Behind every dispute lies a broken relationship


Richbell David 2012I (David) am a red-blooded Commercial Mediator. I get settlements. Indeed I tell the parties “My role is to give you the best chance of getting a deal”. But I try to be nice when I am doing it!

Jane, on the other hand, is nice without trying and tends to give more time to the parties relationships and not necessarily to problem-solving. She still gets results but usually through what she terms as ‘slow mediation’ (in the mode of slow, rather than fast, food).

What we both accept is that we can learn from each other’s style and techniques and we do so by co-mediating together occasionally.

Mediation is a very solitary business and, once we have established ourselves as lead Mediators, it is very rare that we have the privilege of seeing our peers in action. That is one reason why MATA introduced the peer review scheme last year, where one lead Mediator sits in with another lead Mediator and gives honest feedback afterwards. Despite being acknowledged by many Mediators as being very important, so far only a few leads have joined the scheme and I do wonder if that is out of fear about a colleague observing, and commenting on, their performance!

The point of this is that we Mediators are in danger of being isolated, and even stagnating, if we are not learning and developing all the time and what we want to say in this first part of our session is that we can learn so much from each other, from other styles of commercial mediation, and from other strands of mediation (such as Community, Family and Workplace). As yet though, we have not created a forum for this to happen.

Before we examine the other styles and strands in more detail, I want to mention where I am in my commercial mediation practice. After twenty years of mediating commercial disputes, nearly half of which have been in the construction industry, I have been examining what I do and realise that I have gone far, probably too far, from the model that we used to teach. The temptation is to spend less time on exploration – establishing parties’ needs rather than ‘wants’ – and much more time on negotiation. And I realise this is one reason why it seems to have become harder. I have realised that if I spent more time with the person and less with their problem, the solutions would emerge more easily. It is about relationships, and I realise that if I spend more time on the broken relationships, the parties’ needs would be more evident and their movement towards settlement would be potentially easier and more co-operative. Behind every dispute lies a broken relationship. Even in the most dispassionate insurer/insurer case, relationships still exist. And it is not just party to party, but lawyer to lawyer, expert to expert and a mix-up of all of them. It is (or should be) all about relationships. So what about the various styles of Mediators? By that I mean Evaluative, Non-Evaluative, Facilitative, Transformative and all the other shades in between. Most of us shy away from the suggestion that we may be Evaluative and can also be very dismissive of Transformative mediation; the one seeming to break all the rules about this being a party-centred process where both the problem and the solution rest with the parties, and the other being far too time-consuming and touchy-feely (although that is now called Emotional Intelligence – thank-you Daniel Goleman).

The reality, of course, is that any good Mediator can fit anywhere along the spectrum of styles according to the needs of a particular party, and may even have a different style with each party in the same mediation.

I would call myself a Non-Evaluative commercial Mediator. That has changed from calling myself a Facilitative Mediator because I wanted to give the impression of a Mediator who is active, alert, vibrant, engaged, energetic and dynamic as opposed to a more laid-back, let-them-get-on-with-it style suggested by the term Facilitative Mediator. I want the parties to feel they have had their money-worth and if I can engender some sympathy as I sag exhausted beneath the table as they sign the settlement agreement, then all the better.

But let’s look at

The Evaluative Mediator

 I suppose I need to start by describing what I mean by ‘evaluative’. I mean a Mediator who is prepared to give advice on merits, relevant law, likely outcome in court and sensible settlement terms. That includes the Co-Mediator who I worked with in my early days who said to a party “You’re sheer f****ing mad not to accept what they are offering” and another (barrister) Mediator who was heard to say in the first opening session “At some stage during this mediation you may want me to give you an opinion on the case…” and then, when the parties didn’t take up his offer, was also heard to say “I think the time has now come when you should ask me for an opinion”. I did question this technique after the mediation and the Mediator (note I don’t use the term ‘she’ or ‘he’) said it is what the parties expect of him (damn!) and why they appoint him (damn again!). There is no doubt that some parties – or their lawyers – want the Mediator to make a decision for them. And some Mediators are prepared to do so. And if that is what the market wants (some of the market anyway) then they deserve what they get. But they should go to court and get it done properly. The Mediator should not be cast in the role of cheap advisor or ad hoc judge.

But there are some lessons, even learnings, to take from the evaluative style:

  • How to react when asked to give an opinion
  • How to help a party who doesn’t wish to take responsibility for making a decision
  • How to help a party who needs a Mediators opinion/decision to take back for ratification.

Some of you have heard me talk about a mediation that I did with Karl Mackie in an Asian country many years ago. The Mediation Agreement allowed for regular pauses whilst the local team returned to their office to report and receive further instructions, then filed back to the mediation room to continue the negotiations. It was explained to me that no-one would make a decision – it had to go to the very top and then pass back down to the negotiators. The reason being that if they made a bad decision they could lose their job; if they made a very bad decision they could end up in prison; if they made an awful decision they could be executed. Who would be a decision-maker in that environment?

Years ago I wrote a paper on Evaluative Mediation and ended by saying that, if you must do it (and in this case it was making a recommendation for settlement), make sure it is at the request of both/all parties, is even-handed, given to all and is in writing to avoid any potential misunderstandings or selective interpretation. But the golden rule should always be don’t do it. The risks of losing independence, of being biased and of being sued are too great.

So what do we mean by

The Non-evaluative Mediator?

 That’s me! I am comfortable with pitching figures, coaching parties, challenging and reframing but I won’t advise, express merits (not that I could, being a non-lawyer Mediator!) or recommend settlements. And I do say at the beginning “My role is to give you (the parties) the best opportunity of reaching a settlement – and most do”.

I would guess that most Mediators would identify with that. But as I mentioned earlier, twenty years of experience does not mean I am at my best. I have increasingly realised that I hit the figures earlier than I used to. I know the best results come from leaving the figures until quite late and to concentrate on the parties needs so that, when they can see those needs are valued and likely to be met, they are much more positive and co-operative when the figures start. They see the shape of the deal and so want it to work. And it usually does. But I don’t go much further than saying to the parties “What do you need to be able to do a deal today?”. I often then have to explain what I mean by ‘need’. But eventually they will tell me what their real drivers are. What I don’t do, until recently anyway, is talk about their relationships and feelings. I suppose to a certain extent that is because it became a bit of a joke when we were training Mediators. “Tell me how you feel about that”. “That must have made you feel angry” and so on. I say until recently. Jane will cover  Transformative Mediation shortly but we both attended, actually spoke at, a conference in Milan earlier this year when Joseph Folger (Transformative Mediation: Ideological Foundations and Practice by Joseph Folger) spoke on Transformative mediation, which is all about focussing on relationships rather than on a problem-solving model. And whilst I was not a convert to that particular process it made me remember that behind every dispute there lies a broken relationship. So in early August I mediated a case which involved a small building company which had a term contract with a Housing Authority, being suspended after someone had made a passing remark over lunch that they suspected collusion between the company and a Housing Authority manager. Three months later the company was cleared of any wrongdoing but by then their reputation had been tarnished and the work had been placed with competitors. Three years later their claim for lost profits and other headings came to mediation. And during the initial open meeting I said to the builder “I can see you are still upset at being suspended” and he absolutely broke down in front of the other party and talked about the way this one action had ruined his business, his marriage and life in general. Ironically the person who had made the original accusation was on the other side of the table. Later the builder’s lawyer said to me that being given the recognition, and therefore permission, to say how he felt to the person he felt most responsible had transformed the builder. I think we too often shy away from emotional situations – probably because they make us feel uncomfortable – and forget that this is a party-centred process and it is not our comfort that we should be thinking about.

I am not sure that being a non-evaluative Mediator is any different to being a facilitative mediator other than in the perception of the people choosing the Mediator Facilitator is a good word for a Mediator..

Facilitative Mediator

 We are there to help the parties reach a settlement – their settlement – and so they are at the centre. It is their problem and their solution, and we are here to help them, guide them and support them in turning their dispute into a solution. Indeed up until a year ago my CV headlined the fact that I am a Facilitative Mediator. And then Chambers Directory included the comment “laid back”. I felt outraged. Here I am working myself to a frazzle helping others solve their problems and I am described as laid back!! Calm – yes. Persistent – yes. Patient – yes! Laid back – NO!! Especially as I had heard stories on one Mediator who had the habit of taking a book with him to read whilst the parties were in their rooms. And another who was seen shopping  – twice! – having left the parties some tasks. That’s the same Mediator who is purported to have run two mediations in the same building at the same time – neither knowing about the other until a lawyer from each mediation met in the toilet and asked each other who was mediating – and found it was the same person! I don’t know what happened next but stamina is a vital quality of an effective Mediator and that particular Mediator must have had it in spades!

So I’m no longer a Facilitative Mediator. It’s a shame because it is a very unthreatening term but I don’t want to risk being seen as a ’laid back, touch-feely nice person’. Rather an emotionally intelligent nice person who is prepared to bang heads together if necessary. Although, now I think of it, banging heads together might be seen as being a bit evaluative.

I often say to parties in the mediation “This is an opportunity for you to tell your story”. Most of the time they don’t; or at least not then. Their lawyer has given the legal arguments and I give them the opportunity to tell the personal and commercial realities….and they invariably say “My lawyer has said it all”. Of course s/he hasn’t – it is just that the party is not ready for it (which is one of my arguments for a long opening session, because, given time, they will tell their story – and be the better for it). But this takes us into the realm of ……..

The Narrative Mediator

 The narrative mediation approach encourages the conflicting parties to reach understanding and resolution through sharing personal and cultural narratives underlying their conflict. The emphasis is more on the cultural issues that underlie the conflict – understanding why people react to the same situation in different ways. That is not, of course, restricted to ethnicity. Anyone attending the intercultural workshop that we ran in July will know that culture means “this is how we do it here” and people will do it here differently depending on age, education, wealth and so on. We are all unique and I think we can gain much from this approach by treating everyone as a valuable and unique individual who has their own unique story to tell. Which brings us to ……..

jane gunnThe Transformative Mediator

 As David mentioned earlier, in March of this year we both spoke at a conference in Milan on Transformative Mediation.

Like many commercial mediators, I (Jane) had until this year, been suspicious of Transformative Mediation, seeing it as more aligned with a psychodynamic approach to mediation and an attempt to transform the parties themselves. Having been trained by CEDR in the facilitative, problem-solving approach to mediation and then become a trainer in that approach myself, it was deeply challenging to consider that there may be another and perhaps more effective way of viewing conflict itself and thus the solution to it.

In practice however, I had found my own style of mediation moving towards what I term “slow mediation”. As lawyers and parties have become more familiar with mediation, I have found myself under increasing pressure as a mediator to focus from the very start of the mediation on negotiation and settlement and on the occasions that I have given in to such pressure, I have found it to be counter-productive.

Instead of focussing on the problem or issues to be resolved, Transformative Mediation focuses on the interaction between the disputing parties. The underlying conflict is viewed as a crisis in human interaction that changes the dynamic of the parties’ relationship so that they react in ways that are both more vulnerable and more self-absorbed than they did before the conflict. These negative dynamics often feed into each other in a vicious circle that intensifies each party’s sense of weakness and self-absorption. As a result, the interaction between the parties quickly degenerates and assumes a mutually destructive, alienating and dehumanizing character.

However, the belief of Transformative Mediators is that the parties have both the ability and the desire to rebound and recover from the alienating effects of conflict and the capacity to move back into their sense of personal strength or self-confidence (the empowerment shift) and their sense of openness or responsiveness to the other (the recognition shift). As they do so the interaction can reassume a constructive, connecting and humanizing character.

What then is the role of the mediator in Transformative Mediation? This is the interesting bit having come from the problem-solving approach where the role of the Mediator is help the parties to identify the key issues, uncover their needs and interests and then to negotiate and reach a settlement. A Mediator with a “transformative” orientation starts from a relational perspective and believes that his or her job is primarily to help the parties to transform their interaction with each other from destructive to constructive, while they explore various topics and possibilities for resolution. If the Mediator does this job well, the parties are likely to make positive changes in their interaction and, as a result, find acceptable terms of resolution for themselves, when and where such genuine terms exist.

What about settlement? This is the key difference between the problem-solving and transformative approaches to mediation. The problem-solving approach is based on the theory that conflict is a problem in how to meet incompatible needs with limited resources and that the parties need the Mediator’s help in solving that problem and reaching an acceptable settlement. The transformative approach however, is based on the alternative theory that conflict is a crisis in human interaction and that the parties need help in overcoming that crisis and restoring a constructive interaction. Settlement itself is not therefore the primary focus of the transformative Mediator. Settlement is seen simply as one of many choices available to the parties depending on how their own goals and insights develop through their renewed ability to interact with one another.

Behind every dispute lies a broken relationship

 This paper began with this statement and the assumption has often been that there are those disputes that by their very nature are more relational and/or emotional than others. Disputes such as employment disputes, family business disputes and medical negligence or personal injury disputes. This is misleading in the extreme for I have yet to mediate a dispute where the way the parties related, their behaviours towards each other in the mediation room, were not, initially at least, driven by a negative and alienating view of the other and a tendency to demonize rather than humanize the opposing team. Lawyers and parties alike have been so totally self-absorbed with their own case that they were unable to shift towards a genuine recognition of and appreciation for the other party’s situation.

It is not necessarily the case that an existing personal relationship has been broken, rather that the parties’ ability to interact in a way that enables them to behave towards each other with confidence and personal strength is undermined. How many times have you observed such adversarial and often downright aggressive behaviour from parties and their lawyers?

My shift towards ‘slow mediation’ has been a conscious attempt to put the relationship between the parties at the forefront of my mediation efforts rather than allowing them to rush headlong into negotiation. It doesn’t necessarily take any longer but it does enable the parties, if they want to, to achieve a new understanding of their own thinking and behaviour and of the other party’s perspective, which in turn enhances their decision-making efforts.

Transformative mediation may not be for everyone but resisting the increasing pressure from lawyers and parties alike to be specialist Mediators with the ability to ‘guide’ negotiations and refocusing our efforts on the parties themselves often pays dividends and can have long-lasting effects on their ability to resolve subsequent disputes themselves.

Conclusion

Being a Mediator is often a lonely role. We can easily assume that what we do is right, and best, because we get settlements most of the time. Those of us that have been mediating for many years may easily assume that we have nothing more to learn – we are at the top of our profession. It is easy to compartmentalise other strands of mediation and let them get on with it their way.

What we fear is that Mediators can easily get into a habit of practice that is not necessarily the best. Comfortable, perhaps, effective, maybe but best?? We believe that there can be much to learn from other practitioners who work in other strands and that all of us should be on a quest for mastery wherever we are practising.

 Jane Gunn and David Richbell

September 2012

 

 

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