblaquiere, J & Horsfall, B.  (2014) Families with complex needs: Meeting the challenges of separation AIFS

[iii] Hayes, A. & Higgins, D. (2014) Complex family issues: collective awareness, common narratives and coordinated approaches to promoting resilience AIFS

Of mediation and chocolate: “Mediation A Practical Outline” by Sir Laurence Street

 

Q: What is the difference between mediation and chocolate?

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This is the second in a series of my quick comments on the items in my blogroll. Being the second, it is now officially a series! Just to your right, you will find the mediation classic: Mediation A Practical Outline by Sir Laurence Street.

Sir Laurence is a pioneer in mediation. His Practical Outline is a succinct, brief and highly readable booklet that distills the complexity of mediation for a broad audience. Mediation participants, their personal support people and their professional support people all find Practical Outline to be relevant reading because while on the surface it describes the process of mediation, implicitly it conveys the beliefs, the values and the principles of mediation.

I find that participants read the booklet and become clearer on what they can expect of mediation, moderating both their hopes and fears. In my experience, with their clarity comes confidence, the confidence to stay with mediation and the confidence to leave mediation and the ability to decide which is appropriate. Likewise their personal support people clarify their own expectations of the process and are able to focus on being supportive.

Professional support people, including psychologists, lawyers and accountants read the booklet and are reminded of their unique role in mediation. The psychologist leaves therapy at the door; the lawyer and the accountant leave representation and strategy at the door.  None of these suggestions is made in the booklet. None of them needs to be made because the essence and tone of mediation is so clearly conveyed that the role of professional support people can be read clearly in bold text between the lines.

The mediator’s role is clear: to be able to put a tick beside each of the sections of the booklet. That is, to design and to maintain a process that enables participants and support people to participate in structured, facilitated process of natural justice.

Sir Laurence Street is known for his many remarkable achievements, some of which are listed on p. 2 of A Practical Outline. For me, this booklet is among them. Following a long career which included Chief Justice of the Supreme Court of NSW; a career which was premised on and encultured by the legal aspects of Justice, Sir Laurence explored, then became an advocate for and practitioner of, mediation. In becoming a mediator, Sir Laurence embraced a culture that is the obverse of the legal culture.  He exchanged his previous role of making determinations for that of facilitating outcomes; his previous criteria for resolving matters from statutes and rights for interests; his previous orientation to listening to professionals for listening to participants and his previous focus on the past for a future focus. How to do all this and more and how to support it being done is conveyed in 15 pages.

All of which brings me to the differences between mediation and chocolate.

The differences between mediation and chocolate highlight the value of this booklet. Consider chocolate. Most people know where to go to get chocolate. Most people know whether the chocolate they have is good chocolate. Just mentioning chocolate is often enough to create a want for chocolate. Most people know what to expect when they have chocolate.

Consider mediation. Most people do not know where to go to get mediation. Having got mediation most have no idea whether they have good mediation or not. For many people, just mentioning mediation is enough to bring on anxiety. Most people do not know what to expect from mediation.

Mediation A Practical Outline by Sir Laurence Street brings mediation closer to chocolate. That has got to be a good thing!

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The elegant camel and the resilient horse

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Federal workplace conflict management desk reference: a compilation of Alternative Dispute Resolution (ADR) Processes, Partners and Resources October 2013

Interagency Working Group, Conflict Management Section

This is ADR gold, particularly in the months following the discouraging closure of NADRAC. Before your hopes canter, I will point out that the term ‘Federal’ in the title refers to the Federated States of the United States of America. It could however refer to any federation, real or fictitious. The authors have produced a Desk Reference that epitomises the principles of ADR. It is inclusive, person centred, peer oriented and much more. It is intended to ‘give people working in this area a common understanding of the variety of [ADR] processes and approaches… and to ‘broaden the context within which they [ADR] are used.

There are four sections. Section I describes 17 distinct ADR processes under headings which cover who, what, when, where, how, why and much more including possible concerns about each approach. The information in Section I is universal, highly accessible and down-to-earth. Section II considers partnering opportunities which complement the aims and objectives of ADR processes and agencies. It is conspicuously USA oriented. The focus of this section on the USA provides scope for the Australasian imagination to consider what may be possible. In the literal sense of the word, Section III returns to the universal: using technology in dispute resolution. Section IV provides a short list of resources the breadth and depth of which again convey the theme of universality. There are resources on topics as far ranging climate assessment, communities of practice and appreciative enquiry. Section V is just one page that demonstrates the suitability for and the versatility of the processes described in Section I.

What is often said about committees and writing refers to a metaphor of camels and horses. This desk reference has been written by a committee that could have designed a camel if they’d set out to or a horse if that had been their aim. We in the ADR field are fortunate that they set out to write the Federal workplace conflict management desk reference: a compilation of Alternative Dispute Solution (ADR) Processes, Partners and Resources. They have written a document that has seamlessly integrated the strengths of each of the contributors to produce an elegant camel and a resilient horse.

I intend this to be the first in a series of quick comments on the items in my blogroll.

 

Mediation: an approach for using ‘Tips for reaching agreement’

This is typical of agreements reached in mediation with one proviso: each agreement is unique; none is typical.

This is typical of agreements reached in mediation with one proviso: each agreement is unique; none is typical.

I’ve previously mentioned that I commence each mediation by meeting with each participant separately. I encourage participants to be accompanied by a support person, whether a professional support person or a personal support person. Toward the end of the initial session I provide a sheet of Tips for reaching agreement, commenting  along these lines:

MH: “This is a sheet that I provide to each person who may be participating in a mediation.

“Whether it is a relationship matter, a commercial matter, a workplace matter or a family matter, I provide the same sheet of tips.

“I’ll give you a few minutes now to glance through them to see if any leap out at you. They may take a bit of studying after this session.

“I will be/will have given the same sheet to each of the other people involved in your mediation.

“The idea is that quite likely by now, you each have heard or you each feel as if you have heard, everything the other participants have to say… and you are possibly concerned that the mediation will be just more of the same… ‘same old…same old’?

“To give it the best chance and to be future focused, your mediation needs at least some elements of a fresh start. There are a number of things you can do and that I can do to create a fresh start.

“One of those things that I find works well is to put some of these tips into practice.

“What I will ask you to do, is to choose two or three of these tips. You know yourself better than anyone does and you know the other participants (whom I name) much better than I do. You are well placed to make a wise selection of tips that can really influence the outcome of this mediation.

“I have two criteria for you to use to make your selection. You may have others.

“The first is to choose two or three tips which are things you normally wouldn’t do.

“The second is to choose two or three tips which are likely to encourage the other participants(named)  to listen to you.

“When you’ve chosen the tips, it can be helpful if you can practice them a bit in day to day life leading up to the mediation.

“I will ask you which tips you are going to use in your mediation, privately, before your joint sessions commence. I’ll also check in with you in private sessions during your mediation about how the tips are working for you… and other aspects of the mediation as I mentioned earlier.

“It is my role to assist you to into practice the tips that you each choose and to assist you to put some of the others into practice too.

“I’ll give you an example of a recent mediation when one of the tips was particularly influential… (I provide a real, de-identified example)

Tip 23: Be generous at the end:  Whose generosity?

Observations

It is my observation that the ‘Tips’ sheet works in a variety of ways. Participants are pleased to have some precise steps to take; pleased to be able to have an expectation of constructive dialogue; pleased to have an expectation of reaching agreement; pleased to know that other participants will be approaching the issues according to the tips; pleased that other participants’ understanding of their changed approach is likely to be perceived as a commitment to agreement; pleased that providing the sheet is a routine part of my practice; pleased that the tips that are chosen remain private.

Mediation: cartoons that contribute to communication



Assessment for suitability for mediation: initial private sessions

I commence each mediation by meeting with each participant separately. In these initial, private separate sessions, when I ask potential mediation participants what they would like from mediation, most people are quite clear on the outcome they would like. When I ask what outcome they expect,they are also clear on the outcome they expect. After some discussion, particularly in response to “What outcome do you think each of the other participants would like/expect from mediation?” participants are usually less clear on the outcomes they would like and also less clear on the outcome they expect. This respectful creation of doubt creates possibilities for later settlement.

My next question is along the lines of “What would you like from the process of mediation?” While there is an enormous range of responses, a significant proportion  condense to “I would like to be heard. I would like to know I’ve been heard.” and in response to its corollary “What do you think each of the other participants would like from the process of mediation?” I hear a range of responses, including “They would probably like to be heard too.” “They would probably like to know they’ve been heard.”

Mediation: ongoing private sessions

One of the most commented on, among many of the techniques that I use to provide opportunities for participants to be heard and to know that they have been heard, is my use of the book It’s not always black and white: a colourful book on life’s grey areas by Kate Knapp. Among the reading material in each of the breakout rooms, there is a copy of the book, with two removable stickers on the back cover.

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Early on in the mediation, I encourage people to become familiar with the book while I am spending time with other participants in their breakout rooms. Later on in the mediation, in a private session, I ask participants to select two of the cartoons to explain to me, in a breakout session, an aspect of their experience of the mediation. Later again, I ask participants to select two cartoons to explain to the other participant(s) an aspect of their experience of the mediation. The aspects are s varied as the participants. For example, I sometimes ask participants to select two cartoons which highlight their hopes for the mediation. Other times, I ask participants to select cartoons which convey their concerns about the mediation. After a brief rehearsal of the aspect in question, participants plus It’s not always black and white return to the joint room.

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Joint sessions

MH “There are four steps in the use of your cartoons. I will start by explaining the first two steps.”

“First I am going to ask you each to explain, in three or four sentences, to the other participant(s) one of the cartoons that highlights … your hopes for the mediation.

“Next, you will each be welcome to ask clarifying questions that relate directly to the explanation you were given with each cartoon.”

“So, Mary, please explain to Fred, in three or four sentences, one of the cartoons that you have selected that highlights … your hopes for the mediation.”

“Thank you Mary.”

“Fred, please explain to Mary, in three or four sentences, one of the cartoons that you have selected that highlights … your hopes for the mediation.”

“Thank you Fred.”

“Now, for step 3, I will ask you each to explain what one of the cartoons that was presented to you would have meant to you, in terms of … your hopes for the mediation… if you had been  explaining it.”

“Fred, please explain to Mary, in three or four sentences, what the cartoon that was presented to you by Mary would have meant to you in terms of … your hopes for the mediation… if you had been explaining it.”

“Thank you Fred.”

“Mary, please explain to Fred, in three or four sentences, what the cartoon that was presented to you by Fred would have meant to you in terms of … your hopes for the mediation… if you had been explaining it.”

“Thank you Mary.”

“Finally, I will ask you each to identify, privately, one aspect of …  your hopes for the mediation, that you will reflect on with a view to it initiating a change, small or large, to an aspect of your mediation.”

“Moving on to … [stage of the process]  keep that thought present.

Observations

By my observation, what is likely to be happening for Fred and for Mary during the sequence above, is that each is likely to be recognising something in themselves; acknowledging something in the other; connecting to some extent with the other; and in connecting, sensing that conclusion can be reached. Each holds considerable promise for improved communication.

Mediation: uses and abuses I

Musings on Mediation: appropriate and inappropriate uses The Law Society of Western Australia held its Law Summer School in late February at the University of Western Australia. I attended the lively session entitled ‘Mediation: uses & abuses’. I came away stimulated by the high level of interest and the variety of angles of the questions and comments from the audience and from the panel. To me the scope and the significance of the topic extend well beyond one session and raise questions regarding the appropriateness of the use of mediation  that lead to many more questions.

Questions range from those as fundamental as ‘What is mediation?’ to ‘What are the criteria of appropriateness of use of mediation?’ and ‘Who are the arbiters of appropriateness?’; ‘What are the purposes of identifying appropriateness?’; ‘What are the risks of inappropriate mediation?’ and ‘For whom is inappropriate mediation a risk?’ to those as superfluous as ‘Is mediation appropriate when a participant is unwell?’ Can mediation deal with issues in the past?’ That is, most open questions regarding appropriateness of mediation are fundamental questions; almost all closed questions regarding appropriateness are superfluous. I digress… My interest for this post is in ‘uses and abuses’, which I’ve reframed as ‘appropriate and inappropriate uses’ of mediation.

Uses and abuses of what?

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Thanks to Kate Knapp ‘It’s not always black or white’

To consider mediation and its uses and abuses, here’s how I think of mediation: an earlier post distinguishes mediation from settlement conferences. Another describes mediation as I work with it. For me, mediation is a specific professional and principled mindset applied to the practice of a particular process.

Uses and abuses from whose point of view? People think, talk and write about, practise and participate in mediation.

  • The people who think and talk about appropriate and inappropriate use of mediation are often the academics, the bureaucrats, the practitioners and the professional support people including lawyers.

Academics draw on evolving theories from numerous disciplines to argue appropriate and inappropriate uses of mediation.

Administrators and Bureaucrats draw on the vagaries of policies and budgets to decide on appropriate and inappropriate uses of mediation.

Mediators make initial and ongoing assessments of appropriateness on the basis of whether they are able to fulfill their role in relation to participants generally.

Professional support people (lawyers, accountants, psychologists) do the same, on the basis of whether they are able to fulfil their role in relation to clients generally.

  • The people who practice appropriate and inappropriate use of mediation are the practitioners.

Mediators make ongoing assessments of appropriateness on the basis of whether they are able to implement the mediation model according to the principles of mediation that they practice, from a professional and perhaps from a personal perspective.

  • The people who participate in appropriate and inappropriate use of mediation are the consumers: the participants, their professional and personal support people and their constituents.

Participants make initial, ongoing and retrospective assessments of appropriateness on the basis of their expectations including perceived procedural fairness, personal experience and anticipated distributive fairness.

Professional support people do the same client by client.

Personal support people do the same.

Constituents make retrospective assessments of appropriateness on the basis of the outcomes of mediation.

So the uses and abuses of mediation can be considered from many points of view which can be summarised into conceptual (thinking & talking) and experiential (practising & participating) points of view. Mediation is a process for participants, individually and collectively. Appropriateness is therefore largely the realm of participants and their advocates. As I see it, it is participants’ interpretation of their experience that is pivotal to appropriateness. Experience is apersonal synthesis of professionalism, principles, process and practice. From an experiential and practical point of view these conceptual frameworks integrate in the form of participants’ interests.

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 Thanks to Kate Knapp ‘It’s not always black or white’

On this basis, I’ve decided that mediation is appropriate when from participants’ points of view

  • The process is demonstrably mediation by an externally agreed description

and

  • The process addresses the procedural and personal interests of each participant while addressing the procedural and personal interests of each other participant or at least while having a brief, temporary neutral effect on the procedural and personal interests of each other participant.

And therefore I’ve decided that ‘mediation’ is inappropriate when

  • The process is not demonstrably mediation by an externally agreed description

or

  • The process frustrates, undermines or ignores the procedural and personal interests of any participant while addressing, frustrating, undermining or ignoring the procedural and personal interests of each other participant or while having a sustained neutral effect on the procedural and personal interests of each other participant

I have referred here to procedural interests (‘What is important to you about the process?) and personal interests (‘What is important to you about your experience of mediation?’) of participants. Whether the substantive interests of participants (‘What is important to you about the outcome?’), including certainty, reputation and establishing a precedent, among others, are met is tangential to the notion of appropriateness of mediation because mediation is a process in which participants maintain their participation voluntarily and have responsibility for the substantive outcome.

So mediation is appropriate when, according to a current threshold (which will vary) of each participant, their procedural interests (‘What is important to you about the process?’), which could include fairness, justice, completion, respect, time-efficiency and cost-efficiency, among others, are being met while the procedural and personal interests of other participants are also being met or at least being very temporarily compromised. and when according to a current threshold (variable) of each participant, their personal interests which could include respect, recognition, acknowledgement, vindication, status, peace among others are being met while the procedural or personal interests of other participants are also being met or at least not being compromised. Summing up, for me, the use of mediation can be distinguished from the abuse of mediation by the extent to which the agreed mediation process can meet and maintain all participants’ and each participant’s personal and procedural interests.

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Thanks to Kate Knapp ‘It’s not always black or white’

Summary

  • Uses and abuses of mediation reframe to
  • Appropriateness and inappropriateness of mediation
  • Appropriateness can be considered from a conceptual and an experiential point of view.
  • Participants experience mediation.
  • Experience has procedural and personal dimensions.
  • Procedural and personal appropriateness are the decision of each participant
  • Extent to which procedural interests and personal interests are met by mediation contribute significantly to indicating the degree of appropriateness of mediation
  • Mediation is appropriate when in the opinion of each participant, each support person and the mediator (and their clinical supervisor) natural justice is being practised within an explicit model of mediation and all professional obligations and codes are being met.

Selecting your mediator: all for one and one for all… updated

Now in 2019, after more than 23 years of mediating , I specialise in providing professional development for individual mediators and for very small groups of mediators.

This post describes some criteria which from my experience I think it wise to consider in your selection of a mediator. If it is a list of mediators in your region that you’re looking for, rather than criteria, I suggest you start here.

When you and the other person or people involved in a dispute have decided that you will consider mediation, it’s time to select a Mediator. The Mediator Standards Board explains why it is wise to choose an accredited mediator. I endorse all that the MSB has to say on the topic.

Over the years, in my practice and in complaints handling for Resolution Institute and other organisations, I have listened to clients explaining what they looked for in a mediator. In summary what I’ve heard is that people have sought out and been satisfied with a mediator who has experience, professionalism applied to the necessary people skills to keep each participant focused first on identifying their future-focused interests and then facilitating the creation of agreed outcomes for the future.

Your mediator is each participant’s mediator; their mediator is your mediator

It’s ironic that just when you and the other people involved are having trouble making joint decisions, it is important that you make a joint decision to have a mediator who is acceptable to all. Mediation participants tell me that there are numerous ways of selecting a mediator, including:

  • Sometimes one person takes the initiative and decides to meet with a mediator before mentioning it to other potential participants. They then make a recommendation to the other potential participants.
  • Sometimes participants reach a general decision to mediate then, by agreement, one person identifies a mediator.
  • Sometimes people decide on their mediator together, based on information, interviews and referrals.
  • Sometimes a mediator is appointed by an external body.
  • Sometimes a combination of approaches is used.

It can be a positive first step if you can select your mediator cooperatively.

On the other hand, realistically, if you select a mediator who is accredited, registered, experienced, professional and compassionate, you will be highly likely to participate in a more than satisfactory mediation.

To select your mediator cooperatively, start with an MSB accredited mediator. I suggest you then interview them about how, during each phase of mediation, they maximise each participant’s opportunity to

  • listen generously to what each other participant has to say
  • think productively about other people’s ideas
  • speak moderately throughout even when they feel quite heated
  • make wise personal and commercial decisions that preserve dignity and relationships
  • conclude satisfactorily with respect.

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Who is engaging whom? Make an informed decision.

You and the other people involved engage a mediator. A mediator does not engage you! I suggest that you and other potential participants design some questions to find out what you want to know before you decide on a mediator. As well as asking what mediator will do to assist you to fulfill your role, above, you can

  • Ask about experience

The experience that is relevant is the experience that the mediator has of adapting the mediation process to a wide range of circumstances. It is generally true to say that the mediator manages the process and the participants manage the content. You are looking for a process ‘expert’ in a mediator. You and your advisers, personal and professional, are the content experts.

  • Ask about qualifications

The qualifications that are relevant, in addition to the MSB initial accreditation and ongoing registration, may be indicated by academic qualifications (FDR), membership of panels (franchising), for example. .

  • Ask about tricky situations

‘What if …’ questions that address your concerns about mediation will provide you with decision-making information and show that you are thinking through the reality of mediation. A mediator is mediating only when they simultaneously and even-handedly work with each of the participants.

By asking the sorts of questions about tricky situations, qualifications and experience you’ll get a feel for how well you connect with the mediator and knowing the other people as you do, you’ll get a sense of how well they might connect with the mediator.

My comment is that if you get the impression that a mediator is listening to and speaking to you in the same way that they will listen and speak to each other person involved, then it’s likely you’re on to a good mediator.

In a nutshell, I suggest you select a mediator who you think is likely to spend most time listening respectfully to each participant; much time thinking compassionately about the circumstances; some time speaking optimistically … and then realistically. When you’ve got that far, I suggest you select a mediator who is likely to diligently facilitate an even handed mediation and who is likely to know when enough is enough and will conclude your mediation.

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If you’re stuck

If you are really stuck, one way forward is for all but one of the people involved to make a very short list of acceptable mediators which they provide to the other person who chooses the mediator from the list.

As you learn more about mediation, be open to changing your mind about your selection

What are the costs of changing your mind? To what extent might the benefits outweigh them?

In the same way that you decide on a builder, an architect, a pharmacist and medical practitioner is advisable to decide on a mediator. Just as initial discussions, advice and information from a competent builder, architect, pharmacist or medical practitioner may cause you to confirm their suitability or change your mind, so might initial discussions, advice and information from a professional mediator.

Having engaged your mediator provide them with feedback regularly and in private sessions ask them for feedback.

A competent, professional mediator will respond positively to your feedback.

You can find a list of reputable mediators here.

All the best!

Where in the university does mediation belong?

The Kluwer Blog is one of the blogs I look forward to.  Recently two posts have created such interest that I have re-read them. I’d like to re-read all of them. I rarely make the time.

Deborah Masucci declared that it is ‘Time for another big bang in Alternative Dispute Resolution‘ and Constantin-Adi Gavrila similarly considered ‘What went wrong with mediation?‘.  There is a lot of good reading and rereading in these posts.  I’m making my very brief comments here after failing thrice on the Kluwer blog site to enter the number to identify myself as human.  I decided that either I am not human or the ‘ReCaptcha’  is human!

After reading Constantin-Adi’s post, and before I was stymied by ‘ReCaptcha’ I wrote:

Great article.  In my experience, including at a well attended Law Summer School yesterday, mediation has been reluctantly and perfunctorily accepted by the law profession, perhaps as a public relations exercise with both government and with  potential participants.  Under the wing of the legal profession, mediation suffers tokenism; controlled tokenism.  And ‘mediation’ is not mediation.  It is mostly settlement conferences: quiet and respectful banging heads together.

Expanding on the above comment, I’ve considered – what went wrong? As I see it, mediation has been sent to boarding school in the next suburb, instead of living with the family.  Mediation is a humanity. The skills of mediation are the skills of humanities.  The process of mediation is a process of humanities.  The substance of mediation is the substance of humanities, in the context of the law.  The interpersonal aspects of mediation are the subject of humanities.

Law schools have taken good care of mediation, for subject that is a ring in.  And that is all.  Mediation is not and never will be one of the priestly 11.  Mediation needs to go home  where it can be developed into an undergraduate degree.  As a humanity, it can be promoted to government, business and individuals in a way which is consonant with the philosophy  and principles of the humanities rather than in a way which is dissonant with the philosophy and principles of law.

Law schools can develop excellent courses in advocacy, representation and negotiation  for their students, the soon-to-be trusted advisors in mediation.

Mediators’ and trusted legal advisors’ roles are complementary.  Participants experience a holistic approach.

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Participants then have the best of both worlds,  worlds which are the antithesis of each other. Mediation is promoted well.  The mediation profession thrives as does the legal profession.  Importantly they thrive by cooperating in what I refer to as CDR (Complementary  Dispute Resolution).