Speediation: Presented at the National Mediation Conference, Sydney, Sept 2012
I know what you are thinking – mediation is not about resolving someone’s dispute within an hour. Perhaps a more accurate description of mediation would be a catalyst for something that parties may not be able to achieve by themselves. In chemistry, a catalyst provides an alternate and easier reaction pathway rather than impelling particles to react. In order to find this alternate pathway under time restrictions, this essay proposes that a mediator should strive to discover what parties actually want from the process and ensure that the limited time is spent effectively assisting them to attain this.
As Alternative Dispute Resolution becomes more widely utilised in resolving various disputes, some practitioners and organisations are facing the challenges of high-volume workloads and limited resources, the most crucial resource being time. Organisations have experimented with various strategies like shuttle telephone negotiation and abbreviated mediation. The main task is to meet the aforementioned challenges without cutting corners, rushing or pressuring parties into settlement. High party satisfaction levels indicate that Speediation can be successful. This paper includes a Dispute First Aid Kit, which is a collection of strategies and suggestions to assist in Speediation. The paper’s appendix is not vestigial and contains the Kit, cross-referenced throughout the paper.
As far as I am aware, the term Speediation was introduced by Professor Tania Sourdin when discussing the resolution of disputes before Tribunals. Five years later, Professor Sourdin mentioned the term again in a general critique of poor quality mediation. Her main criticism of Speediation was that it could fail to meet parties’ interests and leave them unsatisfied. So what interests can parties have apart from resolving their dispute?
2. Parties first
In order to promote the principle of self-determination, this paper will put the parties first. The first challenge for Speediation should be to determine as quickly as possible what the parties hope to achieve. This, of course, is not necessarily going to be the initial positions or
demands. When time is scarce and a WATNA is looming, parties can be quite frank about their underlying interests. It may also be possible to discern needs or interests of which parties themselves are not aware, for example the need for venting, vindication or closure. These could be elucidated by way of mediator techniques like reframing or Socratic questioning. However, a mediator should be careful assuming what is the obvious solution or what is best for parties because there can be a lot more to a dispute than what is revealed.
Shifting the focus away from trying to successfully resolve the dispute to promoting party engagement, self-determination and informed decision-making can make Speediation much more effective. For example, a tenancy dispute involving numerous repairs / maintenance grievances from a tenant and arrears / counter-grievances from a lessor could involve hours of exploration of each repair issue along with repayment plan discussions. However, if the mediator is able to discover early on that both parties just want the tenancy to end, he/she could instead use the limited time to assist them in developing a mutual lease termination agreement. This shift could be achieved by effective acknowledgement of what has happened in the past, a shift to the present (limited time) and a solution-based focus on the future (what kind of agreement could everyone live with?).
Settlement is not the only measure of success. Indicators of effective mediation include interrelated factors such as parties’ satisfaction with the process, cost/time efficiency, empowerment, durability of agreement, relationship improvement and achievement of parties’ goals. It may turn out that parties all end up wanting to proceed to Court, yet be very satisfied with the mediation for clarifying issues, minimising legal arguments and reducing further costs. Alternatively, one party may refuse to come to an agreement to save face but then let the dispute go having satisfied the need to be heard or to have a moral victory. Having determined what the parties want from mediation, the mediator then needs to determine whether these aims are achievable within the given time.
3. Quality, not quantity
Disputes come in a mind-boggling variety of sizes, colours and packages. Some parties can resolve their differences in fifteen minutes simply because you have been the catalyst for their previously non-existent communication. Some conflicts are so deep, complex and entrenched that working through them could take a hundred hours. This is especially the case when the causes of conflicts include fundamental personality / value differences or the parties themselves are not in a state conducive to resolution.
Mediation can achieve inspiring transformations – ‘mediation moments’ – in conflict relationships. However, it is important to keep grounded in the fact that mediators are not judges or counsellors and that not all parties will leave as best friends. Boulle & Alexander recognise that “high aspirations can … be burdensome for … hard-pressed conciliators in statutory schemes with daily piles of new files”. An important question arises: is conciliation more effective and more appropriate than mediation when time is scarce? There are different views on the distinction between the two (if there even is one). Moore sees conciliation as the
“psychological component of mediation.” I see conciliation more as evaluative mediation and prefer the NADRAC definition of conciliators as being more active in evaluation or encouragement of settlement. However, it is a very fine line between conciliating and impacting on party self-determination. It is not possible to compare the efficiency of mediation and conciliation in this paper but such a study may assist in further exploring Speediation.
Whether conciliating or mediating, it is still important to focus on quality and to use the time effectively. Speaking of time, I would like to now suggest that you jump to the last section of this paper ‘6. Time & chronemics’ and then come back to the next section ‘4. Speediation pitfalls’.
4. Speediation pitfalls
Even if mediators have the parties’ self-determination, interests and needs in mind, it is still possible to fall into mediation traps . These are not unique to Speediation but the pressures of high-volume workloads and limited time can significantly increase the likelihood of encountering Speediation pitfalls. It is vital to deal with each new dispute in isolation from all previous ones and from everything else that is going on at work or in life. The reality is that stress from outside of work and from other disputes tends to accumulate and can push a mediator into Speediation pitfalls and ultimately a state of burn-out.
Patience, self-awareness and reflective practice are all qualities of a mindful mediator and will make it much easier to stay in control of the process and to imbue the parties with calmness and confidence. Finally, before discussing specific Speediation pitfalls, I propose that building rapport with parties is the most important task to achieve as early as possible. If a mediator has established a connection and trust with the parties, the dynamics and interventions will be much more effective and pitfalls will be much less likely.
4.1 Ignoring emotions
It is not uncommon for mediators to favour avoidance of strong emotions. These can cause a range of detriment from arguments to physical violence via personal attacks and rash decisions. However, suppressing emotion could make the mediation awkward and unnatural, possibly resulting in an inexplicable impasse or an agreement that fails for lack of sincerity.
Instead, emotion can be seen as pent-up energy that can be normalised and channelled constructively. This is essential in Speediation when parties exhibit strong emotions from the start. If these are ignored or suppressed, the mediator is likely to waste precious time trying to control the parties and risks getting caught up in the conflict personally.
One fairly radical suggestion might be that after some controlled venting or very heated exchanges, parties may benefit from a brief, guided meditation. The sceptics can be reassured that emotions have strong and physiological effects, which can be minimised with closed eyes and a few moments of calm, controlled breathing.
4.2 Losing impartiality
If a party questions a mediator’s impartiality, that could be because of a specific behaviour or even just a party’s perception. One of the worst examples would be when a mediator gets caught up in an argument with one party, seemingly siding with the other. In Speediation, this is often a result of impatience. In order to avoid perceptions of partiality, it is crucial to make your role crystal clear from the start and to be deliberate and transparent with every intervention. In order to avoid partial behaviours, it is important to constantly question how an intervention or behaviour would be perceived and to backtrack transparently if necessary.
4.3 Pressuring parties to agree
This pitfall is a typical Speediation challenge. With the benefit of ample time, parties may explore a myriad of interests and options as well as working through impasses. The challenge of Speediation is a delicate balance between giving up on settlement too easily (after all, many settled mediations begin with the famous first words “We will never reach an agreement”) and encouraging parties too much. Over-encouragement is a common pitfall for conciliators, who controversially encourage settlement as part of their role.
‘Encouraging settlement’ is a controversial theme and is subject to subjective perceptions. In fact, it may be impossible to tell whether mediators are conducting very honest reality testing or whether they just want to convince you to reach an agreement. If a party riles up when settlement is being discussed, it is very likely that the mediator has failed to convince the party of his or her good intentions. So instead of encouraging settlement, mediators could focus on encouraging trust. If a mediator has established rapport and respects party self-determination, then it is more likely that a determined party will politely decline to settle and give reasons instead of blowing up.
4.4 Rushing or moving to solutions too quickly
This is a common pitfall in Speediation because simple solutions might seem obvious and very tempting. There are many reasons not to cut corners and most mediators have to learn the hard way. It should be explained to parties that proper discussion can uncover unexpected issues and generate unexpected options.
If parties yield suddenly, a mediator may want to check in and re-assess with them in private. On the other hand, when parties reach an agreement surprisingly quickly, a mediator should be careful of unnecessarily prolonging the process.
4.5 Dominating the process
This is an intuitive pitfall of Speediation because when time is short, it is easy to envisage a plan of action and forsake party participation. The solution I suggest is counter-intuitive: when you give up more control to the parties, they can do more of the work and may be more satisfied by the outcome.
One way to ensure control of a mediation is to do all the talking. However, this may lead to party dissatisfaction, disempowerment or perceptions of bias. Whether you are talking too much because you are a control freak or you tend to talk more when you are nervous, one solution is to pause and switch to other senses. By listening, focusing on non-verbal communication and using visual aids, a mediator can get the parties talking more and avoid dominating the process.
4.6 Vanting (post-mediation)
The term ‘vanting’ refers to a combination of venting and ranting. This pitfall does not affect parties but rather fellow mediators. In a Speediation environment, venting can be much more important because of the number and regularity of mediations. Venting is simply getting something off your chest. It is necessary, just like it may be for the parties, but needs to occur in a place, time and way that does not negatively impact on colleagues, friends or family. Mediators should find out what works for them and incorporate it into effective debriefing and reflective practice.
There are legitimate criticisms of Speediation. This paper has attempted to address those criticisms by bringing the focus back onto the parties, the principle of self-determination and mindful mediation practice. The Dispute First Aid Kit offers some practical suggestions for avoiding Speediation pitfalls and ensuring that parties get quality service measured by the yardstick of lasting agreements and party satisfaction.
This paper will conclude with a respectful question to mediators in general: if Speediation is currently delivering fairly high rates of satisfaction and lasting agreements, are longer mediations always necessary?
Chronemics is the study of how people perceive and manage time. The Western approach is monochronic and relies heavily on linear sequencing and dealing with one thing at a time. A mediation example may be going through an agenda one item at a time and ticking them off. An alternative approach popular in other cultures is polychronic and focuses on experiences and how they interrelate without as much concern for sequence, deadlines or finality. This could involve constantly moving amongst agenda items instead.
A challenge for Speediation is to question our cultural perceptions and management of time. Do the parties have to make a decision at the end of the allotted time? Does the agenda have to be numbered? Does the exploration have to deal with one issue before proceeding to the next? Could mediation start with private sessions or early option generation? Could the mediator just follow the conversation on a tangent or is it important to stick to the structured process, or park issues for later? Each dispute may present different answers to these questions but if exploring the concept of time and sequence is important for mediation, it is crucially important for Speediation.
Now, the adventurous amongst you can go back to section 4: Speediation pitfalls. The less adventurous will have reached the perhaps confusing end of this paper.
View the entire article, with footnotes and explanatory images here.