The Roles of the Mediator
I mentioned in a previous post (http://www.mediator-chereji.ro/2011/06/07/romana-promovarea-medierii-1-0-ce-este-medierea/) that sometimes we as mediators find it hard to explain our role and purpose. When our potential clients ask us what we can do for them and we start by telling them what we will not do – will not impose decisions, will not provide consultancy, will not notarize documents – we might lose our clientele fairly quickly (there have been plenty of examples of that lately). People are interested in what we do not what we don’t do! In order to meet the expectations of those who are interested I have decided to write this post which will provide an outline of the roles of the mediator, what he/she does exactly and what in particular accounts for the fee that clients will pay. I must, first of all, confess I drew my inspiration from Christopher Honeyman’s article “On evaluating mediators” which can be found on IMI website, at http://www.convenor.com/madison/eval.htm .
Straight to the point – the roles of the mediator are closely linked to the actions s/he performs during mediation. Thus we are talking about investigation, empathy, effective communication, problem solving and control. Let’s take them one by one:
Investigation: the mediator helps parties explore and understand all the facets of a conflict (parties usually get stuck on just one aspect of their dispute), understand their interests and needs beyond the stands they portray and assume on the outside, generate objectives accurately and analyze possible consequences of each action performed on the other party and of the overall process of problem solving.
Empathy: the mediator has to pay attention to the needs of the parties and structure the process of mediation in order to offer comfort and safety to the participants. S/he has to be able to understand the emotional aspects of the conflict (and also display this to the parties involved), to create a suitable space to examine these and use the most befitting procedures for the emotional status of the parties.
Effective communication: the vast majority of conflicts generally start from misscommunication or communication breakdowns. The mediator has to have the ability to actively listen and rephrase messages in order to create the best understanding with the least negative emotional impact. In other words, s/he should be able to pass on an initially negative message in a positive manner in order to facilitate a suitable environment for negotiation. We generally argue because we communicate badly – it is the fundamental role of the mediator to restructure communication in order to make it effective = the best understanding and the least negative emotional impact!
Problem solving: the mediator does not offer or impose solutions; s/he explores possible options together with the parties involved, generates alternatives, evaluates and tests the commitment of the parties towards the agreed decisions, uses persuasion techniques to determine the parties to build realistic offers. The mediator educates and assists the parties in the negotiation process; s/he helps the parties use the information they have in order to make the best decisions regarding conflict resolution and test the validity of these decisions.
Control: the mediator has the crucial role of ensuring the most suitable environment in order for the parties to communicate effectively, negotiate and reach the decisions that are necessary for the resolution of the conflict. S/he is the one that establishes the rules of interaction between parties, guarantees the right and turn of each party to be heard and to present and promote their legitimate interests. S/he ensures equal treatment and equal opportunities across the mediation process (the possibility for each participant to have a relatively equal time available in order to make his points aware and integrate the interests of all in the design of the mediation agreement). S/he controls and denounces abusive and/or counterproductive behavior; mitigates and redirects discussions in order to serve the central objective of the mediation session: reaching a sustainable agreement, based exclusively on the will and legitimate interests of the parties.
This is basically what we, mediators, do. As long as we want to practice mediation (and not undercover legal consultancy, “camouflaged” arbitration or cover up for an attorney transaction through a mediation agreement, in order to recover the stamp charge) these are the five attributes we should refer to; they tell the difference between us and other professionals in conflict resolution.
The Limits to Mediation
On the blog again, after quite a long leave of absence…so many things to do in so little time and such a hectic world. The Arab dictatorships are falling one by one, Qaddafi is gone, the Euro isn’t doing that well either, China is increasing, Europe is decreasing, and Romania is idling (as per usual) – all things considered, what difference does it make what I care to write about mediation?
And yet…
I believe this is just the kind of world that has a growing need of working out a different way of solving its disputes and burn out its conflicts. From families to schools, from private enterprises to public institutions, from ethnic and religious groups to national states – everywhere around we find the same mainstream “resolution” methods with just about the same results – endless conflicts which eat up countless resources and human lives, an insecure, bitter, sad and despairing world.
We can either keep this up and expect the same results, or we can try a different approach. Instead of issuing orders, sentences or decrees, we may try to listen to those who should apply them; instead of force, we may try to use persuasion; instead of the stick, we may try the carrot; instead of asking, we may try offering; instead of competing, we may try cooperating. And instead of deafening each other by pushing through our point of view, we may start by trying to understand the other’s point of view.
In the time between now and my last post, I’ve heard a great deal of opinions on mediation. That it doesn’t “work”, that in a country like Romania it does not stand a chance, that everyone’s trying to rain on the mediators’ parade, that lawyers are against us, that the state doesn’t support us, that judges do not send cases our way. In fact – and this says a lot of the state of affairs in our country – I have even heard mediators who advised parties interested in mediation to opt for something else. This is who we are; we’re far more comfortable complaining on the outside than trying to stand on our own two feet, back straight, passing any obstacles in our way (as opposed to going around them – to which approach we have grown accustomed to for a couple of centuriesnow).
Today’s world, in which the failure of traditional and classic solutions is ever more obvious, offers amazing possibilities to think out of the box – a fundamental lesson taught by Steve Jobs – for those who can escape the trap of the ready-made and already-known. The national state is not what it used to be, and its institutions are rather ineffective; capitalism, as defined by the classics, is essentially flawed; justice is slow, overwhelmed, incapable to keep up, more often than not corrupt and incompetent; traditional structures collapse under the weight of the new, the ultramodern, the unconventional, of unorthodox solutions and out-of-the-box thinking. I can hardly imagine a more suitable environment for mediation to develop as a mainstream method of dispute resolution.
And I continue to argue that the only limits to mediation are the professionalism and imagination of the mediator!
Promoting Mediation 1.0 – What Is Mediation?
I was previously discussing the obstacles in the way of promoting mediation when the main agents of its promotion, namely mediators, have insufficient mastery of their own profession. If he who is called upon to clarify his métier to potential customers does not fully understand its concepts, methods, and techniques, any attempt at promoting it is nothing more than pure utopia. Such a state of affairs is due, on the one hand, to the poor performance of mediation trainers, who are unable to accurately convey their experience and successfully turn it into knowledge and skills, while on the other hand, to the self-sufficient mind-set of some of the training attendants, who claim to ‘know’ what’s what in mediation from the start, and who therefore deem further training in this sense unnecessary. We’ll expand further on this subject in a future post.
A mediation trainer myself, I realized that one of the main barriers in the way of a proper understanding of mediation as a way to resolve disputes is the challenge of accurately defining mediation and the role of the mediator. The other day, while I was holding the mediators’ training, I asked my trainees two questions: what kind of disputes they face at their workplace and what they would expect from a mediator, if they employed one to solve said disputes. I got multiple answers to my second question, all of which fitted into a small number of categories: 1. To provide/offer solutions to the parties involved; 2. To decide which party is in the right and get the other party to yield; 3. To convince the parties to make peace (meaning give up their dispute and avoid the subject in the future). There was also a fourth category, of those who truthfully admitted they did not know the answer. I realized there and then how great a gap there was between the message that we, mediators, are generally trying to convey to the public, and how much of that message is understood at this time. It becomes clearer now why potential beneficiaries are reluctant to use mediation – the signals that reach them from mediators are mixed and hence, less reliable. Subsequently, I have set my mind to devote a series of posts to clarifying the two crucial aspects of mediation marketing: what is mediation and which is the mediator’s role in the resolution of a dispute.
Anyone who has ever read a mediation course is already familiar with the standard definition(s) of mediation. I will list some of the most popular meanings below, for whoever is reading this post and has not yet had the opportunity of flicking through such a course:
1. Mediation is a way to amicably resolve conflicts with the help of a third party, who specializes in the field of mediation, and who acts neutrally, impartially, confidentially, and with the informed consent of the conflicting parties (Law 192/2006, art. 1 paragraph 1).
2. “Mediation is the intervention in a negotiation or a conflict of an acceptable third party who has limited or no authoritative decision-making power, who assists the involved parties to voluntarily reach a mutually acceptable settlement of the issues in dispute” (Christopher W. Moore, The Mediation Process).
3. “Mediation is a process in which an impartial third party helps disputing parties to work out an agreement. The disputants, not the mediator, decide the terms of this agreement” (Beer&Stief, The Mediator’s Handbook).
4. “‘Mediation’ means a structured process […] whereby two or more parties to a dispute attempt by themselves, on a voluntary basis, to reach an agreement on the settlement of their dispute with the assistance of a mediator” (Directive 2008/52/EC of the European Parliament and of the Council).
Noticeably, all these definitions share certain common features:
1. The parties involved in the conflict are the decision-making authorities and also the negotiators of a mutually acceptable solution, and also
2. In their negotiation, the parties are assisted by a mediator who has no decision-making power.
All good so far, but what does it all mean? The definitions above are elegant, academic, and grasp the essence of mediation as an alternative conflict resolution. However, they cannot, for whatever reason, transmit this essence to those who read them.
To better understand mediation, let us imagine we are involved in a conflict. We have a bone to pick with a neighbor, friend, work mate, or other. We are trying to get something we want from this person, by having a discussion with them about it. This action is called negotiation. Let’s say it didn’t work, but we don’t want someone else to make the decision for us (because either we don’t have enough faith that their decision would best suit our interests; or maybe we just got so upset with the other party that we do not want to ever speak to them again). We then turn to a professional who can help us negotiate (or rather help us overcome the previous difficulties). Such a professional goes by the name of mediator, while the negotiation taking place between us in the presence of said professional is called mediation.
In other words, mediation is negotiation in which the parties are aided by a professional in the field, in order to reach a solution that best suits the interest of both. The accent falls on the word “negotiation”, as it is key to understanding the mediation process, its advantages, limitations, and its voluntary and confidential nature – aspects to which I shall return in future blog posts.
Until then let us summarize what we have discussed so far:
1. Mediation is not a kind of parallel justice in which the mediator decides who is right and who isn’t, on whose side the law is and who gets to pay damages;
2. Mediation does not mean the parties giving in to the perseverance of the mediator for them to make up, give up the object of dispute and their legitimate claims;
3. Mediation is not a method used by a third party (the mediator) to convince two parties to accept a solution which the former deems appropriate and suitable;
4. Mediation is negotiation between two parties who are helped to overcome the obstacles standing in the way of finding a mutually beneficial solution by a third party (the mediator), who cannot and who has no right of imposing any kind of solution.
Undeniably, such a definition raises a question of utter importance for the promotion of mediation: if the mediator does not provide solutions, does not judge, does not convince, and does not make peace, what is it that she/he actually does to help the parties resolve their dispute? The answer – in my future post. Until then, hopefully we’re clear on the definition of mediation as a way of resolving conflicts.