Gregory Billikopf’s new book is an important one. In it, Mr. Billikopf introduces a NEW approach to Mediation. Upon first encountering it, it seems totally new, but upon reading it, the reader will find, that some elements of his new concept are already in use, just not to the extent which Mr. Billikopf suggests that they can be used. As an introduction, Mr. Billikopf is a very transformative mediator in overall style. However, he mixes and matches the good from all types of mediation styles in his work. In effect, using a “Mediator’s Toolkit” to develop in this case, a specialized method of resolving disputes with particular emphasis on Workplace Disputes between employees. How applicable this method is, and how well it works in comparison to other methods is yet to be determined, but it is different and certainly effective in many ways. (It should be noted that throughout the book, Mr. Billikopf refers to the parties as “stakeholders.” It is easy to understand that they are the primary stakeholders, but in the modern American sense of the word, the mediators, the attorneys, and anyone with an interest in the outcome of the mediation would probably be considered “stakeholders” as well. The reader needs to be aware that the author uses the word “stakeholder” virtually synonymously with the word “Party.”)
The Time Element
The method that the author uses is meant to take place over a period of time. In some ways similar to the “Narrative Mediation Method” so eloquently elucidated by Winslade and Monk (“Narrative Mediation: A New Approach To Conflict Resolution”, Jossey-Bass, San Francisco, 2000.). The Narrative method time is also used to bring about new understandings between the Parties, which lead to lasting transformative realizations. Realizations that in fact, with the help of the mediator, can be substituted as a different narrative; one that they both mutually accept in place of the ones they had when they came to mediation.
Likewise, in Mr. Billikopf’s method, parties are meant to recognize things in the mediation process leading to lasting resolutions, and also to consider in between sessions, the things that have gone on, and to deconstruct them within their own minds. This process is occurring in spite of the fact that the Parties are still interacting in their working environments daily. In order for the method to work effectively, it needs to be the type of situation that will allow for this element of time. Most mediations do not allow for this type of time element. Most mediations run somewhere between 45 minutes and 8 hours. Nonetheless, even some of these mediations are too complex to be solved in one mediation session, and must be adjourned and reconvened at a later time. Most court mandated and Federal mediation programs do allow for this type of adjournment and reconvening in the process, although it is not frequently used.
Yet most transformative mediation styles do depend on this element of time. People need this time to integrate the conclusions that they have grasped. If it is to be a lasting resolution, then they need to internalize these conclusions and be willing to deal with them, even if it means changing the way they behave.
The Pre-caucus Element
The Pre-caucus element is the essence of Mr. Billikopf’s new approach to resolution. The model is presented as a useful one in Workplace situations, where the conflict has been going on for a significant period of time, without any sign of resolution by the Parties themselves. The Pre-caucus is meant to help the Parties come to grips with the reasons why they have a conflict with each other. Then, the Parties also acknowledge certain positive qualities in the other Party. Often upon request of the mediator in a private caucus to name certain positive qualities in the other Party, they are unable to do so. But as the process goes on, they realize that there are positive qualities, even if they have ignored them for months or years.
The objective of the Pre-caucus process is to help the Parties to better represent themselves in the joint sessions. It has several parts or phases that it focuses on, in order to better prepare each party. First, it focuses on why there is a conflict. Then it focuses on how the conflict started in the first place. (Note that with very long, ongoing conflicts, it is very typical for the parties to forget what it is they are actually at odds about and how it started in the first place.) Once this underlying cause for the beginning of the conflict has been identified by the Party in Pre-caucus, the party is ready for the “coaching” phase.
In the coaching phase the Party is assisted by the mediator in developing their position. They are helped in how to frame their concerns and needs and perceptions. They are in essence taught how to be better negotiators for themselves.
After the coaching phase, is a “humanizing” phase. The Party is helped to understand that the other Party is a real person too. That the other Party as a human being has value, just as this Party does; and that in order to effectively communicate, it is a pre-requisite that both Parties understand this fact.
Once these preparations are all complete, the mediator then checks with the Party to see if they feel comfortable in meeting in a joint session with the other Party. If they do not, then more Pre-caucus is performed until they feel they do. In the example that is presented in the book, both Parties had 2 Pre-caucuses each and one joint session.
The Joint Sessions
In joint sessions, the author contends that the Parties should speak to each other, and the mediator should in essence play the role of the “referee” in that the mediator controls things if they get out of hand, and helps to keep communication moving, if necessary, but otherwise acts primarily as an observer.
Contrary to normal introductory methods used in more Facilitative mediation methods, there is virtually no introduction, the mediator sits removed from the parties by sitting at the other end of the table. The Parties in essence, just go forward with their agenda. The mediator does not intervene unless absolutely necessary.
The Pre-caucus has prepared them for direct interaction. If the coaching has been adequate, the Parties can virtually run the mediation session themselves. And touching on each issue that is part of the current conflict and working them out or resolving them.
The main content of the book is an actual example of the use of the method. All 4 Pre-caucuses are revealed, with all relevant dialogue being included. As well, the Joint session is totally revealed so the reader can see how the entire process unfolds and how it works. In the example, there was a very, very high level of success and in follow-up with the Parties (names changed to protect the innocent and retain confidentiality) it was found that not only were the parties not in conflict, they were now in fact friends.
Note also, that the book contains a very relevant appendix which is an article written by the author and reprinted by permission called “Contributions of Caucusing and Pre-Caucusing to Mediation.” This article makes additional points and should be read, as it is a very useful adjunct to a better understanding of the author’s method and intent.
In reading about the method, the reader may wonder at how such a method could possibly work at all. However, many, many mediators are familiar with doing court mandated mediation, which in a sense is a microcosm of this type of method. Typically, the mediator is assigned to a case by court order and given virtually NO information about the case. It is then incumbent upon the mediator to contact the attorneys in the case and get their version of where the case stands and what it is about. In essence, this process constitutes a Pre-caucus, but not with the Parties, with their representatives.
To relate back to the method, the other significant thing to consider is whether the method presents more potential risks than rewards. In utilizing this method, it is even more essential that the mediator has a very good handle on what he or she is doing. The coaching and the pre-caucuses take a lot of “kid glove” handling, and are critical in this method. In addition, the pre-caucus seems highly directive and focused. This may or may not be good, depending on the conflict and the Parties.
Again, in the joint session, as practiced by the author, this method may present risks that are unnecessary or potentially deleterious to a successful mediation. The mediator, being removed from the discussion, but acting as a referee does not utilize virtually any reframing, but just sits there, watching the parties resolve on their own. There are several points in the joint session where Parties are having trouble communicating with each other, and some simple “reframing intervention” would have averted any risk of a blow-up between the parties, but Mr. Billikopf’s method is to allow the parties, with the coaching they have had, to work these things out, because eventually, there will not be a mediator between them. They have to learn to do these things to survive everyday life.
Whether one agrees completely with the method presented by the author is not really the point. What is the point is that the author introduces a relatively new method of problem resolution. The use of the method should be restricted to those cases that allow for time and are of the type that are most suited for this method. It is unlikely that such a method is truly effective when mediating with the IRS. Yet even in such a monetary, positional bargaining type situation, some of the elements of Mr. Billikopf’s method could be used successfully.
The use of this method requires not only a high degree of mediator competence, but also, that the mediator knows a lot about the case, before they decide to use the method. It is critical that the method be, at the very least, tailored to the Parties and the Conflict. It would be almost foolhardy; to jump right into this method without first seriously evaluating whether the case was a good candidate for this type of method.
One thing is virtually incontrovertible. No mediator, who as Shakespeare put it, is “To thine own self true” can afford to ignore this method. Most serious mediators today would agree, there is no ONE way to mediate any case. If that be the truth, then the more methods and techniques we have to put in our toolkit, the better mediators we are. Aside from the added technique, Mr. Billikopf clearly presents some provocative questions about mediation that all of us will have to deal with in one way or another eventually. The book is seriously recommended to all mediators who are open to the addition of new and effective techniques to their repertoire. Each mediator can use the author’s tools in their own way, but it is incumbent on us as mediators in an ever more complex global society, to reach for new and productive methods in which we can do our job.
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