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<xTITLE>Bringing the Human Face to Conflict</xTITLE>

Bringing the Human Face to Conflict

by Jacques Joubert
July 2019 Jacques Joubert
The role of the mediator is to help people through conflict. 

Mediation may be described as a process that evolves over four different phases. It begins in a joint session and ends in a final joint session.

After the first joint session the mediator makes use of break-away (private) sessions with each participant.

The purpose of the private sessions is to prepare the participants for a productive final joint session, where they work together to find solutions.

The therapeutic value of private sessions alone with the mediator should however not be underestimated. The participants are more likely to confide in the mediator during these private sessions.

The evolving phases of mediation are:

1:         Opening in a joint session.

2:         Exploring concerns, interests and needs in a private session.

3:         Exploring solutions in a private session or in a joint session

4:         Finding (negotiation) solutions in a joint session.

To understand the different phases of mediation we use an example of an actual dispute between a small-scale farmer and a large-scale farmer.

The large-scale farmer confiscated the small-scale farmer’s goats that had strayed on his farm.

The imbalance of power between them has created a victim trap for both farmers. In this trap both protagonists sincerely believe that they are being victimised.

The small-scale farmer internalised the power imbalance to mean that the large-scale farmer will never hear him.

He therefore sees no point in talking to his neighbour about the goats and does not have the resources to pay a lawyer to do the talking for him.

The victim trap is a place of low self-esteem, low-level motivation, suspicion, anger and ultimately self-harm. It underlies the chronic dysfunction that many face in their lives.

Mediation offers a reprieve from the trap because the farmers are able to speak their minds as equals, despite their different status and power. A better environment to clear up misunderstandings is hard to imagine.

It is a boost for the self-esteem of the small-scale farmer. Next time he may not need mediation. He may just need to talk to his neighbour.

THE FOUR PHASES

Phase 1:          Opening in first joint session

The first phase of mediation is thus where the participants speak their minds. 

The mediator speaks to them with equal deference, eye contact and attention. He encourages them gently to speak their minds.

The small-scale farmer feels empowered simply because he sits across as an equal from his powerful neighbour. At last the large-scale farmer has to listen to him!

Mediation potentially transforms the lives of people who lack confidence to call power to account and lack the resources to pay lawyers to do so for them.

Winston Churchill famously said that courage is what it takes to stand up and speak but courage is also what it takes to sit down and listen.

Phase 2:          Exploring concerns, interests and needs in private sessions

In the second phase the mediator has one-on-one conversations with the participants in their breakaway rooms.

The purpose of this phase is to get to know the participants better by exploring their concerns, interests and needs.

The mediator reminds him that it is safe to confide in her, as she will not disclose anything to the other participant without his express permission.

She may ask the following open-ended questions:

a.       Before we get into the details of what happened, do you care telling me more about yourself?

b.       Where did you meet XXX? (Explore the relationship.)

c.       I heard in the joint session that you are angry about an incident. Do you care to tell me more?

d.       What impact has the conflict had on you?

e.       What is most important to you right now? What do you want from the mediation? (Big picture and not specifics)

f.        Is there anything positive that you want me to share with XXX?

g.       Do I summarise your concerns correctly by saying that…………?

The questions are intended to open a conversation about the situation that the participant finds himself to be in.

At the end of these two private sessions, the mediator identifies a range of concerns, interests and needs that has to be addressed during the third and fourth phases.

Often one of the issues raised require immediate attention as it stands in the way of constructive negotiations going forward by the participants.

Techniques such as a sincere apology, statement of regret and clarifying of misunderstanding (clearing the air) exist to help the participants overcome such burning issues.

The power of the above techniques should not be underestimated and form part of the training of mediators.

Phase 3:          Exploring solutions in private sessions or in a joint session[2]

In the third phase the mediator also has one-on-one conversations with each of the participants in their breakaway rooms.

The purpose of this phase is to explore solutions that address the participants’ concerns, interests and needs. By this time the mediator should have earned trust with the participants.

The mediator reminds him that it is safe to confide in her, as she will not disclose anything to the other participant without his express permission.

The mediator may ask open-ended questions in successive private sessions, such as:

a.       What do you want from XXX?

b.       What are you prepare to give her for what you want?

c.       Is there anything you can give or do for YYY that won’t cost you much?

d.       Are there any other options you want to consider?

e.       How do we move from here?

The questions are intended to start a conversation between the mediator and the participant. They are not prescribed or a magic formula.

The participants sometimes prefer to explore solutions together in a joint session, depending on the level of trust between them.

The process adapts to meet the needs of the participants.

The mediator considers during phase three whether the participants are ready to hear (apply their minds to) each other’s ideas or solutions. Often participants tell the mediator they want to get into the room with each other and start negotiating.

Techniques such as clearing the air between the participants by conveying information from one participant to another and reality checking during private sessions are commonly used to bring them to the fourth phase of mediation.

A mediator easily falls in the trap of becoming excited about what he or she believes to be an ideal solution for the participants and as a result, steer the participants towards a solution that may in fact not be the best solution for them.  

In doing so the mediator devalues mediation and undermines the ownership of the participants in the mediated outcome.

Phase 4:          Finding solutions in a joint session

In the fourth phase the mediator brings the participants together for a joint session to have a conversation about finding solutions.

The purpose of this phase is to help the participants find the best possible solutions.

Both participants have equal opportunity to put their ideas on the table.

The mediator’s job is to ensure that the participants share ownership over the mediated outcome.

It is an achievement to arrive at the fourth phase of mediation. The participants themselves generally resolve the few disputes that are not resolved on the day, at a later stage.

Bringing the human face to conflict is Africa’s unrecognised, yet powerful contribution to mediation.

The author is Jacques Joubert, a South African mediator whose book, “Mediation – the Human Face of Conflict” will be published later this year.

ENDNOTES


[1] “The face is a living presence, it is expression . . . . The face speaks.” (Totality and Infinity 66 Levinas)

[2] It is sometimes necessary to clear the air of burning issues before the participants constructively explore solutions. Apologies are powerful tools to break deadlocks.

Biography


Jacques Joubert is a practicing mediator and independent mediation analyst in South Africa He practiced law in South Africa and Canada, but now specializes in alternative dispute resolution. 



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