This Week In Mediation

Mediation News - This Week In Mediation - Episode 4

Posted by Aled Davies on 08-Nov-2016 14:33:54
Aled Davies

In this week's episode of This Week In Mediation, presented by Professor Nadja Alexander and Aled Davies, we learn about Bundesverband Mediation - the National Mediation Association of Germany and highlights from their annual congress in Dresden. We look at new and emerging mediation models. The conference also focused on the role of mediation in relation to political themes such as migration and integration. One interesting initiative that is proving to be very successful involves enrolling members of the migrant community on a one and  half year mediation training programme. Discover why it's such a successful initiative and how they increase engagement in the mediation process.

For our final piece of mediation news we travel across the pond to analyse a decision from the Appeal Court of Massachusetts which held that mediation remains confidential even if the parties have been up to all sorts of shenanigans!  All this and more coming up in the show.

undefined

We'd love to hear your comments and questions so get the debate going there's a comments section directly underneath the video.

Topics: Mediation News

 

Mediation News TWIM 4 - The Full Transcript 

Aled Davies:

Hi, I'm Aled Davies and welcome to Mediator Academy's round-up of mediation news from around the world. As always we try and be informative, illuminating and, if we can help it, a little outrageous. Welcome to this week in mediation. My co-presenter is Professor Nadja Alexander. Nadja, how are you doing?

Nadja Alexander:

Very well, thank you. Nice to see you again this week, Aled.

Aled Davies:

Lovely to see you too. What have we got coming up on the show today?

Nadja Alexander:

Well, today we're going to explore the highlights of the Annual Mediation Conference in Dresden and, in particular, we're going to look at some new approaches to mediation and some different mediation models and the theme of mediation and migration.

Aled Davies:

Okay.

Nadja Alexander:

Then we're going to, as you like to say, Aled, we're going to go across the pond to the United States and look at a decision of the Massachusetts appeal court which held that mediation remains absolutely confidential even in the case of fraud; that is even when somebody allegedly engages in fraudulent behavior in mediation. Now that's interesting.

Aled Davies:

That does sound interesting. All right, well before we get into the show I just wanted to have a little word, a little private word, with our viewers. As you're watching this show we want to encourage you to get involved in the discussions, get the conversation going. We've shifted the comments section directly underneath the video so as you're watching the show, please do type in your questions, comments, reactions, thoughts, get the discussion ... Even if it's just to say thank you to our guest presenters, we want you to write your comments in the box below. Don't hold back, don't be shy, get stuck in.

 

Now let's get on with the show. Nadja, you've been to Dresden, home of porcelain, home of beermats, and also the bra, I believe, but there's been something else going on there. Tell us what's been going on in Dresden.

Nadja Alexander:

Well, there has indeed been something else going on in Dresden, and that was the National German Mediation Association's Annual Congress. That association is called the Bundesverband Mediation; they held their annual conference last week in Dresden and the main themes were around mediation diversity.

Aled Davies:

Okay. It doesn't sound particularly news, but tell me more.

Nadja Alexander:

Well, yes and no. It's interesting because mediation's always been about balancing diversity and consistency. While I think in past years we've seen around the world more and more people embracing diverse models and diverse approaches to mediation, the Germans have been pretty good at the consistency theme. Perhaps it's a bit provocative but I'll go out on a limb and say it, that as a generalization I think that the Germans have taken, or the German speaking world has taken, a fairly dogmatic approach to what is mediation and what is not mediation. They have, to be fair, a very, very thorough training and accreditation program which can span anywhere from one to several years compared to a 40 hour course, so their ideas about what a mediation are, are very fixed. The fact that the theme was diversity in mediation for the conference, to me signals a shift in the way the German speaking world are at least starting to think about mediation practice.

Aled Davies:

Okay. Well, say a little bit more about what was going on there specifically then.

Nadja Alexander:

Well, there were two different themes, if you like. One was around mediation models and approaches, and the other one was around applications of mediation to different fields. With relation to the first one people looked at different approaches, for example, solution focused therapy as a basis for solution focused techniques in mediation. People also looked at different types of transformative orientations to mediation, and also looked at the role of coaching, for example, and coaching models combined with mediation applications.

Aled Davies:

Okay. Say a little bit more about the solution focused stuff. What's all that about?

Nadja Alexander:

Well, I went to a great workshop with a lady called Rita [Vujnovich 00:04:28] and she talked about ... She's been integrating solution focused techniques into her practice for the last few years. She said ... Someone else right up front, which I thought was great. If you're solution focused, does that mean you ignore the problem, because we're problem solving mediators, and she said no, not at all. In fact, in solution focused you embrace the problem in its entirety, but you do it in a very different way.

 

Often we link problem solving to the solution, but she explains that in the solution focused technique, problem thinking and solution thinking are separate; your solution doesn't have to be linked to the problem. If we separate those, and we can start thinking of the solution from the beginning, the sort of commercial relationship we want to have, the way we would like to see the world after this dispute had been sorted out, then we can start to put together the pieces of our current world and of the problem world. We can start to make a jigsaw puzzle that starts to create our solution world. It's about separating problem thinking and solution thinking because there's different patterns involved in those.

Aled Davies:

Okay. You managed to have a brief interview with Rita, you also interviewed a gentleman called Tilman. Tell us what Tilman was doing out there.

Nadja Alexander:

Indeed, Tilman Metzger, I had a chat with Tilman. Tilman ran a world café workshop, and for those who might be familiar with world cafes, it's a particular type of facilitation style where we all sit around with cups of coffee and biscuits and, of course, there's a specific technique to mixing people in the room and getting people into really rich, meaningful dialog. Tilman organized a world café around an arguably new mediation model. I say arguably because there are very different views on this in Germany. The model is called in German Klarungshilfe. I don't know what the perfect English translation would be, but literally it means helping you to get clarity in a difficult conversation.

 

Essentially, if you're watching the video with Tilman and also with Rita, they'll explain these things in more detail, but my take from it was it's like the transformative mediation we may know from Bush and Folger, for example. It also has a transformative orientation, but there it has much stronger and robust intervention models.

Aled Davies:

Like transformative mediation with teeth.

Nadja Alexander:

Well, yeah, maybe transformative mediation with teeth. In fact, your mediators can be more interventionist, but what they are trying to create is a space for dialog and for empowerment, with a focus on how the parties are relating to each other and to enable the parties to be able to shift perspectives. They're working at the same level as your transformative mediation model but it's a different technique. In fact, Joe Folger was also at the conference talking about his transformative mediation model.

 

One of the interesting things for me is, and this is just my own personal reflection, is that I really think that in the Anglo world when we talk about facilitative mediation we mean one thing, and yet in other cultures they apply that facilitative model quite differently. Many people at the conference when they were listening to Joe Folger, for example, and also when they were listening to Tilman about the Klarungshilfe was, yeah, that's really great and I do a lot of that already in my facilitative approach.

 

You talk about that sometimes, Aled, when you talk about ... What is it? Theory in ...

Aled Davies:

Yeah, so the difference between one's espoused theories, or what you say you do, with the theory in use is what actually shows up when you're mediating and quite often there is a ... Well, for everyone, there's a gap between what you say you do and what you actually do. The more effective you can be as a practitioner, the more effective you can be at closing the gap and recognizing when there are inconsistencies between your theory in use and your espoused theory. The idea being that you can just practice more consistent with what the correct theory is rather than let all your bias and all your conditioning determine the intervention that you make.

Nadja Alexander:

Yeah, and I think the labels we use to describe the mediation practice are useful but they can also be misleading because of what you talk about, because of this gap that you talk about. I think that's a topic for another episode.

Aled Davies:

Definitely. Tell us a bit more about what else was going on out in Dresden.

Nadja Alexander:

Well, there was a significant focus on the role of mediation in relation to political themes such as migration and integration. These, of course, are pressing themes in Europe and especially in Germany at this time.

Aled Davies:

It sounds like a bit like the type of policy mediation we were discussing last week in relation to Malaysia and religious tensions, or not?

Nadja Alexander:

Well, that's definitely part of it. When we were talking about the Malaysian example and the religious tensions within Malaysia and the potential use of mediation there, there definitely were some presentations that were around work going on in that sphere in Germany. There were also projects operating at a very individual level in relation to migration and refugees.

 

First of all just one general statement, and then I'll give you a specific example. I thought it was strangely fitting that the conference was in Dresden because although Dresden is known for many things, and you can name some of them and, of course, the famous Frauenkirche, a famous church in Dresden, it's also becoming very famous for Pegida, which is a strong anti-migration movement in Germany. The fact that we were talking about these themes in Dresden wasn't lost on anyone at the meeting.

 

I spoke to one person in particular, Lutz Netzig, who's mediator from Hanover in Germany, and he was talking about work he's been doing for the past five years. It's a specific project whereby they have a foundation, a fund of money, to pay for people with a migrant background, they can be refugees or other migrants, to do a one and a half year mediation training course that's all paid for.

Aled Davies:

Aah! A migrant mediation training course.

Nadja Alexander:

The deal is that they have to offer their services on a volunteer basis through their mediation center in Hanover. He said that the success rate in terms of outcomes has always been high, it's been around 90% for their center, and it's stayed at around 90%. What's different, and this was fascinating, is the type of people and the type of cases that they are now able to attract mediation. They're able to move mediation into an entirely new space. For example, if you're in a refugee home, the last thing that you're going to think about is going to some German mediation center where two Germans ... They use a co-mediation model, where you've got two traditional Germans who don't speak your language, who don't understand your culture, offering you a mediation.

 

It's really different if there's somebody from your own culture who speaks your mother tongue who can reach out to you just in the time of contact, for the intake process, and then in the mediation ...

Aled Davies:

Lovely.

Nadja Alexander:

There's home mediate, with one person from a migration background, one person from a traditional German background, and they don't have any translators; they work in two languages in the mediation.

Aled Davies:

Goodness. That sounds very interesting. We've got this video with Lutz in German I believe. 

Nadja Alexander:

It's in German, but don't worry, you don't need to learn German quickly, although if you want to have your dictionary with you, that's fine, because Lutz answers in German, but then I summarize as best I can his answers into English, so just hang in there throughout the interview.

Aled Davies:

Okay. Well, as you know, Nadja, I'm fluent in German, so moving on ... 

Nadja Alexander:

You'll have to get out your dictionaries, I'm not going to tell anyone what that means, if you don't know already.

 

Aled Davies:

Question of the week, right? what does it mean? Right, let's move on.

 

We're now heading across the pond, as I like to say, but of course we're not going to be talking about the big event that's happening today, the election. Tell me about the case from Massachusetts.

Nadja Alexander:

Well, this is a fascinating case. Do you remember, Aled, in episode two we talked about what I thought was a very sad case, about three brothers and the online gaming business that they were fighting about?

Aled Davies:

Yes, I think I do. The English court of appeal case which talked about exceptions to mediation confidentiality like blackmail and fraud, that one?

Nadja Alexander:

Exactly. Exactly that case.

Aled Davies:

Got you, okay.

Nadja Alexander:

We've got a decision from the Massachusetts appeal court that is the absolute opposite.

Aled Davies:

That there are no exceptions to confidentiality.

Nadja Alexander:

Precisely. The case is ZVI Construction Co and Levy and as usual viewers will find citation in the references to this week's show. Here's the story: it's a construction case and the general contractors sued the project owner for money that he said was owed to him. They went to mediation and they settled for a sum of money but then it didn't quite work out so easily as you might have thought. The mediated settlement agreement itself provided that the owner would pay the money, $250,000, when he had received payment from a third party. Basically the owner was having money problems, said, I've got money owed to me by a third guy, when I get that I'll pass it on to my lawyer, and my lawyer will give it to you. "To you" means the general contractor. That was the deal.

 

What actually happened was that the third party did pay the money, paid it to the owner's lawyer, but instead of the owner's lawyer paying the general contractor as per the mediated settlement agreement, the owner's lawyer paid a number of other creditors, and paid himself too.

Aled Davies:

Ooh!

Nadja Alexander:

I know. Shortly after that the owner filed for bankruptcy, so there was no more money to be got from the owner. The contractor then brought an action against the owner's lawyer; this wasn't against the owner, but against the lawyer, and the lawyer who was in the mediation was fraudulent and had engaged in unfair trade practices, et cetera. This case was filed but then the lawyer went to the court and said, please, can you just strike out this case because the only evidence that they want to rely on is evidence that they say occurred in the mediation, and of course we all know the mediation is confidential and that's what our mediation agreement, our agreement to mediate, says.

 

The court, the superior court first, looked at the mediation agreement, the terms of that, and said, you're absolutely right, it says that this is confidential and it doesn't say with the exception for cases of fraud, so you're right, we can't take any evidence into account and so we'll dismiss the case.

Aled Davies:

Outrageous!

Nadja Alexander:

Interesting, right? Then it goes on appeal to the appeal court, and the appeal court said, yeah, well, we think that's right and we'll even go so far as we'll look at the relevant statutes. That's right according to the agreement, but if we look at the relevant statutes about mediation confidentiality in this state, they also don't set out any exceptions and no exceptions for fraud, so actually we agree with the superior court and the matter is struck out. Go on.

Aled Davies:

Hold on, if I get this straight, basically you can do whatever you like in Massachusetts mediation and get away with it. Is that what it's saying?

Nadja Alexander:

It would seem so.

Aled Davies:

Okay.

Nadja Alexander:

Maybe this is a dangerous precedent and I think what was even scarier for me was that the court said that it had looked at the other relevant case law in the jurisdiction and that the other case law was consistent and said the same thing. Now it might be that on a strict legal interpretation, I haven't gone into this in any depth, I just had a look at the case, but on a strict legal interpretation of the agreement and of the legislation, maybe technically that's the right decision. If that is, then I think someone's got to think about changing the law. To my mind it only encourages people to behave badly in mediation. If the veil of confidentiality can hide all sorts of undesirable, unethical, illegal behavior, how is that going to help develop the field and give people faith in the mediation process?

Aled Davies:

Exactly. Who would be incentivized to choose a jurisdiction where that existed? I guess it might be a good question actually for our audience. Do you think that confidentiality is sacrosanct? That it shouldn't be interfered with? Or do you think there should be some exceptions to the rule of confidentiality in mediation? I think that's a good question.

Nadja Alexander:

I think it's a great question.

Aled Davies:

Yeah. Having said that, it probably is a useful law for people who want to negotiate a little bit below the belt.

Nadja Alexander:

Ah, now who might that be?

Aled Davies:

Well, on the topic of belts, it's a big day today with the US election race as tight as the waistband on my trousers after a hearty Sunday roast dinner which I had on the weekend. No one knows which way it could go. All we do know is that if it doesn't go in favor of a particular candidate then there's a chance that they might challenge the result, and maybe they'll choose to do this behind closed doors in Massachusetts, Nadja.

Nadja Alexander:

It's a distinct possibility, Aled.

Aled Davies:

All right. Well, that's all we've got for this week's mediation news. Remember if you're watching this now, you've got a question, you've got a comment, you've got a reaction, you think we've said something outrageous, stick it in the box below the video. We'll read every one and we'll respond to every sensible one, and also every crazy one. Look forward to seeing you all next week. All that's left for me to say, Nadja, is it's a very goodbye from Mediator Academy's headquarters studio in London.

Nadja Alexander:

It's goodbye from me from Mediator Academy's studio in Dresden.

Aled Davies:

See you next week, everyone.

Want blistering hot-off-the-press Mediation News?

Look no further...

Subscribe to This Week In Mediation to get the very latest, hot off the press mediation news from the around the globe (in fact it's so hot it hasn't even hit the press yet and if it had it would have burnt a hole right through it).

You'll get up to date and in depth news and commentary on: 

  • Trends in mediation
  • Landmark cases
  • Mediation regulation
  • Latest research
  • Conference news
  • How to bake excellent cookies (essential)

Get All the Shows