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The Complete Seven Keys to Unlock Mediation

August 2020

Seven Keys to Unlock Mediation’s Golden Age

A work by 40 authors around the world

 

First Published by MEDIATE.COM in serialized form in June and July 2020

Also available as a FREE e-book here:

7Keys

Also as a PDF here.

 

Seven Keys to Unlock Mediation’s Golden Age

A work by 40 authors around the world

 

Seven Keys to Unlock Mediation’s Golden Age - The Introduction
Nadja AlexanderLela Love

1st Key-Leadership: Establish Strong, Collaborative, Mediative Leadership
Kenneth ClokeJoan GoldsmithRosemary HowellAlan LimburyValeri Primo-Lack

1st Key-Leadership: The Youth Shall Lead Us
Aloysius GohSean LimSamantha LekMegan Tay

1st Key-Leadership: Adopt The Edinburgh Declaration
John Sturrock

2nd Key-Data: Bring Objective Science to Mediation
Ava AbramowitzKenneth Webb

2nd Key-Data: Run the Global Pound Conference (GPC) Series Every 5-7 Years
Emma-May LitchfieldDanielle Hutchinson

2nd Key-Data: Develop a Negotiation Index
Ava Abramowitz, Kenneth Webb

3rd Key - Education: Teach Mediation as a Core Subject Aligned to Real World Needs
Barney JordaanDeborah Masucci

3rd Key-Education: Ensure the Future Through Mentoring and Practice Programs for New Mediators
Angela HerberholzEmma Ewart Keir

3rd Key-Education: Include Learning in Psychology & Brain Science to Enhance Mediator Practice
Tim HicksJohn Sturrock

3rd Key-Education: Train Mediators to be Culture-wise, not Culture-blind
Joanna Kalowski

4th Key-Professionalism: Act to Ensure Mediation is Respected as a True Professional Practice
Pierre Le Goff

4th Key-Professionalism: Modernize the Culture Driving Legal Practice
John Brand

4th Key-Professionalism: Encourage Mediation and Arbitration Integration
Mark Appel, Wolf von Kumberg

4th Key-Professionalism: Create a Universal Code of Disclosure
Ana GonçalvesFrancois BogaczDaniel Rainey

5th Key-Technology: Take Advantage of ODR’s Full Potential
Jeremy LackAna GonçalvesDaniel Rainey

5th Key-Technology: Embrace and Integrate Relevant New Technologies
Francois BogaczJeremy Lack

6th Key-Government: Make Mediation a Prerequisite to Civil Litigation
Manon SchonewilleLeonardo d'UrsoConstantin-Adi Gavrila

6th Key-Government: Sign, Ratify, and Implement the Singapore Convention on Mediation
George Lim

6th Key-Government: Actively Support UN Resolution 1325 on Women, Peace, & Security
Alicia Kuin

6th Key-Government: Help Governments Lead Mediation into the Mainstream
Christian Radu Chereji

7th Key-Usage: Invest to Generate Instinctive User Recognition and Demand
Felicity Steadman

7th Key-Usage: Expand the Value of Mediation Into Deal-Making
Veronique FraserJoan Stearns Johnsen

7th Key-Usage: Forge a User-driven Vision for Mediation; Then Fund It
Michael Leathes

The Seven Keys Conclusion: Many Paths, One Way
Joanna Kalowski

The Seven Keys Epilogue:

Unlocking Mediation’s Golden Age by Mobilizing Mediatively

Manon Schonewille, Michael Leathes

_________________________________________________________________________

 

Editorial Note:

Mediate.com has published a series of peer reviewed articles under the collective title Seven Keys to Unlock Mediation’s Golden Age. The objective of the Seven Keys is to encourage discussion among all stakeholders on navigating mediation’s best future. Here is the Table of Contents. For social media, please use: #7KeysMediate.

The seven keys are: Leadership, Data, Education, Profession, Technology, Government and Usage. Each key has between two and four articles, each no more than 1,111 words in length, contributed by some 40 leading authors around the world. 

Below, Professors Nadja Alexander and Lela P. Love introduce the series with “Imagine.” 

The Seven Keys articles portray a variety of images and understandings of mediation. All recognize mediation’s extraordinary versatility. Some focus on resolving disputes; some on deal making; some on managing interpersonal disputes in families, communities, schools and the workplace with more of a relational focus; others are about peace-making between groups and nations and public policy decision-making. Some of these articles apply to all sectors of mediation practice while others focus on particular fields with a view to inspiring new adaptations and approaches in other areas. Each key is a jigsaw piece. Connected together, they form a vibrant, exciting vision of how the field can dramatically improve and prosper.

The 40 women and men from the mediation sphere around the world who have contributed to this work reflect many different backgrounds, experiences and cultures. We owe our gratitude to each contributor for succinctly sharing their proposals for how mediation can achieve its Golden Age. Each article has been peer reviewed by other contributors. We are also grateful to the extraordinary thought leaders who prepared the Introduction and Conclusion for their strong encouragement, deep perception and clear vision.

We pay tribute to all the contributors for agreeing that this work may be freely republished, either as individual articles or as a complete book, under the terms of the Creative Commons License below. As Seneca said over 2,000 years ago: the best ideas are common property.

Mediate.com is convening the field’s stakeholders to figure out collaboratively how to grow mediation over the next decade. See: Mediation 20/20: Navigating Mediation’s Best Future to be held September 30-October 2, 2020.

______________________________________________________________________

 

Seven Keys to Unlock Mediation’s Golden Age - The Introduction
Nadja AlexanderLela Love

Imagine

by Nadja Alexander and Lela P. Love

“In order to change an existing imagined order,
we must first believe in an alternative imagined order”


Yuval Noah Harari Sapiens
A Brief History of Humankind (Ch. 6)

This work is not about best practice. It is about next practice.

Imagine corporate, political and community leaders empowering others with their mediative style and collaborative stance.

Imagine governments embracing mediation principles to frame their approach to domestic and international problem-solving and dealing making.

Imagine mediation being a necessary step before any form of civil litigation and arbitration —worldwide.

Imagine mediation being a cross-disciplinary, core education component at kindergartens, schools, universities and professional bodies, and mediating being perceived as a widely respected independent profession.

Imagine mediating with an earpiece that translates not what parties are saying but what they are actually feeling.

Imagine being stuck in a negotiation and with the click of a button being able to get practical and evidence-based information about how to get yourself out of deadlock.

Imagine epistemological worlds of dispute resolution, deal making, peacemaking, international relations, brain science and psychology deepening their capacities by engaging with one another on a scientific basis, rather than self-isolating or colliding.

Imagine adequate funding for and acceptance of collaboration as an approach to human problem solving.
 


Interview with Nadja Alexander and Lela Love


All these imaginings and more are contained in the pages that follow – a collection of over 20 eclectic yet compellingly succinct and coherent essays, carefully curated to offer us Seven Keys to Unlock Mediation’s Golden Age.

Currently mediation finds itself in a fragmented age. Diverse disciplines make a claim to mediation; they include business, psychology, counselling, management, human resources, social sciences, political science and law, among others. As with all disciplines, they have their own theories, systems, literature, models, jargon, processes and practices and many mediation scholars remain within their own academic silos, resulting in a fragmentation of the field. More than that, the way mediation is practised draws boundaries around specific areas of practice, for example, family, commercial, investor-state, environmental, and peace mediation. Co-option of mediation into the legal or court space also ultimately leads to fragmentation, and to debates about what mediation is and isn’t and who can call themselves a mediator and who can’t. Fragmentation diminishes the value and power of mediation. It confuses users and inhibits cross-disciplinary collaboration and innovation. In an age of fragmentation, this work offers a path for integration and growth. Seven Keys to Unlock Mediation’s Golden Age introduces new innovation into mediation by seeking to develop understandings of the field that connect people, professions and perspectives. It pulls together disparate fragments from diverse mediation worlds and shapes them in new and holistic ways. In Seven Keys, the value of the whole is greater than the sum of its parts as it maps out a future not just for mediation but also for humanity.

Enjoy this work which comes to us thanks to the collaboration of some 40 leading voices from around the world. It can be read from cover to cover or by dipping in and out of its vast yet compact contents. Seven Keys is optimistic, grounded and most timely.

In the words of Irish poet and philosopher, John O’ Donohue, “Our trust in the future has lost its innocence. We know now that anything can happen from one minute to the next. Politics, religion, economics, and the institutions of family and community all have become abruptly unsure.” The 2020 Coronavirus pandemic reveals what huge challenges lie around each corner calling for our imagination and world-wide collaboration.

The worlds of mediation, peace-making, coaching and empathetic listening have an opportunity to offer leadership to navigate these unchartered waters. If ever there was a moment in time when the multi-disciplinary talents of mediation professionals and the needs of the world meet, it is now. What we do - or don’t do - now, matters. Imagine how you will use these keys to unlock the potential of mediation.

 

 

 


 

 

1st Key-Leadership: Establish Strong, Collaborative, Mediative Leadership
Kenneth ClokeJoan GoldsmithRosemary HowellAlan LimburyValeri Primo-Lack

Leadership is a skill. It is not inborn, dependent on money, power, or titles. It is something everyone does at multiple points throughout their lives, whether they consider themselves leaders or not. We all have led someone somewhere, sometime, and can do it again - consciously, collaboratively, and effectively. Some skills, behaviours, and traits can be directed or mandated by others. But others cannot be mandated and must be led, demonstrated, facilitated, encouraged, supported, mediated, mentored, or coached(1).

When, in about 500 BC, Cleisthenes moved the Athenians toward a collaborative form of self-government, everyone was invited to participate in leadership as well as “followership.” The numerous democracies that developed around the world thrived on diversity, requiring leaders who bring diverse ideas, talents, perspectives, cultures, values, and constituencies that together formed an integrated, dynamic, collaborative whole. Leaders stood with, not over, above, or against, those who choose to follow.
 


Interview with Rosemary Howell and Alan Limbury


There are three distinctive leadership styles(2):

  • Autocratic: hierarchical, controlling, competitive leaders who take responsibility and make decisions for others;
  • Anarchic: bureaucratic, detached leaders who administer but abdicate responsibility and let others take the blame; and
  • Democratic: collaborative leaders who inspire, encourage, empower, facilitate, critique, support and share responsibility and are there to serve. Given that it aligns interests, we can refer to it as “mediative leadership.”

The reality or prospect of intense competition can result in autocratic or anarchic leadership styles. As we look to what the next decade may hold for mediation, the field has an opportunity to come together and very visibly practice mediative leadership.

Mediators are natural leaders. Leaders are natural mediators

Unlike other forms of leadership, mediative leadership is exercised not only at the “top”, but at the “bottom” and throughout. Like mediation, it seeks to balance power and challenges the very existence of “top” and “bottom”. It gives everyone the ability to become a collaborative leader, sharing the responsibility to pursue a joint mission in the common interest. Mediative leaders inspire collaboration, stimulate synergistic connections, support honest interactions, build trusting relationships, and encourage self-management, diversity and integration across boundaries. They connect people through problem-solving, dialogue, and collaboration, so they can intelligently co-create solutions. They synthesize diverse approaches, theories, orientations, and discoveries; spark innovation, and create synergies that strengthen consensus and inspire collaboration.

Mediative leadership requires leaders who can listen, empower others, generate trust, build relationships, and negotiate collaboratively (including with competitors). They are ubiquitous leaders, who can prevent and resolve conflicts, lead, follow, and build consensus. By the nature of what they do, leadership comes naturally to mediators. The field of mediation requires visibly concerted leadership that can inspire and orchestrate the co-development of the profession globally.

Mediative leadership competencies

Warren Bennis’ book co-written with Joan, Learning to Lead(3), identifies five primary competencies of leadership. Joan and Ken have added a sixth (#6):
1. Mastering the Context: Understanding the big picture.
2. Knowing Ourselves: Understanding our limits and skills.
3. Creating Visions and Communicating Meaningfully: Having an inspiring vision.
4. Empowering Others through Empathy, Integrity and Constancy: Building trust.
5. Realizing Intentions through Action: Turning visions into practical solutions.
6. Preventing and Resolving Conflicts through Collaboration: Preventing adversarial conflicts through skill and capacity building, using mediation.
 


Interview with Ken Cloke


The global dispute resolution field is ripe for mediative leadership

The mediation field has always been fragmented internationally. It requires conscious effort, and some structure, to lead collaboratively and implement strategic plans capable of driving widespread systemic change in a concerted manner. If the main players make that conscious effort to come together and demonstrate mediative leadership, leverage their collective experience and the benefits of technology, they will be able to generate a common agenda that seeks beneficial results for all stakeholders. Ways to do so could include the following:

  1. Learn from differences and build cross-regionally

The Global Pound Conference Series 2016-17 (GPC) generated important new data showing regional variations. For example, the latest GPC series North America Report(4) reveals significant differences within the USA and with Canada. If such differences are observed within this region, it is fair to assume that there are even greater ones internationally. Can the mediation community step back to consider how mediation can be practiced more pluralistically and holistically, in a party-centric manner? Can different communities more systematically share and learn from one-another, across regions?

  1. Educate and train mediation as a core skill for all professions

Many universities are often reluctant to provide vocational skills as opposed to academic learning. Teaming up with professional bodies can make it possible to promote the principles and practice of amicable conflict resolution as a core component of any degree. Business and law school curricula could both teach how to diagnose disputes, their tendency to escalate, interest-based negotiation, and when to bring in mediators. Students would be able to demonstrate skills in mediative leadership and how to facilitate negotiations and handle disputes. Professions that are regularly involved in disputes, such as law, project management, accounting and psychology, could make a comprehensive understanding of mediation a requirement for admission to practice

2. Promote dialogue and connect all stakeholders

It is necessary to promote dialogue between all stakeholders to identify ways of supporting the uptake of mediation in the future in a concerted manner, aligning interests. If all stakeholders work together to collaborate in developing compelling, consistent messages to disputants, such as how to use mediation to prevent conflicts from escalating and prevent positional approaches from becoming stuck, the market will grow and everyone, mediators and disputants alike, will benefit.

3. Energetically develop all six leadership competencies as one mediation community

The world’s leading mediation institutions and their members could meet regularly to discuss the six competencies identified above. This could begin with a global conversation, convened by a neutral, non-services-providing organization, supported by service providers and professional bodies. Together they could focus on crafting a shared vision for the global development of mediation by 2030.

Who can do this?

Mediative leadership requires sharing power. If all stakeholders become owners, and not merely renters of the field’s future, mediation will become more widespread.

Who will design, build, own, and sustain these leadership skills and unlock mediation’s Golden Age? We will, together.
 


Interview with Joan Goldsmith

ENDNOTES

[1] Examples of such skills, behaviors and traits associated with leadership that cannot be mandated are captured by the following words: Trust, Love, Caring, Dedication, Creativity, Self-management, Curiosity, Honesty, Insight, Courage, Synergy, Empathy, Integrity, Compassion, Consensus, Understanding, Craftsmanship, Wisdom, Values, Passion, Perseverance, Forgiveness, Initiative, Unity, Flow, Trustworthiness, Collaboration, Follow-through.

[2] For more on this see: The End of Management and the Rise of Organizational Democracy by Kenneth Cloke and Joan Goldsmith (Jossey-Bass 2002)

[3] Learning to Lead: a Workbook on Becoming a Leader by Warren Bennis & Joan Goldsmith (Basic Books/Perseus, 2010)

[4] The GPC Series was organized by the International Mediation Institute (IMI).  While it was not focused on mediation particularly, but all forms of dispute resolution, it provided insights into how mediation varies from country to country.  For more information about the GPC Series, click here. For the North American Report referred to and a summary of the differences encountered, click here.

 

 

 


 

 

1st Key-Leadership: The Youth Shall Lead Us
Aloysius GohSean LimSamantha LekMegan Tay

Develop a Generation of Peacemakers through Peer Mediation Programs

Many peer mediation programmes (PMPs) set out to teach youth conflict management. Yet, having offered one such PMP annually since 2010, we have found that we have learnt as much, if not more, from them.

Humbling as it may be for adults to admit, the sages who can unlock the Golden Age of mediation may actually be the youth.

What is “Peer Mediation”?

“Peer Mediation” describes the process in which a young person facilitates the communication between two or more peers who are in a dispute and leads them to an amicable solution.

Relevance of Peer Mediation

Thanks to technology, youth wield phenomenal influence over each other. If you were born in the last century, it can be hard to imagine life as a young person today where you are constantly able to befriend others and become victims of hate speech and fake news. Cloaked as online personalities, hate and frustration can be vented with little fear of the consequences. It is also not unusual for comments to be “liked” and “shared” within minutes by thousands around the globe. In this world, which is by design separate from that of previous generations, conflicts regularly arise and spiral quickly out of control. The youth often find themselves in situations where simple apologies no longer suffice to resolve the original conflict. Prompt conflict de-escalation by friends makes a difference. This is why many schools have introduced PMPs.

Mediation and Leadership in Schools

School-based PMPs go beyond conflict management education.

The Peacemakers Conference is one such PMP. Framed as a leadership bootcamp where youth learn key skills like exercising self-control, resilience to negativity, and responsibility for their community, the Conference is in substance a mediation workshop-cum-friendly competition held over 3 days. Led by international mediation professionals and undergraduate students, Peacemakers has trained more than 850 Southeast Asian youth in mediation and has drawn the support of the International Mediation Institute, the Asian Mediation Association and the Singapore Ministry of Law.

Evidence of Peacemaker’s success comes most from the appreciation notes the organisation receives from the Conference alumni. One teacher shared how a Peacemaker graduate prevented a fight between his classmates and not only averted suspension for them but fostered a strong class spirit. Another student confided that she convinced her quarrelling parents to seek professional mediation assistance and saved the family from breaking up.

Indeed, PMPs make the greatest impact for youth from challenging backgrounds. With a richly textured emotional vocabulary, their demonstrations of empathy often bear an authenticity that moves the observer. Their transformation during the Conference from misunderstood delinquent to creative problem-solver proves that leaders and mediators can be nurtured.

When the youth are taught to ask “why” and not just “what happened”, they learn to look beyond angry accusations. Instead of seeking to attribute fault, they learn to suspend judgment, be attentive to the context, and consider the emotions of others. With a new appreciation of the purpose of communication, they guide their friends to exercise self-control, reflect on deeper motivations, and create innovative ways to solve the problem.

PMPs compel the youth to acknowledge that while conflict may be inevitable, violence is not. When someone disagrees with them, it need not be because their comment was wrong or foolish, but because the person did not understand fully. Learning that “there is no failure, only feedback”, they become resilient to criticism and conscious that naysayers often seek to conceal their own inadequacies by pointing out the splinter in the other’s eye.

On a social justice level, the youth discover that resolving conflict amicably is something all of us can and should do. They gain confidence to resolve their own conflicts through communication. They see that the power to resolve conflicts lies in their hands and take ownership of the peace and well-being of others within their community.

Recommendations

Although there are many PMPs in educational institutions worldwide, the majority of schools have yet to devise and introduce one. One way to improve the situation is for existing PMP providers to share tools for “training trainers” and materials that will inspire and enable teachers to draw on local and international experience. For those interested in running a PMP, three suggestions from Peacemakers’ organisers are:

Institutional Support and Educator Role-Modelling

Unsurprisingly, PMPs which made the greatest impact were fronted by staff invested in promoting the use of mediation in school. By reducing reliance on authoritarian forms of rule-enforcement-based problem solving, peer mediation represents a paradigm shift in the teacher-student dynamic. Teachers must trust in the students’ ability to lead the resolution of their conflicts. As mediating can be psychologically stressful, peer mediators should know of available mentoring support. This can be trained school staff or professional mediator volunteers who help triage the conflicts appropriate for peer mediation and determine which should be escalated for administrative intervention.

Relevance

Role plays which mirror the youth’s experiences and struggles will help them better appreciate the relevance of peer mediation. Rather than lectures abbreviated by anecdotes, the right pedagogical mindset is practice abbreviated by lectures. The youth generally love a good challenge and have a lifegiving ability to laugh at themselves. However, many also struggle with adolescence and may feel awkward when searching for the correct intervention. With a blend of humour and gravitas, the practices will provide the youth with the self-confidence and competency to be leaders and peacemakers.

Keep Things Simple

An effective PMP keeps things simple and focused. One of Peacemakers’ greatest challenges has been to include all the well-intentioned advice from stakeholders into a limited time frame. Schools are busy places and sustaining the youth’s interest can feel impossible. While encouraging the young peacemakers to be ambitious, a PMP is most effective when it focuses on the small steps to de-escalate and resolve conflicts. One tool that can help peer mediators beyond the workshop is a behavioural guide printed on a wallet-size card. An example of a Peacemaker Code reads:


  • Don’t be a mere spectator to fights
    • Listen actively
    • Suggest constructive solutions
    • Acknowledge others’ emotions
    • Take a breath before reacting
    • Don’t pass on fake news/rumours
    • Be responsible for your community
    • Communicate empathy.

Conclusion

The following lyrics sum up our thoughts succinctly:

“I believe the children are our future
Teach them well and let them lead the way”

Let us raise a generation who will serve as agents of peace, and truly bring about the Golden Age of peace we mediators hope for.

 


1st Key-Leadership: Adopt The Edinburgh Declaration
John Sturrock

Back in May 2018, I had the privilege to host and chair a really uplifting and wonderfully diverse conference in my home city, Edinburgh, Scotland, under the auspices of the International Academy of Mediators (IAM) .

Around 100 mediators from over 20 countries attended and shared deep discussions about how we as mediators can look outward and work towards a “new enlightenment” in the tradition of the great Scottish Enlightenment of the 18th and early 19th centuries which made Edinburgh, for a time, the “Athens of the North” and led to leadership in economics, philosophy and physics by such as Adam Smith, David Hume and James Clerk Maxwell. Literature and architecture thrived through Robert Burns, Sir Walter Scott and James Playfair and such Scottish inventions as the telephone, the bicycle, television, penicillin, the refrigerator, among many others, played a part in the modernisation of the world. At the conference we learned about Adam Smith’s lesser known work (after The Wealth of Nations) entitled The Theory of Moral Sentiments in which he spoke of the importance of finding common ground and “the pleasure of mutual sympathy”.
 


Interview with Tim Hicks and John Sturrock


We were inspired by such writing and aspiration. At the conclusion of that conference, in a ceremony in the Scottish Parliament building following superb addresses emphasising the value of principled and interest-based negotiation delivered by world-renowned negotiation expert William Ury (who also signed the Declaration) and Scotland’s First Minister, Nicola Sturgeon, almost 100 mediators signed a Declaration setting out what we believe in and commit to.

No such document is ever perfect and there were a few reservations about some of the expressions used. But, overall, the Declaration received emphatic support at the conference. Here is what we subscribed to on Saturday 12 May 2018:

We believe that it is in the interests of our world as a whole and our own communities in particular that difficult issues are discussed with civility and dignity.

We believe that it is very important to find common ground and shared interests whenever possible and to enable and encourage people to work out difficult issues constructively and cooperatively.

We believe that finding common ground and shared interests requires meaningful and serious dialogue which requires significant commitment from all concerned.

We believe that understanding underlying values and addressing fundamental needs is usually necessary to generate long-term sustainable outcomes.

We believe that restoring decision-making and autonomy wherever possible to the people who are most affected in difficult situations lies at the heart of good problem-solving.

We believe that mediators have a unique role to play in helping to promote the principles we have set out above.

We believe that it is a privilege to act as mediators in a wide range of difficult situations in our countries, communities and the world as a whole.

We are committed to offering our services to help those in difficult situations in our countries and communities, and in the world as a whole, to deal with and resolve these for themselves in a constructive and cooperative way.

We are committed to doing all we can to maintain our independence and impartiality in those situations in which we are invited to act as mediators and to build trust in our work as mediators.

We acknowledge and accept that preserving our independence and impartiality in such situations may mean that any outcome reached may not accord with views or wishes we may hold as individuals.

We acknowledge that applying these ideas is a long-term, subtle and complex process which we need to approach with humility and that a range of outcomes is possible in the many different contexts and places in which we work.

We are committed to maintaining and raising professional standards through training, continuing development and sharing of best practice.

We recognise that it is important to exemplify the values that we seek to encourage and, in our work as mediators, we undertake to do our best, and to encourage others to do their best, to:

  • show respect and courtesy towards all those who are engaged in difficult conversations, whatever views they hold;
  • enable others to express emotion where that may be necessary as part of any difficult conversation;
  • acknowledge that there are many differing, deeply held and valid points of view;
  • listen carefully to all points of view and seek fully to understand what concerns and motivates those with differing views;
  • use language carefully and avoid personal or other remarks which might cause unnecessary offence;
  • look for common ground whenever possible.

The Edinburgh Declaration was a seminal and inspirational expression of belief and commitment. It explains why we mediate - something that is rarely publicly expressed. As we all focus on the future in what has become an even more uncertain and turbulent world, let us affirm what we believe in and what we commit to. Now is the time for mediation to put its best foot forward in a world which desperately needs to find new and better ways of approaching conflict and difference.

The Edinburgh Declaration is for all of us to make the best of. It is not exclusive to the IAM or any one body. It helps to frame the contribution we mediators can make. It helps us to be better understood and appreciated. I encourage all readers to adopt The Edinburgh Declaration and use and promote it in your own work in whatever field that may be. Among many suggestions made for its use are articles in journals, blogs, advertisements, adoption and endorsement by mediation and other organisations, translation into other languages, and inclusion on websites and in mediation agreements.

The message travels far when we speak collectively in this way. Now is the time.

 

 


 

2nd Key-Data: Bring Objective Science to Mediation
Ava AbramowitzKenneth Webb

In 2017, after four years of investigation and detailed review of 47 empirical studies, the American Bar Association Dispute Resolution Section’s Task Force report, “Research on Mediator Techniques,” was released.[3] Its findings were perplexing:

“The Task Force’s review of the studies found that none of the categories of mediator actions has clear, uniform effects across the studies—that is, none consistently has negative effects, positive effects, or no effects - on any of the three sets of mediation outcomes.” The outcome categories are: “(1) settlement and related outcomes, (2) disputants’ perceptions and relationships, and (3) attorneys’ perceptions.”

Yet, we know mediation works.[4] Cases are being settled. Professors are teaching mediation skills. Courts are certifying people to mediate, and disputants and their lawyers are relying on them - all with an accepted shroud of confidentiality. How long can all this sanctioned activity continue without scientific proof supporting it?

We Can do More

Yes, there are obstacles.[5] All, however, are solvable, and strides are being taken to do just that. New survey instruments are forthcoming.[6]  Increased academic studies, often using student - or actor - disputants and real mediators, are trying to gain insights into the black box of mediation - its mysterious internal functions that are largely hidden from users,[7] and poorly understood by mediators. But the fact remains, as important as this activity may be, until we directly observe a large enough number of mediations, we will continue to wonder what mediators actually do to help settle disputes. Simply put, nothing can substitute for direct observation of real-life mediations by trained researchers yielding scientifically tested, evidence-based reasons for that reliance.

Fortunately, we already have a variety of methods to give us insight into mediation. We have a range of qualitative methods such as surveys and interviews to improve our understanding, but the use of direct observation methods is fairly rare. For those methods we need to look outside the field of mediation to the research of other disciplines to find new, workable, tested research tools. There we will find a tested scientific method - Behavior Analysis (BA) - that can be used to observe, quantify, and correlate mediation participants’ communication behaviors with both forward movement and impasse. With BA’s methodology, we can link anonymized data from demographic and perception studies with BA’s own anonymized data to identify exactly those techniques that correlate with “yes”.[8]
 

INTERVIEW


Behavior Analysis

Created in the 1970s, BA, through direct observation, has been successfully applied to analyzing a range of interactive skills. While no single research methodology can provide definitive insights into such a complicated activity as mediation, applying BA to it seems a good first step. Mediation is, after all, a form of facilitated negotiation and persuasion, and that is where BA has made its most visible contribution—Negotiation and Persuasion.[9] 

What BA does is discover those communication behaviors that correlate with, if not cause, success. Each behavior is closely defined, so there is no overlap with another behavior. Further, each behavior is objectively defined, defusing the need to guess speaker intent. The language speaks for itself and is coded accordingly.

How does BA do that? BA breaks down communication into its atoms – the individual behaviors people typically use. An idea is put on the table. People usually agree or disagree. Someone is confused. They either seek information or give information. Such behaviors, once identified, are the atoms of communication that can be used singularly, in combinations, or in sequences to achieve results.

An example: For any group[10] to reach a decision, someone has to Initiate—that is, put a proposal on the table; everyone has to share enough information to Clarify the proposal so all are talking about the same thing; and the group has to React. These three key behaviors can be broken down into smaller behaviors, as long as each behavior can be separately and clearly delineated from all other behaviors. Moreover, each behavior must be unquestionably objective, so a high enough degree of inter-rater reliability can be achieved. This allows hypotheses to be tested by anyone certified to observe, results to be replicable, and evidence-based education and training to be created, delivered, and evaluated for efficacy and impact.

The concept of BA is familiar to mediators. Mediators, like negotiators, are taught that active listening is key to conveying empathy; that, when they Seek Information, they should then Test Understanding and later Summarize so the speaker feels heard. This cluster of communication behaviors is taught as the Empathy Loop. Wouldn’t it be wonderful if research uncovered other clusters?

Through BA, scholars and skills trainers could test hypotheses and fine-tune mediator training and performance. Here’s one hypothesis: Different behaviors are used in caucus than are used in joint session. Moreover, different behaviors are more effective in caucus than in joint session. Whatever is discovered, mediators could then learn how to use each milieu strategically, not merely by habit or default.

With research methods such as BA, the mediation profession can finally have objective, quantitative, replicable, science-based insights backing it. We would have a profession-wide meta-language so that Mediator A in Country B could share Initiating strategies with Mediator C in Country D, and both would know they are discussing the same phenomenon. Even better, we could correlate communication behaviors with outcomes from forward movement, settlement, and impasse to discover which behaviors are helpful, when, and where, and which ones are not. We could even link participant perceptions with behaviors and discover which ones induce a higher sense of procedural justice, trust, and neutrality.

And we could do more. We could explore communication behaviors stage by stage from preparation through settlement. We could study nuance and style. Do some negotiators succeed by Proposing, Giving Information, and Disagreeing? Do others succeed by Building on the Proposals of AnotherSeeking Information, and Supporting? Are there still other effective style models? Do they differ by economic sector, type of dispute, experience of the parties, by culture, or merely by mediator proclivity?

The Challenge

BA is no magic bullet. Qualitative analysis will invariably be necessary. Best if two differently skilled researchers pair up. Mediation is that complex. Whatever the methodology, it will be difficult to identify behaviors that cause outcome. For a while, correlations will have to suffice, but is using research challenges as a reason to maintain “the black box” an acceptable option? With big-data analytics teasing insights and order from noisy data, it needn’t be.

It’s time to bring objective science to mediation.

ENDNOTES

1st and 2nd endnotes available below.

[3] The Task Force Report is available here.

[4] Is it that we know or that we believe mediation works? Is settlement attributable more to the mediator or to the disputants’ desire to settle? A study linking participant expectations pre-mediation with participants’ communication behaviors during mediation as well as their post-mediation perceptions might help us answer that question.

[5] These obstacles are among the most daunting:

  • We have no standard definition of success for either the mediator or the resolution of the dispute. (But see Ava J. Abramowitz, Toward a Definition of Success in Mediation, American Bar Association, Section on Dispute Resolution, Dispute Resolution Magazine, Volume 24, Number 4, Summer 2018.)
  • There are no professionally agreed-upon definitions and metrics that enable comparisons.
  • Nearly all research to date has been qualitative with each researcher developing their own methodology and terms. Comparability cannot result.
  • Getting access to live mediations is more than difficult. The process is confidential—and people like it that way.
  • Mediation is contextual. Are the skills demanded of a family mediator the same as those used by a construction mediator? Unlikely.
  • Finally, mediation is messy, and any resulting data, qualitative or quantitative, will be noisy. Correlating input and outcome will be hard, finding causations harder still.

[6] The National Center for State Courts with the assistance of the ABA Section on Dispute Resolution (SDR) is working on “Data Elements for Courts to Collect Regarding ADR,” which will help put the demographics and use of mediation in perspective. Resolution Systems Institute, again with the help of the SDR, has issued “Model Mediation Surveys: A Guide to Courts,” which will provide insight into how people feel about the process and its outcomes. And this is just in America. Academics and researchers around the world are working together to discover what mediators and parties can do to make mediation more effective.

[7] The word "users" is intentionally selected to include not only the lawyers and their clients (often referred to as “the parties,”) but also experts, family members, corporate employees, and other attendees who the mediator and the parties feel would aid in resolving the dispute.

[8] “Exactly” probably requires tandem observations by both a qualitative and a quantitative analyst.

[9] See, for example, Neil Rackham, Peter Honey, & Michael J Colbert, Developing Interactive Skills (1971), Neil Rackham and John Carlisle, The Effective Negotiator — Part I: The Behaviour of Successful Negotiators, 2 J. EUR. INDUS. TRAINING 6, 6-11 (1978), and Neil Rackham, SPIN Selling (1st ed. 1988).

[10] A mediation, by definition, involves a group—mediator(s), two or more disputants, usually two or more lawyers, and often an expert or more. If an implementable settlement is to be reached, each participant has a role to play in its development. Getting to Yes spells out the most used process. Behavior Analysis details the communication behaviors, the communication atoms, each participant uses and correlates the chosen behaviors with impasse or movement or whatever else the researcher wants to explore.

 

 


 

 

2nd Key-Data: Run the Global Pound Conference (GPC) Series Every 5-7 Years
Emma-May LitchfieldDanielle Hutchinson

The Global Pound Conference (GPC) Series 2016–17 was an ambitious project involving a series of 28 events held in 22 countries across the globe. Led by the International Mediation Institute (IMI), chaired by a user and supported financially by many outstanding sponsors[3], and chaired by a user (i.e. party), its purpose was to collect actionable data[4] and stimulate conversation on shaping the future of commercial dispute resolution and improving access to justice. 

The GPC was attended by 4,000 stakeholders who, with the aid of a dedicated voting app, were invited to express their views on issues at the forefront of dispute resolution. The use of cloud-based technology meant that many trends and patterns emerged in real time, prompting rigorous discussion among the delegates and experts in attendance. In adopting an approach that enabled both instant and longer-term results, the GPC generated data using methods not previously considered[5], in ways not previously possible, and at an unprecedented scale.

As insights and priorities continue to emerge[6] from the data, its unique value becomes increasingly apparent. For example, based on the findings from the GPC, we are now able to identify distinct party profiles. These can be used by lawyers and other practitioners to better understand parties, including what they will need to increase the likelihood of reaching a resolution. The next step is to commit to regular GPCs to enable ongoing data collection to help improve all forms of dispute resolution, including mediation.
 


Interview with Emma-May Litchfield and Danielle Hutchinson


Party Led

Stakeholders from across dispute resolution were represented at each event: Parties (disputants/users such as companies, other organizations, business owners, in-house counsel); advisors (lawyers, finance experts); non-adjudicative providers (mediators, facilitators); adjudicative providers (judges, arbitrators); and influencers (scholars, skills trainers, policy makers, government officials, Chambers of Commerce). The commercial parties that attended gave the GPC a vital party-centric approach. In the spirit of promoting ongoing research and conversation, the data is publicly available[7].

The Value of Holding Periodic GPC Series Events

A global perspective: The GPC Series 2016-17 was a global endeavour. As the events were held in 22 countries, it provided global perspectives. It was also global in the sense that it included participation from a variety of stakeholders across the dispute resolution spectrum, thus allowing mediation to be viewed through a much wider lens. This enabled us to see mediation’s impact both as a stand-alone process, and when used with other processes. In facilitating global input, we can compare data locally, regionally and globally across jurisdictions, and therefore learn from each other.[8]

Monitoring progress: By conducting GPC events regularly over an extended period, it becomes possible to monitor and share progress against targets and priorities and ascertain trends. For example, the recent GPC North America Report[9] identified several top priorities:

  • Including ADR as a mandatory part of law school curricula and continuing legal education for lawyers and judges, and suggested inclusion in business school curricula[10];
  • Increasing diversity of ADR providers/practitioners;
  • Developing principles of proportionate discovery to reduce delays, costs and complexity and increase opportunities for early resolution;
  • Conducting a systematic review of arbitration - specifically complexity, timeliness, costs and access to justice;
  • Developing a strategic plan to manage the growing influence of mediation; and
  • Shifting the focus to a party-centric approach to dispute resolution by prioritising the identification of parties’ needs, wants and expectations, and then matching these to the dispute resolution processes most likely to achieve parties’ desired outcomes. This contrasts with practices that focus on helping parties shoehorn their desired outcomes to fit processes offered by the practitioner/provider or specified by contract.

In collectively identifying this list of priorities for shaping the future of dispute resolution based on clear data, North America is now better-equipped to evaluate the impact of setting such priorities, measuring progress towards these goals, identifying the facilitating and inhibiting factors, and assessing the extent to which such priorities continue to be relevant. It also means the mediation community can take a more informed and strategic approach to promoting mediation within the context of the priorities identified as important for meeting the needs of parties.

Change over time: By adopting a systematic data collection process through repeat GPCs, the global dispute resolution field can identify changing attitudes and the impact of major turning points. For example, one of the themes to emerge from the GPC Series 2016-17 was parties’ reluctance to adopt mediation because of concerns about lack of enforceability of mediation settlement agreements. With the advent of the Singapore Convention on Mediation[11], we can monitor the ongoing impact of this international mediation enforcement mechanism on the needs, wants and expectations of parties involved in commercial dispute resolution. We have the unique potential to discover whether the impact is felt equally across jurisdictions or if local enforcement issues remain a major stumbling block. Crucially, such reflections and any subsequent response will not be anecdotal, but evidence based.[12]

In terms of change over time, it may also be that we need to revisit the way that we conceptualise the key players in commercial dispute resolution. In future GPCs, additional stakeholders such as those with a role in helping parties build strong agreements and therefore prevent disputes, could be included. This may see business managers and other ‘negotiators’ take their own distinct place alongside the existing stakeholders as vital players in the commercial dispute resolution landscape. Exploring these opportunities by gathering data on what stakeholders think and desire on this subject in future GPCs is an exciting prospect.

Multi-modal data collection: Using multiple modes of data collection allowed the GPC Series 2016-17 to satisfy dual needs. Firstly, allowing quantitative data to be available to delegates in real time prompted robust conversation during each event. Secondly, conducting focus groups provided a source of rich qualitative data that could be analysed over time.

Multiple-choice questions enable participants to respond to matters identified as important by the researchers. Focus group questions, however, give participants scope to express their ideas about issues that they, themselves, deem important. Adopting this dual modality allows for checks and balances that ensure the research designers do not inadvertently confine responses to their areas of interest. There is wisdom in continuing to adopt this approach when conducting future GPC events. This is particularly important given the calls for a more objective[13] or evidence-based approach to the search for what really works.

The GPC Series 2016-17 was a huge success. It generated invaluable data.

Let’s do it again.

ENDNOTES

1st and 2nd endnotes are the author bios below.

[3] For a list of Sponsors and other supporters, click here

[4] The data was supplemented by online voting that incorporated information from people unable to attend a live event.

[5] The need to consider a range of methodologies, some of which may be new to mediation, and prioritize evidence-based practice is discussed in “Bring Objective Science to Mediation” by Ava J. Abramowitz & Kenneth E. Webb. For more information on the cross-disciplinary approach to data collection and analysis by the GPC Series, see the GPC North America Report here.

[6] For a list of all reports generated using the GPC data, click here

[7] For the overall data from the multiple choice questions asked, click here. For a summary report explaining global data trends and regional differences, click here. These documents are on the website of the International Mediation Institute, which initiated the GPC Series and can be found here and here.

[8] This idea is discussed further in “Establish strong, collaborative, mediative leadership” by Kenneth Cloke, Joan Goldsmith, Rosemary Howell and Alan Limbury (compiled by Valeri Primo).

[9] For the GPC North America Report, click here. The GPC North America Report was funded by the AAA-ICDR Foundation.

[10] This idea is discussed further in “Teach mediation as a core subject aligned to real world needs” by Barney Jordaan and Deborah Masucci.

[11] For a full review of the Singapore Convention, see: The Singapore Convention on Mediation: A Commentary by Nadja Alexander and Shouyu Chong, Wolters Kluwer 2019. See also “Sign, ratify and implement the Singapore Convention on Mediation” by George Lim.

[12] The methodology adopted by the GPC has also been used extensively in the development of professional standards. With the advent of the Singapore Mediation Convention, and specifically Articles 5.1(e) and (f) which reference specific standards of mediator practice, it may be useful to consider other contexts within which the GPC methodology may make a contribution within the field of mediation e.g. in “Act to ensure mediation is respected as a true professional practice” by Pierrick Le Goff.

[13] This idea is discussed in “Bring Objective Science to Mediation” by Ava J. Abramowitz & Kenneth E. Webb.

 

 


 

2nd Key-Data: Develop a Negotiation Index

Folklore was the class at university that fundamentally altered how I view the world. It was taught by a certain Professor Alan Dundes[2] who was internationally known – and notorious – for a number of his essays and books about various human traditions. For those in the USA in those years, perhaps the most controversial of his academic work (which also earned him a number of death threats) was a homoerotic interpretation of American football.[3]

Prof. Dundes introduced his students to different systems for classifying and analyzing human traditions. Among these was the Aarne-Thompson Tale-Type index[4].  This index, “catalogues some 2,500 basic plots from which, for countless generations, European and Near Eastern storytellers have built their tales.”[5] The index classifies tales according to the elements they contain, and numbers them for reference with the “AT - number” designation.  The AT tale types apply to much more than so-called “folktales.” For those who grew up in Western culture, they classify every story you have been told, every film you have seen, every theatrical play you have attended (including all of Shakespeare), and even many urban legends.
 


Interview with Mike McIlwrath


Negotiation needs an AT Tale Type Index, and so does Mediation

As an in-house litigation counsel for more than 20 years, I have been involved in countless negotiations (and mediations) around the world. We often struggle to find the right strategy to fit a negotiation and are befuddled by negotiations that fizzle or lead nowhere despite clear advantages (that we perceive) to the other party.  When we try to stretch beyond the familiar, it feels like reinventing the wheel. I may not have been in this situation before, but certainly others have. I have looked for a negotiation resource similar to the AT Tale Type Index. To date, I have found nothing close.

Without such an “index” of data capturing all the different things that occur in negotiation, mediators are handicapped when they try to apply their theories. They lack the reference points other than their own experiences in assisting parties. We all learn on the job, but we also learn much from others.

An index of how people actually negotiated, and what they believe works and what does not, is easily something that could be created with the right level of collaboration among practitioners and academics. Such an index should not adopt or have a preference for any particular negotiation theory or style. With Prof. Dundes, for example, one did not have to accept his Freudian psychoanalysis, and I mostly did not, to appreciate his message that all human traditions can be captured as data, and that data can be collected and organized so as to be easily accessible as a reference for those interested in the field. In fact, he enlisted his students in the task of assembling data, requiring each of us to collect, identify, and analyze 40 items of folklore. Our collective contributions (about 500,000) are today catalogued and archived in the Folklore Archives at UC Berkeley. But Prof. Dundes believed that collecting data was just the foundation of the real endeavor. As he said in one speech, “the presentation of data, no matter how thorough, is useless without the development and application of theory to that data. It is not enough to simply collect, one must do something with what one has collected.”

Certainly, the negotiation field is so vast and varied that an index, catalogue, or canon (call it what you will) could be both rich and useful. Like folklore, negotiation is a human tradition generally passed from one negotiator to another. And negotiation techniques vary as much among practitioners as the situations that negotiators face.Without any universally accessible reference of negotiation techniques and situations that classifies empirical evidence that may be more effective in given situations, negotiators tend to adopt techniques drawn from their early training, what they once found to have been effective, or their own personal styles.

Who would benefit?

Mediators and negotiators would be primary beneficiaries of such an index. The mediation field is awash with often contradictory theories on how to best use different negotiation techniques. Yet it is it impossible to assess them with reference to available data (where it is available), to add to the data (as with the A-T Index) or compare different techniques and negotiation situations.

With an organized classification of negotiation techniques and situations, parties and mediators could more easily make use of approaches with which they lack familiarity or comfort, but that may be more effective for their situation. Both mediators and parties could more confidently navigate the mediation process. And it could also spur the negotiation field to develop and test new techniques.  

How would a negotiation index work, and what would it include?

Like any good reference, a negotiation index would need to be organic so it could grow over time. It would be able to add new links to available literature or authoritative commentary as it became available, information on whether there is consensus on certain techniques, or minority views inconsistent with current consensus but not necessarily wrong or ineffective.

For example, suppose a party is reluctant to make an opening offer, but has been encouraged by a mediator to do so anyway.  The index could have a section devoted to opening offers, with multiple subsections, such as making the first offer, counter-offers, seeking additional information before making an offer, amounts of opening offers, and concessions following an opening offer. Under each sub-heading would be information about different approaches, a possible consensus opinion, and reference materials. 

For parties - like me - who often struggle to get the other side to agree to mediation, this index might also include a section on proposing methods of reaching agreement, with references on timing and characteristics of the parties, and relevant cultural distinctions. 

A Negotiation Index would help negotiation and mediation to be regarded as serious professional disciplines. Other professions rely on such reference tools. Medicine, for example, has a vast range of well-documented reference tools for diagnosis and treatment available at the touch of a keyboard.

Making it happen

Creating a Negotiation Index - whether as a hard-copy catalogue, an online wiki, a downloadable app, or whatever form could be most suitable - will require collaboration among negotiation and mediation scholars and other thought leaders, their publishers, researchers, skills trainers, and dispute resolution institutions. Just as Prof. Dundes enlisted his own students to create a catalogue, business and law school students around the world could provide a powerful contribution to an effort co-ordinated internationally by a group of scholars. It would take a little time, but with a collective will, such an exciting project could improve the quality of the work that negotiators and mediators do every single day.

ENDNOTES

1 is author bio, below.

[2] For more on Professor Dundes, click here.

[3] Into the Endzone for a Touchdown: A Psychoanalytic Consideration of American Football (1978).

[4] Since then it has been updated and is now called the Aarne-Thompson-Utter Tale Type Index

[5] Id.

 

 


3rd Key - Education: Teach Mediation as a Core Subject Aligned to Real World Needs
Barney JordaanDeborah Masucci

Mediation is rarely taught as a core subject in business schools, law schools and other professional curricula, despite the fact that an increasing number of jurisdictions now provide for some form of court sponsored mediation. A number of global companies include courses in negotiation and mediation in their professional development offering, but the courses are not always effective in addressing real life situations. 

The case for, and benefits of, including negotiation and mediation as core modules in law courses rather than a mere elective has already been made elsewhere (e.g., Riskin 1984; Lewis 2016). Results from the GPC Series 2016-17 for North America published on the International Mediation Institute’s website[3] further confirm that education in law and business schools in these disciplines has become a major demand for users of dispute resolution services throughout North America.

Reciprocal skills

However, a proper understanding of mediation requires not only knowledge of mediation (education) but also some actual experience as mediator or mediation advocate in real cases. With typically large student numbers, one can probably only expect the former to be offered in the standard curriculum, although many U.S. law schools offer clinical programs where students can practise mediator skills. These programs often collaborate with the courts or community dispute resolution programs.

Yet teaching mediation skills to students before they have a decent understanding of negotiation puts the cart before the horse. A compulsory course in negotiation for law students should be standard in legal training: most of a legal practitioner’s or corporate advisor’s professional time is spent negotiating. Yet few law schools outside the U.S. seem to provide for it. We believe that mediation should not be offered as a course on “alternative” dispute resolution but incorporated into the broader framework of legal practice, alongside arbitration and adjudication, with equivalent status.

As Riskin (1984) states: “Law schools should not graduate a mature mediator”. Providing more in-depth knowledge and hands-on experience of mediation needs to be reserved for masters or postgraduate levels. Given factors such as lack of time in the law curriculum, large student numbers, budget constraints and availability of experienced faculty, there is little option but to do so. Such programs must also focus on additional skills such as counselling, process selection, effective preparation skills, cultural dynamics, mediation advocacy, mixed-mode dispute resolution, emotional intelligence and neuroscience. 


Mediation knowledge and skills for non-lawyers

What about business schools? Many already offer negotiation either as an elective or as a core subject in their degree programs, including the MBA. Some include mediation as part of the curriculum, some make a cursory reference to it while others don’t cover it at all. Yet business schools are perfectly placed to inform participants in both their degree and executive programs about the benefits of mediation from a business perspective. The results of the GPC Series 2016-17[4] demonstrate quite clearly the size of the attitudinal gap between corporate managers and corporate counsel (the demand side) on the one hand, and their legal advisors on the other, regarding dispute resolution needs and expectations. While, for example, clients rated efficiency of dispute resolution processes as their primary concern, their external lawyers tended to provide advice based on their own training and experience which, by and large, did not include knowledge or experience of mediation.

Business schools can contribute to increasing knowledge of mediation in different ways, beginning by including negotiation as a core competency in their degree programs and including a module on what one might call ‘mediation literacy’ in negotiation courses, not least because of the emerging importance of facilitated negotiation.

Business schools can also offer postgraduate diploma-type programs that include as core modules dispute avoidance and management, negotiation and mediation. At one business school, where one of the authors taught for many years, such a program was offered with the mediation component being taught by an external, accredited mediation training agency that provided participants not only with an academic qualification but also accreditation as mediator in the local jurisdiction with an option to also qualify in a particular foreign jurisdiction subject to certain conditions. Models for this type of program can also be found in North American Law Schools that offer certificate programs for dispute resolution.

Business schools are also ideal hubs for bringing together members of the legal and business worlds to discuss mutual interests and concerns regarding the resolution of business-related disputes, particularly in a globalised and fast-changing operating environment. This can include the promotion of Planned Early Dispute Resolution[5] (PEDR); setting up round tables[6] and workshops - involving faculty, legal and dispute resolution practitioners, in-house counsel and senior managers – around themes such as “Legal Means Business”.

Internal and corporate education

But what happens when the student enters the work force, or an executive program participant gets back to the workplace? Do they have scope for practising and honing their newly acquired negotiation and/or mediation skills set? What about employees who didn’t have the opportunity to attend negotiation and mediation courses? Currently the focus of negotiation courses offered by global companies is mostly on sales and procurement negotiations and not dispute management and resolution. Offering access to courses focused on dispute avoidance and management as part of their employees’ professional development could bring significant added value to a company, especially if those courses are customised to the organisation’s needs and not merely generic, off-the-shelf products. Courses can be delivered using on-line technology, a more efficient delivery system for global organizations.

Adding value

Negotiation and mediation training can build on one another to impart skills that address real life problems in organisations with potential spin-off benefits beyond the organisation. It can also enable those who have received training to begin applying their skills in their personal lives, their communities and society at large. In 2019, almost 200 CEOs signed a Business Roundtable statement[7] defining five purposes of business. One of them is “Investing in our employees. This … includes supporting them through training and education that help develop new skills for a rapidly changing world…”. Need we say more?

ENDNOTES

Endnotes 1 and 2, author bios, are listed below.

[3] GPC Series aggregated results

[4] Please click here.

[5] For a description of PEDR, click here.

[6] See for example, the RTMKM in Germany – click here.

[7] For the full Statement, click here.

References:

Lewis, L. L. (2016) “Law Student Mediators Wear a Triple Crown: Skilled, Sellable, & Successful” available here.

Masucci, D. (2017) “Access to Justice – The Road Ahead: What is the Role of the Lawyer/Advisor and Education?” Fordham Law Journal Volume 40, Issue 3 Article 10

Riskin, L. (1984) “Mediation in the Law Schools” 34 Journal of Legal Education 259.

 

 


 

3rd Key-Education: Ensure the Future Through Mentoring and Practice Programs for New Mediators
Angela HerberholzEmma Ewart Keir

Mediation is an ever-evolving field, making the journey for mediators a never-ending learning process. Practising mediators with advanced knowledge, skills and experience need to support the next generations of mediators to ensure a positive and vibrant future of mediation.

 The Problem

Each year, people of all ages undergo mediation training in different countries and for different reasons. Most complete the course riding a wave of excitement and enthusiasm, anxious to practice their skills. But there are very few structured career paths or development programs that students can opt into when mediation training ends. It is difficult for newly-trained mediators to step on the first rungs of the mediation ladder.

Consequently, newly-trained mediators often struggle to find opportunities to advance themselves in the field without connections. Many feel intimidated, reluctant, to approach experienced mediators for guidance. When the Young Mediators’ Initiative (YMI)[3] surveyed members, 87% confirmed the need for mentoring programs incorporated in mediation training. Just 35% had been fortunate enough to gain any field experience whatsoever. Some practising mediators are members of service providers that offer formal post-training schemes, but these situations are rare.

It is so notoriously difficult for new mediators to gain field experience that Bill Marsh, one of the world’s most experienced international mediators has observed: “Opportunities are slim, and only the most committed will ever stand a chance. You need to be willing to take risks, travel, experiment and not get paid”[4].

While new mediators are usually aware of this problem and are willing to invest personal resources, it still seems to be very difficult to enter the profession. There are few internships and scholarships, and those that do exist[5] are over-subscribed.

This very often results in the next generation of mediators being unable to practice what they have learned, and talented professionals drift to other fields.
 


Interview with Angela Herberholz


Addressing the Problem

To ensure a vibrant future for mediation, mentoring schemes are needed. Each program could attract a pool of highly qualified and experienced mediators willing to act pro bono as mentors. Each program could be online, connecting mentors with mentees so that mentors can provide guidance to mentees and help them generate field opportunities. And the programs could be led by a dedicated group of professionals. All mediation provider institutions could establish such a program or subscribe to existing mentoring programs such as the YMI, publish it on their websites and promote it to their online communities. While expert participation in these programs should remain voluntary, mediation providers could strongly and publicly (online and offline) encourage their members to engage actively, either as mentors, or as experience generators, and preferably as both. Where a mediation service provider does not offer such a mentoring program, their panel mediators might challenge them, and take steps to create one, becoming the first mentors.

Empowerment Through Experience Generation

Field experience is vital to develop the successful skill sets mediators need. Mentorships facilitate access to field experience. A mentee can support the mediator at all stages of the mediation process, from preparation, through administering and note taking, to shadowing the mediator and following up. Many mediators who enable inexperienced mediators to accompany them report that “shadows” are genuinely valuable to them in many ways[6]. While parties need to be asked if they agree to having a “trainee” or “assistant” present during their mediation, mentees must comply with the same rules and confidentiality obligations as the mediator. YMI members adopt the IMI Code of Professional Conduct[7]. Consistent feedback from mediators supporting the YMI and offering shadowing opportunities to YMI members indicates that when requests were made to parties or their advisers to bring along a YMI member, few objections were recorded.

Guidance

Not all mediators make suitable mentors, but every mediator has what it takes to become one. Mentoring closely resembles mediator skills, such as the ability to listen actively without judgement; to perceive solutions and opportunities; to provide insight and counsel; and empathy, respect, flexibility and patience. Mediators are encouraged to apply their existing skills, networks and time to empower, inspire and guide new mediators whenever they can towards a successful mediation career.

Mentoring can occur in many forms and it is not bound by national borders. There are many newly trained mediators in parts of the world where mediation is not yet used sufficiently to enable them to gain experience. Experienced mediators can make a huge difference and help develop mediation in those countries by connecting with a mentee online. With technologies such as video conferencing, bridging countries and cultures, mentorships can have a cross-cultural dimension, valuable to the experienced mediator mentor as well as their mentee.

Lead The Way!

Ten years ago, the International Mediation Institute established the YMI and a mentorship scheme to develop new mediators. A structured and well-organized online framework allows YMI members to connect with experienced mediators and ultimately gain field experience. Unfortunately, mentee demand quickly outgrew the supply of willing, experienced mentors. This scarcity of mentors remains the core challenge that needs to be addressed.

In order to increase the pool of experienced mediators, YMI teamed up with organizations either already running their own mentorship scheme or eager to develop one. Rather than each organization working independently, a collaborative effort was launched. The Worldwide Mediation Mentoring Program[8] is currently being developed jointly by the YMI, the International Academy of Mediators (IAM), the Institut Français de Certification des Médiateurs (IFCM), the Instituto de Certificaçao e Formaçao de Mediadores Lusofonos (ICFML), and the Singapore International Mediation Institute (SIMI), with the support of the International Centre for ADR of the International Chamber of Commerce (ICC).

Collaborative leadership can ensure