Category Archives: transformative mediation

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)
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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.

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.

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.