This Week In Mediation

Mediation News - This Week In Mediation - Episode 7

Posted by Aled Davies on 07-Dec-2016 10:51:09
Aled Davies

In this week's Mediation news, presented by Professor Nadja Alexander and Aled Davies, we report from Edinburgh at Mediate 2016 - the Scottish Mediation Network's Annual conference. We learn about a different kind of community mediation in a global village with the World Bank Group urging India and Pakistan to mediate over a water dispute. From the Indian sub-continent we travel to Somalia and look at the role of mediation in political dialogue. Our final destination is  Australia where we learn about the role of mediation to assist victims of historical institutional sexual and physical abuse, a topics that's hit the news very recently in the UK. These are the main stories but tune in for lots more in the world of mediation.

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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 7 - The Full Transcript

Aled Davies:

Hi, I'm Aled Davies. Welcome to Mediator Academy's roundup of mediation news from around the world. This week, we are in Edinburgh reporting live from the Scottish Mediation Network's annual conference. We'll also be covering other illuminating, informative, and outrageous stories from the world of mediation. Welcome to This Week in Mediation.

Nadja:

Hi, everyone. Welcome to Mediator Academy's Berlin studio. Let me tell you what we've got coming up in the show today. First, we'll be finding out what Aled was up to in the land of kilts and whiskey, and then, later in the show, we will also discuss mediation in water disputes, with the world bank group urging India and Pakistan this past month to agree to mediation about water use in relation to the Indus river. We'll also be looking at mediation in other political contexts, and also in relation to institutional, sexual, and physical abuse, a compensation case in Australia. Now, let's get back to Aled who is safely back at Mediator Academy's headquarters in London. Hello, Aled.

Aled Davies:

Hello, Nadja. Thank you for that wonderful introduction. It's great to be back in the saddle. I'm going to jump straight into the Scottish mediation conference which is entitled Creating Space. Before I talk about this, Nadja, why don't you warm our cockles with a wee poem? Nadja.

Nadja:

If you insist. This is a poem called Fire written by Judy Brown. Here it is. What makes a fire burn? Is it a space between the logs? A breathing space? Too much of a good thing, too many logs packed in too tight can douse the flames almost as surely as a pail of water would. Building fires requires attention to the spaces in between as much as to the wood. When we're able to build open spaces in the same way that we've learned to pile on the logs, then we can come to see it is the fuel and the absence of fuel together that make fire possible. We only need to lay a log lightly, from time to time. A fire grows simply because the space is there with openings in which the flame that knows just how it wants to burn can find its way.

Aled Davies:

A lovely poem. It makes me think I should've opened the conference with this poem instead of talking about bamboo, but I'll come onto that a little bit later. Last week I was in Edinburgh at the Scottish Mediation annual conference. There were 60 wonderful mediators trying to find their way in the one day space that was created. I've got to say it was a wonderful conference for so many reasons. First and foremost, they certainly know how to look after you and make you feel very welcome, much like our other Celtic brothers and sisters at the Mediator Institute of Ireland. I'm sure you can see by the introduction outside Edinburgh Castle that that certainly followed a wee dram or two.

 

It was also lovely to see such a broad group of mediators from all disciplines, commercial, community, workplace, family, peer, school mediation. I think which also spoke to the theme of the conference, Creating Space. I want to just talk a little bit about a couple of those themes. First of all, creating space in the regulatory context of mediation. We heard from the president of MII about the regulatory landscape that's currently developing in Ireland.

 

I also want to talk a little bit about, or reflect on, the idea of creating space in the practise of mediation, and the role of mediators in generating a just result, or not.

Nadja:

You went to Scotland to find out about mediation in Ireland?

Aled Davies:

Yes, and also to talk about Wales.

Nadja:

Ah, the blue or humpback variety. 

Aled Davies:

On a serious note, I opened the conference with a keynote and spent the first 10 minute talking about the decline and growth of the Welsh language. I'm a native Welsh speaker, as you know. 

Nadja:

That's got a lot to do with mediation? 

Aled Davies:

More than you think. I now live in London, so I don't often get the chance to practise my Welsh, my mother tongue. I guess it's a bit like mediation. If you don't get to practise something regularly, it can get a little rusty. That's not the point I was making. What I was trying to explain was the idea that when I visit Wales, which is quite a few times a year, whether I go running in the park or running in the mountains or walking the streets shopping, wherever I am, I can't help but notice the amount of Welsh that's being spoken around me compared to the amount of Welsh that was being spoken when I was younger.

 

There seems to be just a lot more Welsh being spoken. I was curious to know whether the data reflected my experience of the increased prevalence of spoken Welsh around me. 

Nadja:

You found that it had grown, the use of Welsh? 

Aled Davies:

That's what you'd think, right? But on the contrary, my dear Nadja, the figures from the census revealed a decline. Between 2001 and 2011, the number of Welsh speakers fell by about 1%, which in real terms is about 2,000 people a year less speaking Welsh. There was a percentage, obviously, of elderly, dying Welsh speakers, and youth migration, leaving Wales, looking for prosperity in other cities around the world. Another way of thinking about it, was it was the equivalent of four Boeing 747s full of Welsh speakers taxiing on the tarmac at Cardiff International Airport, taking off, and never returning each year. That was how many Welsh speakers they were losing each year. 

Nadja:

You can't rely on your intuition. The numbers were showing the opposite. There's nothing like hard data to bring our wishful thinking crashing back to Earth, is there? 

Aled Davies:

Absolutely right. Interestingly, the trend line has been reversed over the last five years, and now it's going in the other direction, but only slightly. It got me thinking. I was quite curious. How does an institution, how does a country, how does a nation achieve that? Specifically, what did the Welsh government do to accomplish that, to reverse that trend? 

Nadja:

And? The suspense is killing me. What did they do, or what are they doing? 

Aled Davies:

Well, they started off with a rather large, audacious, also known as hairy-assed goal. They said, "By 2050, we're going to have one million Welsh speakers in Wales." They've currently got 600,000. That's about 400,000 over the next 23 years, which, if we're talking Boeing 747 terms here, that's approximately, to get a net gain of however many, that's about 34 Boeing 747s landing every single year, with Welsh speakers piling off it into Cardiff, in order to hit that target. 

 

They set themselves a massive aspiration, which I like. I like that. They've also invested heavily in education for the young, opening lots of Welsh speaking schools, making sure the quality of education is super high. They've also, now this is the interesting bit, the Welsh government have also imposed statutory requirements on all public bodies to give equal status to the Welsh language as they go about conducting their business. These days, all sectors, to varying degrees, acknowledge and use Welsh alongside English. You see, one of the things that they realised was that in order to measure whether a language has been adopted and embedded in the Welsh way of life, they had to change the cultural norms. 

Nadja:

Now, what does that mean? Changing the cultural norms?

Aled Davies:

They had to change the default. Change the default language from English to Welsh. You imagine you're going down to your local shop and you go and buy a pint of milk. Do you ask for milk or do you ask for llaeth, which is Welsh for milk. Do you ask for bread or do you ask for bara? Do you ask for butter or do you ask for menyn? Are you conversing in your mother tongue in your everyday life? 

 

You know what? It made me think, how do we change the default in our culture of conflict from adversarial to non-adversarial, from litigation to mediation? 

Nadja:

It's interesting how regulation is helping to grow language, to shape the culture of language. But how do you think regulation might help mediation grow? What came up in the conference around regulation? 

Aled Davies:

It was very interesting. Sabine Walsh, president of the Mediators’ Institute of Ireland, gave a really interesting talk on the goals and aspirations, but also the struggles they're having around the whole regulation issue debate. It's been moved up the legislative agenda. I think we had Sabina on one of the earlier shows talking a little bit about that. Her view was that the right kind of regulation could help create the space for mediation to prosper. She did present some interesting challenges. One example she gave was the dilemma around the criteria for membership of a professional body. 

 

You wouldn't think it would be appropriate within a traditional, professional organisation to admit someone with a string of criminal convictions, right? 

Nadja:

Right 

Aled Davies:

It would certainly require some thought. 

Nadja:

‘Raised eyebrows.’

Aled Davies:

Yes, but when you look at the Northern Ireland Peace Process, you've got people that have been involved, instrumental in that process, that have quite a significant criminal history. 

Nadja:

A colourful one. 

Aled Davies:

That's it, a colourful criminal history. It just made me think, really, how complex the idea of regulation is. Unless you have the space, creating space was the theme, unless you have the flexibility and innovation in regulation, then you could run the risk of ending up with something that isn't really fit for purpose. 

Nadja:

Or fit for all purposes. It's about learning to build those open spaces so that we've got that flexibility in the same way that we've learned to make rules and regulations, which we can do pretty well, perhaps too well. 

Aled Davies:

I think so, yeah. Again, just reflecting on your poem, is it a science? Is it an art? You're quoting a poem. How do we do that? How do we create that space between the logs in the real world? 

Nadja:

I think regulation is a great question. Regulation is both a science and an art. In fact, regulating mediation really sits at the intersection of science and art. We can use legal frameworks, they're like scientific frameworks, legislation, codes of conduct and all those things to regulate mediation, but it's how we put the together. How they are put together needs to be done in an artful way so that what you end up with is more than words on paper. Because laws are living things. They're more than just printed words on a blank sheet of paper. We need to think about different ways to regulate different aspects of mediation, be very nuanced about that. 

 

Making mediation is always a creative process, and I think we need to remember that. We need laws that can live and breathe the spirit of mediation and be responsive to change, because in mediation, there's a lot of change right now. 

Aled Davies:

You're right. Mediation is changing, I think, in both practise and theory. That was made really clear by Charlie Irvine 's presentation, a lovely presentation. I know you remember Hazel Genn's famous line, "Mediation's not about just settlement. It's just about settlements." 

Nadja:

Yes. 

Aled Davies:

I think, I'm pretty sure, in fact, Charlie was suggesting that that is not the case. 

Nadja:

Ah, Hazel got it wrong? 

Aled Davies:

At least, that there's room for justice in mediation. He was challenging the notion that mediation is weaker because it isn't perceived to be a justice event. Charlie suggested that a dialogue process can afford parties a more appropriate justice than traditional dispute resolution institutions can. 

Nadja:

Aled, this really makes me think that we, in the world, are in a transitional period where different notions of justice can coexist and do coexist, and a notion of participatory justice is on the rise, where all of the players, the parties, representatives, the mediator, everybody at the table plays a part in making justice in a particular case. It seems that, while there's still a long way to go in terms of shifting the mediation culture, as we've talked about before, I also think it's worthwhile looking at some of the positive examples to show that that is being done and we are making headway already. 

Aled Davies:

Yeah, I think it's a bit like walking around the streets of Cardiff or the hills of Wales, seeing it around me, which is very different from what the data was showing. But in the same way that we just need to open the papers and we see that mediation is referred to in all sorts of contacts, legal cases, political, even the World Bank Group is suggesting it. What's that about? 

Nadja:

Just the other week, the World Bank Group urged India and Pakistan to agree to mediation in order to settle on a way to use water under the Indus Water Treaty, to which they are parties. Basically, both of those countries are currently constructing dams along the Indus river system. They're two neighbours developing competing hydro power projects along the shared waterway. The way it looks, the country that completes their project first is going to have priority rights to the river, and that's causing a bit of tension. 

 

At the moment, it seems that Pakistan is asking for arbitration, and India is asking for a neutral expert process. The World Bank is saying, "Hang on guys. All of that's fine, but why don't you sit down and talk together first, and just put those other processes on hold, and let's try and mediate as a first step?" 

Aled Davies:

That's interesting. The World Bank are urging them to mediate. That's quite an interesting parallel there with community mediation and neighbourhood disputes, right? 

Nadja:

Right. They're long term neighbours, these countries. No one is going to move out of the neighbourhood or just give up their country. We're dealing with a long, long term relationship, and a scarce resource: water. 

Aled Davies:

Community mediation for the global village. 

Nadja:

Beautifully said. Yes, it's about bringing people together to try to manage intractable conflict. 

Aled Davies:

You say manage intractable conflict. You didn't say resolve intractable conflict. 

Nadja:

Very observant, Mr. Davies. Resolution might not be the goal. Resolution might not be possible. It might be more a question, in some conflicts, of using mediation to help people engage with the conflict, to engage with dialogue, to engage with sharing perspectives. There's a report from Somalia suggesting the use of mediation this way. 

Aled Davies:

That's right. The president is urging mediation in circumstances where Somali politicians and clan elders, not Scottish clan elders, have reported violence and irregularities in voting for a new parliament. 

Nadja:

It seems that mediation and facilitation could play a central role in political discourse and culture, but for the most part, it's not happening really anywhere. This is a topic that we've touched on in previous shows. Even when you get political parties or groups engaged in a democratic discussion, let's say, talk often remains inefficient, unstructured, focused on positions that can be easily presented in the media in a polarised way, but at the same time, there's numerous initiatives, like this one, suggested by the Somali president that are trying to shift the political culture towards a mediation type of language, a mediation type of discourse. 

Aled Davies:

Let's move onto politics of a different kind. 

Nadja:

Yes. In Australia, former residents of a church home for indigenous stolen generation children, in Darwin, have moved one step closer to becoming the first group to gain compensation from the federal government of Australia after giving evidence to the Royal commission into institutional responses to child sex abuse. A very horrific story. Former residents who have suffered abuse have welcomed, at this stage, a mediation offer. The federal government says it's committed to working to try and resolve the case and has said yes to mediate. The case itself is on hold while all the parties come to the table to try and mediate.

 

The federal government of Australia has also indicated that it hopes this case will serve as a model for similar actions. 

Aled Davies:

That's quite interesting. Recently, there have been a lot of stories, there's one big story in the British press, actually, about the institutional abuse of young football players. It's very current. Each day there's a lot more news coming out of that. I reflect on something that Charlie Irvine was talking about in terms of mediation being a justice event, and also getting this to think more broadly about what justice is. I don't know to what extent mediation, or at least the dialogue process, could help these victims in this case, but it also reminds me a little bit of the health mediation Roma case that we talked about last week, or the week before, when the Bulgarian authorities, I think, neglected certain groups, the Roma community, but now have come around to being open, at least, to discussing the future and how they can meet their needs in a more collaborative way. 

Nadja:

Yes, mediation's entering a new era in the resolution of conflict, but it's an evolution, it seems. 

Aled Davies:

Not the revolution, then. Okay, well, let's nevertheless ask a revolutionary question of the week, Nadja. 

Nadja:

Okay. Here we go. Taking a leaf out of the Welsh government's book, how could we use regulatory incentives to change the default language of conflict? What do you think of that? 

Aled Davies:

I love it. I'm all over it. I think that brings us to the end of the show. There you have it, folks. All that's left for me to say is it's a goodbye from me at Mediator Academy in London. 

Nadja:

It's a goodbye from me from Mediator Academy in Berlin. 

Aled Davies:

See you all next week. 

 

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