Mediation 3.0

by James South

27/03/2020

Mediator skill set expansion

Introduction

In his book Beyond Neutrality Bernie Meyer, Professor of Dispute Resolution at Creighton University and Founder of CDR Associates, examined why traditional conflict resolution has not quite lived up to its potential to address conflict in a profound and powerful way.  He concluded:

“We can realise the opportunity if we can move beyond neutrality and see our roles in conflict as far broader than that of dispute resolvers. Our challenge is to change our focus from conflict resolution to constructive conflict engagement and, accordingly change our view of ourselves from neutral conflict resolvers to conflict engagement specialists. If we do this, we can become a more powerful and accepted force for changing the way conflict is conducted.

This does not mean abandoning the old roles, rather it means building on them and dramatically expanding what we offer people in conflict.”

This quote is even more relevant today during the Covid-19 crisis, with the ‘new normal’ forced on us by the quarantine arrangements pushing conflict specialist to consider how our profession and skill set can contribute to society in more creative way.

CEDR has always been at the forefront of pushing the boundaries of the use of mediation and taking the mediator skill set into new areas.   In recent years we have begun to see the green shoots of Bernie Meyer’s vision emerging with mediators deploying their skills in a much wider range of areas than the commercial litigation arena.  In particular we are seeing signs of more creative and flexible use of language being used to describe the mediation process and the role of the mediator; more flexibility in the design and application of the process to meet the needs of the parties; and new areas opening up for the deployment of the mediator skills set as there is desire from mediators and clients to move away from the ‘commoditised’ 1-day mediation process.  In essence we feel that our field is beginning to move into its third stage of development, shifting from its  ‘forming’ and ‘norming’ stage of a developed commoditised service to a new phase of ‘storming’ where we will see the creative expansion of the application of the skill set of a mediator – This stage of development we are terming Mediation 3.0.

In order to get a greater understanding of the early trends in Mediation 3.0 the CEDR Foundation conducted, before the current crisis, an international survey of mediators to explore these very questions. We had over 80 replies from 24 different countries with a third being women and two thirds men. All were practising mediators with the majority having mediated 50 or more cases. 71% were lawyers with 29% non-lawyers. As such, the respondents were a representative group of experienced mediators

From the responses to the survey we began to see a few trends emerging.

The Evolution of the Language of Commercial Mediation

When asked about the process and language used by mediators in the commercial mediation space respondents confirmed that the application of the traditional 1-day model and standard mediation terms was still very prevalent.  This is unsurprising given that mediators have spent years developing this model and gaining acceptance for it from their clients, and thus, the use of this model is now what is expected of them when they operate.

However, there are some areas of evolution emerging, particularly in relation to the language used to describe parts of the process.

The term ‘Caucus’ is now clearly out of favour, with the vast majority of mediators using the terms ‘Private Meeting’ or ‘Private Session’ instead. The reasons given in essence was to avoid jargon and use terms that are more easily understood by the parties.

Even with that most crucial concept of mediation ‘Confidential’, mediators are also showing more flexibility in using the term.  When referring particularly to private meetings many mediators said they preferred the term ‘Private’, again because it had more resonance with parties.

Finally, the term ‘Neutral’ to describe our role as mediators, has by some mediators, including me, been replaced with ‘Impartial’.  However, it should be noted that often mediators continue to use the two terms interchangeably, even though in process and role terms they are not the same thing. Impartiality refers to the attitude of the intervenor and is an unbiased opinion or lack of preference in favor of one or more of the Negotiators. Neutrality, on the other hand, refers to the behaviour or relationship between the intervenor and the disputants, in that the mediator has no form of relationship with either disputant[1].

Expanding use of the mediator skill set

Responses to the Questionnaire confirms a definite trend we are seeing at CEDR – the use of the mediator skill set in areas outside the traditional commercial dispute resolution space, but still broadly within the civil sphere.

When mediators were asked in what areas outside of commercial litigation disputes, they were using the mediation process and skill set some thought-provoking trends emerged.

Unsurprisingly there are a number of mediators involved in workplace and industrial relations disputes, working with the skill set of mediation but not necessarily in a formal “mediation”. 60%  of the respondents had used the skills in these disputes.  . In addition, 15% of mediators have been involved in resolving environmental disputes.  Both of these types of disputes can be seen to be off-shoots of traditional civil litigation.

However, there are two new areas where we have seen significant expansion in the use of the mediator skill set to resolve them.   These are Human rights and peace-making work (25% combined) and in Board and Leadership issues with 64% of mediators having used the skills in this area.

Again this trend is consistent with CEDR’s own work and recent experience.   In relation to board and leadership issues we have been increasingly involved in the last five years in Board and leadership training events, resolution of leadership level conflicts and conflict coaching for CEO and Chairs of Boards.  We have also carried out facilitation of board and executive strategy workshops, particularly where there has been a breakdown in relationships between the Executive and the Board.

In relation to human rights and peace-making, Dr Karl Mackie, CEDR’s Founder President has been working on a CEDR Foundation project with law firms, business and human rights organisations on the interface between human rights and the business community and the possible use of conflict resolution skills to resolve conflict in this arena.  Susanne Schuler, CEDR’s Director of Training and Consultancy has been instrumental in developing and delivering an International Conflict Mediation and Peace-making course for those involved in this field to benefit from the use of the mediator skill set.

But it’s not only in these two burgeoning areas where we are seeing the creative use of the process and skills. 40% of respondents indicated use of the mediator skill set in diverse areas beyond the traditional lens as a tool in commercial litigation disputes.  Mediators reported using it in fields as diverse as surrogacy, government and politics, international family disputes, primary care conciliation, planning and zoning, and church disputes.

What this all shows is that the possibilities for the use of the mediator skill set in modern society continues to expand. Mediators and conflict resolution professionals should be encouraged to think more broadly about how they can deploy the skills they have learned in the traditional mediation space into areas where they can add value to society and present new areas of opportunity for the conflict resolution practitioners themselves.

New frontiers require new language and a flexible process

While the opportunities for using our skill-set as conflict resolvers continue to expand, what is clear from the survey responses is that the traditional language of the mediation process and the mediator role does not fit well into these expanded areas.

As our survey shows, conflict resolvers have had to be more flexible with their use of language to adapt it to the particular context within which they are working outside the traditional commercial litigation space.

For example, in the workplace space, 79% of mediators have avoided the use of the term ‘mediation’ or ‘mediator’ when describing the process or role being undertaking on behalf of the parties. Alternatives to describe the process vary from ‘group development session’ to ‘facilitated conversations’ to merely ‘helping with the conversation’.  At the same time, mediators have changed the way of describing their role, ranging from the more traditional ‘conciliator’ to ‘facilitator’, ‘sounding board’ or ‘independent third-party’.

The same trend is clear in relation to board and leadership issues where 62% of mediators use their own terms to describe the process and the role they are engaging in. For the process these terms included ‘facilitated conversations’, ‘independent chairing’, ‘consensus building’, and ‘strategy discussions’, while the role was described variously as ‘facilitator’, ‘consultant in conflict management’, ‘independent chair’ and ‘senior statesman’.

What is clear is that the use of the word mediation and mediator in both these contexts is often unhelpful.  Instead practical language that more clearly resonates with the parties and issues being addressed is often deployed by the conflict resolution professional.

In relation to the process used in these areas, responses indicated that conflict resolvers working in these new areas used their process skills in a much more flexible way than the traditional process model for commercial mediation. These included options such as having more preliminary meetings, or no private sessions, to using half day/full day workshop approaches.  The most common method was to have a wholly bespoke process design in order to facilitate a process that suited the particular needs of the issues they were dealing with.

Finally, as this current Covid Crisis is showing, conflict practitioners can respond very quickly to adapt their process to deliver via online platforms rather than face-to-face. There as bene a long-standing resistance by many mediators to using technology to deliver our services who are ow through necessity having to do so, and realising how effective it can be. I predict that this crisis will result in a seismic shift in the adoption of technology to deliver conflict resolution services in the future.

What next?

Two of CEDR’s values are Transformation and Humanity  and as we move past the current crisis we will continue to look at how we as an organisation along with our mediators, trainers and other conflict specialists transform our services to open up new areas for the application of our expertise as conflict engagement specialists for the benefit of society and in order to have an even greater impact for Humanity.   What the responses to this questionnaire and the current coronavirus situation show is that conflict resolvers are ready to come on this journey with us. They are already beginning to see the possibilities of using their skill set in much wider areas than traditional commercial resolution They are being creative about the way they design, describe and deliver the process and their role.

Necessity really is the mother of invention!

 

If you are interested in finding out more about CEDR’s Foundation work, please follow the link https://www.cedr.com/foundation/ or contact foundation@cedr.com

[1] Moore in ‘Mediation Process: Practical Strategies for Resolving Conflict’, Jossey- Bass, 1986 San Francisco.

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