Conflict Resolution: Mediators Seek to Meet in the Middle

I studied Mediation as part of my Peace Studies program at La Trobe University. It was one of the most useful courses I have undertaken. What it showed me immediately is that when you follow a process with a third party mediator it leads both parties to listen to each other, to list options and find solutions together. In this process you begin to see self responsibility as a result. So many people these days choose court as an option. This predominantly focuses on right and wrong outcomes. What this design does is set up an adversarial situation where both parties seek to win at the expense (literally) of the other. It brings out often the worst in both parties as they find ways to show they are more harmed and deserve higher compensation or that the other deserves severe punishment. It is very destructive to relationships.

All life is about relationship and the sooner we start to enshrine within society a system of conflict resolution at the personal, school, family, organisational and international levels, the sooner we start to take responsibility for finding solutions in peaceful ways to generate productive solutions. We often tell children to work it out with the other child, yet as adults we can seek to harm and display behaviour that is not open to resolving conflict but more focussed on paying back. Therefore, mediation can be a positive process that seeks wise solutions. This is a very powerful role model for children.

I had a short stint in a company of Forensic Accountants who dealt with Family Law matters. I was told to look for a case but found myself scanning over case after case of family disputes where parents were destroying each other. In one case the hatred was so intense that the judge was truly shocked and made some derogatory comment about the parents. When you see children involved, the damage it does is heart wrenching. The parents are so focussed on punishing the other parent, they often use children to do it. It will seldom bring them the satisfaction they think they will gain by hurting the other. This is not love nor a wise solution.

So mediation can become a really powerful approach. Other approaches include – restorative justice (family and mediator sit round and solve problems with victim and offender), circle time to open dialogue, or community based approaches where there are elders or wise people involved. Approaches could be framed from traditional customs, fairness or traditional law. I think the closer we bring conflict resolution to the community the better, to solve the problem at the source so people do not carry the torment of their previous experiences into future relationships. When issues are not resolved it just continues on in other forms, when we live with a sense of community, we own the problems and the solutions. You are welcome to read my posting on community empowerment. I posted a proposal I wrote for Family Lawyers to train the community in conflict resolution at the neighbourhood (suburban) level with the objective of building community responsibility and intervention.

Here is an overview on mediation courtesy of wikipedia.

Mediation, as used in law, is a form of alternative dispute resolution (ADR), is a way of resolving disputes between two or more parties. A third party, the mediator, assists the parties to negotiate their own settlement (facilitative mediation). In some cases, mediators may express a view on what might be a fair or reasonable settlement, generally where all the parties agree that the mediator may do so (evaluative mediation).

Mediation has a structure, timetable and dynamics that “ordinary” negotiation lacks. The process is private and confidential. The presence of a mediator is the key distinguishing feature of the process. There may be no obligation to go to mediation, but in some cases, any settlement agreement signed by the parties to a dispute will be binding on them.

Mediators use various techniques to open, or improve, dialogue between disputants, aiming to help the parties reach an agreement (with concrete effects) on the disputed matter. Much depends on the mediator’s skill and training. The mediator must be wholly impartial. Disputants may use mediation in a variety of disputes, such as commercial, legal, diplomatic, workplace, community and family matters. A third-party representative may contract and mediate between (say) unions and corporations. When a workers’ union goes on strike, a dispute takes place, the parties may agree to a third party to settle a contract or agreement between the union and the corporation.

History of mediation

The activity of mediation in itself appeared in very ancient times. Historians presume early cases in Phoenician commerce (but suppose its use in Babylon, too). The practice developed in Ancient Greece (which knew the non-marital mediator as a proxenetas), then in Roman civilization, (Roman law, starting from Justinian’s Digest of 530 – 533 CE) recognized mediation. The Romans called mediators by a variety of names, including internuncius, medium, intercessor, philantropus, interpolator, conciliator, interlocutor, interpres, and finally mediator.

Some cultures regarded the mediator as a sacred figure, worthy of particular respect; and the role partly overlapped with that of traditional wise men or tribal chief.

Mediation and conciliation

“Conciliation” sometimes serves as an umbrella-term that covers all mediation and facilitative and advisory dispute-resolution processes.[1] Neither process determines an outcome, and both share many similarities. For example, both processes involve a neutral third-party who has no enforcing powers.

One significant difference between conciliation and mediation lies in the fact that conciliators possess expert knowledge of the domain in which they conciliate. The conciliator can make suggestions for settlement terms and can give advice on the subject-matter. Conciliators may also use their role to actively encourage the parties to come to a resolution. In certain types of dispute the conciliator has a duty to provide legal information. This helps any agreement reached to comply with any relevant statutory framework pertaining to the dispute. Therefore conciliation may include an advisory aspect.

Mediation works purely facilitatively: the practitioner has no advisory role. Instead, a mediator seeks to help parties to develop a shared understanding of the conflict and to work toward building a practical and lasting resolution.[2]

Several different styles of mediation exist: evaluative, facilitative, and transformative. Evaluative mediation has somewhat of an advisory role in that its practitioners evaluate the strengths and weaknesses of each side’s argument should they go to court; whereas facilitative mediators and transformative mediators do not do this.

Furthermore, the definitions of mediation used by the different styles of mediation differ in that evaluative mediation has the main drive and goal of settlement, while transformative mediation, in contrast, looks at conflict as a crisis in communication and seeks to help resolve the conflict, thereby allowing people to feel empowered in themselves and better about each other. The agreement that arises from this type of mediation occurs as a natural outcome of the resolution of conflict.

Both mediation and conciliation serve to identify the disputed issues and to generate options that help disputants reach a mutually-satisfactory resolution. They both offer relatively flexible processes; and any settlement reached should have the agreement of all parties. This contrasts with litigation, which normally settles the dispute in favour of the party with the strongest legal argument. In-between the two operates collaborative law, which uses a facilitative process where each party has counsel.

Mediation and Counselling

A counsellor generally uses therapeutic techniques. Some – such as a particular line of questioning – may be useful in mediation. But the role of the counsellor differs from the role of the mediator. The list below is not exhaustive but it gives an indication of important distinctions between the work of mediators and counsellors.

* A mediator aims to for clear agreement between the participants as to how they will deal with specific issues. A counsellor is more concerned with the parties gaining a better self-understanding of their individual behaviour

* A mediator, while acknowledging a person’s feelings, does not explore them in any depth. A counsellor is fundamentally concerned about how people feel about a range of relevant experiences

* A mediator is focused upon how people would like to see things in the future rather than a detailed analysis of past events. A counsellor may find it necessary to explore a person’s past in detail to bring out into the open the origins and the patterns of a person’s beliefs and behaviour

* A mediator controls the process but does not overtly try to influence the participants or the actual outcome. A counsellor often takes an intentional role in the process, seeking to influence the parties to move in a particular direction or look at certain issues

* A mediator relies on both parties being present so they can negotiate, usually face-to-face. A counsellor does not necessarily see both parties at the same time.

* A mediator is required to be neutral. A counsellor may play a more supportive role, where appropriate.

* Mediation requires both parties to be willing to negotiate. Counselling may work with one party even if the other is not ready or willing for change.

* Mediation is a structured process that is usually restricted to one or a few sessions. Counselling tends to be more ongoing, depending upon a person’s needs and progress.

http://www.crnhq.org/pages.php?pID=12#skill_2

The Conflict Resolution Network discusses Mediators as follows:

Attitudes for mediators

These attitudes are relevant whenever you want to advise, in a conflict which is not your own. It may be a friend telling you about a problem on the telephone. It may an informal chat with both conflicting people. It may be a formally organised mediation session.

* Be objective – validate both sides, even if privately you prefer one point of view, or even when only one party is present.

* Be supportive – use caring language. Provide a non-threatening learning environment, where people will feel safe to open up.

* No judging – actively discourage judgements as to who was right and who was wrong. Don’t ask “Why did you?” Ask “What happened?” and “How did you feel?”

* Steer process, not content – use astute questioning. Encouraging suggestions from participants. Resist advising. If your suggestions are really needed, offer as options not directives.

* Win/win – work towards wins for both sides. Turn opponents into problem-solving partners.

Mediation Methods

Use the simple, yet effective rules from the “Fighting Fair” poster.

* Define your mediator role as there to support both people “winning”.

* Get agreement from both people about a basic willingness to fix the problem.

* Let each person say what the problem is for them. Check back that the other person has actually understood them.

* Guide the conversation towards a joint problem solving approach and away from personal attack.

* Encourage them to look for answers where everybody gets what they need.

* Redirect “Fouls” (Name Calling, Put Downs, Sneering, Blaming, Threats, Bringing up the Past, Making Excuses, Not Listening, Getting Even). Where possible you reframe the negative statement into a neutral description of a legitimate present time concern.

Steps in Mediation

Open Introductions and agreements Warm up, explanations, agenda if known.

Establish

1. Overview: What is the matter? Each person to express their view of the conflict, the issues and their feelings.

2. Details: What is involved? More details. Map needs and concerns. Clarify misperceptions. Identify other relevant issues. Mirroring if needed.

Move:

1. Where are they now? Identify areas of agreement. Encourage willingness to move forward. Caucus if needed.

2. Negotiation: Focus on future action. How would they like it to be?

What would that take? Develop options. Trading – build wins for everyone.

Close Completion: Contracting. Plans for the future, including appointed time to review agreement.

Closing statements.