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The Mediation Field Guide: Transcending Litigation and Resolving Conflicts in Your Business or Organization

by Jonathan W. Reitman

Book Review: The Mediation Field Guide: Transcending Litigation and Resolving Conflicts in Your Business or Organization
by Barbara Ashley Phillips (Jossey-Bass, 2001)

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Mediation Field Guide
Whether you are mediating one of your first cases or you’ve been mediating for years, we all experience that moment somewhere during the mediation-- the moment when your inner voice tells you to take a risk and do or say something unusual, or controversial, or out of character. To tell a joke or a story. To tell someone off. Or to just keep silence.

My experience with these moments is that if I listen to that inner voice, more often than not, my action (or silence) provides a positive turning point in the mediation. But sometimes I don’t follow that voice, because I lack the courage, or I care too much about what the parties may think.

Barbara Ashley Phillips does not lack courage. And in her important new book, The Mediation Field Guide (Jossey-Bass, 2001), she often says the difficult things and tackles the controversial subjects in our field, apparently without regard to what people may think.

While as a reader you won’t always agree with her, you will be challenged by her insights. Perhaps, like me, you may even find yourself rethinking your basic theory of practice, or at least parts of it.

It is enormously difficult to write a guide to mediation which addresses as many audiences-- client, party, lawyer, law student and mediator-- which Phillips hopes to reach with her new book. Some sections will seem elementary to experienced practitioners, particularly those chapters devoted to mediation of particular areas of disputes (employment, construction, contract negotiations and public policy). While each of those substantive areas has received more thorough treatment elsewhere, Phillips nevertheless provides useful analysis in each. Her treatment of a typical sexual harassment scenario, for example, reminds us that every player in the drama--the complainant, her boss, HR, the harassers, management and its attorneys-- can either resort to traditional “lit-think” or participate in a solution which can be “transformative” for everyone involved.

But Phillips makes her greatest contribution-- and displays her greatest courage-- when she analyzes current trends and “hot topics” in the dispute resolution field. Let me cite three examples:

1) She takes on the Bush-Folger model of Transformative Mediation and their criticism of mediators who focus on “problem solving” and miss relational issues and opportunities. While she agrees with Bush-Folger that “looking for improved relational capacities” is “laudable,” to Phillips the transformational model “is still an agenda...and a mind focused on its agenda is not open....It blocks flow.” Rather than the formulaic transformative model, Phillips prefers the Reflective Mediation paradigm offered by Michael Lang and Alison Taylor in their recent work, The Making of a Mediator: Developing Artistry in Practice. “With reflective mediation,” Phillips writes, “there is an opening for many approaches simultaneously.”

2) In her discussion of Mediator Qualifications in the chapter on “Selecting a Mediator,” Phillips wades right into the middle of the ongoing debate within the field over the importance of a mediator having “subject matter expertise” in the kind of dispute she mediates. To Phillips, “our society is vastly overinvested in the culture of expertise. The best conflict resolution work is not about that.” While a particular reader may disagree, you will never wonder where Phillips stands: “To be effective, a mediator must be reasonably conversant with the language and context of the conflict. That is all. That is a far cry from expertise in the subject matter of the conflict.”

3) Similarly, although she is a lawyer herself (and a former US Attorney), Phillips takes aim at the many lawyers who now serve as mediators and yet have been unable or unwilling to shed their “lawyer’s mind, focused on advice-giving and matters of substance” which Phillips contrasts with a “mediator’s mind, focused on process and party control.” While acknowledging that some cases and parties want evaluative, advice-giving mediators, Phillips’ preference is clear: “Facilitative mediation requires greater skill and more experience than advisory [evaluative] mediation.... Facilitative mediation is a lot more fun and offers a lot more room for growth. The parties are treated more gently and more respectfully than in evaluative processes, and this is empowering to them.”

Phillips’ work has useful and specific guidance about deciding whether to mediate and persuading the other party to do so, about preparation for mediation, and about the mediation process itself. (She correctly notes, for instance, that mediators don’t balance the power of parties, but rather insure they all have the capacity to negotiate). She also has helpful comments on questions to ask when impasse occurs.

But no review of Phillips’ book can end without reference to her profound and important analysis of “The Lawyer Culture”. Calling the law a “profession in crisis,” Phillips lambastes “old-mind thinking...the culture of critique, the worship of argument, and the glorification of conflict.” The author suggests that this traditional legal mindset is giving way, in many cases and lawyers, to “new-mind thinking.... so that parties have readier access to collaborative processes with the potential to heal.”

While some lawyers may take offense at such characterizations, it is hard to argue with Phillips conclusion that we stand at time of remarkable transition: “The twentieth century may go down in history as time of ferment leading to a massive reorientation of our conflict management systems or as a time when opportunities for peaceful change were seen but ignored.”

After the events of September 11, we can only hope that the sound analysis and helpful guidance of books like The Mediation Field Guide will help us make the right choice.

Biography


Jonathan W.  Reitman is a practicing attorney since 1978; full time mediator, facilitator and arbitrator since 1990. Practice concentrates on mediation, training, conflict resolution and consulting. Substantial experience (1000+cases) in the mediation and arbitration of a variety of complex civil disputes, including business, commercial and insurance matters; employment, labor relations and workers' compensation; environmental and land use; boundary and property disputes; construction project matters; family law, and public policy matters involving state and federal agencies. Extensive facilitation of multi-party stakeholder groups on public policy issues (environment, telecommunications, higher education, transportation, workforce development), involving as many as 60 parties. Has served as Court-appointed mediator, referee or Guardian ad Litem in more than 200 cases.

Frequent lecturer and trainer on ADR, including presentations at national and regional conferences; Adjunct Faculty, University of Maine School of Law since 1996; has conducted multi-ethnic workshops on Conflict Transformation in Bosnia and Republika Srpska; has trained participants from 15 different countries in England and Italy. Trained Arabs and Jews in Negotiation, Mediation and Conflict Management, Israel College, Tel Aviv, Israel, 2001-2006.

Facilitator of multi-day strategic planning retreats for statewide university systems, law firms, a national environmental coalitions, a national conference on "Reinventing Justice," and a national advocacy organization on end of life issues. Has designed and facilitated community meetings with 250-300 attending on highly contentious ecopnomic development, land use, community services and transportation issues. Sample facilitation list available on request.

Co-chair of 2000 Annual Conference and Board member, New England Chapter ofAssociation for Conflict Resolution (ACR); former chair and newsletter editor, International Sector of Society for Professionals in Dispute Resolution (SPIDR). Membership on mediation panels including American Arbitration Association Labor, Commercial Panels; CADRES Land Use, Civil Litigation and Domestic Relations panels; General Services Administration Panel of Mediators for EEO disputes in federal agencies; United States Postal Service REDRESS Panel of Mediators; National Employment Mediation Services (NEMS); National Roster of Environmental Conflict Resolution and Consensus Building Professionals, U.S. Institute for Environmental Conflict Resolution.



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