Category Archives: mediation

“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.

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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.

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.

How mediation can help in transborder parental child abduction

Sabine Walsh

Sabine Walsh is a certified International Family Mediator based in Ireland and reports on how mediation can support parents in cases of international parental child abduction, “where one parent brings the child or children to another country, often their country of origin, without the other parents’ consent“.

Mediation however offers a number of specific advantages to parents in the context of a child abduction case. One of these relates to the scope of the dispute. In general, in cases taken under the Hague Convention on the Civil Aspects of International Child Abduction (1980), to which 86 countries are parties, the only issue that can be decided by the court is whether the child or children should be returned or not returned to their state of habitual residence. This means that the court has no jurisdiction to decide any other matters relevant to the future of the family, such as custody, access, maintenance or any other matters that might require a decision in order for the family to move on. A new set of proceedings to decide such matters must be commenced in the relevant state, depending on where the child and the parties will live. This means, in effect, that at least two sets of legal proceedings in two different courts, possibly in two different countries will be required to regulate the circumstances of the family after the abduction. In mediation however, the scope is determined by the parties, not by legal rules, and therefore all matters relating to the dispute can be addressed. In practical terms this means that the parents can address not only where the child or children will live, but all other arrangements such as contact with the non-resident parent, a parenting plan, and financial matters. Not only will this save the family time and money, but it can significantly reduce the stress on everyone, in particular the children. (emphasis added)

She also identifies best practices in international family mediation:

The first hallmark of international family mediation is that it is carried out by co-mediators. The co-mediation team should ideally consist of one male and one female mediator, one from each of the parents’ countries, and one being from a legal and one from a psycho-social background. This is not always achievable but at the very least, one mediator should be from each of the parties home countries. In an Irish-German family, for example, one mediator should be Irish and one should be German. Both joint sessions and caucuses are used in this type of mediation, and sessions are usually scheduled over a period of three days approximately. Very importantly in cases of child abduction, arrangements are often made for the left behind parent to have contact with the child at some stage during, though not actually in the mediation. The voice of the child or children will usually be brought into the mediation, either directly or by means of an interview with a third party such a psychologist or social worker. The parties legal representatives are actively involved at all stages, particularly when it comes to drafting the agreement, and translators or interpreters may also sometimes be used, though it is generally preferable if a common language can be found to mediate in.

You can read Walsh’s entire report here.

Considering mediation? Some questions to ask a mediator

Tammy Lenski

A couple of years back, I posted FAQs on Mediationwhich 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.

Respecting mediator confidentiality

December 20, 2012

The membership of the Association for Conflict Resolution mourns the tragedy in Newtown, Connecticut, along with all those shaken by it across the United States and around the world.  We and many of our other colleagues stand ready to lend the full range of our professional expertise and devotion to processes that support healing, as well as those sustained efforts that will be required to facilitate dialogue, build consensus, and take action to address the deep rooted structural issues that contribute to this tragic pattern.  Our membership includes thousands of dedicated and seasoned conflict resolution practitioners with a variety of specializations committed to the work that lies ahead.

Many ACR members, particularly those who are mediators, are also following a developing side story relevant to our field. News reports have disclosed some details of the mediated divorce of the perpetrator’s parents and provided comments alleged to have come from the couple’s mediator.  ACR would like to make clear to the public that confidentiality is one of the basic principles of mediation, and that any mediator belonging to an organization, such as ACR, which has approved the Model Standards of Conduct for Mediators, is bound by that standard of confidentiality (http://www.acrnet.org/Educator.aspx?id=971). In addition, ACR endorses both the ACR Ethical Principles and the Model Standards of Practice for Family and Divorce Mediators which state “A family mediator shall maintain the confidentiality of all information acquired in the mediation process, unless the mediator is permitted or required to reveal the information by law or agreement of the participants.”

Each year in the United States, there are thousands of divorcing couples who choose to work together in mediation to find an outcome that is mutually satisfactory. ACR is committed to seeing that they and all mediation clients can be assured that they are protected from breach of confidentiality except where permitted by law or agreement of the parties.

ACR leadership and members continue to offer whatever support and care we can to the community of Newtown, the surrounding area, and the affected families, for whom we grieve.