This Week In Mediation

Mediation News - This Week In Mediation - Episode 6

Posted by Aled Davies on 27-Nov-2016 15:23:22
Aled Davies

In this week's video episode of This Week In Mediation, presented by Professor Nadja Alexander and Aled Davies, we report from the 6th Paris biennial on negotiation. We debate the future of the opening session and joint sessions and we look at a new form of mediation sweeping the globe. All this and much more in the mediation news this week.

 

We'd love to hear your comments and questions so get the debate going. There's a comments section directly underneath the video, if anything you can just say thank you to our guests for their generosity.

Topics: Mediation News

 

Mediation News TWIM 6 - The Full Transcript 

Nadja:

I'm Nadja Alexander and welcome to Mediator Academy's roundup of mediation news from around the globe. As usual, we'll try to be as informative and illuminating as possible. We might even be a little outrageous. This week we're reporting from Paris where I've been attending the 6th international biennial on negotiation. More on that later. Together with my co-presenter, Aled Davies, we'll also be sharing other exciting news from around the world with you on This Week in Mediation. Welcome to the show.

Aled:

Hi, everyone. From Mediator Academy's HQ in London, let me tell you what we've got coming up in the show this week. Of course as Nadja was in Paris, we'll be covering the 6th international biennial on negotiation. We'll be looking at the fate of the opening statement in mediation and, ladies and gentlemen, we'll be covering a new form of mediation that is sweeping the globe. This is the opportunity, the hockey stick growth in the adoption of mediation that every mediator has been waiting for. Tune in for that later on in the show.

 

First, I just wanted to say a huge thank you to those of you that have posted comments. We finally managed to resolve the comment issue. We've now got a solid, stable platform that will mean you can add your comments, you can comment on other peoples' comments, and you can continue to learn. You'll also notice that if you're watching this show you've progressed beyond the little turnstile that we put in at the beginning of the show. Now, we want to capture your details. Not because we want to spam you or send you marketing information, but we want to find out a bit more about what you think of the show.

 

I think this is the 6th show that we've done in a row. What do you think? Is it useful? Is it worth getting out bed for in the morning? If it isn't, what would make it useful? What would we be worth getting out of the ... Apart from looking at Nadja and myself and listening to our dulcet tones, we want this to be useful. We want you to wake up in the morning thinking, "I must tune into This Week in Mediation."

 

You'll be getting a little email with some questions. You can drag that email into your delete box and be the few that won't open it. That's fine, or you can be like the majority and click on the open button and just answer a couple of questions. That's all we ask. Okay, let's get on with the show. Now then, back to Nadja in the studio. Let's find out what was happening in Paris last week.

Nadja:

Well, Aled, as usual there was a lot happening in Paris last week. One of the more interesting things was the 6th international biennial on negotiation where they call mediation N3.

Aled:

N3? Is that Nadja3? Have they named it after you?

Nadja:

No, I wish. Not quite. It's like this. N2 is negotiation, 2 parties involved. N3 with a 3rd party mediator is mediation. You can keep going on and on and on. N10, for example, would be multi-party mediation.

Aled:

Okay.

Nadja:

Negotiation, I guess. Yes. It's all in Ns. It just grows exponentially.

Aled:

Don't you worry, but it doesn't sound like it was the regular ADR crowd there.

Nadja:

No. Well, no. There were some of the usual suspects, but a lot of other faces. Experts in diplomatic negotiation, hostage negotiation, negotiation with terrorists, nuclear negotiations, and an emerging theme of complexity theory in negotiation and multi-polarity of the world as it's becoming today.

Aled:

The multi-polarity? I could just about say that.

Nadja:

Well, at least you can say that. Well, Carrie Menkel Meadow was there among others. In her presentation she made an interesting comment. She commented on the fact that negotiation theory seemed to reflect the zeitgeist in which they emerge. For example, distributive bargaining was very big during the Cold War.

Aled:

Okay.

Nadja:

Right? Zero sum gain.

Aled:

Yep.

Nadja:

Inter space bargaining.

Aled:

Yeah. 

Nadja:

Emerged and became popular sort of during perestroika at the end of the Cold War and the beginning of ... Around the 1980s. Now we are in a new complicated and complex era.

Aled:

The complexification theory. The complexity theory. 

Nadja:

Yeah, complexity, systems thinking. There were quite a few presentations on that and how that informs negotiation, and also mediation. 

Aled:

Okay. What were the major themes for mediators then? 

Nadja:

Well, one of the big themes for the mediation part of this biennial was about the market for mediators. There was one interesting panel from the US. Michael Moffitt gave a paper with commentators Andrea Snyder, Chris Honeyman, and Kaufman. They basically talked about the fact that we know surprisingly little about the market for mediators. For example, who hires mediators? What do people think they are buying when they hire mediators? Who do they hire as mediators? Etc. etc. Lots of questions and very few answers. 

Aled:

Now, this sounds like a bit of a recurring theme. We had Michael McIlwraith I think was it the 2nd show that we did? 

Nadja:

It was. It was. 

Aled:

I mean, that's the whole purpose of the Global Pound Conference, right? Is to try to address this whole issue but do it on a global scale. 

Nadja:

Yeah, exactly. Exactly. It's not necessarily easy to get a lot of information about mediation because one of the reasons that we seem to know so little about the market has to do with the nature of mediation. Its confidentiality, its informality, its variable relationship with the state and with the courts, with institutional players.

 

We talked around these themes and Michael Moffitt in his paper offered a whole lot of different images of what people think they are buying when they hire a mediator. He talked about people buying expertise or status, people buying efficiency in dispute settlement, or people buying wisdom. Someone to run the numbers for them or people wanting someone with resources, for example, in political mediation. People buying access to a mediator's networks or people hiring mediators because they make us feel god about ourselves, right? We're not doing so bad, in fact, as we might think we are.

Aled:

When I compare myself to that mediator, thank god. Life could be a lot worse if I was like that mediator, right?

Nadja:

There were a whole lot of reasons. Mediators as go-betweens, mediators because they teach us stuff. That just makes it very hard to get a handle on the market.

Aled:

Yeah. Do you think it's the same everywhere in Europe?

Nadja:

Well, I think it's a challenge. The market is a challenge everywhere in the world. At the same time, I think the mediation field in civil law Europe looks a bit different from the market in the US.

Aled:

How so?

Nadja:

Well, I think in many or most of civil law countries in Europe you've got a more I guess coherent registry framework. Most civil law countries in Europe have a general fairly comprehensive law on mediation, which regulates different aspects of mediation. It's more structured, more unified. In a lot of common law countries, particularly in the US, there's enormous diversification. A lot of sort of very different regulations in different segments, sector-specific regulation, and informal and formal. It's hard to get a handle on what's happening in the US because it's different everywhere.

 

Also in Europe the ... In civil law Europe, the training model is generally very different. It's strongly facilitative, even transformative as the dominant training model. In many countries there's a no caucus training model, so people are trained. They usually do anywhere between 100 and 350 hours of training. The training is more thorough. The assessment is more rigorous. Yeah, often they're taught to have no private sessions, or very limited private sessions.

 

This actually came up in the discussions because the panel of American commentators were lamenting the fact that there seems to be a drift away from the opening session in the US and a drift away from joint sessions, a move towards shuttle and keeping the parties separated the whole time.

Aled:

I want to come onto an article from the Connecticut Law Tribune just in a moment. I mean, I wonder, you talked earlier about the trend in negotiation being particular to a period of time based on what's going on politically, socioeconomically- ... All of that. I wonder if there's a ... If the same is happening mediation. Don't know. Just going to throw it out there.

Nadja:

Well, maybe that could be a question for our viewers.

Aled:

Oh. The question. Let's formulate that question, Nadja, coherently. The question is ... I'll have a pop of the question. Do you think that the development in mediation models is a reflection of what's going on around us in the world or is it an evolution development, or is it something else? What do you think is contributing to the evolution development of different mediation models? There we are. That's the question. Moving on. What do you think of that, by the way, Nadja? 

Nadja:

I think it's a good question. I think it's a great question. It really picks up some of the different themes and the diversity in the field. Jeff Sharp actually when he was ... I think it was in the Kluwer mediation blog a while ago wrote a piece talking about the Californication of mediation. What he was in fact talking about was this trend towards shuttle mediation coming out of California at the time. 

Aled:

Okay. 

Nadja:

It seems to be around different places in the US as well. The interesting thing is that it doesn't seem to be a trend, at least in civil law Europe. 

Aled:

Right. Okay. Yeah, well, let me come back to this article that was in the Connecticut Law Tribune, which relates a little bit to what you were saying earlier about the trend towards shuttle. It refers to a study suggesting that despite the early conventional wisdom that it was essential to mediation since it enabled both parties to come face to face and agree on certain procedure rules as more and more mediations took place. 

 

It was observed that letting the parties meet each other and make their claims in the other's presence at the outset itself could lead to feelings of discontent, which would not be conducive to the proceedings. Further studies conducted have shown that the use of the joint session has now greatly reduced. What do you think, Nadja? Will shuttle take over the world? 

Nadja:

Well, I think we're witnessing a growing recognition of diverse mediation models. Yes, look at the US. Shuttle and a lot of people are saying do away with the opening statement, but it's not the case in other places. I think that while mediation needs to have very core values and core ethics, which everyone sticks to, the healthy development of process, practice means diversity, which means shuttle, but also a whole range of other models. I don't think it will take over the world, and neither do I think it should. I think it's a place for it. 

Aled:

Yeah. I mean, how do those 2 things fit together, then? 

Nadja:

The core values and the diverse processes? 

Aled:

Yes. 

Nadja:

Well, imagine ... I was in the Moscow Circus the other week. 

Aled:

Performing? 

Nadja:

I was. I was. One of the acts was a high-wire act. Just imagine that high-wire artist, right? 

Aled:

Yeah. 

Nadja:

Walking along the high-wire and in order to stay on the wire, right? To survive, I need to get to the other end. The high-wire artist holds usually a rod, right? What are they doing with that rod, Aled? 

Aled:

They are holding it and kind of wobbling it back and forth. 

Nadja:

Yeah, exactly, in order to keep balance. 

Aled:

Yeah. 

Nadja:

Right? In order to keep the core, right? To keep their core balance. 

Aled:

Yeah. 

Nadja:

Imagine this high-wire is the mediation world, right? In order to be a sustainable field, we need to be ... In order to sustain our core values, to be true to our core principles, we need to move our bamboo rod, right? We need to be able to be open to diversity and open to innovation. We need to be prepared to change, right? Not be dogmatic, right? Not say, "No, we can't do shuttle or we can't do a no caucus model," or whatever. The minute we do that, the minute we become dogmatic, at least this is what I think, the minute you fix that bamboo rod and you're on the high-wire, what happens? You fall off. 

Aled:

Into the safety net. 

Nadja:

Well, hopefully there is a safety net. At the Moscow Circus there was. 

Aled:

Yeah. Okay. 

Nadja:

In the mediation world, right? There might not be a safety net for us. 

Aled:

Yeah. The mediation, the real world of mediation where there isn't the safety net. 

Nadja:

That's right. The harsh reality. We've got to keep that bamboo rod moving. 

Aled:

Yeah. 

Nadja:

Never just let it fix because, I mean, that'll be the beginning of the end, I think. 

Aled:

Yeah. From the Moscow Circus then back to Paris. There was something else going on there, wasn't there? Tell us about it.

Nadja:

Oh, there was. There was, there was. After the biennial, there was a group of people got together, an international group. There were about 30 different scholars and practitioners in the conflict management field. It was I guess a symposium, a brainstorming day, initiated by Andrea Snyder of Marquette University and Chris Honeyman who's an independent mediator and author. Both from the US.

 

They're really committed to advancing our collective reflections on the profession of mediation, so I guess a continuation of this market idea. The day focused on the challenges that the mediation field specifically is encountering in influencing the most intractable conflicts of our time. I mean, we've got so much conflict in the world, more and more it seems, but nobody seems to want us, right? What is that about, right? 

 

Peter Coleman from Columbia University facilitated the day using a facilitation method that he calls SYNC. I managed to ask Peter about the process he used. This is what he said. Peter, tell me about your approach to this workshop today in Paris. 

Peter:

This is a group of experts in negotiation. They were interested in exploring the idea of how can the field have more impact with sort of high-level politicians and leaders. We used a systems approach. It's an approach that Robert and I are creating, which is attempting to help people who are not systems thinker and complexity scientists to understand ... How to understand how to do something new, how to change something, enhance the capacity for something by getting a broader sense of the system in which it sits.

 

If you're trying to understand how to increase, impact the field, you'll try to think about, well, what are the various things about it that are either encouraging it or discouraging it? How do they affect each other? How does that context maybe allow for certain kinds of ways into that impact that you wouldn't ordinarily see unless you took the time to sort of understand that context in more nuance. 

 

In some ways it's very similar to how people who are very familiar with a local terrain or a local context can actively effect that work in that context because they're so well-informed. We oftentimes are asked to do things that we don't understand, in a context that we don't understand very well. It's really taking the time to really understand the history of a context, the current trends. Sort of the energy in a community or something that might help it achieve whatever goal it's attempting to do. We use that as a kind of a simple structure today to organize the conversation around impact in our field.

Aled:

With all this thinking and talking about mediation processes and mediation markets, I'm just wondering if in Paris they had their heads around this latest mediation market? Pet mediation. Pet mediation. Nadja, go on. Go for this.

Nadja:

Well, you've heard it first on This Week in Mediation at Mediator Academy. Indeed. According to Forbes magazine, there is a market for a growing emerging market for pet meditation. I think barking dogs, biting dogs. Think custody disputes, and in the event that their humans divorce, what happens to these pets, to these animals? These are issues that can result in emotional upheaval and steep legal fees.

 

Pet mediation in a way follows the trend of mediation in other legal subfields, especially in divorce law where mediators are growing in popularity for their ability to facilitate family disputes in a way that costs less money and manage to help people experience less emotional turmoil than going to court.

Aled:

Okay. Less emotional turmoil for the owner or the pet in question? 

Nadja:

Well, given the rise of animal rights, that's a particularly excellent question Aled, if I say so myself. There's little scientific doubt that [inaudible 00:19:30] highly emotionally intelligent. Here's a story for you. This story was originally published on The Kluwer Mediation blog a couple of years ago by Diane Levin. She called it A Dog's Tale. It's a really moving story about a couple after many years of living together and running a business together were divorcing. 

 

The only thing they agreed on was what they were going to do with their dog. They were working in consultation with their vet and an animal behavioural expert to come up with a visitation schedule and a residence plan that would meet their dog's best interests. 

Aled:

A very special dog by the sounds of it. 

Nadja:

Well, indeed. That's not even the mediation story. It gets better. The parties asked the mediator, who I think was Diane, if they could bring their dog to the mediation. She said yes. The dog came along and it had a place in the corner with a big bowl of water. In the mediation, the parties began identifying and working their way through the various issues as you do with the mediator. 

 

As happens in a mediation, one of the parties, for example I think the wife, would be ... Became sort of agitated and emotional and something was very difficult. As that happened, the dog walked over from his spot in the corner, sat by her leg, and rested his chin sort of against her leg. She calmed down, right? 

 

Then, as Diane tells the story, then became the husband's turn, right? He became emotional and he became agitated and he became upset. His voice sort of lifted and the dog went over and sat next to him and put his head on the husband's lap. He managed to calm down, right? This sort of went back and forth throughout the mediation as they went through issue after issue after issue. 

 

Then, as Diane tells the story, she says, "There came this make it or break it point in the mediation that every mediator knows." Right? Where it could be an impasse and the parties could walk out. There's this suspense and tension in the room. She's thinking about, "What am I going to ask next?" Ask she's formulating her thoughts, the dog wanders over from his spot in the corner and puts his head on her lap. The husband and the wife just stare at this dog in awe and amazement. The tension in the room is released. They start laughing. People start to work through the issue and the impasse is broken. 

 

At the end of the day when they reached a settlement, she said, "The dog was bounding around with the 2 parties who cared for him very much." This dog was really instrumental to helping the people move through this mediation. It's a very, very moving story. 

Aled:

Yeah. Makes me wonder whether pets themselves would be better mediators. I mean, I just think about my goldfish and how emotionally intelligence my goldfish is. Seriously, though. Seriously, though. There is apparently a handful of certified meditators nationwide who specialize ... Sorry. Who specialize in animals. This is very serious. Who specialize in animals. I wonder whether a pet mediator needs to have certain special qualifications or whether just any mediator can facilitate such a dispute? Now, I'm just mindful, Nadja, that we've lost half our audience who are potentially with pet mediators. This is serious stuff. 

Nadja:

Well, look. I don't know whether they need special qualifications. I mean, maybe they do, but there's an interesting comment in this article from Forbes magazine about one mediator, Deborah Hamilton, who says that she specifically uses language in a way that recognizes the emotional intelligence of animals. She challenges language that treats beloved companions, animal companions, like property, right? Often animals are treated like property, but she said they're living, loving beings. I think you do need to have a particular sensitivity, which you might not have, to be a pet mediator. 

Aled:

Well, hold on a second. Sounds like what you're suggesting there is the pet mediator is looking after the interest of that pet. That raises some concerns for me. To what extent is the mediator being, for want of a better word, impartial? Just throwing it out there.

Nadja:

Look, it's a great question. I think the same question you can ask in family mediation because in many jurisdictions the family mediator has a duty to look out for the interests of the child. 

Aled:

We're on this high-wire again, aren't we? 

Nadja:

We are on the high wire and loving it. 

Aled:

Okay. Nadja, Moscow, now Paris. Where are you off to next week? 

Nadja:

Well, very happily next week I'm going to be back in the studio in Berlin as normal. 

Aled:

Well, I shall look forward to next week's show. That's all we've got time for this week. Remember pop your comments, questions, feedback in the comment section below the video. All that's left for me to say is goodbye from This Week in Mediation in London. 

Nadja:

And it's goodbye from This Week in Mediation in Berlin. 

Aled:

See you next week. 

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