Tag Archives: Mediation models

Mobile technology and mediation

Giuseppe Leone

Giuseppe Leone of the Virtual Mediation Laboratory in Hawaii continues to lead the pack in testing and demonstrating innovative means to give people around the world access to the mediators they want to work with. Initially, he and volunteer mediators have been showing how online video technology allows parties and mediators to talk and see each other with an Internet connection. Now he is exploring mobile technology to the same end for those with PCs, Macs, or smartphones. Here’s a 19-minute YouTube video showing how it’s done:

Some Observations

  1. Not all mediators work in the way demonstrated in the video. The outcome here is essentially similar to what could be achieved in litigation but with greater efficiency and less cost. Apart from those benefits, nothing essential has changed for the parties in terms of dealing with the effects of conflict on how they see themselves or others. Relational mediation addresses these effects directly. For example, rather than relying on the mediator to gather information and clarify issues, the empowerment of the parties is supported to whatever ends the parties themselves decide is important to them. When parties control the process and take ownership of it, personal strength is enhanced rather than diminished by having a third person direct the resolution process. And individual strength and responsibility may lead to greater openness to the other which in turn may facilitate a constructive outcome, if that’s what the parties want
  2. With mobile technology, parties and mediators can be connected irrespective of what devices and operating systems are being used, whether PCs and Windows, Macs and OS X, iPhones and iOS, or smartphones and Android systems.
  3. In the same way, that phone numbers no longer are associated with locations but rather with people wherever they find themselves, face-to-face mediation no longer is yoked to meeting in a room, but can be held through the virtual presence obtained by these new forms of connection.

These are exciting new developments that mediators can now offer to clients.

Related articles
  • Honolulu’s Giuseppe Leone launching Mobile Mediation (bizjournals.com)
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Marital Mediation, say what?

In the post yesterday featuring the UK Ministry of Justice’s recently released video on family mediation, a distinction was drawn between couples counselling and family mediation (i.e., divorce or separation mediation).

Patti Murphy, Divorce, Couples and Family Mediation

Patti Murphy, a family mediator based in Brooklyn poses the questions:

But what if the couple didn’t want an archaeological exploration of past family behavior or accept that the issues between them were so insurmountable that the only answer was to walk away?  Then what?
The good news is – there is another option: Couples Mediation.  It’s really more of a new application than a new process.  Mediators have been helping couples resolve conflicts for years … but it turns out these same skills can be used to avoid, rather than ease, divorce!  This process, (also called “Marital Mediation” for officially married couples) is helpful for those couples that want to stay together.

In my own view, unlike therapy, it’s not about fixing or curing people, but rather it’s about supporting conversations that can bring both people greater clarity on their situation, on the options they have, and on what to do to move forward.

Considering mediation? Some questions to ask a mediator

Tammy Lenski

A couple of years back, I posted FAQs on Mediation, which included a number of questions drawn up by prominent mediator and educator, Tammy Lenski.  Among these were the following:

[a]sk prospective mediators questions like these to assess experience, depth of training and education, and adaptability:

  • Do you have approaches or tools you usually use? Tell me about them. You’re looking for answers that convey a complexity of thinking and practice, not rote mimicry.
  • Describe for me how your mediations typically unfold — what does it look like? Ask yourself if what they described makes sense for you and your situation. If it doesn’t, ask them…
  • Do you vary that approach in circumstances where it may not work as well? Savvy mediators will not be thrown by this question.
  • Tell me about the philosophy that guides your work. Look for a fit between what they describe and what feels right to you. If they can’t answer the question, that’s a red flag — it suggests they’ve never thought about it or have too little training to understand that all mediation approaches have underlying values and philosophies.

 All of these questions go to the matter of what’s termed in the field, mediator style.  Many mediators will say that their style varies depending on the conflict, the setting (e.g., workplace, family, etc.), the parties, etc., that they have a toolbox of skills that they apply to different situations.

Dorothy Della Noce

Consider this extract of a scholarly article by Dorothy Della Noce that appeared in a 2012 special issue of the journal, Negotiation and Conflict Management Research, volume 5, issue 4:

Claims that mediators can be eclectic and flexible across styles, blending and switching styles at will, are popular among mediators for many reasons (Della Noce, 2008). But it is not clear what these mediators are supposedly switching and blending: skills, tactics, repertoires, goals, values, or styles. I suggest that the image of the eclectic and flexible mediator makes sense only at the level of decontextualized skill (thus, the popular notion that mediators are neutrals who come equipped with their vast box of tools for intervening in conflict). The image makes far less sense if mediators are understood to be acting intentionally and in a goal-directed way from a core set of their own values when they intervene in conflict—that is, from their own vision of what is good in human interaction and what is good in conflict (Bush & Folger, 1994, 2005; Della Noce, 2008). Core values about the nature of human beings, interaction, and conflict tend not to be quite so eclectic and flexible. For research purposes, the issue could be explored by first taking account of differences in goals and values among mediators, creating groups of mediators based on these differences, and then comparing behaviors within and between the groups for patterns of similarity and difference (compare Della Noce, 2002). Of course, it will be found that mediators share some tactics; they share a language and the same communication tools at the skill level. But, if the analysis is bumped up to more complex thinking about strategies, repertoires, goals, and values, we can expect to find some striking similarities within groups and differences between groups (Della Noce, 2002; compare van Dijk, 1998). Those findings will enrich our discussions of mediator style and its implications.

What does on-line transformative mediation look like?

Giuseppe Leone

Giuseppe Leone is a mediator based in Hawaii who founded the virtualmediationlab.com, a pilot project sponsored by the Hawaii chapter of the Association for Conflict Resolution.  The project’s objectives are to help mediators wherever they are located to practise and develop their skills, and to learn how to mediate on-line using Skype™as a platform.

In the video of a role play below, Dan Simon, a certified Transformative Mediator™, supports people in their conversation about alleged gender discrimination in the workplace.  The role play itself runs for the first 47 minutes or so; the rest of the recording is devoted to a debrief led by Giuseppe of what happened in the mediation, how it was experienced by the role players, and where the main differences lie between the transformative model and the prevalent interest-based model:

Transformative mediation explained in Italian with English sub-titles

Here’s a video of a quite interesting interview by Guiseppe Leone, Virtual Mediation Lab in Hawaii, of Carlo Mosca, head of ADR Quadra’s scientific committee in Italy.  Carlo, as a transformative mediator, covers many of the distinguishing features of this approach to ADR practice in non-technical language.  The video also demonstrates the growing interest in transformative mediation outside North America, whether in Italy, the Balkans, Scandinavia, or Africa.

Transformative mediation connected with courts?

With reference to this question, here’s an excerpt from a guest post that appeared a couple of days ago on Dan Simon’s blog:

There are times when we are asked to take cases that the judges have previously heard. The judges know these cases will be difficult, and there is very little that they can do to find a lasting solution. These repeat cases are not really about the auto repairs, the shared driveway, the broken fence, the daycare contract or the loud noise. The problem is the crisis in the interaction between the disputants. They are not able to talk to one another so they call the police or file a suit. When given the opportunity to sit down with the other in mediation, transformative mediators support the participants’ conversation in ways that enable them to regain their own strength and clarity to make decisions and their ability to respond to one another in a way that allows them to move forward.

Some people feel that transformative mediation’s lack of apparent structure precludes ordered progress. Actually, transformative mediation does have structure in which participants are introduced to the context of the mediation, explore the situation and possible options, deliberate and make informed decisions. Transformative mediators support participants as they exercise self-determination in how, and in what order they wish to work through this process. Our experience would suggest that this takes no longer than in other mediation frameworks.

Read the whole blog post here.

The magic of mediation or How practice is disconnected from theory

(Originally published by the Institute for the Study of Conflict Transformation on June 20, 2012 under the title, Letting Clients Take Responsibility)

Recently, I mediated with a young couple where neither of the two had completed high school. As a transformative practitioner, I tried to ensure that I supported, rather than supplanted, their control of their conversation, both what they wished to say to each other and how they wished to say it. Many mediators who take the three-day basic transformative mediation training often wonder whether this approach can be helpful only to people who are articulate and have a post-secondary education. One of the beliefs transformative practitioners have is that integral to human nature is continuing internal work in each of us to reconcile our need for personal autonomy with our need for openness and responsiveness to others. Indeed, this is exactly where conflict has such a pernicious effect: both these deep needs are frustrated and the quality of interaction deteriorates. Time and again, as was demonstrated to me in the case with the young couple, this belief in basic human needs for agency and connection is validated. Verbal skills are not the necessary condition for how helpful a transformative approach may be to mediation clients; rather, it is the basic human need to understand one’s self and to be understood by others.

But I’m getting ahead of myself in discussing this case that powerfully demonstrated to me the power of decision-making on both process and substance when it is vested entirely in the clients. The first 90 minutes of the mediation unfolded with positions being staked out in increasingly heated emotion: the quality of the conflict interaction was steadily degrading and the clients were stuck. One then requested a break to go outside and smoke a cigarette; the other client used the break to smoke a cigarette as well. As far as I know, they did not communicate with each other during the break. When the mediation resumed, the tone of their conversation had changed markedly. One offered a revised position with a concession to the other; this offer was quickly accepted. This turn in the conversation effectively settled all but one of their issues, which they agreed to address subsequently. So what happened here?

Often practitioners when faced with an unanticipated ‘positive’ development in mediation will answer this question by invoking the ‘magic of mediation’. In other words, not being able to explain what happened, they revert to talk about the art of mediation and how settlement can rise like a phoenix from the ashes in some indescribable and indefinable way. Speaking of ashes, one could just as easily in the case I’ve been discussing explain the change in terms of the magic of smoking! Neither explanation is satisfactory, and both illustrate the disconnect between mediation theory and practice: as Yogi Berra is supposed to have said, in theory, there’s no difference between theory and practice, but in practice there is. What if there was greater consistency between theory and practice in mediation?

As a transformative mediator, I would explain what happened here in the following way. I supported the clients’ conversation, the points they wished to make to each other, and their positions on the different issues under discussion. An element of this support consisted of my making the observation at a judicious moment in their conversation that they seemed quite far apart on the issues, with a brief summary of what their respective positions were. I then turned it back to them by asking what they wanted to do having reached this point in the conversation, e.g., did they wish to end the mediation; did they want to talk about something else in their conversation; did they wish to think things over and schedule another session to talk some more. I mentioned that this was not an exhaustive list but simply illustrative of the sorts of decisions they could now make. They didn’t reply directly to my summary of their conversation or my question about what they wished to do. Instead, they resumed their negative, unproductive conversation. After an interval of party-to-party interaction, I repeated my summary of what they had been talking about, asked whether they were finding the conversation helpful, and what they now wished to do. Again, they resumed the downward spiral of their interaction. This cycle of summarizing and indicating a decision point may have been repeated one or more times further; frankly, I can’t remember. The important point is they then called for a break and came back to the mediation with a concrete give-and-take proposal that led to an agreed outcome. By limiting myself to interventions in their conversation that simply summarized what they had been saying and asking what they wished to then do, I took on no responsibility for getting them unstuck. Rather, I would argue that it became very clear to them that both their differences and the process for addressing them were their responsibility. Given their understanding of their options and resources, they could make whatever decisions they felt called on to make. In simple terms, I accompanied each of them to the edge of the cliff and asked what they wanted. In the event, neither wished to jump (and pursue their dispute through litigation); apparently, after thinking over the situation, they both wished to resolve matters themselves. Key to what took place was their accepting personal responsibility, their reflecting on what possibilities were available, and their making their own decisions about their lives. Instead of offering them my problem-solving abilities, I helped by supporting their conversation wherever they decided to take it: from high emotion to an eventually quieter, more reasoned tone where one made a constructive offer to the other.

Mediators using other models may reply that they too provide such support from their ‘tool box’ of interventions. The point though is my interventions are not part of a repertoire of techniques to assist parties, by separating the problems from the people, to reach settlements that the mediator considers fair. Rather, my mediator moves are carried out with only one objective in mind, the only objective in transformative practice, namely support for each party’s shift to relatively greater empowerment and for each party’s shift to recognition of the other. Whether they settle or not is entirely up to them, as are all other decisions before them.

About the guest blogger:Towards the end of a long and varied 33-year career in Canada’s civil service, Arnold Zeman was trained in ADR by the Department of Justice. On leaving the civil service, he completed graduate studies in conflict resolution at Carleton University. Dissatisfied with what he saw as the disjunction between mediation theory and practice, he undertook his first training in 2007 by the Institute for the Study of Conflict Transformation, and has identified as a transformative practitioner since then. He resides in Ottawa where he has a private mediation practice and is on the roster for court-connected family mediation services. He blogs, all too infrequently he admits, at dialogicmediation.com.

Why it’s a bad idea for mediators to give advice

Distinguished educator and mediator, Tammy Lenski, is celebrating the tenth anniversary of her blog, Conflict Zen.  As part of that celebration, she wants to highlight some of her favourite posts and articles over the years.  One that caught my eye is entitled, Giving advice is a problem-solving crutch.

In it, she recalls a basic mediation workshop that she co-led at the time that had one rule for its participants: no advice giving.  The rule is especially difficult for those participants who have been trained to provide advice to their clients, such as lawyers, social workers, and others.

Tammy then sets out a number of reasons why she refrains from giving advice to mediation parties after they’ve told their respective stories:

  • It would be arrogant of me to assume I understand the complexities of their lives and minds sufficiently well to know that my advice is what’s best for them. They know themselves far better than I ever will.
  • I could easily insult my clients. If it were such an easy or obvious solution that a mediator (or co-worker or boss) can see it, they probably wouldn’t be stuck in the conflict. Complex problems usually call for less obvious solutions.
  • When I’m mediating (or when you’re supervising), I have power I can misuse, even inadvertently. It’s too easy for a participant to assume my expertise is best and to give up control to my ideas. People may say “yes” without fully considering the implications ‘til later. Or they may well know the implications, say yes anyway, and then the advice is ignored or avoided.
  • Most of us, including me, tend to follow through better on ideas that are our own. Whether you call it buy-in or ownership, the chances of an agreement lasting are greater when a solution isn’t imposed.
  • When I give advice, I risk becoming too enamored of my own creativity and brilliance. When I do that, I’ve started to make the mediation a platform for my own power and knowledge instead of a place for folks to tap into their own.

Many of these points resonate with the transformative mediator’s approach of following the parties, rather than leading them, in the conversation they actually wish to have with each other.  We believe that a process that is driven from the bottom-up, with interventions by a skilled practitioner, is much more likely to have a positive impact on the quality of the parties’ conflict interaction than a process that is driven from the top-down by the mediator.

FAQs on Mediation

Actually, they’re not frequently asked questions about mediation, but they ought to be. Distinguished mediator, educator and practice consultant, Tammy Lenski, urges potential clients to

[a]sk prospective mediators questions like these to assess experience, depth of training and education, and adaptability:

  • Do you have approaches or tools you usually use? Tell me about them. You’re looking for answers that convey a complexity of thinking and practice, not rote mimicry.
  • Describe for me how your mediations typically unfold — what does it look like? Ask yourself if what they described makes sense for you and your situation. If it doesn’t, ask them…
  • Do you vary that approach in circumstances where it may not work as well? Savvy mediators will not be thrown by this question.
  • Tell me about the philosophy that guides your work. Look for a fit between what they describe and what feels right to you. If they can’t answer the question, that’s a red flag — it suggests they’ve never thought about it or have too little training to understand that all mediation approaches have underlying values and philosophies.

I’d be pleased to answer any of these, or any other questions, you may have.  Please go to my business site for my contact information.