This Week In Mediation

Mediation News - This Week In Mediation - Episode 1

Posted by Aled Davies on 20-Oct-2016 11:04:23
Aled Davies

In the first broadcast of This Week In Mediation, presented by Professor Nadja Alexander and Aled Davies, we look at a round up of events that took place during Mediation Awareness Week in the UK and Ireland. We talk to the President of the MII to get the inside track on the draft Mediation Bill as well as the new German Mediation Accreditation Regulation.

Also on the show we examine a case from the Indian High Court on whether criminal cases are suitable for mediation. As the conflict in Syria continues to escalate we look at the role of mediation and negotiation in reaching peace agreements and what mediators can learn from these processes to improve their own mediation practice. All this and more coming up in this week's show.


Mediation News - The Full Transcript

Aled: Hi. I'm Aled Davies and welcome to Mediator Academy’s roundup of mediation news from around the world. We'll try to be as informative, illuminating as possible. We might even be outrageous. Welcome to This Week In Mediation. My co-presenter on the show is Professor Nadja Alexander. Hi Nadja.

Nadja: Hi Aled.

Aled: What have we got coming up in the show today.

Nadja: Today we've got a number of interested news items from around the world. We're going to start off by taking a look at Mediation Awareness Week which has just been happening in the UK and then we're going to move to India and have look at a court ruling that relates to mediation. We're also going to look at the issue of training and standards and some developments in Germany, look at mediation in the political sphere, something very relevant particularly with the Syrian conflict happening all around us and then some interesting research from the Harvard Business Review.

Aled: Sounds great. Where should we get started?

Nadja: Let's start with Mediation Awareness Week and, Aled, I think you have just been presenting at Mediation Awareness Week in London.

Aled: Yes. Mediation Awareness Week finished on Friday in, I think the UK and Ireland. Ireland were the first innovative lot to get Mediation Awareness Week started last year. I think it ran from the 11th to the 14th or the 10th to the 14th in Ireland and it was a bit longer in the UK. I attended a few events in London and I went out to Dundalk for the Mediator's Institute of Ireland annual conference which is all part of Mediation Awareness Week. Essentially we've got dozens of events taking place in the UK and dozens of events taking place in Ireland, the idea being just trying to raise public awareness to mediation.

Nadja: Who attends these events?

Aled: That's a good question. I think, and certainly in the UK, the first event was run by the London Community Mediation Association and largely the audience was made up of community mediators which are volunteers from the 9 different London mediation charities that tend to mediate neighbour disputes, gangs, and so on, but there were some workplace mediators, a few commercial mediators, very informative, very interesting. Other events that I attended were mainly for commercial mediators and the users of commercial mediation. Although what was very interesting, I didn't think there were many users of mediation at the events that I attended. I might have missed a few. Which kind of makes me think about how effective these events actually are.

Nadja: That right. We were talking about Mediation Awareness Week and most of the people who are attending our mediators, our mediators who are already aware of how useful of how mediation can be and it's a question of outreach I would have thought. I attended an event. It wasn't a mediation awareness event it was an event in Hamburg a week or two ago and it was a conference on the conflict management round table which was basically in a sense celebrating the end of a 10 year project with corporate Germany. It was a project between the university, the Viadrina University at Frankfurt Oder and it was also done in partnership with [inaudible 00:04:02].

The interesting thing there was that unusually ... Because the reality is mediators spend a whole lot of time talking to one another, right? We know we're nice people. We enjoy that but whether it grows the field is another issue. The interesting thing here was that over the past 10 years in this project, I had really been working with in house counsel and human resource departments to try and build conflict management systems featuring mediation in other processes and to build a different culture of mediation.

It was interesting to see that some of these people had become accredited mediators which was a good thing because I think they play a really interesting role in the intersection between users and service providers but they were first and foremost representatives of their corporations. Basically, the mediation advocate role.

Aled: Yes.

Nadja: I thought that was really important to reach out to these people and to be be working with them.

Aled: Yeah.

Nadja: We would like to see more of that in mediation awareness weeks.

Aled: I think there were a number of outreach programs in Ireland where they had clinics where people could walk in, drop in, certainly in the family mediation context. Users could learn more about the various services on offer. What was really telling for me in the UK ... I picked up the Times on my way out to Ireland and there was a little article in the legal section of the Times and it said "This week it's the Civil Mediation Counsel's Mediation Awareness Week." Which of course, it wasn't the Civil Mediation Counsel's Mediation Awareness Week."

I think that was indicative of some of the fragmentation in the UK and some of the challenges ahead for the various groups of mediators in the UK. Ireland, on the other hand, seemed to have their act together because at their MII Conference you had family mediators, community mediators, workplace mediators, civil and commercial mediators, and now whether that has anything to do with the fact that very recently the government in Ireland have announced that the mediation bill has been bumped up the legislative agenda and word around the campfire is they are going to have this thing closed out by the end of the year. Now, I don't know whether that's an official line yet and hopefully we'll have the president of the MII, Sabine Walsh on the show a bit later who can confirm that. I don't know.

Nadja: That would be very soon. That would be amazing to have that pass by the end of the year. If my memory serves me right as I've seen a previous drop, there's a section in that bill that requires lawyers to consult with their clients about mediation just as a matter of course. In fact, it poses a new duty on legal advisors. I think that's also a really important role because it highlights the role of lawyers and advisors as gatekeepers so that's also an outreach into involving users. In a way, lawyers are users as well. They are professional users of the mediation process.

Aled: Yes. There was a bit of research that came out today, I think, from the IMI.

Nadja: The International Mediation Institute has done a number of international surveys as an international institute would, on mediation and they just completed one this year. There's a whole lot of interesting points that they've picked up but one of them, interestingly, was related to the perception of users and users seem to think that they knew more about mediation that their lawyers gave them credit for and the lawyers seem to think that they (the lawyers) knew more about mediation than their clients gave them credit for.

It really seems to be a bit of a disconnect between lawyers and their clients and that's really an area that we should pay some attention to and maybe if this mediation bill is passed in Ireland, fingers crossed, that provision can help do some work in that area. Because you're right. I think there's a danger coming back to your point about fragmentation in the field, that the field starts to split. When we split we have a less stronger voice. It's possible also that by bringing users to the table and giving users a stronger voice that that's also going to unite us as service providers.

Aled: Yes.

Nadja: Yes.

Aled: As you're talking now I was reminded of one of the keynote speakers at the MII conference was a gentleman called Ashok Panikkar from India, a very inspiring character. You mentioned something about a case recently in the high court in India.

Nadja: Yes. It's the High Court of Rajasthan so there's been a recent ruling of the High Court of Rajasthan which has offered a bit of controversy. There's been a recent article in the New York Times about this. There was a previous ruling of the Supreme Court which basically, categorically said that cases of rape could not be mediated. Then this matter went to the high court and effectively the ruling of the high court has overturned this and made it possible for cases involving rape or attempted rape to be subject to conciliation or mediation.

Aled: Right.

Nadja: It opens up this whole question, I think, of what matters are suitable for mediation and what aren't.

Aled: Does it suggest that there are certain criminal cases that aren't suitable?

Nadja: It definitely leads into this whole question ... I find this a lot that people say to me "Criminal matters would certainly not be suitable for mediation." Yet it's interesting because there are many victim offender mediation programs around the world also family conferencing programs which relate back to family matters but often to youth offender matters that are highly successful and they draw on restorative justice principles which have a long history. I think one of the misconceptions is that if you mediate a matter that is potentially a criminal offense, then somebody gets away with something.

I think it's missing the point that there's victim/offender mediation or whatever name you give it doesn't have to be mutually exclusive from trial or mutually exclusive from punishment. You can go ahead with the trial. You can go ahead with the punishment and you can still have a mediation because what's the point of a mediation? There might be different goals and in some circumstances there may be real benefits. If a victim is motivated and if an offender or religious offender is motivated to come to the table and talk about what's happened there can be real benefits for both parties to see, for an offender for example to understand the real human consequences of his or her actions and for a victim to have a voice.

In a courtroom a victim usually loses his or her voice and for a victim to have a voice. I see this often in victim/offender motives involving youth offenders, also sometimes for the victim. For example, there's a young kid next door whose scratched the neighbours car or vandalized their gate or something and for the victim and in this case the person with the car or the gate to understand the circumstances surrounding this youth offender and their life and what set of circumstances put them in a situation that led them to do this act. That can be very meaningful.

Aled: Yes. I'm referring a lot to the MII conferences. Fresh on my mind there were some great things going on there and they had different workshops and role play activities taking place. They would have in one room there would be members of the MII playing roles in a commercial dispute and someone mediating and then the group would then observe and ask questions and offer feedback. In another room there would be a workplace mediation. In another room there would be a family dispute. You had these range of different types of mediation, different approaches to mediation and now listening to you describing some of the other types of cases that could be mediated just makes me think about actually ... Appreciate what's involved in becoming an effective mediator. Not just the skills. Not just the different process but the theoretical base behind your practice. Your emotional awareness, your emotional literacy, your emotion tells all of these things. Surely we need more than just the 40 hour course, right?

Nadja: There are different views on that but I certainly would agree with that. One of the interesting things that's occurred in the last month is that Germany have finally come out with their regulation on training and accreditation. This is being long anticipated among German mediators. It's also being met with some mixture of views. While on the one hand the regulation states that mediators need at least 120 hours of training which is clearly a lot more than 40 hours and also a real case in one on one supervision and this also set out in some detail the type of knowledge and skills and ethical awareness that a mediator needs to have.

Where there seems to be a big gap is that there is no quality assurance of the type of cause. In other words, if I'm a mediator I can do ... It seems that I can do any 120 hours that I say meet these requirements and then by self reporting I just say "Hello, I'm not a German mediator" but I self select my 120 hours and I guess the government trusts me to report accurately. While on the one hand you do have requirements that suggest a more thorough training than the typical Anglo American 40 hour approach, which I think is a good thing. On the other hand, there doesn't seem to be a lot of accountability for the standard or quality of that 120 hours.

Aled: Yes. I'm just wondering to what extent the mediation bill in Ireland will have an impact on accreditation, on the regulation of enhances the credibility of mediators. One of the bits of research that they talked about at the conference was quite a number of mediators in Ireland are doing pro-bono or working for free and when you do something for free or do something pro-bono sometimes it can diminish the value of the service that you are providing. It'll be interesting to see what comes after that mediation bill.

Just thinking of some of the skills and the importance of adding a theoretical base to your practice. Professor Carrie Menkel-Meadow ran a workshop on Friday out in Dundalk and the title was a twist on the Shakespearian to caucus or not to caucus that is the question. What was very interesting, Carrie told a story about the negotiations that took place in Camp David back in '78 I think between President Sadat and the Israeli Prime Minister Menachem Begin and Jimmy Carter was the chief negotiator.

They took place over 12 or 13 days and resulted with the Camp David Accord and an agreement reached. Compare that to Bill Clinton's negotiations at Camp David in 2000 between Yasser Arafat, the Palestinian Authority Chairman and also was the Israeli PM. Clinton got things underway, got the negotiations started and then midway through the negotiations decided that he was needed elsewhere and hopped on his chopper and left Camp David a few days and returned at a later stage in the negotiations. Carrie was talking about how when she learned about this thought "My goodness this is a disaster" ... As a consequence ...

She was speculating that whether it was as a consequence of a Clinton leaving Camp David during the negotiations but she used it to illustrate the point that when you are caucusing as a mediator you have be around. You have to keep the parties informed. You have to be available at all times on top of having this stamina to go through the night if you have to.

Nadja: It's not a fly in, fly out job.

Aled: It's not a fly in, fly out job. It kind of illustrates it again that not just the depth in skill but really understanding what the reasoning behind all of your interventions and your process design.

Nadja: It makes me think talking about political mediations and if we have jumped Syria. There was a very interesting article recently in the New York Times about peace agreements and seize fire agreements and they were connecting it to a recent seize fire agreement in Syria and the idea that many people were saying "Well this won't last very long." The article was quite interesting because it pointed out that the research on real seize fire agreements, so looking back over history shows that a seize fire agreement or a peace agreement has more chance of sustainable success, of lasting if there have been previous peace agreements or seize fire agreements.

In other words, just because a seize fire agreement 'fails' doesn't mean it's a bad thing because it's probably a step in a series of seize fire agreements that will hopefully lead to a more sustainable agreement and if you think about what we learn in mediation it's like small agreements lead to bigger agreements. We start to create a climate of agreement, a climate of yes, a constructive negotiation climate. This article talks about virtuous cycles. That you can have a seize fire agreement and it might fall over but if you keep talking and bring the parties back to the table, you can create a virtuous cycle.

For me, there is a risk that this virtuous cycle can become a destructive one and distrust can emerge, right? When people break their seize fire agreement but I think a lot of that, or some of that, at least, comes back to the role of the diplomats, negotiators, and the mediators involved. Because is the peace agreement the end? Or is it the beginning? If you think about these political conflicts that have been going on for years or decades or centuries and we think "Oh okay, we fly in a mediator and we spend one week or two weeks and yes maybe there's being some prep and maybe there's a big of follow-up" but then we sort of seem to expect that its a done deal and that if it falls apart, the parties just haven't complied, have been non-compliant.

It's really for me if we start to see the job that the peace agreement is the beginning of a long process of making peace. The mediator sees his or her role, and it's usually a team of people as keeping that dialogue going. I think there's a lot more chance for our field to have an impact in political conflict.

Aled: Yeah. There's a question for you. Is the peace agreement the end or is it the beginning? How about this for a question. Is antagonism the new neutrality? Tell us about this latest bit of research, Nadia.

Nadja: Yes. There's a really interesting piece of research that's being published in the Harvard Business Review. In fact, it's research by, I think 3 researchers from the Harvard Business School and from the Columbia Business School and they have found that an antagonistic mediator can be more effective in encouraging parties to reach an agreement more effective than a nice mediator and even more effective than a neutral mediator. What does antagonism mean? In the article they talk about the ability to speak gruffly, to be abrasive, and to use sarcasm and these were all qualities of the antagonistic mediator. The idea is if both people find this person so distasteful, both parties, both adversaries, they can only combine together and reach an agreement just to get the antagonistic mediator out of the room.

This is serious research and it does call in to question the role of the mediator and when I think about what we teach people in mediation, we talk about building trust and building rapport and being respectful and of course being neutral is one of the cornerstones of the process and one of the interesting things about this research is they then research your whole line of other research in different fields which seem to point to the same phenomenon that a common enemy can draw adversaries together.

Aled: Very interesting. Very interesting. I wonder what our audience will think of this.

Nadja: I'm dying to know.

Aled: We'd love to hear from you all. We'd love to hear what you think about antagonism as a quality of a mediator and is antagonism the new neutrality.

Nadja: Apart from that we always want to hear from you. We'd love to hear your stories. We'd love to hear your news items and, Aled, when we get those we are going to pass those through to our researchers aren't we?

Aled: We certainly are and I'm sure they will sift through them and choose the best and the worst so that we can bring them onto the next show in a week's time.

Aled: I think we've got the President of the Mediators Institute of Ireland joining us, Sabine Walsh.

Sabine: Yes.

Aled: Hi Sabine.

Sabine: Hi Aled. How are you?

Aled: I'm good. Thank you. I thank you first of all for joining us on the show.

Sabine: No problem.

Aled: I imagine you are extremely busy debriefing the wonderful conference that you put on last week and over the weekend.

Sabine: We did most of that in the bar on Friday night I think.

Aled: So I gather. I want to ask you for our audience. I mentioned on the show that the mediation bill is currently being kicked around in..

Sabine: Mm-hmm (affirmative)

Aled: Can you say a little bit more about that please?

Sabine: Yeah. I think the mediation bill is probably very bruised at this stage as it's in fact being kicked around for 4 years now. The bill was first conceived or it's first iteration was published back in 2012 and we had high hopes at the time that we would be looking at a comprehensive piece of mediation regulation very quickly but for various reasons it sort of went dormant for a few years but we have now heard the very excellent news that it has been put on the priority list on the legislative program for the current government for the autumn. We are hoping to see a publication very soon. The administer has indicated that she would like to have it published before Christmas. We are waiting for this obviously with great anticipation because we've been waiting for it for a long time.

Aled: Okay. Can you revel or do you know what the main bits of it are.

Sabine: We don't, actually, because the way the legislative process works here we saw a draft general theme of it 4 years ago and there was then some public consultation on it. We are anticipating that the bill that will be published shortly, we hope that it will in some way incorporate some of the feedback from that public consultation but we would be expecting that it will set up a regulatory framework for the mediation process and address issues like confidentiality, triggering of mediation processes, and enforceability of mediation agreements and that sort of thing. I suppose as the kind of the professional association for mediation is one that is very ... We did a lot of work on training and standards ... We would be hoping that it will address the regulation of the professional practice of mediation as well.

Aled: That's great. Thank you very much, Sabine. We wish you the best with that and hopefully when it does get published you will come back on the show and tell us a little bit about what's next for mediation in Ireland.

Sabine: Absolutely. My pleasure.

Aled: Great. Nadia. It's been a pleasure. Until next week.

Nadja: Until next week. It's goodbye from Mediator Academy in Berlin.

Aled: And it's goodbye from Mediator Academy in London.


Topics: Mediation News


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