This Week In Mediation

Mediation News - This Week In Mediation Episode 9

Posted by Aled Davies on 26-Jan-2017 05:13:00
Aled Davies

In this week's episode of This Week In Mediation, presented by Professor Nadja Alexander and Aled Davies we look at the 7 biggest global trends in Mediation coming up in 2017.

It's Family Mediation Week in the UK this week so we have a number of stroies that follow the theme of family mediation but not all in the UK. We also have a special guest on the show this week; Philippa Johnson is an experienced family mediator and also vice-chair of the Family Mediators Association. We hear from Philippa about the special focus this year on the child in family mediation.

We bounce across to Singapore and staying on the theme of family and divorce mediation we look at some disruptive technology emerging in the US in the form of the Centre for Out of Court Divorce.

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

 

We'd love to hear your comments and questions so get the debate going in the comments section below. Please share, tweet, repost to your heart's content :-)

Topics: Mediation News, Family and Divorce Mediation

 

Mediation News TWIM 9 - 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. We try and be illuminating. We try to have a little giggle, a little bit of fun and occasionally we're outrageous if we can help it. Welcome to 2017 and welcome to This Week in Mediation. My co-presenter on the show is Professor Nadja Alexander. Nadja, happy New Year.

Nadja Alexander:

Happy New Year to you too. I hope it's a good one. 

Aled Davies:

So, what have we got in store for our audience watching this show? 

Nadja Alexander:

Well for our first show of 2017, we're going to look at some of the themes that we here at Mediator Academy anticipate will loom large in this year of 2017. We'll find out a little bit more about family mediation week. Which is happening right now in the UK and then we're going to stay with the family dispute resolution theme and explore some developments around the globe. 

Aled Davies:

Great. 2017, it's going to be an exciting year Nadja. There's a lot happening around the world. So what are the big themes coming up this year? 

Nadja Alexander:

Well we have got seven identified here and so let me share them with you. I know you all are just dying, dying with anticipation. So last year we talked about, we introduced the Global Pound Conference. Which is a series of events, which began in Singapore in March 2016 and is traversing the globe and will finish or conclude in London in 2017. And so we're going to continue to watch the Global Pound Conference. It's a unique event and it's collecting data that's never been collected before on a global scale. Information from a range of dispute resolution and mediation stakeholders and you know, we're going watch and look what can we learn. 

 

What will we learn about commercial dispute resolution in particular and how is that going to shape the future of practise and of policy. I think there's some really exciting things coming out of these events. The ones coming up in the next month or so are in Hong Kong, Dubai and India. But as I said, there'll be nonstop events up right until July. The big event in London. Already the report on the Singapore event is out. It's been released and we'll be looking at what that says and what that tells us more closely in the coming weeks. 

Aled Davies:

 

 

And just to tell our audience, those watching the show. I think we covered the GPC conference earlier on in one of our This Week in Mediations and we had Michael McIlwrath

Nadja Alexander:

We did. In fact it could, I think it was the first or second show. Right at the start. 

Aled Davies:

Okay, so if you want to learn a little bit more about that go and watch This Week in Mediation one or two, I can't remember. Go watch them all anyway because they're all fantastic. All right, what's the next big trend that we're going to be keeping an eye on in 2017?

Nadja Alexander:

The next trend we'll be keeping an eye on is cross board and mediation practise and its legal framework. And now we started watching the developments at UNCITRAL, the United Nations Commission for International Trade and law and the initiatives there towards drafting an international legal instrument to expedite the enforcement of impossibility of cross board and mediated settlement agreements. We're going to continue to watch that space as it develops and as the negotiations continue and we're also going to follow some interesting practise developments around mediation and arbitration. Such as, third party funding for those dispute resolution processes. So we'll have more on that this coming year.

Aled Davies:

Okay, what's the third trend that we'll dominate our psyche this year?

Nadja Alexander:

Well we're going to be exploring some new forms of ADR. So one of those types of forms is the use of hybrids or multi-tier dispute resolution processes. Such as mediation windows and how that is increasing as a form of cross board and mediation practise. 

Aled Davies:

Did you say mediation windows then? 

Nadja Alexander:

I did indeed. 

Aled Davies:

What on earth is a mediation window? 

Nadja Alexander:

Aled, go and have a look at the Mediator Academy CPD video on Multi-tier Dispute Resolution Processes. It's where you get your CPDs. It's the online course on the website and it will tell you all about mediation windows and arbitration houses and all sorts of other exciting hybrid forms. That's right, a big slap on your wrist. But also processes such as collaborative practise and conflict coaching. Which in themselves aren't new but they're starting to get a lot more resonate in the ADR space and we're seeing them a lot more prominently in practise. So we're going to be meeting practitioners from those areas. 

Aled Davies:

Sounds very interesting. Okay, what else is coming up? Or should I say it so interestingly, what else is coming up?

Nadja Alexander:

Well can AI with robots or artificial intelligence? Yes I am. We had moon sweaters you may recall last year and I think robotics is going to be a very big theme. We talk about ODR and we think about ODR platforms and emails and chatting in video but I think it's going to take up massively in 2017 and will surprise us. So we'll be hot on the tail of our robot mediators.

Aled Davies:

I'm just going to add something on to that. I think virtual reality headsets. Now we're going to be covering virtual reality headsets and in 2017 we might even see the very first 3D in mediation show. So we'll keep you updated on that. So you might be watching this show with your virtual reality headsets on and you'll be sitting right in the studio with us. All right, what else?

Nadja Alexander:

I can't wait for that one. All right so the fifth trend that we're going to be covering is diversity in mediation models and we chatted a bit about that in the past but I think 2017 is going to take us to a new level of sophistication. I think we will see shifts in not just practise but also mediation theory and meditation training. Consciously embracing diversity. Consciously embracing different goals and different purposes and different values for mediation processes. And I think that may lead to a narrowing of the gap between meditation theory and practise and I know that's something that you feel strongly about Aled.

Aled Davies:

You know, just listening to these and we've got a couple of other themes that we're going to be following in 2017 but I just feel really excited about what's coming up. It's a bit like you know with plotting I don't know, a road map of developments of mediation throughout each episode of the show. Really really exciting. All right, more on that. More on my excitement a little bit later. What's the sixth trend coming up?

Nadja Alexander:

Well research, we're going to be looking at the latest research. New types of research and particularly looking at some research. Not just published research but we're going to speak to some researchers while they are conducting research. While they're in the process of doing the work. Newer science research, discourse analysis, action based research and all of this sort of work adds to the growing epistemology of mediation, right. The knowledge that you know, that is the foundation of its new professionalised field.

Aled Davies:

Fantastic little cross boarder, hybrid forms, robotics, research and meditation models, and finally what's the seventh trend on our radar? 

Nadja Alexander:

Well the seventh trend is really about the reinvention of mediators. How mediators are reinventing how they think of themselves and how they talk about what they do. And in a way it's picking up on Richard Susskind's end of the professions prediction. How traditional professions are transforming or falling apart in front of our very eyes and how does this link to the growth and development of mediation. There is for example, a trend for mediators to define themselves not just as mediators but as conflict specialists, as coaches, as communication experts, as conflict management architects. In different ways, right? Different, different labels to capture diverse and broader markets.

Aled Davies:

I can just see it now. Hello, Aled Davies. Conflict management architect, reporting for duty. Now it's interesting you say professor Richard Susskind. We've had a really illuminating interview with professor Richard Susskind last year as they were preparing this proposal for the administering justice online course and but it's a fabulous fabulous interview. A couple of funny stories around that but I won't share them just yet.

[00:10:20]

One story however I will share. We also interviewed Deborah Masucci. She is a cheer at the helm of the IMI and I remember speaking to Deborah and she was like, "Aled, I just watched the interview with professor Richard Susskind, fabulous. How on earth did you get him on the show? He doesn't even respond to my emails." Okay, enough enough.

Nadja Alexander:

Stop bragging.

Aled Davies:

We're just able to attract the brightest, the best, the smartest, the most interesting informative people onto Mediator Academy and I just feel privileged and blessed. Just saying. Just saying.

 

All right, so we've got an exciting year ahead for this week in mediation from Mediator Academy but for the mediation field and for the ADR field in general. Some fabulous themes there for us track and follow.

 

Now Nadja, let's get straight into this week's show. Did you know that January is considered to be divorce season. Now not so much the season to be jolly, apparently. The number of divorces is so high early in the new year that the first working Monday is nicknamed "Divorce Day" among some family mediation practitioners. I'm just wondering whether we'll see a shift from Divorce Day to Mediation Monday.

Nadja Alexander:

Aled, you are ever the optimist and I think that is fantastic blue sky dreaming particularly early in the new year. I think it should be one of our New Year's Resolutions. We'll turn Divorce Day into Mediation Monday in January. I think that's fantastic.

Aled Davies:

That's a great goal. Well let's plunge straight into the first story of this week's show. And this week in the UK as you mentioned in the intro, it is Family Mediation Week and we have a special guest in the Mediator Academy radio car who can tell us about Family Mediation Week, what it's about and what some of the events taking place around the UK, what we can expect. Let's go over to our special guest now.

 

Okay, we've got Philippa Johnson. Vice chair of the Family Mediator's Association. In the Mediator Academy radio car, good morning Philippa.

Philippa:

Good morning Aled, it's lovely to see you.

Aled Davies:

You're looking very comfortable in our radio car there.

Philippa:

It's a magnificent thing 

Aled Davies:

Thank you for coming, coming onto the show. Tell us a little bit about Family Mediation Week.

Philippa:

Okay, the aim of Family Mediation Week is to raise awareness of family mediation in the public in general. We did some research last year, published last year. Which identified the fact that many many people don't even know what family mediation is let alone have a sense that that's something that they could look to if their family relationship broke down. If their family relationship broke down. So we thought it was important. This year we're focusing on children's perspective of separation and divorce and why family mediation can help children in particular.

Aled Davies:

That's fascinating and what events are going on this week, got going on this week?

Philippa:

We focus on very local events. So our website. We have two websites, The Family Mediators Association website. Which has lots of information on it. We also have a dedicated Family Mediation Week website, familymediationweek.org.uk and on that our members are any family mediators anywhere composed on the map saying, "We've got an event happening here." So there are an enormous number of events happening all over the country on different days, offering different things trying to get local people to come in and participate.

Aled Davies:

Okay and you said that not many people know about family mediation and you were giving an example earlier in our conversation about somebody having a chat with a hairdresser. I mean, what are the courts doing to promote and integrate mediation into the process?

Philippa:

There've been some really big strides taken to try to do that. Everybody who applies for it to make a family law order has to go to a mediator, see a mediator first. I'm sorry, I'm being very careful about my language because it's very often reported as has to mediate and as we all know meditation is not compulsory, you can't make somebody do that. But the courts require that you, before issuing that application you have to see a mediator and that means that they have to have heard about their options. Including options from mediation. That would be fantastic, if it always worked. That idea is that is if somebody hasn't done that the courts won't see them, won't actually consider their application. In many court areas they are so busy and they are so frazzled by the current experience of litigation, that if someone doesn't prompt them they simply say, "Well all right. Forget about that. We'll see you anyway."

Aled Davies:

Okay.

Philippa:

Some areas are really rigorous about it and some areas aren't. So many people do get to court without having spoken to a mediator first.

Aled Davies:

Okay, I mean that strikes me that that is such a key aspect of the entire process. That early interface with the separating couples and you know just being able to have a conversation, understand what their concerns interests and needs are and being able to - I mean what's the role of the mediator in that?

Philippa:

Is very much an information giver. We are required to give information across the board. There is an argument, isn't the mediator? And the answer is because the hope is, the governments hope is, the court's hope is that mediation will get a special emphasis. Will be seen as particularly positive step, once you've met a mediator and understand what they do and that's great when it works. I would say one of the weaknesses is that you don't necessarily get to see both people.

Aled Davies:

Right.

Philippa:

If one of the - If the person making the application has to come see the mediator, the other person doesn't and we normally do get to see both people but many of my colleagues complain that's a really big problem.

Aled Davies:

Yeah, I can imagine and help me understand this. What extent does the family dispute resolution shifted from a traditional adversarial framework to a more collaborative framework?

Philippa:

In some senses it's done quite well. There are various protocols which solicitors, particularly members of resolution are expected to follow. Which are about dialogue rather than about shifted straight into litigation. However, I don't think I'm alone in feeling that many solicitors who signed up to those protocols actually take a pretty adversarial stance almost straight away. Collaborative law is a difficult one. Many solicitors and many clients really like collaborative law but it's an expensive process and if it doesn't work it's a very expensive process.

Aled Davies:

Okay, I see. So Family Mediation Week is for the public to raise awareness. It's particularly focused on the involvement of the child in the process. Is that right?

Philippa:

This year, yes.

Aled Davies:

This year, yes. So what can mediators do to really get behind this initiative and help get the word out and promote Family Mediation Week?

Philippa:

The big thing for us is to engage with materials that we're producing. So as I said, our events are very much local but as an association what we've tried to do is to make sure there's something to talk about. Something to focus on each day. So we've produced a video for each day. Sometimes in collaboration with other mediators. So for example, Scott Docherty of Scotland has very kindly let us use one of his videos. Which is absolutely lovely. Which is coming out on day four and on Thursday. Really it's going on to our websites. Looking at the materials we've produced. By all means being critical of them, saying what people think but just engaging in a conversation about it. Mediation is always about us having a conversation. That's what we're really aiming for at the FMA.

Aled Davies:

Brilliant and we're having another conversation Philippa and I really appreciate your time. If you just ask the driver to drop you off at the next, at your next major appointment.

Philippa:

I've got a mediation next in fact actually.

Aled Davies:

Oh great, okay. At your next mediation. Listen thank you so much for taking the time out today. Best of luck with your mediation. Best of luck with Family Mediation Week. Mediator Academy going to be supporting it. We've got a bunch of things going out this week as well. So have a wonderful day and thank you so much.

Philippa:

Thank you, really appreciate it.

Aled Davies:

So, mediation really does make a difference in terms of sustainable benefits for disputing spouses and their children. It's clearly a multi-disciplinary approach.

Nadja Alexander:

Yes, I hear in Singapore the family justice court has been working towards a softer approach to resolving family disputes but also very consciously working on a multi-disciplinary approach and I think you know this is the case in many countries. For example, here for all contentious child cases counselling and mediation is required and there's a pilot programme that also includes a therapeutic interview with affected children and that's mandatory. And it seems this helps parents appreciate the consequences of their actions on their children. So that they can then think about how they divorce or as we say nowadays, decouple in a way that works for everybody including the children. And you're right it is multi-disciplinary. 

 

I mean in a recent speech the Chief Justice here in Singapore. Chief Justice Menon spoke about some of the different professions and some of the different professionals involved, who could be involved in one family dispute resolution case. For example, the family law practitioner advocating for his or her client and yet being sensitive the needs of the children and the post divorce family relationship. You've got counsellors, mental health professionals are providing therapy. Mediators, you may have collaborative practitioners. We'll talk about those later in the show.

 

Also you know, from a longer term perspective academics involved in pushing the boundaries of family law and re-imagining the ways that we think about issues. Social scientists conducting empirical research. Policy makers right, Who are actually very busy because so much is changing in this field. Court staff who've managed the cases and actually made decisions. Sometimes about which matters go to mediation, which matters go to counselling, which matters might go straight to court for an in term hearing. And of course judges who you know, who need to deal with every single family dispute as an individual dispute but get think about family disputes in terms of the greater law and in terms of precedent. So it's really a collective enterprise. It's really rooting towards something quite different to our traditional family litigation scene.

Aled Davies:

Yeah and it's not just mediation is it? There's multi-disciplinary approach with a range of processes such as collaborative practice. I mean, tell us about that. 

Nadja Alexander:

Well collaborative practise is also known as collaborative law but I think we tend to use the word collaborative practice now because there's not just lawyers who are doing it. It's I think most popular in family disputes but again can also be used in others areas and essentially it's a [inaudible 00:23:03] The legal representatives of two disputing parties. For example, a couple who are separating agree by contract to use collaborative principles, which are pretty similar to many mediation principles, agree to use these collaborative principles to try and work with their clients and find a solution that's neutrally acceptable. What's interesting is that in this agreement, the lawyers agree that if they cannot help their clients to find an amicable solution and if the matter should go to a determinative process such as court, those lawyers will step back right and they will not represent the client anymore. So basically, they lose they don't have the case anymore. That's where their income ends.

Aled Davies:

Yeah, that's very interesting. Okay Nadja, before we go into the show you talked a little bit about or you mentioned that we would be covering an article from the Economist that I think talks about something similar, is that right?

Nadja Alexander:

Yes, well there's a really interesting article in the Economist hot off the press called, Disruptive Innovation. So I think it's based on the idea that you know that innovation involves disrupting the typical pattern and if you think about you know the typical pattern for typical dispute resolution. It's adversarial, particularly in the US and this is about innovation in the US. You know, it's adversarial. It's competitive and you know it's based on a win-lose paradigm. 

 

So the article reports on a state of start ups that offer alternatives to traditional divorce and I think are very similar to the collaborative approach that we've just been talking about. So Economist talks about the Centre for Out of Court Divorce. Which in the US offers a more collaborative approach. Now listen to this Aled. For a flat fee of $4500 USD partners who wish to decouple, now I should say we don't talk about divorce anymore because in an ageing population. We have fewer divorce, the divorce rate is actually declining. 

Aled Davies:

Okay. 

Nadja Alexander:

Right. So if you talk about divorce, divorce mediation it's not necessarily a booming field. The divorce rate is declining but it's declining because in an ageing population fewer people divorce but also fewer people are getting married but they still separate. So you can get skewed results if you just talk about divorce and divorce mediation. So we're talking about decoupling, as Gwyneth Paltrow has taught us or uncoupling, as is the phrase in this article. 

 

So partners who wish to uncouple or decouple pay a flat fee of $4500 and they're provided with a customised package which includes, mediation and counselling, some financial planning and help with custody schedules. Now interestingly and I suspect this might speed up the negotiation process, they are given a windowless conference room according to the article and here the aspiring divorcees or de-couplers can sit at a table with separate boxes of tissues and multiple calculators. Of course they have a white board, which they can use to help work out their schedules and budgets and across the hall is a play room for children. Now this is not just to entertain the children. There's also a therapist who might be there watching how the child responds to various toys. For example, does the child gravitate towards the miniature green bottles in the dolls house? And if so, this might apparently prompt the therapist to find out whether one of the parents has been drinking to dull their pain. 

 

Anyway, they say divorces and decoupling takes around 40 hours spread over six months but of course how long is a piece of string? The time could always vary. Now Aled, what do you make of this?

Aled Davies:

Well 40 hours coincidentally is the same amount of time you can become an accredited mediator, just saying.

Nadja Alexander:

They're paying.

Aled Davies:

But you couldn't do it for $4,500 though right? All right, Nadja we've reach that point in the show now where we're going to look at the question of the week and to continue the theme. And here it is, what do you think of the move towards multiple multi-disciplinary processes in family dispute resolution. Is all this choice good or is it just confusing? What does it mean for you and your role as a mediator, as an advocate, as a coupled decoupler or dispute resolution practitioner? Send your answers in on a postcard or put them in the comments box below. You're probably going to get a response if you do that rather than a postcard.

 

It's been a great show. Feel good to be back in the saddle Nadja.

Nadja Alexander:

Absolutely.

Aled Davies:

All that's left for me to say is it's goodbye from me in Mediator Academy in London.

Nadja Alexander:

And it's goodbye from me, Mediator Academy in Singapore.

Aled Davies:

See you next week.

 

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