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What Mediators Know (or Can’t Help Noticing) About Conflict

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(This is the second of three parts of a keynote address to the YMCA Conference “From Reactions to Relations” in Burton on Trent on 20 November 2014)

Last month I wrote in this blog about the fact that mediators “can’t help noticing” certain things as a result of the work that we do. We are witnesses to an unusual form of human interaction, in which we have at least two clients with opposing interests. It’s a bit like riding two horses at once. This month I turn to what we can’t help noticing about conflict. In the best tradition there are three.

What Mediators Can’t Help Noticing About Conflict:

1. When conflict escalates – we are not very good at guessing other people’s intentio [...]

Who’s Running The Show?

Something is in the air at the moment. And it goes to the heart of what we mediators do.

On the one hand, noted mediation thinkers such as Robert Bush and Joseph Folger write an empassioned challenge to the profession “Reclaiming Mediation’s Future: Getting Over the Intoxication of Expertise, Re-Focusing on Party Self-Determination”, arguing that mediation has shifted radically away from the party self-determination which is its essence. They maintain that the context in which many mediations take place – the court system – has over-influenced the behaviour of mediators themselves, noting that:

“We were drawn in by the culture of helping, the drug-like “high” of reachin [...]

Small businesses are Big !

Nowadays, more than ever, we live in a relationship-based environment, where networking, information and experience exchange form, among others, very important pillars of large and small organizations. These important concepts have been widely recognized by large corporations and successful small businesses but, unfortunately, there are still some skepticism from some small business segments, especially from self-made entrepreneurs, as some still tend not to trust or seek third party advice. The ability to remain competitive and ahead of competition is more than ever associated to the capacity to fully understand and interact with its nearby environment.

In an attempt to further spread the [...]

Reflecting on mediation as a new year beckons…..

As 2014 comes to an end, it is good to reflect. How privileged many of us are. I often remark to others that my “job” is better than “real work”. What do I mean when I say that?

As mediators, we have an extraordinary window through which we view life, other people and what happens in times of difficulty or distress. It is a vantage point which we need to cherish and respect.

In a period of ten days recently, I worked as a mediator in a number of diverse situations. These, anonymised here, have included an evening with townspeople explaining to a quarry operator their distress about the effects on a community of nearby blasting. I have sought to help a national sports body handle a very sensi [...]

Wanting It Too Much. When to Let the Babies Cry Themselves to Sleep

Imagine a marine layer floating over a coastal town. A family in this town is hopeful that the sun will burn the fog away so they can go to the beach and enjoy the great weather. The day seems to go on forever and the sun never comes out. The family ends up being stuck in their cabin, agitating each other while the parents are trying to figure out what to do with their children who are driving them crazy. The children are totally bored and expect their parents to figure out ways to keep them busy.

Consider the same scene in the mediation room. Lawyers are antsy because there is not enough movement in the negotiation. They refuse to take the mediator’s recommendations or respond in a meanin [...]

What Mediators Know (or Can’t Help Noticing Because of Their Unusual Job)

(This is the first of three parts of a keynote address to the YMCA Conference “From Reactions to Relations” in Burton on Trent on 20 November 2014)

Here’s an interesting phenomenon. When asked to play the part of an adversarial lawyer students have no difficulty. It’s as if the script for this activity is carved into our DNA and reinforced by years of TV dramas. Yet when invited to play the role of mediator they seem both daunted and stuck. A small minority might be termed ‘natural mediators’ but for most of us this is not a usual way of behaving. Our culture doesn’t provide us with a ready model.

I want to reflect on this counterintuitive activity. What, if anything, does [...]

Mediating In The Shower?

Global Legal Post recently carried an article intriguingly entitled “Lawyers find Eureka moments in the shower“. Sadly the article itself lacked the slightly salacious promise of its title. Instead, it focused on the results of a survey of London city lawyers, indicating that those surveyed did their most creative thinking in the shower or commuting (27% in each case). By contrast, only 10% attained their creative peak in the office.

Intuitively, this doesn’t surprise me. There is inevitably (and quite properly) a rigour and a structure to office life. Institutions usually function that way, particularly the larger ones. Perhaps they need to, to avoid chaos.

But everything has [...]

Mediator’s Proposals? A Story…

I have never been a great fan of mediator’s proposals. I took the view that the mediator’s job, done well, was to help the parties to come to a solution themselves. Party autonomy and all that. Achieving a satisfactory outcome, I thought, shouldn’t require a specific suggestion by the mediator.

I have changed my view. As usual, experience is a great teacher. As is improvisation. Here’s what happened. After several hours of to-ing and fro-ing, and with a still significant gap between them, the mediator brought the principals together to meet with him, without their legal advisers (and with the advisers’ permission and encouragement). They talked for a while about their respective claims and [...]

Empirical study on international commercial mediation and conciliation

In a previous post, I shared Professor Stacie Strong’s call for blog readers to respond to her survey on international commercial mediation practice. Thank you to everyone you did.

While the final results are still pending, Prof Strong has released some preliminary results from the study.

The study, which is entitled “Use and Perception of International Commercial Mediation and Conciliation: A Preliminary Report on Issues Relating to the Proposed UNCITRAL Convention on International Commercial Mediation and Conciliation,” was written by Professor S.I. Strong of the University of Missouri and collected detailed data on 34 different questions from 221 respondents from all over the world. Surv [...]

7 Ways to Make Your Next Mediation Successful

On 24th September Kluwer and the International Academy of Mediators (IAM) hosted their inaugural mediation webinar – ‘7 Ways to Make Your Next Mediation Successful’. Attendees joined from all over the world. Don’t worry if you couldn’t attend on the day – we’ve posted the webinar on YouTube, and it can be viewed here.

 

1. PRE-QUALIFY CASE

a. Internal (client) v. External (counsel)

i. What does tomorrow look like if dispute resolved?

ii. Discuss client’s fantasies about case/outcome

iii. Justice?

iv. Rewrite the past?

v. Mourning process

b. Selection of mediator

c. Have mediator talk to other side

d. Identify who is attending from each side

e. What materials might be useful [...]