The problem with mediator ground rules

One way of looking at the mediation process is as a means by which disputants can explore the possibilities for resolving their differences, it being understood that the outcome of the process is entirely up to them. It’s often said, ‘the disputants own their differences while the mediator owns the process’, or something to that effect.  But if mediation is predicated on self-determination, then party-choice should be privileged not just for substance but also process. Party-choice may be impinged on when the mediator sets the ground-rules (i.e., her preferences for the process) of the mediation.

Watch this trailer for a new film, “Mediation”, that is a commercial take on the disconnect between mediator ground-rules and process outcomes:

(Hat-tip: Rick Weiler)

Opening statements by the mediator

It’s important in the mediation process, irrespective of the model, for the mediator to explain how she works in an opening statement. There are two reasons for this: participants have a right to know what to expect from the mediator and how the process will unfold; and, participants have a right to make an informed decision on whether the process will be helpful to them.

In the transformative framework, we believe that the opening statement says it all. The mediator opens a session by outlining the process as a conversation between the participants that is completely controlled by them. She also explains how she will support the participants in their conversation, in their deliberation about what they’re hearing in the conversation, and in their decisions. Then it becomes all the more essential that the mediator act in a manner entirely consistent with her explanation.

In the video below, [Editor: The video is being updated and will be replaced shortly.]  highly proficient Quebec mediator, John Peter Weldon, explains what the process will be like in a workplace setting. Note his conversational approach, his emphasis on participant control of the process, how he will support them equally in gaining clarity about the situation and about what they hear in the conversation:

“The age of passive deference to professional advice is over”

Julie Macfarlane, B.A., LL.M. (London), Ph.D. (C.N.N.A.)

This quotation is taken from a recent post on Dr. Julie Macfarlane‘s blog on the National Self-Represented Litigants Project that takes its mandate from the National Self-Represented Litigants (SRL’s) Research Study, carried out, 2011-2013.

There has been wide-spread growth of SRLs in Ontario, seemingly because many in our society simply cannot afford lawyers but also earn too much to be eligible for legal aid.

The thrust of her post is that self-represented litigants (SRLs) want help from lawyers in order to be effective self-advocates. In other words, they want coaching from lawyers so they, the SRLs, can better represent themselves in the justice system. While providing such a service may seem counter-intuitive to lawyers, Dr. Macfarlane argues it is in their own interest, not to mention the judiciary’s as well.

From the meekest to the most assertive, SRLs in my study told me over and over that they do not want to be simply told what to do by an advisor who seemed to have their own agenda and appeared uninterested in their concerns, expectations and needs. They did not want to have “expert advice” rammed down their throats before they felt that they have really been listened to and their point of view acknowledged and taken seriously.

In my view, this observation about SRL aversion to expert advice also validates the promise of mediation. For mediation to be a real alternative to other dispute resolution processes, such as litigation, self-determination must be paramount, and not just with regard to substantive disputes but also with respect to the process itself. All too often in family mediation, the community of practitioners assumes that to mediate separation, divorce, parenting agreements, financial issues, the mediator must have substantive qualifications in those areas by having trained as a lawyer or a therapist. When mediators are informed or influenced by training and mind sets of disciplines other than conflict resolution or intervention, it is invariably at the cost of party self-determination.

Mobile technology and mediation

Giuseppe Leone

Giuseppe Leone of the Virtual Mediation Laboratory in Hawaii continues to lead the pack in testing and demonstrating innovative means to give people around the world access to the mediators they want to work with. Initially, he and volunteer mediators have been showing how online video technology allows parties and mediators to talk and see each other with an Internet connection. Now he is exploring mobile technology to the same end for those with PCs, Macs, or smartphones. Here’s a 19-minute YouTube video showing how it’s done:

Some Observations

1. Not all mediators work in the way demonstrated in the video. The outcome here is essentially similar to what could be achieved in litigation but with greater efficiency and less cost. Apart from those benefits, nothing essential has changed for the parties in terms of dealing with the effects of conflict on how they see themselves or others. Relational mediation addresses these effects directly. For example, rather than relying on the mediator to gather information and clarify issues, the empowerment of the parties is supported to whatever ends the parties themselves decide is important to them. When parties control the process and take ownership of it, personal strength is enhanced rather than diminished by having a third person direct the resolution process. And individual strength and responsibility may lead to greater openness to the other which in turn may facilitate a constructive outcome, if that’s what the parties want
2. With mobile technology, parties and mediators can be connected irrespective of what devices and operating systems are being used, whether PCs and Windows, Macs and OS X, iPhones and iOS, or smartphones and Android systems.
3. In the same way, that phone numbers no longer are associated with locations but rather with people wherever they find themselves, face-to-face mediation no longer is yoked to meeting in a room, but can be held through the virtual presence obtained by these new forms of connection.

These are exciting new developments that mediators can now offer to clients.

Related articles

• Honolulu’s Giuseppe Leone launching Mobile Mediation (bizjournals.com)

Marital Mediation, say what?

In the post yesterday featuring the UK Ministry of Justice’s recently released video on family mediation, a distinction was drawn between couples counselling and family mediation (i.e., divorce or separation mediation).

Patti Murphy, Divorce, Couples and Family Mediation

Patti Murphy, a family mediator based in Brooklyn poses the questions:

But what if the couple didn’t want an archaeological exploration of past family behavior or accept that the issues between them were so insurmountable that the only answer was to walk away?  Then what?
The good news is – there is another option: Couples Mediation.  It’s really more of a new application than a new process.  Mediators have been helping couples resolve conflicts for years … but it turns out these same skills can be used to avoid, rather than ease, divorce!  This process, (also called “Marital Mediation” for officially married couples) is helpful for those couples that want to stay together.

In my own view, unlike therapy, it’s not about fixing or curing people, but rather it’s about supporting conversations that can bring both people greater clarity on their situation, on the options they have, and on what to do to move forward.

Considering mediation? Some questions to ask a mediator

Tammy Lenski

A couple of years back, I posted FAQs on Mediation, which included a number of questions drawn up by prominent mediator and educator, Tammy Lenski.  Among these were the following:

[a]sk prospective mediators questions like these to assess experience, depth of training and education, and adaptability:

• Do you have approaches or tools you usually use? Tell me about them. You’re looking for answers that convey a complexity of thinking and practice, not rote mimicry.
• Describe for me how your mediations typically unfold — what does it look like? Ask yourself if what they described makes sense for you and your situation. If it doesn’t, ask them…
• Do you vary that approach in circumstances where it may not work as well? Savvy mediators will not be thrown by this question.
• Tell me about the philosophy that guides your work. Look for a fit between what they describe and what feels right to you. If they can’t answer the question, that’s a red flag — it suggests they’ve never thought about it or have too little training to understand that all mediation approaches have underlying values and philosophies.

 All of these questions go to the matter of what’s termed in the field, mediator style.  Many mediators will say that their style varies depending on the conflict, the setting (e.g., workplace, family, etc.), the parties, etc., that they have a toolbox of skills that they apply to different situations.

Dorothy Della Noce

Consider this extract of a scholarly article by Dorothy Della Noce that appeared in a 2012 special issue of the journal, Negotiation and Conflict Management Research, volume 5, issue 4:

Claims that mediators can be eclectic and flexible across styles, blending and switching styles at will, are popular among mediators for many reasons (Della Noce, 2008). But it is not clear what these mediators are supposedly switching and blending: skills, tactics, repertoires, goals, values, or styles. I suggest that the image of the eclectic and flexible mediator makes sense only at the level of decontextualized skill (thus, the popular notion that mediators are neutrals who come equipped with their vast box of tools for intervening in conflict). The image makes far less sense if mediators are understood to be acting intentionally and in a goal-directed way from a core set of their own values when they intervene in conflict—that is, from their own vision of what is good in human interaction and what is good in conflict (Bush & Folger, 1994, 2005; Della Noce, 2008). Core values about the nature of human beings, interaction, and conflict tend not to be quite so eclectic and flexible. For research purposes, the issue could be explored by first taking account of differences in goals and values among mediators, creating groups of mediators based on these differences, and then comparing behaviors within and between the groups for patterns of similarity and difference (compare Della Noce, 2002). Of course, it will be found that mediators share some tactics; they share a language and the same communication tools at the skill level. But, if the analysis is bumped up to more complex thinking about strategies, repertoires, goals, and values, we can expect to find some striking similarities within groups and differences between groups (Della Noce, 2002; compare van Dijk, 1998). Those findings will enrich our discussions of mediator style and its implications.

What does on-line transformative mediation look like?

Giuseppe Leone

Giuseppe Leone is a mediator based in Hawaii who founded the virtualmediationlab.com, a pilot project sponsored by the Hawaii chapter of the Association for Conflict Resolution.  The project’s objectives are to help mediators wherever they are located to practise and develop their skills, and to learn how to mediate on-line using Skype™as a platform.

In the video of a role play below, Dan Simon, a certified Transformative Mediator™, supports people in their conversation about alleged gender discrimination in the workplace.  The role play itself runs for the first 47 minutes or so; the rest of the recording is devoted to a debrief led by Giuseppe of what happened in the mediation, how it was experienced by the role players, and where the main differences lie between the transformative model and the prevalent interest-based model:

Transformative mediation explained in Italian with English sub-titles

Here’s a video of a quite interesting interview by Guiseppe Leone, Virtual Mediation Lab in Hawaii, of Carlo Mosca, head of ADR Quadra’s scientific committee in Italy.  Carlo, as a transformative mediator, covers many of the distinguishing features of this approach to ADR practice in non-technical language.  The video also demonstrates the growing interest in transformative mediation outside North America, whether in Italy, the Balkans, Scandinavia, or Africa.

Statistics on Online Dispute Resolution (ODR)

Transformative mediation connected with courts?

With reference to this question, here’s an excerpt from a guest post that appeared a couple of days ago on Dan Simon’s blog:

There are times when we are asked to take cases that the judges have previously heard. The judges know these cases will be difficult, and there is very little that they can do to find a lasting solution. These repeat cases are not really about the auto repairs, the shared driveway, the broken fence, the daycare contract or the loud noise. The problem is the crisis in the interaction between the disputants. They are not able to talk to one another so they call the police or file a suit. When given the opportunity to sit down with the other in mediation, transformative mediators support the participants’ conversation in ways that enable them to regain their own strength and clarity to make decisions and their ability to respond to one another in a way that allows them to move forward.

Some people feel that transformative mediation’s lack of apparent structure precludes ordered progress. Actually, transformative mediation does have structure in which participants are introduced to the context of the mediation, explore the situation and possible options, deliberate and make informed decisions. Transformative mediators support participants as they exercise self-determination in how, and in what order they wish to work through this process. Our experience would suggest that this takes no longer than in other mediation frameworks.

Read the whole blog post here.