I began this article on the future of mediation practice at what I thought, reasonably enough, was the beginning. Discussing how I came to New York in 1985 to train with John Haynes on a new approach to managing disputes that at that time had not yet found its way to the United Kingdom where I practised as a solicitor. However, In the course of writing and reviewing this piece, it began to dawn on me that while the trip was my conscious recollection of the beginning, it was not the actual beginning of my attraction, engagement and investment in what has become a personally and professionally fulfilling career. Like many realisations of this sort, it was sparked by an unexpected and synchronistic experience.
I met a friend for lunch to discuss some joint writing that the two of us are doing on the cross-over between certain aspects of Islamic and Judaic law and practice. We are both originally from South Africa. I grew up and practised law there for a number of years before moving to England. And he probed me about whether and to what extent I thought the background experience of my grandparents and my parents, who were then children, having had to flee the pogroms of Eastern Europe, and my having grown up in apartheid South Africa, influenced my life choices and focus. In Cape Town, through my law firm, in addition to commercial and family law matters, I was actively involved in political and civil rights work, representing many prisoners on Robben Island, including Nelson Mandela for alleged breaches of prison regulations and to resist being struck off the roll of attorneys on the grounds that he was alleged to be a Communist.
In retrospect, it is perhaps curious that I had not directly made the connection between my close proximity to such significant historical events where justice, fairness and human suffering were directly at issue, and my inclination to pursue alternative modes of conflict management that appeared to allow people a forum for direct and personal expression of their grievances and the opportunity to have a greater sense of control over their lives.
My inclination toward mediation practice, it seems, was not merely a professional career choice, as it was a means of pursuing my sense of a common humanity that we all share irrespective of race, religion, ethnicity, or other surface differences that exist between people, and the opportunity to meet the human need for healing when possible. Traditional legal systems provide a formal framework for the determination of rights and duties, but only in forums that allow people to discuss problematic issues directly with each other can that humanity be appreciated and healing occur. Healing and the pursuit of humanity are not the primary aims of mediation or other ADR processes, but they do allow for them to occur as desirable by-products where possible. Curiously, as I have discovered, we as professional practitioners are not immune to over-emphasising surface differences and making judgments of each other based on our beliefs about what mediation is or should be, rather than recognising one another’s humanity.
And so it was that in 1985 I travelled from London to New York to train as a family mediator with John Haynes as there was nothing suitable or similar available in the UK. For me as a commercial and family lawyer, it was a new, exciting and more appropriate way to address the breakdown of couples’ relationships. Our UK experience was that lawyers dealt with all aspects of separation and divorce especially property and finance, though some children’s issues could be referred to conciliators, who largely had counselling or social work backgrounds.
A whole new vista opened up: that lawyers and counsellors might co-mediate and jointly deal with all issues arising on separation and divorce, including property and finance. On the flight back to London, filled with enthusiasm, I envisioned and believedthat the whole divorce paradigm in the UK would emerge and that mediation would become the process of choice within 18 months. Ho ho! Indeed, there has beena fundamental change with mediation becoming an integral part of the UK’s divorce landscape – but it has taken 30 years rather than 18 months, and even now, it remains a minority activity with continuing challenges and false starts. So when I am asked to try to anticipate what the next 20 years may hold for mediation, I have to remind myself how wrong we can be! Nonetheless, together with Lisa Parkinson and four other colleagues, we were able to found and sustain the Family Mediators Association.
Meanwhile civil-commercial mediation had arrived and as I had co-run some commercial training in Hong Kong with US mediator Eric Green, who actually taught that process to me, I was invited to join the initial training faculty of CEDR, the Centre for Effective Dispute Resolution, which was to become Europe’s largest civil-commercial mediation organisation.
It was around then that the perception developed in the UK that the family model had to be kept distinct from the commercial model, with its all-day sessions, separate confidential meetings, lawyer involvement and immediate binding agreements. So for decades these models proceeded on parallel tracks and never the twain shall meet.
But as a result of my personal pragmatic experience in gradually integrating these different ways of working into my practice and of my academic work as a writer and trainer, I realised over the years that we were far too stuck on our separate models, on our assumptions about how people might react, on our belief systems based on how we had been trained and how the system had organised itself, making it self-perpetuating even with a creative process like mediation.
So I found that my commercial mediation practice could sometimes benefit from staggered sessions and more time spent with the parties together; and family mediation could sometimes benefit from having separate confidential meetings, longer sessions and lawyers closely involved where appropriate. I did not evaluate formally, but I found that sometimes facilitating people’s understandings in a sensitive and respectful way could help parties move forward. Parties were satisfied, results were better and there were no ethical inhibitions. Surely this was the way forward?
Alas no. While some individual mediators who trained in this more flexible and creative model found it very beneficial, there seemed to be some organisational reluctance to shift from familiar and comfortable ways of working. Understandably, people get very used to the truths that they have learned and incorporated into their belief systems and find it difficult to adopt change – even in a profession (or field) that is supposed to be creative and to encourage others to embrace change.
That does not seem to be a peculiarly English phenomenon. Over decades I have observed ideas and exchanges from the US and around the world, and while there is a great deal of consensus there is also still a significant attempt by some to define mediation in a narrow, exclusionary way or to suggest that certain ways of practising are “not mediation”.
This might not matter if we could each just go our own sweet way and not aim to rationalise process and to have mediation regarded as a profession, or at least a professional activity, with its standards and ethical Code acceptable to all practitioners and to the public in general and the courts and legal system in particular. Surely we have passed the stage of debating whether we are a profession or a field, or other issues that might relate to angels dancing on the head of a pin, and we need to accept that if mediation is to have a significant role in helping to resolve conflict and disputes, we as practitioners need to arrive at a universal consensus about standards that we share in common and a healthy respect for the fact that we may have individual and organisational differences, which can all be accommodated within the broad umbrella of “mediation”.
Mediation after all is a broad term covered by most dictionary definitions along the lines of “intervention in a dispute in order to resolve it” or “to work with two or more disputants in order to bring about an agreement, settlement, or compromise”. Fundamentally, mediation involves a third party helping people in conflict or dispute to arrive at their own agreed resolution of their differences. Everything else is gloss.
Here I want to mention an article in The Observer newspaper a while back, headed “Gourmet dish or poor man’s food? Naples chefs take sides in the ultra-pizza wars”. It seems that The Neapolitan Association of Pizza Makers has secured European Union certification for the margherita, which has very specific requirements: a 33cm diameter, 2-3cm high crust, San Marzano tomatoes, cow’s milk mozzarella from the Campania region and olive oil. The problem is, that a number of restaurants up and down Italy (let alone in the European Union and the world!) are offering gourmet pizzas, which go outside this traditional recipe and are using different kinds of cheeses and tomatoes, different kinds of bases, and even going so far as to use truffle oil, salt cod, shrimps or duck and asparagus. It seems that more chefs are colonising the poor man’s food, pizzas.
But for the Pizza Makers Association these are not real pizzas. They may look like pizzas, they may be what people want and they may be pulling in the crowds and winning plaudits from chefs and critics; but they are not following the Pizza Makers Association’s standards. “We can’t lower our standards by allowing gourmet pizzas.”
As I discovered, a quite similar question has continued to plague mediation practice almost from the beginning: “What is real mediation and who decides?” How much should different styles and approaches be tolerated? Specifically, could evaluative forms of mediation still properly be termed “mediation”? And later on, even mediators’ motives and purposes came into question; were they being too focused on settlement rather than process? Those who claim to “own” the right to decide what “real” mediation is, may need to re-examine their attitudes and motives – and to consider their affinity to the Pizza Makers Association! Debating about different ways of working is healthy butthat is not in question. What is worrying is when those who have strongly held views seek to preclude or inhibit other approaches.
So-called “evaluative mediation” is a primary example of an area of practice difference between practitioners. I feel clear that (1) it is a misnomer as all mediation is inherently facilitative; (2) evaluation lies on a spectrum with a simple question that may gently challenge an assumption at one end and a formal opinion as to the outcome if adjudicated at the other end; and (3) if used facilitatively and sensitively, and without making or promoting any decision by the mediator, but rather to help provide the parties with better understandings, it can form a perfectly proper part of the mediation process. Yet there are those who would seek to prevent mediators from questioning a party’s belief about the merits of his case, however distorted that belief may be.
Anthropologist Philip Gulliver, who specialised in processes of dispute management and decision-making in traditional African societies, described the mediator as “a facilitator and adviser but not a decision maker” and outlined how disputes might involve groups of kinsmen with third parties called in to perform a mediatory function. In relation to current mediation practice, Gulliver pointed out that “contrary to some idealistic and ethnocentric assumptions, there is no such thing as the role of the mediator. The range is wide, both of the statuses of mediators (who they are and why they are so acting) and of the roles they play (the strategies they choose or are forced to adopt)……He may…be rather passive…(he) may chair the talking sessions… he may work at clarifying issues, demands and offers and suggesting appropriate norms and their application; he may, from the first or later, make creative suggestions for outcomes…he may consult and advise parties in caucus or in joint sessions. At the extreme of mediation, he may press his own evaluations of the situation and his opinions as to effective outcomes”.
I also have some concern about practitioners who regard their model as the only right one while disparaging other ways of working, as seems to be the case with some who embrace the transformative model. I can see the considerable value of this model for certain kinds of issues and there isn’t any doubt that it has its place in the dispute resolution toolkit for those disputants who make an informed choice that this is what they want. My concern would be whether the transformative proponents, who seem to have an almost theological fervour in their belief system, would recognise that people may want and need the kind of process that I would offer. I am rather taken aback by their notion that I was intoxicated by and addicted to the drug of problem-solving when I made the decision to mediate and moved out of a professional legal partnership into a part-time consultant’s role 30 years ago. It does strike me that it would be really good if all mediators could give one another mutual recognition of the value of their respective processes.
Yet another example of an exclusionary approach to practice is contained in Paragraph 5.5.2 of the Code of Practice of the UK’s Family Mediation Council (FMC), which contains the following provision:
“5.5.2 …..Nothing must be said or written to the legal advisor of one party regarding the content of the discussions in mediation which is not also said or written to the legal advisor(s) of the other.”
The value of this provision is questionable as is its need or ethical relevance, but the effect is profound. It precludes the approach that I have found over the last 15 years or so to be so valuable – having separate confidential meetings with the couple with lawyers present when appropriate. My attempts to get the FMC to review this provision have so far been unsuccessful as they have (ironically) been heavily engaged in a new mediation standards framework, including the establishment of a Family Mediation Standards Board. Hopefully, as soon as it is properly functional the new Board will re-examine the Code. Meanwhile UK family mediators are bound by a Code which in my view is inappropriately and damagingly restrictive.
I believe that this sense of mediators failing to accept a range of practice models as legitimate is widespread and pervasive and is by no means limited to family mediation practice.
Taking a broad view across the fields of mediation activity and across many parts of the world, there is undoubtedly a good level of genuine collaboration with a view to enhancing mediation and making it more widely accepted. Large numbers of individuals and organisations have joined together to support one another and the process in bodies that promote, teach, support and/or market mediation. Yet underlying this, it seems so hard to get everyone on board with a united voice.
Briefly, then, how is all of this likely to play out over the next 20 years? Who knows? But with the benefit of having stepped back from practice and training, it seems to me to be critical for mediators to do for themselves what they so often encourage adversaries to do in a dispute – to abandon their entrenched positions, and instead of arguing and competing for the “right way”, to join together in embracing and celebrating their commonalities and the richness of the range of processes available. We must more completely acknowledge, accept, and genuinely respect our practice differences in methodology, ideology, attitude, approach, style, or model. Our unifying commitment needs to be to maintain a healthy and flexible readiness to support what works, and to be ready to consider new ways of working that may challenge existing mind-sets. We need to recognise the paradox that that we are both an integral part of existing systems and structures and at the same time, innovative and creative agents for change.
The emergence of Barack Obama as the front-runner for the Democratic nomination, and thus for the Presidency of the United States, presents us with unprecedented opportunities to influence global dispute...By Kenneth Cloke