Tag Archives: mediation

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.

  • 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.

How mediation can help in transborder parental child abduction

Sabine Walsh

Sabine Walsh is a certified International Family Mediator based in Ireland and reports on how mediation can support parents in cases of international parental child abduction, “where one parent brings the child or children to another country, often their country of origin, without the other parents’ consent“.

Mediation however offers a number of specific advantages to parents in the context of a child abduction case. One of these relates to the scope of the dispute. In general, in cases taken under the Hague Convention on the Civil Aspects of International Child Abduction (1980), to which 86 countries are parties, the only issue that can be decided by the court is whether the child or children should be returned or not returned to their state of habitual residence. This means that the court has no jurisdiction to decide any other matters relevant to the future of the family, such as custody, access, maintenance or any other matters that might require a decision in order for the family to move on. A new set of proceedings to decide such matters must be commenced in the relevant state, depending on where the child and the parties will live. This means, in effect, that at least two sets of legal proceedings in two different courts, possibly in two different countries will be required to regulate the circumstances of the family after the abduction. In mediation however, the scope is determined by the parties, not by legal rules, and therefore all matters relating to the dispute can be addressed. In practical terms this means that the parents can address not only where the child or children will live, but all other arrangements such as contact with the non-resident parent, a parenting plan, and financial matters. Not only will this save the family time and money, but it can significantly reduce the stress on everyone, in particular the children. (emphasis added)

She also identifies best practices in international family mediation:

The first hallmark of international family mediation is that it is carried out by co-mediators. The co-mediation team should ideally consist of one male and one female mediator, one from each of the parents’ countries, and one being from a legal and one from a psycho-social background. This is not always achievable but at the very least, one mediator should be from each of the parties home countries. In an Irish-German family, for example, one mediator should be Irish and one should be German. Both joint sessions and caucuses are used in this type of mediation, and sessions are usually scheduled over a period of three days approximately. Very importantly in cases of child abduction, arrangements are often made for the left behind parent to have contact with the child at some stage during, though not actually in the mediation. The voice of the child or children will usually be brought into the mediation, either directly or by means of an interview with a third party such a psychologist or social worker. The parties legal representatives are actively involved at all stages, particularly when it comes to drafting the agreement, and translators or interpreters may also sometimes be used, though it is generally preferable if a common language can be found to mediate in.

You can read Walsh’s entire report here.

  • Overseas child abductions on the rise (guardian.co.uk)
  • Stolen Scottish children let down by law (express.co.uk)

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.

Respecting mediator confidentiality

December 20, 2012

The membership of the Association for Conflict Resolution mourns the tragedy in Newtown, Connecticut, along with all those shaken by it across the United States and around the world.  We and many of our other colleagues stand ready to lend the full range of our professional expertise and devotion to processes that support healing, as well as those sustained efforts that will be required to facilitate dialogue, build consensus, and take action to address the deep rooted structural issues that contribute to this tragic pattern.  Our membership includes thousands of dedicated and seasoned conflict resolution practitioners with a variety of specializations committed to the work that lies ahead.

Many ACR members, particularly those who are mediators, are also following a developing side story relevant to our field. News reports have disclosed some details of the mediated divorce of the perpetrator’s parents and provided comments alleged to have come from the couple’s mediator.  ACR would like to make clear to the public that confidentiality is one of the basic principles of mediation, and that any mediator belonging to an organization, such as ACR, which has approved the Model Standards of Conduct for Mediators, is bound by that standard of confidentiality (http://www.acrnet.org/Educator.aspx?id=971). In addition, ACR endorses both the ACR Ethical Principles and the Model Standards of Practice for Family and Divorce Mediators which state “A family mediator shall maintain the confidentiality of all information acquired in the mediation process, unless the mediator is permitted or required to reveal the information by law or agreement of the participants.”

Each year in the United States, there are thousands of divorcing couples who choose to work together in mediation to find an outcome that is mutually satisfactory. ACR is committed to seeing that they and all mediation clients can be assured that they are protected from breach of confidentiality except where permitted by law or agreement of the parties.

ACR leadership and members continue to offer whatever support and care we can to the community of Newtown, the surrounding area, and the affected families, for whom we grieve.

Role Mediation Played in Cuban Missile Crisis Revealed

This week marks the 50th anniversary of the Cuban missile crisis when the United States and the former Soviet Union were poised on the brink of nuclear war and the world collectively held its breath.

On Monday, October 22, 1962, President Kennedy announced a U.S. naval blockade to form a 500-mile circle around Cuba, where Soviet missiles with nuclear warhead capability had earlier been detected, and threatened to sink any Soviet ship crossing the blockade.  The crisis ended on Sunday, October 28th, with the announcement by Soviet premier Khrushchev of the dismantling of the Soviet missiles in Cuba.

As Paul Koring of The Globe and Mail notes today:

UN Secretary General U Thant 1968 / Wikipedia

Mostly forgotten, the United Nations untested Secretary-General U Thant played a pivotal role in defusing the Cuban Missile Crisis.

Half a century later, with the UN regarded almost with contempt by many, including Canada’s outspoken Foreign Minister John Baird, the key role of diplomacy in averting nuclear doomsday has emerged from dusty archives, perhaps as a lesson worth remembering.

“In the historical record, U Thant has largely been written out of the crisis,” says Walter Dorn, who heads the Security and International Affairs department at Canadian Forces College, in Toronto. The Kennedy camp preferred to portray their man as a gutsy Cold Warrior, not a President so unnerved by the hawks in his own camp that he sought mediation by the UN.

Yet at one critical juncture, American diplomats woke U Thant at midnight and begged him to deliver a face-saving solution to the Russians. And long before the term “shuttle” diplomacy was in vogue, the obscure Burmese diplomat who became Secretary-General almost by accident following the death of Dag Hammarskjöld in a Congo plane crash, was defining it.

“Hardly anybody know about what U Thant did … but at one point there were separate teams on the 38th floor of the UN building – a U.S. team and a Soviet team – and U Thant was literally shuttling between the two rooms,” Mr. Dorn said in an interview.
U Thant went to Havana, brought back the body of the downed American pilot, calmed Fidel Castro and – months later – after it was all over, was quietly thanked by both Mr. Kennedy and Mr. Khrushchev.

Read the entire news feature and its accompanying sidebars at The Globe and Mail.

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.

Where have all the Quebec mediators gone?

Last night on television’s Saturday Night Live, Montreal-based rock band Arcade Fire wore the Quebec student movement’s emblematic red squares and, in doing so, focused attention on the unrest that has been taking place in the province over the last 14 weeks  about proposed tuition increases.

Here’s one example of the public discourse about the student protest:

On Wednesday, a masked enforcement squad swept through the campus at the Université du Québec à Montréal, hunting for students who had dared to show up for class. Wherever they found a class in session, they broke in and shouted “Scab!” in the students’ faces. The enforcement squad was defying a court injunction that ordered the university to open. They jumped on desks and tables and spray-painted slogans on the classroom walls. They grabbed two female students by the arm and told them to get out. [...]
These masked young men and women are the children of the celebrated Quebec model, which shares a certain mindset with the not-so-celebrated Greek model. The state owes us everything, and if we don’t get it, we’ll riot in the streets!

Before the Quebec National Assembly, after an all-night session on Friday, June 18th, passed special legislation dealing with the unrest, the head of the Quebec Bar stated:

« J’estime que ce projet de loi, s’il est adopté, porte des atteintes aux droits constitutionnels et fondamentaux des citoyens. L’ampleur de ces limitations aux libertés fondamentales n’est pas justifiée pour atteindre les objectifs visés par le gouvernement », souligne le bâtonnier du Québec, Me Louis Masson, Ad. E.

« Dans son analyse préliminaire, le Barreau du Québec est notamment préoccupé par les limitations apportées au droit d’association et au droit de manifestation. De plus, nous critiquons la judiciarisation des débats et le recours à la justice pénale prévus dans le projet de loi », ajoute le bâtonnier Masson.

“I believe that this Bill, if passed, will constitute violations to the fundamental and constitutional rights of citizens.  The scope of these limits to fundamental freedoms is not justified by the ends sought by the government, emphasizes the bâtonnier of Québec, Maître Louis Masson.

“In its preliminary analysis, the Quebec Bar is particularly preoccupied by restraints on freedom of assembly and the right to demonstrate.  Moreover, we criticize placing public debate in a  judicial context, and the recourse to criminal law provided for in this Bill,” adds bâtonnier Masson.  [rough translation]

But two days before this communiqué, the Quebec Bar issued a news release stating in part:

Le Barreau du Québec souhaite que les pourparlers reprennent et qu’une véritable médiation soit mise en place dans un climat serein et propice au dialogue. « Nous recommandons qu’une médiation soit menée par trois experts indépendants et impartiaux qui composeraient un conseil de médiation neutre et objectif. Le choix de ces médiateurs, sans aucun lien avec le gouvernement ou les fédérations étudiantes, permettrait aux parties de revenir à la table avec une ouverture totale à l’identification de solutions de sortie de crise », conclut le bâtonnier Masson.

The Quebec Bar calls for talks to be resumed and for genuine mediation to take place in the calmness favourable to dialogue. ”We recommend that mediation be held by a panel of three independent and impartial experts.  The choice of such mediators, without any link to the government or to student federations, will allow the parties to return to the table with  complete openness to identifying exit strategies to the crisis,” concludes bâtonnier Masson. [rough translation]

Now, it is univerally accepted that mediation is an impartial process of dispute resolution.

How is the Quebec government to accept the Barreau call for mediation when the Barreau subsequently strongly criticizes Quebec legislation to deal with the protests?  Where’s the impartiality and disinterestedness?  (Please note I’m arguing how to establish a ‘calmness favourable to dialogue’ and deliberately abstaining from arguing the merits or flaws of the Quebec legislation.)  Admittedly, the Barreau did not suggest that it or its members be involved in the mediation.  Nonetheless, the proposed mediation, an honourable proposal as such, is coloured by taking sides on the legislation.

(H/T: MJT)