This article was first published in (2001) 4(2) The ADR Bulletin, and subsequently in Bond Dispute Resolution News, Volume 11, January 2002
I am probably not alone as an ADR practitioner in finding much of the current literature on mediation skills somewhat superficial and irrelevant to real practice. It is like everything really important has been said some time ago and has not been improved on since. What is written about mediation skills often leaves the practitioner with a sense of misgiving that what he or she is doing in the penumbra of mediation may not be quite acceptable if exposed to sunlight.
It is therefore with genuine excitement that I have read Boulle’s Mediation Skills and Techniques (Butterworths: Sydney, 2001), a worthy sequel to his seminal work Mediation: Principles, Process, Practice (Butterworths: Sydney, 1996). Mediation Skills and Techniques speaks to today’s practitioners in a way which is fresh and absorbing, effectively communicating a sophisticated amalgam of practice guidelines with multiple choices, different ways of thinking about what you might do and what the consequences of those choices may be. Together, the two books partner the current collective theory and practice of mediation.
Consider the way Boulle deals with the thorny issue of mediator power or influence. He begins by dispelling the myth that the mediator is devoid of power. On the contrary, a mediator has many sources of influence, among them associational status (such as from court referrals), access to restricted information (through caucus), ability to control the process and transmit messages, apply moral pressure from a standpoint of independence, and in some situations, the ability to evaluate and sanction.
He then gives examples of where power is (often unwittingly) exercised. For example, as an ‘agent of reality’ (normally taught as a neutral, textbook intervention for mediators in order to encourage settlement) Boulle exposes the many colours and hues of its operation in practice. So too, the provision of information or giving of an opinion can be delivered with varying strengths based on professional or personal perspective (from ‘In mediation we first define the problem before considering options for its settlement’ to ‘Don’t forget that while you are arguing over the sizes of the slices, the ‘cake’ is getting smaller because of legal fees and other expenses’). Boulle then introduces countervailing forces to enlighten the reading audience to problematic elements in any intervention (such as the dangers of a mediator encouraging settlement) and seeks in the end to provide guidance in achieving a balance (in relation to the mediator’s use of power, it depends on the timing, stage of the process, and the disposition of the people involved).
This pattern of instruction characterises this book, so that:
In line with step (1) an early surprise for me was Boulle’s definition of mediation itself ‘ including ‘all forms of decision-making in which the parties concerned are assisted by someone external to the dispute, the mediator, who cannot make binding decisions for them but can assist their decision-making in various ways’. The emphasis on decision-making, rather than on seeking agreement (with all the restorative meaning of that word), derives from one of Boulle’s self-confessed, distinctive contributions to the subject: that mediators are in the business of facilitating parties through a negotiation process and that making decisions is a critical part of effective negotiation.
Indeed, Boulle considers this is one of the most undervalued aspects of mediation training and literature to date, particularly the absence of guidance for mediators when dealing with distributive (rather than interest based) bargaining. Boulle’s treatment of facilitating negotiations (Chapter 7) is therefore a ‘must read’. It makes a worthy contribution to the neglected area of mediation by distributive bargaining.
The text is sharp edged and practical, and punctuated with special techniques (‘issue proliferation’, ‘shifting between principle and detail’ and ‘crossing the last gap’). Another subject that comes in for the similar treatment is Boulle’s deliberate attempt to introduce conflict theory into the mediator skills of diagnosing and defining the dispute, and then designing an appropriate mediation process. I would take issue with readers who may consider this chapter over-intellectualising dispute resolution. I have found its content liberating, shifting my thinking about old issues.
A major problem for experienced mediation practitioners is the ‘I have heard this before’ syndrome. Boulle offers a variety of methods for choosing how to understand and frame a dispute at the outset. This is no idle, academic task, for how you frame a problem will largely govern what possibilities you allow yourself for intervening. Boulle argues that mediators ‘need to assume a significant leadership role in the defining stage of mediation as it is a sophisticated art’, one that is counter-intuitive to most parties.
While much of Boulle’s book demands a lot from his readers, he nevertheless covers
the subject fundamentals for those who may be beginning their mediation careers.
However, the fundamentals are rarely discussed without adding something searching
to them. For example, the simple intervention of inviting an opening statement from
a party becomes full of possibilities:
All of these approaches are legitimate at different times.
Boulle’s legitimation of variety and choice governs his teaching of other fundamental
skills. Listing issues for discussion on a whiteboard (an ‘apparently simple function’)
is not a ‘one size fits all’ technique: rather, Boulle suggests that a mediator can list
the issues to reflect the dynamics in the room or the subject matter in dispute.
Reframing, like the joke teller who reframes to achieve laughter, is the mediator’s
way of creating a problem solving language and culture, but there are choices as to
how to reframe and what consequences result. Questions are described in all their
variety, but with indications of the circumstantial suitability of each one.
Boulle’s substantial knowledge of the ADR field is reflected in his comprehensive
coverage of the variations of the mediation process (chapter 9) and the practicalities
of establishing a mediation practice (chapter 12). Special issues in mediation
(chapter 10) ‘ including violence, absent parties, expert opinions, terminating
mediation ‘ are all tackled with a sure touch. The appendices are a mediator’s kit
bag of best practice documents: agreements, guidelines, standards and debriefing
The book is structured so that each chapter concludes with a summary of main issues, thoughtful exercises and further reading, making it a practical text for mediation training and students of dispute resolution. It is laced with droll humour, and replete with endlessly varied examples of spoken mediator interventions to enhance the text and provide a learning method for those of us who learn by verbal example.
There are some weaknesses with the text. Ironically, one of the least convincing chapters is on the mediation process itself (chapter 5). The discussion or exploration stage of mediation is described simply as ‘useful in clearing the air, correcting misunderstandings and opening the way for dealing with ‘ issues’. Many mediators will see this as a minimalist view of a critical step in the process, but it occurs because of a deliberate choice of Boulle’s to avoid a linear, step by step approach to mediation skills. He has attempted and mostly succeeded in doing something more difficult: producing a book that reflects the dynamic interplay of the mediation event. However, this sophisticated approach may confuse or overwhelm baby mediators who need to walk before they run.
There are some unfortunate typographical mistakes, most regrettably in the early prologue to the book, whereby means of the Greek dramatic device, Boulle attempts to create a metaphor for what follows. The graphics introducing each chapter appear rather ordinary in relation to a clever text. While apologetic about lists, Boulle’s many dot point lists sometimes overextend themselves and exhaust the reader. They appear to accentuate cerebral, rather than the more personal, fluid and intuitive, dispute management skills.
These are picky points about an otherwise splendid book. Mediation Skills and Techniques sets a high benchmark for a mediation text and for mediation practice. Boulle has harnessed his significant experience as a mediator practitioner and teacher (reflecting the adventurous and innovative instructional contribution of the Bond University school of mediation over the past decade), to give practitioners the opportunity to become more reflective and effective mediators. Mediation has been described as a practice in search of a theory. Together with his first book, Boulle’s mediation skills book forms a contemporary statement of how mediation theory and practice can be married successfully!
I've been in China for the last couple of weeks, I have to say not thinking much about mediation - but having arrived in Shanghai, this city forces me to...By Geoff Sharp
This composition was triggered by Barry Goldman’s article: Not even wrong. He believes that in ADR we are making the same mistake that medicine did for centuries. The mistake is...By Luis Miguel Diaz
Indisputably A recent post anticipates that as we go through the current crisis, we will develop a “crisis new normal” and, after we recover from the crisis, a “normal new...By John Lande