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Turning Points

by David Hurley
March 2010

First presented to an AMINZ (Arbitrators and Mediators Institute of New Zealand) Conference in August 2009.

David  Hurley
I wish not only that my city, but all give themselves to the essence of our cult – the ritual assembly of an interested coterie in a space where magic can be made and miracles occur. Bruce Mason “Theatre in 1981: Omens and Portents”. From a plaque in his memory near Circa Theatre, Wellington, NZ presented by Christopher Finlayson[1] and Dame Diana Mason

The impetus for this paper arose from an early appreciation that the experience of mediation could and does lead to personal growth of participants including not least the mediator. Moreover, in some mediations events occurred that were extraordinary in their impact on the participants with almost miraculous insights gained and impasses broken. What is this magic? How is triggered? What skills and processes open up such possibilities? Is there a typology of cases that lend themselves to such outcomes?

It is submitted that the ability of the process to deliver unique outcomes defies such analysis; but that there are many factors that can enhance the opportunity for such breakthroughs of which the active creativity of the mediator in helping parties co-form the conflict resolution environment and guiding them through the process is an essential aspect.

Do we, however, really understand the extent of the impact our decisions on process have on the parties own substantive decisions and their future relationships and conflicts?

This paper draws together a number of themes that bear on how the parties reach the “Ah Ha” moment and emphasises the importance of the mediator’s role in co-forming the conflict resolution environment.

A turning point in mediation can be defined as a moment when a party shifts from the line they have been taking to a different tack that has the potential to impact the substantive outcome. It can be positive or negative; and initiated by the parties, their advocates or the mediator.

From a mediator’s point of view the environment can be made more conducive to such outcomes by “staging” how and where the process is held, the mediator’s personal presence and appropriate interventions. It may for example be through curiosity and questioning; use of the BATNA and WATNA [2] analysis; or picking up positive subtexts in an otherwise negative account. Negativity from parties or advocates (for example “I can’t possibly allow my client to accept that!”) may create extra challenges to defuse. Different parties will require different responses though a maxim might be that the less a mediator intervenes and the more the parties get there themselves the better. The skills of the mediator lie in observation and taking a minimalist approach that may vary from that of a bit player to a lead role.

Inappropriate behaviour by a mediator, such as ostensible bias, impatience, or breach of confidentiality within the process can produce negative results. Likewise advocates chatting to their client while the other side is speaking will trigger an adverse reaction. In this paper however I want to focus on the positive.

Recently I invited my Wellington Department of Labour colleagues to try to capture such moments – turning points - in mediation to see if some theory could be developed that might inform practice. Examples reported however lead to the conclusion that every such event arose from the particular circumstances and uniqueness of the parties involved.

This reality brought me back to my early training in which I was taught to “trust the process, trust the process and then if in doubt trust the process.”

I give three examples such cases:

The first case involved a blue collar worker who had been injured on the job. He had spent some weeks at home unable to do more than sit on the couch in front of TV. (His wife was pregnant and they had 3 other children less than 4 years of age.) Prior to the accident he had worked on night shifts earning penal rates; but on his return the employer had placed him back on day shifts until a vacancy occurred. The employer had him back on night shifts promptly and before the mediation took place. The worker wanted payment of the difference in income of about $400 taxable. The employer could not compromise the right to allocate workers to shifts as it saw fit; but did not want a disgruntled employee. What to do? Mediator to worker in caucus: “How was life for you and your wife whilst you were at home?” Worker – “Not good. Still isn’t”. Mediator: “Would it help to have some counselling help to get past this patch in your lives?” Worker after some time gazing into the distance: ‘Yes I think it would.” The upshot was the employer was happy to pay over $1,000 for a course of relationship counselling for the couple, and both sides left on a high.

Two men ran a fast food outlet. One, the employee was alleged to have swung a punch at the other, the employer. After a year a criminal charge of assault had been dismissed and the issue came to mediation. In the meantime the men’s respective sons had played in the same rugby team and their family members had had to stand on opposite sides of the field. The advocates on each side were contentious, but the body language of the men reflected pain. After two hours of rancour the mediator suggested the parties might meet with him alone. The worker (in private session) said to the boss “I know my lawyer is asking for $7,000 in there but I would accept $1,000.” The boss stood and spoke for some minutes – inarticulate, made little sense, but the clear message was “I am hurting too.” Impasse. Everyone stared at the table. “What” asked the mediator “would have happened if at the time of the incident you had agreed to terminate the employment without blame – just on the basis it was time to part?” The worker immediately said “I would have accepted two weeks pay.” (He was part-timer – less than $400.) The boss stood and came around the table to shake hands. Then both men as one put their arms around each other and wept on the other’s shoulder. As they left they were heard arranging to share a meal together.

A young man came to mediation the day before appearing in criminal court proceedings on a charge of theft as a servant to which he intended to plead guilty. His union wanted the employer to get its investigation processes (independent of the police) in order and thought $1,000 for the worker would sink the point home. The employer acknowledged its investigation was faulty and would fix it for the future, but didn’t want to either face litigation or reward its ex-employee for bad behaviour. What did the young man want to achieve? “I would like the opportunity to apologise to my work mates who supported me and whom I betrayed”

Mediation has a lot in common with theatre. A mediator is responsible for either creating or adapting the physical, emotional, psychological and spiritual environment in which the conflict resolution occurs and for establishing and maintaining safety throughout the process. There are times when what we do is a performance in which dramatic events can happen.

Contribution of the parties and advocates

The case studies above demonstrate in part the positive energy and wisdom brought to mediation by the parties themselves and by their speaking from the heart. Similarly advocates can help break impasse sometimes by taking the blame for the decision (as in “I know you don’t want to pay a cent; but I can certainly advise you it is in your interest to settle at this figure rather than fight it in Court.”)

Co-forming the Conflict Resolution Environment

Staging, scene setting and Costuming

Continuing the performance metaphor, I do not intend to spend much time on the “stage setting” (as all this is well known) – rooms, chairs, tables (or not), seating layout – or indeed the costuming. Though as any good host would say – one dresses for the expected most casual of appearances from the parties (not the advocates and lawyers) so that all can feel accepted and not out of place.

Similarly all mediators will have their own basic opening statement or pre-briefing of parties so that the initial fear of the unknown will be removed.

Interventions

“Turning points” are not necessarily the same as impasse breaking although the former may affect the latter, and many strategies will be the same.

The textbooks contain considerable lists of interventions appropriate for impasse breaking. These include such obvious skills of clarifying, reframing, unpacking underlying issues, and keeping the parties focused. Professor John H. Wade of Bond University lists a repertoire of some 44 interventions [3] , but highlights the absence of research on their effectiveness.

Associate Professor Lim Lan Yuam [4] of the National University of Singapore offers some nine useful interventions based on practical experience as a contribution to the discussion. He emphasises the importance of power-balancing and empowerment of the parties so that responsibility for the solution does not move to the mediator – that is, away from the parties who have to live with the consequences.

A typical list however would include matters such as:

a. Building rapport
b. Empathetic listening
c. Creativity
d. Honesty, ethics and trustworthiness
e. Humour
f. Effective communication skills
g. Engagement with emotions
h. Use of logic and analysis of WATNA, BATNA and MLANTA
i. Unpacking underlying impediments to resolution
j. Identifying non-contingent and contingent needs and interests

The Mediation Style

The issue arises of whether a particular style might generate “Ah Ha” moments more than others. In that regard there have been an almost explosion of styles over the last decade as more and more research and study has been undertaken.

In July 1995 Carrie Menckel-Meadows [5] identified some styles of mediation as:

1. Pure
2. Evaluative
3. Transformative
4. Bureaucratic
5. Community based
6. Open or closed
7. Activist or accountable
8. Community
9. Pragmatic or peacemaking and reduction of violence

A list today (not exclusive) might read however:

  • Settlement (focus on the issue alone)
  • Facilitative (helping get there)
  • Therapeutic (from counselling)
  • Evaluative (more for lawyers or experts in a technical field) [6]
  • Transformative (Folger and Bush) (the first big “Shift” process based on helping each side recognise the issues for the other and empowering them to get there. The problem is seen as being indicative of the underlying malaise, and that, if dealt with alone, will not result in resolution)
  • Narrative (Winslade and Monk) (where parties tell their stories of their experiences, and finding the common story between them they can both accept may be the pathway through the problem)
  • Consultative intervention (Danesh and Danesh)
  • Pro-active, unity centred and evaluative
  • Strategic (Kressel)
  • Insight (based on the work of Canadian Philosopher Bernard Lonergan; proposed by Picard and Melchin) (Key features: non-judgemental stance; curiosity; strategic questioning; “there are facts in the feelings” and also identifying what each side fears for their interests and values if the other’s needs are fulfilled.)
  • Spiritual (See Erica Ariel Fox and K. Cloke)
  • Understanding Model (Friedman and Himmelstein) - core values: a. relying on the power of understanding rather than coercion
    b. The parties are primarily responsible as decision makers
    c. the parties should best work together in reaching resolution – rather than caucusing
    d. It is best to uncover what lies under the level at which the parties experience the problem – on both substantive as well as interrelational level)

Note that some skilled mediators will use hybrid models or pick and choose amongst them according to the need of the parties.

It is not the purpose of this paper to discuss and draw distinctions between these styles, beyond saying that each has its interest and knowledge of the elements of and philosophical base of each can be helpful in adapting to any given situation. Note however a recent study that highlights the differences between what mediators say they do with what they actually do; coupled with the difficulties of definition. [7] See also “The Mediation Metamodel: Understanding Practice” Nadja Alexander [8] . This article very helpfully introduces 6 mediation practices within the meta-model, namely settlement model, facilitative mediation, transformative mediation, expert advisory mediation, wise counsel mediation and tradition-based (indigenous forms of) mediation. The author discusses the various advantages and limitations of these practices and suggests the analysis can be valuable in identifying suitable processes (and mediators) for any particular context.

Without empirical evidence either way, I suggest that it is reasonable to assume that those practices (or strategies within a framework) involving focus on relationship issues are more likely to have the “Ah Ha” effect than those based purely on the logical analysis of the presenting issue.

Timing

Just as a playwright would not provide denouement half way through the play, so timing is important for mediation. In particular the sequence of each telling their perspectives and then exploring those issues are essential steps before problem solving. Parties need the time to reach their own conclusions, even if the answer is obvious to an outsider. Some mediators with greater gravitas may use timing differently than others. One of the strengths of mediation is in the wide range of personalities and backgrounds from which mediators are drawn. Being oneself, playing to one’s strengths and being consistent in the role are all elements in developing trust.

What about the “Presence” the mediator brings to the process? [9]

Some years ago I asked a senior employment lawyer who had experience with mediation throughout New Zealand what, in her view, made the difference in mediator attributes in intractable cases. Her reply: “It is the amount of positive energy that the mediator brings into the room.” There is logic behind this observation. People come with negative feelings about their past experiences. A focus that has the effect of bringing positive feelings and energy into the room will be more constructive than one that is neutral. [10] Moreover parties can get irritated with the process if the mediator is too passive. If things are moving there is no need for any call for med/arb or other third party decision making. Each mediator will bring their own attributes to a session, and that uniqueness again cannot be easily categorised. I suggest though that the quality of the attention brought to what is happening, the ability to keep things moving and focused listening are part of the elements involved.

Another comment based on the views of an experienced mediator shows that the basics of listening, humility, patience and hope remain the essentials of best practice.

Another mediator analysing their own secrets to success [11] wrote:

Not getting something settled is extremely rare for me. Why? I’ve tentatively decided that, barring a fatal error such as an idea that goes awry, the ability to listen, to inspire trust, to be empathetic, and to be able to help people reframe their thinking are really the essence of it. (My emphasis) We are all hungry to learn effective techniques, but the more I think about it the more I think they’re quite secondary. You can know every snazzy technique there is, but probably won’t get very far if you don’t have the ability to generate trust.

On a similar theme Bowling and Hoffman are quoted in a recent paper by Richard McGuigan [12] as identifying three stages of intervener development.

In the first stage, mediators focus on developing techniques such as active listening, reframing, and helping people generate options; in the second stage, the mediator works towards developing a deeper understanding of why and how a mediation operates. Finally, in the third stage the mediator develops a growing awareness of how his or her own personal qualities influence the mediation process.

An essential element is that the mediator learns to take responsibility for her or his personal growth. McGuigan’s paper is directed to those who have reached that third stage.

New Developments

I am one of those who suspect that the next major evolution in mediation theory will be in the better understanding of neurophysiology and psychology. The mind cannot be separated from the body. Kenneth Cloke [13] and Robert Benjamin [14] both draw attention to the importance of these issues in future understanding of conflict and its resolution. Cloke discusses the significance of the two brain hemispheres and how they interrelate. He notes we have been working with brain chemicals unconsciously for years and that “…it is clear with hindsight that a number of very common simple techniques, such as welcoming, introductions, reaching agreement on ground rules, caucusing, summarizing, and securing small agreements, will predictably reduce the release of adrenalin and stimulate the release of oxytocin. (My emphasis). (Oxytocin is the chemical released in the brain that helps people become more benign, or fall in love. Chocolate is a good source, leading some practitioners to provide this substance rather than peppermints in the mediation room.) Benjamin notes the likelihood of one’s brain getting locked up if one concentrates too much on the rational logical solution finding process, and highlights an occasion when in an intransigent case an adjournment of 2 weeks resulted in one party bringing an unconventional solution that enabled the agreement. It needed space for the right brain to help the left brain of the individual to see things more holistically.

Tara Fass in “Clues from Psychology: 10 Tips for getting into the minds of their matters” [15] offers the following

1. Pinpoint the power source (her views parallel the “transformative” theory of the need to balance power before the less empowered can afford to make any concessions)
2. Explore the payoffs and gains
3. Give the parties turns on the “hot seat” (become the agent of reality for each party.)
4. Distinguish negotiable differences
5. Encourage language that can be heard
6. Frame the disagreement as a commonality
7. Address the physical and mental tolls
8. Discuss the basics of compromise
9. Distinguish between perception and reality
10. Give the parties what they need not only what they seek.

Effective communication skills are also important and can be the basis of coaching parties to interact more appropriately in the future as well as understanding dysfunctional communication as the fount of the problems of the past. [16]

Humour is often a useful ice-breaker (“The shortest distance between two people is laughter” – Victor Borge). Used inappropriately, however it can backfire. At its best it will help carry parties past impasse, and at its worst they will feel they and their issues are demeaned. It must never be disrespectful of the parties, but can be self-deprecating or making fun of the predicament in which both parties find themselves. One guideline for safe use of humour is the degree of rapport established with the parties and any advocates present. [17]

On a related point, and for a useful and challenging discussion, see Robert D. Benjamin’s ‘The Mediator as Trickster: The Folkloric Figure as Professional Role Model’. [18] Benjamin argues that the traditional professional models of law, medicine and mental health are not well suited to the purposes and practice of mediation because they are, “fundamentally anchored in a technical-rational conceptual orientation that encourages the professional to be an expert.” He further asserts that: “The [folkloric] trickster figure, like the mediator, demonstrates the effective integration of both the analytical skill and the intuitive sensibilities necessary to be effective in the management of conflict.” (My emphasis).

Benjamin argues for treating people and their problems holistically rather than mechanically. Note that he draws a clear distinction between mediator expertise and the mediator as expert (in the particular field). The latter may well lead to advice-giving – which he argues is the prerogative of a lawyer or advocate, and if conducted by the mediator is a form of arbitration.

The one-liners and stories we tell

On the basis that the best impromptu comments can take the most preparation, I expect that most of us have anecdotes or one-liners that we use to illustrate a point during caucus or plenary sessions. Here are a few I have found to be useful in the past.

The quotations are either well known, from well known authors or are from New Zealand mediators:

May you be involved in litigation in which you know you are right. Old Arabian curse

All conflict is but different perspectives illuminating the same truth. – adapted from Ghandi. (His words were directed to war, but I submit they apply equally to any conflict).

Truth and perspective is like an egg. If you look at an egg end on it is clearly round; and from the side it is oval. For a chicken it is at least the start of life if not the meaning to it; and for the judge it is what he/she had for breakfast – scrambled.

The game at litigation is not what is the truth, but what can you prove to be the truth.

If both sides feel screwed the outcome is about right.

The old business truism: that first price out is cheapest price out.

If he is a b--tard- now, then taking him to court will only make him an educated b--tard Richard Hall

All conflict settles eventually – it normally doesn’t take more than seven generations.

He who seeks revenge should dig two graves. – Old Chinese proverb

Always forgive your enemies. Nothing annoys them more. – Oscar Wilde

Do we really understand what we do?

Debra Sword has initiated a discussion [19] on the relationship between the decisions we make about process and those of the parties about substance. Should we take ownership of our own power and influence? Amongst other insights she notes:

1. Our own tolerance for risk-taking can affect our capacity to decide to intervene; and also our choice of mediation style and model. Lack of self awareness in this regard is sometimes an unrecognised factor in these choices rather than recognition of what it is the parties need in the process.

2. We have imperfect information at mediation and “We stand in the tension of dichotomy and paradox without knowing anything beyond what we have been told and what sense or meaning we make of it.” There is pressure to perform. Do we really understand how this complex reasoning affects our own decision making skills?

3. Decision making performance is either “hard-wired” in our brains or capable of improvement – or both. “The science and art of decision making suggest that what we do may be much more than we understand we do.”

Conclusion

The mediation process has stood the test of time over thousands of years and may be said to have been “polished by the centuries”. The key elements discussed above are present in various forms in all the styles and models discussed above and can be seen in all indigenous systems including those that have evolved independently of each other. This suggests a uniformity of fundamental human experience in non-violent conflict resolution. Only comparatively recently have there been academic and empirical studies into the how and why the process works. Because of the universality of human response to the process we can feel comfortable in continuing to apply the practice, but it behoves us to participate in the world mediation community in gaining greater understanding of what interventions are appropriate and safe to apply in given circumstances. This ability to continue to explore new dimensions remains for me one of the great attractions of mediation. What must be acknowledged is that the intervention of a mediator affects the interaction of the parties in a process some would call a sacred drama. It is a privilege to be invited to assist parties resolve conflict and the process must always be approached with respect, self insight and humility so that critical turning points can be negotiated safely for the parties.

We shall not cease from exploration
And the end of all our exploring
Will be to arrive where we started
And know the place for the first time

From “Little Gidding” T.S. Eliot

End Notes

1 Currently New Zealand Attorney General, Minister for the Arts, Culture and Heritage, and Minister for Treaty of Waitangi Negotiations

2 “Best” and “worst” alternatives to a negotiated agreement

3 “The Last Gap in Negotiations – Why it is Important? How can it be Crossed?” John H. Wade ADRJ (May 1995) Vol. 6 No 3 pp 93-112

4 “An Analysis of Intervention Techniques in Mediation” Lim Lan Yuan ADRJ (Aug 1998) Vol. 9 No3 pp 196-205

5 “The Many Ways of Mediation: The Transformations of Traditions, Ideologies, Paradigms, and Practices” Carrie Menkel-Meadows Negotiation Journal July 1995 11: 217-241

6 Note also the distinction that can be drawn with “analytical” where a mediator points out strengths ands weaknesses or hurdles to be overcome, but without offering a view of what might happen at court, or what a party should do, in other words: empowering the parties with sufficient information to enable them to make a fully informed decision.

7 “Mediation by Any Other Name Would Smell as Sweet – or Would It? The Struggle to Define Mediation and its Various Approaches” Charkoudian and ors CRQ vol. 26 no3 Spring 2009 293-316

8 CQR vol.26 no. 1Fall 2008 pp 97-123

9 Note the old theatrical cynicism “When you can fake sincerity you’ve got it made!”

10 See “Building Positive Emotions In Mediation” Fredrike P. Bannik www://mediate.com/articles/bannikF4.cfm?nl=221 viewed 22/07/09

11 Quoted in “The Secrets of Successful Mediators” Stephen B. Goldberg Neg. Journal Vol.21 No.3 July 2005

12 “Shadows, Conflict and the Mediator” CQR vol.26 no. 3 Spring 2009 pp349-363 at 351

13 “Bringing Oxytocin Into the Room: Notes On the Neurophysiology of Conflict” http://www.mediate.com/pfriendly.cfm?id=4585 viewed 22/01/09

14 “The Joy of Impasse: The Neuroscience of “Insight” And Creative Problem Solving http://www.mediate.com/pfriendly.cfm?id=4641 viewed 12/02/09

15 Dispute Resolution Magazine Fall 2003 pp 16-18

16 See D.E. Hurley “Basic Communication Skills” presented to AMINZ AGM mid 1990s

17 See also “Responding to Critical Moments with Humor, Recognition and Hope” J. Forester Negotiation Journal April 2004 221-237

18 Mediation Quarterly 1996 Vol. 13 No. 2 pp131-149

19 “The Mind of a Mediator” http://www.mediate.com/pfriendly.cfm?id=4758 viewed 3rd June 2009

I acknowledge the contributions of my Wellington colleagues in the preparation of this paper, Judy Dell, Annabel James, Paul Stowers, Peter Franks, Mike Feely and also Craig Smith, Chief Advisor.

Biography


David Hurley LLM is a mediator with the Department of Labour based in Wellington, New Zealand. He has been full time in dispute resolution since 1991 formerly as a Member of the Employment Tribunal (mediations and adjudications) but has been focussed on mediations since 2000. Whilst mainly involved in employment matters he has also mediated family and commercial cases and for the Waitangi Tribunal. The last involved an intra-cultural case that he co-presented to the then SPIDR AGM in Los Angeles in 1996 with his co-mediator the late Sir Hoani Turei, a Tribunal Member. He has contributed articles and papers to LEADRNZ, AMINZ and NZ Law Society conferences and periodicals and contributed a chapter “Restorative Justice in the Civil Jurisdiction” to “Restorative Justice and Practices in NZ: Towards a Restorative Society” (2007 Maxwell and Liu ed., Institute of Policy Studies VUW). He is a tribal associate of Ngati Rangiteaorere, has been a Vice-President of the NZ Law Society and has chaired a number of charitable organisations. His contact is david.hurley@dol.govt.nz.

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