This Week In Mediation

Mediation News - This Week In Mediation Episode 8

Posted by Aled Davies on 21-Dec-2016 11:20:47
Aled Davies

In this week's special Christmas episode of This Week In Mediation, presented by Professor Nadja Alexander and Aled Davies we look at the 5 biggest global trends in mediation during 2016.

We also have a special guest on the show this week; Professor Michelle LeBaron is an expert in conflict resolution from the University of British Columbia in Vancouver. Michelle recently hosted a mediation gathering in Dublin which looked at conflicts with religious dimensions.

We then head across the pond and consider an innovative mediation initiative in the context of US tax disputes, where the IRS has given the go ahead for a fast-track mediation service. 

All this and more from the Mediation news room in London.

undefined

 

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 8 - The Full Transcript 

Aled Davies:

Hi. I'm Aled Davies, and welcome to Mediator Academy's roundup of mediation news from around the world. I think we, each week, try and be illuminating. I think we achieve that. I think we try and be informative. I think we definitely achieve that. Whether we achieve outrageousness, I don't know, but we'll certainly give it a go this week. Welcome to this week in mediation. My co-presenter on the show is Professor Nadja Alexander. Welcome Nadja.

Nadja Alexander:

Hi Aled. Very excited to be here for our bumper edition Christmas show.

Aled Davies:

Yes. I was going to post question of the week to see whether our viewers could guess, which time of the year this show is being shot at. Now, you've just ruined that one. We'll just jump straight into the content. What's coming up in the show today Nadja?

Nadja Alexander:

For our Christmas show, we have some special treats in store. For many people in the world, this time of year has a religious significance. We're going to kick off the show by exploring conflicts with religious dimensions. We will be hopefully hearing from Professor Michelle LeBaron who recently organised an event at Trinity College in Dublin on this highly topical theme.

 

Then we'll be looking at another theme that's closely connected to the end of the year in quite a few countries in fact, that is tax. We will specifically discuss an initiative of the US Internal Revenue Service called Fast Track mediation. Then finally as a wrap up to 2016, we highlight five global trends in mediation and we muse about some New Year's resolutions for 2017.

Aled Davies:

Thank you Nadja and I'm just mindful as I nod my head in agreement these thing on top of head just bounce up and down.

Nadja Alexander:

You're right.

Aled Davies:

If that's a little distracting, don't worry I'll be switching it over to my emergency hat shortly. Tell us about what was happening in Dublin last week.

Nadja Alexander:

Professor Michelle LeBaron from the University of British Columbia in Vancouver, Canada has long been working on the topic of conflicts with religious dimensions. She's just spent three months at Trinity College in Dublin and as part of her time there, last week, brought together a small number of practitioners and thinkers from around the world who are currently engaged in a variety of conflict contexts including in Northern Ireland, parts of Africa and in the Middle East.

Aled Davies:

What was the focus of the meeting in Dublin then?

Nadja Alexander:

Well, it was really about exploring what it is that we need to understand better about conflicts with religious dimensions in order to engage more effectively in them. I think if you just look around the world today, I mean just about everything we read in the media or see on television seems to present us with a conflict, which has an apparent religious dimension. 

Aled Davies:

Okay, so tell us a little bit about what came out of the meeting. Any insights about how we could, should be engaging in conflict that have religious dimensions?

Nadja Alexander:

Well as you imagine, the discussions were wide-ranging and quite intense. Although all of the participants were involved in these sorts of conflicts as professionals, either as interveners or as researchers, one of the interesting things was at the very beginning of the meeting, everybody shared something personal about their relationship to religion.

Aled Davies:

Okay, that's interesting. Why is that relevant? I mean apart from obviously getting to know one another.

Nadja Alexander:

Well I think it directly relates to the question of neutrality and impartiality. When we're dealing with religious conflicts, we're dealing with belief systems and world views of the people involved in them. I think it's naïve to assume that conflict resolution professionals, mediators, and even researchers who are ostensibly observing and objectively researching what's going on, I think it's naïve to think that we turn up "value-free" to mediation. So part of this sharing was about mediators being able to open up about their own beliefs, whether they are religious or not and what that means, and how this has an impact on their interventions in any given conflict and particularly those which deal with world view and have religious elements. In a way I think this type of opening up by professionals in a mediation context can make mediators more vulnerable.

Aled Davies:

Go on, how do you mean?

Nadja Alexander:

Well, you're opening yourself up as a person, and you're not just presenting yourself as a professional wearing a mask of neutrality that supposedly protects you from all influence and prejudice.

Aled Davies:

So by acknowledging one's own values, or bias I guess, or values, or bias, a mediator can be mindful of those prejudices and assumptions that they bring into the process and therefore is better able to manage those. Now is this particular to religious conflicts?

Nadja Alexander:

Yeah, really good question and one of the discussion points at the meeting was about, what do we mean when we say conflict with a religious dimension? And how useful is it to label a conflict as a religious conflict, for example? I think the answer is that it's a double-edged sword and by putting a label on a conflict, whether it's religion, or culture, or politics, or commercial mediation for example. It's helpful to direct our attention to specific aspects of the conflict.

Aled Davies:

Such as religion.

Nadja Alexander:

Such as religion, if you label it a religious conflict, but at the same time conflicts aren't exclusively about one dimension. They are not exclusively about religion, for example. Very often in these so-called religious conflicts there are also inter-cultural, political, economic, inter-personal, community and power dynamics at play. So it's important to be aware of all of these other dimensions for the mediator, the intervener to have this awareness but also for participants to be aware of those in order for people to begin, I think to move forward and make some progress towards resolution of some kind.

 

In fact labelling a conflict as a religious conflict can also bring forth a lot of assumptions and prejudices on the part of all people involved, including the mediator. We tend to, if we think we're going into a religious conflict, we're more likely to focus on the religious based assumptions and religious dimensions and neglect other aspects of it.

Aled Davies:

Okay, so in other words, by labelling a conflict as religious or intercultural or even economic, we're putting it into a box. Now, that might be helpful because it gives us a focus, it can help us navigate our way through the stormy seas but, as the double-edged sword that you were talking about, I think we also need to remember that, that stormy sea isn't necessarily the entire ocean.

Nadja Alexander:

Absolutely right, so as an example, Vietnam has just ratified a law on belief and religion. It's a very controversial law. According to the South China Morning Post, just this morning, this law has triggered renewed fears of state repression in the name of national unity. There were apparently unprecedented objections to the passing of this law from various religious groups, from the Inter-faith Council of Vietnam and even some objections from within the country's ruling Communist Party. While this law certainly offers the potential for conflict with religious dimensions and we can see that, I think it's also clear that it has very strong political dimensions. Just as one example.

Aled Davies:

Yeah, so how do you as a mediator make sure that you don't get locked into just the one dimension of a conflict?

Nadja Alexander:

Great question. Conversations I had with various participants at this meeting led to a number of ideas in this regard. One thing that came out strongly for me was that we need, as professionals, we need to spend more time in the gaps between the different dimensions of conflict. In other words, what happens in the space between religion and culture? Between religion and economics? Between religion and politics, and so forth? Michelle LeBaron talked about spending time on the edge, or on the periphery as a professional.

 

I also talked to another participant, Patrick Hyde who's been involved in a number of conflicts with religious dimensions, most notably within Northern Ireland. He talked about there not being any fixed mediation process in these sorts of conflicts and that the process was something that needed to be built. He explained that in his experience, this was done by paying attention to the spaces in between. In between agenda items, in between the process steps, step one, step, two, step three of mediation. In between the different substantive dimensions of the conflict. He called these spaces, "the glue", the glue of the conflict engagement process. Without paying attention to these spaces where you need to glue the bits together, the chances are that the whole peace process or the whole mediation is going to fall apart because it's not going to stick together.

 

I know Michelle LeBaron has written about this and she, I think, would most likely call this a relational space, because it's relationships that build an effective intervention process and increase people's capacity and their resilience to work through these type of really intractable conflicts.

Aled Davies:

As you're talking, you know what springs to my mind?

Nadja Alexander:

Not at all.

Aled Davies:

Right, you know how if you've got a dentist appointment and you kind of focus on brushing the surface area of your teeth where the most corrosion takes place is between, the spaces between the teeth. So it sounds like it was flossing in between the teeth kind of workshop.

Nadja Alexander:

That is the most original metaphor I have heard in a long, long time. Yeah, it's the focus on flossing. We shouldn't forget to floss. Actually in most training courses we focus on brushing right?

Aled Davies:

We do. We focus exclusively on brushing and not flossing, or brushing, then flossing, then brushing again.

Nadja Alexander:

Who does that?

Aled Davies:

I don't know, but it's a bit ... 

Nadja Alexander:

It's hard to take you seriously with your things bopping around, but I am trying very hard, Aled.

Aled Davies:

Right, brushing, flossing and then rinsing.

Nadja Alexander:

All right, okay.

Aled Davies:

Three different processes, a bit like ...

Group:

Arb, Med, Arb.

Aled Davies:

Now then, anyway let's get back on track. I think you've had a chance to speak to Michelle earlier about this, so should we go to that interview right now? 

Nadja Alexander:

Yes, let's do that. 

Aled Davies:

Well hello, Michelle.

Michelle L.:

Well hello, Aled. Hi Nadja.

Nadja Alexander:

Hi Michelle.

Aled Davies:

What a ...

Michelle L.:

Happy Christmas.

Aled Davies:

Happy Christmas, yes, happy, happy.

Nadja Alexander:

How wonderful to have you on the show.

Michelle L.:

Well it's lovely to be on the show, thank you for having me.

Aled Davies:

It's a real privilege to meet you. Tell us a little bit about the gathering in Dublin the other week. What was the purpose of doing that Michelle?

Michelle L.:

Well the purpose was to bring people together who'd been working in Northern Ireland in particular but also the Republic of Ireland on the aftermath and indeed the shift that led up to the Good Friday Agreement in the Troubles. Because the idea was that, there's huge experience there about what's needed to create positive shifts in political and religious conflicts and it might be productive and indeed was productive to explore those approaches that have been and are being used there. In contrast to approaches being used elsewhere by people in Ireland who are working in other parts of the world and then indeed by people in Europe, Canada and the US.

Aled Davies:

Sounds wonderful.

Nadja Alexander:

So, Michelle, people working in this field, I mean, what sort of characteristics do you think are required for people to be effective conflict interveners in these type of conflicts with religious dimensions?

Michelle L.:

Well Nadja, as you've said earlier, we began the gathering with people talking about their own relationship to religion. That, as you both would know and all of the listeners will know, is not a usual thing. We tend to think that if we have the skills then what our personal beliefs are really doesn't matter that much and can be set aside but actually it's been my experience and I think that of several others in the group last weekend that, if we're not aware of those things and indeed not transparent with those things, then working with religious actors can be much more difficult. 

 

I'm thinking, for example, of Jean-Nicholas Bitter from the government of Switzerland who works a lot with Salafi actors. Jean-Nicholas has a PhD in Theology as you know and so his depth of understanding of theological perspectives makes a huge difference in his work with Salafi actors. Here, I'm not suggesting that everyone who would want to do this work, or who would do this work would need a PhD in Theology. That would be a huge barrier to cross, but actually I do think it's important that those of us who work in this area have given some serious thought to our own theologies, our own world-views and how we relate to religion because there's a lot of backlash against religiosity in relation to violence committed in connexion with religion and yet there's so much that's really important and that contributes so much to our world. I think we have to sort out our own relationships to all of that before we can be useful.

Nadja Alexander:

It takes us a long way from the disinterested, emptied, neutral mediator idea, doesn't it?

Michelle L.:

I think it really does. I would be a long way from that in relation to any sort of mediation, whether commercial or family or organisational because I actually believe that it is who we are that is more important perhaps than the skills that we bring. You know if you look at mediators who are really virtuosic it has to do with the presence that they bring, the qualities that they bring, the kind of relationships they're able to forge and that comes from a lot of self-knowledge and then a willingness to be transparent, yes, I do think so.

Aled Davies:

I've got a couple of thoughts actually. One about bringing presence, actually presence not gifts that's what you meant, right? That's where I've been going wrong all along, I think.

Michelle L.:

Too bad. No it was C-E, not T-S, exactly, yes.

Aled Davies:

I'm with you now. I'm in the wrong job. I should have stuck to what I'm good at, delivering presents rather than being present.

Michelle L.:

How do you feel about chimneys?

Aled Davies:

But coming back the idea of having a PhD in Theology, it strikes me that that accomplishes a couple of things. One, just having the credibility with all the parties that actually you come with some, a deep understanding of the history, the context, so I think that's, on the one hand really useful and secondly, as you say, just to kind of enrich the conversation.

Michelle L.:

Well absolutely, and I'm just mindful about a joke that's very, very common in Ireland, Northern Ireland where the question is asked, you know. "But I'm a Buddhist, so I'm not Catholic or Protestant so what should I do?", and then the answer is, "Well you have to disclose whether you are a Catholic or a Protestant Buddhist." So I think that there are traps there, you know, we can get over-identified and kind of locked in one particular idea or other's idea of what a particular religious identity is. I think we need to have more fluidity than that, but on the other hand, I think there's something very useful about being able to be fluent in the language of theology and the language of cosmology. You know, how the bigger picture relates to what we choose to do day-to-day because for someone of religious conviction, the bigger picture is completely and directly related to what we do day-to-day and in the secular world, that's often missed.

Aled Davies:

So you started off by saying one of the purposes of this gathering was to learn from the experience of interveners, practitioners, mediators, conflict engagement folks in Northern Ireland and actually understanding what's required, what's needed to make these big shifts. If you were to sit back and go, "Ah, okay, I've got some kind of insight into some of these things that are required to achieve these big shifts." What came out oof it? 

Michelle L.:

Well, certainly I think anyone who has been involved in this work would say that it takes a lot of time and a lot of relationship building and the willingness to step outside the labels of who is a radical actor and should not be talked to and who is not. I would also suggest that one of the things that I think was hugely interesting in the gathering was, the work that Nadja did with one of our participants in relation to using systemic constellation work to take a different look, at a particular conflict on which he was working.

 

I think what we have to do is, we have to truly become multi-modal and be able to put on different sets of glasses at different times to try to shake up, or disrupt our own images of any particular situation as well as the images of those who are involved in it.

Aled Davies:

Just the personification of shaking it up and changing it.

Michelle L.:

Well done.

Aled Davies:

I just wish I had different glasses that I could take on and off, but I don't have my comedy glasses at hand.

Michelle L.:

Well, that's a shame.

Aled Davies:

But I thought ...

Nadja Alexander:

One of the ... I was just going to say, one of the things that Aled and I were talking about before the show was some of the sessions in the gathering and also the constellation work and the idea of stripping, you know, finding ways or techniques of intervention, such as the use of systemic structural constellations to strip a conflict of its content and have a look at the dynamics in a really different way, because we can't be without our prejudices and what we think we know about something.

Michelle L.:

Exactly.

Nadja Alexander:

It was powerful.

Michelle L.:

I think that's so true. I think we need to be able to look at the architecture of a conflict and we need design thinking to come toward these kinds of multi-layered, multi-dimensional complex from new places because the state of the world actually calls us to do that.

Nadja Alexander:

Can you say a little bit more about design thinking?

Michelle L.:

Well I've just been thinking that, if I were to design my own professional development for the next year, it would involve taking course in design thinking because I'm really interested in how people who work with design thinking, do come towards issues and problems in new ways and in different ways. I think that those of us in the conflict engagement world could actually learn a great deal from that. I've had a couple of students do papers on that and found it really illuminating. I wouldn't go into the specifics because I don't feel that I know enough to do that but I think there's something very fruitful there and I think that what we need to do is bring a whole repertoire of different approaches to the analysis and the engagement of the conflicts. You know the other side is the engagement side, so it would involve doing things with actual parties that are outside business as usual.

 

I know, Nadja and Aled, you both have thought a lot about embodiment and the importance of physically enacting change and so what happens if you get actors in a religious conflict to do things that seem to have nothing to do with the conflict and yet have the capacity to be spaces for self reflection and spaces where new perspectives can come in, in relation to others.

Aled Davies:

What's next? Where does this go? Where are you going to take this, Michelle?

Michelle L.:

Well, I was so encouraged, actually, Aled by the people who were at the gathering and who are taking on what I think are commonly understood to be quite insoluble problems. In Jerusalem, for example, over Haram al-Sharif, the Temple Mount and many other contexts. Where I'd like to take this is to stay in touch with people who really are engaged in this work and thinking about this work so that knowledge is actually gathered and shared and there's more and more momentum in a time when we face some very distressing and divisive thinking in the political domains all around us in your part of the world and over here in the Americas as well. I think it's even more important that there be clear articulations of the importance of really engaging with religious actors and making sure that religion is part of the public discourse, not as a way to exclude others, but as a way understand others more deeply.

Aled Davies:

I think that's lovely. I tell you what, what a way to end 2016 on a really positive and encouraging note. When everything could be doom and gloom but actually there are people doing the work, really committed to change and doing the kind of stuff that, you know, I wouldn't do. I wish I could. I wish I had the courage. I wish I had the tenacity. I wish I had the knowledge and wisdom to do that but it's reassuring to know that people out there, and we need to get them on the show actually, Nadja. 

Nadja Alexander:

Absolutely.

Aled Davies:

We need to find a way so that more people know about these projects, these initiatives, this great work, this body of theory that's being developed so that maybe one day I can dip my toe in and do my bit.

Michelle L.:

Well you know, you're very self-effacing Aled, but actually I would say, "You can't not." That is all of the parties with whom you work as a mediator, also bring their world-views and whether they call themselves religious or not to the table and I think we're always engaging with people with different world views and that that's part of what a really sophisticated mediator does. I think part of it is actually just looking at what we already do and how we already serve as translators or bridges between people with quite different views of the world.

Aled Davies:

Translators and bridges, the metaphors just keep on coming.

Michelle L.:

They do. They are unstoppable, I'd say.

Aled Davies:

Well, Michelle this has been a real delight. I really appreciate you getting up at some ridiculous hour to come and join us on this crazy show that we do. I hope one day we'll be able to meet in person.

Michelle L.:

I look forward to that and all the best for the show. Thank you for doing it. It is wonderful fun and I think a really useful resource for so many people around the world. So congratulations, both.

Aled Davies:

Thank you.

Nadja Alexander:

Thank you.

Aled Davies:

You know what really strikes me, is how inadequate a 40 hour mediation course is to deal with conflicts such as this. I mean there is a whole level of sophistication in mediation processes that many people in the field just miss, Nadja.

 

Nadja Alexander:

I know this is a thing that you feel very strongly about, Aled, and I'm wondering if that's something that we might pack into a New Year's resolution for 2017?

Aled Davies:

Good idea. Let's come back to that later. Meanwhile, have you done your tax return this year? In some countries the end of the calendar year is also the end of the fiscal year, so this is not just the Christmas stress but also getting your tax returns done in time can be incredibly stressful. No one likes to get entangled in a long, tortuous conflict with the tax authorities but if you do get stuck in one, would you want to mediate? Nadja?

Nadja Alexander:

Well I think it might depend on how much tax I owed. Apparently in the United States the Internal Revenue Service, the IRS it's called, has introduced a Fast Track Mediation Programme for the speedy resolution of issues concerning tax payers. Now Aled, I'm curious, tell us more about that. 

Aled Davies:

Well there are a couple of interesting features of this IRS scheme. For example, the mediator is an IRS employee who has been trained to act impartially. I've always wondered how you could train someone to act impartially, that's the first point. I mean how many days' training would that take? One, maybe two? I don't know.

 

Another point is, that according to a report on this scheme, any mediator recommendation to resolve the issues is not binding. So the tax payer would have a chance to go through the normal appeals process if she or he so wishes. In other words we are looking at a process where the parties are often a mediator who's also an employee and who is allegedly trained to be impartial, and to then give a recommendation in relation to a proposed settlement. 

Nadja Alexander:

Okay, so a couple of potential issues here. First, the mediator's capacity as an employee of the IRS to be perceived as impartial, that's one. Coupled with, and here seems to be the second point, to me, their ability to make a recommendation out of a proposed settlement. I mean, is that still mediation?

Aled Davies:

That's a good question. I think the pragmatic answer is that there are many processes in this world called mediation, where the mediator is employed or at least engaged by a corporate party. You know, classic example within many organisations, workplace mediation is conducted by an internal mediator for example.

Nadja Alexander:

Yeah, you're right. There are also a lot of processes called mediation around the world where the mediator is more interventionist offering various types of procedural or substantive advice to parties, so that's also not new in a way.

Aled Davies:

Yeah, like the Roma mediation that we covered in a previous show. What happens when you combine those two elements? Now I think that can make a difference because you have really given the mediator power and status that go way beyond the core idea of impartial facilitation.

Nadja Alexander:

It sounds like a very slippery slope to me and something that we need to pay attention to.

Aled Davies:

I think we certainly need to pay attention to that, but I think that it illustrates the moving diversity, the shifting tectonic plates of mediation processes. I think we've identified that as one of our global trends for 2016.

Nadja Alexander:

Indeed we have. The first of five trends that both sum up the year of 2016 and indicate where we might be heading in 2017. 

Aled Davies:

Okay, so I shall give this a little whirl. For the first trend of Christmas, my true love gave to me, diversity.

Nadja Alexander:

Lovely Aled, just lovely. I'd stick to my day job if I were you.

Aled Davies:

Okay, thank you, thank you very much. My day job as in newsreader, a very serious one. Okay, so diversity is a theme that we've covered in a number of shows and it seems that there is a growing acceptance of diversity in mediation practise that moves well beyond the facilitative, evaluative dichotomy.

Nadja Alexander:

We're increasingly seeing sophisticated variations to the classic mediation process and these include variations such as settlement mediation, transformative mediation, diagnostic mediation, wise counsel, expert advisory and, of course, facilitative mediation. While most training courses still focus on facilitative mediation, even that is now starting to change. In previous shows we've reported on training in the area of diagnostic mediation and in wise counsel and expert advisory forms of mediation.

 

In addition, we're also starting to see policy initiatives such as those by the Hong Kong Department of Justice, that specifically embrace different approaches to mediation and move beyond the facilitative mediation model.

Aled Davies:

Okay, so moving on to the second trend that we might then define, which is mediation advocacy. Now, it's a fact of life that lawyers will be involved in many mediations, particularly where they involve litigation matters. This is becoming a specialised form of legal practise known as mediational lawyering, mediation advocacy, mediation advising or mediation representation. Now in many jurisdictions there are specific obligations on lawyers in terms of statutes, rules of court and lawyer codes of conduct applicable in mediation.

Nadja Alexander:

Yeah, and I think what we're really seeing is greater recognition that the skills of mediation advocacy or mediation lawyering are really different from the skills associated with trial advocacy or trial lawyering if you like. So we're needing more and more education and training to support this cultural shift in the legal profession. Again, literature is starting to support that, there's an increased number of training courses around this and also a number of certification programmes for example, that of the international mediation institute, which offers a certification for approved training programmes on mediation advocacy.

Aled Davies:

Very interesting. Trend number three on the theme of international mediation is the opening up of international mediation practise. Now the profile of cross-border disputants is changing and with it the nature of international dispute resolution and the growth of mediation in this area. The increasing accessibility of the internet and the corresponding growth of small businesses engaging in cross border transactions has contributed to a significantly higher volume of international transactions and dramatically changed the nature of contemporary business.

Nadja Alexander:

Absolutely. All sorts of people are finding themselves engaged in cross-border disputes including mums and dads, online consumers, small business operators and chiefs in remote Pacific villages, for example. This increasing diversity and the characteristics and needs of disputants in cross-border matters has really enhanced the appeal of mediation as a flexible informal and relatively cost effective forum.

Aled Davies:

You see this reflected in the increasing international institutionalisation of mediation. That was a ...

Nadja Alexander:

That was a mouthful.

Aled Davies:

Yeah, international commercial arbitration institutions, such as the ICC in Paris and the LCIA in London began to offer cross border mediation while national organisations such as ACDC in Sydney, that was a band back in my day ...

Nadja Alexander:

It is.

Aled Davies:

... And the ADR centre in Rome, CEDR in London, CPR in New York and JAMS in California began to extend their existing mediation services and facilities across borders.

Nadja Alexander:

Yeah, so this is something that's been happening, I think, in recent years. You started to see the arbitration institutions moving the mediation institutions moving and then more recently what you've seen is a couple of institutions being set up specifically for international mediation practise, right. That's, for example, the Singapore international mediation centre and then on top of that, there are a number of very specific programmes focused on cross-border mediation in particular areas like sport. There's even one institution that focuses on the mediation of international ice hockey disputes.

Aled Davies:

I think we ...

Nadja Alexander:

Very important.

Aled Davies:

Very important. I think we covered in one of our earlier shows, which was an informal mediation around the breakfast table with an Aussie rules dispute. If you haven't seen that edition, I think it was in the first or the second show, go and watch that now.

 

Moving swiftly on to trend number four, which is the national and international professionalisation of mediation. 

Nadja Alexander:

That's right, well you've seen the national trends towards the professionalisation of mediation through accreditation standards and in most countries, notably not in England and the UK, and not in the US, but that's not for a lack of trying, but in many countries you find that there are now national accreditation or professional standards for mediators. What's starting to emerge now more strongly, and I think this was a big trend of 2016 is how does it make that national shift, that national movement into an international movement. What you're seeing is the mutual recognition among different national standards like bilateral treaties happening between national mediator accreditation bodies. You're also seeing at least one body, the international mediation institute, going one step further. They're trying to work with a mediator accrediting bodies around the world, in particular ones which offer a national standard to establish an international certification for professional mediators. 

Aled Davies:

I think that's going to be an interesting challenge watching that. I mean even thought it's a trend for 2016 I think it's going to be one to watch for 2017, 2018, you know how do you get that sort of parity between national organisations and get that reassurance that if you're hiring a mediator for a cross-border dispute. Anyway, I think that's a really interesting one.

Nadja Alexander:

Yeah.

Aled Davies:

It kind of feeds in to our final trend, which is the international legal framework. Tell us about that, Nadja.

Nadja Alexander:

Well, similar to the professionalisation trend, you've seen regulatory activity really focus on sending out the national legal framework for mediation in any number of countries. You've seen it develop differently in common law jurisdictions compared to civil law jurisdictions. Civil law jurisdictions tending to gravitate towards a comprehensive national piece or legislation and common law jurisdictions being quite different. What you've really started to see emerging in the last few years, and a lot of attention has been put on this in 2016, is an international legal framework. That's something that's been very strong and it has existed for a long time in the arbitration world and many arbitrators and many international lawyers in particular, have criticised mediation and said it's not suitable for cross-border disputes because it lacks a robust international legal framework.

 

Now you just need to look for example at these types of international legal instruments. The United Nations, UNCITRAL, have introduced the model law on international commercial conciliation, that was back in 2002. But every year more and more countries and jurisdictions are adopting this law. In 2016, we have 28 jurisdictions including a number of US states that have adopted this model law in international commercial conciliation. We also had the European Union directive on mediation, where 29 EU member states have implemented regulatory ... 

Aled Davies:

Guidelines?

Nadja Alexander:

... instruments on ... Thank you Aled. Specifically on cross-border mediation. In 2016 probably the biggest directory news within this theme is that the UNCITRAL working group on arbitration and conciliation are this year and continuing next year, deliberating on the preparation of an instrument on the enforcement of international mediated settlement agreements. They're still thinking about, do we want a multi-lateral convention? Do we want model provisions and other model law? What will it exactly look like? A number of people are very excited about the possibility of having a multi-lateral convention because in their minds that would put mediation on a par with arbitration. Arbitration has that sort of convention which means that arbitral awards have expedited enforcement internationally, what if we could do that for mediation?

Aled Davies:

Don't want to be pedantic, but when you said the working group on arbitration and conciliation ...

Nadja Alexander:

Yes?

Aled Davies:

Why isn't it the working group on arbitration, conciliation, and mediation? Or arbitration and mediation?

Nadja Alexander:

When you move your head these things keep going but I'm concentrating, don't you worry. Well look, that's a great question and I have an answer which is sort of based on different comments and who knows what the real answer is. I think the answer is to a large extent historic. If you look historically at the work of the United Nations, which goes back decades in relation to conciliation. They worked originally on arbitration and also had conciliation rules as early as 1980, I think. That was really before mediation became more popular.

 

Also there's a linguistic difference. Some countries also, the term for mediation is the same as for conciliation in different languages, so when you're looking at translating, which terms are people comfortable with. If you also look at the model law, that was adopted in 2002 and now we're looking 14 years later. So whether we shift the term to mediation or not, the question is does it really make a difference? I think the answer to your question is it's historic, but if you look at the definition, it very clearly includes mediation.

Aled Davies:

Very illuminating, so I think we can go, informative, tick, outrageous, tick.

Nadja Alexander:

Big tick today.

Aled Davies:

And illuminating as ever from Nadja. So there we have it, the five global trends in mediation for 2016. Our question of the week, I think is going to be a question of the week, a question of the year, like a reflective practitioner question but also a visionary crystal ball question. If mediation were a person, what would his or her New Year's resolution be? Answers on a postcard. No, not on postcard, in the box below the screen where it says, "Comments". Please put your comments here. Write your resolutions in there. Nadja, do you ... If mediation was a person what would their New Year's resolution be? 

Nadja Alexander:

Well, perhaps one of my New Year's resolutions would be, if I were mediation as a person, would be to work more collaboratively with my arbitration colleagues, because I think arbitrators and mediators still tend to live and work in silos. So that would be a New Year's resolution, to be proactive about that.

Aled Davies:

Like that, like that a lot, yes.

Nadja Alexander:

And also floss more.

Aled Davies:

To floss more. Oh! That's deep, that's well deep. Okay so mine is going to be, if mediation was a person, to take myself more seriously. That's even deeper. Figure that one out. 

Nadja Alexander:

I think you're well on the way to doing that Aled.

Aled Davies:

So, Nadja, we're coming to the end of a lovely year, 2016. It's certainly been illuminating. It's been interesting and it's definitely been a lot of fun. Before I go, before we sign off, I think from the both of us we just want to say a big, massive thank you and acknowledgement to the unsung heroes that make this show possible, that trawl the streets, day and night searching for the latest, hottest, off the press mediation news, so that you sitting there in the comfort of your own home, don't even have to leave the bed to just keep abreast of the latest, greatest stories. For nights on end, sleeping outside the offices of the South China Morning Post just to bring you that story today. Pavlina, Pritika, John, thank you.

 

Well that's it. I think looking forward to 2017, looking forward to kicking the year off with our 2017 show. All that's left for me to say is thank you Nadja, and it's a goodbye from me at Mediator Academy HQ in London.

Nadja Alexander:

And thank you Aled, it's been a great year for Mediator Academy and goodbye to everyone from Mediator Academy in Berlin.

Aled Davies:

See you all next year.

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