Community Mediation Committee
Chair: D.G. Mawn
Members: Arron Addison, Kabrina Bass, Brandon Brown, Sara Campos, Corinne “Cookie” Levitz, Charles A. Lieske, Norma López, Jeanne Felicity Zimmer.
Additional Report Facilitators: Felicia Washington, Lori Dieckman and Phillip Hong
How can we best assist and support community mediation centers and other non-profit mediation organizations to embrace and offer online mediation services and to utilize and benefit from basic and ongoing online mediation training that will help the underserved?
In November 2020, Mediate.com approached D.G. Mawn of the National Association for Community Mediation (NAFCM) to facilitate a national think tank regarding possible support Mediate.com may wish to consider which would strengthen and broaden the impact of community mediation through on-line access. The exact charge was: Develop best-practice recommendations for Mediate.com regarding their online services so they best support the field of community mediation to embrace and offer online mediation services and utilize and benefit from basic and ongoing online mediation training.
NAFCM established three workgroups, which met multiple times between January 2021 and April 2021 to develop recommendations for Mediate.com to consider that may strengthen the discipline of community mediation. Those who worked on parts of this report included: A INCLUDE LINKS aron Addison, Piedmont Dispute Resolution Center (Virginia); Kabrina Bass, Midlands Mediation (South Carolina); Brandon Brown, George Mason University’s Carter School for Peace and Conflict Resolution (Maine); Sara Campos, Loyola Marymount Law School’s Center for Conflict Resolution (California); Lori Dieckman, National Association for Community Mediation (Colorado); Philip Hong, Pepperdine School of Law (California); Corinne “Cookie” Levitz, Center for Conflict Resolution in Chicago (Illinois); Charles A. Lieske, Mediation West (Nebraska), Norma López, Orange County Human Relations (California); Felicia Washington, National Association for Community Mediation (Virginia); and, Jeanne Felicity Zimmer, National Association for Community Mediation (Minnesota).
Online mediation access is a key breakthrough for unrepresented parties.
Woody Mosten
COMMUNITY MEDIATION COMMITTEE RECOMMENDATIONS:
These recommendations are separated into three categories. The first category focuses on how Mediate.com may be able to help strengthen the community mediation centers themselves. The second category focuses on strengthening the ability of community mediation to be infused into our formal and informal dispute resolution practices. The third category focuses on expanding the knowledge and openness of the broader community to the value and use of community mediation.
Strengthening the community mediation centers and structure
Community mediation centers need to have the capacity to increase access to justice by underserved populations. Some suggestions:
Strengthening community mediation centers footprint in conflict resolution activities
Community mediation centers need to be part of the just infrastructure. Two overarching suggestions are:
Community Mediation Training
The content on Mediate.com is largely focused on purchasable training modules and articles written by members about the art of mediation in various settings. In the area of community mediation specifically, however, the website seems only to link to articles written about the wider picture of mediation, some of which deal specifically with community mediation. The website seems to fall short in connecting people with services that would be considered under the CMC umbrella. One way that Mediate.com can assist CMC’s in embracing and offering online services is by tailoring aspects of the website to individuals and organizations doing community mediation work.
Finding, or encouraging articles that explicitly discuss the ways that CMC’s work within other systems (schools, courts, human services, etc.) would be a starting point. Mediate.com could also begin exploring ways to facilitate connectivity between systems and CMCs in the virtual space.
Developing more CMC-geared trainings is another approach that Mediate.com might take. CMC’s work extends beyond the interpersonal conflicts, they also facilitate a lot of group work that is specific to their communities. Mediate.com would benefit from creating, or partnering with CMCs, NAFCM, or other organizations to create virtual trainings that equip mediators with specific skills that are more group- and community-based. A current example of this would be a training about facilitating conversations between communities and police, communities and political figures, communities, and the courts, etc. If Mediate.com offered more trainings tailored to CMC needs, they would be moving towards centers embracing ongoing online trainings that are specific to helping systemically underserved people and communities.
The training that Mediate.com offers should also be evaluated in terms of the diversity they are representing. If training videos are going to appeal to CMCs they should represent people that centers will find in their community as opposed to only the skills someone might need to mediate with people generally. The current offerings on the website seem to be lacking in diversity; of who and what is represented. This point ties in with the one above, that Mediate.com should consider expanding their community section on the website to include a wider diversity of content.
Mediate.com should also be communicating with NAFCM or CMCs to get recommendations for what trainings would be most beneficial moving forward, and partner with organizations to offer the best, most representative trainings, in order to pull in interest from centers who could benefit from those trainings.
National Virtual Mediation Platform
NAFCM and Mediate.com could develop and pilot a virtual CM platform – this could be national – and could help fill in the gaps across the country where there are no CMCs. Private practitioners/individuals could be trained through this partnership – trained for the first time – or re-trained (unlearning the legal model) through this collaboration, and experienced volunteer virtual community mediators would provide coaching and apprenticeships opportunities. These volunteer virtual community mediators (VVCMs) would co-mediate a wide variety of cases across the country – primarily those where participants are geographically distanced. A sliding-scale fee chart would be developed, and contracts/grants could be sought to fund the program. This could be a way to connect systems – virtually – across the country.
Strengthening the awareness of community mediation centers
Community mediation centers need to assist in ending being their community’s best kept secret. Some suggestions:
Building rapport and trust with online parties is a necessary skill for competent mediators.
Woody Mosten
Family & Elder Mediation Committee
Chair: Susan Guthrie
Members: Ken Neumann, Peter Salem, Lara Traum, Gabrielle Hartley, Linda Seely
ISSUES CONSIDERED BY THE FAMILY & ELDER COMMITTEE:
The Family and Elder Committee was tasked with Considering the Following Questions:
In order to properly formulate answers to these questions, the Committee further broke their inquiry down to include the following:
“How can we best train mediators online? This question is not just for online mediators, but also includes how can we best utilize the online environment to better train “face-to-face” mediators.”
Jim Melamed
FAMILY & ELDER COMMITTEE RECOMMENDATIONS:
Based upon the analysis and discussion of the issues and questions outlined above, the Family and Elder Committee makes the following recommendations with respect to the establishment of core competencies for online mediation and online mediation training going forward.
In the public policy area, another way to create a hybrid process is to take helpful field trips with the group being facilitated.
Donna Silverberg
Public Policy & Large Group Committee
Chair: Donna Silverberg
Members: Alana Knaster, Annie Kilburg Smith, Betsy Daniels, Janet Chance, Ken Cloke, Kristen Wright, Laurel Singer, Tahnee Robertson, Toby Berkman and Winter Wheeler.
At the request of Mediate.com, a small group of US-based public policy and large group mediators/mediation trainers met online during the winter/spring of 2021 to consider best practices and ideas to enhance online training and practice. All of us had moved our practices to the online setting as a result of the Covid-19 pandemic. Some of us had moved our trainings online before Covid (if not completely through university-based online programs, then as a hybrid tool as practitioners). All of us had found the online transition to have benefits AND limitations both in practice and in training. None of us have yet found a way to completely mirror hallway conversations, the ‘breaking of bread’, or the before/after small-talk time during which so much rapport is built that supports creative resolution of public policy and large group conflicts.
As a result, we identified areas for which additional understanding and support could enhance both the training and practice of online public policy and large group mediation. This report summarizes our ideas and recommendations for ourselves, our colleagues, and Mediate.com. We look forward to sharing this with others in order to build upon the tools we have identified that can support the processes we and our trainees run…so we can all better serve the public.
PUBLIC POLICY & LARGE GROUP
COMMITTEE RECOMMENDATIONS:
1. Survey students from the past several years of online public policy mediation courses to learn whether or not they are able to successfully move from their online training to doing public policy and large group mediation, either online OR in person.
a. What helped them feel prepared to do the work?
b. What additional training have they sought to raise their level of understanding and proficiency?
c. If they sought training, what more was needed from what they got in the online setting?
2. Offer hybrid trainings that integrate 1-2 full days of in-person training with online training to provide trainees/students with the full spectrum of large group mediation experience.
a. All who discussed these issues agree: one cannot gain an understanding of the complexities a large group/public policy mediator faces without including a portion of face-to-face training. Seeing faces-only online limits the numbers of distractions and challenges a mediator faces when managing a large group conflict in person.
b. Large group mediators need to be proficient both in person AND online because their clients want to integrate the two mediums. We have been surprised to see how many private organizations have sought to hold their internal strategic planning and conflict resolution discussions face-to-face as the Covid numbers have begun to decline.
c. Mediators who have not had any large group, face-to-face training will be unprepared for the types of issues that arise in large group and public policy settings and, therefore, will provide less-than-acceptable levels of practice for these types of cases.
3. Develop and share a library of public policy and large group mediation simulations that have been found to work well in the online training environment. By well we mean simulations that:
a. allow many trainees the opportunity to experience both the role of mediator and stakeholder/interest group member;
b. provide opportunities to use multiple functions of the online environment (such as breakout rooms, shared documents, whiteboards, and other tools to support online brainstorming and consensus building);
c. are appropriately timed to allow exploration, closure, and debrief of each phase/stage of the public policy mediation.
4. Analyze and develop a set of ‘best practices’ that will enable public policy mediators to determine when it is best to do work face-to-face, when a hybrid is appropriate, and when a case can or should be done completely online (e.g. safety, travel, or accessibility issues).
5. Hold a series of online Expos that demonstrate and give an opportunity for public policy mediators and mediation trainers to try different tools and techniques in a “safe” setting.
6. Set up a registry that will enable public policy and large group mediation trainees to find seasoned mentors and apprenticeship opportunities that will support ongoing learning.
Conclusion
Our group appreciated the request and opportunity to come together to discuss what this brave new world of online mediation and mediation training looks like, especially as it pertains to the successful management of multi-party and public policy conflicts. We believe that online mediation, training, and others services will be a part of our lives for the foreseeable future. We also believe that this is an opportune time to learn from our experiences and begin to create a series of best practices to help mediators be most capable of handling multi-party public disputes on the platform and with the tools most appropriate for the individual case. We look forward to continued dialogue, to enhancing research, and to helping develop best practices with our colleagues and Mediate.com.
Specific Training-Related Advice
How do we best accomplish public policy/large group role play exercises online?
Synchronous simulations are most effective for ‘training’ mediators how to do the work in real time (moving parties from room-to-room, using different tools such as whiteboard, etc.);
Youth and Schools Committee
Chair: Clare Fowler
Members: Sherril Ellsworth, Linda Seely and Jonathan Rodrigues
YOUTH AND SCHOOLS COMMITTEE RECOMMENDATIONS:
New Mediators’ Guidance from May 15-16 Youth Conference
This article summarizes the Young Minds, Global Voices Conference.
This conference was sponsored by Mediate.com in an effort to hear from younger mediators. These 6 sessions included thought young leaders from around the globe, forming a brain trust for how to create peace in ourselves, our community and our world.
Presentation Materials from May 28 Forum:
New Voices in Dispute Resolution
http://mediate.com/onlinetraining/New%20Voices%20in%20Dispute%20Resolution.pdf
Additional Resources
Association for Conflict Resolution (ACR)
Recommended Standards for School-Based Peer Mediation
Peer mediation can be a successful approach to managing interpersonal con?ict in elementary and secondary schools. These programs provide a unique opportunity for diverse students to use communication, human relations, and problem-solving skills in real-life settings. Effective programs can help to create a safe and welcoming school environment, improve interpersonal and inter-group relations, and assist in reducing school conflicts and violence, especially when part of a comprehensive violence prevention plan.
Click to download ACR Recommended Standards for School-Based Peer Mediation Programs
https://cdn.ymaws.com/acrnet.org/resource/resmgr/docs/Recommended_Standards_for_Sc.pdf
“People follow standards, generally speaking, because they make sense and they work. Standards do something for you. They keep you in proper boundaries.”
Dan Rainey
Standards & New Technologies Committee
Chair: Colin Rule
Members: Obi-Farinde Morenike, Linda Seely, Leah Wing, Tim Hedeen, Dan Rainey
STANDARDS & NEW TECHNOLOGIES COMMITTEE RECOMMENDATIONS:
RECOMMENDED UNIVERSAL CODE OF DISCLOSURE
See: Creating a Universal Code of Disclosure (7 Keys Collection)
http://mediate.com/Mediation2020/article.cfm?zfn=universal-disclosure.cfm
Creating Universal Code of Disclosure (Cyberweek)
http://mediate.com/articles/CodeOfDisclosure.cfm
New: Mediator Disclosure Protocol Website
A Code of Disclosure is a simple, powerful concept. It would provide that a mediator must first establish a set of principles to explain how he or she will conduct mediation. The framework of the disclosure statement would be uniform, regardless of the subject matter of the dispute and wherever and however the mediation will take place. Although the Code would have a uniform list of principles for disclosure, the mediator’s declared conduct could vary greatly underneath each principle, and it would do so with the knowledge and approval of the parties. In addition to any declaration of adherence to a specific State or professional code of conduct or model rules, the principles may include elements such as independence, neutrality, impartiality, confidentiality, envisaged mediation process steps, the mediation style to be adopted, the mediator’s role, any conflicts of interest, the applicable complaint process and the mediator’s qualifications.
Taking the ‘Mediation Process’ principle as an example, the Code of Disclosure would not require that the mediator use a specific process but would require that the mediator explain to the parties the process s/he proposes to use and to secure the parties’ approval. This broad ‘process’ principle could be broken down into topics such as ‘pre-mediation’, ‘Mediation’, ‘post-mediation’. The Qualifications topic, for example, might require the mediator to disclose if s/he is credentialed by a dispute resolution institution(s), and if so which.
Creating a Code of Disclosure is achievable within a reasonable time frame. Compared to a uniform Code of Professional Conduct for mediation, creation of a flexible and adaptable Code of Disclosure would only require discussing and agreeing on the broad principles for what a mediator needs to disclose in advance to the parties.
The creation of the Code of Disclosure could be initiated by convening an ad hoc international working group of respected stakeholders in the dispute resolution field. The working group could be co-chaired by users of dispute resolution services and moderated by several leading mediation scholars. All deliberations could be conducted in an online forum that anyone interested could observe, with a draft Code of Disclosure offered for public comment. The development process would involve consulting existing codes of professional conduct and studies on ethics in negotiation and mediation and would involve consultation with mediation-related institutions across all subject areas. The working group would then publish a recommendation for adoption by service providers and mediators on an open, online register that could be endorsed by governments, NGOs and professional bodies. Once widely adopted, the Code of Disclosure could be formally incorporated into national and international norms.
The creation of a Code of’ Disclosure would bring many benefits to mediation and its stakeholders. It would:
Should mediators be responsible for training and supporting disputants in using the technology that will be employed during their mediation?
Leah Wing
RECOMMENDED PRACTICE STANDARDS FOR ONLINE MEDIATION
RECOMMENDED ADDITIONAL STANDARDS FOR ONLINE FAMILY AND DOMESTIC RELATIONS MEDIATION
See: Establishing Standards for Online Domestic Relations Mediation
http://mediate.com/articles/OnlineDomRelMediationStandards.cfm
As part of a mediation process, be the mediation “face-to-face,” or “online,” or a mixture of the two, mediators should discuss and seek best means of communicating during the mediation with all participants.
In addition to meeting face-to-face, mediators and participants may communicate via online video, as part of online mediation platforms, by email, attachments, text, phone and other means. Mediators and participants are encouraged to utilize a range of communicational options in support of their mediation. It is understood that the confidentiality of mediation communications shall not be lessened nor determined by a selected modality of communication. To the extent that participants jointly prefer communicating in certain ways during a mediation, those preferences should generally be honored by the mediator. To the extent that participants have different preferences for how to communicate during a mediation, the mediator shall seek to best satisfy those interests in an overall balanced way.
B. Inclusion of Online Communication Understandings in Substantive Agreement
As part of a mediation process, be the mediation “face-to-face,” or “online,” or a mixture of the two, mediators are encouraged to raise issues of how participants, particularly parents, can best communicate with others, including children, both during and following the mediation.
Understanding these issues tend to evolve, Mediators are advised to assist parents in particular to discuss and set clear expectations for their children’s online access and communications, both with a non-present parent and more generally. In the best interests of their children, parents are encouraged to consider adopting common online access standards for their children.
C. Reaching Understandings About Post-Mediation Communications
As part of a mediation process, be the mediation “face-to-face,” or “online,” or a mixture of the two, mediators are encouraged to raise issues of whether and how participants can best communicate directly following the mediation process.
As determined by the participants, future communication agreements may or may not be included as part of a formal binding mediation agreement. Participants having clear expectations about future communications can assist with mediation agreement implementation and assist to pre-empt future conflict.
“Online mediation practice introduces new ethical concerns, concerns that should be raised as part of any mediation training.”
Colin Rule
RECOMMENDED DEVELOPMENT OF SUPPLEMENTAL ONLINE MEDIATION TRAININGS
See: ICODR ODR Training Concepts
https://www.icodr.org/guides/training.pdf
It is recommended that quality 12-20 hour supplemental online mediation curricula and trainings be developed and widely offered, such as the above ICODR 20-hour and the Sample 12-hr Online Mediation Curricula.
While ICODR Training Standards are more general, applying to online dispute resolution (ODR) generally, including, for example, online arbitration, online mediation should seek to develop training standards consistent with established ICODR Standards to the extent ICODR Standards pertain to online mediation. See: https://www.icodr.org/guides/training.pdf.
Importantly, it is critical to also note the International Mediation Institute’s (“IMI” at https://www.imimediation.org) recently defined Easy-read online mediation competences for individuals (https://www.imimediation.org/practitioners/competency-criteria/#ODR), including defined competencies for IMI Online Mediator Specialization. Here are IMI’s newly defined online mediator competencies, a quality starting place for any organization seeking to define needed online mediator competencies.
At least twenty full-scale e-Mediations in the past 24/36 months (exceptions: IMI Certified Mediators who have completed a minimum of five full-scale e-Mediations; mediators who have acted as sole mediator in at least 20 e-Mediations (200 hours), in countries where there is no Qualifying Assessment Program for IMI Certification.
The following areas of knowledge and understanding are required for effective use of mediation integrated with ICT (Information and Communication Technology). This list is intended as guidance to ODR QAPs in designing knowledge assessments. It is not necessarily exhaustive or mandatory.
Platform/Technology
(i) Devices needed to perform the mediation using ICT
(ii) Telecommunications technology
(iii) Information technology
(iv) Required electronic records;
The following areas of practical skills are required for effective use of mediation integrated with ICT (Information and Communication Technology). This list is intended to aid ODR QAPs in designing skills assessments. The list is not necessarily exhaustive or mandatory and is offered as guidance.
Include but are not limited to ethical obligations, neutrality, awareness of potential biases (conscious and unconscious), and confidentiality.
2.1. Basic computer skills and basic mobile computing skills;
2.2. Working with ICT platform set-up, operation, and trouble-shooting;
2.3. Ability to manage efficiently any technology challenges;
2.4. Ability to use the technical equipment and environment (e.g. lighting, sounds, distractions) in order to deliver a high-quality experience to participants of the respective e-Mediation;
2.5. Ability to convey clear and effective messages in verbal and non-verbal communication synchronously and asynchronously;
2.6. Ability to use the ICT platform in such a way that the platform does not take away the focus from the content of the conversation with/among the parties;
2.7. Ability to show confidence and critical self-awareness in working with technology to address parties’ issues;
2.8. Ability to simultaneously address people who are in different countries and regions and different time zones – understanding the impact that this can have on the dynamics of the communication;
2.9. Understanding implications for privacy in storing digital information and communicating with parties and others online;
2.10. Ability to combine asynchronous communication and videoconferencing in order to manage caucuses;
2.11. Ability to use specific options of the ICT platform such as (i) meeting planning, (ii) screen sharing, (iii) online caucus, (iv) giving mouse controls, (v) muting and unmuting, (vi) multiple webcams (vii) multiple modes of communication simultaneously.
3.1. Assessing suitability of the dispute/disputants to e-Mediation
3.2. Determining which approaches are likely to add value to e-Mediation;
3.3. Determining and explaining to the parties the impact of the use of ICT in terms of process and potential impact on the outcome of mediation;
3.4. Dealing with the different levels of readiness of the parties to accept the implication of using ICT in the mediation process, evaluating and securing equal access to ICTs for all parties involved.
3.5. Determining special costs or fees associated with the use of ICT in e-Mediation.
3.6. Preparing for e-Mediation
Also from IMI:
The Identification of Programs (QAPs) to Assess Online Mediation Competence
IMI has also taken the lead in terms of identifying Criteria for QAPs (Qualifying Assessment Programs) for Online Dispute Resolution Certification. The IMI ‘Online Dispute Resolution’ (e-Mediation) Task Force was set up to assess and make recommendations on how to develop high level standards for the provision of ODR services, having regard to:
A. the current development of mediation and other ADR tools in this field
B. the importance of ODR as a mechanism for all forms of dispute resolution
C. the emergence of legislation impacting upon ODR.
These criteria for QAPs are the output of this Task Force. Read more about the IMI Task Force at https://imimediation.org/about/who-are-imi/odr-tf.
IMI Online Mediation Specialization is now available. These three videos provide guidance to organizations sbmitting their programs for QAP assessment:
Organizations wishing to submit their program as an IMI Approved QAP can do so using this form https://docs.google.com/forms/d/e/1FAIpQLScDoX9C5iVVMEtCS_V0HDIH40tgHEgoWWQr4gkjwXKb3fYzYQ/viewform
IMI Competency Criteria for Online Mediators
See:
The integration of information and communication technology (ICT) into mediation introduced a need to identify specific recognized competencies vital for mediators practicing with ICT. The term e-Mediation is used here for ease of reference and means the application of any information and communication technology (ICT) to the process of mediation online or via any other technology. The IMI Independent Standards Commission (ISC) set up a special Task Force consisting of thought-leaders and outstanding practitioners in online mediation. The first goal of the Task Force has been to explore and design a measurable set of criteria for competency in Online Mediation for professionals. The IMI Competency Specialization in Online Mediation will help users to make informed decisions while choosing and appointing e-mediators for negotiations and Dispute Resolution (DR). It will also help competent and experienced online mediators promote their ICT advanced services.
IMI ISC ODR Task Force has designed Criteria for programs qualifying competent online mediators to establish a professional and technical basis for enabling disputing parties to identify professionals competent and experienced in e-mediation. The Criteria are presented in two broad categories: General Requirements for the Qualifying Assessment Programs (QAPs) and Substantive Criteria for online mediator Competency:
Any online mediation QAP (ODR-QAP) must meet the following general criteria to qualify professionals for IMI Specialization:
An ODR-QAP must explain how implemented competency assessment criteria and developed performance-based assessment instruments ensure that online mediators meet the Substantive Criteria on an ongoing basis. The ODR-QAP should clearly explain how these competences are verified.
Comment: The assessments may be based on the most innovative technology in online assessment and measurement such as Self-Tests, Quizzes and Surveys, Assignments (Self-assessments, written reviews or summaries, problems to decipher, spreadsheet or document to complete, etc.). Assessments may be Videotaped and/or live assessments (interviews, peer reviews, dramas, role-plays).
An ODR-QAP must be transparent regarding the Substantive Criteria assessment by publishing such information on a website and other publicly available media.
Each Assessor of the ODR-QAP must have substantial experience in online mediation and/or teaching/assessing competency of online mediators. The ODR-QAP must ensure independence and describe how the assessors will maintain their independence (i.e. that their assessors are independent from the training faculty of the applicant and have no conflict of interest with the QAP in regards to the outcome of the assessment). The assessors should share objective criteria of the QAP and should be part of the on-going professional development for their assessment experience and skills.
An ODR-QAP must include a process for the ongoing monitoring of the performance and practice of the assessors, qualified/certified online mediators, and the program itself. IMI will liaise closely with all approved program organizers to maintain a sustainable quality control system.
An ODR-QAP establishes that assessment is open to all applicants meeting substantive requirements, without discriminating based on gender, race, ethnicity, age, religion, sexual orientation, nationality, political views or any other personal or professional characterization. This should be stated on a website and other public available means, alongside the substantive criteria for online mediators.
Any program qualifying candidates for IMI Online Mediation Specialization must meet the following minimum substantive criteria with respect to all applicants:
The ODR-QAP must include a method for ensuring that applicants have demonstrated to the satisfaction of the Program’s Assessors experience of online mediation and have carried out in the previous 24/36 months a minimum of twenty full-scale online mediations. The QAP must include clearly identified criteria on this requirement.
Exemptions (minimum of five full-scale online mediations):
The ODR-QAP must include a method for determining that applicants have demonstrated an understanding of e-Mediation to maximize the efficiency of mediation. Using the online and ICT advanced environment, ODR-QAPs can use tests, essays, reports, theses and interviews to determine such knowledge. Applicants are expected to be tested on and exhibit a comprehensive understanding of online mediation theory and practice. An ODR-QAP may use the Core Competency Knowledge Elements (set out in detail in Annex 1).
An ODR-QAP must include a method for the performance-based assessment to demonstrate a high degree of online mediation competency. The IMI ISC expects that the method used by online mediation QAPs should address all the Core Competency Practical Skills (sections and sub-sections detailed in Annex 2). The method should be sufficiently detailed to attest that an applicant demonstrated a high level of competency as an online mediator. However, it is not expected that all detailed Core Competency Practical Skills listed in Annex 2 will be assessed in the same depth, and ODR-QAPs will be free to assess other practical skills not listed in Annex 2.
IMI Certification in E-Mediation
Annex 1
E-Mediation (EM) Core Competency Knowledge Elements
The following areas of knowledge and understanding are required for effective use of mediation integrated with ICT (Information and Communication Technology). This list is intended as guidance to e-Mediation QAPs in designing knowledge assessments. It is not necessarily exhaustive or mandatory.
Situational Awareness
1. Knowing when the online environment may not be a suitable way to conduct the mediation process;
2. Determining when ODR approaches are likely to add value to the process;
3. Staying abreast of developments in ICT, ODR schemes, various ODR platforms and general issues related to Online Dispute Resolution (ODR);
4. Knowledge about the impact of ICT on the practice of mediation.
Basic Knowledge
5. Understanding the principles of text based, video based, audio based communication (or a combination) and ability to identify the most appropriate one for a mediation or for phases of the mediation process;
6. Understanding of the role of a mediator, and how the mediator’s approach and practice are adaptable or not to the online environment;
7. Knowledge and adherence to ethical standards;
8. Knowledge of the dynamics of online negotiation;
9. Knowledge of relevant laws affecting mediation practice in the online environment (if any): enforceability of online mediation agreements (where relevant), confidentiality and privilege;
10. Knowledge of the various laws affecting the structure and enforceability of online mediation agreements, particularly across jurisdictions;
Platform/Technology
11. Ability to select the appropriate ICT platform that meets the needs of the parties;
12. Knowledge about which features of the ICT platform to use in a mediation (functions, security, access, complexity, others);
13. Knowledge (as applicable) in Technology (hardware and software)
14. Knowledge about possible technology issues and breakdown.
Process/Impact
15. Understanding of the emotional, social and cognitive advantages and disadvantages of using ICT in a conflict resolution process and the ability to measure and manage the impact and effects on third parties;
16. Ability to move between different communication channels based on the nature of the relationship and task at hand; (e.g. use of email to coordinate a call, use the phone before going to a face to face meeting and then shift back to phone before writing again a final email);
17. Understanding of biases related to ICT use and impact on parties and third parties’ performance in mediation;
18. Knowing how to use relevant procedures and techniques for facilitating online communication including (i) management of asynchronous communication, (ii) balancing limitations of each ICT towards the needs of each party;
19. Familiarity with the impact of the online environment in techniques like listening, questioning, paraphrasing, summarizing and concurrent caucusing.
Communication with Parties
20. Understanding and explaining to the parties policies, procedures and protocols relevant to conduct the mediation using ICT. Including but not limited to:
20-1-Ethical and legal issues (i) Consent, privacy, confidentiality, security (ii) Limitations of technology;
20-2-Documentation (i) Scheduling and follow-up (ii) Accountability /responsibility; (iii) enforceability;
21. Understanding of technological challenges and ability to identify them for each participant, including but not limited to literacy, acceptance, and compatibility;
22. Knowing how to use techniques for adequately supporting technologically challenged participants and address possible imbalances between parties;
23. Knowledge of cultural bias related to the use of technologies in mediation practice.
IMI Certification in E-Mediation
Annex 2
E-Mediation Core Competency Practical Skills
The following areas of practical skills are required for effective use of mediation integrated with ICT (Information and Communication Technology). This list is intended to aid e-Mediation QAPs in designing skills assessments. The list is not necessarily exhaustive or mandatory and is offered as guidance.
1. General skills in mediation (IMI Certification) include, but are not limited to, ethical obligations, neutrality, awareness of potential biases (conscious and unconscious), and confidentiality.
2. Skills related to technology
2.1. Basic computer skills and basic mobile computing skills;
2.2. Working with ICT platform set-up, operation, and trouble-shooting;
2.3. Ability to manage efficiently any technology challenges;
2.4. Ability to use the technical equipment and environment (e.g. lighting, sounds, distractions) in order to deliver a high-quality experience to participants of the respective e-Mediation;
2.5. Ability to convey clear and effective messages in verbal and non-verbal communication synchronously and asynchronously;
2.6. Ability to use the ICT platform in such a way that the platform does not take away the focus from the content of the conversation with/among the parties;
2.7. Ability to show confidence and critical self-awareness in working with technology to address parties’ issues;
2.8. Ability to simultaneously address people who are in different countries and regions and different time zones – understanding the impact that this can have on the dynamics of the communication;
2.9. Understanding implications for privacy in storing digital information and communicating with parties and others online;
2.10. Ability to combine asynchronous communication and videoconferencing in order to manage caucuses;
2.11. Ability to use specific options of the ICT platform such as (i) meeting planning, (ii) screen sharing, (iii) online caucus, (iv) giving mouse controls, (v) muting and unmuting, (vi) multiple webcams (vii) multiple modes of communication simultaneously.
3. Skills related to the e-Mediation process
3.1. Assessing suitability of the dispute/disputants to e-Mediation
3.2. Determining which approaches are likely to add value to e-Mediation;
3.3. Determining and explaining to the parties the impact of the use of ICT in terms of process and potential impact on the outcome of mediation;
3.4. Dealing with the different levels of readiness of the parties to accept the implication of using ICT in the mediation process, evaluating and securing equal access to ICTs for all parties involved.
3.5. Determining special costs or fees associated with the use of ICT in e-Mediation.
3.6. Preparing for e-Mediation
1. Considering parties’ knowledge of mediation process and impact of ICT;
2. Understanding the level of technical knowledge of the parties and their capacity to communicate effectively using ICT platforms;
3. Guiding parties and all participants through the ICT (the process and information management);
4. Identifying possible outcomes, risks and consequences associated with e-Mediation;
5. Identifying and explaining to the parties (in common-language) the potential risks in relation to privacy and confidentiality while using online or computer-based platforms or applications;
6. Identifying and communicating common technical issues, problems or questions that may arise during an e-Mediation process and providing parties with possible protocols to address them;
7. Identifying reasonable industry standards for security and privacy protection of a determined online or computer-based platform, and refraining from using or recommending the ones that do not meet those standards;
8. Creating a protocol agreement that defines the parties’ understanding of the process, the use of any ICT, the potential risks to their information, and the responsibilities of an eMediator (including responsibilities related to confidentiality and ability to provide protection to data transmitted online);
9. Choosing the online platform that is going to be used during the e-Mediation;
10. Getting agreement regarding who will be present during the different audio and/or video sessions of the e-Mediation;
11. Getting agreement regarding who will have access to any information stored online as part of the mediation process and define how that access is going to take place;
12. Creating an atmosphere where the use of ICT by the e-Mediator outside of the mediation does not create the perception of a conflict of interest by the parties;
13. Identifying and getting agreement on the procedure to follow in case of technology breakdown;
14. Disclosing the appropriate information so the e-Mediation can be conducted without any conflict of interests; ensuring transparency with regard to the e-mediator, the institution, the 4th party and the online procedure.
15. Identifying the parties’ understanding of the sources of the dispute, their interests, rights and options, and the other party/ies’ interests, rights and options.
3.7. During e-Mediation
1. Effectively using technology and outside assistance if needed;
2. Conducting a high-quality process within the online environment;
3. Deciding on the best online process that meets the needs of the parties despite personal preferences or bias in favour or against the use of ICT;
4. Monitoring of the parties’ perceptions and attitudes towards the e-Mediation and adjusting the process respectfully;
5. Being aware of the different features of the ICT platform, their corresponding advantages and constraints to be able to discern which feature to use in which context;
6. Understanding and dealing with technology impact in power imbalances (e.g. typing capabilities of the parties, imbalance due to computer power and internet speed, others);
7. Monitoring to ensure that parties deal with the online process on equal ground and competence;
8. Being self-aware to avoid becoming biased by party’s performance using ICT;
9. Taking advantage of the change of communication type provided by online dispute resolution mechanisms to help the parties take the most out of the situation (e.g. create space for brainstorming, time to reflect, etc.);
10. Understanding how to adapt text/audio/video based communication to the kind of issue parties are discussing;
11. Applying emotion management techniques;
12. Understanding how to use active listening online that also includes attentive and active reading;
13. Using ICT to facilitate negotiations in an efficient way;
14. Ensuring that impartiality is maintained;
15. Exhibiting lack of bias related to considerations of geographical location or cultural orientation of e-Mediator or use of facilities;
16. Ensuring that the e-Mediator’s conduct is always professional and appropriate (respecting the protocol agreement regarding the access to parties, responsiveness to parties’ requests, taming tempers);
17. Managing the continuation and the termination of the e-Mediation (addressing parties’ hanging up, technical failure, automated processes, etc.);
18. Understanding how to translate face to face mediation techniques into the online environment.
3.8. Reaching agreement
1. Ensuring parties have given their informed consent;
2. Ensuring that agreement addresses issues, interests and rights as identified throughout the process.
3.9. Post-mediation process
1. Encouraging parties to provide feedback on their experience in e-Mediation;
2. Conducting follow-up when needed.
“Trust in online confidentiality, security and privacy are going to be key.”
Lara Traum
“What we are all about is growing and sharing the wisdom of the work that we do as mediators, conflict resolvers and educators.”
Tricia Jones
Mentoring & Case Consultation Committee
Chair: Tricia S. Jones
Members: Vivienne Fey, Angela Herberholz, Chris Lahatte, Michael Lang, John Settle, John Sturrock, Susan Terry, Howard Herman, Cherise Hairston, Amanda Semenoff and Patricia Draves
This report is prepared on behalf of the members of the Mentoring and Consultation subcommittee, all of whom are actively providing or participating in mentoring activities.
The term “Mentor” been commonly used to include guide, champion, teacher, supervisor. Today because we inherited many traditions of mentoring practices, we continue to use the term broadly while also attempting to give it somewhat more definition in terms of mediation and related professional practices.
“A mentor/coach is a way of being.”
Juliana Birkhoff
SECTION I – TYPES OF QUESTIONS WITH WHICH WE WERE DEALING IN THIS PROJECT
This section includes five identified groups of questions that emerged through our discussions. Further focused discussions will undoubtedly expand and refine these questions which help us understand the complexity and nuances of the mentoring process. Our efforts have been focused on how we as a field can have a more common understanding of what we mean by mentoring and how we can build a multi-faceted mentoring network that can meet the multiplicity of needs of a complex field of endeavor.
SECTION II – WHAT WE HAVE LEARNED SO FAR ABOUT BEST PRACTICES
Our work focused primarily on structured, articulated, or otherwise intentional forms of mentoring. We used the knowledge and experience of private organizations, governmental entities, and private practitioners that have put a great deal of thought and effort into building integrated and thoughtful mentoring programs. From the discussions with programs and practitioners as well as reviewing materials (program descriptions, articles, etc.) we have extrapolated common elements and key learnings. Our anticipation is that this document can serve as our “working draft” of Best Practices for Mentoring.
SECTION II – MENTORING RECOMMENDATIONS
SECTION II
WHAT WE HAVE LEARNED SO FAR ABOUT BEST PRACTICES FOR MENTORING
“The process of establishing a Mentoring Contract is key. Both mentor and mentee understand the stated expectations and deliverables. The contract can be altered, but in an intentional and stated manner.”
Michael Lang
1. THE MENTORING PROCESS
Mentoring:
a. begins with a practitioner’s earliest training. Possibly earlier if the mentee consults with a mentor in order to learn about practice as she decides whether to enter the profession.
b. is essential for continued practice development, no matter the practitioner’s degree of experience and proficiency—an exercise in life-time learning.
c. is necessary for dealing with a practitioner’s trajectory of professional development from novice to accomplished professional.
d. provides a process to support practice with theory. Mentors should help mentees link beliefs, values and principles to intervention choices.
e. in order to be effective, requires a commitment from both mentor and mentee expressed through an agreement setting out the goals, objectives and mutual obligations.
f. must include a strong experiential component of “doing” and learning. Teaching through showing (observation) and instruction are valuable, but should not be the sole methods used. g. to be successful, there should be a good match of personalities, teaching/learning styles and methods, and objectives.
h. sessions must be confidential; there must be a commitment from mentor and mentee to protect both the privacy of their conversations and of any party/client information that is shared.
i. Should be done with a mentor that is knowledgeable about the field, arena of practice, resources for other learning, has actual recent/current practice experience, and enjoys the experience of mentoring.
2. QUALITIES OF AN EFFECTIVE MENTOR
a. Understanding that being an accomplished practitioner is only one prerequisite for mentoring. Effective mentors will have knowledge about and specific training in mentoring.
b. Ability to separate their own need to instruct from the mentee’s desire to learn.
c. Ability to focus on the learning goals established in the mentoring agreement.
d. Capacity to help mentee translate feedback into practical action.
e. Encouraging and supporting mentee self-exploration and self-discovery through reflection.
f. Patience.
g. Can set aside sufficient time for feedback conversations and other mentoring engagements.
h. A Commitment to Servant Leadership: displays the key qualities of a servant leader focus on helping others grow and development to their fullest capacity. Critical skills include: empathy, giving and receiving trust, a capacity for empathic engagement, a willingness to be vulnerable, and a willingness to invest in others.
i. View Mentoring as Relationship-building: Relationship-building includes regular, ongoing connection and interaction that allows for a synergy to build in the relationship.
j. Communication of Explicit Values: Explicitly communicates their personal/professional values and “walks the talk” of those same values.
k. Willing to Share Power and Influence: Because of their positional and structural power, a willingness to use their power and influence on behalf of others who would benefit from being mentored.
l. An Inclusion and Equity Advocate: Notices who’s voices and interests aren’t “in the room” or “at the table” and advocates to bring in those voices and is willing to develop a mentoring relationship.
m. Humility and a Balanced Ego: Has cultivated and done the personal work of their own human development and stay grounded in their own sense of humility and awareness of their needs and how they impact others.
n. A Deep Listener: Has perfected the art and skill of deep, reflective listening.
o. Gratitude: Is grounded in a sense of their own good fortunes and “lessons” learned and desires to “give back” with time, commitment to build a mentoring relationship over time.
“Part of a mentor’s role is to assist the mentee in looking forward to a professional practice as an ongoing learning process.”
Susan Terry
3. CONSISTENCY OF MENTORING
“Cafeteria style” mentoring (short-term, “tasting” different mentors without settling into systematic and sustained learning) while having the appeal of variety has significant drawbacks and is not recommended, for reasons including:
Lack of consistency will likely limit the benefits of mentoring and may be confusing and counter-productive.
Mentor is not aware of “patterns” in the mentee’s behavior, areas of practice in need of challenge, or the importance/need for additional learning.
Mentee may choose to focus on experiences that avoid difficult areas in need of attention.
However, in some instances, an agency or professional association may require mentoring from more than one mentor. In that instance, communication between mentors about the mentee’s progress is essential. (Mentoring in Mediation: An Overview of Principles and Best Practices https://www2.mediate.com/onlinetraining/Mentoring%20in%20Mediation-%20John%20Settle.pdf
4. THE MENTORING CONTRACT
The process of establishing a Mentoring Contract is key. Both mentor and mentee understand the stated expectations and deliverables. The contract can be altered, but in an intentional and stated manner. This entire process of stating the goals and/or altering the contract is one of the most crucial steps in the mentoring process and parallels initial step in the mediation process when parties work to establish what has brought them to mediation and what they hope to get out of it.
A. Possible arenas of work to be identified in a contract/mentoring relationship
1. Assessment of skill/understanding level and/or improvements
2. Teaching/information sharing
3. Encouraging thought, experimentation, change
4. Modeling through observation
5. Providing safety net
6. Exploring a new arena or context of work
7. Career planning / guidance
8. Building confidence – co-mediator
9. Strengthening structural and conceptual thinking
10. Offering companionship through a difficult phase
11. Providing a practice gyroscope and method of adjustment
12. Administrative guidance – setting up practice
B. Nature of the Mentoring Contract
1. Prior to beginning any form of mentoring, whether group or individual, whether structured or spontaneous, mentor and mentee should establish the terms of the mentoring relationship. Matters to be considered include confidentiality, type of mentoring requested (e.g. advice on practice development, case consultation), understanding of the mentoring process, goals and expectations, standards for assessment, and duration.
2. Identify the mentee’s experience as a practitioner, including matters such as the nature of disputes involved, whether the mentee acted as sole or co-facilitator, the number of disputes in which the mentee was engaged.
3. Discuss mentee’s prior experience with mentoring and identify those elements that had been successful and those that had been awkward or ineffective.
4. Is there a fee for mentorship (and if so, the amount), or offered by a volunteer as a service to a professional organization, or provided by an employee of an agency or mediation program?
5. A key to the success of mentoring is defining and agreeing on expectations and goals. Determine the mentee’s objectives and whether mentoring can yield those same benefits. Are the mentee’s goals realistic and achievable?
6. Does the mentor have the knowledge, experience and qualifications (such as agency or association approval) to properly assist the mentee in fulfilling the mentee’s goals.
7. If the process is structured, are the principles and methods (such as co-mediation or observation) as well as any evaluation criteria, clear and agreed to?
8. If mentoring is provided as part of a “gatekeeping” process, such as membership in a professional organization or certification by agency or government body, are the terms and conditions of the mentorship (including policies and regulations governing mentoring) clearly established, and are mutual expectations defined and accepted?
9. If mentoring is a prerequisite to the mentee’s certification or similar approval, or if mentoring is required following a complaint of professional misconduct by the mentee, there must be a well-defined plan for mentorship based on applicable standards. For example, is the mentor required to conduct an assessment, submit reports or provide other documentation? Are the standards upon which the assessment or reports will be based well-understood by the mentee and mentor?
10. If mentoring involves live observation of the mentor or participation as a subordinate partner in the process, are the mentee’s roles defined clearly? Will the mentor and mentee meet following the live event to debrief the experience? What are the goals for the post-mediation debrief conversation?
11. Does mentoring involve written assignments, such as draft agreements? If so, what are the expectations for submitting those assignments and for reading and providing feedback?
12. Establish whether mentoring sessions will be conducted face-to-face, via telephone or video conference, by other methods, or a combination of them. In that regard, also identify any logistical challenges in meeting the mentoring goals.
5. Mentoring Ethics
A. Mentor should not substitute “feel good” feedback for rigorous engagement and holding mentee to agreed-upon goals and to established professional standards.
B. Mentor should identify and raise questions of Ethics according to Model Standards of Mediator Conduct in any questionable situation.
C. Mentor may not benefit financially from the relationship or information gained in it, other than agreed-upon fee.
D. If not gatekeeper, mentor should not provide assessment (such as rating capabilities, disputing a program’s decision about mentee’s readiness to solo mediate, or suggesting that the mentee leave the field) unless upon request of mentee and unless the request is consistent with the mentoring agreement.
E. Mentor shall disclose their core beliefs, values, commitments and style in which they practice.
F. Mentor shall not present themselves as knowing an area of work in which they do not have knowledge or expertise.
G. Mentor should understand they are making a commitment not only to be mentee, but also to the field, a program or organization the mentee maybe in and to be mentee’s future clients
H. Issues of gender, race, culture should be addressed in contracting as well as throughout the process. Both mentor and mentee should have ongoing training in these issues. Mentor should routinely use questions which ask a mentee to look at an issue they are exploring through the lens of gender, race, culture or class.
I. Mentors should have some form of ongoing support/development for their own practice as well as for their mentoring practice. The support they receive should adhere to these Best Practices as well.
J. In discussing intervention decisions, focus on “why” a specific choice among many is preferable, and not just “this is the way it’s done” or “this is how I was trained.”
K. Unless different ethical standards apply (e.g. professional association or agency) mentoring will look to the Model of Standard of Conduct as a guide.
L. Best mentoring is done in a manner that is consistent with the mentor’s own practice of mediation.
M. Mentees should not receive compensation for activities associated with mentoring observation or co-facilitation.
N. For observation and co-facilitation, clients/parties must consent in writing to the participation of the mentee. Mentee must consent to the principles and conditions of confidentiality established between the mentor and the clients/parties.
O. Mentee should determine whether any discussion with a mentor might violate a client’s/party’s privacy and confidentiality, and if so, mentee should obtain their consent in advance to discuss the situation with the mentor.
SECTION III – RECOMMENDATIONS FOR MENTORING PROGRAMS
In the source materials collected by the mentoring and case consultation sub-committee are a number of program descriptions:
The goals and methods vary, in large measure as a consequence of the overarching purpose for mentoring. For example, the IMI and IMA programs are designed for and focused on mediators entering the field; the Virginia mentoring program involves certifying mediators according to rules established by the Supreme Court; the MII mentoring program is a pre-requisite for certification within a professional association; volunteer mediators with the District Court are required participate in monthly reflective practice groups; and Orion program is an independent professional mentoring program.
Many of these programs utilize an internship framework involving observation and co-mediation. Some also include case consultation/mentoring meetings, either individual or group. Volunteer mediators in the District Court program participate in monthly reflective practice/case consultation groups.
From these resources, we derive the following general principles and best practices for all mediation programs.
1. Pre-requisites (criteria) for participation
Qualifications may include: completion of training courses, extent of active mediation practice, or membership in a professional association, recommendation by a trainer or qualified co-mediator. Setting these pre-conditions should be based on the overall objectives and capabilities of the program and should be set out clearly in the program description.
2. Application for participation
At a minimum, the applicant should explain her/his reasons for participating in the program and describe her/his educational background, training experiences, and (if applicable) years of mediation practice. Mentor interview of potential mentee is highly recommended because effective mentoring requires a level of compatibility, common outlook, personal commitment, and trust.
3. Criteria for mentors
Years of active mediation practice are only one criterion for approving/certifying a mentor. Additional qualifications and experience should include: mentor’s prior participation in a mentoring program as well as ongoing access to and consultation with other mentors, as well as the criteria set out in Section II, Part 2 above.
4. Explanation of mentoring activities and objectives
Possible program activities might include: telephone/video conference consultations; group meetings; review of agreements and other documents; observation of mentor with feedback; co-mediation with feedback; observation of mentee as primary mediator with feedback.
5. Description of mentoring processes and methods used for feedback See Section II, Part 1, above.
6. Mutual agreement on goals of the mentoring process. This is especially important with new practitioners who are just entering the field and the mentoring process is a requirement of being part of a program. The goal of the mentee should not only be to “get into the program” but independently should indicate a thoughtfulness about awareness and intentionality of learning.
7. Access – commitment by mentor and mentee to be available for mentoring activities Accepting mentorship responsibility obligates the mentor to be available on a regular basis as agreed between the mentor and mentee, or as proscribed by program rules.
8. Assessment criteria (if appropriate) to be used See Section II, Part 4 above. If assessment is being used, such as in gatekeeper mentoring, it is the responsibility of the program to give a prior statement of the criteria as well as how, and at what stages, it is determined whether the mentee is meeting the criteria or not.
If the assessment involves direct observation of a mentee’s mediation, or co-mediation with the mentee’s parties/clients, or review of a video recording of a mentee’s mediation session, the program is obligated to set out clearly the reasons for this process as well as the goals, the manner in which it is handled, assessment criteria to be applied, and the process by which the mentee will receive any assessment or feedback. Additionally, both the program and the mentee must assure that the parties/clients knowledgeably and thoughtfully consent to the participation of or viewing by an assessor.
9. Adherence to ethical principles of the profession (Standards of Practice) or of the professional association (MII). See additional criteria in Section II, Part 5 above.
If the mentorship is part of the ongoing process of a program, it is the responsibility of the program to be transparent and pro-active about any ethical violation that would cause sanction including removal from the program. This is particularly crucial because the mentoring process invites vulnerability and openness while at the same participants could be removed from a program for revealing violations. Any actions on the part of a program to sanction a mentee should be done in a manner that is consistent with the type of mentoring that is being done and in the recognition that it is a teaching opportunity.
10. Mentors in the program should not only be in some form of co-mentoring or supervision but the program itself should regularly challenge itself to self-examine. Methods of doing such might include: annual retreats with scrutiny of each part of the program, surveys of participants to see if outcomes match stated program goals, invitation of outside reviewers to assess all or parts of the program and raise questions for consideration. Some form of evaluation should take place no less than once a year.
Tips for Mentors
https://www2.mediate.com/pdf/TipsforMediators.pdf
Developed by John Settle, Certified Mentor Mediator – Supreme Court of Virginia
Guidelines for Starting a Reflective Practice/Peer Consultation Goup (RPG)
https://www2.mediate.com/pdf/guidelines.pdf
by Michael Lang
Why Case Consultation/Reflective Practice Groups Matter for Mediators
https://www2.mediate.com/pdf/WhyCaseConsultation-ReflectivePractice.pdf
by Michael Lang, Rochelle Arms Almengor
Excellence: Using Reflective Debrief to Build Competence
https://www2.mediate.com/pdf/ReflectiveDeBrief.pdf
by Michael Lang and Susanne Terry
Virginia Mediator Self-reflection.pdf
https://www2.mediate.com/onlinetraining/Virginia%20mediator%20self-reflection.pdf
Virginia self reflection form.pdf
https://www2.mediate.com/onlinetraining/Virginia%20self%20reflection%20form.pdf
Virginia Guidelines for training and certif.pdf
https://www2.mediate.com/onlinetraining/Virginia%20Guidelines%20for%20training%20and%20certif.pdf
Virginia mentorship_guidelines.pdf
https://www2.mediate.com/onlinetraining/Virginia%20mentorship_guidelines.pdf
Help Shape the Next Generation of Mediators! – Herberholz.pdf
https://www2.mediate.com/onlinetraining/Help%20Shape%20the%20Next%20Generation%20of%20Mediators!%20-%20Herberholz.pdf
Peacemaker self study-mosten and scudder .pdf
https://www2.mediate.com/onlinetraining/peacemaker%20self%20study-mosten%20and%20scudder%20.pdf
Mentoring and Evaluating New Mediators- Evan Ash.pdf
https://www2.mediate.com/onlinetraining/Mentoring%20and%20Evaluating%20New%20Mediators-%20Evan%20Ash.pdf
International Academy of Mediators – Mentorship Program.pdf
https://www2.mediate.com/onlinetraining/International%20Academy%20of%20Mediators%20-%20Mentorship%20Program.pdf
ORION mentoring.pdf
https://www2.mediate.com/onlinetraining/ORION%20mentoring.pdf
IMI – The benefits of becoming a mediation mentor — International Mediation Institute.pdf
https://www2.mediate.com/onlinetraining/IMI%20-%20The%20benefits%20of%20becoming%20a%20mediation%20m%20entor%20%E2%80%94%20International%20Mediation%20Institute.pdf
MentorshipAssociationofDivorceFinancialPlanners1.pdf
https://www2.mediate.com/onlinetraining/MentorshipAssociationofDivorceFinancialPlanners1.pdf
Herman – Reflective Mediation Practice Materials – UC Hastings Symposium – 2019.pdf
https://www2.mediate.com/onlinetraining/Herman%20-%20Reflective%20Mediation%20Practice%20Materials%20-%20UC%20Hastings%20Symposium%20-%202019.pdf
Chair: Tricia Jones
Members: Doug Frenkel, Melissa Kucinski, Judge Elizabeth Potter Scully, Tim Hedeen, Julian Portilla, Sukhsimran Singh, Lara Traum, Bruce Edwards, Jan Martinez
VIEW THE EXPERIENTIAL TRAINING FORUM SURVEY
This Committee Report focuses on questions and issues considered by the committee, valuable resources, and committee recommendations for moving forward.
1. Questions and issues considered by the committee
A. Broadening Our Focus Beyond Mediation
It is important to broaden the scope of inquiry beyond mediation to integrated dispute resolution processes: We appreciate the focus on mediation as the core ADR process for the task force. We also see strong opportunity and need to focus on a spectrum of ADR processes where issues of experiential training are equally germane. We believe that our discussions of experiential training should answer the following questions:
We assume that the use of multiple dispute processes and the degree of their integration changes the need for and value of experiential training from a within-training to a between-training orientation. How does good experiential training for one process build on good previous experiential training? What helps create a cumulative effect? Understanding the benefits of experiential training in integrated interventions will likely provide insights to refine optimal experiential learning for a single intervention, like mediation.
B. Mapping KSA Learning
Identify key experiential training components to align with desired Knowledge, Skills and Attitude (KSA) Learning Development: Our field will benefit from mapping components of experiential training to specific KSAs. The discussion of key skills and the overlay of articulated standards has been a focus of ADR educators for years. However, we need to refine our mapping especially with how online experiential training operates.
We suggest that starting with an analysis of online learning potential without visiting/revisiting the foundational question of “what are we really wanting people to learn and why?” is less productive than we need.
C. Learning From Other Fields
Adult learning theorists, educational psychologists and instructional learning specialists have provided resources that we can use to our advantage. Health care (e.g., nursing), social work, education (specifically pre-service and in-service teacher education) as well as other fields have rich histories of using and researching experiential training processes. There is a significant expertise in adult learning that our field is not sufficiently knowledgeable about.
D. Learning from Contexts and Cultures Within Our Field
In general, the knowledge available from our field and other fields about efficacy of experiential training in various cultures and in various contexts is quite limited. The global expansion of ADR provides an amazing opportunity for exploration of this question and conducting research on best practices.
E. Experiential Learning Across an ADR Career
There is a lot of value in thinking of how experiential learning opportunities build on each other across someone’s career. Several other committees are also discussing how we learn across our career and how things like mentoring and reflective practice are ongoing and cumulative. We agree and suggest that when and how experiential training takes place in the arc of a person’s ADR career matters – although we know little about the specifics of those learning outcomes.
F. Balance Accessibility and Technology
We should design experiential training to strike a balance between accessibility, technology and use of online experiential training: We seek elegant and parsimonious methods of experiential training that are effective but also accessible and user friendly. Opening our thinking to use of different learning platforms is important. Developing online experiential training that only a small segment of interested participants can (afford to) participate in is a serious issue.
2. Valuable resources identified by the committee
The following areas of resources are presented here: general resources on online experiential learning, professional associations and centers dedicated to experiential learning, resources on the efficacy and essentiality of experiential learning in ADR, and exemplar mediation certification programs and processes.
A. General Resources on Online Experiential Learning
Beinicke, A., & Kyndt, E. (2020). Evidence-based actions for maximizing training effectiveness in corporate E-learning and classroom training, Studies in Continuing Education,42:2, 256-276, DOI: 10.1080/0158037X.2019.1608940
Hyochang Lim, H., Lee, S-G., & Nam, K. (2007). Validating E-learning factors affecting training effectiveness. International Journal of Information Management, 27(1), 22-35. https://doi.org/10.1016/j.ijinfomgt.2006.08.002.
https://www.sciencedirect.com/science/article/pii/S0268401206001095
Kim, S., Park, C., & O’Rourke, J. (2017). Effectiveness of online simulation training: Measuring faculty knowledge, perceptions, and intention to adopt. Nurse Education Today, 51, 102-107. https://doi.org/10.1016/j.nedt.2016.12.022.
https://www.sciencedirect.com/science/article/pii/S0260691716303288
Kolb’s Learning Styles and Experiential Learning Cycle/ Simply Psychology
https://www.simplypsychology.org/cognitive.html
Online Experiential Learning – Center for Integrative and Experiential Learning / University of South Carolina
https://sc.edu/about/initiatives/center_for_integrative_experiential_learning/
Sitzmann, T., & Weinhardt, J. M. (2019). Approaching evaluation from a multilevel perspective: A comprehensive analysis of the indicators of training effectiveness. Human Resource Management Review, 29(2), 253-269.
https://doi.org/10.1016/j.hrmr.2017.04.001.
https://www.sciencedirect.com/science/article/pii/S1053482217300268.
Stirline, A. E. (2013). Applying Kolb’s Theory of Experiential Learning to Coach Education, Journal of Coaching Education, 6(2), 104-121.
https://api.semanticscholar.org/CorpusID:151935115
B. Professional Associations Dedicated to Experiential Learning Expertise
Association for Talent Development (formerly the American Society for Training and Development)
https://www.td.org
American Management Association
https://www.amanet.org
C. Resources on Efficacy and Essentiality of Experiential Training in ADR
Benston, S., & Farkas, B. (2018). Mediation and Millennials: A dispute resolution mechanism to match a new generation. Journal of Experiential Learning, 2(2), 3. https://digitalcommons.tourolaw.edu/jel/vol2/iss2/3
Brubaker, D., Noble, C., Fincher, R., Park, S.K.-Y. & Press, S. (2014). Conflict resolution in the workplace: What will the future bring? Conflict Resolution Quarterly, 31, 357-386. https://doi.org/10.1002/crq.21104.
https://onlinelibrary.wiley.com/share/ZI4XE42KA8DUBFQIRTUS?target=10.1002/crq.21104
Cominelli, L. (2016). Training young lawyers in the European mediation framework:
It’s time to devise new pedagogy for conflict management and dispute resolution.
Italian Law Journal, 2(1), 163-176.
https://heinonline.org/HOL/P?h=hein.journals/italj2&i=170
Fox, S., & Stallworth, L. E. (2009). Building a framework for two internal organizational approaches to resolving and preventing workplace bullying: Alternative dispute resolution and training. Consulting Psychology Journal: Practice and Research, 61(3), 220–241. https://doi.org/10.1037/a0016637
Francis, V. F. (2018). Infusing dispute resolution teaching and training with culture and diversity. Ohio State Journal on Dispute Resolution, 33(2), 171-232.
https://heinonline.org/HOL/P?h=hein.journals/ohjdpr33&i=183
Frenkel, D. N., & Stark, J. H. (2015). Improving lawyers’ judgment: Is mediation training de-biasing. Harvard Negotiation Law Review, 21(1), 1-58.
https://heinonline.org/HOL/P?h=hein.journals/haneg21&i=7
Goforth, C. (2017). Transactional skills training across the curriculum. Journal of Legal Education, 66(4), 904-929. Retrieved August 1, 2021, from
https://www.jstor.org/stable/26453525.
Hinshaw, A., & Wissler, R. (2005). How do we know mediation training works? Dispute Resolution Magazine, 12, 21-32. Available at SSRN: https://ssrn.com/abstract=1432478.
Jones, T. S., (2005). Editor’s introduction: The emperor’s knew clothes – What we don’t know will hurt us. Conflict Resolution Quarterly, 23(2) 129-139. DOI 10.1002/crq.129.
Malin, M. H., & Ginsberg, D. I. (2018). Flipping the classroom to teach workplace ADR in an intensive environment. Journal of Legal Education, 67(2), 615-625.
https://heinonline.org/HOL/P?h=hein.journals/jled67&i=621
Malizia, D. A., Jameson, J. K., Halberstadt, A., & Eng, N. (2020, March). Mediation Training and the Law School Experience. Report to the North Carolina Chief Justice’s Commission on Professionalism and the Department of Communication at North Carolina State University.
Merritt, D. (2010). Pedagogy, progress, and portfolios. Ohio State Journal on Dispute
Resolution, 25(1), 7-24.
https://heinonline.org/HOL/P?h=hein.journals/ohjdpr25&i=9
Press, S. (1996). Institutionalization: Savior or saboteur of mediation. Florida State University Law Review, 24, 903-918.
https://heinonline.org/HOL/P?h=hein.journals/flsulr24&i=989
Qu, Y., & Cheung, S. O. (2013). Principle-based experiential e-learning exploration in construction mediation training.
https://doi.org/10.1061/(ASCE)EI.1943-5541.0000183.
Raines, S., Hedeen, T., & Barton, A. B. (2010). Best practices for mediation training and regulation: Preliminary findings. Family Court Review, 48(3), 541-554. doi:10.1111/j.1744-1617.2010.01328.x
Ravindra, G., & Hedeen, T. K. (2015). Alternative paths to careers in ADR. Dispute Resolution Magazine, 21(3), 11-16.
https://heinonline.org/HOL/P?h=hein.journals/disput21&i=101
Simons, M. A., & McGuinness, M. E. (2015). American legal education, skills training, and transnational legal practice: Combining Dao and Shu for the global practitioner.
Tsinghua China Law Review, 8(1), 125-134.
https://heinonline.org/HOL/P?h=hein.journals/tsinghua8&i=135
D. Exemplar Mediation Certification Programs
Department of the Navy Mediation Certification Training
https://www.secnav.navy.mil/ADR/Pages/mediacert.aspx
Florida Supreme Court Mediator Certification
https://www.flcourts.org/content/download/526739/file/HowToBecomeAMediatorGuideJuly2021.pdf
Court-Certified Mediator Qualification Requirements by State
https://onlinemasteroflegalstudies.com/career-guides/become-a-mediator/court-certified-mediation-requirements-by-state/
New York Dispute Resolution Association; Mediator Certification
https://www.nysdra.org/page/BecomeAMediator
Mediation Training Manual of India
https://main.sci.gov.in/pdf/mediation/MT%20MANUAL%20OF%20INDIA.pdf
EXPERIENTIAL TRAINING COMMITTEE RECOMMENDATIONS
Committee Recommendations for Moving Forward
General Infrastructural Opportunities to Develop:
1. Improve the quality and quantity of research on experiential training with priority to online ET.
At this stage of our search we can find no published research or reports on the effectiveness of online ET in our field. We also note that previous reviews of training research in our field (some included in #2 below) since 2000 have raised deep concerns about how little we have generated evidence about whether and to what extent our ADR training produces desired outcomes. The bottom line is we can’t “prove” to external audiences that our training works – even though we have strong-held assumptions about its value.
2. Engage our professional associations to better promote this work.
We could consider how professional associations may be able to create collaborative efforts to support the development of optimal experiential training methods and standards.
3. Develop expert trainers to serve the field in performing optimal experiential training.
There are a number of world-class trainers in our field, however, we do not have infrastructures to build cohorts of expert trainers – especially those proficient in online experiential training. We have no identifiable learning processes to develop online trainers.
4. Mobilize graduate and undergraduate ADR programs to collaborate on addressing the issues identified here.
There are a number of ADR and related programs that could consider collaborative projects and research as well as curriculum development.
Specific Recommendations:
1. Identify and Survey ADR trainers for their online experiential training practices:
We need a better idea of what people are currently doing to think about best practices and needs.
a. Sample people who represent training in different ADR processes and different conflict contexts.
b. Use the survey to identify trainers willing to engage in ongoing conversations or on a team to explore mapping the field in these areas.
2. Create online training education curricula for mediation and other ADR process trainers.
a. Encourage involvement of representatives of higher education ADR degree and specialty programs, instructional learning experts, instructional technology experts, national organizations (e.g., NAFCM), and professional membership associations.
b. Review online training curricula and standards from related professions.
3. Explore advantages of developing a certification in online ADR training competence.
“The future of ODR is more promising than the initial mediation movement.”
Lara Traum
Global Mediation Development Committee
Developing Cultures of Mediation
Chair: Tara Ollapally
Members: Obi-Farinde Morenike, Bruce Edwards, Lara Traum, Ken Cloke, Alberto Elisavetsky
READ THE ENTIRE GLOBAL MEDIATION DEVELOPMENT REPORT
https://www2.mediate.com/onlinetraining/Global Mediation Development Committee Report.pdf
Introduction and Objectives
To support the growth of mediation movements on a global level, our Committee sought to understand the growth of mediation in Argentina, India, Nigeria, and Russia with the objective of building a resource for new mediation movements to understand the requirements of building and sustaining a mediation movement. The main questions that we analyzed were:
Through an understanding of these questions for these four diverse jurisdictions, documented in this report are some considerations to bear in mind when introducing a mediation movement as well as supporting its growth to acceptance and adoption.
“We have been living through a cannibalization process. Online mediation is eating face-to-face mediation.”
Alberto Elisavetsky
Committee Papers on National Development:
RECOMMENDATIONS OF
GLOBAL MEDIATION DEVELOPMENT COMMITTEE
III. Adoption of Mediation – Ways to Address the Challenge
a. Mediation Law – Legislation in the form of a comprehensive mediation law or as amendments to existing laws is critical to gain acceptance and recognition as a valid dispute resolution process. Argentina succeeded in passing a law mandating mediation before the filing of a suit in a local court, which has greatly enhanced the understanding and usage of mediation. In contrast, Russia has faced the challenge of inadequate legislation that has impacted public acceptance of the process. India amended current legislation to include mediation, which serves short term needs, but does not instill the public confidence and credibility that comes with a comprehensive mediation legislation.
b. Programs to create awareness – Regular programs with the Bar, Courts, Industry Associations, Chambers of Commerce, Community Organizations on the mediation process are necessary to create awareness. In Nigeria, the state of Lagos introduced Lagos Settlement Week for both the Magistrates and High Courts which supported a significant improvement in the knowledge and awareness about mediation.
c. Building a culture of mediation – Taking mediation beyond legal disputes as a way to influence mindset and gain social legitimacy must be considered. Community mediation programs to foster good community relationships through dialogue (Nigeria), educational programs with schools and universities that emphasize the value of collaboration and dialogue (Argentina & India), facilitated dialogues for issues of public concern are some ways to build a culture of mediation.
d. Training judges – Judges are an integral resource for building a mediation movement. Training judges to understand mediation and identify appropriate cases to refer for mediation is an essential way to legitimize and increase usage of the process.
e. Growth of Private mediation – While several mediation movements begin with court annexed programs, building a private mediation movement is necessary to (1) professionalize the service, (2) attract high quality professionals, (3) allow more complex disputes to be mediated, and (4) support the growth of the movement as a whole.
IV. Other Factors to support the growth of mediation
a. Online Dispute Resolution and the use of technology – With COVID forcing the closure of courts, mediation has become more visible and appealing to many disputants. Mediation has also been able effectively move online – ODR platforms have supported the increased and easy access to dispute resolution resulting in a significant increase in the number of users of mediation. Increased awareness programs and training programs that have been held online has also significantly added to the tremendous growth of the mediation eco system.
b. Increased government backing – With the signing of the Singapore Convention, governments and courts are recognizing the need and value of mediation to support overwhelmed court systems. Increased jurisprudence validating the legality of a mediated settlement agreement, especially in India and Nigeria, has significantly boosted the movement. Policies mandating mediation courses in law school curricula (India) or requiring lawyers to inform their clients about ADR processes (Nigeria) or online mediation platforms set up by the government to promote easy and free access to mediation services (Argentina)2 are other factors that have supported the recent growth of mediation.
c. Overwhelmed court systems – Alternative processes like mediation have become necessary because of over overburdened court systems. With caseloads increasing every year, access to justice has become a significant issue. There is no other option but to design and promote alternative options. Mediation is increasingly being seen as not only an alternative process but also as an appropriate process for many disputes.
d. Entry of young legal professionals – Young, innovative legal professionals who see the need for a change in the status quo, has propelled the growth of the mediation movement in each of the countries we examined. In Russia, the entry of young, new professionals in dispute resolution as mediators is seen as a welcome change in a society that is distrustful of the “old guard” while in India mediation is being seen as the space for innovation in the law and justice space. Legal systems established in colonial times in many of these countries are finally experiencing change through the introduction and growth of mediation movements.
V. Mediation through the next 5 years
There is a strong sense of hope that mediation is a concept whose time has come and will see significant growth in the next five years. It is recognized that collaborative dispute resolution is not only needed as an alternative to overwhelmed court systems but as a more peaceful way to respond to and manage dispute. Mediation growth for the next 5 years include:
a. The Singapore Convention on Mediation will incentivize governments to introduce/amend laws to recognize mediation. This will also place mediation on par with traditional processes such as litigation and arbitration.
b. Local and contextual growth of mediation that is understood by the public as a home – grown process as opposed to a western influenced process will go a long way in garnering domestic support for mediation.
c. The culture of mediation will expand beyond legal disputes through efforts to encourage the mindset of collaboration.
d. Increased referral from the judiciary as judges realize the value of the process and understand ways to use mediation to ease case load.
e. A significant increase in the use of Online Dispute Resolution especially after positive user experience through COVID.
f. The increased demand for mediation will spur the need for strong mediator training programs. In order for mediation to grow, well trained, strong mediators who can mediate effectively online as well as face-to-face are an essential focus for the next 5 years.
g. More focused systems will need to be established at the national and international levels to monitor and maintain quality of the profession.
With the increase in remote mediation, many mediators are managing caseloads that have multi-jurisdictional elements. With each individual now remote, often in different jurisdictions, the lines and standards to apply have become blurred.”
Melissa Kuchinski
Cross Jurisdictional Issues Committee
Chair: Melissa Kucinski
Members: David Hodson, Ai Kuroda, Morenike Obi-Farinde and Michael Coffee
Multi-Jurisdictional Issues in Mediation
With an increase in remote mediation, many mediators are managing caseloads that have a multi-jurisdictional element (at times, unintentionally). In the past, a mediator and the parties could physically sit in the same jurisdiction, often where a court case was pending, and everyone knew or understood what laws, standards, and ethical considerations applied to the structure and process of the mediation. However, with each individual in a remote mediation process potentially located in a different jurisdiction, the lines have been blurred.
This committee report defines what issues may arise in a multi-jurisdictional mediation process, and focuses on the necessary training elements to handle these multi-jurisdictional implications.
READ THE ENTIRE REPORT ON
MULTI-JURISDICTIONAL ISSUES IN MEDIATION
http://mediate.com/onlinetraining/Multi-Jurisdictional%20Issues%20in%20Mediation.PDF
RECOMMENDATIONS OF
THE MULTI-JURISDICTIONAL ISSUES COMMITTEE
Mediation Training
This Sub-committee envisions three key components to a training program for mediators that will intentionally or inadvertently find themselves in a multi-jurisdictional mediation. These components include:
a. Understanding the different approaches and practices to mediation and mediation traditions
b. Being able to spot the multi-jurisdictional issues
c. Understanding best practices to address the multi-jurisdictional issues
1. Envisioning a Multi-Jurisdictional Mediation
Mediation training should include a discussion that highlights certain different approaches to mediation in different jurisdictions, so that mediators are able to better understand how their mediation process may differ. This could include differences in the structure of the mediation process (such as co-mediation, use of caucus), different sources of referrals (such as court-referred mediation), and different rules (such as confidential mediation or reporting mediation).
Ideally, a training would include a discussion among mediators of different jurisdictions about the processes and rules employed in their jurisdictions, so the mediators being trained can appreciate those differences. This will ensure that participants are not only prepared, but better equipped to structure a mediation process where multi-jurisdictional issues are identified, the mediator is better able to set expectations among mediation participants, and they are better equipped to structure a successful mediation process. Having a more sophisticated understanding of these differences may allow mediators to explore a structure that is new or different from what is typical in the jurisdiction where the mediator practices.
2. Issue-Spotting: Being Able to Grasp the Multi-Jurisdictional Issues in a Mediation
Mediation training should include a discussion of the various cross-border issues that exist. This will enable mediators to spot these issues, understand how they may clash with other jurisdictions’ processes and rules, and attempt to set expectations and address those clashes.
The list of issues that might arise in a cross-border mediation process are varied. This sub-committee includes, at Appendix C, a list of potential issues that might need to be addressed in a mediation. At a minimum, the key issues that should be included in any training are:
a. Educating the Participants: how can the mediator best ensure that the participants enter the mediation process with the same understanding of its format, what rules apply, and the mediator’s role?
b. Privilege: what is permitted to be disclosed at the end of the mediation process, and who may see it?
c. Ending Mediation: at the end of a mediation process, particularly one that spans jurisdictions, there will be questions about how the participants can take the next steps, for example, whether their agreement can be brought to a court, whether a particular jurisdiction will enforce its terms and how, and how the parties can further comply with the elements to which they agreed. How can mediators best address these complex cross-border issues to end their mediation process successfully?
3. Best Practices to Address Multi-Jurisdictional Issues
Mediation training should include an analysis of some of the key parts of the mediation process that can help a mediator best address the issues that he or she spots as potentially problematic. These training components include:
a. Intake: What process should be employed at the outset so a mediator can assess what multi-jurisdictional issues exist, whether the mediator is competent to handle them, and what structure should be employed to best situate the mediation to be successful?
b. Agreements or Contracts to Mediate: Can the mediator require the parties to sign a contract in advance of the mediation session that outlines the rules for the mediation? What additional elements should be included in such a contract to address the conflicts in rules and procedures? How can the mediator ensure the contract itself is enforceable if one of the parties fails to comply with its tenets? (See Appendix A)
c. Communication with the Parties: How will the mediator successfully communicate with the parties in a situation where their geographic location may include additional obstacles, such as time zone differences, cultural differences, or the need for specialized legal advice in multiple venues? While e-mail or even text messages may present the most easy forum for communication, will having something in writing present additional jurisdictional obstacles for the parties or the mediator?
d. Ending Mediation Successfully: How can the mediator successfully conclude mediation so that the parties feel competent to take their agreement, receive proper legal advice, and render that agreement enforceable in the appropriate place? Will the mediator’s actions or words prejudice either party if the mediator is unfamiliar with the laws or procedures in any or all of the jurisdictions that this family may be situated (or litigating)? If this is judicially referred mediation, can it be concluded with no final resolution without judicial consent?
Appendix A: Sample Language for Agreements/Contracts to Mediate
Below are sample clauses for a Contract or Agreement to Mediate for a case that has multi-jurisdictional elements.
1. While traditional mediation processes include the Mediator and the parties meeting (in-person or remotely), which may include the Mediator meeting with each person separately from the other, mediation may also include follow-up communication with one or both parties to help that person weigh settlement proposals, or other communication made with the goal of moving towards a mutually agreeable resolution. The Mediator will charge for any time she responds to individual communication. Both parties agree that they will act in good faith and not use communication outside of meetings to harass the other person or increase costs. Even if the communication is generated by one person, both parties remain responsible for the payment of the Mediator’s time and costs as outlined in paragraph [x].
2. The parties represent and guarantee that none of the funds used to pay the Mediator originated from or are tied to a person or entity on any government sanction or screening list, including, but not limited to the U.S. Department of the Treasury’s Specially Designated Nationals list, Foreign Sanctions Evaders list, or Sectoral Sanctions Identifications list.
3. The parties agree that all information and communication divulged to the Mediator during the sessions, or individually outside of the sessions, shall be treated as confidential and personal and will not be released by the Mediator to anyone unless the Mediator is ordered to do so by any court of competent jurisdiction, or by federal or state law of the jurisdiction where the Mediator is conducting the mediation (herein the location of the Mediator’s office, [x]). This Agreement to Mediate and any final written and signed settlement shall not be confidential. Allegations of child or elder abuse and credible threats of personal harm must be disclosed by the Mediator, if necessary, to prevent people from being harmed. The Mediator makes no representations as to the current law in any jurisdiction regarding the confidentiality of mediation.
4. The parties agree that they shall not subpoena any of the Mediator’s files or the contents of the Mediator’s files and are prohibited from requiring the production of any documents, records, recordings or other tangible objects made by the Mediator. The parties, or their agents or representatives, shall be prohibited from requiring the Mediator to participate in any court or judicial proceeding in any jurisdiction. If the Mediator is mandated, for any reason, to participate in any court or judicial proceeding in any jurisdiction, or to produce tangible records from the mediation, the party that is mandating the Mediator’s participation or production of documents shall be responsible for the cost associated therewith, including any attorney’s fees paid by the Mediator, and the cost of the Mediator’s time at the hourly rate stated herein.
5. There shall be no record or recordings of the actual mediation sessions, nor shall either party request any be kept. The parties recognize that if they are using a videoconference system to participate in distance mediation for part of all of the sessions, that the third-party video conferencing provider may record or otherwise maintain the content of the session in accordance with its own privacy and other policies. The parties consent to interaction with the Mediator by video conferencing. The parties recognize that security and privacy threats are possible with any technology, and the parties hereby waive and discharge the Mediator from any liability that results from a breach of confidentiality that may occur by the use of technology. Insert platform and link to its privacy policy. The parties agree that they will take reasonable steps to participate from a quiet and private location, and in using secure technology and internet connections.
6. Third parties or non-parties may participate in any mediation session only by agreement of the parties and the Third Party and must sign a confidentiality agreement and be bound by the same rules of confidentiality that the parties and Mediator are bound.
7. The Mediator’s predominant mediation practice is situated in [x], and the Mediator abides by the [x] Standards of Conduct. The Mediator also adheres to the principles in the Hague Conference’s Guide to Good Practice – Mediation and the International Social Service Charter for International Family Mediation Processes.
8. The Mediator has no authority to determine which jurisdiction will enforce any final agreement, nor can s/he guarantee that any agreement reached by the parties will be enforceable in any jurisdiction.
9. The Mediation may be conducted in one or more sessions of varying lengths, as is appropriate or necessary. The Mediation will be conducted in the English language, except to the extent that either party, or the Mediator, requests the use of a foreign language interpreter to facilitate communication. Any document that the Mediator produces will be produced in English and the parties must bear the expense of having it translated to any other language, if necessary.
10.By agreeing to mediate, and agreeing to use [x] as mediator, the parties are not consenting to jurisdiction over any issue in their separation, divorce, property, support, or custody matters, or any other matter of any kind. Participation in mediation is not acceptance of jurisdiction or service of any court action or paperwork.
11. This Agreement to Mediate is a binding contract between those who sign it. It shall be construed under the laws of [x].
12.The Mediator shall not produce any document for any third party, including any court, in any jurisdiction as to the status or conclusion of the mediation process, unless all parties, including the Mediator, so agree.
The Beyond Mediation Committee
Conflict Coaching, Life Coaching, Collaborative Practice & Consultants to Mediation
Co-Chairs: Brian Galbraith and Pattie Porter
Members: D.A. Graham, Amy Skogerson, DeAnne Pladson, Sam Imperati and Jonathan Rodrigues
READ ENTIRE REPORT OF THE BEYOND MEDIATION COMMITTEE
https://www2.mediate.com/onlinetraining/Beyond%20Mediation%20Report%20(Final).pdf
RECOMMENDATIONS FROM
BEYOND MEDIATION COMMITTEE REPORT
II. Subcommittee Topic Areas of Discussion
A. Disability Access
It is important that online mediation or training be accessible to all individuals. The Department of Justice-ADA provides technical assistance for those providing public services (Title III), like online mediation training or mediation services, and what is required to pay and provide reasonable accommodation. Each country needs to consider their local laws and government resources to provide guidance.
Regardless of whether a disability rises to the level of the U.S.A laws, every individual deserves to have full access and the ability to fully participate in an online mediation or training. This might require the practitioner to accommodate in several ways including:
When accommodating individuals in the online mediation or training, first ask the participant what they need to give them full access and ability to participate. They are the expert of themselves and will know what works for them or not. Other possible accommodation strategies are:
Suggested resources:
Making your PowerPoint Accessible:
https://support.microsoft.com/en-us/topic/makeyour-powerpoint-presentations-accessible-to-people-with-disabilities-6f7772b2-2f33- 4bd2-8ca7-dae3b2b3ef25
Making your Word document Accessible:
https://support.microsoft.com/enus/topic/make-your-word-documents-accessible-to-people-with-disabilities-d9bf3683- 87ac-47ea-b91a-78dcacb3c66d
Video Relay Interpreting (VRI) & Video Relay Service (VRS) http://www.interpretereducation.org/specialization/vrs-vri
Job Accommodation Network (JAN) is the leading source of free, expert and confidential guidance on workplace accommodations listing each disability A-Z.
VRI or VRS is a service which can be used with deaf individuals and the hearing. These services in the U.S.A. are provided for free for conversations up to one-hour.
B. Technology Access or Lack Thereof
During the pandemic, Zoom and Microsoft teams were the go-to video platforms for education, coaching, Collaborative Practice, Unbundled legal services, mediation, training, and education.
Other online platforms such as WebEx, Go To Meetings, Adobe Connect, Skype, BlueJeans, Modron Spaces, CREK, Legelar, and What’s App are alternative technologies.
The needs such as bandwidth, webcam, audio, breakout space, polling, shared screen, white board space, etc. dictates the type of platform used.
In addressing technology disparities where not everyone has access to a computer or reliable Internet, Collaborative practitioners working with family cases
Arrange clients to attend the virtual mediation from their attorney’s office
Provide clients with their own room in the same building with an available electronic device to access online mediation
If there is known domestic violence in a relationship, every effort is made to have the parties in different locations. It is not ideal to have them within the same home in case there is a violent response by a party.
Prepare the parties before mediation to ensure that their technology device connects appropriately to the Internet. They conduct a technology test.
If feasible, provide a laptop to the client.
C. Safety, Security & Confidentiality
Several issues need to be considered when conducting online practice regardless of whether it is mediation, collaborative practice, coaching, unbundled services, etc.
Who is in the physical or virtual room?
In Collaborative cases, it is best practice to ask if there are any other people in the room or within earshot. Some insist on their client moving their webcam about the room so that they can confirm that no other person is present.
Ask clients/attorney who will be in the room prior to conducting the mediation
Include a statement in the mediation agreement stating that they have disclosed all parties in the room with them. The mediator can also ask stressing the important of transparency and trust.
Enable meeting password or lock room after participants join to control any unexpected or late participants from joining.
Where or how are documents stored and shared?
Based on who the audience you are serving, parties need to consider where and how confidential documents are stored and shared. For example, coaches might use Box, Google Drive, or Dropbox to share and store coaching documents.
Practitioners can also exchange documents via email using Trustifi, an email encryption with added security. There is a free version.
Are there restrictions to certain platforms?
If you work with the U.S. federal government, they might require you to sign an agreement that you are not using any Chinese-based technology used in online platforms. Check your government agencies for any restrictions to using certain platforms such as Zoom, Teams, WebEx, Adobe Connect, etc.
Who else needs to sign the confidentiality agreement?
In addition to the parties of a mediation, collaborative practice, facilitation, or coaching, the system host of a virtual platform or conference line needs to sign the Confidentiality Agreement. Use Docusign or similar software to obtain electronic signatures.
Whether to use private chat?
Let clients know that the chat box is not confidential or discuss with them whether they would like for the chat box to be confidential. Encourage clients to break out into their own room with their attorney and not to use the chat box for confidential discussions.
Inform client that they can use the private chat box if they would like to although some prevent private chats by limiting use of the chat so that messages can only be sent to everyone.
Zoom does have the option to allow participants to only chat with the host or whoever the host specifies.
How do we address screening and safety issues?
How do we address substance abuse in the online environment?
Observe the client and if there are any concerns, ask them to go into a separate breakout room. Discuss whether they are under the influence of any drugs or alcohol at this time. If they are under the influence, it may be best to end the mediation and reschedule the mediation for another day.
Mediators need to watch out for potential signs of substance abuse due to the stressors of the COVID 19 pandemic, and in general. Read more on Substance Abuse During the Pandemic.
D. Cultural competence and cultural dynamics
The boom in using online services opens the door to working with individuals throughout the globe. Practitioners need to become culturally competent and adjust practices to address those cultural differences.
How do we address language barriers in an online mediation environment?
E. Sexual orientation and gender
In Collaborative practice and other trainings, reference to non-traditional family arrangements and gender-fluid participants can normalize the diversity of family life and should be done in mediation training online. First ask participant for their pronoun and consider using pronouns in the tile of documents (He/his/him or She/Her/Hers or Them) or as part of the name in the video box in the online platform.
F. Protocols during meetings
The following is an addendum some use in the Collaborative community. It is attached to the Participation Agreement for online video joint meetings and could be adapted for use in a mediation:
a. No one will audio or video record any meeting. We will check with each other that none of us nor anyone on your/our behalf, has done so.
b. If a video link is lost, we will all wait, without speaking, until it is restored.
c. We may terminate online video meetings if there is inadequate quality of connection or a breach of this agreement may have occurred.
d. We may suspend the meeting if there is any remote interruption and will restart the online session once satisfied that any interruption has been resolved and that it remains appropriate to continue following such interruption.
e. Only the people who have signed the Participation Agreement may be present in the same rooms used by the participants during any online video meeting session unless otherwise agreed by all participants. We will all confirm that we cannot be overheard from your location.
f. We agree to do all we can to ensure that we are not interrupted during online video meeting by anyone else such as children, relatives, pets, deliveries. But if someone is interrupted, we will all wait quietly until the interruption is dealt with.
g. We agree to turn off or put to silent any phones, tablets or computers, and disable any alerts announcements or notifications of texts, emails, tweets or other social media activity, and close all or any other open application.
h. We all agree to turn off any music or radio or background noise.
i. We all agree to there being no live or deferred video or audio relay of the online meeting to third participants.
j. We all agree not to video or audio record any online session.
k. If you create any video or audio recording of the online meeting, inadvertently or otherwise, you undertake to destroy any such recording as soon as you become aware of its existence.
l. Online video collaborative joint meetings are a without prejudice process to seek a negotiated settlement.
m. All the other aspects of the Collaborative process as set out in the Participation Agreement and the Terms of Business of each practitioner applies to video online meetings.
G. Training
In the Collaborative community, the IACP’s ethics and standards stipulated that Introductory Trainings had to be done in-person. The pandemic made it impossible to do in-person trainings so a temporary exception was created to allow for online training. Initially, it was stipulated that the online trainings should be no longer than 3 hours on video-conferencing technology per day to minimize Zoom-fatigue. Many trainers felt that this was an unnecessary limitation and have asked for this to be revised.
Various techniques have been used to make the trainings engaging:
An excellent resource about how to have engaging meetings is entitled, “Engaging Virtual Meetings”, by John Chen. Wiley 2021. This book explains the basics of meetings online and lists many advanced ideas that can really make meetings online be more engaging. He has a Facebook group of others doing this type of work.
Other tips include turning off self-view, using “active learning” worksheets, offering asynchronous activities, and offering frequent breaks. It is important to encourage participants to move away from the screen during breaks and get some exercise and nutrition if possible.
In Collaborative trainings, we insist on everyone having their camera on so that we can ensure their attendance and level of engagement.
Recording of role plays done by the students during Zoom is another idea. It enables the participants to review their work after the event.
Conclusion
The pandemic has escalated the speed at which we transition to a digital, online professional practice. As we stumbled into this new age, we all developed new skills to continue to offer services to our clients. We have developed best practices for this moment in history but as technology evolves, so will our practices and how we approach communication and engagement.
Additional Committee Resource Links:
Marketing Online Mediation Committee
Chair: Susan Guthrie
Members: Alberto Elisavetsky, Gabrielle Hartley, Jonathan Rodrigues, Michael Aurit
The Online Mediation Marketing Committee consisted of the following members: Chair: Susan Guthrie Members: Michael Aurit, Gabrielle Hartley and Alberto Elisavetsky.
Issues Considered By The Committee:
The Marketing Committee was tasked with considering the following questions:
1. What resources, resource center(s) and organizational support will best support elevation, acceptance and use of online mediation training and online mediation services?
2. How can mediation providers and policy organizations best support the expansion of online mediation providers?
3. How can mediators and other professionals (ie focus of Beyond Mediation Committee) best support the expansion of online mediation?
4. What are the best new opportunities for expanding the application of mediation and online mediation services?
READ THE ENTIRE MARKETING COMMITTEE REPORT
http://mediate.com/pdf/Online%20Mediation%20Training%20Task%20Force%20Marketing%20Committee%20Report%20-%206.14.2021%20%20FINAL.pdf
MARKETING COMMITTEE RECOMMENDATIONS
Based upon the analysis and discussion of the issues and questions outlined above, the Marketing Committee makes the following recommendations with respect to the establishment of modalities for advancing the fields of online mediation and online mediation training:
MARKETING COMMITTEE CONCLUSIONS:
As with all things, organization and collaboration go a long way to successfully expanding and enhancing the dissemination of any message. A centralized hub created to aggregate the effort would go a long way to creating more awareness and acceptance of mediation, online mediation and online mediation training.
Online mediation and online mediation training have been widely adopted during the Covid-19 pandemic and as we move into a post-pandemic world, the benefits of both will likely continue expanding the range of options for all. The Recommendations in this Report of the Online Mediation Training Marketing Committee are suggested in furtherance of promoting acceptance of mediation, online mediation and online mediation training
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