When I qualified as a mediator (in January 2016) a colleague explained that in virtually every single dispute he had mediated, the event that the parties had initially regarded as the cause of their conflict turned out to be a secondary cause.
This has been my experience too. It is necessary to get to the root of the problem in order to help mediate it. The mediation process enables the root causes to be identified, and helps the parties overcome poor communication, misunderstandings, assumptions and a multitude of other barriers to negotiation and resolution.
For example, in a workplace case the new owner of a fashion shop started a disciplinary procedure against the manager (who she had acquired with the business) for apparently trivial matters. The manager lodged a grievance that the new owner was treating him less favourably because he was gay. These hostile HR procedures were having a damaging impact on the day to day working of this small business. Eventually, it transpired that the real cause was the manager’s resentment that the previous owner had broken his promise to give him (ie the manager) the opportunity to bid for the shop before selling it elsewhere. Once this was out in the open, the way was clear for the owner and the manager to build a working relationship.
This week, CEDR opened their Mediation Audit for 2018, which they are running in conjunction with the Civil Mediation Council.
This is an established biennial audit of mediators and lawyers and their attitudes towards and experiences of civil and commercial mediation in the United Kingdom. The object of the audit is to better understand and raise the profile of commercial mediation.
Here is a link to the results of the last audit (in 2016).
This year’s audit will also be conducted in the US, in conjunction with the International Institute for Conflict Prevention & Resolution.
Mediators can participate by going to the UK & US Mediators’ page.
Lawyers can participate by going to the UK & US Lawyers’ page.
The Audit will close on Monday 30th April 2018.
This month, a colleague and I delivered two of the workshops at an ‘awayday’ for the staff of a large organisation. We had been given the title of our workshop: ‘Dealing with difficult people’.
My colleague started the workshops by asking the two groups (of about 30 people each) how many of them have to deal with difficult people at work. Virtually all hands went up. He then asked how many of them considered themselves to be difficult people. About 5 hands went up in each group.
Perhaps this is an illustration of a tendency many of us have: we attribute other people’s behaviour to their character, but attribute our own behaviour to the circumstances we are in at the time. He was late because he’s lazy; I was late because my car wouldn’t start.
My main role at the two workshops was to spend half an hour talking about how some mediation techniques can be helpful in dealing with ‘difficult people’ or difficult situations at work. I focused on ‘reframing’. For example, a party to a mediation may say about her colleague: ‘She is a slob!’. The mediator would try to reframe this by saying: ‘It bothers you when you find her papers spread around the office.’
The workshop participants went through a couple of short scenarios and suggested some very useful ways of reframing inflammatory statements.
Recently, the Civil Justice Council invited submissions on how to encourage greater use of Mediation in the Civil Courts. The Law Society’s submission this month argues that lawyers and consumers need to ‘buy into’ the use of Mediation and other Alternative Dispute Resolution methods.
So how can this be achieved? Higher Court fees have nudged more disputes towards early Mediation, as have costs’ budgeting and pre-action protocols. Increased use of Mediation and ADR clauses in commercial contracts would make a difference, albeit not immediately. Probably a complete culture change is required.
The Law Society’s submission advises against mandatory Mediation or ADR as a condition for issuing proceedings in the Civil Courts because it would ‘frustrate the principle’ that litigants should have unimpeded access to the courts. Cynics often say that lawyers discourage ADR because it signifies an Alarming Drop in Revenue.
However, I think that there is another strong reason for avoiding mandatory Mediation. In my experience, the best way to get disputing parties to ‘buy into’ Mediation is to point to the high proportion of cases which settle through Mediation. However, that high proportion is not based on a random sample of disputes: it is based on a self-selecting group of cases in which all the parties have voluntarily agreed to try mediation. There is no reason to suppose that the same outcomes would be achieved in mandatory mediations. And if success rates in Mediations fell as a result, that would be a terrible shame.
I gave my first talk on mediation this month. I was speaking at a ‘Managing Conflict’ workshop for line managers, and one of my topics was ‘The role of mediation in workplace disputes’. I had a great deal of material for my preparation, having immersed myself in mediation practice and theory for the last two years and listened to talks by many leading mediators.
As it was a workshop, I included a short role-play, using two volunteers as the parties, which illustrated how mediation can bring an early end to a workplace dispute.
The session was very well received.
I heard many good talks during Mediation Awareness Week this month, two of which have stuck in my mind.
The first was by two students from a London school who are ‘Peer Mediators’. They described how they (and other students who have also been trained as mediators) help to resolve conflicts between students arising out rumours, social media & text bullying and falling outs between friends amongst other things. Although students might be reluctant to agree to a teacher as a mediator, they are willing to agree to one of their peers, and hundreds of cases are successfully dealt with each year.
The second was about the response of faith groups to the Grenfell disaster. The Salvation Army has emergency response vehicles for disaster situations, which arrived early at the scene, providing support to victims and emergency services. Nearby Al-Manaar Mosque immediately opened its doors to anyone seeking rest, sleep, or food & water. Sikhs provided food, drink, clothing and utilities, as did many Synagogues and Churches across London. It seems that the Bishop of Kensington was instrumental in arranging the meeting between victims and Theresa May in Downing Street, during which the Prime Minister simply listened to them for some two hours. And listening, in the world of mediation and conflict resolution, is the first step.
Between Saturday 14 October and Friday 20 October 2017, various events will be taking place around the country as part of Mediation Awareness Week.
The events include sessions which:
- Explain how mediation is used to resolve disputes and conflict of all kinds
- Demonstrate how mediation provides a quicker, cheaper and more effective alternative to litigation
- Show how use of mediation benefits businesses, communities and individuals.
Full details of these events (and booking information) are available here:
I was asked this week about making changes to employment contracts and employment policies & procedures to introduce compulsory mediation. The company was delighted that a mediator (not me) had recently helped solve a long running and apparently intractable problem between two of their employees.
Workplace mediation has extremely high success rates, so it’s tempting to make it compulsory. However, those workplace disputes which currently go to mediation are not a random sample of workplace disputes: in each one of them, the parties have voluntarily agreed to try mediation. So the currently high success rates for voluntary workplace mediations are unlikely to apply to non-voluntary workplace mediations.
Nevertheless, there is every reason to strongly encourage employees and managers to try mediation where appropriate, and a good first step is to make provision for it in employment documentation. CEDR produce standard precedent clauses for use in employment documentation (available on their website). Their clauses for employment contracts provide that parties will ‘consider’ mediation if other procedures haven’t worked; and their clauses for grievance, disciplinary, capability and other procedures provide that an employee or manager can suggest mediation at any stage.
Paul Randolph, in his excellent book ‘The Psychology of Conflict’, says … ‘’Sorry’ is the word many aggrieved parties crave most strongly. It is at the same time an inexpensive, swift and easy means of addressing and resolving a perceived injustice. Yet it is almost impossible to extract the word from a litigant or disputing party.’
This has also been my experience in dealing with hundreds of disputes as a mediator, a lawyer and a human resources adviser.
Perhaps things will change following a bold step by NHS Resolution, the division of the NHS that provides indemnity cover for clinical liabilities. They have recently published a leaflet called ‘Saying Sorry’ which tells clinicians they have a duty to say sorry to patients and their families as soon as possible. The document expressly disapproves of expressions such as ‘I’m sorry you feel like that’ and suggests expressions such as ‘I’m sorry x happened’ and ‘We’re truly sorry for the distress caused’. It goes on to reassure clinicians: “We have never, and will never, refuse cover on a claim because an apology has been given.”
At the College of Mediators’ annual conference this month, one of the workshops was a brief introduction to the use of ‘Clean Language’.
We were divided into random pairs. One person in each pair spent 5 minutes asking the other questions about a hobby or interest. Then we swapped roles. Substantial information was revealed in 5 minutes about cycling (my partner’s hobby) and singing (mine).
The unusual aspect was that our trainer Trevor Horne would only permit us to use two types of question: (1) ‘and what kind of [cycling] is that [cycling]’ and (2) ‘and anything else about [cycling]’. The questions were reused several times, eg: ‘and what kind of [cycling holiday] is that [cycling holiday]’ and ‘and anything else about [cycling holiday]’.
The two questions do not introduce any information or opinions from the questioner whatsoever.
The following book was recommended to those of us who wanted to learn more: Clean Language: Revealing Metaphors and Opening Minds by Wendy Sullivan and Judy Rees