A commentary on the future of mediation, with special thanks to Pete Seeger for inspiration
A recent discussion among a seasoned group of neutrals about the struggles of the professional mediator caught my eye. Some complained that the trend in litigated cases was to reduce the value of the mediator to a commodity, due to the constraints put on them by the litigants who were not process oriented. Others viewed the responsibility of keeping the process dynamic and interesting on the mediator, the traditional guardian of the process. Whatever the reason, there was a consensus that there is a trend to marginalize the process and the neutral. This quote from an unnamed source summarizes what som [...]
(This is the final part of a keynote address to the YMCA Conference “From Reactions to Relations” in Burton on Trent on 20 November 2014.)
Having considered what we can’t help noticing about our clients and about conflict I now turn to the tricky business of self-knowledge: what has our unique perspective at the heart of other people’s conflict taught us about ourselves?
Once again there are three headings:
1. We ask more questions: not (only) because it’s nice but because it brings more data into the room
2. We resist the “gullibility of cynicism”
3. Most of us are conflict avoiders but some of us like it
1) We ask more questions
Mediators tend to ask a lot of questions. Th [...]
If you haven’t been living under a rock, you may have seen this recent meme in late February that got the internet buzzing with debate. A badly lit photo of a dress spread like wildfire with some people seeing it as white and gold, while others as black and blue. If you haven’t seen it, here is an article explaining the craze and the science behind it. My initial reaction, like many others, was disbelief that so many people could be concerned with something so trivial when we have so many more important problems to discuss. However, I’ve now found a silver lining in this dress that I’d like to share.
One of the typical aspects of a dispute is that disputants often have very different perspe [...]
There is a lot of talk nowadays about the apparent failure of mediation to live up to its potential. Reports published on paper and online, presented before institutions or at various conferences, point to the relatively low number of mediation cases compared to the number of lawsuits filling the logs of the courts and then draw the inevitable conclusion that mediation has missed the opportunity of (be)coming mainstream. Future of mediation is bleak, say a lot of experts, at least as much as there will be no measures taken to mandate the use of mediation prior to filling a lawsuit. Constraining people to choose [...]
A recent survey at a conference in London pointed to very significant differences between users (generally favourable to mediation) and their advisers (whether in house or lawyers in firms, who appeared far more resistant to using mediation). The reasons are no doubt complex and the article published in the Southern California Law Review, How Lawyers’ Intuitions Prolong Litigation, offers some explanations. I have commented on that in the past….http://www.core-solutions.com/blog/cognitive-illusions-hamper-litigation-choices/
In a parallel setting, I have been reading Naomi Klein’s expansive work This Changes Everything: Capitalism v The Climate. She explains that climate change deniers [...]
whereby F=The Future, T=Trust, Q=Quality and I=Information
The Future of mediation hangs on several factors. Probably the most important is Trust.
If mediation is not widely trusted by users, it has a mediocre future. This is simply because mediation depends on the parties, who usually do not trust each other, fully trusting the mediator and the mediation process. Unfortunately, mediation appears to stand some way down the trust stakes.
Low trust can be traced to the belief that mediation is considered a legal process dominated by lawyers who are advocates and mediators. Sadly, there is strong empirical evidence that, worldwide, lawyers are not highly trusted. Mediators and the media [...]
I was all set to write about climate change and, more particularly, to reflect on some excellent writing on that subject which addresses so-called climate change sceptics or deniers. It seems to me that there is much to be learned about the motivations and psychology which affect such people and which can easily be read across to help us understand the resistance that is still so prevalent to mediation.
However, I can keep that blog for next time as the best thing I can do now is to commend a truly excellent new book entitled How to Master Commercial Mediation, authored by David Richbell, one of the real father figures of mediation in Europe, together with 85 other contributors. I confess th [...]
(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 [...]
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 [...]
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 [...]